WVBR partner Michael von Loewenfeldt recently published an article regarding review of trial court findings where no live testimony is received.
As Michael explains, in such contexts the traditional explanation for judicial deference (i.e. the reviewing court must still defer to a trial court’s credibility determinations because “the trier of fact is in a superior position to observe the demeanor of witnesses”) no longer applies. Thus, there appears to be a strong argument that a trial court’s factual findings on First Amendment issues should receive no deference unless they were based on the trial court’s own observation of witnesses.
The article is available here.