Who's Afraid of Cameras in the Courtroom(online.wsj.com)
online.wsj.com
Who's Afraid of Cameras in the Courtroom
http://online.wsj.com/article/SB10001424052748703964104575334831068223478.html?mod=WSJ_Opinion_LEFTTopOpinion
6 comments
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Article I
Section 1.
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. *
Regardless of our respective opinions on the matter, I don't see an [honest] interpretation of the above which gives the court (a) legislative power to (b) abridge the freedom of the press [within it's on courtrooms].
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. *
Regardless of our respective opinions on the matter, I don't see an [honest] interpretation of the above which gives the court (a) legislative power to (b) abridge the freedom of the press [within it's on courtrooms].
That argument depends on showing how photo/videography of courtroom proceedings would provide substantially more information to the public than textual or graphical reportage does now. Is the public going to be any better off by having access to recording of a judge's furrowed brow or the steely glint in a prosecutor's eye? Because past experience has shown that such trivialities are the sort of material that gets replayed over and over on TV.
More seriously, consider the fact that people's attractiveness varies considerably, and a large part of our media is built upon selecting for visual attraction. What effect do you think that televised trials will have for plaintiffs, defendants, or witnesses who are ugly, or have a speech impediment, or whose attorney would come last in a beauty contest? It's a well-known fact that simply being taller correlates strongly with victory in presidential elections. Televised coverage of an emotive case mandates developing a 'charismatic strategy', and selecting for counsel and testimony based on their favorable visual impact - after all, this is the essential function of the casting process in narrative filmmaking (where I work). Once you go down this road you might as well go all the way: 'Your honor, I move for an extreme close-up of the witness, emphasizing his shifty gaze!' 'Objection! A cutaway to the defendant's cringing posture is clearly in order!'
On a more general note, your literalist reading of the 1st Amendment would grant the press the right to do anything at all - burst into your home while you're on the toilet, raid your bank account, murder people on live TV, and start shooting wars in the name of public curiosity about the potential outcome. By this logic, anyone who declares themselves to be a publisher and has an inkjet printer or a blog is exempt from any constraints as long as they provide regular updates on their field of interest. Strict construction that leads to absurdities is no better than implicit assumptions about the judicial branch's freedom to establish standards for its own operation.
More seriously, consider the fact that people's attractiveness varies considerably, and a large part of our media is built upon selecting for visual attraction. What effect do you think that televised trials will have for plaintiffs, defendants, or witnesses who are ugly, or have a speech impediment, or whose attorney would come last in a beauty contest? It's a well-known fact that simply being taller correlates strongly with victory in presidential elections. Televised coverage of an emotive case mandates developing a 'charismatic strategy', and selecting for counsel and testimony based on their favorable visual impact - after all, this is the essential function of the casting process in narrative filmmaking (where I work). Once you go down this road you might as well go all the way: 'Your honor, I move for an extreme close-up of the witness, emphasizing his shifty gaze!' 'Objection! A cutaway to the defendant's cringing posture is clearly in order!'
On a more general note, your literalist reading of the 1st Amendment would grant the press the right to do anything at all - burst into your home while you're on the toilet, raid your bank account, murder people on live TV, and start shooting wars in the name of public curiosity about the potential outcome. By this logic, anyone who declares themselves to be a publisher and has an inkjet printer or a blog is exempt from any constraints as long as they provide regular updates on their field of interest. Strict construction that leads to absurdities is no better than implicit assumptions about the judicial branch's freedom to establish standards for its own operation.
Heh. You say "literalist reading" is if that's a bad thing! Surely you jest. In my opinion it's the only way to read that document, and on this point we obviously disagree.
I will be more clear. In my opinion, freedom of the press is intended to perpetuate the ability of private citizens to monitor actions of government. Freedom of speech protects the right to publish those facts discovered by the press. You may twist that to include intrusion on private parties, or a slippery slope where lawlessness and slander rule, but that is not what I am saying.
The foundation of my argument is that proceedings of any court are official actions of government, and therefore information that shall be in the public domain. If you want, you could add the word eventually to the end of that sentence, I don't really care. I'm not talking about beauty contests or "courts of public opinion", I'm only talking about accountability of government. In that context, if the press deems themselves, or their viewers the private citizens, best served by documenting the actions of government with the most sophisticated technologies available, where is the power of the judiciary explicitly enumerated to deny it?
I will be more clear. In my opinion, freedom of the press is intended to perpetuate the ability of private citizens to monitor actions of government. Freedom of speech protects the right to publish those facts discovered by the press. You may twist that to include intrusion on private parties, or a slippery slope where lawlessness and slander rule, but that is not what I am saying.
The foundation of my argument is that proceedings of any court are official actions of government, and therefore information that shall be in the public domain. If you want, you could add the word eventually to the end of that sentence, I don't really care. I'm not talking about beauty contests or "courts of public opinion", I'm only talking about accountability of government. In that context, if the press deems themselves, or their viewers the private citizens, best served by documenting the actions of government with the most sophisticated technologies available, where is the power of the judiciary explicitly enumerated to deny it?
I can't help observing that you go from saying a literalist reading "[is] the only way to read that document" to inferring the purpose and scope of the 1st Amendment in the very next paragraph.
Now, it happens that I agree its primary purpose is to guarantee citizens' right to oversee and criticize governors - and like you, I infer that from its context. That can include the overall thrust of the document, its historical context (eg the oft-quoted Federalist Papers), and to some extent the interpretations of it since that time by various parties at the Supreme Court; your choices of context may vary, but we both seem to agree that some purpose was intended for this amendment to exist, and that both purpose and intent are discoverable.
I'll move on to your substantive argument in a moment, but you can't champion a literal reading or interpretation of the words as written, while simultaneously applying three separate constraints to 'freedom of the press'. You limited to freedom of publication rather than discovery (and obviated your own argument about the press's right to use the technology of choice in courtrooms); you limited it to factual matters (which would instantly put fictional, speculative, and political opinion outside the scope of the 1st amendment); and you limited to reports on government (so coverage of anything not funded by the taxpayer isn't protected either). Maybe that would actually be a good standard, and balance the need for an informed electorate with individuals' valuable privacy. But your stated opinion about the purpose or meaning of a free press is not found in the constitution. Beyond construing 'the press' as a means of and proxy for 'publishing', courts have interpreted the 1st amendment as its actually written to mean almost anything, short of a direct danger to public safety...a far broader freedom that your own definition would confer.
Apart from my natural pedantry :-) I mention all this because I've noticed that when complaints about the scope of judicial power come up, they are often coupled with tendentious comments on the correct manner of interpreting and administering the law. I think this 'strict construction' meme needs to die: the law is not specified as tightly as a programming language and judges are not dispassionate compilers. As you have demonstrated above, even the simplest syllogisms are predicated on implicit assumptions. Instead of a fallacious appeal to authority (strict construction of vague axioms, to say nothing of linguistic ambiguity), we would do better to accept the limitations of formalism and resort to tools like Bayesian inference or economic analysis when they can help us decide between conflicting imperatives.
As you say elsewhere, the court doesn't have legislative power to abridge the freedom of the press, since courts aren't legislatures. Correct me if I'm wrong, but I assume your meaning was that since no legislation exists banning cameras from courts, and congress can't pass any for constitutional reasons, judges should not abrogate to themselves such decisions as if they were legislators. Fair enough - but a constitutional constraint on legislative power does not bar the exercise of executive or judicial power - subject to oversight, impeachment or constitutional amendment by Congress. Thus it is within the president's power to classify information, conduct certain activities in secret, and even to prevent publication under some circumstances. Where the scope of that power is in dispute, the question is generally justiciable, and judges in turn frequently issue injunctions which limit the power of the press to publish certain information - sometimes on grounds of security, sometimes to facilitate a fair trial.
As to your closing question: Article III of the constitution establishes the judiciary, and section 2 of that article extends the judicial Power 'to all cases, in law or equity, arising under this constitution, the laws of the the United states, and Treaties made under their authority" [and going on to describe the boundaries thereof]. This has been understood for a long time to mean the Judicial Branch is competent to supervise its own operations, and not least because the constitution places so few constraints on the membership or operations of the judicial branch, in contrast to the executive and legislative ones.
Thus, the question is left to the judiciary itself. The press may assert that its interests or those of the public (which the press, to its great credit, has always found to be identical) are best served by the addition of cameras or by conducting continuous MRI/PET scans of the parties' brainwaves during proceedings; but the decision of that claim is made on the bench. If the press has any argument for why video delivers greater accountability than the almost-instant availability of transcripts and opinions that exists currently, I look forward to hearing it.
Now the issue in Grellas' original article (though only implicitly stated) is an ongoing argument about putting cameras in the Supreme Court. This is a good question to ask, because you can already listen to audio recordings of all proceedings (which are most instructive) and since arguments in the supreme court almost never involve defendants or witnesses, but only attorneys presenting short arguments about legal technicalities, justice would probably not be harmed by letting the public see the proceedings. Indeed, since looking at the court requires going to DC and standing in line to get a gallery ticket, most people never get the opportunity to see the Supremes at work - you have a far better chance of seeing the President in person than a Supreme Court justice. Thus, it's argued, TV would make the operation of the judicial branch much more accessible to ordinary Americans.
I think they object for 3 reasons. One is a sentimental fondness for judicial mystique among some justices. This is a poor reason, but I'm sentimental enough to admit that and yet share it myself. Two is a more serious worry that every Supreme Court hearing and subsequent delivery of an opinion would be subjected to the 'true crime!!!' video editing treatment. This would arguably undermine the dignity of the judicial process in general, but in particular where highly emotive or grave cases were before the court - can you imagine someone's death penalty appeal being reported with crash zooms and freeze frame closeups of a justice every time one asks a question? Equally, it could be used to mislead: popular stereotypes about the court, both left and right, have little to do with reality. I would hate to see footage of proceedings recycled in support of 'Impeach Justice ____' campaigns on YouTube or the TV.
The third reason is the most important. Whereas regular video of Supreme Court proceedings might result in mockery or misuse, the most likely casualty would be bruised egos rather than justice itself. but if they were the norm in the Supreme Court, it would be very difficult to argue that they should be excluded from proceedings in appellate, district, specialty or the various state courts. And that would be bad for the reasons I stated above: basically, civil and criminal proceedings would become the stuff of reality shows (TV producers would love it, since they would have an endless supply of free public domain footage). One might object that this hasn't really happened in congress of state legislatures: my answer is that it actually has to an extent, and that in the meantime the mechanism of representative government acts as a filter for what gets to the floor of the legislature. In court proceedings parties are often there involuntarily, whether at the behest of prosecutors or to answer civil suits. Treating their due process as the raw material of tabloid entertainment would make a wreck of the legal system in short order, to the great detriment of the public.
So much as I'd like to be able to watch the Supremes at work rather than just listen to or read transcripts of them, I'm not willing to pay the likely price for my curiosity.
Now, it happens that I agree its primary purpose is to guarantee citizens' right to oversee and criticize governors - and like you, I infer that from its context. That can include the overall thrust of the document, its historical context (eg the oft-quoted Federalist Papers), and to some extent the interpretations of it since that time by various parties at the Supreme Court; your choices of context may vary, but we both seem to agree that some purpose was intended for this amendment to exist, and that both purpose and intent are discoverable.
I'll move on to your substantive argument in a moment, but you can't champion a literal reading or interpretation of the words as written, while simultaneously applying three separate constraints to 'freedom of the press'. You limited to freedom of publication rather than discovery (and obviated your own argument about the press's right to use the technology of choice in courtrooms); you limited it to factual matters (which would instantly put fictional, speculative, and political opinion outside the scope of the 1st amendment); and you limited to reports on government (so coverage of anything not funded by the taxpayer isn't protected either). Maybe that would actually be a good standard, and balance the need for an informed electorate with individuals' valuable privacy. But your stated opinion about the purpose or meaning of a free press is not found in the constitution. Beyond construing 'the press' as a means of and proxy for 'publishing', courts have interpreted the 1st amendment as its actually written to mean almost anything, short of a direct danger to public safety...a far broader freedom that your own definition would confer.
Apart from my natural pedantry :-) I mention all this because I've noticed that when complaints about the scope of judicial power come up, they are often coupled with tendentious comments on the correct manner of interpreting and administering the law. I think this 'strict construction' meme needs to die: the law is not specified as tightly as a programming language and judges are not dispassionate compilers. As you have demonstrated above, even the simplest syllogisms are predicated on implicit assumptions. Instead of a fallacious appeal to authority (strict construction of vague axioms, to say nothing of linguistic ambiguity), we would do better to accept the limitations of formalism and resort to tools like Bayesian inference or economic analysis when they can help us decide between conflicting imperatives.
As you say elsewhere, the court doesn't have legislative power to abridge the freedom of the press, since courts aren't legislatures. Correct me if I'm wrong, but I assume your meaning was that since no legislation exists banning cameras from courts, and congress can't pass any for constitutional reasons, judges should not abrogate to themselves such decisions as if they were legislators. Fair enough - but a constitutional constraint on legislative power does not bar the exercise of executive or judicial power - subject to oversight, impeachment or constitutional amendment by Congress. Thus it is within the president's power to classify information, conduct certain activities in secret, and even to prevent publication under some circumstances. Where the scope of that power is in dispute, the question is generally justiciable, and judges in turn frequently issue injunctions which limit the power of the press to publish certain information - sometimes on grounds of security, sometimes to facilitate a fair trial.
As to your closing question: Article III of the constitution establishes the judiciary, and section 2 of that article extends the judicial Power 'to all cases, in law or equity, arising under this constitution, the laws of the the United states, and Treaties made under their authority" [and going on to describe the boundaries thereof]. This has been understood for a long time to mean the Judicial Branch is competent to supervise its own operations, and not least because the constitution places so few constraints on the membership or operations of the judicial branch, in contrast to the executive and legislative ones.
Thus, the question is left to the judiciary itself. The press may assert that its interests or those of the public (which the press, to its great credit, has always found to be identical) are best served by the addition of cameras or by conducting continuous MRI/PET scans of the parties' brainwaves during proceedings; but the decision of that claim is made on the bench. If the press has any argument for why video delivers greater accountability than the almost-instant availability of transcripts and opinions that exists currently, I look forward to hearing it.
Now the issue in Grellas' original article (though only implicitly stated) is an ongoing argument about putting cameras in the Supreme Court. This is a good question to ask, because you can already listen to audio recordings of all proceedings (which are most instructive) and since arguments in the supreme court almost never involve defendants or witnesses, but only attorneys presenting short arguments about legal technicalities, justice would probably not be harmed by letting the public see the proceedings. Indeed, since looking at the court requires going to DC and standing in line to get a gallery ticket, most people never get the opportunity to see the Supremes at work - you have a far better chance of seeing the President in person than a Supreme Court justice. Thus, it's argued, TV would make the operation of the judicial branch much more accessible to ordinary Americans.
I think they object for 3 reasons. One is a sentimental fondness for judicial mystique among some justices. This is a poor reason, but I'm sentimental enough to admit that and yet share it myself. Two is a more serious worry that every Supreme Court hearing and subsequent delivery of an opinion would be subjected to the 'true crime!!!' video editing treatment. This would arguably undermine the dignity of the judicial process in general, but in particular where highly emotive or grave cases were before the court - can you imagine someone's death penalty appeal being reported with crash zooms and freeze frame closeups of a justice every time one asks a question? Equally, it could be used to mislead: popular stereotypes about the court, both left and right, have little to do with reality. I would hate to see footage of proceedings recycled in support of 'Impeach Justice ____' campaigns on YouTube or the TV.
The third reason is the most important. Whereas regular video of Supreme Court proceedings might result in mockery or misuse, the most likely casualty would be bruised egos rather than justice itself. but if they were the norm in the Supreme Court, it would be very difficult to argue that they should be excluded from proceedings in appellate, district, specialty or the various state courts. And that would be bad for the reasons I stated above: basically, civil and criminal proceedings would become the stuff of reality shows (TV producers would love it, since they would have an endless supply of free public domain footage). One might object that this hasn't really happened in congress of state legislatures: my answer is that it actually has to an extent, and that in the meantime the mechanism of representative government acts as a filter for what gets to the floor of the legislature. In court proceedings parties are often there involuntarily, whether at the behest of prosecutors or to answer civil suits. Treating their due process as the raw material of tabloid entertainment would make a wreck of the legal system in short order, to the great detriment of the public.
So much as I'd like to be able to watch the Supremes at work rather than just listen to or read transcripts of them, I'm not willing to pay the likely price for my curiosity.
In a similar vein, does anyone here think it even remotely possible that we could today elect a president who was (mostly or entirely) confined to a wheelchair? In the days before ubiquitous video, this was not a problem at all.
I'm not sure that stopping you from carrying a camera into a courtroom counts as limiting the freedom of the press. Courtrooms are special places, and very different rules apply there. Heck, the judge doesn't have to let you in at all, if he doesn't feel like it.
You're right, though I'm not sure it even needs to be a "special place" to count. Public toilets, prisons, and schools are "public" buildings but the press can't just waltz in and film anything to get a story.
The freedom of the press is the freedom to publish. That has very little to do with the methods used to gather the information in the first place, or the type of information gathered.
Freedom of the press is a subset and clarification of freedom of speech - it is important that it is not treated differently. It is not the freedom for the "press" as an establishment to do whatever they want in the persuit of material.
Freedom of the press is a subset and clarification of freedom of speech - it is important that it is not treated differently. It is not the freedom for the "press" as an establishment to do whatever they want in the persuit of material.
Freedom of the press is specifically intended to protect the ability of private citizens to document the actions of government. Freedom of speech protects the ability to publish those facts. In combination these rights are intended to hold government accountable to the citizens. The proceedings which take place in a courtroom are by definition actions of government, and should therefore be subject to whatever means of documentation members of the private press deem most effective for their ends.
(Don't add spaces to the asterisk)
*like this*
* like this *It can't be fear of pre-trial publicity: Major trials are front-page news, with or without a video feed, and the days of the blissfully ignorant jury pool are long gone.
It can still be fear of exacerbating an existing problem. That said, would this be mitigated by only allowing release of the footage after everything is over?
It can still be fear of exacerbating an existing problem. That said, would this be mitigated by only allowing release of the footage after everything is over?
> That said, would this be mitigated by only allowing release of the footage after everything is over?
I'd recommend only releasing the footage if the person was found guilty.
I'd recommend only releasing the footage if the person was found guilty.
...and has exhausted all appeals, and...
I know I'm being grumpy about this, but I just don't see what public good will be served by such a move. I can't think of any clear benefit the televised coverage has brought to the legislative process, and extrapolating from existing coverage of the courts I suspect the vast majority of airtime would be spent on catering to the most prurient sort of public curiosity.
If one considers McLuhan's famous remark that 'the medium is the message,' it's hard to ignore the fact that the medium of television is awash in sensational trivia, relies heavily on emotional manipulation of the viewer to construct a compelling visual narrative, and frequently oversimplifies complex issues to the point of distorting the facts. Now this is no more the fault of broadcast technology or infrastructure any more than lies are the fault of the speaker's larynx or distant relatives; but the sad reality is that a great deal of television is the intellectual equivalent of a sewer, and whatever you drop into a sewer is going to end up getting dirty. It's a problem that law and the legal process are so obscure and inaccessible to the public - but not one that will be solved by turning courtrooms into studio sets.
I know I'm being grumpy about this, but I just don't see what public good will be served by such a move. I can't think of any clear benefit the televised coverage has brought to the legislative process, and extrapolating from existing coverage of the courts I suspect the vast majority of airtime would be spent on catering to the most prurient sort of public curiosity.
If one considers McLuhan's famous remark that 'the medium is the message,' it's hard to ignore the fact that the medium of television is awash in sensational trivia, relies heavily on emotional manipulation of the viewer to construct a compelling visual narrative, and frequently oversimplifies complex issues to the point of distorting the facts. Now this is no more the fault of broadcast technology or infrastructure any more than lies are the fault of the speaker's larynx or distant relatives; but the sad reality is that a great deal of television is the intellectual equivalent of a sewer, and whatever you drop into a sewer is going to end up getting dirty. It's a problem that law and the legal process are so obscure and inaccessible to the public - but not one that will be solved by turning courtrooms into studio sets.
Okay, let me clarify. I do not support releasing the footage. (I've argued both sides of this for an ethics class in college, I'm definitely against) I, for one, am definitely not sexy enough to be innocent on TV.
If footage is ever to be released that guy had been damn well be guilty. (I'd disagree with releasing footage that involves a plea bargin)
If footage is ever to be released that guy had been damn well be guilty. (I'd disagree with releasing footage that involves a plea bargin)
How about neither - there can always be a retrial and/or appeal and/or exoneration by other means.
Perhaps having live streams of trial courts might not be the right idea(1), but if we can't videotape trial courts, I definitely think appeals courts should have A/V access. In large part, appeals courts are where the law is "decided," versus the outcome of a case impacting, usually, a single person. The actions, decisions, and debate found in appellate courts (including the Supreme Court of the U.S., as well as the highest courts in a given state) should be widely available. The Supreme Court's practice of not immediately releasing audio recordings of certain high-profile cases, but selectively releasing them in others, is troubling to me.
1 - Editorial: I think that all courts should have live A/V feeds automatically available, except in cases involving a minor or a victim of a sexually-related crime.
1 - Editorial: I think that all courts should have live A/V feeds automatically available, except in cases involving a minor or a victim of a sexually-related crime.
Are good artists prohibited from drawing in courtrooms? I'm not familiar with the rules, so I'm curious if a photo realistic artist could draw the scene.
Courtroom artists serve exactly that function - to sketch the scene in courtrooms where cameras are not allowed, for distribution through the news media. I'm not sure what the trend is but I wouldn't be surprised if it is a waning profession, given increasing number of courts that allow photography/video.
I don't get it, did a moron write this piece?
In 1965...[the Supreme] Court found that cameras had a prejudicial impact on pre-trial publicity, affected the truthfulness of witnesses, and generally impacted (negatively) a defendant's fair-trial rights.
2 paragraphs later, without even trying to tackle any of these 3 points:
Why, then, the ban?
Um, read your own story man.
In 1965...[the Supreme] Court found that cameras had a prejudicial impact on pre-trial publicity, affected the truthfulness of witnesses, and generally impacted (negatively) a defendant's fair-trial rights.
2 paragraphs later, without even trying to tackle any of these 3 points:
Why, then, the ban?
Um, read your own story man.
I'm very much against censorship and think the 1st Amendment is one of the cornerstones of American life, but in a few matters I am unable to shake off my European upbringing. One is Court TV shows like Judge Judy where they re-enact small claims hearings for entertainment purposes. Another is mugshots and 'perp walks' released to or conducted for the media when someone is arrested. While the suspect very often turns out to be the right person, I'm just horrified by the fact that someone can be identified and displayed publicly as a prisoner before they've even been arraigned and entered a plea. It creates a presumption of guilt among the general public and (IMHO) is a direct cause of lawyers following up by holding press conferences and making statements designed to sway 'the court of public opinion'.
Public opinion occasionally yields treasures like the Declaration of Independence, but is equally enthusiastic about everything from riots to the idea of buying a pet rock. Excuse my cynicsm...this topic brings out my grumpy elitist like few others!