No time like the present
Televising Saddam Hussein’s trial was considered crucial for oversight, but that logic has yet to translate to America’s federal courtrooms.
From the Winter 2007 issue of The News Media & The Law, page 12.
When the new Iraqi government put Saddam Hussein on trial, it was vitally important that a camera be in that courtroom. Citizens could see, with their own eyes, that Saddam and his compatriots were getting a real trial with witnesses, cross-examination and even that Saddam was allowed to launch into tirades against the court. It is odd that the U.S. government recognizes the importance of televising Saddam’s trial but still does not allow television coverage of our own federal Supreme Court.
But there is reason to believe that federal courtrooms might still open to cameras. Chief Justice John Roberts, in his confirmation hearings, testified that he is open-minded about allowing cameras in the courtroom. Bills that would allow federal judges to make their own decisions to open federal courts have been gaining support in both houses of Congress.
Under Sen. Arlen Specter’s proposal, cameras would be removed only if a majority of the justices determined that their presence would undermine the due process of a litigant in a specific case. But even if Congress passes legislation allowing open federal courts, it is unclear if such legislation would be constitutional and guess who would make that decision? That’s right — the Supreme Court.
When I was growing up in Princeton, Ky., folks would flock to two very public courts that featured considerable drama presented before big crowds. The basketball court at the local auditorium attracted hundreds of fans for big games. Interestingly, the size of that sports arena was smaller than the single largest room in the county — the two-story, circuit courtroom that was the centerpiece of our Caldwell County courthouse.
As different as they were in purpose, those two good-size courts were designed to attract and accommodate all who could come.
Whatever happened was open for all to see, as it should have been.
Courtrooms should be open
Justice Oliver Wendell Holmes said, “Every citizen should be able to satisfy himself with his own eyes” that justice is being conducted fairly.
Justice Warren Burger once said that opening courtrooms to the public “gives assurance that proceedings were conducted fairly to all concerned, and it discourages perjury, the misconduct of participants and decisions based on secret bias or partiality.”
To be fair, they weren’t addressing the specific issue of cameras in the courtroom, but it is hard to argue with their logic that open is better than closed and cameras provide the most open access to all.
As the Supreme Court stated in its 1980 ruling in Richmond Newspapers, Inc. v. Commonwealth of Virginia, “People in an open society do not demand infallibility from their institutions, but it’s difficult for them to accept what they are prohibited from observing.”
The Supreme Court missed that point in 2000 when it rejected a request from C-SPAN to provide television coverage of proceedings in the Florida presidential election case. The court said it would quickly make available an audiotape of the proceedings, a step described as unprecedented in court history. But it’s not enough. People want to see with their own eyes the story as it is unfolding.
During the 2000 election, there were no street riots or civil uprisings that we have seen in other countries when citizens suspected the election was being hijacked. Could part of the reason be that except for the U.S. Supreme Court hearing, media had remarkable access covering the story?
Cameras allowed the world to watch county and state courts to hear unedited and live arguments over how and when ballots were to be counted. One night I watched what must have been 15 minutes of boring but reassuring video of Palm Beach County election officials sitting at a table staring at dimpled ballots. I was overcome with the feeling that the proceeding was orderly, fair and honest. Not the backroom politics I would have suspected if it had all been done in secret.
The history behind the issue
We journalists dug our own hole on this issue. The restrictions go back to a landmark trial in 1965, the case of Billie Sol Estes v. Texas.
Journalists and photographers covering that trial acted so outrageously that the Supreme Court slammed the door on cameras in the courts. Four justices said the mere presence of TV cameras in the courtroom violated the Sixth Amendment because the cameras caused a distraction, affected testimony, presented mental and physical distress for defendants, placed additional burdens on judges, and allowed judges to use the TV coverage for political purposes.
It took 15 years of appeals from news organizations for the Supreme Court to hear the matter again. In 1981, when cameras got quieter and needed no extra lights, the high court ruled that just having a camera in a courtroom is not, in itself, unconstitutional. That decision opened the way for cameras-in-the-courts experiments across the country.
Forty-three states allow coverage at the trial level, and studies in 28 states show that television coverage of court proceedings has significant social and educational benefits.
Six federal districts and the Second and Ninth Circuit Courts of Appeals launched a pilot program to test cameras in the courtrooms between 1991 and 1993 and the test was a resounding success. But today, federal courts remain closed with the exception of judicial swearings-in or naturalization ceremonies.
The federal court ban on cameras in the courtroom is illogical. When Timothy McVeigh was tried in the Oklahoma City bombing case, a camera was used to send the trial proceedings via closed circuit to families who could not travel to the Denver courthouse where the trial was being held. Nobody argued that the presence of the camera tainted the trial.
Even if one makes the argument that cameras intimidate witnesses, it does not explain the logic of banning cameras from appeals courts where justices have total control over the decorum of the court. If lawyers choose to showboat, judges are free to shut them down.
There are some side benefits to having cameras in the courtroom. The public will hold journalists more accountable for the accuracy of coverage. At least some members of the public will have listened word for word to what the journalists witnessed. Coverage is less likely to be spun, positioned or slanted when everyone has access to the unfettered truth.
The judicial system in my old home state of Kentucky may not have been perfect. But the citizens of Princeton and Caldwell County knew that they had the ability to see and hear what took place in their courtroom. Given that access, they had the opportunity to be well informed and they could hold the system accountable by their presence.
These days, because of cost and space availability, they don’t build courtrooms like we had in my hometown. The new courtrooms often only seat a hundred or fewer people.
But we have a way to give everyone who desires it a front row courtroom seat. A silent stationary camera can connect the people with their government.
I have covered hundreds of court hearings and trials in my 25 years as a journalist. I almost always walked away from the experience impressed by the seriousness and commitment of our judicial system and the people who work in it. I always thought the single best public relations move the judiciary could make would be to allow the people to see the system as it really is. It is neither as neat and tidy as Perry Mason nor as dramatic as Matlock.
In the end, the banning of cameras from the courtroom serves only one purpose. It preserves the mystique and mystery of the court but does nothing to illuminate the citizens. That is antithetical to democracy.
Al Tompkins is the broadcast/online group leader for The Poynter Institute in St. Petersburg, Fla. He spent 30 years as a journalist, including serving as reporter, director of special projects and investigations, and news director of WSMV-TV in Nashville, Tenn.