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Cameras in Court

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Cameras and courtrooms have long had an uneasy relationship. Blaming cameras for disrupting trials, the American Bar Association (ABA) led the drive for their removal in the mid-1930s. The effort succeeded: all but two state courts banned them, and Congress prohibited them from all federal trials. But the television era ushered in new problems, and courts eventually were forced to grapple with the constitutional question of whether TV cameras are injurious to a defendant's right to a fair trial. In 1965, the U.S. Supreme Court appeared to say they are, in Estes v. Texas, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543, overturning a conviction because cameras had denied a defendant his due process rights. But the Court changed its mind in the 1981 case of Chandler v. Florida, 449 U.S. 560, 101 S. Ct. 802, 66 L. Ed. 2d 740. Reacting to the permissiveness of Chandler, many states passed legislation allowing televised trials. And from 1991 to 1994 some federal courts conducted an experiment with cameras.

Photographers lost their place in court in the early 1930s thanks to a highly sensational trial, and it would take four decades for them to regain it. In 1934, nearly 700 reporters and photographers descended on the New Jersey town where Bruno Hauptmann was on trial for kidnapping and murdering the baby of famous aviator Charles A. Lindbergh and author Anne Morrow Lindbergh. The trial judge allowed still photography, but was unprepared for the barrage of flashbulbs and the presence of a newsreel camera that was smuggled inside the court. Decrying the media circus that resulted, the ABA in 1937 called for prohibiting photography in its Canons of Professional and Judicial Ethics. At the same time the U.S. Congress amended the Federal Rules of Criminal Procedure to ban cameras and any form of broadcasting from federal courts. All but two states—Texas and Colorado—gradually adopted the ABA ban. Later, Texas permitted television cameras and it was a Texas criminal case that led to the next stage of development in this area of U.S. law.

In 1965, the U.S. Supreme Court took up the constitutional issue in Estes. This case involved a claim by a convicted swindler that the televising of his heavily publicized trial had deprived him of his right to due process under the Fourteenth Amendment. The counterargument advanced by the state of Texas is still the one most pro-camera supporters continued to make into the early 2000s: cameras neither caused distractions nor prejudiced the trial and in fact served the public's right to know in a manner both educational and likely to promote respect for the courts. The Supreme Court sided with the defendant. Emphasizing the obtrusive technology used in the courtroom, from fat cables to the red light on cameras, the Court decided that the trial had not been fair and overturned the conviction. Yet, to many observers, Estes appeared to stop short of announcing that all photographic or broadcast coverage of criminal trials is inherently a denial of due process; it focused narrowly on the particulars in Billie Sol Estes's case. More important, observers noted, the decision looked to the future. "When the advances in these arts permit reporting by … television without their present hazards to a fair trial," Justice Tom C. Clark wrote for the majority in Estes, "we will have another case."

Developments in the 1970s changed the picture. Technology had improved, making TV cameras far less disruptive, and the electronic media was demanding the same access to trials enjoyed by the print media. The ABA became much more tentative about its hard-line position. Its Committee on Fair Trial-Free Press recommended that the ABA revise its standards. Encouraged to experiment, a number of states tried short-term pilot programs as a first step toward changing their laws. Then, in 1978, the Conference of State Chief Justices voted 44–1 to approve a resolution allowing the highest court of each state to set its own guidelines for radio, TV, and other photographic coverage. By 1980, 19 states permitted coverage of trial and appellate courts, three permitted coverage of trial courts only, six permitted coverage of appellate courts only, and 12 others were considering the issue.

The U.S. Supreme Court provided the decisive push with its ruling in Chandler in 1981. Chandler revisited the Estes decision of 16 years earlier and on quite similar terms: in Florida, two men convicted of burglary claimed that televising their trial over their objections was a denial of due process. At the time Florida was following a pilot program for televising and permitting

still photography at state trials under canon 3A(7) of the Florida code of judicial conduct. The parties in Chandler read Estes differently: the appellants argued that Estes meant that the televising of criminal trials is inherently a denial of due process, whereas the state claimed that Estes did not establish any such constitutional rule. Seeking to clarify the earlier ruling, which had comprised no less than six opinions, the Supreme Court agreed with Florida. It held that states could provide access to the electronic media regardless of whether defendants wanted it. Moreover, the burden of showing how cameras have a prejudicial effect on a given trial would fall on the defendant. Chief Justice Warren E. Burger's majority opinion cautioned, "Dangers lurk in this, as in most experiments, but unless we were to conclude that television coverage under all conditions is prohibited by the Constitution, the states must be free to experiment."

The freedom to experiment brought cameras firmly into state courts. The ABA abandoned its prohibitive stance and more states began conducting experiments of their own. The launch on July 1, 1991 of court tv, a cable channel that provided televised trial coverage of newsworthy cases, sought to further legitimatize the use of cameras in the courtroom. By 1995, 47 states permitted some form of televising of state trials. But in 1994, the federal court system chose otherwise. The federal judicial conference of the united states authorized a three-year experiment in 1991 that permitted camera coverage of federal civil trials. Most judges who participated in the experiment, which involved

six trial court districts and two appellate districts, viewed the experience favorably; in fact, a report prepared by the Judicial Conference recommended extending camera coverage to all federal district and appellate courts. But in 1994, the conference voted to end the experiment without explanation. Many advocates of televising federal trials blamed this decision on the excessive publicity from the 1994 pretrial hearings in the case of O. J. Simpson, a popular sports and entertainment personality who was accused and later acquitted of murdering his former wife Nicole Brown Simpson and her friend Ronald Lyle Goldman.

By the beginning of the twenty-first century, all 50 states allowed some level of camera presence in their courts (only the District of Columbia prohibited cameras in trial and appellate proceedings), but the rules governing when and where cameras are allowed varied enormously. In New York, for example, cameras have been banned from criminal trials since 1952 under Section 52 of the state's civil rights Law. A 2001 challenge to the law by Court TV argued that Section 52 was unconstitutional because it violates the First Amendment. But in 2003, Manhattan Supreme Court Justice Shirley Werner Kornreich upheld the ban on cameras, noting that televising trials could disrupt the proceedings enough to have an impact on the fairness of those trials.

In 2001 the U.S. Senate and House of Representatives examined the issue of whether cameras should be allowed in federal court. An effort to enact legislation had failed in Congress a year earlier. In November 2001 the Senate Judiciary Committee voted 12–7 to bring a proposed bill to the full Senate; action on that legislation, as well as similar legislation in the House, is pending.

The U.S. Supreme Court does not allow cameras in its proceedings; transcripts are made available, but not immediately. In a move that surprised many, the Court allowed the release of audiotapes of its proceedings in the Florida presidential election results late in 2000. The Court deemed those hearings to be important enough to warrant a special dispensation of its normal procedures. In 2003, the Court again allowed audiotapes to be released in the University of Michigan Law School's affirmative action case, as well as the hearings on the constitutionality of the McCain-Feingold campaign finance reform law. The Court has emphasized that such access will only be allowed in rare instances and only for cases it deems crucial enough. As for televised Supreme Court proceedings, Chief Justice William Rehnquist wrote to Senator Arlen Spector of Pennsylvania, a proponent of television coverage, that "a majority [of the Justices] are of the view that it would be unwise to depart from our current practice." Rehnquist has stated that he would not allow camera coverage if even one justice was opposed.

Further Readings

ABA Journal. 74 (November): 52.

"Are We Being Fed a Steady Diet of Tabloid Television?" 1994. ABA Journal (May).

Caher, John. 2003. "Court TV effort to End Camera Ban Sparks Debate on Civil Rights Law." New York Law Journal 229 (April 23).

"Cameras in the Courtroom: Should Judges Permit High-Profile Trials to Be Televised?" 1995. American Bar Association (ABA) Journal (September).

"Court TV: Frequently Asked Questions." Available online at <http://www.courttv.com/about/ctvfaq.html> (accessed October 13, 2003).

Fong, Liz. 2002. "Judges Restrict Camera Access in Courtrooms." News Media & the Law 26 (fall): 12.

"Mass Media's Impact on Litigation, Lawyers, and Judges." 1995. Review of Litigation (February 24).

Moyer, Bruce. 2000. "House OKs Court Improvements and Cameras in Court." The Federal Lawyer 47 (July): 12–13.

"Senate Passes Cameras-in-Court Bill."2001. Associated Press (November 30).

"That's Entertainment! The Continuing Debate over Cameras in the Courtroom." 1995. Federal Lawyer (July).

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