SAGINAW, MI -- An attorney has filed a motion asking a federal judge to reconsider his ruling that Saginaw County's ban against cellphones inside courtrooms is constitutional.

Hemlock attorney Philip Ellison on April 24 filed the motion in U.S. District Court in Bay City, where District Judge Thomas L. Ludington earlier this month denied a preliminary injunction on the ban that Ellison requested on behalf of his client, Tuscola County resident Robert McKay.

Ellison in January filed a lawsuit in U.S. District Court in Bay City, writing that the ban, which went into effect in mid-December, violates McKay's and all citizens' First, Fifth, and 14th Amendment rights.

Ellison also filed a motion for the preliminary injunction on the basis that "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."

Ludington denied with prejudice the motion regarding the inside of the courtrooms, shedding light on how he would decide future motions on the issue. He ruled citizens do not have a First Amendment right to record courtroom proceedings.

In his motion to reconsider, Ellison argues Ludington relied on rulings from when recording equipment was more obtrusive and destructive to the fair trial process.

"The pencil and pad of yesterday has been replaced by the iPhone and iPad of today," Ellison writes, adding later, "By the state court banning the modern tools of the First Amendment, this case would be similar to one where a state court bans all writing instruments. It would be unthinkable, yet here we are."

The ban went into effect Dec. 16, and, as it stands now, nobody without previous permission can take such a device onto the third or fourth floors of the governmental center -- where the district and circuit courts are housed, respectively -- or the probate court on the second floor, the Friend of the Court offices on the first floor, or the Juvenile/Family Court facility on Hospital Road in Saginaw Township.

The judges ordered the ban based on problems with people photographing witnesses, jurors conducting online research and ringtones disrupting proceedings.

Ellison filed the complaint against Saginaw County Sheriff William Federspiel and Lt. Randy Pfau, who are enforcing the ban through sheriff's deputies, instead of the county or its chief judges, who signed the order creating the ban.

'Protected activity'

Ellison wrote in the complaint that McKay and the press, which has exemptions to the ban, "are similarly situated as it applies to protections under the First Amendment."

In his ruling, Ludington relied on, among others, the concurring opinion from Estes v. Texas, a 1965 case. In his new motion, Ellison uses the lead opinion, writing that it "specifically noted that 'when the advances in (recording devices) permit reporting by printing press or by television without their present hazards to a fair trial, we will have another case.'"

"In 1965," Ellison writes, "the courts had no experience with individual recording with today's digital cameras, iPhones, and iPads, which are small, silent, and require no cords. Today, both technology and ubiquitous use of that technology has substantially changed to the point that a court observer can silently and non-intrusively make a recording of matters of public interest in the courtroom, and thus the case Estes foresaw is now here."

Ellison also cites three U.S. Court of Appeals cases that, he writes, "all hold that the right to record is an activity specifically protected by the First Amendment as an offshoot of the right to gather information about matters of public interest."

Ellison quotes one of those cases, Glik v. Cunniffe, a 2011 case from the U.S. Court of Appeals for the First Circuit, which does not have jurisdiction over Michigan cases. The case states that "the filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within long-held principles within the First Amendment," Ellison writes.

The U.S. Supreme Court "has recognized that a 'trial courtroom' is 'a public place,'" Ellison adds.

"Thus," Ellison writes, "it is incongruous that a place recognized by the Supreme Court as being a 'public place' with 'government officials engaged in their duties' could be deemed a First Amendment free-zone as to recording -- a type of protected activity."

When it comes to areas outside the courtroom, Ludington denied the preliminary injunction without prejudice. He wrote he wanted more facts about the governmental center, which also houses many executive-level offices.

"Simply stated," Ludington wrote, "there are too many unaddressed issues of law and fact for the court to grant McKay's motion for a preliminary injunction."

Ludington does not have to agree to hear Ellison's motion for reconsideration, which is reserved not for attorneys arguing the same issues already ruled upon but for them to raise a "defect" in the ruling that, if corrected, "will result in a different disposition of the case."

Court records do now show if Ludington has made such a decision yet.

-- Andy Hoag covers courts for MLive/The Saginaw News. Email him at ahoag@mlive.com or f

ollow him on Twitter @awhoag