Cameras in the Courtroom, Part III: Louisiana Approach
III. Federal Courts articulate the Cons: Bases for opposition to cameras in the courtroom
Although state courts have generally indicated a progression favoring cameras in the courtroom, in contrast, the Federal Judiciary remains largely opposed to the practice and has exhibited markedly slower advancement in opening federal courtrooms to the media. Federal courts are essentially closed to cameras. In 1972, the Judicial Conference, which makes the rules for the federal judicial branch, banned photographs and television cameras from all federal courts. In the early 1990s, a three year pilot program was allowed, to experiment with electronic media in civil courtrooms in selected district and appellate courts. As a result, the Judicial Conference voted to permit each of the federal appellate circuits to “decide for itself whether to permit the taking of photographs and radio and television coverage of appellate arguments.” Most circuits declined; however, the Second and Ninth Circuits acted to allow such coverage. Although the United States Courts of Appeal retain the right to allow media presence at their discretion, the majority, including the Fifth Circuit, has opted not to implement televised broadcasting of any type. Perhaps the most stalwartly opposed institution to media attended courtroom proceedings, however, is the United States Supreme Court.
Lower federal courts’ staunch resistance is undoubtedly influenced by the Supreme Court’s position on the issue of cameras in the courtroom, on both personal and jurisprudential bases. The High Court rendered an undeniable preference for non-televised proceedings when it decided Estes v. Texas in 1965. In Estes, the defendant moved prior to trial to exclude photographic and broadcast coverage of the proceedings involving the financial fraud of several farmers. The trial judge ultimately permitted television coverage of the trial, restricting cameras to a constructed booth in the back of the courtroom. The defendant was found guilty of his charges and appealed his conviction, arguing that television coverage had denied him a fair trial. In its 5-4 decision in favor of the defendant/appellant, the Court held that television broadcasting coverage was distracting to jurors, judges and defendants and in particular, was likely to alter witness testimony. In such a situation, the court ruled that the rights of criminal defendants outweigh the interests of broadcasters to televise trials.
The High Court’s language in Estes could arguably be construed to rest the burden of opening the courtroom on the media’s ability to maintain a non-distracting posture during court proceedings. Although the Court’s ruling specifically contemplated the interruptive nature of technologically dated cameras at that time would not always be so, it held that “Our judgment cannot be rested on the hypothesis of tomorrow but must take the facts as they are presented today.” In today’s climate, where technological advances have surpassed all expectation, it is reasonable to question if the rationale in Estes would have held true if decided today.
The Supreme Court further shed light on the issue in its 1981 ruling of Chandler v. Florida. In Chandler, the Court held 8-0 that consistent with constitutional guarantees, a state could allow radio, television and still photographic coverage of a criminal trial for public broadcast, regardless of objection by Defendant. In so holding, the Court clarified that Estes “did not announce a constitutional rule that all photographic, radio and television coverage of criminal trials is inherently a denial of due process.” Further, the Court ruled that a showing of prejudice of constitutional dimensions was absent, and accordingly:
An absolute constitutional ban on broadcast coverage of trials cannot be justified simply because there is a danger that, in some cases, conduct of the broadcasting process or prejudicial broadcast accounts of pretrial and trial events may impair the ability of jurors to decide the issue of guilt or innocence uninfluenced by extraneous matter. The risk of juror prejudice in some cases does not justify an absolute ban on news coverage of trials by the printed media; so also the risk of such prejudice does not warrant an absolute constitutional ban on all broadcast coverage. A case attracts a high level of public attention because of its intrinsic interest to the public and the manner of reporting the event. The risk of juror prejudice is present in any publication of a trial, but the appropriate safeguard against juror prejudice is the defendant’s right to demonstrate that the media’s coverage of his case-be it printed or broadcast- compromised the ability of the particular jury that heard the case to adjudicate fairly.
Despite the ruling in Chandler, federal courts’ position on allowing cameras in the courtroom has remained largely unchanged. Although broadcasters have repeatedly requested and lobbied for access, the Judicial Conference of the United States–which establishes policy for the federal courts–has consistently refused to reconsider its rules prohibiting television and radio broadcasting from federal trials. In 1996, the Judicial Conference allowed experimentation with cameras in federal courtrooms, but subsequently decided not to renew that experiment.
The Supreme Court, in particular, has inexorably refused to allow cameras into the court, even notably denying the requests of broadcasters to televise the historic argument in Bush v. Gore. Despite the Court’s official stance, however, the Justices appear to be potentially conflicted on the issue:
“The day you see a camera come into our courtroom it’s going to roll over my dead body.” –Justice David Souter, Congressional Testimony, 1996.
“It runs the risk of undermining the manner in which we consider the cases. Certainly it will change our proceedings. And I don’t think for the better.” - Justice Clarence Thomas, Testimony before a House Appropriations subcommittee, April 4, 2006.
“Not a chance, because we don’t want to become entertainment. I think there’s something sick about making entertainment out of other people’s legal problems. I don’t like it in the lower courts, and I don’t particularly like it in the Supreme Court.” –Justice Antonin Scalia, CNBC Interview, October 10, 2005.
“If it were in the Supreme Court, I think it would become a symbol for every court, and therefore it would be in every criminal trial in the country. And when I start thinking about witnesses, I don’t want them thinking how they look to their neighbors...And I do think about the O.J. Simpson case.” –Justice Stephen Breyer, American Bar Association Rule of Law Symposium Panel on the Role of the Judiciary, November 10, 2005.
“I would not object, just for myself, to having proceedings televised, provided the control remain in the hands of the Court and that the coverage was gavel-to-gavel but I do not think a decision like that should ever be forced on judges who take a different view. Right now, the view is that our proceedings should not be televised. That may change based on the experience of state supreme courts. Several of our states are experimenting with televised trials. Televised appeals. And if it works, in time it will spread, and if it doesn’t, then it won’t...Our courtroom is generally packed, sometimes there are long lines to get in...and this would be another way of opening the court further.” - Justice Ruth Bader Ginsberg, Interview with Canadian Lawyers Weekly, October 2000.
“Sometimes if the system is flawed, the people ought to know it. And if television shows a flawed system, then let them see it...But television can be a teacher. And if we were going to have a debate on television in the courtroom, and you drew the affirmative side of the debate, you could make probably more positive points. And we sometimes wish lawyers were better prepared, but they haven’t seen us at work. If they had a videotape or DVD, then they could see it. So you can make a lot of arguments for it.” –Justice Anthony Kennedy, American Bar Association Rule of Law Symposium Panel on the Role of the Judiciary, November 10, 2005.
“I had the opportunity to deal with this issue actually in relation to my own court a number of years ago. All the courts of appeals were given the authority to allow their oral arguments to be televised if it wanted. We had a debate within our court about whether we would or should allow television cameras in our courtroom. I argued that we should do it...The issue is a little different in the Supreme Court. It would be presumptuous for me to talk about it right now, particularly since at least one of the justices have said that a television camera would make its way into the Supreme Court over his dead body. I will keep an open mind despite the decision I took in the third circuit.” –Justice Samuel Alito, Confirmation Hearing, January 11, 2006.
“There’s a concern (among justices) about the impact of television on the functioning of the institution. We’re going to be very careful before we do anything that might have an adverse impact.” - Chief Justice John Roberts, Remarks at the Ninth U.S. Circuit Court of Appeals’ annual conference, July 13, 2006.
“Well, my new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of. But I don’t have a view on that. I do think it’s something that I would want to listen to the views of - if I were confirmed - to my colleagues.” -Chief Justice John Roberts, Confirmation Hearing, September 14, 2005.
So why does televised coverage find such sparse support within the Federal Judiciary? As articulated above, the bases for denying cameras access to courtrooms, though not explicitly articulated in the Bill of Rights, often find their roots in constitutional law. The Sixth Amendment of the Constitution provides the right to a speedy and public trial with an impartial jury, Fourteenth Amendment provides Equal Protection and Due Process under the law. The Judicial Conference and the federal courts still maintain the position that live television coverage distracts trial participants, unfairly affects the outcomes of trials and diminishes the dignity of the courts, and thus, these constitutional guarantees are violated.
Opponents argue that televised coverage undermines a party’s fair trial rights both in court and out of court. Cameras displaying live proceedings are purported to negatively affect the tendency of witnesses to articulate completely and specifically, and jurors are supposedly distracted by the activity of the media, thus possibly failing to absorb significant testimony. Additionally, as many media outlets will only broadcast a short sound byte of the courtroom proceedings, some offer that public opinion will be shaped largely by the portions chosen to be broadcast. Because jurors, even if sequestered, will likely be affected by public opinion, they are indirectly impacted by which snippets of the testimony will be seen on TV.
In addition to constitutionally contemplated opposition, some opponents offer logistic difficulties for disallowing cameras in the courtroom. In permitting broadcasting, decisions must be made as to how many personnel will be allowed in a limited amount of space, as well as the manner of handling sensitive issues, such as minor children. The potential expenses of transmission, although usually borne by broadcasting companies, concerns protectors of a modest judicial budget. Morever, in a time where crowded dockets are the rule rather than the exception, some detractors offer that including media will inevitably lead to scheduling conflicts and technical difficulties, therefore resulting in longer trials and other proceedings.
Despite the arguments against, however, the pressure seems to be mounting to allow increased sunshine in all courtrooms. In the day of “reality tv”, the public is becoming accustomed to observing/critiquing formerly private situations. Additionally, countless political campaigns are centered around increased discussion and reform of government ethics. This “trend of openness” is sought by many to be extended to courtrooms, a crusade which appears to have reached America’s legislative branch.
______________________
