Cameras in the courtroom
By Douglas Lee
Lawyer, Ehrmann Gehlbach Badger & Lee
Despite the passion of broadcasters’ arguments and improvements in their
technology, courts so far have refused to recognize a First Amendment right to
televise court proceedings. Whether trials can be broadcast thus has been left
to the policymakers in the federal and state courts.
Perhaps not surprisingly, those policymakers have produced a wide variety of
rules governing how and when cameras can be used in courtrooms. The federal
judiciary and the District of Columbia, for example, prohibit televised coverage
of all proceedings. Many state courts, on the other hand, allow cameras into the
courtroom whenever the trial judge deems it appropriate. Other states allow
coverage, but only if all trial participants agree. And still other states allow
televised coverage only of appellate proceedings.
The U.S. Supreme Court ruled in a way unfavorable to courtroom photography in
1965, when it decided Estes v.
Texas. In Estes, charges that the defendant had swindled several
farmers generated extensive national media coverage. Before the trial, the
defendant moved to exclude photographic and broadcast coverage of the
proceedings. This two-day hearing also garnered significant attention, with
roving news personnel and yards of cables disrupting the proceeding. The trial
judge ultimately allowed television coverage of the trial but only from a booth
constructed in the rear of the courtroom. After the defendant was found guilty
of the charges, he appealed his conviction, arguing that the television coverage
had denied him a fair trial.
The Court agreed with the defendant. In a 5-4 decision, the Court held that
live television coverage — at least in its then-current technological state —
was distracting to jurors, judges and defendants and was likely to impair
witness testimony. In light of these problems, the Court said, the desire of
broadcasters to televise trials must give way to the rights of criminal
defendants. The Court recognized that technology could in the future make
cameras less disruptive, but held: "Our judgment cannot be rested on the
hypothesis of tomorrow but must take the facts as they are presented today."
In 1981, the Court revisited the issue and its ruling in Estes. In
v. Florida, the Court held 8-0 that Florida could allow radio,
television and still photographic coverage of a criminal trial, even if the
defendant objected. In doing so, the Court parsed the various opinions in Estes and concluded that the majority had not announced a constitutional rule that all
photographic or broadcast coverage of criminal trials was inherently a denial of
due process. Therefore, the Court held, "Absent a showing of prejudice of
constitutional dimensions to these defendants, there is no reason for this Court
either to endorse or to invalidate Florida’s experiment."
The Chandler ruling spurred most states to adopt rules allowing
cameras in at least some state courts.
While technology has changed, the federal courts’ feelings about cameras in
the courtroom have not. Despite repeated requests by broadcasters, the Judicial
Conference of the United States — which establishes policy for the federal
courts — has refused to reconsider its rules prohibiting television and radio
broadcasting from federal trials. In 1996, the Judicial Conference allowed
experimental use of cameras in some federal courtrooms but recently decided not
to renew that experiment. The Supreme Court has adamantly refused to allow
cameras into the court, most recently denying the requests of several
broadcasters to televise the historic argument in Bush v. Gore.
The bases for denying cameras access to courtrooms have not changed much
since 1965. The Judicial Conference and the federal courts still believe live
television coverage distracts trial participants, unfairly affects the outcome
of trials and diminishes the dignity of the courts. Broadcasters, meanwhile,
continue to argue that coverage no longer is distracting or disruptive and that
both the judiciary and the public benefit when court proceedings are
The state courts have been more receptive to broadcasters’ arguments, but
none has recognized a right to broadcast a trial. Rather, the courts most
receptive of cameras allow judges broad discretion in deciding whether to permit
televised coverage. Other states limit that discretion in sexual-abuse cases,
cases involving minors and cases in which certain witnesses object. In the most
restrictive states, trial coverage is allowed only when all parties consent.