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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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