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Momentum is gaining on allowing cameras into federal courtrooms. From the Winter 2006 issue of The News Media & The…

Momentum is gaining on allowing cameras into federal courtrooms.

From the Winter 2006 issue of The News Media & The Law, page 28.

By Amanda Buck

A November vote in the U.S. House is sparking optimism that photographers and television cameramen could soon be allowed into federal courtrooms.

The 375-45 vote to give federal appellate and district court judges discretion to allow still and video cameras in civil and criminal trials marks the third time a bill related to cameras in federal courts has passed one branch of Congress. Attitudes toward the issue seem to be changing, said Barbara Cochran, president of the Radio-Television News Directors Association.

“I think a number of things are coming together,” Cochran said. “I think that having new justices being confirmed for the Supreme Court has really focused public attention on the fact that the Supreme Court and other federal courts are still largely invisible to the public.”

Supreme Court nominees navigate intensely public nomination hearings only to be whisked away to obscurity upon confirmation, she pointed out.

After Chief Justice John Roberts was confirmed Sept. 30, RTNDA offered to work with the Court staff on television and radio coverage. Roberts responded that he looks forward to working with RTNDA “if the Court explores the idea of opening its proceedings to electronic coverage.”

Cochran is hopeful that could happen given “the fact that he has already, just within a few weeks of taking office, released audiotapes immediately after arguments,” she said, referring to cases on military recruiting on college campuses and parental notification in cases of teenagers seeking abortions.

“That shows an understanding of the need to allow the public to see and hear what happens &#151 or at least to hear what happens &#151 as rapidly as possible,” said Cochran, a former journalist and news executive, most recently with CBS News.

A decade ago, Justice David Souter told a congressional committee that “the day you see a camera come into our courtroom, it’s going to roll over my dead body.”

Souter is far from alone in his opposition. Although cameras are allowed in at least some level of courts in all 50 states, sentiment has long been against allowing them in federal courts.

In 1972, the Judicial Conference, the chief policy-making body of the court system, adopted a prohibition against “broadcasting, televising, recording or taking photographs in the courtroom and areas immediately adjacent thereto” in criminal and civil proceedings. Bills designed to open the federal courts have been introduced in Congress for years, but none have passed.

Opponents say television should be barred from federal courts to protect the welfare of witnesses, prevent potential grandstanding by attorneys or judges, and prevent the loss of prestige and respect for the courts.

Some also argue that cameras would interfere with a defendant’s ability to receive a fair trial.

But in 1981, the U.S. Supreme Court in Chandler v. Florida rejected a defendant’s claim that cameras in his criminal trial had denied him due process. Under Florida law, cameras were allowed in the courtroom despite the defendant’s objection.

Today, with televised court proceedings common, it is not unusual to find judges who support ending the camera prohibition. During his nomination hearings in January, Judge Samuel Alito told the Senate Judiciary Committee that he supported allowing cameras into his courtroom in U.S. Court of Appeals in Philadelphia (3rd Cir.). Alito danced around direct questions about allowing television coverage of the nation’s highest court. “The issue is a little bit different” there, he said, pledging to keep an “open mind.”

When the House passed the “Secure Access to Justice and Court Protection Act” (H.R. 1751) Jan. 9, a cameras-in-federal-courtrooms provision was tucked into the bill. The provision, advanced by Rep. Steve Chabot (R-Ohio), would give appellate and district court judges discretion to allow televising of civil and criminal trials. To protect the privacy of non-party witnesses, the proposal would allow their faces and voices to be obscured upon request.

The proposal is expected to become a negotiating point when House and Senate versions of the bill are in conference committee.

The same day H.R. 1751 passed, the Senate Judiciary Committee held a hearing on cameras in federal courtrooms. Iowa Republican Sen. Chuck Grassley’s “Sunshine in the Courtroom Act of 2005” (S. 829) is similar to Chabot’s proposal, while S. 1768, sponsored by Senate Judiciary Committee Chairman Arlen Specter (R-Penn.), would allow televising Supreme Court arguments. Both bills await committee action.

If the idea becomes law, it won’t be the first time television is allowed in federal courtrooms.

In 1990, a Judicial Conference committee started a three-year pilot program allowing electronic media coverage of civil proceedings in eight federal district and appellate courts: the U.S. Courts of Appeals in New York (2nd Cir.) and San Francisco (9th Cir.), and U.S. District Courts in southern Indiana, Massachusetts, eastern Michigan, southern New York, eastern Pennsylvania and western Washington.

A Federal Judicial Center report on the experiment concluded that “[o]verall attitudes of judges toward electronic media coverage of civil proceedings were initially neutral and became more favorable after experience under the pilot program.”

The committee advised the Judicial Conference to authorize federal courts to allow camera access to civil proceedings, but the conference voted by a 2-1 margin to reject the recommendation, citing the potentially intimidating effect of cameras on parties, witnesses and jurors.

Members revisited the issue in 1996, again voting against cameras in federal courts. Since then, all but two federal appellate courts &#151 in New York and San Francisco &#151 have adopted camera prohibitions.

Two federal judges who have experienced televised court coverage testified at the Senate hearing, including Judge Jan E. DuBois of Philadelphia.

“My personal opinion is that, at the trial level, the disadvantages of cameras in the courtroom far outweigh the advantages,” DuBois testified. “In such a setting, the camera is likely to do more than report the proceeding &#151 it is likely to influence the substance of the proceeding.”

DuBois told the committee that he granted camera access in three trials during the pilot program, one of which the media attended. Cameras were present only on the trial’s first day, he said.

Among his concerns are the potential impact of cameras on jurors and witnesses, the possible objection of parties and the potential to “seriously jeopardize” a defendant’s fair trial right.

Judge Diarmuid O’Scannlain of the appeals court in San Francisco told the panel that his court continues to allow cameras at its judges’ discretion and that prohibition on televised coverage of federal appellate courts should end.

However, O’Scannlain noted “important” differences between appellate and criminal courts, saying he has concerns about the effect of television coverage in the latter.

Nevertheless, O’Scannlain rebutted common arguments against televised coverage at the federal level, including the idea that the courts would become more politicized under the camera’s eye.

Instead, he said, a glimpse into the “thoughtful, deliberative” process of the appellate courts might help eliminate the perception that appellate courts are “results-oriented bodies.”

“Contrary to the politicization concern expressed by camera opponents, I believe that greater media access might depoliticize appellate proceedings and the public’s perception of the appellate legal process, not the other way around,” O’Scannlain testified. “When barred from the courtroom, the news media is able only to report on court holdings, rather than process.”

Barbara Bergman, president of the National Association of Criminal Defense Lawyers, offered qualified support, suggesting that federal criminal trials be televised only if both the accused and the government agree.

Seth Berlin, a Washington, D.C., media attorney who also testified, said that if Congress and judges allow cameras into the Supreme Court or the federal courts, the real benefit will be for the public, not the media.

“I think the significance is that a larger number of people would understand what happens in the courtroom, in a way that would be of substantial benefit to the public,” he said in an interview.