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A judge’s order curbs right of press and public to record county commission meetings

In Richmond County, where government has a history of constitutional issues, a judge jailed a reporter in 2021. The repercussions are still playing out today.

Wake County Courthouse  North Carolina Judicial Branch
Wake County Courthouse North Carolina Judicial Branch

Willam Toler, managing editor of The Richmond Observer, craned his arm to stretch his phone’s vantage point, framing up a picture of a woman describing her concerns about animal ordinances to the Richmond County Board of Commissioners. After he took the photo, Toler returned his phone to the ledge beside the lectern, recording the rest of the night’s public comments.

Meanwhile, Matthew Sasser, the editor of the Richmond County Daily Journal, sat on the other side of the room, hunched over a spiral-bound notepad, scribbling furiously. Unlike Toler, Sasser did not use his phone. He didn’t even bring it inside the building in the early evening of Oct. 3.

Calendar-SuperiorCourt  Appalachian Courts
Calendar-SuperiorCourt Appalachian Courts

That’s because Sasser isn’t allowed to bring a phone into the courthouse to cover Board of Commissioners’ meetings, which are open to the public. Technically, no one is. A 2019 administrative order signed by Superior Court Judge Stephan Futrell and Chief District Court Judge Amanda Wilson, bars cell phones, cameras and recording devices from the Richmond County Judicial Center, where the commissioners’ meetings are held.

“I feel that if I was just recording a county commissioner meeting, that would be a violation of this administrative order, and subject to penalty or jail time,” Sasser said. “That’s a legitimate fear of mine, and I feel like that’s grounded in reality, and in the prior legal history that has already happened.”

Nc District And Superior Court Calendars  Calendar, Calendar
Nc District And Superior Court Calendars Calendar, Calendar

A broad ban on recording in courtrooms extends to commission meetings

What happened in June 2021 raises First Amendment questions about the rights not only of the media, but also the general public to record what occurs in the Richmond County Judicial Center.

Court Calendar Dept
Court Calendar Dept

Sasser had been covering a murder trial in Superior Court Judge Futrell’s courtroom at the Richmond County courthouse. In his mid 20s, Sasser had been on the Daily Journal’s staff for only about six months and was unaware of the administrative order. On the pew beside him was his audio recorder, to ensure the quotes he reported and the facts he recounted would be accurate when he put them in the paper later.

During a recess, Sasser approached a defense attorney, recorder in hand, and asked for a comment.

When a bailiff saw Sasser had an audio recorder in the courtroom, he told Sasser to get rid of it. Sasser returned to the newsroom, where he got a call from the bailiff that he needed to come back to court.

Sasser arrived at the courthouse with his editor, Gavin Stone. Stone had experience with upsetting judges. A year earlier, Chief District Court Judge Wilson wrote Stone a letter telling him he’d violated an administrative order by taking a picture during courtroom proceedings.

“Was there anything in that letter that was unclear to you?” Futrell asked Stone, according to court documents.

“I believe the issue at the time” — 2020 — “was photographs. And we’ve followed that rule, I believe,” Stone replied. “I wasn’t aware that it was addressing recordings.”

Futrell pointed out that the letter also states he cannot use “any other recording device.”

Futrell mulled aloud whether to hold the journalists in contempt of court for violating the order, documents show. The penalty would carry a maximum $500 fine, censure and up to 30 days in the county jail.

Ultimately, Futrell let Sasser leave and fined him $500. But Futrell held Stone, who wasn’t even present in the courtroom when the recording occurred, on charges of criminal contempt and sentenced him to five days in jail . (He got out the next day, and later did 20 hours of community service as part of his sentence.)

Before Gov. Roy Cooper appointed him to be a Superior Court judge in 2018, Futrell was the Richmond County Attorney. He advised the county commissioners on legal matters, including their public comment policy, which constitutional scholars said violated the First Amendment, Newsline reported at the time. (Sasser said that the commissioners have since revised that policy, and at a recent meeting Newsline attended members of the public were given opportunities to comment and offer their thoughts on issues facing the county.)

Futrell was already on the bench when Stone and other staffers at the Daily Journal wrote a series of articles in 2020 and 2021 about the Richmond County government’s decision to change how it distributed sales tax revenues to its municipalities — and how the county undersold how much that change could harm its cities.

But Stone said in a recent interview that those stories could have irked Futrell and influenced his reaction to Sasser having the recorder in his courtroom.

“Him being a county guy, there was a suspicion in my mind that he was mad about that, or saw us as having too much authority,” Stone told NC Newsline. “I think he saw it as an opportunity to spank us.”

Sasser was back in court on June 23, 2021. This time, he brought a lawyer: Scott Brewer, who incidentally had written an identical order when he was a district court judge in Richmond County.

“You’ve got a 23-year-old young man that is scared to death of being here,” Brewer told Futrell, “to do his duty to cover court, to do his job.”

Futrell replied that “at least one of these individuals” has “a history of disrupting court proceedings,” court documents show, then accused Stone of sending Sasser “over here to do his bidding by using a recording device.”

Brewer told the judge that Stone had sent an email to the court before the trial, an attempt to get clarity on the rules about what electronic devices were off-limits in the courthouse. Brewer said their interest in bringing those devices to aid in their reporting was an effort to make sure the paper got its facts straight.

“Well, they say that. They still don’t get it accurate when they do,” Futrell said.

“I’ve talked with the publisher,” Brewer said. “This is not something that is ever going to be repeated. “I believe you have fully and completely gotten their attention, Your Honor.”

A chilling effect on informing the public

Two years later, Sasser is now the editor of the Daily Journal. Stone left the paper in 2022 for a job with the Virginian-Pilot.

Sasser said he doesn’t want to relitigate what happened in Futrell’s courtroom, but it is integral to why he feels he and his reporters can’t adequately cover county commissioner meetings: because those meetings take place at the Judicial Center.

It’s common for recording devices to be prohibited in courtrooms across North Carolina, said Brooks Fuller, director of the North Carolina Open Government Coalition and an assistant professor of journalism at Elon University. Judges are allowed to regulate decorum in their courtrooms, and that means they can limit the use of photography and recorders.

It’s not even unheard of for cell phones to be banned in entire courthouses, Fuller said, or to only offer designated spaces for cell phone use, sort of like a smoking section for your phone.

“You kind of get a mixed bag across the board,” Fuller said. “But generally speaking, the prohibition is fairly broad, but not necessarily as severe as what’s happening in Richmond.”

What makes the Richmond County administrative order overly broad is that it also applies to the county commissioners’ meetings. “That’s incredibly unusual because the way the law enshrines this right of access for the media to televise county commission meetings, and for the public to record them,” Fuller said. “Judges don’t typically write orders that cover those types of meetings or contexts.”

The administrative order also contradicts the state’s Open Meetings Law, Fuller said.

But there’s a simple fix: The county commissioners could simply meet somewhere else, so the administrative order doesn’t apply. Jeff Smart, the chairman of the Richmond County Board of Commissioners, told Newsline the board hasn’t considered meeting elsewhere, but he thinks journalists should be allowed to use their recording devices at the meetings.

Another option: Futrell could issue a superseding administrative order that allows electronic devices into the courthouse when attending a county commissioners’ meetings. “They can set up procedures to make sure that people are using their cell phones where they’re allowed to and not using them where they’re not allowed to,” Fuller said.

Fuller said it’s unlikely the administrative order would survive legal scrutiny. “I think that if this were challenged, an appellate court would very likely issue an order that supersedes a Superior Court judge’s order about recording open public meetings,” Fuller said. “I can’t see an appellate court allowing this to stand.”

A lawsuit, though, requires time, money and resources, and, Fuller said, “it shouldn’t have to come to that.”

Confusion over the courthouse rule

When Sasser or his staff writer, Matt Lamb, want to record county commissioners’ meetings, they fill out an “application for a one-time electronic device permit,” paperwork Sasser said didn’t exist before Stone went to jail in 2021.

It’s not an especially onerous process, but Lamb said there is often confusion over who is supposed to sign it.

“Invariably you get bounced from office to office in the Judicial Center,” he said. “No one has any idea what the administrative order is, nor do they know what the ‘exception to’ policy is. So you get sent from bailiffs to courtroom, from courtroom to office, from office to office.”

It’s not even entirely clear whether it’s necessary. Toler, from the Richmond Observer, said he isn’t allowed to bring his phone in during regular court hours. But he said that at the county commissioners’ meetings, since they take place in the early evening, he just brings his phone in and records and takes pictures, and no one has ever faulted him for it – or required him to fill out an application.

“Apparently it [the administrative order] is only when court is in session,” Toler said. “That’s my understanding of it.”

Lamb followed the administrative order and filed an application to bring his cell phone into the Oct. 3 meeting of the county commissioners. Wilson, the district court judge, granted Lamb’s petition on Sept. 29, but wrote in the margins that it was “for above meeting date/time only.”

But Sasser said that when he asked for permission to use his phone to cover a Richmond County Board of Commissioners’ meeting in February — and to bring a phone to court to help him cover a hearing for two people accused of murder — Judge Futrell said ‘no’ and returned the forms to him unsigned.

“We fully understand that when it comes to a murder trial or something like that, we need the proper documentation to record that, and we need the judge’s approval. We fully understand that, and we will abide by those guidelines as set by a judge at any time,” Sasser said. “But when it comes to them overstepping their jurisdiction and limiting journalists from attending a County County Commissioner meeting, that’s absurd.”

The administrative order is posted in a window in the entrance of the Richmond County Judicial Center. There are signs throughout the building that say cell phones aren’t allowed. NC Newsline asked the bailiff about bringing a cell phone through the metal detector. He said to leave it in the car. If someone wants to bring their phone upstairs, the bailiff said, “you’re supposed to get permission before you come.”

Smart, the board of commissioners chairman, told Newsline he doesn’t know whether the administrative order applies to commissioners’ meetings. The meetings are recorded and broadcast on television later and uploaded online, but Sasser said there is often a delay in uploading them to the internet. “We can’t be reporting on a three-month delay and relying on that for our news,” Sasser said.

Smart said he understands Richmond County residents rely on newspaper coverage if they can’t watch the meetings themselves. “Not everybody can make our meetings, or not everybody can watch it on TV. So, if the media needs their devices for reporting accuracy of our meetings so they can play it back to themselves later on, I think they should be allowed to,” Smart said. “We’re not conducting court. It’s after hours, and I just think that if the media needs that, then that it should be allowed.”

Lamb said county officials, including several of the commissioners, told him it was okay to record the meetings. But Sasser is unwavering: As far as he’s concerned, the paper should follow the rule. “I’m not going to put ourselves in jeopardy by just going off the words of the commissioners saying that,” Sasser said. After all, the bailiffs in 2021 allowed him to bring his recorder into the courtroom.

“We’re not trusting what people are saying,” Sasser said. “We are trusting what the administrative order clearly states.”

Sasser doesn’t want his staff to go through what he did. He’s also worried he could still go to jail if he violates the order. He said his contempt charge was never resolved, so it’s “been hanging over me now for two years.”

Lamb obeyed the restriction until he left the paper this month. He’d take 15 pages of notes on his legal pad, getting the overall gist of the meetings but finding it difficult to get direct quotes. “You can only write so fast,” he said.

Those frustrations were manageable, Lamb said, but what’s particularly exasperating is how the restriction affects Richmond County residents because it limits their access to information. The community has an interest in knowing what its local leaders are doing with their tax dollars, Lamb said, and local decisions can affect small, rural communities, like those in Richmond County, more than state or federal policies.

Lamb said the people of Richmond County deserve to know “this is a judicial overreach that affects the people of the county.”

With Lamb having left the paper, Sasser attended the county commissioners’ October meeting. Coincidentally, the Board of Commissioners meet in the same courtroom where Sasser got in trouble two years ago. He still gets nervous going there.

Sasser said that when he’s in that room, his legs shake. “I get a little knot in my stomach,” he said. “My parents are both law enforcement. I’ve never gotten in trouble in my life.”

He dutifully left his cell phone in his car that October evening, going without it for the hour-long meeting even as others in attendance scrolled social media, a few feet from the bailiff’s watchful eye. Toler took pictures and recorded as the bailiff stood at the courtroom’s door, arms crossed. At one point a cell phone vibrated on one of the pews. The bailiff looked on, unmoved.