Now, we've all pretty much resigned ourselves to the notion that you can't take photos or video in the courtroom unless the local judges in general and the specific judges in that courtroom in particular decide to let you. But now it turns out some judges also don't think you should be able to draw pictures of them in the courtroom.
A panel of the D.C. Circuit was hearing an important oral argument regarding the detention of Uighurs. A sketch artist wanted to capture it. Run along, scribbler!
Longtime courtroom sketch artist Bill Hennessy Jr. brought his 20"x26" portfolio and his tackle box of pastels, charcoal, colored pencils, and water color markers, to the line at Courtroom No. 5 at the U.S. Court of Appeals for the D.C. Circuit last week. The court’s chief deputy clerk, Marilyn Sargent, confronted Hennessy. No sketching allowed today, Hennessy recalled Sargent say.
Possibly the judges find pastels unmanly, I don't know. Anyway, Hennessy came back in to take notes and then sketched from memory later:
He put his gear in a press room and returned to court with a college-ruled 8"x10" pad and black pen. A dozen reporters took up two rows in court. Other observers stood against the side and back walls of the room.
During argument in Kiyemba v. Bush—Judges A. Raymond Randolph, Karen LeCraft Henderson, and Judith Rogers made up the panel—Hennessy jotted down suit and tie color and made note of gestures. Back in the office, Hennessy (pictured on the right) sketched from memory and his notes, a task he says is far more difficult than sketching live in court.
Surely the court can't object to someone sketching its proceedings from memory, right?
A Hennessy sketch from oral argument aired on Fox news.
The panel judges—or at least one member—apparently were not pleased after seeing Hennessy’s sketch. Sargent called Hennessy the next day to express the dismay of the panel.
"Dude, you totally made me look bald! I'm not bald!"
Chief Judge David Sentelle explained to The BLT that there is no policy on sketch artists. Panel judges call the shots. Sentelle says he was not made aware of the Hennessy issue until after it happened. “I cannot say whether it was unanimous or what it was,” Sentelle says. “The judges who presided make the decision.”
Now, judges have broad discretion to control their courtrooms. But judicial discretion cannot be exercised arbitrarily or capriciously. Just what, exactly, is the principled rationale for blocking sketch artists from the courtroom in a public proceeding? Are they afraid that sketches will steal their souls?
Now, the judges have as much right as anyone to whine about being sketched after the fact, so long as they do not act on their petulance in a way that violates constitutional rights. Though getting a complaint call from a clerk on behalf of judges is extraordinarily chilling, it probably does not ripen into a First Amendment violation until judges do something about it. But precisely because judges have so much discretion over the courtroom, you can see why the artist might be concerned he will have problems if he tries to watch public proceedings in the future. The judges on the panel, clerk Sargent, and Chief Judge Sentelle ought to be ridiculed, and ought to be embarrassed.
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