Legal Documents

July 1995

FACTS AND OPINIONS ABOUT CAMERAS IN COURTROOMS

INTRODUCTION

What you are about to read has been written by the journalists of
Court TV. We have written it because we believe in what we do --
serious journalism about the U.S. judicial system, a serious, and
seriously misunderstood, branch of government. We are alumni of some
of the world's leading newspaper, magazine and television news
organizations. At Court TV, we see ourselves as being involved in an
exciting effort to provide viewers in America and ultimately around
the world with a new, unique source of ethical, purposeful journalism
about the American legal system.

We are proud of what we do. And we are eager to answer questions about
it.

Thus, the purpose of this paper is to provide perspective and factual
background on the issue of camera coverage of courtroom proceedings.

Indeed, there is quite a bit of factual background. Despite new
interest in this issue arising out of the O.J. Simpson case, this is
not a new debate.

Nor should it be in any way a speculative debate about "what might
happen" when cameras come to court. For in almost all of the 47 states
that allow camera coverage of court proceedings there was first an
experiment or study of the issue; thus, whereas other favorite legal
system debate topics -- tort reform, the death penalty, the
exclusionary rule -- are permeated with speculation about the effects
of various suggested changes, in the case of cameras there is
concrete, empirical evidence. And it all goes in one direction.

All the studies of the last two decades have concluded that camera
coverage of the courts of the least understood and most often
misportrayed branch of government -- and the only branch of government
which the Constitution requires to do its business in public --
provides a dignified, important view of how the legal system is
actually working, that it fulfills the essence of journalism's mission
in a democracy, and that it does not impede the process or negatively
affect the participants. Thus,  despite the current controversy in the
Simpson case, many countries including Italy, Argentina, Norway,
Mexico, Spain, France, Paraguay, Greece, Israel, Russia, and El
Salvador as well as the World Court at The Hague, have now allowed
camera coverage of trials. Several other countries, including England,
Ireland, Scotland, Canada, New Zealand and Australia, are now
conducting or considering experiments with cameras.

On the other side of the argument are old concerns -- articulated anew
because of the Simpson case. These concerns include:

-- Cameras in the courtroom create a media circus.

Sensational trials and sensational press coverage existed long before
television cameras. In the last 75 years a dozen or more American
trials have been dubbed "the trial of the century" and generated
enormous media and community interest. Until the Simpson trial none of
these sensational legal battles were recorded by a television camera.

In fact, the camera inside the courtroom acts as an antidote to the
abuses of the "circus" by allowing viewers to make their own judgments
independent of the circus elements.

-- The camera's supposed effect on participants.

The empirical evidence shows that while participants may, indeed, be
affected by the pressure and publicity of high-profile cases, they are
not affected in any special way by the presence of a silent camera in
the courtroom and certainly less affected than they were in the last
century when major community trials were much-heralded spectator
events and the talk of the town.

-- The length of the Simpson trial and the lengthy testimony in the
first months of that trial prove that the camera prolongs trials.

In fact, the evidence shows that, if anything, cameras tend to keep
trials moving. In some states high-profile murder cases are often
long, drawn-out affairs, but this is true with or without cameras. In
California, for example, the "Hillside Strangler" case took 23 months
and the Charles Manson case nine months; neither case was televised.
Similarly, if the Chicago Seven trial had been televised, the camera
surely would have been blamed for the antics of the defendants and
judge.

-- The media only want to televise sensational cases.

Court TV has televised more than 100 civil cases in areas ranging from
torts, product liability, civil rights, parental custody, copyright,
and sexual harassment. Ironically, federal rules currently prohibit
camera coverage of the most important civil and criminal cases. Thus,
proceedings like the Noriega drug trial, the Michael Milken
sentencing, the Microsoft antitrust settlement hearing, or the Waco
trial cannot be shown, while the Menendez brothers' trial can -- a
situation that this January allowed coverage of the Simpson case but
not the World Trade Center terrorist bombing conspiracy trial that
started at the same time.

-- This is really entertainment, not journalism.

In fact, however intriguing or even "entertaining" courtroom trials
may be (and always were for spectators in old-time large-gallery
courtrooms), camera coverage of the Simpson case has now generated the
most intense debate in recent memory about the criminal justice
system. It has shown people the legal system and provoked them to
debate it. However, this new debate will be distorted by the
exceptional nature of the Simpson case if, as a result of the Simpson
case, it becomes more difficult for cameras to cover more typical
trials.

And while important trials may involve an element of "entertainment,"
this is not a new phenomenon or one related to television. In 1965,
legal studies cited by the Supreme Court noted: "In early frontier
America, when no motion pictures, no television, and no radio provided
entertainment, `trial day in the county was like fair day, and from
near and far citizens young and old converged on the county seat. The
criminal trial was the theater and spectaculum of old rural America.'"

-- The media profit from coverage of these cases.

All free enterprise media, print as well as broadcast, hope to profit
from their coverage of news events. But to a degree unparalleled in
other arenas of news coverage, courtroom camera coverage is now being
used in numerous non-profit educational efforts from grade school to
law school.

-- Camera coverage fosters disrespect for the system.

In fact, camera coverage has been shown to enhance respect for the
system in most cases. The camera shows what happens; it does not
create it. When the camera shows the system working well, it tends to
boost public confidence. Conversely, the camera becomes a catalyst for
change when it shows some aspect of the courts (or government,
generally) that is not working well.

Camera coverage is just plain distasteful.

In fact, in-court camera coverage is, by definition, as dignified as
the process and arguably more "tasteful" than out-of-court tabloid
coverage or docudramas of courtroom trials. Moreover, everything in
the American tradition and American law suggests that such taste
decisions are not the province of government rulemakers.

We will return to the "taste question" in a later section. First,
however, let's review the facts -- lots of them. For amid the Simpson
controversy it has occasionally been forgotten that this is an issue
that is actually long on facts.

TABLE OF CONTENTS

I.  EMPIRICAL EVIDENCE REGARDING THE EFFECTS OF

    CAMERAS IN COURTROOMS. . . . . . . . . . . . . . . . . . .1

    A. THE STATE EXPERIMENTS . . . . . . . . . . . . . . . . .1

    B. STUDIES OF WITNESSES AND JURORS . . . . . . . . . . . .4

II.   THE SIMPSON CASE EXPERIENCE. . . . . . . . . . . . . . .6

III.   THE COURT TV JUDGES' SURVEY . . . . . . . . . . . . . .7

IV.   CAMERAS AND THE FEDERAL COURTS . . . . . . . . . . . . .8

    A. THE FEDERAL EXPERIMENT. . . . . . . . . . . . . . . . .8

    B. REACTION TO FEDERAL EXPERIMENT. . . . . . . . . . . . .8

    C. THE CONTINUING DEBATE . . . . . . . . . . . . . . . . .9

V.   SENSATIONALISM AND THE MEDIA CIRCUS . . . . . . . . . . 13

    A. "TRIAL(S) OF THE CENTURY" . . . . . . . . . . . . . . 13

    B. CAMERAS INSIDE COURTROOMS ARE PART OF

       THE SOLUTION, NOT PART OF THE PROBLEM . . . . . . . . 14

VI.   A CHECK ON, AND SUPPLEMENT TO, TRADITIONAL

   REPORTING ABOUT THE LEGAL SYSTEM. . . . . . . . . . . . . 16

    A. AN ANTIDOTE TO FICTIONAL JUSTICE. . . . . . . . . . . 16

    B. A SUPPLEMENT TO TRADITIONAL JOURNALISM. . . . . . . . 17

VII.   DEBUNKING CLICHES, REAFFIRMING VALUES . . . . . . . . 19

VIII.  CAMERAS AND DEFENDANTS. . . . . . . . . . . . . . . . 20

IX.    COURTROOM CAMERA COVERAGE AS "CLASSIC" JOURNALISM . . 21

X.   COURTROOM CAMERA COVERAGE AS A BUILDER OF

     CONFIDENCE IN THE LEGAL SYSTEM. . . . . . . . . . . . . 22

XI.   CAMERA COVERAGE AND EDUCATION. . . . . . . . . . . . . 23

    A. TEACHERS' SURVEY. . . . . . . . . . . . . . . . . . . 23

    B. COMMENTS ON EDUCATIONAL VALUE OF CAMERAS. . . . . . . 24

XII.   THE LAW AND CAMERAS . . . . . . . . . . . . . . . . . 26

    A. RICHMOND NEWSPAPERS v. VIRGINIA, 448 US 555 (1980). . 26

    B. BILLIE SOL ESTES v. STATE OF TEXAS, 381 US 532 (1965) 26

    C. CHANDLER v. STATE OF FLORIDA, 449 US 560 (1981) . . . 27

    D. A NEW CASE? . . . . . . . . . . . . . . . . . . . . . 28

XIII.   SO, WHY IS THERE STILL A CONTROVERSY ABOUT

        CAMERAS IN COURTS? . . . . . . . . . . . . . . . . . 30

APPENDIX A: INFORMATION ON COURT TV AND THE PEOPLE BEHIND IT

I. EMPIRICAL EVIDENCE REGARDING THE EFFECTS OF CAMERAS IN COURTROOMS:

Coverage of court proceedings with modern audio-visual equipment is
now allowed in some fashion in 47 states. The opening of courts to
cameras began long before Court TV aired the first nationally
televised trial in 1991.

Since 1974, 41 states have conducted studies or surveys concerning the
effects of cameras on thousands of court proceedings. These studies
have examined the impact of audio-visual coverage on the dignity of
the proceedings, the administration of justice, and the effect of
in-court cameras on witnesses, jurors, attorneys, judges and other
interested and involved parties.

A. THE STATE EXPERIMENTS:

The evidence gathered by the states' studies has repeatedly and
overwhelmingly concluded that television coverage does not disrupt
court proceedings or impair the administration of justice. In fact,
the evidence points to significant benefits to the public and often to
the process itself.

Of the 28 states that produced evaluative or empirical studies, 24
focused specifically on the effect of cameras on judges and/or
attorneys, as well as the attitudes of judges and attorneys toward
cameras. Twenty-three of these 24 states (all but Virginia) concluded
that cameras did not alter the behavior of judges and attorneys.
(Virginia's report was based on the evaluation of judges who had, for
the most part, no direct experience with cameras. A contemporaneous
Virginia survey of judges and trial participants who actually had
experienced cameras yielded conclusions more consistent with the other
states.)

These concrete results should not be forgotten amid the controversy
over the O.J. Simpson case -- a controversy that reflects
understandable disdain for the out-of-court media circus and, in some
instances, the in-court, unflinchingly accurate depiction of how the
court system is operating in this particular case.

Here are some examples of these studies:

Alaska

Alaska, reported that "[m]any of the judges interviewed originally had
grave reservations about the presence of cameras in their courts.
Paradoxically, these were the same judges who were placed in
situations where they had to face cameras in their courts on a daily
basis and the result was most surprising to them."  After the Alaskan
experiment, the Alaska Judicial Conference found that "a great
majority of judges [viewed this] as a great step forward."

Indeed, Alaska found that "[f]ar from creating a courtroom spectacle,
cameras in the courtrooms have become accepted tools for bringing
elements of our justice system into the everyday lives of the public."

Arizona

Following Arizona's one-year experiment, 82 percent of judges
responding to the question "How would you classify your experience
with cameras and recorders in the courtroom?" reported a "favorable"
experience, with 64 percent responding that permitting camera coverage
to continue would be "beneficial" to the administration of justice.
Ninety-one percent of responding judges said the media equipment did
not affect the dignity of the proceedings, and the same percentage
said the presence of media equipment did not affect the conduct of
business. Similarly, 84 percent of attorneys responding said that
during trial the presence of the media and its equipment was not
distracting, and 64 percent of responding attorneys said the presence
of media personnel and their equipment did not affect the dignity of
the proceedings.

California

Perhaps the most laborious study of all was done in California, which
commissioned an exhaustive analysis following 18 months of courtroom
experiments. Consistent with the other states, the California results
indicate that "around 70 percent" of all trial participants had
"little awareness" of the cameras. Eighty-three percent of judges
responded that they were "not at all" distracted or distracted "only
at first."  California also surveyed "experienced judges and
attorneys" about three-fourths of whom detected no impairment of
dignity and decorum (the remainder indicated only slight effects).

Connecticut

Similarly, following a one-year experiment, Connecticut found that its
experience with cameras was "a success. We believe that the
introduction of electronic coverage by the media into Superior Court
proceedings has been accomplished without threatening the rights of
parties and without interfering with the orderly disposition of
cases."

Hawaii

In authorizing its two-year experiment with cameras in the courtroom,
Hawaii noted that "[t]he empirical evidence does not support the
hypothesis that cameras disrupt proceedings."  Following its
experiment with cameras in the courtroom, Hawaii reported that of
jurors responding to the question  "Did media exposure influence your
deliberations?" 264 responded "no," and only 5 responded "yes," with
24 giving no response or responding "difficult to determine."

Iowa

The Iowa Committee on Media Coverage in the Courts noted in its 1979
preliminary report, which followed a two-year experiment, that
"[p]articipants who have responded to follow-up questionnaires,
including many who had some negative responses on specific questions,
largely agree that in their opinion the presence of cameras and
electronic media did not affect the fairness of the proceedings." 
Following a two-year experiment with cameras in the courtroom, 83.7
percent of Iowa judges polled responded that they did not feel that
the presence of expanded media jeopardized a fair trial.

Massachusetts

After experimenting for two years, a Massachusetts advisory committee
concluded that "the presence of the electronic and photographic media
in the courtroom during the past two years has been without any
serious adverse incident."  The committee concluded, "[t]he problems
encountered have been minor. They are of a type which can be remedied
or minimized in the future. They are not of a nature that would argue
for the removal of the electronic and photographic media from the
courtroom."

Michigan

Michigan discovered that throughout its one-year experiment with
cameras, "[n]o problems were reported by the courts regarding the
recording of courtroom proceedings by the film or electronic media."

Nevada

Following a one-year experiment in Nevada, "as a group, judges were
the most supportive of the rule governing cameras, with 75 percent
completely in  favor and 11 percent slightly in favor."

New Jersey

In New Jersey, 92.5 percent of that state's judges responding to a
survey on the effects of cameras in the courtroom reported no
distraction by the presence of camera equipment and personnel, and
94.4 percent of the judges believed the presence of camera equipment
and personnel had no effect on the conduct of any other trial
participants.

New York

After two lengthy experiments, New York's committee "concluded that
the benefits of the program are substantial, with little or no adverse
effect on anyone. Cameras in the courts serve a valuable educational
function and promote public scrutiny of the judicial system. This in
turn provides a deterrent against injustice and fosters a sense of
confidence and respect for the judicial process."

B. STUDIES OF WITNESSES AND JURORS:

"I was in the [O.J. Simpson trial] courtroom a couple of weeks ago,
and my colleagues will be pleased to know it wasn't really much
different from any other courtroom that we try cases in. The judge,
the jury, the witnesses, the spectators -- all of the circus
atmosphere -- is created outside the courtroom and doesn't affect the
jurors in any way. And the camera was very unobtrusive."

-- former U.S. Attorney General Richard Thornburg, Charlie Rose, June
23, 1995

The various state studies have also found that witnesses and jurors
behave the same whether or not there is a camera in the courtroom.

Twenty-five of the 28 states producing evaluative or empirical studies
reviewed the effect of cameras on jurors and/or witnesses, as well as
the attitudes of jurors and witnesses toward cameras. Fifteen of these
states relied on polls or surveys of witnesses or jurors. Overall, 24
of the 25 states focusing on this issue concluded that cameras did not
pose a problem regarding jurors and witnesses, and only one state
(Virginia) arguably reached negative conclusions on this issue. These
evaluations demonstrate that cameras in the courtroom do not result in
adverse effects on jurors and witnesses, both in the view of jurors
and witnesses themselves and also in the view of judges and attorneys.

It is also important to remember that every state that permits camera
coverage requires that witnesses be shielded when appropriate to
protect their safety, to protect those who are children, and to
protect those for whom the camera will, indeed, pose a particular
burden.

The Federal Judicial Center, as part of its study of cameras in
federal courts, examined the reports and conclusions of 12 states
(Arizona, California, Florida, Hawaii, Kansas, Maine, Massachusetts,
Nevada, New Jersey, New York, Ohio, and Virginia) of the potential
effects of cameras on witnesses and jurors. The Federal study
concluded that "[r]esults from state court evaluations of the effects
on jurors and witnesses indicate that most participants believe
electronic media presence has minimal or no detrimental effects on
jurors or witnesses."

New York State's committee reported in 1994 that it "has learned of no
prosecutor or defense attorney who has lost a witness because of
camera coverage."

Indeed, state studies have refuted arguments that witnesses become
overly distracted or nervous or that they distort or modify their
testimony when cameras are present. Although witnesses in high-profile
cases are sometimes nervous, their nervousness may be attributable to
publicity surrounding a trial or anxiety about speaking in front of a
group. There is no evidence that it is related to the camera, or that
they would be less nervous in the presence of the judge, jury,
defendant and three dozen furiously-scribbling reporters.

Jurors, who have the central and most sensitive and difficult jobs in
any jury trial, also tend to have the least familiarity with the legal
system and court procedures. The evidence from all of the studies
shows that jurors are not adversely affected by the presence of
cameras.

II. THE SIMPSON CASE EXPERIENCE:

Should the experience of the Simpson case -- however one interprets it
-- negate all of this prior experience?

Some judges and lawyers might think so, because they believe the
Simpson case has cast the legal system in a bad light; but if it did,
then isn't that usually a reason to favor journalistic sunlight?

The Simpson case should not be allowed to overwhelm all of the prior
experience. Some may be distressed by much of what the courtroom
camera has shown. But if the camera has revealed flaws in the legal
system, the correct response is to fix the problems -- not bar the
medium that identified them.

Moreover, isn't it illogical to use this undeniably atypical case as a
reason to keep cameras from now showing more typical cases?

But what about the argument that the cameras are what caused the
Simpson case to drag on and the lawyers to engage in delay and
histrionics? The fact is that high-profile, high publicity cases in
California often take a long time -- even when they do not have camera
coverage. For example, the "Hillside Strangler" case took 23 months --
without a camera. The Manson case took nine months without a camera.

On the other hand, there have been dozens of high profile murder cases
tried in courtrooms outside California that have taken a week or ten
days -- with a camera present. Indeed, in June, during the 12th week
of the Simpson trial, Court TV televised another trial involving
alleged spousal murder, Florida v. Trice. Locally, the case was
arguably as high-profile as the Simpson case, and the forensic issues
every bit as complicated. But the medical and forensic testimony took
less than a day, and the entire trial --  again, with cameras present
-- took six days.

It should be noted, too, that the judge has the responsibility and
authority to control courtroom decorum regardless of the presence of
cameras. If an attorney or even a judge behaves inappropriately, he or
she should be stopped. Improper behavior by trial participants is not
a reason to exclude the camera. No one would argue that a newspaper
reporter to whom an inappropriate comment is made should be kicked
out.

III. THE COURT TV JUDGES' SURVEY:

It may be true that a judge whose reputation has suffered, rightly or
wrongly, because of camera coverage may regret that coverage (just as
a judge whose reputation has suffered, rightly or wrongly, as a result
of a newspaper article may wish that his courtroom were not opened to
print reporters).

Nonetheless, Court TV's own survey of 277 judges who had hosted Court
TV's cameras as of June 1995 corroborates the various states'
conclusions about judges and cameras. The survey, which drew 197
responses, including responses from 29 federal judges, found that 98
percent of the judges agreed that the presence of Court TV's cameras
had not impeded the fairness of the judicial process. In fact, only
two of the judges disagreed -- and one of the two added that "[t]he
value of your presence greatly outweighs the negative."  (Two judges
did not answer either "yes" or "no.")

IV. CAMERAS AND THE FEDERAL COURTS:

Affirmative action. Microsoft. Waco. Whitewater. The NBA antitrust
case. Abortion. School prayer. These are all major legal and social
issues that affect us and that are being played out in our courts
today. They are prime subjects of journalism at its best. But they
cannot be shown on television, because the federal courts recently
ended their brief experiment with cameras in the courtroom and cameras
are again barred from federal courts.

A. THE FEDERAL EXPERIMENT:

In July 199l, the federal Judicial Conference authorized an experiment
allowing camera coverage in federal civil trials in six trial court
districts and two appellate districts. Thus, Court TV and other media
were able to cover a wide range of civil rights, copyright, antitrust,
contract, torts and other cases, often with high viewership.

The judges who participated in that experiment overwhelmingly
supported its continuation and expansion. A study by the federal
Judicial Conference's own Federal Judicial Center found that
"[o]verall, attitudes of judges toward coverage ... were initially
neutral and became more favorable after experience with electronic
media coverage ..."

As in the case of the states' studies, those judges and attorneys
involved in the initial federal experiment reported significant
educational and social benefits and, according to the Federal Judicial
Center's report, "generally reported observing little or no effect of
camera presence on participants in the proceedings, courtroom decorum,
or the administration of justice."

The report recommended that the Judicial Conference "authorize federal
courts of appeals and district courts nationwide to provide camera
access to civil proceedings in their courtrooms..."

B. REACTION TO FEDERAL EXPERIMENT:

Nonetheless, in September 1994 (in the aftermath of the initial burst
of television coverage of the Simpson pretrial hearing), the Judicial
Conference, faced only with a choice of extending camera coverage to
all courts or allowing the experiment to die at the end of 1994, voted
to allow the experiment to die. However, the conference subsequently
re-opened the door to new experimentation and the issue could be
considered again.

The irony here, of course, is that it may be that some judges have
allowed their distaste for what has transpired and been shown to the
American people in the Simpson case to influence their decision about
cameras in federal courts. And in doing so, they have now caused the
Simpson case -- rather than the federal cases that they preside over
-- to become the abiding image that Americans have of their justice
system. This is an irony that is not lost on many other judges, and,
thus, the issue of camera coverage in federal courts is far from
resolved.

C. THE CONTINUING DEBATE:

"[R]esponsible camera coverage is arguably an extension of Americans'
right to an open trial. And the federal courts, no less than the state
courts, belong to the people who come before them seeking justice,
more than to the judges behind the bench."

-- Los Angeles Times editorial, September 29, 1994

In March 1995, another committee of federal judges charged with
proposing long range plans for the improvement of the federal courts,
recommended that "[t]he Judicial branch should act to enhance
understanding of the federal courts and ensure that the fundamentals
of the litigation process are understood by all who use it. The
federal courts should encourage feedback from the public on how
successfully the judicial branch meets public expectations about the
administration of justice."

Then, in June 1995, the federal judges' Committee on Court and Case
Management reiterated to the Judicial Conference its recommendation
that the successful 1991-1994 experiment be extended, while at the
same time 13 of the 15 chief judges of the federal appellate circuits
urged that the appeals courts be open to cameras.

The irony and illogic of federal civil cases not being open to cameras
has not been lost on well-informed observers of the federal courts:

"It is my understanding that the report prepared by your committee
showed that the experiment was a success and that the feared
disadvantages did not materialize. Thus, the Federal Judicial Center's
favorable report is consistent, of course, with the experience of the
47 states that now allow televised coverage of trials.

"When I was Chief Justice of the Supreme Court of Alabama, it was
decided to open the courts to television cameras... It is my
understanding that this has worked well over the years, with virtually
no problems... I hope that you and your colleagues do not view the
matter as closed..."

--  (October 13, 1994 Letter to Chief Justice William Rehnquist from
Sen. Howell Heflin (D-AL), Chairman of the Senate Subcommittee on the
Courts and Administrative Practice)

"I was surprised and disappointed to learn of the Judicial
Conference's decision to terminate the pilot program of camera access
to the federal courts. I am writing to ask you, as Chairman of the
Judicial Conference, to urge reconsideration of this unfortunate
decision."

--        (October 14, 1994 Letter to Chief Justice William Rehnquist
from Sen. Herb Kohl (D-WI), Chairman of the Senate Subcommittee on
Juvenile Justice)

"I  request that the Judicial Conference review this decision [to
terminate the pilot program] and, at a minimum, opt to continue its
experimentation with television cameras in federal courtrooms.

"The Conference's decision appears to run counter to the
recommendations of the Federal Judicial Center and its Committee on
Court Administration and Case Management and Committee on Long Range
Planning. Each of these entities reviewed the pilot program and
concluded that federal judges should have discretion to allow cameras
into their courtrooms."

--  (February 22, 1995 Letter to Chief Justice William Rehnquist from
Sen. Arlen Specter (R-PA), Chairman of the Senate Subcommittee on
Terrorism, Technology and Government Information)

"I am writing to communicate my view that experimentation should
continue with cameras in the federal district and circuit
courts...[C]ontinued experimentation based on the recent experience is
warranted."

-- (February 7, 1995 Letter to Chief Justice William Rehnquist from
Rep. Carlos Moorhead (R-CA), Chairman of the House Subcommittee on
Courts and Intellectual Property)

"Cameras have been in hundreds of state and local courtrooms across
the country for a number of years. There is absolutely no valid reason
for still and television cameras being kept out of the nation's
federal courtrooms. We are living in an electronic age and many people
(regrettably) do get their information solely from radio or TV. To
deny reporters who work in these media equal access to court
proceedings is to deny access to a large segment of the nation's
population. To deny those reporters equal access is to make a mockery
of the principle of open judicial proceedings."

-- (Houston Post editorial, October 1, 1994)

"Are federal trials inherently so different that television would,
despite the recent experimental evidence to the contrary, undermine
the judicial process? Or is it more likely that federal judges, who
have life tenure, are simply more resistant to change in their
routines? The federal Judicial Conference should reconsider its total
ban on cameras. If it doesn't, Congress ought to think about making
its own rules in this area... [R]esponsible camera coverage is
arguably an extension of Americans' right to an open trial. And the
federal courts, no less than the state courts, belong to the people
who come before them seeking justice, more than to the judges behind
the bench."

-- (Los Angeles Times editorial, September 29, 1994)

"Unfortunately, the Judicial Conference could not consider extension
of the pilot program as an option: rules governing adoption of policy
required it to choose between maintaining its total ban on cameras in
federal courts or reversing its ban and permitting electronic media
coverage of civil proceedings in all district courts and courts of
appeals at the discretion of the presiding judge...

"The Standing Committee on Federal Judicial Improvements therefore
recommends that the House of Delegates adopt the attached resolution
which urges the Judicial Conference to authorize experimentation with
electronic media coverage of federal civil proceedings by
re-instituting a pilot project to allow electronic media coverage of
civil proceedings in selected federal courts under guidelines
promulgated by the Judicial Conference.

-- (Report of the American Bar Association's Standing Committee on
Federal Judicial Improvements accompanying Recommendation 106 (adopted
by the ABA House of Delegates, February 13, 1995))

In short, the cumulative evidence of the numerous state and federal
studies and the experience of the American judiciary point to only one
conclusion:  cameras in the courtroom do not harm the process, and do
provide significant social and educational benefits. As a Washington
Post editorial put it on April 9, 1995: "No state that has allowed
cameras in criminal trials has ever rescinded that decision. Since
Court TV went on the air in 1991 it has televised approximately 272
trials in 28 states. During that time not one verdict has been
overturned nor one charge dropped against a defendant because of a
Court TV broadcast."

Nonetheless, despite what we already know, questions are now being
raised regarding the influence of cameras on court proceedings, about
whether there is any legitimate educational value associated with
camera coverage, and about whether the image of the judicial system is
being tarnished and public confidence in the judiciary eroded. Let's
look at some of those issues.

V. SENSATIONALISM AND THE MEDIA CIRCUS:

A. TRIAL(S) OF THE CENTURY:

It has by now become fashionable to think that the Simpson case has
become "the trial of the century" because of cameras. In fact, in this
century at least a dozen cases have been dubbed (at the time they
happened) "the trial of the century."  Most were accompanied by lurid
and sensational tabloid headlines, interviews of lawyers and witnesses
on the courthouse steps, self-promotion and books by trial
participants, news reports of public obsession with the trial, and
general public distaste for the whole circus. None of these trials
were televised.

They include:

1.The three trials of comedic actor Fatty Arbuckle for rape and
murder. The first two ended in hung juries and he was acquitted in the
third.

2 . The Scopes "Monkey Trial" case.

3. The Bruno Hauptmann trial (Lindbergh kidnapping)(which was attended
by hordes of photographers and reporters using technology inside the
courtroom that clearly would violate current rules that require no
special lighting or wiring and no more than one pool camera).

4. The Sacco and Vanzetti trial.

5. The trial of "Murder Inc." boss Charles "Lucky" Luciano.

6. The Charlie Chaplin paternity suit.

7. The espionage trial of Ethel and Julius Rosenberg.

8. The Sam Sheppard murder trial.

9. The trial of Patty Hearst.

10. The trial of Charles Manson (which took nine months in a
California courtroom).

11. The "Boston Strangler" case.

12. The trial of the "Chicago Seven."

Pull the old clips or television news soundbites of these trials and
it becomes clear that the circus atmosphere, the lurid sensationalism,
baseless speculation, and inaccurate reporting are neither unique to
the Simpson trial nor dependent on the presence of television cameras.

And certainly if a trial like the Chicago Seven had been on television
the camera would have been blamed for the antics of the defendants and
the judge.

Indeed, what is different about the Simpson case and other televised
trials is that there is a full, sober record of what actually goes on
in court available to balance -- and correct -- the abuses of the
media circus.

B. CAMERAS INSIDE COURTROOMS ARE PART OF THE SOLUTION, NOT PART OF THE
PROBLEM:

"[W]ithout the ability to witness the actual proceedings on
television, many Americans could be left only with the sensationalist
distillations of the supermarket tabloids."

-- (New York Times editorial, September 22, 1994)

We may not like what we have seen in court in the Simpson case, but at
least we know what has gone on in court. We do not have to rely on
tabloid headlines or courthouse spin-session interviews to evaluate
what happened when the defendant tried on those gloves. Or on a
witness' "up close and personal" television interview a few weeks
later. Witnesses and lawyers can go on television interview shows --
and put their best spins on trial developments -- or they can leak
their spins anonymously, but people have seen what actually happened
in court where witnesses were under oath and cross-examined by lawyers
rather than celebrity interviewers.

As Marvin Kitman wrote in Newsday on June 15, 1995, "Everybody is
saying the trial is out of control because of TV -- let's pull the
plug on TV coverage. That is not the answer. Court TV is doing a
responsible, intelligent job. What's bad is the desperate media frenzy
to annotate, comment on, go beyond the actual proceedings, notably the
tabloid magazine shows."

Early in the case, Judge Ito made the same assessment himself when he
noted that the damage done by an erroneous local news report about
some forensic test results had been mitigated by his own comments
about it in open court -- because those comments had been televised.
"It is to the [defendant's] benefit that the false reports in the
press have been unmasked" on television, he stated.

Although Judge Ito could do little about media abuses, such as the one
he deplored in the instance cited above, because of cameras in the
courtroom he could have -- and other judges have -- done more to
prevent the interviews and courthouse-steps post mortems that have
been common in the Simpson case and that are much more common when
cameras are not in the courtroom. When a judge knows that the news
media can record what happens inside the courtroom that judge usually
feels more comfortable requiring the lawyers to keep silent outside of
court during the trial. Moreover, their comments are not nearly as
important when the media can use actual trial footage to report on the
case.

Similarly, indictment press conferences by prosecutors -- which used
to be the only way that the people who vote for them saw them perform
-- become not nearly as important to a public assessment of their work
when there is also camera coverage available showing them and their
subordinates at work in the courtroom.

Now, a new "trial of the century" is on the horizon: the one involving
the alleged Oklahoma bombers. In just the early pretrial phases of
that case, with no cameras allowed, we have already seen the first
signs of a circus in the making -- unsubstantiated media speculation
about the case and an attempt by one defense lawyer to secure
interviews with his client that will make him seem sympathetic. The
absence of cameras in the courtroom will only ensure the public's
reliance on these questionable tactics.

As University of Southern California law professor Susan Estrich has
written: "What is truly disgraceful to me, as someone who teaches
young people to be lawyers, is that the effort is being directed by
[McVeigh's] lawyers. In 1995, this is how you conduct a vigorous
defense. Try the case in public. Turn Timothy McVeigh into O.J."

Estrich, who has criticized cameras (wrongly, we think) in the Simpson
trial for having caused the process to be prolonged, at least
recognizes that the circus is not the product of the camera in the
courtroom.

VI. A CHECK ON, AND SUPPLEMENT TO, TRADITIONAL REPORTING ABOUT THE
LEGAL SYSTEM:

Americans get information about their legal system in two ways:
through traditional news reporting and through fictionalized versions
of American justice seen on television, in novels, and in the cinema.
This is true of all areas of public and governmental activity, but the
legal system is different; for the inherent drama of legal conflicts
has made it much more typically and indelibly the fare of fiction than
is true of other branches of government.

A. AN ANTIDOTE TO FICTIONAL JUSTICE:

"I think it's great that the public is getting to see the real world
of courtrooms -- a far cry from P. Mason and L.A. Law."
-- (Federal Judge, Eastern District of Pennsylvania)

And in fictionalized versions of justice -- those that suit our tastes
and those that don't -- our legal system is simplified, glorified,
demonized or just plain distorted, leaving all Americans with
unrealistic expectations, unjustified cynicism, or both.

We watch Perry Mason and expect trials always to be crisp,
truth-seeking affairs in which right always prevails and the wrongdoer
will always break under cross examination. We watch a police show on
television and we come to believe that only technicalities, not real
constitutional protections, save those who are arrested.

Thus, Professor David Harris wrote in the Arizona Law Review in 1993
(in the only academic study done thus far on the effect of televised
trials on the public perception of justice):

"While the portrayal of police in conventional television has often
been sympathetic, it has conditioned viewers to expect much more of
law enforcement, prosecutors, and courts than they can realistically
deliver .... Regardless of the fact that forensic science solves very
few cases, jurors expect such evidence, or an explanation for its
absence, in every case. Jurors become so conditioned by the `law' and
`police work' on television that the actual evidence becomes
secondary. As an officer interviewed in another study said, jurors
expect the impossible: `The public gets the impression that you can
take fingerprints off water.'

"Whatever one thinks of the portrayal of criminal justice on
conventional television, no one would dispute that Court TV at least
does a better job of showing viewers what a trial really is. No slick
actors here; rather, we see real attorneys make their way through
thickets of complex issues. Even the very good attorneys do not emerge
as hot, exciting performers. Rather, we see that slow, careful,
patient work represents the lawyer's stock in trade. Painstaking
precision, backed by conscientious preparation, wins cases. Flash and
excitement seldom show up on Court TV."

B. A SUPPLEMENT TO TRADITIONAL JOURNALISM:

One need not be critical of traditional television and print reporting
about the legal system (and certainly we at Court TV are not, since we
are also involved in publishing ten legal newspapers and magazines) to
appreciate how the camera in the courtroom can supplement and enhance
more traditional reporting.

As Professor Harris wrote in the Arizona Law Review:

"Even the most accurate part of conventional television, news
broadcasts, can offer only an incomplete version of any important
trial. The whole event will be summarized in two minutes by a reporter
with little or no knowledge of the legal process. Thus the person
interested in a case depends on a highly derivative filtered source of
information.

"By contrast, those who see Court TV can make up their own minds about
the case and the evidence. Court TV's virtually uncut live coverage of
trial testimony allows anyone to see the trial as if present. The
viewer sees an almost unmediated version of the proceedings, rather
than interpretations of the event."

The camera takes away the traditional reporters' monopoly on the
information about what actually happened in the trial. The reporter is
still there to report on the significant developments and to attempt
to explain and assess them, but he or she is no longer the only one
among his editors or readers who has seen the event.

Camera coverage also allows other legal journalists and commentators
to add analysis to their coverage. This commentary has, on occasion,
angered members of the legal community. Likening it to sports
commentary, these critics argue that it demeans the legal system and
the lawyers. For those of us at Court TV involved in our sister
publication, The American Lawyer magazine, this reaction is
reminiscent of the criticism we received when we began publishing
columns by veteran Supreme Court journalist Lyle Deniston, in which
Deniston critiqued lawyers' performances in oral argument before the
high court. However uncomfortable people become when their work is
watched and commented on by others, this is one of the prime purposes
of good journalism.

The camera also provides an important check in those rare cases where
the press becomes so used to the stories and system that it covers
that it becomes more tolerant than the public would be of how that
system is working. This is classically true in the Simpson case, where
court reporters -- long used to delays in California trials -- were
initially far more tolerant than the rest of the world, which now got
to watch such a trial.

Thus, Professor John Langbein of Yale Law School, who believes that
the system is far too tangled in a procedural morass, recently told
CBS news, referring to the Simpson case, "[t]hose cameras are an
absolute godsend because the public has been educated to think that
criminal trials are what they saw on Perry Mason and it ain't true.
What it's showing people is the way the system really works."

VII. DEBUNKING CLICHES, REAFFIRMING VALUES:

The camera in the court punctures myth and reaffirms the reality of
the legal system. For example:

--Redeeming the Goal of Deterrence.

In the past many criminal defense lawyers have opposed cameras in
criminal trials because the televising of a trial would further punish
the defendant by embarrassing him if he were convicted. This is an
understandable position for defense lawyers to take for their clients,
but it is contrary to one of the basic purposes of any criminal law
system: deterrence. Historically, one of the prime ways of achieving
deterrence was the specter of embarrassment in the community resulting
from being caught committing a crime.

--Distinguishing the "technicalities" from the constitutional
safeguards.

The Simpson case, as is true of other televised cases before it, has
reminded Americans about, and reaffirmed for them, the presumption of
innocence and burden of proof that attach to every criminal case. As
the Arizona Law Review article referred to above, noted, "Court TV
offers citizens the chance to actually see their system of justice at
work, along with expert analysis and commentary. . . For example, it
is one thing to be aware of the presumption of innocence; it is quite
another to watch the system do the best that human institutions can to
be fair to an individual accused of the most horrible acts possible."

At the same time the Simpson case has focused debate on whether the
criminal justice process can become too bogged down in procedural
issues when the defense has the resources to press all of these
issues. And it has ignited anew a debate over whether the solution is
to give every defendant these resources or remove some of those
procedural hurdles.

-- There has always been a tendency among the public and even in some
of the media to confuse fame with quality when it comes to lawyers. At
the beginning of this trial all of the lawyers involved were famous.
Now, however, not all of them are considered to be stellar lawyers.
That's because people have watched them work, rather than simply see
them on the courthouse steps and in newspaper headlines.

VIII. CAMERAS AND DEFENDANTS:

In 1981, the United States Supreme Court ruled in Chandler v. State of
Florida that the presence of a camera televising a trial does not
inherently deprive a criminal defendant of a fair trial.

Nonetheless, as mentioned above, many in the defense bar have
historically opposed cameras in courts. Many defense lawyers have now
changed their view, for two reasons:

a. Defense lawyers increasingly believe that the presence of a camera
strengthens the integrity of the process, insuring that their clients'
rights are protected by judges and prosecutors alike.

This is why many observers now believe that camera coverage could be
an especially important dynamic in preserving the rights of defendants
who lack the resources to mount a vigorous defense or who may feel
that there are inequities in the system.

Thus, the Texas NAACP supported cameras in the courtroom "to ensure
fairness and equity in our criminal justice system, which after all,
is accountable to the general public. The public scrutiny that cameras
afford is extremely helpful in keeping trials fair to all parties and
ensuring that minorities are treated with courtesy and adherence to
the rules. We are concerned about any perpetuation of stereotypes, but
we are proud to recognize that existing entities such as Court TV have
done a good job in avoiding this problem."

b. Defense lawyers in high profile cases, and their clients, say the
camera will help restore the reputations of those who are acquitted
because the public will see what the jury saw when it made its
decision. Similarly, and particularly in high profile cases, many
defense lawyers want jurors to know that if they render a decision to
acquit that seems at odds with the initial pretrial publicity, they
will return from jury service to friends and co-workers in the
community who, will have seen the evidence in what might otherwise be
an unpopular decision.

Thus, just one year after Court TV was launched, the network received
an award from the Criminal Justice Section of the New York State Bar
Association for its Outstanding Contribution in the Field of Public
Information.

IX. COURTROOM CAMERA COVERAGE AS "CLASSIC" JOURNALISM:

A debate about courtroom camera coverage tends to make electronic
journalists defensive. For they often have to justify what they do in
terms of negatives:  it is not merely entertainment; it doesn't
endanger the rights of defendants; it doesn't impede the process.

In fact, there is a simple, positive statement that can also be made
about courtroom camera coverage: when done well it is journalism at
its best -- journalism that defines the core purpose of journalism and
the First Amendment.

For television coverage of trials tells the whole, real, true story
about a complicated, often misunderstood and under-reported subject.
It allows the participants in a democracy to judge for themselves how
well the government institution that makes the most fundamental
decision that any government makes -- liberty or prison -- is working.

And this is true even with regard to the most "sensational" trials. We
can see for ourselves whether William Kennedy Smith and his lawyers
corrupted the system or fooled the jury. Or, we can see whether O.J.
Simpson was railroaded in a way that we could not see, for example,
whether Mike Tyson (whose rape trial in Indiana could not be
televised) received a fair trial.

Court TV began four years ago at a time when it would be hard to argue
that the public understood its legal system well or that journalism
was doing a complete job of showing it to those who are ruled by it.
This, after all, is the most misunderstood branch of government -- the
branch where who wins and who loses has heretofore dominated most of
the news coverage, with little attention given to the process of
deciding who wins and who loses.

In the wake of the Simpson case some may have been made uncomfortable
by this new and unforgiving eye of journalism. The temptation may be
to criticize the messenger rather than focus on the message (that, at
least in this case, the system may need some changing.) Journalists
have often faced that kind of reaction, especially when their medium
or their method was new. But rarely have they had to face it against
the backdrop of laws and rules that could restrict their coverage.

X. COURTROOM CAMERA COVERAGE AS A BUILDER OF CONFIDENCE IN THE LEGAL
SYSTEM:

"It is essential that justice is seen to be done, and television lets
the citizenry see our justice system in action. Television viewers
have demonstrated great interest, and their interest should be
encouraged. The televising of court proceedings is the best thing that
ever happened to our profession, because it inspires confidence in our
judicial processes."

--  U.S. Court of Appeals Judge Roger Miner, New York State Bar

Journal, February 1995

On the surface, it seems inconsistent to celebrate coverage of the
Simpson case as classic journalism that shows flaws in the system and
acts as a catalyst to change the system, and then to argue also that
camera coverage builds confidence in the legal system. It would,
indeed, be inconsistent were it not for one overriding factor: the
dramatic ways in which the Simpson case is the exception that proves
the more general rule.

The Simpson case may be an anomaly all its own. Or it may be
emblematic of problems with trial procedure in California. Or it may
be emblematic of an imbalance in the system between the protections
afforded defendants based on their economic resources. But it is not
typical of the system in general.

Nor has reaction to its telecast been typical. Public opinion polls
report that people generally have less confidence in the legal system
after watching the Simpson case. But previous research and polling
suggest even more strongly that, as a rule, when people watch trials
they come away with more confidence in the system.

Thus, in 1994 the independent Times Mirror Center For The People And
The Press conducted a study that found that by a margin of 49 percent
to 28 percent Court TV viewers said "they have a better impression of
the fairness of the judicial system as a result" of watching Court TV.

This result has been repeatedly reflected in the comments of Court TV
viewers and in the reactions reported by judges and lawyers who have
participated in trials televised on Court TV.

XI. CAMERA COVERAGE AND EDUCATION:

Courtroom television coverage has generated dramatic improvements in
how Americans are helped to understand that branch of government that
determines liberty and organizes our social and business affairs.
Videotapes of actual trials are now used regularly to train law
students, paralegals and lawyers. Special tapes have been made by
Court TV of especially important cases -- for example, a Philadelphia
appellate argument on affirmative action, and a free speech/civil
rights case in New York -- and distributed for free to civil rights
leaders and educators.

Through the "Cable In The Classroom" program, students from grade
school to college across the United States now regularly receive tapes
of actual courtroom proceedings, for free, and discuss them in
classroom presentations led by teachers who receive supporting
materials from Court TV.

Court TV has also created and distributed, for free, an interactive CD
ROM based on the Rodney King trial that allows students to review and
organize the actual trial tapes and transcripts and present their own
opening and closing arguments to other students. This trailblazing
interactive learning tool, created in cooperation with the leaders of
the interactive learning laboratory at New York's Dalton School, has
been used in classes ranging from middle school at Dalton to Evidence
at Harvard Law School. Other law schools -- among them Stanford, Notre
Dame, Syracuse and Case Western -- regularly acquire courtroom footage
as a resource for their libraries and classrooms.

Also on Court TV, six hours a week are devoted to special continuing
legal education programs for lawyers; and on weekday evenings regular
shows use trial footage as a departure to explain the legal process to
lay audiences. These shows include "In Context," with Harvard Law
Professor Arthur Miller, which takes a significant legal issue
presented by a current trial and explains and analyzes it; "The
System," which tracks criminal cases from crime complaint, to arrest,
to pretrial hearings, to trial or plea bargain, to imprisonment and
parole; and "Verdicts & Justice," which attempts to assess whether
justice was done in a recently completed case.

A. TEACHERS' SURVEY:

It should be no surprise, then, that an independent survey of
educators across the country completed in 1994 found that teachers
consider Court TV a highly valuable curriculum tool for educating
students about the workings of the American justice system. Among key
findings:

-- 90 percent of respondents who indicated they had viewed Court TV
said the network is important because it provides students the
opportunity to see the U.S. judicial system in action;

-- 80 percent of those who watched Court TV said the network helps
students understand many aspects of the law;

--  85 percent of respondents who viewed the network said they believe
Court TV presents current issues of social interest such as free
speech, crime, and violence in a constructive manner;

-- 87 percent of Court TV viewing teachers said that the network's
trial programming focuses on resolving social disputes in a civilized
and fair manner, as compared to many television programs which show
violence and violent outcomes in public and individual disputes;

-- Of all the teachers surveyed, 77 percent are in favor of Court TV
being available for educational instruction. And 75 percent of the
respondents would recommend that their students watch Court TV on
their own. (Malarkey Taylor Associates Survey, 1994.)

B. COMMENTS ON EDUCATIONAL VALUE OF CAMERAS:

Across the country, judges and other community leaders have expressed
equal appreciation for the educational value of televised trials:

"I am a firm believer of `cameras in the courtrooms' as applied under
the law. It is a wonderful educational tool and a marvelous way to
show `the entire picture' to the public which is in dire need of a
`true picture' of what actually transpires in our courtrooms."

-- (Judge, Circuit Court, Palm Beach County, FL)

"The few opportunities I had to watch the evening recaps and listen to
the callers' questions convinced me your audience was intelligent,
paying close attention and learning about the system. I am proud about
contributing to the public's understanding about the system."

-- (Judge, Denver District Court, CO)

"Indeed, the benefits of televising trials far outweigh any burdens -
even in the much-criticized O.J. Simpson case. People learn from
trials. As aberrant as the Simpson case is, it has become a civics
class on the rights against search and seizure, the role of judges and
the duties of jurors ... The Simpson case is bringing to light
differences in how blacks and whites view the legal system ....
Compare those public conversations to what's emanated from federal
courthouses in New York during the trials for the World Trade Center
bombing. A sad silence .... Now, the Oklahoma City bombing may get
similar treatment. By keeping cameras out, federal courts make it more
difficult for society to learn from and come to terms with this
tragedy. And should the accused be let go, a public deprived of
televised access may find it hard to understand why."

-- (USA Today editorial, May 5, 1995)

"The courts are public institutions, and the televising of proceedings
is a powerful educational tool. People learn a tremendous amount about
the judicial process by watching trials and appeals on television.
Think of what is being learned about our legal system -- both for
better and for worse -- by the televising of the O.J. Simpson trial."

-- (Washington Post editorial, April 8, l995)

"The rules in Texas are working well as regards cameras in court, and
there is no record of their disrupting proceedings, violating
defendants' rights or otherwise creating havoc. So why mess with it?
... The O.J. Simpson trial has demonstrated, often painfully, both the
positive and negative aspects of cameras in court. The illuminations
of the indecorous attorneys have been deplorable, and some of that
egregious excess may be blamed on the unblinking camera. But the
camera also makes the larger public privy to the entire display and
not just subject to after-court sound bites orchestrated by the
various lawyers involved."

-- (Austin American-Statesman editorial, April 4, 1995)

"Fifteen of the 28 states addressed the educational benefits
associated with allowing cameras in the courtroom, and all of these
states determined that camera coverage contributed in one way or
another to public understanding of the judicial system."

-- (Electronic Media Coverage of Federal Civil Proceedings, Federal
Judicial

Center evaluation, 1994)

"Many of the small sample of Court TV viewers interviewed said they
have a better understanding of the legal system and think the courts
are fairer as a result of watching trials on TV. Specifically, 66
percent said their viewing gave them a greater understanding of the
way the American court system works."

-- (Times Mirror Center for The People & The Press, 1994)

XII. THE LAW AND CAMERAS:

We often hear that there is "no constitutional right to cameras in the
courts." Right now, this is true. But there is no constitutional bar
either. In fact, the courts have opened the way to cameras in the
courtroom, and the issue of whether there is a constitutional right,
given the non-obtrusive nature of modern video technology, is not at
all settled.

There are three Supreme Court cases that bear directly on the issue of
cameras in courts:

A. RICHMOND NEWSPAPERS v. VIRGINIA, 448 US 555 (1980):

In Richmond Newspapers v. Virginia the Supreme Court held that the
Sixth Amendment right to a public trial is not a right afforded only
to defendants -- that the constitutional right to a public trial also
belongs to the public. "Without the freedom to attend such trials,
which people have exercised for centuries, important aspects of
freedom of speech and of the press would be eviscerated," the court
ruled. "The First Amendment can be read as protecting the right of
everyone to attend trials."

However, not everyone can actually attend trials. In a world in which
community interest is now often defined on a regional, national or
even worldwide basis, trials that are the major focus of regional,
national or world community attention often take place in courtrooms
that have one or two dozen seats for spectators and that are far away
from most members of that "community." Which is a far different
reality than a century ago when "community" was a much smaller place
and when courtrooms had cavernous audience galleries to accommodate
those who wanted to come see a trial that had become the talk of the
town.

B. BILLIE SOL ESTES v. STATE OF TEXAS, 381 US 532 (1965):

On the other hand, The Richmond case talks about "attending trials,"
not seeing them on television. Which brings us to the second major
courtroom camera case: Billie Sol Estes v. Texas. This is the case
that is most often cited -- and accurately so -- for the proposition
that there is no constitutional right of camera access.

In the Estes case the Supreme Court, indeed, ruled that camera
coverage was not a constitutional right and overturned the criminal
conviction of Billie Sol Estes because the publicity attendant to his
trial, including the presence of cameras, had deprived Estes of due
process.

However, in that case the Supreme Court focused on the physical
attributes of camera coverage -- the lights, the wires, the noise, the
chaos. Indeed, the circus.

In his plurality opinion in that case Justice Clark said, "When
advances in the [television] arts permit reporting ... by television
without [its] present hazards, we will have another case."

Obviously, there are none of those hazards today. The camera is small,
silent, usually wireless and often mounted on the wall with no more
intrusion than a standard security camera. So, perhaps we may soon
have another case.

C. CHANDLER v. STATE OF FLORIDA, 449 US 560 (1981):

In 1981, the Supreme Court clarified its position on cameras when it
ruled in Chandler v. Florida that the presence of a camera in and of
itself  (without any attendant circus atmosphere of lights, tangled
wiring, reporters and photographers bustling through the courtroom)
did not deprive a defendant of a fair trial.

So, the state of the constitutional law on cameras is as follows: The
Supreme Court has frowned on cameras but primarily because of the
circus that once attended a camera set-up in court (Estes); the Court
has ruled that public trials (but not camera-covered trials) are a
public, First Amendment right (Richmond Newspapers); and the Court has
ruled that cameras alone do not deprive the defendant of a fair trial
(Chandler).

Against that backdrop, 47 states have now passed laws allowing some
kind of camera coverage. All of those laws afford the presiding judge
discretion, however, to rule on individual cases. Some states require
the judge to allow cameras unless there is some tangible reason why
they should not be allowed, while others simply give the judge (or in
some cases the participants) broad discretion to keep cameras out. In
short, while cameras have increasingly been allowed, they do not yet
enjoy in the law the same right of access that reporters and their
notepads do.

D. A NEW CASE?

Thus, the question now becomes whether the technological advances
referred to by Justice Clark in the Estes case as opening the way for
camera coverage as a matter of right aren't now here. For if they are
and if, therefore, the physical set-up of the camera isn't destructive
to the trial, then all of the arguments about the effect of cameras on
making a trial more public would not be relevant; for the Richmond
case and the Sixth Amendment require public trials, which means that
if a camera simply makes a trial more public it should be welcomed,
not barred.

To take a specific example, there have been typically seven or eight
seats at the Simpson trial open to the public. In a trial that has
generated so much community interest in such a large national
community can that be what the founding fathers meant about a "public
trial" when an unobtrusive technological means is now available to
make it so much more public? And if the lone, silent camera on the
wall is now no more obtrusive than a few dozen reporters scribbling
away on their pads, can there be a justification for keeping the
camera out? It cannot be that the justification is that participants
will act differently (even though the empirical evidence is that they
don't) knowing that the trial is so much more public -- because the
founding fathers always wanted public trials.

Put differently, it would seem that all of the current controversy
about the Simpson case should -- when juxtaposed against the public
trial requirement of the Richmond Newspapers case and the
technological advances that make the physical presence of the camera
no more (and arguably less) an event than the presence of lots of
reporters -- be matters of debate about taste, not about rules and
restrictions.

As the Houston Post declared in an April 7, 1995 editorial, "The
public has a right to know what happens in the courtrooms. Through
newspapers, they have long known. But recorders and television cameras
serve as more modern eyes and ears for the public. The laws and
judicial rules and procedures should accommodate these technologies to
enhance the public's right to know."

The Atlanta Journal and Constitution put it this way on September 21,
1994: "When the forefathers drafted the First Amendment, assuring a
watchdog media, and the Sixth Amendment, guaranteeing the criminal
defendants a 'public' jury trial, they knew what they were doing.
While they didn't envision television, they meant those guarantees to
be kept consistent with the times."

Or as U.S. Court of Appeals Judge Roger Miner explained in an article
in the New York State Bar Journal in February 1995, "Today, of course,
except in sensational trials, the courtrooms are empty. But there is a
way to fill up those courtrooms and to secure the desirable attendance
of the citizenry. That way is television."

In short, as Justice Clark foretold, we may now "have another case." 
Restricted camera access as a matter of taste should be a thing of the
past. Imagine the reaction if a legislature or judge could restrict
other media based on assessments of the prospective tastefulness or
benefits of coverage.

Camera access should be a right to be withheld only when the judge
finds that the camera -- not publicity, but the camera -- will unduly
affect a witness or impede a trial. And certainly this right should
apply to coverage of appellate arguments, including those in the
Supreme Court, where there are no witnesses or jurors to be
intimidated by cameras and where the issues are rarely the
"sensational" ones that the camera-taste critics decry.

XIII. SO, WHY IS THERE STILL A CONTROVERSY ABOUT CAMERAS IN COURTS?:

"The obsession with this particular television trial should not lead
to a rejection of televised trials..."
-- New York Times editorial, June 11, 1995

If all of the empirical evidence about the balance of harmful effects
versus the benefits of camera coverage is so clear, and if the policy
arguments and legal arguments are so good, how come courtroom camera
coverage is still so controversial, with so many sincere, highly
regarded people in opposition?

One simple answer is the Simpson case. The general revulsion with the
media frenzy surrounding that case has motivated people to want to do
"something." And the only thing that really can be done under current
law is to remove the camera in the courtroom -- which is not
responsible for any of the abuses that people are upset about, and
which, it could be argued, is actually an antidote to those abuses.

Similarly, the Simpson case has clearly been an exception in many
quarters to most prior experience, in which camera coverage has
inspired enhanced confidence in the legal system. Thus, many of those
who want to protect the system -- for good reason, because it is
generally a system well worth protecting -- are now disenchanted with
cameras. Put differently, there are many who have been made 
uncomfortable by the undeniably true story told by the camera in the
Simpson case.

Most important, the broad viewership of the Simpson trial and the
attendant publicity may itself be one reason the camera in the
courtroom has come under fire. For many people, who have not
previously paid much attention to courtroom cameras, the Simpson trial
has made the issue of cameras in the courts a "new" issue, rather than
the decades old issue (with accompanying reams of empirical studies)
that it actually is.

Looked at as a new issue and against only the backdrop of the
distasteful Simpson case, camera coverage has gotten swept up in the
overall backlash from this trial.

And many people instinctively are leery of something that seems so
new, especially when it presumes to intrude upon an old system that in
their perception has generally worked well.

This problem of "newness" has always been a hurdle for cameras in
courts. It is probably true that a majority of judges who have not had
cameras in their courtrooms oppose cameras. But it is definitely true
that an overwhelming majority of judges who have presided over
televised trials -- including, to our knowledge, every single judge
who has presided over a trial televised by Court TV -- favors camera
coverage with appropriate safeguards.

Thus, according to news reports at the time, when the Judicial
Conference voted to allow the 1991-94 experiment with civil trials to
lapse, all but two or three of the judges who voted had never had a
camera in their courtrooms, while those who had experience with
cameras voted for continued camera coverage and those federal judges
not on the Conference who had participated in the experiment were
overwhelmingly in favor of continuation of coverage.

The purpose of this paper, therefore, has been to provide perspective
on a debate that seems new but is not.

And to convey the clearest message possible that journalism using
cameras in the courtroom is journalism that is effective, that tells
the truth, that can -- and among most journalists, does -- have a high
purpose, and that now deserves the same protection as any other
journalism from those who would want their own taste to become rules
that apply to what everyone reports and what everyone gets to see.

Cameras in the courtroom provide many benefits. They offer the public
the chance to see the legal system at work and to judge with their own
eyes whether it has performed as it should. They can heighten public
understanding of the system, counter rumor and speculation, and
provide important insurance against abuses of defendants' rights.

The Simpson trial has raised important questions about our system of
justice and our ability to preserve its integrity in trying
circumstances. But, far from being the source of the problem, the
courtroom camera may be part of the solution. We must remember that as
we decide its future.

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