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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 Chandler 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 2009, Frank Easterbrook, the chief judge of the 7th U.S. Circuit Court of Appeals, relied on these rules when he launched a “limited inquiry” into the decision of U.S. District Judge Joe Billy McDade to allow television coverage of a school desegregation hearing in Champaign, Ill. McDade subsequently apologized, belatedly realizing he did not have the authority to waive the rules’ prohibition.

In 1996, the Judicial Conference allowed experimental use of cameras in some federal courtrooms, but several years ago decided not to renew that experiment. The U.S. Supreme Court has steadfastly refused to allow cameras into the federal courts, most recently blocking cameras from covering the high-profile federal court trial on the constitutionality of California's ban on same-sex marriage. Advocates of cameras in the courts took some solace in the fact that four of the Court’s nine justices supported the trial judge’s desire to post recordings of the trial on the district court’s Web site after several hours of delay and to allow real-time streaming of the trial for viewing in other federal courthouses in California, New York, Oregon and Washington.

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 televised.

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.

Updated February 2010

 

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