Congress considers camera bills; state courts open doors

From the Fall 2000 issue of The News Media & The Law, page 37.

While venues such as state courts have grown more receptive to permitting cameras, journalists still must confront strong opposition in the federal counterparts. Resistance may be the greatest, however, at state supreme courts and the U.S. Supreme Court.

The following are some recent examples in the ongoing attempt to open all branches of the governmental process to broadcast reports.

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In a continuing effort to increase public accountability in all branches of government, U.S. Sens. Charles Grassley (R-Iowa) and Charles Schumer (D-N.Y.) heard testimony in early September on their bill to allow television cameras into federal courts.

Dubbed the Sunshine Act, the bill would allow the judges to decide whether to permit cameras to record their sessions. A panel of state and federal judges, legal scholars and broadcasters gave testimony in support of the legislation before the Senate Judiciary Subcommittee Administrative Oversight in September.

KCCI-TV News Director David Busiek of Des Moines, Iowa, said on behalf of the Radio-Television News Directors Association, “our members are the people who have demonstrated that television and radio coverage works at the state and local levels, and they can make it work on a federal level.”

Chief Judge Edward Becker of the U.S. Court of Appeals in Philadelphia (3rd Cir) opposed the measure, basing his position on the Judicial Conference study that cited an intimidating effect of cameras on all participants.

Judge Nancy Gertner, from the federal district of Massachusetts, responded by stating that as technology advances “cameras become less and less physically intrusive in the courtroom.”

“The experience of the 48 states with cameras in the courtroom cannot be ignored,” Lynn Ward, professor of law at Brigham Young University, said of the state courts. “None of those states has been so dissatisfied with the experience to repeal the rules.” Rather, he said, the courts and commentators report generally very positive experiences. (S. 721)

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In the wake of similar legislation pertaining to federal courts, a Senate bill sponsored by Sens. Arlen Specter (R-Pa.) and Joseph Biden (D-Del.) would allow cameras to broadcast Supreme Court hearings.

Specter said the legitimacy of the bill is based on the court’s own decisions recognizing the right of access afforded to the public and press in certain cases. The bill was introduced on Sept. 21.

“Since the Supreme Court has assumed the power to decide cutting-edge issues of public policy virtually as a super-legislature, the public has a right to know what the court is doing,” Specter added in a written statement.

The Supreme Court has struck down a law that it held encroached upon state sovereignty in a case, which the court found a federal statute regulating gun-free school zones under the commerce clause was unconstitutional.

Specter said with the impact of the court’s decisions, the public needs to keep a close eye on the court’s proceedings.

But efforts to bring camera coverage into the high court will meet stiff opposition. In 1996, Justice David Souter told a Senate subcommittee, “The day you see a camera come into our courtroom it’s going to roll over my dead body.” (S. 3086)

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Justice Ruth Bader Ginsburg in mid-October discussed her thoughts on cameras in the U.S. Supreme Court during ceremonies marking the 125th anniversary of the Canadian Supreme Court.

Stating her own view and not the view of the court, she would not object to having gavel to gavel coverage provided the court have control of the cameras present in the Court, she said.

“Right now the view is that our proceedings should not be televised,” Ginsburg told the Ottawa Sun, adding that the Court has a “wait-and-see” attitude.

The Canadian Supreme Court has gavel-to-gavel television coverage and arguably can be considered the most publicly accessible court in the world.

Ginsburg offered a few opinions of her colleagues as to why they oppose cameras. She said one is the theatrics that the lawyers may perform in front of a camera, another being the anonymity of the justices.

“Justice David Souter, for example, could go to the supermarket and never be noticed. Now that’s impossible for Justice Clarence Thomas, “she said. She added that Chief Justice William Rehnquist was also anonymous until the impeachment hearings.

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Judges in South Dakota will not consider opening the courts to cameras unless lawyers and the public raise awareness, according to statements by the state supreme court chief justice in early September.

Only South Dakota and Mississippi have never considered a bill to allow cameras access to state court proceedings. Among the other 48 states, camera access varies in both trial and appellate levels.

State Supreme Court Chief Justice Robert Miller said at a seminar devoted to news coverage of the criminal justice system that unless the media gain the support of South Dakotans and educate them on the matter, judges will not consider opening the courtrooms. He said each side has a strong argument, but said he would not object in experimenting with the cameras.

Advocates for cameras in the courts argued the act of permitting cameras itself educates the public on judicial proceedings and provides unfiltered news coverage. Opponents contended the cameras impinge on the right to a fair trial by interfering with court procedures and promoting theatrics in the courtroom.

Miller suggested training sessions given by the Associated Press would benefit the lawyers, judges and reporters on making the cameras in the court a permanent fixture. “We owe it to the public and we owe it to each other to foster mutual understanding.”

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Town officials in Mardela Springs, Md., attempted to stop videotaping of the monthly commissioners meeting in July.

Commission President Wallace Catlin had a heated argument with Henry Osowiecki, a real estate agent and archivist, about his right to videotape the meeting. Catlin threatened to have Osowiecki arrested and suggested he bring a lawyer with him to the next meeting.

The commission has adopted open meeting laws, but usually only two or three spectators are present.

In August, one month after the incident, Osowiecki and his lawyer, Nathen Christopher, attending the meeting along with a Salisbury Times photographer and other members of the media. Two disgruntled commissioners left the meeting, which defeated a quorum and suspended the meeting.

Osowiecki and Christopher will file a complaint with the state Open Meeting Compliance Board. If the board decides the Mardela Springs commissioners violated the law, Osowiecki can file a civil lawsuit.

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A superior court judge in Georgia denied a request on Oct. 2 of murder defendant to bar the media from his trial.

Herbert Adams, whose client Wesley Harris faces the death penalty if convicted, argued to the Gwinnett County Superior Court the media has shown a bias in favor of the victims and portrays Harris as a menace to society.

Judge Snell Conner set a trial date for March.

Whitney Land and her 2-year-old daughter were abducted from a park and found shot to death on Nov. 8, 1999. The bodies were discovered in a burned-out car in the north side of Atlanta.

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A New York television station can take its cameras into court for a murder trial after the judge has granted a request for access in September.

Buffalo station WIVB received permission of Erie County Judge Sheila DiTullio to videotape the trial of Alex Nance. The prosecutor in the case, along with the attorney general and chief judge of the courts, backed the effort for camera as a means to help build public confidence in the legal system. According to court officials, WIVB made the only request to bring cameras in the court.

In October 1998, Buffalo landlord Gary Trzaska was found beaten to death. Nance and his cousin Lorenzo Jones are accused of the murder. — TH