CHARLESTON, W.Va. – The American Civil Liberties Union of West Virginia (ACLU-WV) filed a pair of legal actions in state and federal courts today against the West Virginia Senate, the West Virginia Division of Protective Services (the Capitol Police) and four officials employed by the Senate and the Capitol Police for violating an individual’s legal rights to record government officials in public government proceedings.
Officials barred members of the public from recording debate on HB 302 and threatened ACLU-WV client Morgan Walton with arrest because she attempted to record the proceedings. In doing so, officials violated her First Amendment rights, as well as the West Virginia Open Governmental Proceedings Act, a “sunshine law” designed to ensure government transparency, ACLU-WV staff attorney Nick Ward said.
“The Constitution, court rulings and state law are all quite clear: members of the public have every right to record public officials during public proceedings,” Ward said.
“Sunshine laws lie at the very heart of our democracy,” he continued. “Without transparency, government cannot be held accountable by the people it serves. That’s why we’re also asking a court to remind politicians at the state Capitol of their responsibility to uphold and protect transparency laws.”
The federal court action, which names Senate President Craig Blair, Assistant Sergeant-At-Arms Grover Miller, West Virginia Protective Services Director Kevin Foreman, and Capitol Police Officer Van Armstrong as defendants in their official capacities, deals with the violation of Walton’s free speech rights as guaranteed under the federal Constitution. The Open Meetings Act violations are governed by state law and a separate action naming the West Virginia Senate and the West Virginia Division of Protective Services as defendants was filed in Kanawha Circuit Court.
The lawsuits were filed on behalf of Walton, who traveled to the state Capitol on July 29 to hear debate during the Legislature’s special session. Walton was permitted to film debate on the governor’s proposed tax bill, but authorities intervened almost immediately after she began peacefully filming debate on HB 302. Walton correctly insisted she was within her rights to record the debate in a non-disruptive manner. Armstrong laughed at her and threatened to arrest her if she did not leave the gallery.
A 2019 advisory opinion from the West Virginia Ethics Commission’s Committee on Open Governmental Meetings demonstrates that Walton’s right to film is protected under the statute, Ward said.
That committee, which is charged with providing interpretations of the Act, considered a proposed ordinance in 2019 from the city of Winfield that would have prohibited private citizens from filming public council meetings. The committee found the ordinance would violate state law, noting that “the use of recording equipment does not constitute undue interference under the Act simply because the public is operating it,” and that “the Act expressly precludes the City from claiming that the ordinary use of equipment to film a meeting constitutes undue interference.”
The lawsuits were filed separately Monday afternoon in Kanawha County Circuit Court and the United States District Court for the Southern District of West Virginia.