A Case Against Cameras on High

Originally posted: March 24, 2007

The following column by Jeff McCall – the author of the forthcoming book, Viewer Discretion Advised: Taking Control of Mass Media Influences – originally appeared in the March 24, 2007, edition of the Indianapolis Star.

Jeff McCall 2006 Blue.jpgThis month March marks the 75th anniversary of the kidnapping and murder of Charles and Anne Morrow Lindbergh’s baby. At the time, NBC radio’s Lowell Thomas reported that the attention of “the whole world has been aroused” by the kidnapping of the “world’s most famous baby.” The eventual trial of suspect Bruno Hauptmann became that era’s “trial of the century.”

The trial became a media circus with photographers roaming the courtroom. Telegraph operators strung wires through the courtroom and clicked reports from the balcony. The legal community was aghast. A subsequent commission called the trial “the most depressing example of improper publicity and professional misconduct ever.” The American Bar Association responded with recommendations that courts prohibit photographing and broadcasting of trials. Those guidelines effectively kept cameras out of courtrooms until the 1970s, when pioneering states like Florida and Colorado began to open courtroom doors.

Although most states now allow some degree of access for cameras and microphones, the Supreme Court has steadfastly resisted pressure to allow such coverage of its proceedings. That pressure picked up recently in a session of the Senate Judiciary Committee. A Senate bill with bipartisan sponsorship would open federal courts, including the Supreme Court, to broadcast coverage. The committee’s ranking Republican, Arlen Specter, said the public has a right to see the Supreme Court in action and that “TV is the way people understand what is happening in the world.”

u.s. supreme court.jpgVideo coverage of the Supreme Court would, indeed, provide the public with insights into the judicial process it currently does not receive. The matter, however, is more complex than Specter’s arguments suggest.

A key counterargument came from Chief Justice John Roberts at a judicial conference last summer. Roberts said the court should not do anything that could adversely affect its operation. He told attendees, “We don’t have oral arguments to show people, the public, how we function.” In other words, the Supreme Court’s job is to determine constitutionality, not educate the public.

Justice Anthony Kennedy told the recent Senate committee hearing that the presence of television cameras would change the court’s dynamics, perhaps prompting justices to speak in “sound bites.”. Without question, people do behave differently when they know they are on camera.

McCall Book Viewer Discretion.jpgAnother question is whether the court’s decisions about which cases to accept in the first place might be influenced by the awareness that the proceedings would be captured in a television limelight. Justices might think twice before accepting another case involving a sensational celebrity, as it did for Anna Nicole Smith’s inheritance case last year. The Supreme Court, surely, operates with a different ambiance than did the Broward County court last month when a circus atmosphere invaded the hearings on custody of Anna Nicole’s deceased body. Even in the Supreme Court, however, television would be an influence in such a high-profile case.

Proponents of television coverage in the courtroom say the practice is now no big deal in most state jurisdictions. That is largely true, but in the Supreme Court every case is a big deal. In addition, if media coverage adversely affects a trial in lower levels, there is always a higher court to which to appeal. That’s not the situation at the Supreme Court.

Justice David Souter told a congressional panel several years ago that cameras would enter the Supreme Court “over my dead body.” Justice Clarence Thomas is also opposed to electronic access to courts. No friend of the press, Thomas recently said the media are “universally untrustworthy.” Given such hard feelings, Congress should not force access on a resistant court.

The court has shown signs of opening up in recent years, allowing same-day audio recordings to be released for several major hearings, such as the Florida recount in 2000 and, recently, a case involving Guantanamo detainees. That access shows promise for the future. Deferring to the court’s deliberate progress is a wise strategy for access advocates.

A broadcast industry trade publication editorialized last year that not televising the Supreme Court made its proceedings look “sinister.” That counterproductive badgering risks a digging in of judicial heels similar to what occurred after the Hauptmann trial seven decades ago.

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