Recording in South Carolina Courthouse: Navigating the Fine Line Between Rights and Restrictions

https://youtube.com/shorts/4L0TwkZosPw?si=KBrv7_Q-Cl5LvZfy

Help hold the South Carolina Supreme Court, and in turn, all lower courts Accountable. Find the story summary and full story below.

On March 9, 2023, the South Carolina Supreme Court issued an Order restricting the use of electronic devices in certain courthouse areas. While the Order allows devices in common areas, it explicitly bans them at the clerk’s window—where transparency and accountability are most needed.

This vague Order raises questions about its true intent. Is it really about preventing disruptions, or is it an attempt to shield public officials from scrutiny? It’s telling that the Order doesn't outright prohibit recording at the clerk’s window, yet it’s used to penalize those who do. For example, I was jailed multiple times for simply recording my own interactions with a public servant—actions that should be protected under the First Amendment.

Recording public interactions is a vital tool for accountability. If there’s nothing to hide, why restrict it? The lack of clarity in this Order suggests an effort to circumvent constitutional rights without explicitly stating it, thereby creating a chilling effect on those seeking to document their dealings with public officials.

Moreover, the Order's enforcement is inconsistent and seemingly arbitrary. It doesn’t specify what qualifies as a violation, leaving room for bias and overreach. This lack of transparency and accountability is a direct threat to justice and freedom.

If the court’s intention is to restrict recording at the clerk’s window, it should do so openly and with clear, reasonable guidelines that respect constitutional rights. Anything less risks undermining public trust and eroding the very foundations of our legal system.

Full Story

On March 9, 2023, the Supreme Court of South Carolina issued an administrative Order restricting the use of electronic devices in certain areas of the courthouse. The full contents of the Order can be found here.

The Order states, “Persons may possess and use Electronic Devices in the common areas of the courthouse.” However, the Order goes on to clarify that the clerk’s window is not considered a common area, and the use of electronic devices is not permitted there. This raises the question: If someone needs to check the time while at the clerk’s window, are they required to use an analog device?

Further down in the Order, it prohibits audio and video calls “immediately outside courtrooms” to avoid disrupting proceedings. This part is reasonable, as it is within the court’s jurisdiction to prevent interruptions. However, the elephant in the room is that cell phones are electronic devices capable of audio and video recording. Notably, the Order does not specifically mention video or audio recording, even in the courtroom. In fact, according to this Order, if I were to invent a hand-crank video recorder, it would be allowed.

This Order indirectly restricts recording at the clerk’s window. There could be many reasons to restrict recording at this location, but none are provided in the Order. One possibility is the trend within the First Amendment community to film in public spaces as a check against government overreach. Some First Amendment rights advocates film in public to see if anyone will illegally stop them. The Order does not restrict videotaping in the entire lobby, only at the window.

It’s easy to imagine that many private conversations take place at this window. It also seems reasonable to assume that any citizen should be able to have a private conversation with a clerk of court if they so desire. If someone were filming at the window, additional measures would be necessary to ensure privacy. Nonetheless, precedent under the First Amendment clearly states that there is no expectation of privacy in public spaces. Public space is defined as being on government property and open to the public, meaning no restrictions to entry. For example, to enter a judge’s chambers, one would need permission. It has been upheld by the courts that recording in a judge’s chambers can be restricted without violating the First Amendment.

Courtrooms are open to the public, and there are additional restrictions because, during proceedings, the judge has jurisdiction to manage the courtroom. For example, distracting behavior is not permitted in the courtroom during proceedings. This Order seems to extend the judge’s authority to the area directly outside the courtroom door if someone is disturbing proceedings while on a phone call. Apparently, disturbing proceedings in the area immediately outside the courtroom is not an issue unless done over the phone. Recording in courtrooms has been a controversial topic because there’s no reason to believe that recording would disrupt proceedings, yet most states impose barriers to recording in courtrooms. Many claim this is a barrier to accountability and justice.

There are two arguments I have heard for restricting recording in courtrooms. One is that people deserve privacy. The problem with this logic is that trials and hearings are public, with some exceptions. These exceptions range from witness protection to protecting the child of abuse. It seems to me that if a case is to be on public record, anyone should be allowed to record it. The other argument against reporters recording in courtrooms is that a court reporter is already recording, so no one else needs to. Then the question becomes, how is two recordings worse than one?

In the modern world, there is no higher form of personal accountability than a recording. What a person says and how they say it are best documented on camera. I am glad that I recorded my interaction at the clerk’s window in the Oconee Probate Court, for if I had not, I would fear they might accuse me of ill action. When I recorded, I only documented my own interactions with the court clerk, so it cannot be said that I violated anyone’s privacy. I simply used an video recording to document my conversation with a public servant in a public place. According to the probate court, my violation was using my electronic device at the clerk’s window. For that, I was incarcerated for 10 days, then 30 days, and have 20 days pending on an appeal.

I would argue that if the court’s intention was to stop recording at the clerk’s window, they could have simply stated that. Why not write an Order that says no recording at the clerk’s window? It is clear that the court is not concerned about someone using their phone to check the time or send a text while waiting for their spouse. The rule is only enforced for recording. The Order does not explicitly state its intent, seemingly in an attempt to circumvent a direct contradiction with the First Amendment.

Like in the courtroom, if the goal is to restrict recording at the window, the court could implement court reporting at the window. If the clerks were also court reporters, recording all interactions, as was done for me after my first incarceration, there would still be some protection against false accusations and some semblance of accountability. This Order seems designed to eliminate all accountability from the court and protection against a tyrannical court.

After I was arrested and jailed, I had to return to the Oconee Probate Court several times. During these visits, I insisted that the clerk of court record our interactions since I was not allowed to. Despite some pushback, it was decided that my interactions with the court would be recorded by the clerk. This turned out to be useful, as at one point, Judge Singleton asked me if I was trying to intimidate the court. There’s a fine line between asking a question and making an accusation. I was glad he was recording at my insistence.

Recording public interactions with public servants is an essential part of accountability, justice, and freedom. I was recording to protect myself, and I should be encouraged to do so if there is nothing to hide. Why would any public servant be upset about me recording our conversation on public property unless they were doing something they don’t want the public to know about? It’s important to note that I was not held in contempt for what I said; I was held in contempt for recording it. If anything, if what I said was a crime, the court now has evidence of that crime. This is why the First Amendment is the first one. It is the most important and powerful tool we have to maintain justice and freedom.

This Order has an additional problem. It is a court administrative Order; it did not arise out of a case. Article III of the U.S. Constitution clearly gives the courts jurisdiction to interpret the law. This interpretation sets precedent for other judges and courts to follow. When the highest court of the land, the Supreme Court of South Carolina in this case, makes a ruling, lower courts then have to rule in the same way. This is how case law is made. Case law is not the same as legislative law.

Legislative law is enacted when elected officials propose and vote on a law. This Administrative Order restricting filming at the clerk’s window was enacted in the manner legislative law is created. The Supreme Court of South Carolina made an administrative Order that permits a citizen to be held in direct contempt of court sua sponte while on public property, not disrupting any court proceeding? (Sua sponte means that the judge is acting as the moving party; there was no citizen or officer complaint made.) How is this order not considered a law? It is the executive branch’s responsibility to enforce the law, but this is not law; it is a court Order that looks a lot like law. How can the Supreme Court violate Article I of the US Constitution by making legislative law, then have a lower court violate Article II by enforcing that law, and then act under Article III jurisdiction while holding a criminal trial in a probate court? It is not clear if the Supreme Court intended this order to operate in this fashion or if Judge Singleton of the Oconee County Probate Court exercised extreme judicial overreach.

Further down, the Order reads, “Notice of the contents of this Order shall be given to jurors and posted on the doors to the courthouse and to courtroom doors.” In legal parlance, “shall” is a mandatory directive, as in “Thou shall not kill.” This clearly mandates that every lower court in South Carolina must have the contents of this Order posted on the courthouse doors. When I recorded, I began my recording before I entered the courthouse. At the time of my recording, it was clear that nothing was posted on the door—not the Order nor notice of its contents.

My guess is that the reason the court required the Order to be posted on the door is due to relevant Supreme Court precedent. My understanding is that, if there are restrictions to space on public property, it can be permissible to restrict recording. But is restricting the use of an electronic device enough to declare a place restricted? Seems unlikely. Yet, it could be argued that a sign of notice could serve two purposes. One is that it restricts access. If access is restricted, then so are some rights, by U.S. Supreme Court precedent. It is agreed that we cannot walk into any room in a police department at any time recording. Yet, we can record in the lobby without permission anytime the lobby is unlocked. It seems to me the Order is overreaching here, but perhaps the argument can be made.

Insurmountable on its own is the fact that neither the Oconee Circuit Court nor the Oconee Probate Court had the Order, or the contents of the Order, properly posted on May 24th of 2024. Although I regularly visit the court lobbies, I was unaware of this Order. I assumed that because the lobby is public, on public property, and open to the public without restrictions, all of my First Amendment rights would be protected. The problem is that while ignorance of the law may not be an excuse, ignorance of a court order is. If we are to say this Order is valid, it could only be enforced if it can be proven that the violator was aware of the Order. I did notice that the Circuit court had posted the Order on its lobby entrance door on a visit on August 7, 2024. Presumably from my case. I passed by the Probate court door to see if they had followed suit to find they had not. On August 7, 2024, notice of the contents of this Order were not posted on the Oconee County Probate Court Door.

The Order goes on to say, “Violation of the terms of this Order may result in the confiscation of an Electronic Device.” There is no mention of obtaining a warrant, which is a clear violation of the 4th and 14th Amendments. The Order does state that a person can be held in contempt or face sanctions for violating the Order. However, it does not specify under which conditions the use of an electronic device warrants a warning or a financial penalty or, for that matter, direct criminal contempt. During my sentencing, Judge Singleton mentioned that he had the authority to sentence me to 6 months, as if he was being lenient.

Additionally, the Order does not provide a mechanism for documenting this violation in the court record. On top of that, it is difficult to understand how this doctrine is to be fairly enforced. The Order clearly states that electronic devices are not permitted at the clerk’s window, but it does not specify the type of electronic device or its use. Are lower courts expected to hold all violators accountable? Are there any sentencing guidelines for a first or second offense? Are there degrees of the crime, such that filming is considered worse than checking the time? Is bias, personal grudge and profiling allowed in enforcement? Are there any governmental checks and balances implemented? Are we to believe that the content of our speech can be curtailed simply because we demand accountability?

The lack of clarity and consistency in this Order raises serious concerns. It appears to be an overreach by the court, attempting to extend its authority beyond the courtroom into public spaces without clear justification. The First Amendment guarantees the right to free speech and expression, and recording public interactions with public servants should be protected under this right. The enforcement of this Order seems more about suppressing accountability than maintaining order in the courthouse.

If the SC Supreme Court’s intention is to restrict recording at the clerk’s window, it should do so explicitly and with clear guidelines to be weighed against constitutional rights. Furthermore, any restrictions imposed should be reasonable, narrowly tailored, and consistent with the principles of justice and freedom that our legal system is meant to uphold. Without these safeguards, the Order not only undermines public trust but also risks infringing on the very rights it is supposed to protect.