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From the Winter 2002 issue of The News Media & The Law, page 21.

From the Winter 2002 issue of The News Media & The Law, page 21.

By Ashley Gauthier

While the man alleged to be the “20th terrorist” awaits trial for conspiracy in connection to the Sept. 11 attacks, his case raises the issue of whether cameras will ever be permitted in federal trial courtrooms.

Zacarias Moussaoui was arrested a short time before the attacks on immigration charges. But a flying school had told the FBI about Moussaoui earlier and how he wanted to learn how to fly a plane once it was in the air, but did not need to learn how to take off or land.

Moussaoui was eventually indicted and will be tried on six counts of conspiracy for his alleged involvement in planning the attacks. His trial is planned for October.

Court TV petitioned the court, seeking permission to provide gavel-to-gavel coverage of the trial and a waiver of federal court rules barring any audio-visual coverage of a trial. Supported by groups such as the Reporters Committee for Freedom of the Press in a friend-of-the-court brief, Court TV argued that such a ban on televised trials is unconstitutional.

U.S. District Judge Leonie Brinkema issued a ruling on Jan. 18, stating that the camera ban in Federal Rule of Criminal Procedure 53 is constitutional. She also expressed concerns that televising the trial would create security problems.

Brinkema said that “any societal benefits from photographing and broadcasting these proceedings are heavily outweighed by the significant dangers worldwide broadcasting of this trial would pose to the orderly and secure administration of justice.”

Court TV, joined by intervener C-SPAN, argued that the camera ban was unconstitutional because it discriminates between print and broadcast media. The network argued that the traditional justification for the distinction — that camera equipment causes distractions — is no longer valid because modern equipment is not bulky and obtrusive.

Groups joining the friend-of-the-court brief argued that televised proceedings would allow the public to observe the trial and feel a sense of resolution regarding the Sept. 11 attacks.

Brinkema ruled that the right of access was satisfied because “some” members of the media and public could attend the proceedings. Also, transcripts of proceedings would be made available electronically within three hours of the close of each court session.

“Contrary to what interveners and amici have argued, the inability of every interested person to attend the trial in person or observe it through the surrogate of the media does not raise a question of constitutional proportion,” Brinkema said. “Rather, this is a question of social and political policy best left to the United States Congress and the Judicial Conference of the United States.”

The court also said that even if the rule were unconstitutional, it would still be acceptable to ban cameras in this case because of security concerns. Brinkema said she was concerned that witnesses might be intimidated by the prospect of televised coverage of their testimony. The judge admitted that cameras were now unobtrusive, but now a witness could be afraid that “his or her face or voice may be forever publicly known and available to anyone in the world.”

Brinkema also said the safety of the court and its personnel might be compromised by broadcasting photographic images of the physical layout of the court and of court personnel. Finally, the judge determined that there was a risk of “showmanship,” evidenced by Moussaoui himself, who behaved erratically at his arraignment.

“We’re disappointed because we thought the public should have the right to see this trial,” said Kathleen Kirby, attorney for the Radio-Television News Directors Association.

Court TV said it will not appeal the ruling.

Brinkema’s ruling raises the question of whether federal courts will ever permit cameras in their courtrooms. As of last summer, all 50 states had permitted television cameras in some of their courtrooms, recognizing that they do not adversely affect the efficient administration of justice but rather help the public to understand how the court system works.

Although cameras won’t be at the Moussaoui trial, they will be in attendance at the retrial of Rabbi Fred Neulander in Philadelphia. Neulander faces charges of hiring a private investigator to kill his wife. Court TV will televise the trial.

Cameras also were allowed in a state district court in Las Vegas where Dennis Rodman was the subject of a civil trial in which a casino dealer accused the former basketball star of rubbing dice on the dealer’s head, stomach and groin. Rodman’s attorney attempted to have cameras banned from the trial, arguing that the presence of cameras might taint the jury and would only serve prurient interests.

The judge, however, ruled against Rodman, who didn’t show up for the trial anyway.

With state courts on one side of the issue and federal courts on the other, Kirby said the issue may need to be addressed by Congress. Brinkema, in her decision, also stated that Congress should clarify the issue if it wishes to permit cameras in the courts.

Congress has, in fact, considered legislation that would permit federal judges to use discretion to allow cameras in the courtroom.

The legislation, called “Sunshine in the Courtroom,” passed the Senate Judiciary Committee last November. The bill, if passed, would give all federal judges, even the U.S. Supreme Court, discretionary power to permit trials to be televised and photographed.

Bruce Collins, general counsel for C-SPAN, believes that cameras eventually will be permitted into federal courtrooms. But Collins said “something seminal is going to have to happen before cameras become a regular presence in federal courts.”

For state courts, Collins noted, the U.S. Supreme Court decision in Chandler v. Florida was the precipitating factor.

In Chandler, the court ruled that the Constitution does not prohibit a state from experimenting with televised trials. The court recognized that, in some cases, camera coverage might impair the defendant’s right to a fair trial, but a per se ban on television coverage was not necessary.

After the Chandler decision, states began to experiment.

Many found that cameras posed little or no interference with the defendant’s rights in most cases, and eventually all states allowed cameras into the courtroom in some circumstances.

Collins said convincing the Supreme Court to televise oral arguments might be the type of seminal act needed to convince other federal courts that cameras would not harm the administration of justice. But, Collins said, the Supreme Court “made it very clear that they’re not going to start.”

Efforts to provoke action have not been successful.

The Federal Judicial Conference conducted a four-year experiment with televised trials involving six trial courts and two appellate courts. Although a report concluded that the harms the courts feared did not materialize, the conference never took action on allowing cameras into federal courts.

After the Oklahoma City bombing, the federal court trying Timothy McVeigh in 1997 recognized that the victims’ families may have an interest in the proceedings and made arrangements for a special broadcast for family members who couldn’t make it to the trial in Denver.

But the court would not permit a national broadcast.

Collins said he thought the Moussaoui case might provide a breakthrough because the case is of such interest. During the hearing, Brinkema recognized that technological advancements had changed society and its expectations, but she ultimately declined to permit televised coverage.

“Looking ahead,” Collins said, “the only prospect in the short term seems to be legislation.”

But he acknowledged that legislation would take a long time. Congress and the judiciary, both sensitive to separation of powers, may worry about perceptions of Congress interfering with the court system.

Plus, strong public sentiment would probably have to develop before Congress passed such a bill, Collins said.

Kristin Gunderson contributed to this report.