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Cameras in the U.S. Supreme Court: Does S. 1768 make sense?

ASK THIS | August 29, 2006

“The First Amendment principles for broadcast presence in the courts are as strong as ever,” writes Herb Strentz, “but to suggest that today’s television content and priorities are well suited for better educating the public about the judicial system is a dubious proposition.”

By Herb Strentz

Q. Legislation in the Senate calls for televising Supreme Court proceedings. Is such legislative intervention in the judicial process a wise way to proceed if the goal is to give broadcast and photo journalists a measure of the presence in federal courts that they now have in state courts?

Q. Could such legislation backfire on proponents of cameras in the courts and lessen the nationwide presence of cameras in state courts?

Q. Is the argument for cameras in the courts as persuasive as it was 25 years ago?

Q. What causes of optimism are there for cameras in the courts and having citizens better informed about the judiciary? (Curiously, the optimism may come more from the state courts themselves than from the news media and commercial television.)

Once again, S. 1768, essentially a 50-word measure “to permit the televising of Supreme Court proceedings,” is alive in the U.S. Senate. Advanced by a bipartisan coalition of eight senators, the measure was approved by the Committee on the Judiciary on March 30, but awaits (and awaits) action. The bill mandates a television presence in the Supreme Court of the United States, but says nothing about all other federal courts.

S. 1768 would amend Chapter 45, title 28 of the United States Code.  The relevant passage, Sec. 678, is: “The Supreme Court shall [emphasis added] permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage would constitute a violation of the due process rights of 1 or more of the parties before the Court.”

(Broadcast coverage of trial or appellate proceedings is allowed in all states in at least some limited form. Much if not all of the state coverage results from rules adopted by the state supreme courts and not because a state legislature wanted cameras in state courts. The Radio Television News Directors Association says the District of Columbia is the only non-federal court system to ban coverage entirely. An excellent summary of cameras in the courts is available here, at an RTNDA Web site.)

Given that the federal coverage would be limited to the Supreme Court of the United States and would be free of the headaches that beset television coverage of trial courts — what to do with pictures of the jury, how to exempt coverage of sex abuse victims, how to avoid coverage of undercover officers who testify, etc. — S. 1768 is relatively innocuous. Besides, at any time five justices can prohibit television coverage, and if even one or two raise an eyebrow their colleagues are likely to go along.

But, of course, it is not that simple.  For one thing, what about the courtesy, if not the principle, of separation of powers? Why should the current Congress, which has ignored and perhaps facilitated expansion of Executive branch powers, presume that it can tell the Judicial branch what to do?  And why on earth should the Judicial branch listen to Congress, particularly when S. 1768 provides such an easy escape hatch for justices who still object to cameras in the court?

Beyond such give and take between the branches of government, passage of S. 1768 might be counterproductive, raising questions again about just how well the public is served by cameras in the courts in particular and news coverage of the courts in general.

Those issues are long-standing concerns of mine because of my involvement with cameras in the courts in the State of Iowa. As executive secretary of the Iowa Freedom of Information Council, I was a point person for the Expanded Media Coverage (EMC) movement in the late 1970s and then was the administrator of EMC in the state for about 20 years. The Iowa FOI Council through a dozen news media coordinators across the state handles the paperwork for EMC, reducing the busywork burden on the courts. In any event, 25 years ago I was more at ease in countering the argument that commercial television debases everything it covers or invents to cover. Give the onset of “reality shows,” given the decline of the television networks, etc., non-constitutional arguments on behalf of television’s presence are not as easy to articulate as they were in the 1970s and 1980s. The recent coverage and commentary on the arrest in the JonBenet Ramsey case did not augur well for those who argue presence of the broadcast media would not affect the decorum of the judicial process.

The First Amendment principles for broadcast presence in the courts are as strong as ever, of course, and perhaps that is enough. But to suggest that today’s television content and priorities are well suited for better educating the public about the judicial system is a dubious proposition. Unfortunately, although public education was the linchpin of EMC for the Iowa Supreme Court and although the news media argued that electronic access would help educate the public, no significant or continuing effort has been made by the state’s news media in that regard. That situation probably is not peculiar to Iowa.

Fortunately, the state courts have stepped in. Judicial Web sites now provide more access to the courts and to judicial proceedings than one can find in newspapers and in newscasts. The Iowa Supreme Court Web site could serve as a model, having been recognized by Justice Served® as a Top Ten Court Website Award winner for 2006. The site includes access to video recordings of oral arguments before the court. (That’s helpful because Iowa broadcast media rarely cover the Supreme Court even though cameras are allowed under Expanded Media Coverage.)

As more states provide access to court information and court proceedings via the Internet, perhaps we will see limited federal experimentation along the same lines and, ultimately, access to the federal courts themselves for television and photojournalists. The influence of the state courts upon Federal District Courts could provide a bottom-up approach to cameras at the federal level that is likely to be more effective than the limited top-down approach of S. 1768.

Discussion of S. 1768 raises the question of news media coverage of the courts in general. It is a significant issue because the courts are the only branch of government with responsibility for protection of constitutional rights in general and the First Amendment in particular; yet the news media can facilitate bashing of the judiciary by the Executive and Legislative branches, particularly during election campaigns.

Problems in covering the judiciary have been exacerbated by at least two pernicious developments. One is that the news media delight in pointing out that they do not cater to “government junkies” as much as they used to, with “government junkies” including those partial to the watchdog theory of the press. The other trend is one driven by the market with the result that, increasingly, news media loyalty is to the shareholder and not to the news audience.

That is considerable baggage to tote in coverage of the judiciary.

Given that, the news media should be grateful for the good work done by the increased access provided by state courts. It is the state courts that may be persuasive in any decision to place cameras in the federal courts.

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