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From the Spring 2008 issue of The News Media & The Law, page 28. A potential showdown is brewing between…

From the Spring 2008 issue of The News Media & The Law, page 28.

A potential showdown is brewing between the legislative and judicial branches as lawmakers debate two bills that would allow electronic coverage of federal court proceedings.

Similar legislation has failed in past years, but proponents of The Sunshine in the Courtroom Act continue to push for more transparency in this branch of government.

Over objections from past and present members of the U.S. Supreme Court, lawmakers and open government advocates refuse to abandon a move to provide electronic coverage of federal courts and cite the benefits a more open court system would provide.

On March 6, the Senate Judiciary Committee overwhelmingly passed S. 352, a bill to give judges in federal courts the discretion to allow photographing, electronic recording, broadcasting or televising in their courtrooms. The House Judiciary Committee passed similar legislation last year.

“The American people are invited into the chambers of the United States Senate and House of Representatives,” said Senate Judiciary Chairman Patrick Leahy (D-Vt.) during the hearing. “Why should they not be invited into our courts, where decisions affecting their lives are made daily? Open government is good government, and the legislation passed by the Judiciary Committee today shines necessary light into our federal courts.”

Without a federal statute regulating cameras in the courts, states have been left to decide whether electronic coverage will be permitted in their trial and appellate courtrooms.

All 50 states permit some kind of camera coverage, and 19 give the presiding judge “broad discretion” to do so, according to a May 2007 study conducted by the Radio-Television News Directors Association (RTNDA). The District of Columbia is the only jurisdiction that strictly prohibits cameras at both the trial and appellate level.

The Judicial Conference of the United States, the chief rule-making body of the court system, currently bans cameras in all federal trial courts, based primarily on the argument that they could intimidate witnesses.

Federal appellate judges, however, do have discretion to decide in specific cases whether to allow electronic equipment since witnesses are not involved at that level. Dick Carelli, a spokesman for the federal courts, said only two circuits — the Ninth and Second — have adopted rules permitting electronic coverage.

The legislative journey

The new bill has not been scheduled for a vote before the full Senate. When exactly that will happen is unknown, according to a Leahy judiciary committee aide.

“Once a bill is out of committee, it’s hard to tell what will happen.” the aide said. “We don’t like to speculate on the possibilities of legislation but the bill certainly has had a lot of bi-partisan support as well as support from the judiciary committee.”

A House companion bill, H.R. 2128, was approved by the House Judiciary Committee in October 2007 but has not been scheduled for a full House vote either, said George Cecala, a spokesman for the bill’s author, Rep. Steve Chabot (R-Ohio).

Touting the measure

Both bills would, if enacted, enable the courts to paint a more accurate picture of America’s judicial system, according to Barbara Cochran, president of RTNDA.

“Right now, the public gets most of its ideas about how the judicial system operates from syndicated judge shows and dramas like ‘Law & Order’ and ‘Boston Legal,’ Cochran said in a statement released following the Senate bill’s passage. “Allowing cameras in the court would give them a much truer sense of how our judicial system actually functions.”

Doug Lee, a legal correspondent for the First Amendment Center, echoed Cochran’s thoughts. He said the American public will only benefit from more coverage of trials.

“From an education system standpoint, it can’t be any worse than Boston Legal,” Lee said. “In terms of what really happens in the judicial system, people will learn cases aren’t assigned to lawyers one day and tried the next.”

During the Senate Judiciary Committee’s March 6 meeting, Sen. Arlen Specter (R-Pa.), a co-sponsor of the bill, stressed the importance of open court systems at both the federal and state level.

“I think that the public has as much right to know what is transpiring in the district courts as in the Supreme and appellate courts,” Specter said.

Mark Zauderer, a New York attorney who has followed this issue for more than a decade, cited a New York case where having cameras in the courtroom helped viewers understand why the justices came to a verdict that the public deemed unpopular.

“I think it does serve a public educational value to have cameras in the courts,” he said. “Cameras give a broader section of the population the chance to view these constitutionally public proceedings.”

Potential roadblocks

Sen. Ben Cardin (D-Md.) expressed reservations about the bill during the March 6 markup, introducing an amendment that would exclude district courts from the act.

He said cameras in the U.S. Supreme Court and federal appellate courts are important and necessary to open government, but took issue with television coverage of trial proceedings. He reiterated that judiciary concerns will likely be raised that selective coverage could adversely influence a verdict.

Arguing against the amendment, Specter emphasized that judges would still have the discretion to oppose televising the proceedings if, for example, a juvenile is on trial or a witness needs protection.

The amendment failed on a tie vote.

Proponents of introducing cameras into federal courtrooms point out that the current bill gives judges too much discretion.

“Judges don’t like [cameras in their courts],” Zauderer said. “Judges by nature, by training, by job expectations, want control of their courtroom and when you bring cameras in, many judges feel they lose that control.”

Zauderer stressed the difference between federal and state judges’ acceptance of cameras in their courtrooms, and said this could be a potential roadblock for the bill.

“The federal judiciary has traditionally been hostile toward the notion of having cameras in the courts,” he said. “And I expect that very few federal judges would allow cameras.

By and large, at this point in time, federal judges are generally opposed to cameras in the courts and a number of Supreme Court judges have opposed this in Congress.”

Carelli, speaking for the Judicial Conference, said he could not comment on what type of action, if any, the policy-making body would take if the bill is enacted. It would depend largely on what the specific provisions of the law end up being, he said.

High court objections

For many years, past and present members of the U.S. Supreme Court have gone on record objecting to cameras in the courtroom, with Justice David H. Souter memorably saying in 1996: “the day you see a camera come into our courtroom, it’s going to roll over my dead body.”

Another current member of the court recently discussed his long-standing concerns with the proposal.

Addressing a group of Virginia high school students on April 9, Justice Antonin Scalia said he opposes allowing TV cameras in the Supreme Court and even more so in trial courts.

“For every one citizen who watched gavel to gavel, there would be 100,000 who would watch a 15-second take-out from the feed,” Scalia said. “And, I guarantee you that the 15-second take-out would not be characteristic of what we do. It would be man bites dog, so why should I participate in the mis-education of the American people?”

He objected to cameras at the trial level by arguing that such coverage would lead to financial profiting off of others’ legal woes.

“To make entertainment out of real people’s legal troubles is quite sick,” he said. “You want to entertain the public, hire actors and put on ‘Perry Mason’ or something. I don’t think it is right to make enjoyment out of litigation, civil or criminal.”

Tony Mauro, the long-time Supreme Court correspondent for the Legal Times and American Lawyer Media, said the justices have seemed to become more against the idea with time.

“Maybe they figure by doing all these other things to increase transparency and access, that’ll call the dogs off and sort of relieve pressure for them to go all the way and allow cameras,” Mauro said. “On the specific issues of cameras, I think they are retreating.”

This issue seems to cross ideological lines on the bench, with nearly all of the justices either refraining from taking a strong position on the issue or speaking adamantly against it.

Chief Justice John Roberts has said on more than one occasion that such a move could potentially change the way the court functions.

“All of the justices view themselves as trustees of an extremely valuable institution, one that we think by and large functions pretty well,” Roberts said at the 2006 Judicial Conference for the U.S. Court of Appeals for the Ninth Circuit. “We don’t have oral arguments to show people, the public, how we function.”

Mauro said the justices’ perspectives may stem from the anonymity and awe that traditionally surrounds the highest court in the land.

“It’s that mystique; that they’ll feel like they’d be debased somehow, or sullied, by being too familiar,” Mauro said. “It’s almost also like nostalgia. It’s like they want to cling to this tradition because they still can.”

Try and try again

This type of legislation has been proposed in some variation many times in recent terms, according to Leahy’s committee aide.

In 2006, the Senate Judiciary Committee passed two bills (S. 1768 and S. 829) that would allow cameras and microphones into the federal courts. Both bills made it to the full Senate for consideration, but died on the floor.

S.1768 allowed for radio and TV coverage of federal judicial proceedings. It also required that the Supreme Court permit television coverage of its open sessions unless the majority of the justices agreed the coverage would violate due process rights.

S. 829 would have given federal judges the discretion to permit audiovisual coverage of proceedings on a case-by-case basis under a three-year pilot program.

So far, no bill has managed to win the votes necessary in either chamber. Following the Judicial Conference’s 1996 resolution that allowed each federal appellate court to decide for itself whether to allow cameras, two bills were introduced in the House and Senate that would essentially write this resolution into law. Ever since then, similar bills have been introduced in every Congress.

Looking to the future

Passing this bill could serve as a crucial stepping stone for those federal judges who would permit cameras in their courtrooms, Zauderer said.

“Just as attitudes about many other aspects of judges have changed, it is certainly possible that as judges experiment with cameras in the courts on a case-by-case basis that the concept may achieve a greater acceptance over time,” Zauderer said. “It would require a bill like this to open the door for those judges who wish to experiment with it.”

The judges who decide to “experiment” with cameras and other video recording will be the deciding factor in this issue down the road, he said.

“Are they perceived as having helped, promote and accept the workings of justice or are they creating a distorted picture, which would persuade judges to forbid cameras in the courts?” Zauderer asked.

Mauro said that even if these bills don’t end up passing, news organizations and open government advocates should take advantage of the legislations’ repetition over the last decade by demonstrating that opening up the courts to electronic coverage is a good thing.

“The media ought to be in the circuit courts where it’s allowed, they should use it or lose it,” Mauro said, referring to the current law that allows coverage in appellate circuits. “The more judges get used to it and see it’s a good thing and see that it doesn’t cause their courthouse to crumble to the ground, it’s all to the good.”

— With additional reporting by Alison Schmidt