Court TV Challenges the Constitutionality of New York’s Ban on Televising Trials

[April 2005]

In this era of instant information, you can find a live broadcast of a variety of events. In fact, if you have cable or satellite television, you’ve probably come to expect live broadcasts of a vast spectrum of news and documentary-style programming, including criminal and civil trials in many different state courts. What you will not see, however, is a live or taped broadcast of a trial in New York, no matter how newsworthy the trial. That’s because New York Civil Rights Law § 52 prohibits - without exception - televising and broadcasting trials. The New York Court of Appeals, New York state’s highest court, soon will have an opportunity to decide whether the media should be permitted, as a presumptive right, to televise public trials. In Courtroom Television v. State of New York, Courtroom Television Network (“Court TV”) seeks a declaration that New York Civil Rights Law § 52 is unconstitutional under the First Amendment of the U.S. Constitution and/or Article I, § 8 of the New York State Constitution. Thus far, both the trial court and the intermediate appellate court in New York have ruled against Court TV. Courtroom Television v. New York, 769 N.Y.S.2d 70 (N.Y. Sup. Ct. 2003); Courtroom Television v. New York, 779 N.Y.S.2d 74 (N.Y. App. Div. 2004).

Of course, most of us remember the O.J. Simpson criminal trial, which America watched closely for months. Some commentators argued that the trial’s participants “played” to the cameras or were otherwise affected by being foisted onto the national stage, transforming the trial into something other than a fair and objective process.

Others contended that the dispassionate broadcasting of actual trial testimony provided the only educational and objective source of information in a trial that would have been sensationalized regardless of whether television cameras were placed inside or outside of the courtroom. Perhaps not coincidentally, it was shortly after the Simpson trial that New York reenacted New York Civil Rights Law § 52’s complete ban on television coverage in New York’s courtrooms, and ended its 10 year experiment (1987-1997) with permitting television cameras in the courtroom.

Background to New York Civil Rights Law § 52

As Court TV documented in its complaint, New York’s restrictions on media coverage of trials began with the 1935 trial of Bruno Hauptmann, in which Hauptmann was accused of kidnapping and murdering Charles A. Lindbergh’s 18 month-old son. 769 N.Y.S.2d at 74. A popular commentator during the time called the trial a “Roman Holiday”-scads of photographers aimed their bulky cameras in the faces of witnesses and uncontrollably spilled themselves over counsels’ tables. The judge imposed access restrictions barring any further photographic coverage during the trial and demanded that the newsreel companies “withdraw the trial footage from exhibition,” but the trial footage played in over 70 percent of the nation’s movie theaters at the time. Id. at 73-74.

In 1937, the American Bar Association responded to the Hauptmann trial by adopting Judicial Canon 35, which stated that “The taking of photographs in the courtroom, during sessions of the court or recesses between sessions, and the broadcasting of court proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted.” Id.; Validity, Propriety, and Effect of Allowing or Prohibiting Media’s Broadcasting, Recording, or Photographing Court Proceedings, 14 A.L.R.4th 121 (2004). New York’s Civil Rights Law § 52, enacted in 1952, emerged from a similar reaction to the nationally-televised anticommunist “witch hunts” conducted by the United States Senate Crime Investigating Committee in New York. Trial brief for plaintiff at 6; Association of the Bar of the City of New York,” Report on Radio and Television Broadcasting of Hearings of Congressional Investigating Committees” (1951).

New York’s Civil Rights Law § 52 states that:

No person, firm, association or corporation shall televise, broadcast, take motion pictures or arrange for the televising, broadcasting, or taking of motion pictures within this state of proceedings, in which the testimony of witnesses by subpoena or other compulsory process is or may be taken, conducted by a court, commission, committee, administrative agency or other tribunal in this state....

The purpose of Section 52 was clearly identified at the signing of the bill when Governor Thomas E. Dewey pronounced that:

It is basic to our concept of justice that a witness compelled to testify have fair opportunity to present his testimony. The use of television, motion pictures and radio at such proceedings impairs this basic right. Batteries of cameras, microphones and glaring lights carry with them attendant excitement, distractions and the potential for improper exploitation and intolerable subversion of the rights of the witness. Official proceedings should not be converted into indecorous spectacles. 769 N.Y.S.2d at 73 (quoting Public Papers of Governor Dewey, 324-25 (1952)).

This ban on courtroom cameras remained intact for over 30 years.

New York experiments with television cameras in the courtroom from 1987-1997

The Legislature reconsidered the wisdom of New York Civil Rights Law § 52 decades later, as technology advanced and cameras no longer required blinding flashbulbs or resulted in pandemonium in the courtroom. Motivated to educate the public and inspire public confidence in the judiciary and recognizing that improvements in technology would minimize disruption in the courtroom, in 1987 the Legislature approved Judiciary Law § 218, which, on a two-year trial basis, permitted audio-visual coverage subject to the trial judge’s continuing discretion. In connection with this experiment, the chief administrator of the courts conducted surveys of participants in televised trials and submitted a report in 1989, which concluded that physical disruptions were minimal and that most of the trial participants favored the media coverage. Id. at 77-80. The methodology of the report was disputed by some groups (e.g., the New York State Defender’s Association’s Cameras in NY Courtrooms White Paper (1999)) and also by some legislators.

In response to these challenges, the Legislature authorized a second (1989) and later a third (1992) experimental period. Adopting improvements in the survey methodology, the second and third reports corresponding with the second and third experiments still recorded results consistent with the first report and concluded with a recommendation to make Judiciary Law § 218 permanent. 769 N.Y.S.2d at 80-82.

Instead of accepting these recommendations, the Legislature decided to extend the experiment for a fourth trial period (1995). An advisory committee submitted a report following the fourth experiment, noting the potential drawbacks of televising trials, some of these fears stemming from its perception of the O.J. Simpson trial. Nevertheless, the committee concluded that these fears had not been realized in New York during the experimental periods and that a wholesale ban on television cameras in the courtroom could not be justified. Id. at 86-94. In contrast, a Minority Report, delivered by one of the committee’s dissenters, argued that too many concerns had been raised-in particular, the fear that televised trials would deter witnesses from testifying-to justify the committee’s recommendation. The Legislature subsequently failed to extend or reenact Judiciary Law § 218, and since then, New York Civil Rights Law § 52’s ban on cameras in the courtroom has remained intact. Id. at 94-96.

The Supreme Court of New York and the Appellate Division uphold New York Civil Rights
Law § 52

In 2003, Court TV sought in New York State Supreme Court (New York’s trial court) a declaratory judgment holding Civil Rights Law § 52’s outright ban on cameras in the courtroom unconstitutional. Without asserting that televising judicial proceedings is a constitutional requirement in every case, Court TV argued that under the First Amendment of the U.S. Constitution and Article I, § 8 of New York’s Constitution, there is a presumptive right to observe public trial court proceedings, as noted in the U.S. Supreme Court’s landmark decision, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980). Trial brief for plaintiff at 12-18; 769 N.Y.S.2d 70 (N.Y. S. Ct. 2003). That presumptive right, argued Court TV, should include the observational rights of citizens who wish to observe those same proceedings on a television screen. This wide protection accords with the U.S. Supreme Court’s broad definition of First Amendment protections in First National Bank of Boston v. Bellotti, which “prohibit[s] government from limiting the stock of information from which members of the public may draw.” 435 U.S. 765, 783 (1978); trial brief for plaintiff at 13. Furthermore, Article 1, § 8 of New York’s Constitution, which prohibits the use of official authority to “restrain or abridge the liberty of speech or of the press,” affords even broader protection than the U.S. Constitution. Brief for plaintiff at 19.

The New York State Supreme Court held that both Richmond and Bellotti stand for the limited proposition that there is a First Amendment right to attend and report on trials, not to televise them, and emphasized that no appellate court has ever applied strict scrutiny to restrictions on audio-visual coverage of a trial. 769 N.YS.2d at 98-99. It cited a number of federal appellate courts, including the Second Circuit, that have sustained prohibitions on audio-visual coverage of trials. E.g., Combined Communications Corp. v. Finesilver, 672 F.2d 818, 821 (10th Cir. 1982); Conway v. United States, 852 F.2d 187, 188-89 (6th Cir. 1988); United States v. Edwards, 785 F.2d 1293, 1295 (5th Cir. 1986); United States v. Kerley, 753 F.2d 617, 620-22 (7th Cir. 1985); United States v. Hastings, 695 F.2d 1278, 1280 (11th Cir. 1983); Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2nd Cir. 1984). Thus, the court concluded that Section 52 constitutes a limitation on the time, place and manner of press coverage, which must be upheld if the record demonstrates that these restrictions bear a reasonable relationship to the attainment of a legitimate governmental interest. 769 N.Y.S.2d at 99-101. The court opined that the concerns that emerged from New York’s 10-year experiment-particularly the suggestion that witnesses would be deterred from testifying-supported the state’s claim that Civil Rights Law § 52 reasonably advances the state’s interest in conducting fair trials. And while the court agreed that Article I, § 8 of New York’s Constitution provides broader speech protection than the First Amendment in some instances, it held that “the record raises a reasonable doubt that the needs and expectations of New York citizens demand a constitutional right to televised court proceedings.” 769 N.Y.S.2d at 100-103.

The Supreme Court’s Appellate Division (New York’s intermediate appellate court) similarly held that there is no federal or state constitutional right to televise court proceedings. 779 N.YS.2d 74 (N.Y. App. Div. 2004). Unlike the lower court, however, the Appellate Division entertained the assumption that Section 52 restricts some speech, but nevertheless posited that Section 52 would survive the intermediate level of judicial scrutiny that applies to content-neutral statutes. Id. at 76. The Appellate Division held that “Section 52 is sufficiently tailored to further an important state interest, namely, the preservation of the value and integrity of live witness testimony in state tribunals.” Id. Thus, the court held that even if less-restrictive measures could have been adopted to achieve the purpose of the legislation (the test under strict scrutiny), Section 52 should still be upheld as constitutional. Id.

Court TV’s forthcoming argument before the New York Court of Appeals

Court TV’s argument before the Court of Appeals will focus on the lower courts’ failure to recognize that the U.S. Supreme Court and appellate court decisions from decades ago invited courts in the future to reconsider whether there is a First Amendment right to televise trials. Quoting from the Second Circuit Westmoreland opinion, the New York Supreme Court stated that “[t)here is a long leap ... between a public right under the First Amendment to attend trials and a public right under the First Amendment to see a given trial televised.” 769 N.Y.S.2d at 98 (quoting Westmoreland, 752 F.2d at 23). However, Westmoreland was decided 20 years ago, yet the court still acknowledged that:

There may indeed come a time when ‘experimentation’ ... with television coverage establishes that the concerns...are considered secondary or basically irrelevant as impediments to the search for truth when a given case is televised. At such a time the presumption may well be that all trials should be televised, or televisable....

752 F.2d at 23; Court of Appeals brief for plaintiff at 18.

Likewise, 40 years ago in Estes v. Texas, the U.S. Supreme Court rejected a First Amendment right of camera access, describing the hectic conditions brought upon by the televised trial that deprived the defendant of a fair trial: 12 cameramen scurrying about the courtroom throughout the proceedings with cables and wires snaked across the courtroom floor. 381 U.S. 532, 536 (1965); Court of Appeals brief for plaintiff at 17. Still, in his concurrence, Justice Harlan had the foresight to anticipate future reconsideration of the right to televise trials:

Finally, we should not be deterred from making the constitutional judgment which this case demands by the prospect that the day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process. If and when that day arrives the constitutional judgment called for now would of course be subject to re-examination in accordance with the traditional workings of the Due Process Clause.

381 U.S. at 595; Court of Appeals brief for plaintiff at 17.

Court TV will argue that the day for reexamination has arrived. Televising and broadcasting newsworthy events is now not only commonplace, but it is expected, and technology has advanced to the point that filming is much less a physical imposition than it was 40-or even 20-years ago. In contrast to the Estes Court’s “most telling” evidence that in 1965, 48 states had deemed televised coverage of trials improper, 381 U.S. at 544, now 43 states permit it. Even in the period following the Simpson trial, when apprehension grew to a peak, six states have joined the majority by permitting coverage. Court of Appeals brief for plaintiff at 18-19.

Indeed, ten years of experimentation with cameras in the courtroom in New York resulted in a finding that the dangers of televising trials have dissipated to the point that a wholesale ban no longer can be justified. In light of these conclusions, almost a decade ago, Judge Sweet, federal district court judge in the Southern District of New York, stated that a First Amendment right to televise public court proceedings should be presumed:

Twelve years after the Westmoreland decision and 22 years after the Estes holding, the advances in technology and the above-described experiments have demonstrated that the stated objections can readily be addressed and should no longer stand as a bar to a presumptive First Amendment right of the press to televise as well as publish court proceedings, and of the public to view those proceedings on television.

Katzman v. Victoria’s Secret Catalogue, 923 F. Supp. 580, 589 (S.D.N.Y. 1996).

Court TV will argue that the lower courts failed to read Richmond Newspapers and its progeny broadly enough. The right of access in Richmond Newspapers encompasses more than just physical entrance-it incorporates the right to collect and disseminate information that is fundamental to our values of openness and self-sovereignty. The per se ban on the modern tools of trade used for gathering and distributing information in public court proceedings is just the type of wholesale restriction to which Richmond Newspapers applied heightened scrutiny. Court of Appeals brief for plaintiff at 21-30. New York Civil Rights Law § 52 is not a reasonable limitation on access to a trial-it is a ban on an entire category of information. To the vast majority of the public who could only view a public trial by watching it on television, it constitutes nothing short of an outright denial of access.

Conclusion

The lower courts attempted to justify a narrow reading of past U.S. Supreme Court and appellate court cases by pointing out that no appellate court in any state or federal jurisdiction has applied strict scrutiny to restrictions on audio-visual coverage of trials. This may very well be because the vast majority of states do not impose an outright ban on televising public trials. It is ironic that New York, which expressly protects First Amendment rights more broadly and vigorously than almost any other state, is one of the few remaining states that supports an outright ban of televising trials. The New York Court of Appeals now has a chance to be the first appellate court to proclaim that there is a presumptive right to televise trials, which, Court TV will argue, is an opportunity to bring First Amendment jurisprudence up to speed with our modern era.

Contact Information

Co-chair, Kelli L. Sager, Los Angeles, (213) 633-6821, kellisager@dwt.com
Co-chair, Daniel M. Waggoner, Seattle, (206) 628-7707, danwaggoner@dwt.com
Editor, Rochelle L. Wilcox, Los Angeles, (213) 633-6883, rochellewilcox@dwt.com

This First Amendment Law Letter is a publication of the law firm of Davis Wright Tremaine LLP and is prepared by its Communications, Media and Information Technologies Department. Our purpose in publishing this law letter is to inform our clients and friends of recent First Amendment and communications law developments. It is not intended, nor should it be used as a substitute for specific legal advice since legal counsel may be given only in response to inquiries regarding particular factual situations.

Copyright © 2005, Davis Wright Tremaine LLP.

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