James C. Goodale, former vice chairman of The New York Times, is a member of Debevoise & Plimpton, chairman of the Communications Law Committee of The Association of the Bar of the City of New York and chairman of the Committee on Public Access to Information and Proceedings of the New York State Bar Association.
The assistance of Kenneth Taber in the preparation of this article is acknowledged with thanks.
By James C. Goodale
New York Lags On Televising Trials
After banning television coverage of trials for thirty years, the American Bar, Association finally voted last month at Its annual meeting, by a margin of 162-112, to lift that antiquated prohibition. In stark contrast, the New York State Senate voted 36-19 in July to keep New York’s ban against such coverage – also thirty years old – in place. The televising of judicial proceedings is already permitted in thirty-eight states.1 The ABA vote recognizes that television in the courtroom nationwide is inevitable and that remaining opposition by the organized bar has become increasingly outdated with more and more states moving independently to open their courtrooms to the public.
No doubt, last month’s vote by the ABA will speed action by the remaining states to permit television in the courts. In most instances this will be accomplished through adoption of court rules. For example, a rule to permit such coverage is now pending before the Illinois Supreme Court which recently put off its vote on the issue because, according to some sources, it was awaiting the outcome of the ABA vote.
In New York, the statutory prohibition against television coverage -- Section 52 of the Civil Rights Law -- still prohibits television coverage of any courtroom proceeding to which witnesses are or may be subpoenaed. Even though Section 52 may not be constitutional under New York’s separation-of-powers doctrine, supporters of TV in New York courtrooms have nevertheless chosen the legislative route of attack, via amendment, rather than a direct constitutional challenge to the statute.
It was just such an amendment that was defeated two months ago by the State Senate. The bill, which was first considered by the State Assembly, was defeated in that house the first time around when supporters could muster only seventy-five of the seventy-six necessary votes, and Assembly Speaker Stanley Fink cast his deciding vote against the amendment. But the Assembly reconsidered its vote just a few days later and that time passed the bill, 78-75.
Only a year ago, the Assembly overwhelmingly rejected similar legislation, by a vote of 104-34. The earlier bill, which never made it to the Senate, would have amended Section 52 to permit TV coverage on a permanent basis under rules drawn up by the Court of Appeals. A draft of those rules, based largely upon the recommendations of a Media Advisory Committee headed by Presiding Justice A. Franklin Mahoney of the Appellate Division, Third Department, has already been endorsed by the Court of Appeals.
The Last Bill
This year’s bill, unlike last year’s, merely established a nineteen-month experimental period for television coverage. The legislation provided that the State Legislature would review the results of the experiment, and determine whether the televising of trials should become permanent in New York, as it already is in twenty-four states, including New Jersey.
In Chandler v. Florida,2the Supreme Court unanimously called for such experimentation with TV in the courtroom.3 The Court held for the first time that television in the courtroom was not per se unconstitutional. Under Chandler a defendant would only be entitled to show why, in his particular case, television coverage was prejudicial.
Since the date of the Chandler decision, there has not been one substantiated instance of broadcast coverage improperly affecting a judicial proceeding. This notwithstanding that like New York, many of the states permitting coverage, such an California, Florida, Massachusetts and Ohio, have large media markets and problems with crime. In fact, the Advisory Committee to the Supreme Judicial Court In Massachusetts recently found that coverage there “has been without any serious adverse incident” and has “opened up court proceedings to a much broader public audience.”
New York’s Supporters
TV in the courtroom has the support in New York of the State Assembly, Governor Carey, Chief Judge Cooke, Senate Leader Anderson, several bar association groups, and such civil libertarians as Robert Kasanof, former chief of the Legal Aid Society Criminal Division. Mr. Kasanof, testifying in favor of such legislation, argued there was no rational basis for allowing coverage of trials by the print media but not broadcasters.
With such widespread support, and with a watered-down bill, it is fair to ask how this most recent legislation failed to pass the Senate last July. An examination of the debate transcript shows that the State Senators were persuaded by the same kind of apartments that, by and large, have been examined and found wanting by both the American Bar Association and the thirty-eight states that permit TV in their courtrooms. It’s worth taking a closer look at some of those arguments.
A prime concern of the Senators was the preservation of the “privacy rights” of trial participants. This concern, however, overlooks the fact that trials are by their very nature public affairs. The argument in thus not one for the privacy of trial participants, but rather for less public trials.
In Cox Broadcasting Corp. v. Cohen,4 the Supreme Court observed that in our modern society, few can take the time to see trials first-hand. Accordingly, the Court noted that the media must serve as the public’s surrogate in effectuating the public’s right to know. It is only through the print and broadcast media that the public finds out how its government, and more particularly its courts, really work. In view of this basic fact, an argument for preserving the privacy of such public proceedings is without merit.
A second argument made by the State Senators was that the public would see only excerpts from the day’s courtroom proceedings on the evening news. In the view of many Senators, the potential for distortion makes it preferable that the public not see those edited segments at all.
Flaws in Opposition
This same argument has been made for years by opponents of TV In the courtroom, but mere repetition hardly eliminates the argument’s flaws, two of which are worth setting out here. First, every newspaper report of every legal proceeding is an edited version of what went on in court. No one has ever argued, to the best of my knowledge, that newspaper reporters should therefore be banned from courtrooms, or instead required to print only unedited transcripts of proceedings. Why then make those arguments now when broadcasters seek admission?
Secondly, this argument is based on the pre-cable world of television, when there were only a handful of broadcast channels per city, and when edited legal news was the only kind of news that could be communicated to the public. Now, however, with cable television capable of delivering 100 channels to every home, the argument is outdated. Complete average of proceedings is now a realistic option - as one example, Ted Turner’s CNN Network carried, gavel-to-gavel, Carol Burnett’s libel trial, and millions of subscribers throughout the United States could watch that proceeding. The public, it would seem, Is entitled to benefit from both such gavel-to-gavel coverage and the broadcasting of edited segments as well.
Another argument made by the State Senators was that passage of the proposed legislation would cause irreparable harm to those unfortunate enough to be involved in the experiment. What this argument ignores, however, is that the Supreme Court in Chandler called for the states to experiment with TV coverage. The Court reasoned that such experimentation would not per se harm anyone, and that there were certainly ways to protect the rights of defendants.
For example, under the State of Florida’s rules (which the Supreme Court endorsed in Chandler) a trial judge must limit television coverage whenever he finds that (1) such coverage would have a “qualitatively different” effect upon a trial participant, as compared with the general public, and (2) that the effect of such coverage would be “qualifitatively different” than coverage by the print media alone. Appellate review of the test’s application in also available to defendants.
Next, the Senators were concerned that witnesses would be discouraged from testifying if they knew their testimony would be shown on television. This is another fear commonly expressed by those opposed to television in the courtroom. Still, to the best of my knowledge, there has not been one proven instance of this happening in any state where there is already TV coverage. To the contrary, in one documented case, a California viewer who saw a witness lying during a trial on television, came forward to contradict that testimony.
Psychological studies show that people are more likely to tell the truth when they know they are being watched. A useful by-product of cameras in the courtroom might therefore even be a decrease in the frequency with which witnesses perjure themselves.
Finally, there was great concern in the Senate that, if the identity of jurors became known, they would be subject to harassment and rendered incapable of reaching a sound verdict. This is another argument commonly made against courtroom coverage, but here again, to the best of my knowledge, there is no evidence to support it. Still as an extra precaution, the legislation defeated by the Senate specifically prohibited the showing of jurors’ faces on television. Furthermore, jurors can always be sequestered if the court believes that’s necessary.
Benefits for Lawyers
A strong argument can be made that once television in the courtroom is permitted in all the states, including New York, and once that coverage becomes standard TV fare, the reputation and prestige of the legal profession will ultimately be enhanced. Indeed, some believe the Bar is not now held in high esteem by the public in part because the television age is passing it by. If the public could see how well most lawyers and judges perform, the prestige of the Bar would soar. And if lawyers and judges knew they were being watched on television, it is possible their performance in court would improve as well.
As the Supreme Court has noted, most of the public cannot see what goes on in our courtrooms. As a result, lawyers, judges, and the entire judicial process operate, it seem, in a shadowy never-never land in the public’s mind. All this would change in New York, with no detriment to the rights of defendants, if the Senate would simply permit this state to join the growing majority of states, and the ABA, in supporting experimentation with TV in the courtroom.
1 Radio Television News Directors Association, “News Media Coverage of Judicial Proceedings with Cameras and Microphones: A survey of the States” (as of Aug. 18, 1982) Twenty-eight states allow television in trial and appellate court rooms, one state allows trial coverage only. New York allows appellate coverage only.
2 449 U.S. 560 (1981).
3 The Court’s holding was endorsed by eight justices, with Justice Stevens not participating.