On March 7, 2007, the Supreme Court decided Tarus v. Borough of Pine Hill, 189 N.J. 497 (2007). In a unanimous opinion by Justice Zazzali, the Court issued a ringing pronouncement that citizens have a common law right, subject to reasonable restrictions, to videotape public proceedings of municipal bodies. Plaintiff had attempted to record two meetings of the Pine Hill Borough Council with a video camera that he set up in the back of the meeting room. The mayor ordered plaintiff to stop taping. When plaintiff would not comply, the police chief arrested plaintiff for disorderly conduct. In subsequent municipal court proceedings, plaintiff was found not guilty. Plaintiff then filed a federal Civil Rights Act lawsuit.
Justice Zazzali began his opinion by quoting Patrick Henry, who stated that “the liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.” He then traced the history of principles of open government from as far back as James Madison and Jeremy Bentham in the early nineteenth century. The recognition of a “strong public policy favoring open government” only became more firmly entrenched as “over time, quill and parchment gave way to pen and pad; [and] audio recording devices supplanted stenography.”
Indeed, as far back as 1982, the Chancery and Appellate Divisions had recognized a rght to videotape a public meeting of a municipal board of education. Maurice River Tp. Bd. of Educ. v. Maurice River Tp. Teachers Ass’n, 187 N.J. Super. 566 (Ch. Div. 1982), aff’d, 193 N.J. Super. 488 (App. Div. 1984). Justice Zazzali recognized that Maurice River had relied not only on the common law, but on constitutional free speech principles and the general spirit of the Open Public Meetings Act, N.J.S.A. 10:4–6 to -21. Following the familiar principle that courts will avoid deciding constitutional issues when it is not necessary to reach those issues, Justice Zazzali held only that there is a common law right to videotape public meetings. Municipalities may adopt reasonable regulations regarding such taping, but Pine Hill had not adopted any such rules as of the date that plaintiff sought to videotape Borough Council meetings. The Borough therefore violated plaintiff’s common law rights.
Justice Zazzali’s opening invocation of Patrick Henry, and his references to Madison and Bentham midway through his opinion, called for a boffo finish as well. Justice Zazzali did not disappoint. “Openness is a hallmark of democracy– a sacred maxim of our government– and video is but a modern instrument in that evolving pursuit. The Mayor and Borough ran afoul of that principle and violated the common law right to videotape by imposing unreasonble ad hoc restrictions. Arbitrary rules that curb the openness of a public meeting are barricades against effective democracy. The use of modern technology to record and review the activities of public bodies should marshal pride in our open system of government, not muster suspicion against citizens who conduct the recording.”
Today, citizens can and do record just about anything on video with their cellphones. Justice Zazzali’s emphatic endorsement of open government allows that to happen in public meeting fora as well.