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August 29, 1990


The opinion of the court was delivered by: HIGGINS


 Now before the Court are identical motions by three television stations in Nashville, Channels Two, Four and Five, as well as Don Aaron of Channel Four, to copy a videotape made by the United States, pursuant to a search warrant, of the defendant LaFayette "Fate" Thomas' residence (filed July 19, 24 and 25, 1990; Docket Entry Nos. 599, 609 and 612). Defendant Thomas filed responses on July 27 and August 7, 1990 (Docket Entry Nos. 614 and 619). Defendant Thomas' wife, Marlies, requested to intervene in opposition to the motions on August 1, 1990 (Docket Entry No. 617), and Channel Four responded to Mr. and Mrs. Thomas' opposition to its motion on August 14, 1990 (Docket Entry No. 624). The government has not filed a response and therefore, apparently takes no position on the motions.

 The videotape in question was shown in the courtroom during a June 6, 1990, hearing on the defendant's motion to suppress. At least one news reporter was present in the courtroom, but the television monitor was turned toward the bench, obstructing the audience's view of the videotape. The Court denied the motion to suppress the videotape, which was made during a valid search of defendant Thomas' residence. The Court found, inter alia, that the videotape was a form of taking notes and recording mental images through photography. The Court further found that the items in the videotape were in plain view of the executing agents and, therefore, concluded that the videotape was a lawful seizure of the agents' mental images (memorandum and order entered June 18, 1990; Docket Entry Nos. 523 and 524).

 For the reasons stated below, the Court denies the motions to copy the videotape.

 The television stations assert that the qualified right of access is derived from both the First Amendment and common law. Further, they assert that this common-law right to inspect and copy judicial records unquestionably applies to tape recordings. United States v. Beckham, 789 F.2d 401, 414 (6th Cir. 1086). They argue that the interests articulated by Mr. and Mrs. Thomas against copying the videotape do not overcome the strong common-law presumption of access. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). Therefore, they insist that the balance weighs heavily in favor of the right to inspect and copy.

 Defendant Thomas maintains that the stations' request exceeds the constitutional requirements of public access to the courts and would violate the defendant's constitutional rights to a fair trial and to privacy by the appropriation and exploitation of the private images of his home. He argues that the public's right of access to the hearing and to the relevant subjects of the videotape has not been limited in any way and that the First Amendment does not require granting this request. He bases this statement on the fact that the search warrant and its related documents were unsealed and available to the public and the press since February and that the search itself was reported by the press when it occurred in 1989. Further, the common-law right to inspect judicial records is within the sound discretion of the trial court, and the defendant contends that the interests of Mr. and Mrs. Thomas outweigh the interests of the media to copy the videotape.

 Mrs. Thomas states that copying the videotape would be an intrusion upon her right of privacy since the most intimate and personal details of her home are shown in the videotape. She argues that the media has no right to information superior to that of the general public and her home is not open to the general public. Thus, the media has no right to broadcast the interior of her home. Further, Mrs. Thomas is not a party to this action and, hence, her privacy rights are not limited by any other interests.

 In United States v. Beckham, cited supra, the Sixth Circuit affirmed the district court's denial of a request by the news media for copies of video and audio tapes submitted as evidence in that action. However, it did grant permission to copy the documentary exhibits. As in Nixon, cited supra, the court found no constitutional right to copy the tapes. The court stated that the common-law right to inspect and copy judicial records and documents is not absolute and "the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case." Id. 789 F.2d at 409 (quoting Nixon, 435 U.S. at 599, 98 S. Ct. at 1312, 55 L. Ed. 2d at 580). The Court must weigh the interests of the parties against the public interest and the duty of the Court. The Beckham court stated several other factors to be weighed: (1) the court's supervisory powers, (2) the benefit to the public from the incremental gain in knowledge that would result from seeing the tape, (3) the degree of danger to the defendants or persons on the tapes, (4) the possibility of improper motives on the part of the media, such as promoting public scandal or gratifying private spite, and (5) any special circumstances in the particular case. Id. (citation omitted).

 The Beckham court noted that the public and the media have a constitutional right to attend criminal trials and to report what they have observed. Id. (citation omitted). The court held that "there were no restrictions on media access to the trial or on the publication of information in the public domain." Id.

 In Nixon v. Warner Communications, Inc, cited supra, the Supreme Court upheld the district court's denial of the media's request to obtain copies of tape recordings of oval office conversations submitted in evidence at the criminal trial of President Richard Nixon's former advisers. The Court held that the First Amendment did not require the media to be given greater access to information about a trial than that available to the public generally and that the Sixth Amendment right to a public trial did not require a trial to be broadcast or taped for the public. 435 U.S. at 609, 98 S. Ct. at 1318, 55 L. Ed. 2d at 587. Further, the Court held that the First and Sixth Amendments do not require copying videotaped evidence, and that the common-law right of access to judicial records does not require "copying on demand." 435 U.S. at 603, 609, 98 S. Ct. at 1315, 55 L. Ed. 2d at 583.

 In the present action, there was no deprivation of access to the suppression hearing or any of the documents filed relating to the case as a whole or to the suppression hearing specifically. Given the full access to information and the full freedom to publish, there was no fundamental right implicated and the First Amendment argument fails.

 In determining whether the common-law right applies in this particular case, the Court begins with a presumption of access and then weighs the factors set out in Beckham.

 First, the Court's supervisory powers include controlling the threat of publicity that may result from the dissemination of the videotape which could possibly deprive the remaining defendant, Jerry Williams, his right to a fair trial. The subject of the videotape is the interior of defendant Thomas' condominium, which is also related to the extortion charge against defendant Williams. The government is not scheduled to try defendant Williams until September. This concern ...

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