CQR Cameras in the Courtroom

Res earc her Published by CQ Press, a Division of SAGE CQ www.cqresearcher.com Cameras in the Courtroom Should TV be allowed in federal courts?

elevision cameras have been allowed in state courts for more than 30 years, but the Supreme Court and federal judiciary have been staunchly opposed to T video coverage of trials or appeals. Media groups and others say that video coverage of courts helps educate the public about the legal process while strengthening public account - Print and TV cameramen photograph former Ku Klux ability over the judicial system. Some, but not all, criminal defense Klan leader Edgar Ray Killen during his 2005 trial in Mississippi for the murders of three civil rights workers lawyers worry that televised trials can jeopardize defendants’ rights. in 1964. Mississippi began permitting audio and video coverage of trials in 2003. The most significant resistance to cameras in the courtroom comes from judges and some private lawyers who discount the claimed benefits and warn that cameras could invite grandstanding by lawyers I N or risk intimidating jurors and witnesses. The Supreme Court recently THIS REPORT S made audio tapes of arguments more readily available, but the THE ISSUES ...... 27 I justices show no sign of welcoming cameras into their hallowed BACKGROUND ...... 34 D courtroom in the foreseeable future. CHRONOLOGY ...... 35 E CURRENT SITUATION ...... 40 CQ Researcher • Jan. 14, 2011 • www.cqresearcher.com AT ISSUE ...... 41 Volume 21, Number 2 • Pages 25-48 OUTLOOK ...... 43 RECIPIENT OF SOCIETY OF PROFESSIONAL JOURNALISTS AWARD FOR EXCELLENCE N AMERICAN BAR ASSOCIATION SILVER GAVEL AWARD BIBLIOGRAPHY ...... 46 THE NEXT STEP ...... 47 CAMERAS IN THE COURTROOM CQ Re search er

Jan. 14, 2011 THE ISSUES SIDEBARS AND GRAPHICS Volume 21, Number 2

• Has television coverage States Divided on MANAGING EDITOR: Thomas J. Billitteri [email protected] 27 of state courts succeeded? 28 Courtroom Cameras • Should federal courts per - Two-thirds generally permit ASSISTANT MANAGING EDITOR: Kathy Koch mit TV coverage of trials, coverage of trials. [email protected] including criminal cases? CONTRIBUTING EDITOR: Thomas J. Colin • Should the Supreme 29 Most Justices Hesitant on [email protected] Court permit live audio Cameras ASSOCIATE EDITOR: Kenneth Jost and video coverage? Views range from “not a chance” to “it would be a STAFF WRITERS: Marcia Clemmitt, Peter Katel great thing.” BACKGROUND CONTRIBUTING WRITERS: Roland Flamini, Sarah Glazer, Alan Greenblatt, Reed Karaim, Trials of Centuries Spectators Line Up Early Barbara Mantel, Tom Price, Jennifer Weeks 32 to View High Court 34 DESIGN /P RODUCTION EDITOR: Olu B. Davis In the 20th century, cameras “It was worth it to see first- were blamed for creating a hand what goes on,” says a ASSISTANT EDITOR: Darrell Dela Rosa circus atmosphere at major former Georgetown University FACT-CHECKING: Michelle Harris trials. law student.

Trials of Television Chronology 36 The controversial O.J. Simp - 35 Key events since the 1925 son murder trial hardened Scopes “Monkey Trial.” opposition to TV. 36 Tweeting and Blogging Trials of Patience Get Mixed Reception in A Division of SAGE 38 Many state courts permit Courtrooms PRESIDENT AND PUBLISHER: cameras, but not federal “By shutting this down, John A. Jenkins courts or the Supreme you’re really shutting down information.” DIRECTOR, REFERENCE SOLUTIONS: Court. Todd Baldwin At Issue 41 Should Supreme Court pro - CURRENT SITUATION Copyright © 2011 CQ Press, a Division of SAGE. ceedings be televised? SAGE reserves all copyright and other rights herein, Slow Going in States unless pre vi ous ly spec i fied in writing. No part of this 40 Fourteen states bar cameras FOR FURTHER RESEARCH publication may be reproduced electronically or in trial courts or impose otherwise, without prior written permission. Un- au tho rized re pro duc tion or trans mis sion of SAGE copy - conditions. For More Information 45 right ed material is a violation of federal law car ry ing Organizations to contact. civil fines of up to $100,000. Pilot Plan Awaited 42 Federal courts plan to test 46 Bibliography CQ Press is a registered trademark of Congressional cameras in civil trials. Selected sources used. Quarterly Inc. The Next Step CQ Researcher (ISSN 1056-2036) is printed on acid- 47 Additional articles . free paper. Pub lished weekly, except: (May wk. 4) OUTLOOK (July wks. 1, 2) (Aug. wks. 2, 3) (Nov. wk. 4) and Citing CQ Researcher (Dec. wks. 4, 5), by CQ Press, a division of SAGE. Two-Edged Sword? 47 Sample bibliography formats. Annual full-service subscriptions start at $803. For pric - 43 Debate over the merits of ing, call 1-800-834-9020. To purchase a CQ Researcher courtroom cameras is report in print or electronic format (PDF), visit www. likely to persist. cqpress.com or call 866-427-7737. Single reports start at $15. Bulk purchase discounts and electronic-rights licensing are also available. Pe ri od i cals post age paid at Wash ing ton, D.C., and ad di tion al mailing of fic es. POST MAST ER: Send ad dress chang es to CQ Re search - er , 2300 N St., N.W., Suite 800, Wash ing ton, DC 20037.

Cover: AP Photo/Rogelio Solis

26 CQ Researcher Cameras in the Courtroom BY KENNETH JOST

on the court’s website by the THE ISSUES end of the week in which the arguments are held. Bruce or hard-core fans of Collins, C-SPAN’s general “Law and Order” and counsel, calls the move “in F other courtroom dra - one sense a step forward” mas, the live broadcast from but notes that it leaves radio inside a San Francisco court - and TV outlets with no ac - n e

room was less than riveting. s cess to the recordings on the n Still, the two-hour hearing tele - a day of the argument. ( See “At H

vised by C-SPAN on Dec. 6 a Issue,” p. 41. ) n i t presented a rare opportunity t In the California gay-rights e B

to view a major federal court / hearing last month, C-SPAN, t n

proceeding from afar. a which pioneered live gavel- r u

During the hearing, lawyers o to-gavel coverage of Congress C

traded arcane legal points over d in the 1970s, was one of many r o

whether California should re - f television outlets to request t r

instate a ban on gay marriage, a permission to broadcast the H /

lifted a few months earlier. But s proceeding and the only one e g

what the session lacked in a to broadcast it in its entirety m I

drama, it made up for in im - nationwide. State court judges y t portance. It was not only the t in several states had heard e G first federal gay-rights pro - Dr. William Petit embraces his sister after jurors similar gay-marriage cases ceeding but also one of the sentenced Steven Hayes to death on Nov. 8 for the over the past decade, with few federal court proceedings murders of Petit’s wife and two daughters in a home many of the sessions tele - to be broadcast on television invasion. Cameras were barred from the New Haven, vised or streamed live over nationwide. Conn., courtroom, but reporters were allowed to send the Internet. short electronic messages — “tweets” — summarizing Cameras are now com - trial action. Cameras are now commonplace in The California proceeding monplace in state courts, even state courts, but federal courts have generally marked a pivotal point in the during criminal trials, thanks in opposed them, as has the Supreme Court. national debate over gay rights. part to a 1981 U.S. Supreme A few months earlier, gay-mar - Court ruling that cleared away riage supporters had won a constitutional obstacles. The rules on the federal judiciary’s research arm to federal district court ruling striking down camera access vary from state to state, permit camera coverage of appeals in California’s Proposition 8, a 2008 bal - however, with significant limits on the civil cases. But it did allow the 13 fed - lot measure barring marriage rights to practice in about 14 states and a com - eral appeals courts to permit cameras same-sex couples. Now, the measure’s plete ban in the District of Columbia. in individual cases if the two sides sponsors were seeking reinstatement of (See chart, p. 28. ) 1 agree. Only two — the San Francisco - the ban. Opposing lawyers in the case, Federal courts, however, have gen - based Ninth Circuit, which encom - Perry v. Schwarzenegger , argued the erally stood steadfast against allowing passes nine Western states, and the hotly contested issue of marriage rights either video or still cameras or micro - New York-based Second Circuit, cov - for gays and lesbians in California and phones — sometimes called “extend - ering Connecticut, New York and potentially all across the country. A ed coverage.” The Federal Rules of Vermont — took up the idea. broad ruling either way could set the Criminal Procedure, originally enacted Meanwhile, the Supreme Court stage for a Supreme Court decision by Congress, bar cameras or micro - shows no signs of allowing cameras with national implications. phones in criminal trials or appeals. or live audio coverage of proceedings, With only a few hundred seats The U.S. Judicial Conference, the fed - despite pressure from Congress and available for spectators at the James eral judiciary’s policymaking arm, bars support from the court’s newest jus - R. Browning Courthouse in San Fran - them in civil trials. tice, Elena Kagan. ( See box, p. 29. ) In cisco, however, few gay-marriage sup - In the 1990s, the Judicial Confer - September, the court began making porters or opponents could witness ence rejected a recommendation by audio tapes of all arguments available the arguments firsthand.

www.cqresearcher.com Jan. 14, 2011 27 CAMERAS IN THE COURTROOM

mentary on cases becomes greater,” Two-Thirds of States Permit Cameras says Goldfarb, who also teaches at More than one-third of the states generally permit cameras in the the University of Miami School of Law. courtroom at both trial and appellate levels of criminal and civil “The fear of critics is that you’re only going to get snippets,” he says, “but trials, and another third have rules permitting camera coverage in unless you have TV that’s all you’re many circumstances. The remaining 14 states either do not permit going to get.” or have rules that effectively prevent camera coverage of trials. The Courtroom-camera advocates are push - District of Columbia is the only jurisdiction that prohibits cameras ing, however, against strong, if below- in either trial or appellate courts. Cameras are generally barred in the-surface, resistance that is motivated both civil and criminal federal trials. by judicial inertia and widespread re - vulsion to the most-watched case in the Courtroom Cameras in the States history of television: the 1995 murder trial of football hero-turned-actor O.J. Wash. Mont. N.D. N.H. Simpson. The trial, broadcast in its en - Minn. Vt. Maine tirety by the cable network Court TV S.D. Wis. Ore. (now, truTV), gripped Americans’ atten - Idaho Wyo. Mich. N.Y. Mass. Neb. Iowa tion for nearly a year, from jury selec - Pa. R.I. Nev. Ill. Ind. Ohio Conn. tion in fall 1994 through nine months Utah Colo. Kan. Mo. W.Va. N.J. of testimony in 1995 and the largely Ky. Va. Calif. Del. unanticipated acquittal on Oct. 3, 1995. Okla. Tenn. N.C. Md. Ark. In the aftermath, many critics blamed Ariz. N.M. S.C. D.C. Miss. the length and seeming disorder of Ala. Ga. La. the trial on the blanket coverage not Texas Allow the most coverage only by Court TV, but also by cable Alaska Fla. Restrictions on news channels and commercial broad - some coverage cast networks. “Rather than renew trust Essentially in the nation’s system of justice — and allow appellate Hawaii coverage only in the American media,” New York University scholar Paul Thaler wrote two Source: Radio Television Digital News Association, 2010, www.rtnda.org/pages/ years later, “the Simpson story shattered media_items/cameras-in-the-court-a-state-by-state-guide55.php the credibility of both.” 3 Today, criminal defense lawyers con - In San Francisco, Roberto Isaac eras have helped to educate people tinue to balk at camera coverage of Ordeñana, a spokesman for the San about the legal system and hold the ju - trials unless both the prosecutor and Francisco Lesbian Gay Bisexual Trans - diciary accountable to the public. “There’s defendant agree. “We think that the gender (LGBT) Community Center, told no better way to do reporting than to prosecutor and the defense lawyer are The Associated Press he was pleased use the tools of the trade, including much more likely to know [about the that the hearing had been broadcast cameras and microphones, to allow potential impact of camera coverage] so that “more people have access to somebody to have a virtual seat in the than the judge,” says Barbara Bergman, the reality of countless lesbian, gay, courtroom,” says Kathleen Kirby, general a professor at the University of New bisexual and transgender people and counsel for the Radio Television Digital Mexico Law School representing the their communities.” In San Diego, News Association (RTDNA). * National Association of Criminal De - however, the Rev. Chris Clark, pastor Ronald Goldfarb, a lawyer who has fense Lawyers. “That’s why our recom - of East Clairemont Southern Baptist written about the issue since the 1970s, mendation is that if either the prose - Church, defended the marriage ban as says the need for camera coverage is cutor or the defendant objects, that he watched with other Prop 8 sup - increasing today because of the pro - would end the discussion.” porters. “Gay marriage is a fundamental liferation of online media. “As the num - Camera advocates are continuing to redefinition of marriage,” Clark told the ber of media multiplies, the com - try to liberalize the rules in states with San Diego Union Tribune. 2 restrictions on the practice. Meanwhile, Advocates of media access to court * Formerly the Radio Television News Direc - the federal judiciary is preparing to proceedings contend that courtroom cam - tors Association (RTNDA). explore the possibility of permitting

28 CQ Researcher camera coverage of civil trials. In Sep - tember, the Judicial Conference au - Most Justices Hesitant on Cameras thorized a three-year pilot project per - Chief Justice John G. Roberts Jr. said during his confirmation hear - mitting camera coverage of civil trials ing in September 2005 that he had no “set view” on permitting when the judge and lawyers on both camera coverage of the Supreme Court. Less than a year later, sides agree. No further steps have however, Roberts signaled the court was in no hurry to change the been announced. As camera-access advocates continue no-camera policy. Among other conservative justices, Antonin to press their case, here are some of Scalia, Anthony M. Kennedy and Clarence Thomas have all strongly the major questions being debated: argued against TV coverage, but the court’s newest members — liberals Sonia Sotomayor and Elena Kagan — favored TV coverage Has television coverage of state in their confirmation hearings. courts been a success? The O.J. Simpson trial was not yet Chief Justice John G. Roberts Jr. over before judges, lawyers and even “We’re going to be very careful before we do anything that might some journalists began to turn against have an adverse impact.” the idea of television in the courts. — Ninth Circuit judicial conference, July 13, 2006 “Nothing like the O.J. Simpson case is going to happen in my courtroom,” Justice Antonin Scalia Sonoma County Superior Court Judge “Not a chance, because we don’t want to become entertainment.” Lawrence Antolini declared as he an - — CNBC interview, Oct. 10, 2005 nounced his decision in mid-July 1995 Justice Anthony M. Kennedy to bar camera coverage in another “. . .[T]elevising our proceedings would change our collegial high-profile murder case in California. dynamic. . . .” Don Hewitt, the legendary executive — House Appropriations subcommittee, March 8, 2007 producer of CBS’s “60 Minutes,” com - plained that TV coverage of the Simp - Justice Clarence Thomas “. . . [S]ecurity is on the foremost of all our minds now since 9/11. . . .” son case had turned a murder trial — House Appropriations subcommittee, March 8, 2007 into “an entertainment special.” 4 More than 15 years later, the Simp - Justice Ruth Bader Ginsburg son trial remains Exhibit No. 1 in the “A decision of this issue . . . should be decided after really pretty critics’ case against television in the serious research and study. . . .” courtroom. “What I remember is peo - — American Bar Association panel, Nov. 10, 2005 ple being riveted to that case,” says Justice Stephen G. Breyer Carlos Williams, federal public defender “. . . [A]t the moment, I think it’s quite uncertain what the answer is.” in Mobile, Ala., and a former presi - — Interview, C-SPAN, Dec. 4, 2005 dent of the National Association of Federal Defenders. “What that case Justice Samuel A. Alito Jr. represented was much more than “I will keep an open mind despite the decision I took in the Third what was going on in the courtroom. Circuit [in favor of permitting camera coverage].” There’s an additional factor that enters — Confirmation hearing, Jan. 11, 2006 in when the cameras come in.” Justice Sonia Sotomayor Then and since, supporters of cam - “I have had positive experiences with cameras.” eras in the courtroom have argued — Confirmation hearing, July 14, 2009 that television has been unfairly blamed for the problems in the Simpson case Justice Elena Kagan “I think it would be a great thing for the institution, and more or sensational trials of earlier days. important, I think it would be a great thing for the American people.” “The camera is the antidote to the — Confirmation hearing, June 29, 2010 media circus,” Court TV founder and legal journalist Steven Brill commented while the network was broadcasting Source: C-SPAN, “Cameras in the Court,” www.c-span.org/The-Courts/Cameras-in - The-Court/. the Simpson trial gavel to gavel. 5

www.cqresearcher.com Jan. 14, 2011 29 CAMERAS IN THE COURTROOM

“It was easy to latch on to the cir - vast majority of defendants are guilty. tion before the people and letting cus in the O.J. trial and to place a “Real-life courtrooms are so dramati - them make up their minds,” author large degree of blame on the fact that cally different from the fictional court - Goldfarb says. it was televised,” RTDNA counsel rooms that you see in movies or TV,” Kirby says. “But in my opinion, O.J. he says. “And criminal defense lawyers Should federal courts permit would have been a circus no matter don’t want the public to see that.” television coverage of trials, in - what. It was the failure of the judge Video coverage of state appellate cluding criminal cases? to keep control of the trial participants courts is permitted under some cir - With Zacarias Moussaoui charged and his courtroom that caused the cir - cumstances in every state, even those with conspiracy in the Sept. 11, 2001, cus, not the camera in the court tele - with restrictive policies on cameras at attacks, C-SPAN and Court TV asked U.S. vising the proceeding.” trials. The practice appears to stir little District Judge Leonie Brinkema in Jan - Among the early objections to cam - controversy. uary 2002 to strike down the long- time eras in the courtroom, one has be - In California, for example, state ban on cameras in criminal trials and come all but irrelevant. The bulky TV Supreme Court hearings are routinely allow live, gavel-to-gavel coverage of cameras of the past have given way streamed live on a private, C-SPAN-like the eventual trial of the man some - to small video cameras, unobtrusively cable channel. A spokesman for the state times identified as “the 20th hijacker.” mounted in fixed locations and oper - court system says the effect has been Moussaoui’s lawyer supported the plan, ated remotely. Even with the visual “beneficial” in educating the public. but government prosecutors strongly distractions removed, however, critics “Citizens quickly see for themselves that objected. They warned that witnesses continue to voice concern that the pres - cases are decided on concrete legal is - might fear reprisals if their testimony ence of cameras affects the way sues and not politics,” says Philip Carri - were broadcast. judges, lawyers, litigants, witnesses zosa, a spokesman for the state’s Ad - Brinkema, who sits in Alexandria, and jurors behave. ministrative Office of the Courts and a Va., outside Washington, refused the Criminal defense lawyers have mul - former newspaper reporter. request. In a 13-page opinion, she up - tiple concerns that the University of Coverage of criminal trials, however, held the constitutionality of the ban New Mexico’s Bergman outlined for continues to draw critical comments but said she would deny permission the Senate Judiciary Committee in 2005 not only from judges and some for cameras even if the prohibition when the panel was considering a bill lawyers but also from some media were not on the books. Brinkema cited to permit video coverage of federal watchers. Critics complain that TV out - the risk of witness intimidation as well trials with the judge’s approval. lets’ focus on sensational trials and use as the possibility that Moussaoui Bergman cited fears that TV coverage of dramatic excerpts give viewers a would try to turn a televised trial into of trials could discourage either the misleading picture of the judicial sys - a public spectacle. 8 defendant or witnesses for either the tem. “When you’ve got the cameras in Nine years later, the ban on cam - prosecution or defense from testify - the courtroom, it tends to the dra - eras and microphones in federal crim - ing. She also said that TV coverage matic, the sound bite, the crying wit - inal trials remains on the books, and could pressure jurors to reach a ver - ness and that sort of thing rather than coverage of civil trials is also not per - dict consistent with what they per - the educational aspects of the trial that mitted. But a committee of federal ceive as public sentiment about a you tend to get when you don’t have judges is drawing up plans for a pilot case. Even judges might shape their cameras,” says C. Danielle Vinson, a project of TV coverage of civil trials decisions with an eye to public opin - political science professor at Furman as authorized in September by the ion, Bergman said . 6 University in Greenville, S.C., and co- policymaking U.S. Judicial Conference, Prosecutors in state and local courts author a decade ago of a study of which is led by Chief Justice John G. tend to be more supportive of TV cov - local TV coverage of trials. 7 Roberts Jr. and comprises a district erage. “Overall, it’s a good thing,” says Courtroom-camera advocates dis - court judge and an appellate judge Joshua Marquis, a veteran district at - count the fair-trial concerns raised by from each of the 13 federal circuits. torney in Oregon and longtime board defense lawyers. “To date, there is no The conference acted in September member of the National District At - evidence that [TV coverage] impacted in response to growing interest in tele - torneys Association. “It demystifies the fair trials,” says Kirby. As for the broad - vision coverage among a minority of courtroom.” er criticisms, they argue that TV sim - federal judges. The action also fol - Marquis, a former newspaper re - ply lets the public see what actually lowed a confrontation earlier in 2010 porter, attributes opposition by crimi - goes on in the courtroom, for better between the Supreme Court and the nal defense lawyers to the fact that the or worse. “I’m all for getting informa - Ninth Circuit that thwarted a plan to

30 CQ Researcher permit Internet streaming and later courts. “I understand the concerns,” tion on cameras, according to exec - broadcast of the federal district court Tunheim says. “I also understand the utive director Ronald Woods, a for - trial that led to the lifting of the Cal - opportunity we have to show more mer federal prosecutor in Texas. “There ifornia ban on gay marriage. of the public what goes on in the are pros and cons,” says Woods, now In an unsigned, 5-4 decision split courtroom.” in private practice in Houston. The along conservative-liberal lines, the high Appearing alongside Tunheim, National Association of Federal De - court ruled on Jan. 13 that Judge Vaughn Nancy Gertner, a federal district court fenders also has no formal position, Walker, chief judge of the federal dis - judge in Boston, endorsed the pend - but Williams, the group’s former pres - trict court in San Francisco, had not ing bill, which would have given ident, is wary of the practice. “There followed appropriate procedures in judges discretion to permit camera are certainly dangers that one can adopting a local rule change a week coverage under some limits. Gert - foresee,” he says. earlier to permit the TV coverage. The ner said cameras in the courts could The planned pilot project would conservative justices said they were be “an antidote” to what she de - leave the ban on cameras in criminal not taking a position on camera cov - scribed as “24/7 news coverage of trials in place and allow cameras in erage. Liberal dissenters countered that proceedings and the anti-judge civil cases only in courts where judges video coverage were participating in would have bene - the experiment and only fited the public in cases where both the without adversely plaintiff and defendant affecting the trial. 9 agreed. C-SPAN general The showdown counsel Collins says the helped drive the restrictions mean very Judicial Conference few trials will be open to authorize the to cameras. “I don’t think new pilot project, it’s going to amount to according to Judge much,” he says. John Tunheim, a RTDNA counsel Kirby n i

federal district court l says federal judges have d judge in Minneapo - n resisted cameras in part a S

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lis who headed the i to preserve their h conference’s com - P anonymity. But she also / o mittee on court ad - t believes younger feder - o h ministration and P al judges are more open

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case management A to the idea. “Part of it from 2005 through The accuser in the 1991 rape trial of Kennedy family scion William is generational,” Kirby 2009. Tunheim’s Kennedy Smith testifies in a West Palm Beach courtroom says. “There are a large during live television coverage, her face obscured to committee drew up protect her identity. Smith was later acquitted. number of judges who possible rules for are completely in favor camera coverage if of cameras in the courts.” Congress were to order the courts to tirades one frequently sees in late- Tunheim predicts the pilot project permit the practice. At the same time, night programs.” will help build support for allowing he testified in opposition to camera In separate testimony, the Justice cameras. “As long as we manage this coverage when the House Judiciary Department strongly opposed the carefully, there’s really nothing to be Committee held a hearing on the issue legislation. The testimony, presented afraid of,” Tunheim says. “Many state in September 2007. 10 by then-U.S. Attorney John Richter systems do this successfully, and there’s In his testimony, Tunheim said of Oklahoma, said cameras would no reason we can’t do that too.” camera coverage could encourage wit - “adversely impact” witnesses, victims, nesses to “act more dramatically” and jurors and others while contributing Should the Supreme Court permit also could “produce intimidating effects” little to news coverage. live audio and video coverage? on litigants, witnesses and jurors. Despite the Justice Department’s Retired justice Sandra Day O’ - Today, however, Tunheim says he is stand, the National Association of Connor, the first woman to serve on not opposed to cameras in federal Former U.S. Attorneys has no posi - the Supreme Court, was back in the

www.cqresearcher.com Jan. 14, 2011 31 CAMERAS IN THE COURTROOM

Spectators Line Up Early to View High Court “It was worth it to see first-hand what goes on in the court.”

ike Sacks knows what it takes to watch the Supreme ment for a shower and change of clothes before returning Court in action: warm clothes, water, breakfast bars, around 9 o’clock for the 10 a.m. opening. M a lawn chair — and patience. Out of the 250 seats, the court tries to reserve at least 50 That’s what the former Georgetown law school student for spectators to hear an entire argument, according to Kathy brought with him when he lined up hours before dawn some Arberg, director of the court’s public information office. “It de - two dozen times from January through April 2010 to see and pends on the day,” she says. Many of the people who line up hear oral arguments before the nation’s highest court. early leave if they do not get one of the coveted place hold - Alone among the three branches of the federal government, ers, according to Sacks. But visitors who wait it out can join the Supreme Court is never seen at work on television. And, the “three-minute” line and be ushered in and out of the court - in comparison to the capacious galleries overlooking the Sen - room for a brief look at the court in session. ate and House of Representatives, the Supreme Court’s court - Was the ordeal worth it? “Absolutely,” says Sacks, who gradu - room has limited seating capacity, with no more than 250 seats ated in December and is now studying for the bar exam. “It available to the general public. was worth it to see firsthand what goes on in the court, par - So would-be spectators have to line up early on the Supreme ticularly in a court where cameras are not allowed.” Sacks also Court plaza, across the street from the U.S. Capitol, to see the turned his experience into a blog, “First One at One First,” re - justices in action. Sacks, then in his next-to-last semester at ferring to the Supreme Court’s address: 1 First St., N.E. Georgetown University Law Center, decided to take advantage (http://f11f.wordpress.com/). of his no-morning-classes schedule to try to be first in line for Sacks is similarly definite on the question of allowing cam - each of the argument sessions during the final four months of eras in the Supreme Court. “Absolutely,” he says. He bats down the Supreme Court’s 2009-2010 term. 1 the arguments on the other side one by one. “Lawyers already Typically, that meant showing up between 3 a.m. and 4 a.m., grandstand,” he says. The lawyer who goes too far risks being dressed in what Sacks calls “hobo gear” — thermal underwear, put down — even humiliated — by the justices. jeans, shirts, fleece jacket and hood. He fortified himself with The justices grandstand as well, Sacks says. “They are al - water and breakfast bars and used a lawn chair to try to sleep. ready before a live audience.” The risk of out-of-context sound In the most extreme instance, Sacks set up camp at 5:30 a.m. bites on television is inconsequential, he says. “That’s only a on Monday, March 1, to try to get the first spot for the argu - worry for people who have no faith in the public.” And he ment in a critical gun rights case to be held at 10 a.m. the scoffs at Justice Antonin Scalia’s voiced concern that the court’s next day. Two others had already lined up before him. sessions would be used for “entertainment.” As punishing as the schedule may seem, Sacks was far from “People attend the Supreme Court to watch the Supreme alone in his early-morning vigils. The line begins to build once Court,” he says. “It’s a much better reality show than the reality the subway starts running after 5 o’clock, he says, and is al - shows we currently have on television.” ways 50 deep by 7 a.m. or so. Around then, the court’s po - — Kenneth Jost lice officers begin handing out “place holders,” small cards that guarantee admission for a full, hour-long argument. With place 1 For a first-person account, see Mike Sacks, “By Dawn’s Light,” ABA Journal , holder in hand, Sacks would then dash to his nearby apart - Oct. 1, 2010, www.abajournal.com/magazine/article/by_dawns_light/. courtroom last fall and liked what Moderator Linda Greenhouse quick - Supreme Court face a time-consuming she saw. “It was absolutely incredi - ly noted that the sight was not as ac - process in trying to see the justices in ble,” O’Connor recalled during a cessible as O’Connor suggested. “Not action. Would-be spectators typically line Dec. 13 program at the John F. that many people actually get the chance up hours in advance to claim one of the Kennedy Library in Boston. Three to see” the Supreme Court in action, 250 seats available for the general pub - women on the bench: one on the said Greenhouse, The New York Times ’ lic. At least 50 spectators are allowed to far right, one toward the middle, one former correspondent at the court and stay for an entire, hour-long argument, on the far left. “I just think that the now journalist in residence at Yale Law but others are ushered in for only a few image that Americans overall have School in New Haven, Conn. 11 minutes. ( See sidebar, above. ) of the court has to change a little In fact, except for the working press, Camera-access advocates have bit when they look up there and see members of the Supreme Court bar and been making their case over the past what I saw,” O’Connor said. invited guests, all visitors to the decade in large part by emphasizing

32 CQ Researcher the public’s limited tional element. It is not access to the court - at all clear that it’s a de - room. “There is no sirable element.” reason why in the C-SPAN, supported by 21st century the other media organiza - American people tions, stepped up its re - should not be able quests for TV access to h s i to watch their l the court in advance of u K

democracy in ac - the two cases that re - m tion, and the i solved the Bush v. Gore K / s

Supreme Court e presidential election con - g should not be an a test in 2000. By letter, the m I

exception,” says y late Chief Justice William t t

Nan Aron, presi - e H. Rehnquist responded G /

dent of the liberal P that “a majority” of the F

Alliance for Justice. A justices remained op - The alliance was Brothers Erik and Lyle Menendez confer during their 1993 trial in posed to TV cameras. But California for the shotgun killing of their parents. The brothers were part of a 46-group retried and convicted after the jury deadlocked. The judge the court did take the coalition led by the in the 1996 retrial did not permit TV coverage. then-unprecedented step American Civil Lib - of releasing audio tapes erties Union of arguments in the two (ACLU) that urged the lame-duck a conservative law professor at Case cases immediately after the conclusion Congress last year to pass legislation Western Reserve University in Cleve - of each session. either requiring or calling on the land, agrees, though with some am - The court followed that procedure Supreme Court to permit live TV bivalence. “I understand what they’re in a dozen or so cases over the next coverage. afraid of,” says Adler. “Their fears decade. The new practice, adopted at The pressure from Congress and may be completely overstated, but I the start of the current term in Octo - outside groups has helped prompt understand them.” ber, makes the recordings of all ar - the court to make audio recordings The media organizations and other guments available, but only at the end of arguments available sooner and advocacy groups in favor of camera of the week. “They wanted to get out more widely than in the past. But access discount the fears that cam - of the business of making a case-by- the justices have not allowed camera eras would affect either the justices case decision,” Collins says. coverage of proceedings, whether live or the lawyers. In particular, they say Prospects for congressional legis - or delayed. fears of grandstanding by lawyers will lation may be dim after the defeat The three justices vocally opposed not materialize. “Oral advocates are of Pennsylvania Sen. Arlen Specter, to cameras — Antonin Scalia, Antho - going to get up there and do their the Republican-turned-Democrat who ny M. Kennedy and Clarence Thomas best, and so are the justices,” says sponsored legislation calling for cam - — warn that TV coverage could hurt RTDNA counsel Kirby. era coverage and closely questioned collegiality on the court and endan - C-SPAN counsel Collins says the Supreme Court nominees on the issue ger the justices’ personal security. cable network’s experience with cov - during confirmation hearings. In any Scalia has also complained that TV erage of other appellate courts shows event, it is unclear whether Congress coverage would reduce the Supreme that lawyers do not play to the cam - has the power to require the court Court to “entertainment.” eras, as opponents fear. “They don’t, to let cameras in. Critics and skeptics of TV coverage and it’s very simple why they don’t,” Collins says the court itself will have of the court echo those concerns. “I says Collins. “The only person who’s to change before cameras are allowed. do not see a good case for cameras going to determine the rights of their “I think the court will be televised in the courtroom and think it will in - client are the judges. So they play to eventually, but it will be a result of flict some real costs,” says Edward the judges. They do it respectfully and generational change,” he says. “There Whelan, president of the Ethics and within the rule of law.” have to be enough justices who’ve had Public Policy Center, a conservative Whelan disagrees. “No one behaves broad experience with video in their think tank in Washington, and a for - exactly the same way when a camera lives to be comfortable with it for them mer Scalia law clerk. Jonathan Adler, is on him,” he says. “It adds an addi - to open up”

www.cqresearcher.com Jan. 14, 2011 33 CAMERAS IN THE COURTROOM

Those that drew the greatest attention can Bar Association (ABA) adopted an often involved illicit sex — notably, ethics rule, Canon 35, banning photog - BACKGROUND the alienation-of-affection suit brought raphers or microphones in the court - in 1875 against the prominent preach - room because they detracted from “the er Henry Ward Beecher for an alleged essential dignity” of the proceedings. Trials of Centuries affair with his best friend’s wife. The Nine years later, Congress in 1946 en - six-month trial in a Brooklyn court — acted Federal Rule of Criminal Proce - rials have been public proceed - one of the first to be referred to as dure 53, banning photographic or T ings and occasional media events “the trial of the century” — drew so broadcast coverage of criminal trials in in the United States ever since colo - many would-be spectators that tickets federal courts. nial times. The advent of modern tech - were black-marketed at $5 apiece. The The ABA’s rule — amended in 1952 nology — first the telegraph, then radio jury’s announcement that it could not specifically to encompass television in and television and now the Internet — reach a verdict produced bedlam in the ban — was adopted by many allowed information about courtroom the courtroom. courts, but disregarded by some. An proceedings to be disseminated more The advent of radio and then tele - Oklahoma City case in 1953 was ap - widely and quickly. With each advance, vision in the 20th century allowed the parently the first to be covered by tele - public interest in trials increased, the public truly instantaneous access to vision; two years later, a murder trial rising interest reflecting the sensation - court proceedings beyond the court - in Waco, Texas, was the first murder alism of the case. room. WGN, a Chicago radio station, case to be televised live. In 1956, the In the 20th century, cameras and is credited with the first live court - Colorado Supreme Court approved microphones came to be blamed — room broadcast, the historic trial of camera coverage statewide. fairly or not — for creating a “media high school teacher John Scopes in Despite those moves, a sharp con - circus” atmosphere at some major tri - 1925 for violating a Tennessee ban troversy arose over the media’s con - als. The bar and judiciary responded on teaching evolution. The judge al - duct in the trial of Cleveland physician with a ban on so-called “extended media lowed placement of four microphones Samuel Sheppard in 1954 for the mur - coverage” for several decades . 12 in the courtroom to permit coverage der of his pregnant wife. The court - The unwritten English common law of what came to be called “The Mon - room was filled with reporters and privilege of public trials was adopted key Trial.” Announcer Quinn Ryan pro - photographers, and the judge failed to by the American colonies and given vided occasional explanations of pro - control proceedings. More than a decade constitutional status in the Bill of Rights, ceedings from inside the courtroom later, in 1966, the U.S. Supreme Court which guarantees in the Sixth Amend - or longer commentary from an ad - threw out Sheppard’s conviction, in ment a criminal defendant’s right to a joining room. Sadly for historians, no part because of pretrial publicity and public trial in federal court. recordings were made. 13 also because of the courtroom arrange - Even without mass media, trials Photographers were also gaining ments for the media. The justices cited sometimes attracted great public at - access to courtrooms to supplement in particular the “unprecedented” tention, as Goldfarb recounts in his print coverage of trials. In the most placement of a press table between the book, TV or Not TV. The acquittal of important case, the judge in the 1935 counsel table and jury box . 15 New York City newspaper publisher trial of Bruno Hauptmann for kid - A year earlier, the Supreme Court John Peter Zenger in a celebrated press- napping the infant son of aviator Charles had dealt a broader blow to camera freedom trial in 1735 produced a rau - Lindbergh allowed photographers to access in overturning the swindling con - cous outburst inside the courtroom and take still pictures when the court was viction of Billie Sol Estes, a politically a roar of approval from the crowd not in session. Newsreel cameramen connected Texas financier. Photo, outside on Wall Street. After indepen - were also allowed to station two radio and television coverage of Estes’ dence, the treason trial of former U.S. sound cameras under the same re - 1962 trial had been allowed over his Vice President Aaron Burr in Rich - strictions. The rules were broken, but objection. By a 5-4 vote, the high court mond, Va., in 1807 drew reporters the breaches played no part in the reversed the conviction — as in the from all over the country and throngs confusion that reigned in the court - later Sheppard case largely because of of spectators beyond the courtroom’s room or the chaos outside. 14 pretrial publicity. In the main opinion, capacity to accommodate. After Hauptmann’s conviction, how - however, Justice Tom C. Clark appeared The invention of the telegraph in ever, the trial came to be viewed as a to establish an absolute ban on cam - the 19th century allowed fast, nation - prime example of the adverse effects of era coverage. In a partial concurrence, wide coverage of celebrated trials. publicity. Within two years, the Ameri - Continued on p. 36

34 CQ Researcher Chronology

1966 1995 Before 1950 Supreme Court reverses murder Nation engrossed by extensive live Backlash after Lindbergh kid - conviction of Dr. Samuel Sheppard; coverage of O.J. Simpson murder napping trial leads to ban on blames publicity, courtroom trial; acquittal sparks controversy, cameras in courts. arrangements for press. wide criticism of TV coverage; backlash finds judges less likely to 1925 • grant camera access. Tennessee trial of John Scopes for teaching evolution in a public high 1996 school draws live radio coverage. 1970s-1980s Two federal appeals courts given More states permit cameras in Judicial Conference approval for 1935 courts; Supreme Court gives TV coverage in civil cases. Limited photographic coverage is grudging approval, but federal allowed in Lindbergh kidnapping courts maintain ban. • trial; coverage later blamed for “circus atmosphere.” 1972 U.S. Judicial Conference adopts 2000-Present 1937 policy banning courtroom cameras, Advocates of camera access see American Bar Association (ABA) microphones in civil cases. slow gains in states; Supreme adopts Canon 35 to bar photogra - Court maintains stance against phers, microphones from courtrooms; 1978-1979 cameras in courtroom. expanded in 1952 to include TV. Florida Supreme Court initiates one-year statewide experiment of 2000 1946 camera access to courtroom; makes Supreme Court refuses TV coverage Congress adopts rule to bar photo - rule permanent (April 12, 1979). of Bush/Gore election case but graphic coverage of criminal trials. agrees to same-day release of 1981 audio recordings of arguments; • U.S. Supreme Court, in Florida case, court follows similar practice in a says states can allow coverage of dozen cases over next decade. criminal trials. 1950s-1960s 2005 Some courts allow cameras, but 1982 Chief Justice-designate John G. Supreme Court rulings send ABA revises judicial ethics rules to Roberts Jr., in confirmation hearing, strong signal against practice. allow cameras in courtroom. signals open mind on TV coverage of Supreme Court; backtracks in a 1953 • speech less than a year later. First live television broadcast of a trial, in Oklahoma City. 2010 1990s Televised trials Senate Judiciary Committee ap - 1954 become commonplace; federal proves alternative bills to urge or Dr. Samuel Sheppard is convicted in courts reaffirm ban. require Supreme Court to allow high-profile murder trial in Cleveland. TV cameras; third measure would 1991 allow cameras in federal trials, ap - 1956 U.S. Judicial Conference starts three- peals (April 29). . . . U.S. Judicial Colorado Supreme Court adopts year pilot project for camera cover - Conference approves pilot project rule permitting camera coverage of age in six district and two appeals for video recording of some civil courts with judge’s approval. courts (July 1). . . . Court TV de - cases with approval of judge, par - buts; draws viewers with coverage ties (Sept. 15). . . . Supreme Court 1965 of William Kennedy Smith rape trial. decides to release all audio Supreme Court, reversing conviction recording of arguments by end of of Texas financier Billie Sol Estes, 1994 week but discontinues practice of stops just short of absolute ban of U.S. Judicial Conference ends pilot same-day release in major cases broadcast coverage of criminal trials. project, maintains ban on cameras. (Sept. 28).

www.cqresearcher.com Jan. 14, 2011 35 CAMERAS IN THE COURTROOM

Tweeting and Blogging Get Mixed Reception in Courtrooms “By shutting this down, you’re really shutting down information.”

ameras and microphones were not allowed for the high- ed a policy in late December that bans blogging and tweet - profile triple-murder trial of Steven Hayes in New Haven, ing. The state affiliate of the American Civil Liberties Union has C Conn., last fall. But Superior Judge Jon Blue did allow opposed the ban. 3 reporters free rein to use more recent gadgetry — laptops, By contrast, the English judge in the bail hearing for Wiki Leaks iPads and smartphones — to send out real-time accounts of founder Julian Assange allowed courtroom tweeting during the the case from their courtroom seats. Dec. 14 session. David Allen Green, a media lawyer in Lon - Print and broadcast journalists alike turned to the micro- don, told The Associated Press that the ruling by District Judge blogging service Twitter to update readers and viewers on tes - Howard Riddle was the first to give explicit permission for a timony — and, not incidentally, to increase hits on their web - practice that reporters and others had engaged in surreptitiously sites. Monthly hits for the New Haven Register ’s website were for some time. 4 reported to have increased to 3.5 million during September The policies being adopted here and abroad apply not only from about 3 million the previous month. 1 to reporters but also to spectators and jurors. In Baltimore, Other judges, however, are less hospitable to the newest judges were reportedly concerned that some spectators were medium of instantaneous communication. In Baltimore, Circuit using camera phones to take pictures of witnesses, including Judge Marcella Holland banned all posting to social sites from police informants. Jurors accustomed to Web surfing and sta - the courthouse in January 2010 after attorneys defending Mayor tus updating may need special admonitions against discussing Shelia Dixon on corruption charges complained about tweet - or researching a case until a trial has ended. 5 ing by reporters. Holland’s action helped lead to a statewide Federal judges who have clamped down on tweeting in - policy adopted on Dec. 29 requiring reporters and spectators terpret the practice as falling within the established ban alike to keep all electronic devices “off and inoperable” inside against “broadcasting” in federal courts. Tweeting advocates courtrooms unless the presiding judge has given “express per - decry the attitude. “By shutting this down, you’re really shut - mission” otherwise. 2 ting down information,” Ron Sylvester, a Wichita (Kansas) The tweeting issue has moved to the fore in courtrooms Eagle reporter and regular courtroom tweeter, told the Bal - around the country, both state and federal, as more and more timore Sun last year. 6 people carry and depend on electronic devices that now come Journalists involved in coverage of the Hayes case were simi - with cameras. The federal district court in Rhode Island adopt - larly enthusiastic about tweeting. “It has given us an insight into

Continued from p. 34 allowing television in criminal trials. judges complete discretion whether to Justice John Marshall Harlan declined The Supreme Court’s 1981 decision re - allow cameras. In response to a peti - to go that far. jecting a constitutional challenge to the tion by television stations, however, “The day may come,” Harlan wrote, practice allowed other states to follow the Florida Supreme Court in 1978 au - “when television will have become so suit. A steady stream of trials and ap - thorized a one-year pilot project under commonplace an affair in the daily peals open to TV coverage permitted a rule establishing a presumptive right life of the average person as to dis - the creation of the full-time cable of access for cameras unless a judge sipate all reasonable likelihood that channel Court TV in the 1990s. Even specified reasons for refusing. After its use in courtrooms may disparage as televised trials became routine, surveying judges, lawyers and others, the judicial process.” 16 however, the controversial murder trial the justices unanimously made the rule of former football star O.J. Simpson permanent on April 12, 1979. News hardened opposition to TV coverage organizations had to pool coverage, Trials of Television among many judges and lawyers. with only one still photographer al - The ABA overhauled its judicial lowed and TV cameras placed in elevision became commonplace ethics rules into the Code of Judicial fixed positions. 17 T in courtrooms in the United States Conduct in 1972, preserving the ban Media groups hailed the move, but in the final decades of the 20th cen - on camera coverage as Canon 3A(7). the Florida Bar Association warned the tury. After tentative steps by some states, Nevertheless, a few states, including decision jeopardized defendants’ right Florida tested the prevailing ban on Florida, began testing camera cover - to a fair trial. Among the early trials cameras with a statewide experiment age of trials. Initially, Florida allowed with TV coverage was the murder case

36 CQ Researcher a new way to reach our readers,” An - Hayes was convicted on Oct. 5. Re - drew Julien, a senior editor at The Hart - porters tweeted the news instantly with ford Courant , told The New York Times. the single word, “Guilty.” The jury later The Courant assigned a columnist to sentenced Hayes to death for the killings; tweet from the trial; another reporter a co-defendant is scheduled to go on provided regular coverage for the news - trial this spring.

paper and its website while tweeting f f

a — Kenneth Jost only occasionally. r c S

Hayes was charged with killing three i l 1 family members during a home inva - O See William Glaberson, “A Grisly Murder Trial, /

s in 140-Character Bits,” The New York Times , Oct. 16, sion in Cheshire, Conn., in July 2007. e g 2010, p. A14. Other background also drawn from Two of the victims — Jennifer Hawke- a article. m I Petit, and her daughter, Michaela — 2

y The policy is posted on the Maryland court t t system’s website: “NOTICE: Cell Phones, Other were also raped. (A second daughter, e

G Electronic Devices, and Cameras in Court Facilities,” Hayley, was the other victim.) Con - For the first time in a British courtroom, Dec. 29, 2010, http://mdcourts.gov/reference/cell necticut generally bars cameras in the reporters at a December bail hearing in phonenotice.html. For earlier coverage, see Tricia courtroom except in a pilot project in Bishop, “Tweets Could Be Silenced From Trials London for WikiLeaks founder Julian Statewide,” The Baltimore Sun , Feb. 22, 2010, p. A1. Hartford and specifically bars cameras Assange, above, were permitted to send 3 Katie Mulvaney, “Rule bars courtroom blogging, in sex-offense cases. live electronic updates, or “tweets.” tweeting,” Providence Journal-Bulletin , Jan. 4, 2011, No broadcast outlets sought per - p. 8. mission for cameras or microphones in the trial, which began 4 Jill Lawless, “Judge allows tweeting from Assange court hearing,” The Associat - ed Press, Dec. 15, 2010. in mid-September, but Blue ruled at the start that reporters 5 See Nora Sydow, “ ‘Can You Hear Me Now?,’ ” The Court Manager , Vol. 25, could use electronic devices unless the practice became dis - No. 2 (summer 2010), pp. 45-51. The magazine is published by the Nation - ruptive. The reporters took advantage of the decision to pro - al Center for State Courts, which also has a resource guide on the issue post - ed on its website: www.ncsc.org/topics/media-relations/social-media-and -the- vide short, descriptive summaries — tweets are limited to 140 courts/resource-guide.aspx. characters — as testimony proceeded. 6 Quoted in Bishop, op. cit.

against serial killer Ted Bundy, con - and find funding for a full-time cable The U.S. Judicial Conference, mean - victed and sentenced to death in 1979 channel to broadcast court proceed - while, decided in 1994 to stick with its for killing two female college students. ings gavel to gavel. 19 Court TV de - general ban on cameras in federal trial Bundy blamed media coverage for the buted in July 1991 and drew nation - or appellate courts despite a three-year conviction, but his appeals failed. al attention with coverage later that experiment pronounced successful by In 1980, the U.S. Supreme Court year of the Florida trial (and eventu - the federal judiciary’s research arm. 20 decided to confront the TV-coverage al acquittal) of Kennedy family scion The pilot project, authorized in 1990 issue squarely in an appeal by two Miami William Kennedy Smith for rape. under pressure from Congress, began in police officers convicted of burglarizing Coverage of other sensational cases 1991 with coverage of civil trials in six a well-known restaurant. In a unani - drew more attention, notably the 1993 district courts and appeals in the Second mous ruling on Jan. 26, 1981, the jus - trial in California of Erik and Lyle and Ninth federal circuits. In a detailed tices found no constitutional bar to a Menendez for the shotgun killings of report, researchers for the Federal Judi - state permitting TV coverage of crim - their parents. (The jury deadlocked cial Center found that participating inal trials. One year later, the ABA after the brothers blamed the killings judges generally moved from neutrality amended its camera ban to permit TV on a history of sexual abuse by both to support for cameras. Even so, the Ju - coverage of trials under supervision of parents; they were retried and con - dicial Conference decided in September the state’s highest court. 18 victed.) Brill responded to sniping about 1994 by a 2-to-1 margin to end the ex - As more and more states permitted sensationalism by insisting that the net - periment and preserve the ban except TV coverage in the 1980s, Brill, the work also covered trials and appeals to allow federal courts of appeals to per - legal journalist, was inspired to plan with fewer lurid aspects. mit TV coverage if they wanted.

www.cqresearcher.com Jan. 14, 2011 37 CAMERAS IN THE COURTROOM

The Simpson trial began the next judges in California and elsewhere be - September 2010 discontinued the se - week with jury selection supervised came less disposed to agree to cam - lective same-day releases in favor of by Los Angeles County Superior Judge era access. In a notable example, the releasing all audio tapes but only at Lance Ito. Despite seven years on the judge in the Menendez brothers’ re - week’s end. 23 bench and a previous high-profile trial in 1996 refused permission for TV Media groups claimed a break - trial, Ito came to be widely seen as coverage; they were convicted. through in 2001 when supreme having lost control of the case from courts in Mississippi and South Dako - the outset. Impaneling a jury took ta — the last two states with no cam - nearly a month (October/November Trials of Patience era coverage at all — decided to 1994); the trial got under way on allow cameras for their arguments. Ef - Jan . 24, 1995; testimony began on amera advocates have made fit - forts at camera access continued over Jan. 26, and continued, often tedious - C ful gains in state courts since the the rest of the decade, but with half ly, for nearly nine months. Court TV late 1990s, but Court TV’s transition steps forward interspersed with set - covered the trial gavel to gavel; CNN to a part-time entertainment channel backs. In a major defeat for broad - covered major portions live and the sharply reduced the visibility of trial casters, New York’s Court of Appeals, broadcast networks the state’s highest court, followed suit. Simp - in June 2005 unani - son’s acquittal on mously upheld a leg - Oct. 3, after only islatively imposed ban four hours of de - on audio-video cover - liberation, was age of trials. New York broadcast live, to had reinstated the ban widespread disbe - in 1997 after a decade lief among white of permitting TV cov - Americans and gen - erage at the trial level. eral approval from Even in states that per - l black Americans. o mitted TV coverage, o P

Across racial lines, / judges sometimes re - s e however, TV cover - g jected broadcasters’ re - a m

age of the Simpson I quest for access in high-

y t

trial was blamed for t profile cases. e what was widely G In the meantime, / P seen as a judicial fi - F editorial disagreements A asco of the first mag - Football hero-turned-actor O.J. Simpson confers with his defense and financial problems nitude. “Law and “dream team” — Barry Scheck, Johnny Cochran and Robert Shapiro — at Court TV were re - justice,” New York during his 1995 murder trial in California. Many critics blamed the ducing cable TV cov - University law pro - length and seeming disorder of the proceedings on blanket coverage by erage of court pro - fessor Thaler wrote Court TV and other broadcast outlets. “Rather than renew ceedings. In 1998, Court trust in the nation’s system of justice — and in the American media — later, were turned the Simpson story shattered the credibility of both,” TV’s audience was the into “entertainment wrote New York University scholar Paul Thaler. smallest of 38 cable and spectacle.” 21 channels rated, accord - Media-access advocates argued in coverage. Meanwhile, Congress con - ing to an account of the network’s vain that the television cameras had sidered but did not enact bills to open transformation by Kent State Univer - simply shown the trial as it was ac - federal courts to cameras or either sity sociologist Hedieh Nasheri. Brill tually occurring. Likewise, a former permit or require the Supreme Court had sold his stake in 1997 amid dis - Los Angeles district attorney, Ira Rein - to allow TV coverage of oral argu - agreements with his financial part - er, argued that any adverse effects on ments. The Supreme Court took a half ners: cable giant TCI, NBC and Time high-profile trials come from “over - step toward increased access with the Warner. whelming media coverage,” not “the practice of same-day release of audio When the dust settled, NBC had live, unobtrusive camera.” 22 recordings of arguments in major cases. been bought out and Time Warner Pro-access arguments and distinc - But the justices maintained the ban was in control. New TV-oriented ex - tions, however, gained little traction as on cameras in the courtroom and in ecutives overhauled the nighttime

38 CQ Researcher schedule to focus on the criminal justice system with both informational and entertainment programming. Ac - tual court coverage shrank further in 2008 when the network was rebranded as truTV (“not reality, actuality”). Since then, the TV show “In Session” has presented trial coverage only six hours a day. With access battles ongoing in the states, attention shifted to the U.S. Supreme Court in 2000 thanks to a court proceeding as significant as it was unexpected: the Bush/Gore elec - tion contest. Even as the Florida Supreme Court’s proceedings were being broadcast, C-SPAN in Wash - ington was asking the U.S. justices to o t

permit television coverage of the even - o h P tual appeal. Chief Justice Rehnquist’s P letter rejecting the request hinted at A disagreements on the issue by say - ing that “a majority” of the justices had decided to stick with the exist - ing ban on cameras. Still, the deci - sion to release audio tapes immedi - ately after arguments concluded brought the proceedings to millions of Americans, the vast majority of whom had probably never heard what happens inside the Supreme Court’s e v i h

majestic courtroom. c r A

Over the next decade, Congress kept n o up pressure on the issue by repeat - t l u

edly considering separate bills to open H / s lower federal courts and the Supreme e g Court to cameras. Three times — in a m I

2006, 2008 and 2010 — the Senate Ju - y t t diciary Committee approved bills on e G the issue, but none of the measures Trials of the Century reached the Senate floor. In the latest action, the committee last April 29 In the early 20th century, radio, newsreels and other emerging technology gave 13-6 approval to three bills: one gave the public instant access to courtrooms. The 1925 “Monkey Trial” permitting cameras in civil trials in fed - of high school teacher John Scopes for violating a Tennessee ban on eral courts and separate measures ei - teaching evolution was broadcast live by Chicago station WGN (top). ther requiring or calling on the Supreme Scopes was prosecuted by famed attorney and politician William Court to allow cameras. Two Democrats Jennings Bryan, in white shirt with rolled-up sleeves, sitting behind a and four Republicans voted against the radio microphone. The equally famous Clarence Darrow defended Scopes. lower court bill; a mostly overlapping Bruno Hauptmann (bottom) testifies during his trial for kidnapping group of one Democrat and five Re - and murdering the infant son of aviator Charles Lindbergh. The judge publicans voted against the Supreme allowed photographs when the court was not in session, but photographers broke the rules and snapped photos during the trial. Court measures. 24

www.cqresearcher.com Jan. 14, 2011 39 CAMERAS IN THE COURTROOM

The Supreme Court, meanwhile, was way in opening up courts in states after the state’s legislature repealed following the Bush v. Gore precedent with rules that either prohibit or ef - the existing ban on trial coverage. A by selectively approving same-day re - fectively prevent audio or video cov - majority of the committee recom - lease of audio recordings of arguments erage of trials. mended allowing camera coverage but in major cases. Among the cases ap - More than one-third of states gen - only with the approval of the judge proved were arguments in major affir - erally permit camera access in trial and and the consent of the parties; a mi - mative action and campaign finance appellate courts, according to the nority favored leaving camera cover - cases in 2003 and a trio of 2004 cases RTDNA, the broadcast news group. A age solely up to the judge. 28 on post-9/11 detention policies. After second group of states imposes re - The court held a hearing on the pro - Roberts became chief justice in Sep - strictions that still allow camera cov - posals in October but has not given a tember 2005, the court continued to erage in many cases. timetable for a decision. John Petersen, approve requests for same-day release Fourteen other states, however, ei - news director at KOTA-TV in Rapid in some cases, but as C-SPAN made ther prohibit cameras in trial courts City and author of the more liberal more requests the justices began to re - altogether or impose conditions — proposal, says the majority’s plan ject most of them. Then late last Sep - most commonly, requiring consent of would effectively prevent camera cov - tember the court announced the new the parties — that effectively prevent erage altogether. But David Gienapp, policy of making all audio tapes avail - camera coverage, according to the a judge in Madison, S.D., who wrote able by the end of the week. Unmen - RTDNA. Pleas from media groups to the majority’s recommendation, says he tioned in the court’s press release — change those rules are yielding only does not expect many requests for but confirmed by court officials — was limited results. camera coverage whichever proposal the decision to do away with same-day “Where it’s already been allowed, is adopted. release altogether. 25 they’re continuing to allow it,” says Indiana’s supreme court is also con - The Judicial Conference’s action Gregg Leslie, legal defense director for sidering a request by news media to authorizing a new pilot project for the Reporters Committee for Freedom ease an existing ban on cameras in civil trials in federal courts two of the Press. “Where they haven’t, they’re trial courts. The state had a pilot pro - weeks earlier similarly amounted to not changing the policy. There’s not ject several years ago permitting cam - a step forward for camera-access ad - much good news that we’re aware of era coverage with the parties’ consent, vocates, but with significant limits. in the states.” but it was not extended. The Indiana The Sept. 14 press release stated that The new century began with a Broadcasters Association and Hoosier proceedings would be recorded by breakthrough when state supreme State Press Association submitted a re - “participating courts,” not by “other courts in Mississippi and South Dako - quest in November 2009 for a new entities or persons” — such as news ta, the last two states with total test in four courts around the state organizations. Recording would also bans, both opened their own court - with only the judge’s approval re - require consent of parties to the case. rooms to cameras in 2000. The ac - quired for cameras. The proposal is The release stated that participating tions left the District of Columbia “under heavy consideration,” according courts would have to amend their as the only non-territory jurisdiction to Daniel Byron, an Indianapolis lawyer local rules before taking part in the to completely bar cameras in trial who serves as the broadcasters’ gen - project. No timetable was given for or appellate courts. 27 eral counsel. the start of the project. 26 Mississippi adopted a rule three The Nebraska Supreme Court, years later generally permitting meanwhile, is watching for the re - cameras except in family court-type sults of the second of two pilot pro - cases. Mississippi also prohibits jects of camera coverage pushed by CURRENT photographing jurors and some wit - the Nebraska Broadcasters Associa - nesses, such as police informants. tion. A year-long project in 2008 “We’ve covered hundreds of cases” covered two counties in the Omaha SITUATION since the rule was adopted, says area; the second project, which began Dennis Smith, news director of in June 2009, covered three others. WLBT-TV in Jackson. But judges in Omaha (Douglas Coun - Slow Going in States In South Dakota, the supreme ty) have refused to participate, ac - court is considering alternate recom - cording to Martin Riemenschneider, dvocates of camera access appear mendations from a committee ap - the association’s executive director. A to be making only limited head - pointed to study the camera issue Continued on p. 42

40 CQ Researcher At Issue:

Shoyes uld Supreme Court proceedings be televised?

KATHLEEN A. KIRBY EDWARD WHELAN COUNSEL , R ADIO TELEVISION DIGITAL PRESIDENT , E THICS AND PUBLIC POLICY NEWS ASSOCIATION CENTER ; CONTRIBUTOR , NATIONAL REVIEW ONLINE ’S BENCH MEMOS BLOG ON WRITTEN FOR CQ RESEARCHER , JANUARY 2011 JUDICIAL ISSUES WRITTEN FOR CQ RESEARCHER , JANUARY 2011 t is time to let the people see what goes on in the peo - ple’s courtrooms. Last month, the Ninth U.S. Court of Ap - here is very little to be gained — and much at risk of peals allowed cameras to witness debate over a con - being lost — from televising Supreme Court proceedings. i Largely thanks to the Internet, those interested in follow - tentious social matter: whether banning same-sex marriage is t unconstitutional. No parade of horribles. No lurid sensationalism. ing the Supreme Court live in a Golden Age that is dramati - Just orderly proceedings, principled and civil debate, thoughtful cally different from even a decade ago. Supreme Court opin - participants, nonpartisan inquiries. Viewers came away with a ions — by far the most important material for studying the better comprehension of the constitutional questions presented. court — are posted online as soon as they are announced. Broad public access undoubtedly will enhance acceptance Briefs, the best resources for learning about pending cases, are of the court’s eventual decision about a controversial issue. also widely available online, including on the Supreme Court’s The successful outcome was proof positive that camera cover - website. And instead of relying on generalist Supreme Court age is overdue. reporters, members of the public can consult a broad range of The U.S. Supreme Court is the ultimate arbiter of questions expert analysis and commentary on the Internet. that shape our nation, yet it rejects transparency. Supreme Court Oral arguments at the court attract a degree of attention that nominees arey widely seen ien televised cos ngressional hearings, but dwarfs their actnual importance. Buo t here too, anyone eager to they disappear from public view once sworn in, without sound read the tea leaves of oral argument now has ample opportunity reason. The primary argument made by opponents of televised to do so. The court makes argument transcripts available online trials — depriving defendants of a fair trial by intimidating wit - on the very day of argument — typically within 90 minutes — nesses and jurors — has no application in the Supreme Court. and posts audio recordings of arguments at the end of each Vague assertions about the court’s authority and dignity are easily week. It is difficult to see how televising oral arguments would dispelled. The judges hearing the Prop. 8 case, whom many sug - add much to the abundant stock of available information. gested would not rise above politics, likely gained the esteem of By contrast, the potential downside of televising Supreme those who witnessed how well they acquitted themselves. Court proceedings is substantial. The culture of the court is, Empirical evidence undermines assumptions that televising for good reason, predominantly textual. The overwhelming proceedings changes the behavior of participants or the nature majority of the justices’ work consists of reading and writing, of the arguments. And the fear that television audiences may with reasoned deliberation among the justices about the be misled by “sound bite” coverage is no reason the Supreme meaning of legal texts. Court should claim exemption from the kind of public scrutiny Because of the emotional power of images, cameras, far applicable to the president and Congress. more than microphones, transform the behavior of those who A courtroom is a public forum where citizens have the know they are being recorded. In some contexts, that transfor - right to be present, and where their presence historically has mation will be for the better. But the likely consequences for been thought to enhance the integrity and quality of what the Supreme Court would be sharply negative — and far takes place. As the Supreme Court has stated, people in an more so than for any other appellate court, given the open society do not demand infallibility from their institutions, Supreme Court’s much higher profile. but it is difficult for them to accept what they are prohibited In particular, cameras at oral argument and at sessions in from observing. Audiovisual coverage, which allows for direct which rulings are announced would encourage and reward politi - observation of the demeanor, tone, credibility, contentiousness, cal grandstanding by the justices (as well as by counsel and pro - and perhaps even the competency and veracity of the partici - testers in the courtroom). Whether or not the justices actually pants, is the best means through which to advance the public’s succumbed to the temptation to play to the national viewing au - understanding of how justice is carried out. dience — and what reason is there to think that, sooner or later, The courtroom camera not only gets the story right, it opens they wouldn’t? — their colleagues would often suspect they had. a limited space to a broader audience. Its presence in many The court would become more politicized, and the resulting state courtrooms, and now in the United Kingdom’s Supreme resentment and distrust among the justices would disserve the Court, is routine and well-accepted. Justices, it is time to let ideal of reasoned deliberation — an ideal, to be sure, that is often not realized but that is at least still professed and pursued. the suno shine in. www.cqresearcher.com Jan. 14, 2011 41 CAMERAS IN THE COURTROOM

Continued from p. 40 Unlike the statutory ban on cam - “It’s been a long, slow, arduous U.S. Pilot Plan Awaited eras in federal criminal trials, the ban process,” Riemenschneider says, “but on cameras in civil trials is embodied little by little we’ve made headway.” he federal court system is work - in a policy adopted by the Judicial Camera-access proposals have been T ing slowly on a plan for a limit - Conference in 1972 and reaffirmed at pushed in many other states with re - ed test of cameras in civil trials that the end of the earlier pilot project in strictive policies but without success. some media advocates fear will under - 1994. When the conference allowed In Illinois, the newly reconstituted mine efforts to get Congress to pass individual circuit courts of appeals to supreme court stuck with the existing legislation on the issue. permit cameras in civil cases in 1996, ban in 2005 despite a plea from the The Judicial Conference commit - it also urged each circuit to “abrogate” state’s broadcasters. The new chief jus - tee charged with getting the pilot — or eliminate — any local rules per - tice, Robert Thomas, told The Associ - project under way began discussing mitting cameras in civil trials. ated Press at the time that there was the plan at its regularly scheduled, Judges who have tested the ban on “no sentiment for change.” Minneso - semiannual meeting in Washington cameras in civil cases in recent years ta’s supreme court similarly refused a on Dec. 8-9. A week later, Julie have had their wrists slapped by high - plea by broadcasters in 2007 to ease Robinson, a federal district court er courts. In April 2009, the First U.S. its rule requiring consent of the par - judge in Wichita, Kan., who chairs Circuit Court of Appeals ruled that ties for cameras. the conference’s Committee on Court Judge Gertner, the longtime proponent Leslie of the Reporters Commit - Administration and Case Manage - of cameras in federal courts, had over - tee for Freedom of the Press notes ment, sent word through an aide stepped her authority in permitting In - that New York state allowed cam - that there was “nothing to discuss ternet streaming of the trial of a major era coverage of trials in a succes - at this time.” digital-music piracy case. Gertner had sion of pilot projects extending Tunheim, the former chair of the planned to allow the trial to be streamed through the 1990s. Camera-access committee, says he expects that 30 live to a Harvard University center that advocates point to the TV coverage to 50 district judges out of the total would then have streamed it on the of the 2000 trial of four New York 677 may agree to participate in the World Wide Web. 31 City police officers for the killing of project. Local rules will have to be Judge Walker’s plan in late 2009 to an unarmed African immigrant as changed to allow the test, and the permit Internet streaming of the helping to defuse tensions after the necessary equipment obtained and Proposition 8 gay-marriage case in officers’ acquittal. Even so, the New tested. The plan specifies that audio California drew a pointed rebuke from York legislature has left the camera and video recording equipment is to the Supreme Court. The majority in ban on the books after the last of be operated by court personnel, not the 5-4 ruling said that Walker “at - the pilot projects lapsed and New the news media. tempted to revise [the court’s] rules in York’s highest court in 2005 upheld As approved by the conference in haste, contrary to federal statutes and the ban as constitutional. 29 September, the plan allows coverage the policy of the Judicial Conference In Maryland, a committee of the in civil cases only, and only with the of the United States.” 32 state’s judicial conference in February approval of the judge and the con - In a third incident, U.S. District Judge 2008 rejected calls to allow extended sent of all parties. The project is Joe Billy McDade in Champaign, Ill., media coverage of criminal and other scheduled to last three years, with publicly apologized in October 2009 trials. “[T]he putative benefits of elec - annual reports on the test from the for having allowed news organizations tronic media coverage are illusory,” the Federal Judicial Center, the judicia - to bring video and still cameras and committee concluded, “while the ad - ry’s research arm. microphones into a hearing in a local verse impacts on the criminal-justice Leslie, with the Reporters Com - schools case. McDade, apologizing after process are real.” 30 mittee, notes that the federal courts the chief judge of the federal appeals Even in states where only the refused to ease the ban on cameras court in Chicago had dismissed a mis - judge’s approval is required, requests in September 1994 despite the cen - conduct complaint against him, said to allow cameras are sometimes ter’s favorable evaluation of a three- he “erroneously” thought he had au - turned down. “It’s kind of hit or year pilot project. “We’re back at the thority to waive the general ban on miss,” says RTDNA counsel Kirby. But, stage where we’re doing another ex - cameras. 33 she adds, “The vibe I’m getting from periment,” he complains. “While it’s With a new Congress just getting people in state courts is that they’re a step forward, it’s a very slow, frus - under way, camera-access advocates are more open.” trating process.” awaiting developments before deciding

42 CQ Researcher how and when to push for pro-camera against cameras. “The day you see a legislation for lower federal courts or camera come into our courtroom, it’s the Supreme Court. Republican gains in OUTLOOK going to roll over my dead body,” Jus - the midterm elections combined with tice David H. Souter famously told a the defeat of a major supporter of congressional committee in 1996. Now Supreme Court cameras to create what Two-Edged Sword? retired, Souter reaffirmed that stance appears to be a less favorable climate in the Kennedy Library program in for media groups. he oft-quoted admonition against December when moderator Green - Sen. Specter went down to defeat T watching sausage factories — or house made a passing reference to C- in Pennsylvania’s Democratic primary legislatures — in operation may apply SPAN’s “fight” to gain camera access. in May 2010, less than a year after as well to the judicial system, at least “That’s a fight I hope C-SPAN will having switched parties in anticipation according to one professor and long - lose,” Souter said. 36 of a loss in the GOP contest. Specter time media watcher. For now, the Supreme Court is in - had been the principal sponsor of Writing several years before the O.J. deed keeping cameras out and de - Supreme Court camera bills for sev - Simpson case, Robert Hariman ob - laying any access to taped audio ar - eral years. served that the public attention to guments until week’s end. But the Specter made the case for cam - what he called “popular trials” often justices cannot stop the instantaneous eras in the Supreme Court one more results in diminished public confi - news and comment about their cases time in his Senate farewell speech dence in the outcome. “The more a on full-time cable news channels, in - on Dec. 21, pointing to polls that trial appears to be a scene or prod - stantly updated newspaper websites show a substantial majority of Amer - uct of public controversy and rhetor - and the expanding number of blogs icans favor televising the high court. ical artistry,” Hariman wrote in an in - by commentators representing every Senate Majority Leader Dick Durbin, troduction to a compilation of essays ideological stripe. D-Ill., responded by vowing to on popular trials, “the less legitimate For lawyer-author Goldfarb, the “carry that banner” after Specter’s it appears.” 35 age of round-the-clock media under - departure. 34 Today, Hariman, now chair of the scores the need for camera access at Both of the major Senate sponsors Department of Communication Stud - the Supreme Court. And he believes of bills on lower federal courts — ies at Northwestern University in the justices stand to gain, not lose, in Iowa Republican Charles Grassley and Evanston, Ill., stands by that downbeat public esteem. “In the election case,” New York Democrat Charles Schumer assessment of the effect of close-up Goldfarb says, recalling the Bush v. — remain in office. But Republicans viewing of the legal system. But he Gore contest, “the more we knew, the will gain seats on the Senate Judicia - also favors increased visibility for the better informed we were, whatever ry Committee in the new Congress, courts, including access for cameras in our opinion.” and GOP senators have provided most many cases and in particular in the For now, however, the Supreme of the votes against the pro-camera Supreme Court. Court is ready to police not only its bills in the past. In the House, the Ju - The media are “fundamentally im - own courtroom but lower federal courts diciary Committee has a new GOP portant to a democratic society,” Hari - as well. The justices’ intervention in chairman, Rep. Lamar Smith of Texas. man says. But we are also “profoundly the gay-marriage case in California The House panel has never reported anxious” and “fundamentally ambivalent” blocked public access to the trial, al - legislation on the issue. about media coverage, he says, because though gay-rights groups tried to get Apart from partisan changes, the of the potential for demagoguery or around the camera ban by a Web- Reporters Committee’s Leslie fears that other “destructive consequences.” posted reenactment. the planned pilot project, along with Even so, “I come down on the side The appeal has now been delayed a spate of television interviews by pre - of transparency,” Hariman continues. as the Ninth Circuit panel asks the viously camera-shy Supreme Court jus - “I don’t think the American legal sys - California Supreme Court for a ruling tices, will weaken the push for legisla - tem benefits from secrecy,” he says. on whether state law gives the spon - tion. “We’re not exactly thinking that Any immediate drop in public confi - sors of the anti-gay marriage initiative that’s on the brink of being passed dence after a highly publicized case standing to defend the measure if state any time soon,” he says, “especially “is likely to lead to greater confidence officials refuse. Whatever happens in with the Supreme Court and the Ju - in the long run.” the Ninth Circuit, it is all but certain dicial Conference basically trying to Many judges, especially in the fed - that any eventual appeal to the Supreme undermine it.” eral system, continue to be dead-set Court will not be televised.

www.cqresearcher.com Jan. 14, 2011 43 CAMERAS IN THE COURTROOM

Some federal civil trials may be tele - 3 Paul Thaler, The Spectacle: Media and the 11 An excerpt from the Dec. 13, 2010, pro - vised as early as this year, according Making of the O.J. Simpson Story (1997), p. 304. gram, “A Conversation With Justices Sandra Day to Judge Tunheim’s estimate of the 4 See Jill Smolowe, “TV Cameras on Trial,” O’Connor and David Souter,” was posted on likely timetable. But one reason for Time , July 24, 1995, www.time.com/time/print You Tube: www.youtube.com/watch?v=e4D9 the three-year time period for the pilot out/0,8816,983209,00.html . Antolini’s comment RTCOD9E . 12 project, Tunheim explains, is the need came in preparation for the 1996 trial of Historical background drawn from Gold - Richard Allen Davis for the murder of Polly farb, op. cit. See also Hedieh Nasheri, Crime for enough camera-covered trials to Klaas, a 12-year-old girl kidnapped from her and Justice in the Age of Court TV (2002). evaluate the experience. Camera-access Petaluma, Calif., home in October 1993 and 13 See “WGN Radio Broadcasts the Trial,” advocates such as C-SPAN’s Collins re - later found strangled. Davis was convicted “Monkey Trial, American Experience,” 2002, main unenthusiastic about the restric - and sentenced to death; his appeal is pend - www. pbs.org/wgbh/amex/monkeytrial/people tions the Judicial Conference imposed ing before the California Supreme Court. events/ e_wgn.html . in authorizing the test. 5 See ibid. (Brill); Ira Reiner, “Cameras Keep 14 See Susanna Barber, News Cameras in the The outlook in the states is only Justice System in Focus,” National Law Jour - Courtroom: A Free Press-Fair Trial Debate slightly more hopeful for groups try - nal , Oct. 23, 1995, p. A23, cited in Ronald L. (1989), pp. 3-7. The newsreel cameras ran ing to open courtroom doors to cam - Goldfarb, TV or Not TV? Television, Justice, and in violation of the rules for several days, so eras. By now, courts in every state the Courts (1998), p. 180. unobtrusively that the judge learned of the 6 have considered the issue — some of See U.S. Senate, Committee on the Judiciary, breach only after footage was aired. Barber “Cameras in the Courtroom,” Nov. 9, 2005, S. says the only violation by a still photogra - them, repeatedly — and have decid - Hrg. 109-331, http://frwebgate.access.gpo. pher came when the jury announced its ver - ed which way to go. As with the fed - gov/cgi-bin/getdoc.cgi?dbname=109_senate_ dict, but an archived photo shows Haupt - eral judiciary, any change in policy hearings&docid=f:26506.pdf . mann in the witness chair. may be — as RTDNA counsel Kirby 7 See C. Danielle Vinson and John S. Ertter, 15 The decision is Sheppard v. Maxwell , 384 put it — “generational.” “Entertainment or Education: How Do Media U.S. 333 (1966). The vote in the case was 8-1; Cover the Courts?,” Harvard International Justice Hugo L. Black dissented without opinion. Journal of Press/Politics , Vol. 7 (2002), pp. 80 16 The decision is Estes v. Texas , 381 U.S. 532 et seq., http://hij.sagepub.com/content/7/4/ (1965). The dissenting justices disapproved Notes 80.full.pdf+html . of televising trials but found no grounds for 8 See Brooke A. Masters and Patricia Davis, reversing the conviction. 17 1 For previous coverage, see Charles S. Clark, “Judge Rejects TV Trial for Terror Suspect,” The decision is In re Petition of Post- “Courts and the Media,” CQ Researcher , Sept. 23, The Washington Post , Jan. 19, 2002, p. B1. Newsweek Stations , 370 So.2d 764 (Fla. 1979). 9 1994, pp. 817-840; Elder Witt, “Television in the The case is Hollingsworth v. Perry , 558 For coverage, see Thomas E. Slaughter, (no Courtroom,” Editorial Research Reports , Jan. 16, U.S. --- (Jan. 13, 2010), www.supremecourt. headline available), The Associated Press, 1981, pp. 17-36; Martin Packman, “Cameras in gov/opinions/09pdf/09A648.pdf . For cover - April 13, 1979. 18 Courts,” Editorial Research Reports , March 7, age, see Robert Barnes, “Justices bar broad - The Supreme Court decision is Chandler 1956, pp. 157-176. cast of Prop 8 trial,” The Washington Post , v. Florida , 449 U.S. 560 (1981). 19 2 Ordeñana quoted in Paul Elias and Lisa Leff, Jan. 14, 2010, p. A3. For detailed accounts of Court TV’s history, 10 “Televised gay marriage hearing attracts audi - U.S. House of Representatives, Committee see Goldfarb, op. cit. , pp. 124-153; Nasheri, ence,” The Associated Press, Dec. 7, 2010; Clark on the Judiciary, “Sunshine in the Courtroom op. cit. , pp. 31-50. 20 quoted in Matthew T. Hall, Steve Schmidt, and Act of 2007,” Serial No. 110-160, Sept. 27, See Molly Treadway Johnson and Carol Greg Moran, “Prop. 8 Arguments Closely Watched,” 2007, http://federalevidence.com/downloads/ Krafka, “Electronic Media Coverage of Fed - San Diego Union Tribune , Dec. 7, 2010, p. A1. blog/2010/Sunshine.in.the.Courtroom.Act.pdf . eral Civil Proceedings: An Evaluation of the Pilot Program in Six District Courts and Two Courts of Appeals,” Federal Judicial Center, About the Author 1994, www.fjc.gov/public/pdf.nsf/lookup/elec mediacov.pdf/$file/elecmediacov.pdf . For cov - Associate Editor Kenneth Jost graduated from Harvard erage, see Linda Greenhouse, “U.S. Judges College and Georgetown University Law Center. He is the Vote Down TV in Courts,” The New York Times , author of the Supreme Court Yearbook and editor of The Sept. 21, 1994, p. A18. The story quotes a Supreme Court from A to Z (both CQ Press ). He was a mem - spokesman as describing the margin of the vote in the closed-door session. ber of the CQ Researcher team that won the American Bar 21 Paul Thaler, “The O.J. Simpson Case,” in Association’s 2002 Silver Gavel Award. His previous reports Lloyd Chiasson Jr. (ed.), The Press on Trial: include “Government Secrecy” and “Free-Press Disputes.” Crimes and Trials as Media Events (1997), He is also author of the blog Jost on Justice (http://joston pp. 200-201. Thaler is a professor at New justice.blogspot.com). York University’s Gallatin School of Individ - ualized Study.

44 CQ Researcher 22 Reiner, op. cit. 23 Coverage drawn in part from a keyword search (“cameras,” “courts”) of the website of FOR MORE INFORMATION the Reporters Committee for Freedom of the American Bar Association , 321 N. Clark St., Chicago, IL 60654 ; (312) 988-5000 ; Press, for the period 2000-2010, www.rcfp. www.abanet.org . Establishes ethical codes for the legal profession. org/search.php . 24 The bills were S. 657 (lower courts), S. 446 American Civil Liberties Union , 125 Broad St., 18th Floor, New York, NY 10004 ; and S. Res. 339 (Supreme Court). Democrat (212) 549-2500 ; www.aclu.org . Defends individual rights as set out by the Constitution. Dianne Feinstein (Calif.) and Republicans Jeff Sessions (Ala.), Orrin Hatch (Utah), Jon Kyl C-SPAN , 400 N. Capitol St., N.W., Suite 650, Washington, DC 20001 ; (202) 737-3220 ; (Ariz.) and Tom Coburn (Kan.) voted against www.c-span.org . Cable television network providing coverage of government pro - all three bills. Sen. Benjamin Cardin, D-Md., ceedings. voted against S. 657; Sen. Lindsey Graham, R-S.C., voted against the two Supreme Court Ethics and Public Policy Center , 1730 M St., N.W., Suite 910, Washington, DC bills. For coverage, see Joanna Anderson, 20036 ; (202) 682-1200 ; www.eppc.org . Institute dedicated to applying the Judeo- Christian moral tradition to issues of public policy. “Senate Judiciary Backs Televising Federal Court Proceedings,” CQ Today , April 29, 2010. Federal Judicial Center , 1 Columbus Circle, N.E., Washington, DC 20002 ; (202) 25 For a complete list of same-day releases 502-4000 ; www.fjc.gov . Education and research agency for federal courts. approved and denied, see “C-SPAN Timeline: Cameras in the Courts,” www.c-span.org/The- Judicial Conference of the United States , 1 Columbus Circle, N.E., Washington, Courts/Cameras-in-The-Court-Timeline /. The DC 20002 ; (202) 502-6000 ; www.uscourts.gov . Frames policy guidelines for the Supreme Court press release announcing the administration of judicial courts. new policy, dated Sept. 28, 2010, is on the Court’s website: www.supremecourt.gov/pub National Association of Criminal Defense Lawyers , 1660 L St., N.W., 12th Floor, licinfo/press/viewpressreleases.aspx?FileName= Washington, DC 20036 ; (202) 872-8690 ; www.nacdl.org . Defends due process rights pr_09-28-10.html . For coverage, see Lyle Den - for those accused of crimes. niston, “New policy on audio tape release,” National Center for State Courts , 300 Newport Ave., Williamsburg, VA 23815 ; SCOTUSBlog, Sept. 28,2010, www.scotusblog. (800) 616-6164 ; www.ncsc.org . Works to improve the judicial administration in com/2010/09/new-policy-on-tapes-release /; state courts. Robert Barnes, “Audio of arguments to be re - leased more promptly,” The Washington Post , National District Attorneys Association , 44 Canal Center Plaza, Suite 110, Sept. 29, 2010, p. A6. Alexandria, VA 22314 ; (703) 549-9222 ; www.ndaa.org . Professional organization 26 See Administrative Office of U.S. Courts, representing state, county and city prosecutors. “Judiciary Approves Pilot Project for Cameras in District Courts,” Sept. 14, 2010, www.us Radio Television Digital News Association , 529 14th St., N.W., Suite 425, courts.gov/News/NewsView/10-09-14/Judiciary_ Washington, DC 20045 ; (202) 659-6510 ; www.rtnda.org . Sets standards for news - Approves_Pilot_Project_for_Cameras_in_Dis gathering and reporting in the electronic news industry. trict_Courts.aspx . For coverage, see Joan Reporters Committee for Freedom of the Press , 1101 Wilson Blvd., Suite 1100, Biskupic, “Another trial run looms for cameras Arlington, VA 22209 ; (703) 807-2100 ; www.rcfp.org . Nonprofit association providing in federal courts,” USA Today , Sept. 15, 2010, free legal assistance to journalists. p. 6A. 27 Information compiled from a keyword search (“cameras,” “courts”) of the Reporters exe?CISOROOT=/ctmedia&CISOPTR=9 . 300 people.” Congressional Record , Dec. 21, 2010, Committee’s quarterly publication “News Media 31 The case is Recording Industry Associa - p. S10854; Durbin’s reply is at p. S10857. In and the Law,” www.rcfp.org/news/mag/index.php . tion of America v. Tenenbaum (April 16, 2009). the most recent C-SPAN poll, 63 percent of 28 See Charles Michael Ray, “SD Supreme For coverage, see Jonathan Saltzman, “Court bars respondents said they favor coverage of Court Considers Camera Question,” South live Web coverage of case,” The Boston Globe , Supreme Court oral arguments; 37 percent Dakota Public Broadcasting, Oct. 8, 2010, www. April 17, 2009, p. 2. disagreed. The online poll by Penn, Schoen, sdpb.org/tv/shows.aspx?MediaID=58627&Parm 32 Hollingsworth v. Perry , op. cit. Berland surveyed 1,512 general-election voters. type=RADIO&ParmAccessLevel=sdpb-all . 33 See Ameet Sachdev, “U.S. judge’s error may See “C-SPAN Supreme Court Survey,” June 21, 29 See Associated Press, “Diallo trial spurs renew camera debate,” Chicago Tribune , Oct. 6, 2010, www.c-span.org/pdf/2010SCOTUS_poll.pdf . promise for legislation to restore courtroom 2009, p. 6. 35 Robert Hariman, ed., Popular Trials: Rhetoric, camera,” Feb. 28, 2000. 34 Specter referred to a C-SPAN-commissioned Mass Media, and the Law (1990), p. 3. 30 See “Report of Committee to Study Ex - poll indicating 85 percent of Americans sup - 36 For Souter’s earlier comment, see “On Cam - tended Media Coverage of Criminal Trial Pro - port televising the Supreme Court “when told eras in Supreme Court, Souter Says, ‘Over My ceedings in Maryland,” Feb. 1, 2008, p. i, http:// that a citizen can attend an oral argument Dead Body,’ ” The Associated Press, March 30, contentdm.ncsconline.org/cgi-bin/showfile. for three minutes in a chamber holding only 1996.

www.cqresearcher.com Jan. 14, 2011 45 Bibliography Selected Sources

Books Buck , Amanda , “Not Ready for Prime Time,” The News Media and the Law , Vol. 30, No. 2 ( spring 2006 ), p. 20 , Barber , Susanna , News Cameras in the Courtroom: A www.rcfp.org/news/mag/30-2/bct-notready.html . Free Press — Fair Trial Debate , Ablex Publishing , 1987 . The article examine justices’ reasons for resisting camera Although dated, the book includes good historical material coverage of the Supreme Court. The quarterly magazine is on the debates over permitting television coverage of trials. published by the Reporters Committee for Freedom of the Includes notes, 24-page bibliography. Press; back issues are online from 2000. The site also in - cludes regular updates, with an easy-to-use search engine: Goldfarb , Ronald L ., TV or Not TV: Television, Justice, www.rcfp.org/search.php. and the Courts , New York University Press , 1998 . A Washington, D.C., attorney-author who has followed the Sydow , Nora , “ ‘Can You Hear Me Now?,’ ” The Court subject for decades provides an overview of the issue of Manager , Vol. 25, No. 2 ( summer 2010 ), pp. 45-51 . broadcast media coverage of courts from the 1920s on. Gold - The article, written by a knowledge management analyst farb concludes that TV access is both inevitable and beneficial. with the National Center for State Courts, examines issues Includes notes. and policy considerations for cell phones and other elec - tronic devices in the courts. Hariman , Robert (ed.), Popular Trials: Rhetoric, Mass Media and the Law , University of Alabama Press , 1990 . Reports and Studies Essays on seven high-profile trials, such as the Scopes “Monkey Trial” of the 1920s and the trial of the “Chicago “Report of Committee to Study Extended Media Coverage Seven” anti-war protesters in the 1960s, examine the pic - of Criminal Trial Proceedings in Maryland,” Feb. 1, 2008 , ture of the legal system the public receives from media cov - http://contentdm.ncsconline.org/cgi-bin/showfile.exe?CI erage. Hariman is chairman of the department of commu - SOROOT=/ctmedia&CISOPTR=9 . nication studies at Northwestern University. Includes notes, The 58-page report by a committee of the Maryland Judicial 15-page bibliography. Conference recommended against allowing audio or video cov - erage of criminal trials in state court on the grounds that edu - Nasheri , Hedieh , Crime and Justice in the Age of Court cational benefits were “marginal” and outweighed by the “sub - TV , LFB Scholarly Publications , 2002 . stantial negative impact” on jurors, witnesses, attorneys and judges. A sociologist at Kent State University provides a historical overview along with studies and surveys on the effect of Johnson , Molly Treadway , and Carol Krafka , “Electronic television coverage of trials. Includes notes and appendices. Media Coverage of Federal Civil Proceedings: An Evalu - ation of the Pilot Program in Six District Courts and Two Thaler , Paul , The Watchful Eye: American Justice in the Courts of Appeals,” Federal Judicial Center , 1994 , www. Age of the Television Trial , Praeger , 1994 . fjc.gov/public/pdf.nsf/lookup/elecmediacov.pdf/$file/elec A professor at New York University and one-time member mediacov.pdf . of a state advisory committee on cameras in the courtroom The 49-page report by the research arm of the federal ju - writes with concern about what he calls “the long shadows diciary favorably evaluated the three-year pilot project of cast by the fusion of” trials and modern media technology. electronic media coverage of civil proceedings in select fed - Includes notes, five-page bibliography. Thaler is also author eral district courts and courts of appeals, summarized re - of The Spectacle: Media and the Making of the O.J. Simpson ports on electronic media coverage of courts in 12 states, Story (Praeger, 1997). and recommended adoption of a rule permitting electronic media coverage of civil proceedings in federal courts at both Articles levels. The Judicial Conference of the United States did not accept the recommendation and the pilot project ended as “C-SPAN Timeline: Cameras in the Courts,” www.c-span. scheduled at the end of 1994. org/The-Courts/Cameras-in-The-Court-Timeline /. The timeline details events from the cable network’s first Tong , Lorraine H. , “Televising Supreme Court and Other gavel-to-gavel coverage of a Supreme Court confirmation Federal Court Proceedings: Legislation and Other Issues,” hearing in 1981 through the live coverage of arguments in the Congressional Research Service, Library of Congress , up - Ninth U.S. Circuit Court of Appeals in the case challenging the dated Nov. 8, 2006 , www.fas.org/sgp/crs/secrecy/RL33706.pdf . constitutionality of California’s anti-gay marriage initiative, The 20-page report summarizes then-pending legislation and Proposition 8. opposing arguments on televising federal court proceedings.

46 CQ Researcher The Next Step: Additional Articles from Current Periodicals

Criminal Cases Mauro , Tony , “Stubborn High Court Resists Cameras,” USA Today , Oct. 6, 2010 , p. 21A. Buser , Lawrence , “Judge, Defense Attorney Clash,” Com - The Supreme Court fears that cameras will spoil the dy - mercial Appeal (Memphis, Tenn.), Oct. 1, 2010 , p. B1 . namics of court arguments by causing lawyers or justices to A dispute over allowing cameras in a murder trial led to grandstand. a confrontation between a criminal court judge in Tennessee and the defense attorney. Sherman , Mark , “US Judges Agree to Pilot Study of Cameras in Court,” The Associated Press , Sept. 14, 2010 . Ellement , John R. , “SJC Unveils Proposal to Expand Use Supreme Court Justice Elena Kagan has expressed interest of Cameras in Courtrooms,” The Boston Globe , Nov. 30, in allowing cameras to videotape arguments. 2010 , p. A3 . The Massachusetts Supreme Judicial Court is seeking to Twitter strike a balance between journalism in the 21st century and security at criminal trials. Cato , Jason , “As ‘Tweeting’ Grows, the Question of Jury Taint Arises,” Pittsburgh Tribune Review , Feb. 9, 2010 . Lieberman , Steve , “Lawrence Taylor Due Tuesday in Court Keeping individuals not present in courtrooms informed for Arraignment on Sex Charges,” Journal News (New about testimony and evidence via the Internet has become York), July 12, 2010 , p. A1 . a new frontier for judges, jurists and journalists. A New York judge denied the request of a local television station to allow cameras at the arraignment of former New O’Connor , Julie , “A Juror’s Cell Phone Can Mean a Mis - York Giants football player Lawrence Taylor. trial,” Star-Ledger (Newark, N.J.), June 28, 2010 , p. 1 . A New Jersey woman accused of murder requests a new Sabalow , Ryan , “Judge: Cameras Allowed in Trial,” Record trial after a juror posted a comment about the case on her Searchlight (Redding, Calif.), Sept. 28, 2010 , p. B1 . online blog. A California judge has allowed cameras in the courtroom for a wrongful-death case despite objections from the defendants. Silvestrini , Elaine , “Social Media Tossed Off Jury,” Tampa Tribune , Jan. 16, 2010 , p. 1 . Proposition 8 Tweets and social networking have broken the sanctity of the jury room and left the legal community unsettled. Lieberman , Steve , “Prop. 8, the Trial That Should Be Seen,” Los Angeles Times , Jan. 15, 2010 , p. A33 . Turmelle , Luther , “Trials in the Twitter Age,” New Haven Proposition 8 is an issue of morality and its challenge in (Connecticut) Register , Sept. 19, 2010 , p. A1 . court should be witnessed by voters who supported or op - Tweeting and blogging are changing the way the news in - posed it, according to proponents of courtroom cameras. dustry covers blockbuster trials.

Meese III , Edwin , “Stacking the Deck Against Proposi - CITING CQ RESEARCHER tion 8,” The New York Times , Jan. 11, 2010 , p. A17 . Sample formats for citing these reports in a bibliography Allowing cameras in the proceedings against Proposition 8 in California would expose some of the vandalism, harass - include the ones listed below. Preferred styles and formats ment and bullying attacks used by some who opposed the vary, so please check with your instructor or professor. measure, says a former U.S. attorney general. MLA STYLE Rutten , Tim , “The Court Shows Its Hand,” Los Angeles Jost, Kenneth. “Rethinking the Death Penalty.” CQ Researcher Times , Jan. 16, 2010 , p. A29. 16 Nov. 2001: 945-68. The U.S. Supreme Court has forbidden cameras from recording a constitutional challenge to California’s Proposi - APA S TYLE tion 8, which outlaws gay marriage in the state. Jost, K. (2001, November 16). Rethinking the death penalty. Supreme Court CQ Researcher, 11 , 945-968.

“U.S. Supreme Court Proceedings Should Be Televised,” CHICAGO STYLE The Olympian (Olympia, Wash.), May 10, 2010 , p. A7. Jost, Kenneth. “Rethinking the Death Penalty.” CQ Researcher , Allowing cameras into the proceedings of the Supreme Court November 16, 2001, 945-968. would be neither disruptive nor intrusive, the newspaper argues.

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