Il for www.theindianalawyer.com

The Indiana Court of Appeals has upheld a trial court ruling that prohibited a Fort Wayne TV station from broadcasting audio from a sentencing hearing it obtained through a public records request, finding the trial court’s ruling complied with both local rules and the First Amendment.

During the sentencing hearing for John C. Mathew, a prominent physician who pleaded guilty to two counts of felony sexual battery, the Huntington Circuit Court imposed a two-year sentence on each count, with both sentences to run consecutively and the entire sentence suspended to probation. Mathew was also required to register as a sex offender.

That sentence generated heavy community interest and sparked protests from some residents who were concerned with Mathew’s lack of jail time, Jonathan Shelley, news director for WPTA-TV in Fort Wayne told the Indiana Lawyer in an earlier interview. Thus, as part of its reporting on Mathew’s conviction, WPTA-TV submitted an access to public records request to receive the audio from the hearing, documents submitted as evidence and private letters submitted on behalf of Mathew and his victims.

In response to that request, Huntington Circuit Judge Thomas Hakes issued an order stating that the court was required to provide the requested records, but that the TV station could not broadcast any portion of the record, subject to contempt of court. Hakes then denied a subsequent motion to reconsider, finding that Administrative Rule 9(D) required him to provide a copy of the record, but that Judicial Conduct Rule 2.17 required him to prohibit broadcasting. Rule 2.17 prohibits broadcasting, televising, recording or photographing court proceedings without prior approval or in an excepted situation.

WPTA then took its case to the Indiana Court of Appeals in WPTA-TV v. State of Indiana and John C. Mathew, 35A02-1705-CR-1060, arguing that Rule 2.17 applies to cameras actually used in the courtroom, but the station was seeking to broadcast an audio recording that was both made and provided by the court. Several media organizations, including the Society of Professional Journalists and the Indiana Broadcasters Association, supported WPTA’s appeal, though the Hoosier State Press Association declined to join the TV station’s case as an amicus.

However, the Indiana Court of Appeals upheld Hakes’ decision in a Tuesday opinion. Judge Patricia Riley, writing for the panel, said the trial court complied with both Administrative Rule 9(D) and Judicial Conduct Rule 2.17 when it provided the requested audio recording while “manag(ing) the access to its audio recording.”

“Permitting the audio of a proceeding to be broadcast to the public in general by way of any type of media, would have an intimidating impact, not only on the behavior of the witnesses and other actors — causing possible fear and reluctance to testify — but also on the openness and candidness of any trial testimony,” Riley wrote. “We perceive no difference between the effect of broadcasting a hearing ex post facto versus the contemporaneous dissemination of the proceeding.”

WPTA also raised a First Amendment “gag order” challenge against the trial court, but the appellate panel rejected that argument, as well. The broadcasting prohibition does not prevent the station from reporting on Mathew’s sentencing, Riley wrote, but rather only prohibits the dissemination of the audio.

The appellate court further determined Rule 2.17 is content-neutral as it applies to all audio recordings of hearings and proceedings. Additionally, because the state narrowly tailored the rule “to advance its legitimate interest without overly burdening free expression…,” it passes the intermediate scrutiny test, Riley said.