Means of Access: Law as Entertainment
It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.1
Chapter 6 addressed access to information and places; chapter 7 focused specifically on access to judicial proceedings. This chapter describes problems associated with the medium of access. Specifically we describe laws and rules that restrict recording devices in courtrooms and other venues controlled by the government. Here we also describe the conflict between journalists who seek access to governmental processes in order to share information with the public, and media who seek access to trials and other governmental processes as a form of public entertainment.
This chapter is divided into four parts. The first brief section describes the conflicts between different interests that motivate requests for electronic recording of court procedures and other governmental processes. Here we describe the growth of trial coverage as entertainment rather than journalism and explain how this trend influences laws and rules governing cameras and recording devices in governmental proceedings.
The second part of this chapter builds from the approach to trials as entertainment and uses the metaphor of a play to describe how cameras and recording devices transform the media from mere observers into participants in trials. The trial process is described with an analogy to an original stage play performed before a live audience. We use this analogy to show how the entire nature of a trial, seen as reality theater, is substantively changed by the introduction of cameras and recording. We also explain how the perception of the “play” is altered by cutting and editing for transmission to an absentee audience. In this section we trace the evolution and current status of prohibitions against cameras and other recording equipment in courtrooms.
The third section introduces the trends in coverage of executions. Here we explore why media are not permitted to record executions and why the public is denied access to what was historically a very public event. We present arguments and legal trends from the last public execution in the United States in 1937 through the limited transmission of the Timothy McVeigh execution in 2001. The practice note in this chapter offers suggested legal arguments for media and their counsel who seek to improve public access to governmental proceedings through media recording and transmission of these events. In a final paragraph, we return to the theatrical analogy to illustrate how executions might be covered.
Clash of Competing Interests: The Courts, the Media, and Multiple Publics
As described in chapter 7, the government may restrict or totally prohibit access to its facilities and procedures, particularly courtrooms and prisons. Furthermore, the cases on access to governmental facilities and procedures uniformly hold that access by the public and media does not mean access by any method the public and media choose for themselves.2 The government may completely control the means of access to its facilities. Therefore, even if the government permits public or media access to a court or prison, it may prohibit the use of cameras or recording devices. The government may specify the number of cameras and/or the type of equipment permitted. It can also screen or control equipment operators.
Courts Versus the Media and the Public
The Supreme Court, in Zemel v. Rusk and later cases, ruled that the press has no greater right of access to trials and court proceedings than does the general public.3 This means literally that if media are permitted to bring their cameras and recording devices into a courtroom, then the public would also be permitted to bring their equipment. Permitting access for media equipment would, therefore, open the door for unrestricted access by amateur photographers and court observers. The response of many courts to this possibility has been the teleological argument that unlimited access is intolerable, therefore, all access will be denied. Of course, the courts’ interests are preserving court decorum and guaranteeing that the parties involved in litigation receive a fair and impartial trial, but courts are only one part of the sovereign government. The people who pay taxes to support the government and who suffer themselves to be regulated by the government are also sovereign and the interests of the people often conflict with the courts’ desire for impartiality and decorum.
The People, as sovereigns, have the right to change and control the government. They cannot reasonably exercise this right unless they have access to, or information about, the processes of their government. This right does not depend on the First Amendment. For example, the Ninth Amendment says, “(t)he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people” [emphasis added]4 and the Tenth Amendment says “(t)he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” [emphasis added].5 Taken collectively, these amendments grant the people access to the processes of their government and to information about governmental actions. If the media are surrogates or representatives of the people, they would have the same rights of access and information.
In addition to conflicts between the interests of the courts and the people, there are conflicts among multiple interests of different publics and within the media themselves. Public interests can be divided into a need for information in order to function as voters and responsible citizens and a desire for the titillation and entertainment associated with “court watching.” Media interests include both a journalistic drive to inform readers and viewers about the functioning of the court system and an economic drive to recruit audience. There is also a conflict between the media, who often claim to be the representatives of the “public” and the public who has not elected the media and who may or may not share a particular medium’s biases, perspectives, or interests. Courts often resolve requests to record court proceedings with a simple logic of balancing the court’s interests against the combined interests of media and the public. There are multiple conflicts between the interests of the government and several subsets of the public and media.
The Public Versus the Media
Often, courts’ refusal to permit recording of trials occurs because media representatives have presented virtually all cases seeking permission to record or photograph trials. Those representatives have taken a professionally chauvinistic approach and the court has responded negatively. The media has presented itself as the surrogate of the people and the Supreme Court has apparently accepted this view of media participation. The Zemel decision ruled that the media and public have the same rights of access. When confronted with a media petitioner, the court weighs its governmental interest against the asserted right of the media to record governmental proceedings. If the court finds the media’s interests are outweighed by the government’s interests, both the media and public are denied access.
No one, other than the press itself, has elected media to be the surrogate or representative of the people. Nor is it the role, duty, or prerogative of the media to educate the public. Neither the public nor the press is the primary beneficiary or steward of First Amendment liberties. Each has rights independent of the other. The liberties mentioned in the First Amendment belong severally and collectively to the people and to the media. Therefore, neither the media litigants, on their own behalf, nor the courts in deciding qualified implied First Amendment access cases, should act to deny the public at large access to its government.
Media litigants’ claim of a special privilege to record or photograph trials actually thwarts public access to these government procedures. By inviting the courts to define who may qualify as members of the press, these litigants invite judicial interpretation of who may enjoy First Amendment liberties. This activity itself is an abridgment of freedom of speech and press. Furthermore, some commentators see the media’s attempt to set themselves apart from the population at large as a request for the creation of a special class of citizens to whom the government grants superior rights. Such a grant is specifically prohibited by Article I and by the Thirteenth and Fourteenth Amendments to the Constitution.6 From a practical perspective, these arguments either permit or force courts to deny public access to trials. Perhaps if media litigants presented themselves as part of the people who have a right of access to their government rather than as a separate class who deserve special privileges, they might literally and figuratively “get somewhere.”
Courts’ willingness to deny media, and therefore public access to trials is facilitated by the conduct of some media representatives and by the contemporary merger of journalism and entertainment. Courts should see the need for citizen information about the process of government as a compelling interest. However, courts are unlikely to favorably evaluate the need for entertainment or media revenue.
Journalism Versus Entertainment: Media and Publics
Under the Zemel doctrine, the court sees only two competing interests in access cases—those of the government on one side; and those of the public and media combined on the other. There are at least two types of media interests and two forms of public interest. These often compete with each other and all four must be weighed against the governmental interest involved in access cases. Media interests can be categorized as commercial and journalistic. Commercial interests drive programming that increases audience and advertising revenue. Journalistic interests relate to media as gatekeepers of information to be disseminated to the public audience. There are also two categories of publics whose interests arise in access cases. The publics can be labeled “the people” and the mass audience. The people are the sovereigns whose interest in self-government motivates them to use the media to gather and receive information to serve as the bases for intelligent decision making. The mass audience uses the media for entertainment and catharsis.
Commercial media interests tend to cater to the mass audience and journalistic media interests serve the people. Only the media as an industry seems to have the money, motivation, and ability to challenge denial of access to trials and other governmental proceedings. As we discuss decisions regarding permission to record or film trials and other events, it should be noted that often the courts respond to requests for access for journalistic purposes with a concern for the commercial and entertainment use of that access. Commercial interests and entertainment value are typically given little consideration when weighed against a defendant or litigant’s right to an impartial trial. Perhaps separating these interests would lead to more success for journalists seeking permission to record trials.
Trials as Theater, Trials as Farce
Shakespeare observed that “All the world’s a stage and All the men and women merely players: They have their exits and their entrances; And one man in his time plays many parts.”7 That observation is nowhere more true than in a trial. Historically, trials have been public performances. Under what was called the “Rule of Publicity,” attendance at trials in pre-Norman England was mandatory for all freed men. It was assumed that having all citizens attend a trial would be part of the punishment of the guilty and would help vindicate the innocent.8 Eventually, trial attendance became discretionary but service on juries is still a duty of citizenship. Our founding fathers assumed that being asked to judge one’s peers was only one step removed from judging oneself.
Because Anglo-American trials have evolved as a form of public performance, comparing them to live theater helps to understand their function. Furthermore, seeing a trial as theater explains some of the issues confronted by judges who are asked to permit cameras and recording devices to intrude on the performance. This analogy is submitted to the thoughtful reader to provide a vehicle through which he or she may compare the competing interests involved when this most solemn of governmental proceedings becomes confused, in the minds of many, with entertainment and commercial venture.
Trials are very formal, stylized procedures used by a government to communicate serious messages to the trial participants and any spectators. All jury trial courtrooms in the United States are laid out in a similar pattern. The architecture and furnishings create a “stage” on which a reality play unfolds.
Each courtroom has a railing that defines the “stage” or area for performance. This railing, known as “the bar,” also serves to keep non-actors or non-trial participants on the outside as mere spectators. The bar is analogous to a proscenium arch in a theater setting. Inside the bar, there are very specific sections, marked out by railing, space dividers, and levels or platforms. Each of the “players” has a specific place from which to enact his or her role.
In all courtrooms, the highest point in the room is reserved for the most important “player” in the drama to be presented—the judge. The judge’s place is called the bench and is usually flanked from behind and on either side by wooden paneling or other materials to mark his or her importance. Usually, some crest, flag, or other icon of authority is placed immediately above or near the judge.
To one side of the judge, usually on a lower level, and often slightly in front of the judge’s bench, but still within the framework of the judge’s area, is a lone chair in a space where the witness will sit and perform on command. This space is called the witness box. At approximately 90° to the judge’s bench and several feet from the witness box will be another space delineated by a lower railing or paneled area. This area, called the jury box, often contains two levels with rows of chairs sufficient to accommodate at least 12 people.
Usually near the jury box, and significantly behind it, will be chairs for bailiffs, who will play the roll of escorts and protectors for the jury panel. In front of and facing the bench, in the middle of the space provided inside the “bar,” two large tables will be placed with significant space between them. Each large table will have at least two chairs behind it, facing the “bench.” These tables will also be at a right angle to the jury box. Depending on the rules of the court, the prosecution attorney will sit together with his or her assistants at one table, and the defendant and his or her attorneys and their assistants will sit at the other table. Often, these two tables are separated by a podium and/or lectern from which the attorneys address the judge or witnesses. Other times, a lectern will be built into the area just below the judge’s bench and near the witness box. The judge’s bench, the witness box, and the lecterns will all be equipped with microphones, and/or there will be one microphone placed on each of the two litigants’ tables.
Usually, there will be a number of chairs inside the bar, but with their backs to or just against the bar. These are for attorneys’ assistants or law enforcement personnel in charge of order and safety. Someplace near the witness box and near the bench will be a chair and small table where the official court reporter will sit. The reporter will label and file exhibits and record the testimony. The clerk of the court will also have a reserved space, either built into the bench area or just outside it. The clerk will assist the judge and the reporter in retrieving court documents and in collecting and protecting the evidence submitted.
Outside the bar there will be seats for observers. These seats are for the spectators to the reality play. Those seated there are not participants or actors in the play. One indication of the exclusion of these observers is the fact that some of the major players in the trial are even positioned with their backs to the observers. The jury, the only official audience for the play, is positioned inside the bar.
Five major roles are played in this courtroom theater. Four players have major speaking parts, and there are numerous small bit or walk-on parts. His or her placement, height, and prominence in the courtroom theater make it obvious the judge is the most important player. The judge is also the only player who consistently wears an official costume, traditionally including a somber black robe. The role of judge is divided into several subparts. The judge plays a gatekeeper in that the other players must have permission from the judge before they may perform their roles. The judge also plays referee in that she or he determines the timing and rules by which each play will be regulated. The judge also decides what “props” may be introduced as evidence by the other players.
The role of “fact finder” may be played by either the judge or a jury. If the “play” is a jury trial, the fact finder is a jury, who must sit attentively and watch the play unfold before rendering their formal critique or verdict. The jury has only one speaking part, that of a foreman. The jury foreman is selected by the jury from its members during the critical analysis of the play called “jury deliberation.” This phase occurs after the last “scene” in the play has been presented, and the judge informs the jury of the rules by which they must critique the play and determine the results. Once the jury has concluded its critical analysis and identified the winners and losers, the foreman, in his or her brief speaking part, responds to a question by the judge. The judge will either ask the foreman to announce the final results or the foreman will be asked to hand a critique sheet to the judge who will read it aloud. The verdict then becomes part of the record that has been prepared throughout the performance by the official court reporter.
Voir dire, or jury selection, is analogous to an audition casting the parts of the jury members. Convening, selecting, and empanelling a jury is expensive and time-consuming for the major actors in a trial. Despite the care taken in jury selection, juries can be unpredictable. Therefore, the judge critiques the majority of courtroom plays. The judge instructs the jury and may even take the role of fact finder from the jury.
There are three additional roles in these trials or plays. The main “protagonist” is called the prosecutor in a criminal trial and the plaintiff’s attorney in a civil trial. It is the prosecutor’s job to cast and direct witnesses who will, if the prosecutor is clever, re-enact facts through their testimony and evidence. The “antagonist” in this drama is the defense attorney who represents the interests of a defendant. His or her major task is to cast doubt on the performance of the prosecution’s witnesses by questioning them or by presenting contradictory evidence and testimony. The defendant plays another major part, but in a criminal trial this part is often nonspeaking. Other “bit” players include the bailiffs and clerks but their participation is more analogous to that of theater ushers than to actors.
This reality play is not performed for its entertainment value; it is performed solely for the benefit of the judge or jury acting as fact finder because their decisions determine who wins and loses. While the format and performance of a trial is analogous to a play, it is absolutely serious and very real. Winners in civil trials may receive substantial sums of money and losers in criminal trials may even die as a result of the trial’s outcome.
Seats are always provided in a courtroom outside of the bar or “proscenium arch,” but the play will be performed whether anyone chooses to watch or not. The audience does not participate in any way and their presence is completely irrelevant to the performance and outcome. Finances, incarceration, and even life or death are decided despite the interest or disinterest of the public or press. In fact, spectators can, and often do, cause disturbances that interfere with the smooth presentation of the drama by the principals.
The purpose of courtroom drama is not and never has been the entertainment of the spectators, nor is the response of the spectators relevant to a trial’s outcome. The sole purpose of this reality play is the resolution of disputes between the players. Also, each trial or hearing is presented as an original work, written, produced, and choreographed by the judge, prosecutor, and defense attorney. It falls to the person who plays the role of judge to direct the original production as objectively as possible, without subjecting the jury to distractions that might take their concentration away from the presentation of the case, which they alone must critique and score.
The Play Changes: Enter the Media, Cameras Rolling
Typically, the producers of live theatrical performances forbid cameras and recording devices. They understand that recording a play alters the quality of the performance. The presence of the cameras, the movement of the camera operators, the noise of shuffling about, and the lighting necessary to film or tape are all distracting, not only to the actors, but also to the audience. When actors know they are being filmed or taped their demeanor changes. Actors especially, like the players in a trial who are not used to being recorded, will become nervous. They forget lines, lose concentration, and may not be able to continue their roles. Furthermore, the presence of cameras changes the performance of the play itself. The camera operators become the producers of the play and by their presence create something different from what was intended by the playwright, the director, and the actors.
Anyone who has had the opportunity to appear on stage in the live performance of a play and who has also had the opportunity to perform before a camera knows about these critical distinctions in the substantive nature of the stories and messages they convey. Trials, like live plays, are meant to be one-time performances. Their scenes are presented only once; there are no retakes or replays. The interplay between the actors is critical to the outcome and is changed or distorted by distraction or recording. In a play, altering the outcome may impact the reviews or upset the audience. In a trial, altering the outcome can alter the litigants’ lives. If producers forbid cameras at live plays, it seems reasonable for judges to forbid cameras at trials.
Access to a Farce: The Estes and Sheppard Case Examples
The first time the U.S. Supreme Court was asked to address the question of whether a person convicted of a crime “was deprived of his right under the Fourteenth Amendment to due process by the televising and broadcasting of his trial” was in the 1965 case of Estes v. Texas.9 In that case, the defendant, who was ultimately convicted of swindling, had been granted a change of venue because of the notoriety created by massive pretrial publicity. The defendant asked the trial court to prohibit radio and television broadcasting and news photography in the courtroom. A 2-day hearing on the defendant’s request was conducted in the presence of trial witnesses and veniremen. News photographs were taken in the courtroom and the hearing was also carried live on television and radio. There were 12 cameramen and cables were strung across the courtroom. Broadcasters placed three microphones in the courtroom, including one on the judge’s bench, one aimed at the jury box, and one at the counsel table. The appellate court noted that the profusion of cameramen and equipment caused considerable disruption.10 After this 2-day media event, the judge denied the defendant’s motion to prevent televising of the trial.
During the 3-day trial, cameras were confined to a special booth in the back of the courtroom. However, there were continuous problems with the filming and broadcasting of the trial. Because of objections by defense counsel, the judge had to invent rules to govern the live broadcasting and still photography. Live telecasting was prohibited during opening and closing arguments of the state and the return of the jury’s verdict, but even these events were broadcast live on radio. On one occasion, videotapes of the pretrial hearings were rebroadcast in place of the “late movie.”11 The defendant was convicted and the Texas Court of Criminal Appeals affirmed his conviction. The U.S. Supreme Court granted certiorari to review the case for constitutional error.
This appeal was heard prior to the decision in Richmond Newspapers and the Supreme Court considered an argument that the First Amendment “extended a right to the news media to televise from the courtroom, and to refuse to honor this privilege is to discriminate between the newspapers and television.” The High Court responded to this argument saying,
(t)he television and radio reporter have the same privilege. All are entitled to the same rights as the general public. The news reporter is not permitted to bring his typewriter or printing press.12
As has been said, the chief function of our judicial machinery is to ascertain the truth. The use of television, however, cannot be said to contribute materially to this objective. Rather, its use amounts to the injection of an irrelevant factor into court proceedings. In addition experience teaches that there are numerous situations in which it might cause actual unfairness.13
The Supreme Court went on to delineate seven problems presented by cameras in the courtroom. The first problem the court identified is the potential impact of cameras and filming on the jurors themselves. The second is impairment of the quality of witness testimony. Third, broadcasting testimony will permit later witnesses to alter their testimony in response to what has already been said. The fourth problem is the impact of courtroom television on the roles of the defendant and his attorney. Broadcasting may cause distractions and intrusions into the confidential attorney–client relationship and tempt the defense attorney to play to the public audience, thereby depriving the accused of effective representation. The fifth problem is the destruction of the accused and his case in the eyes of the public. The sixth problem is the involvement of the courts in commercialism, voyeurism, and sensationalism when notorious cases are selected for broadcast by the media in order to generate advertising revenue. The final problem identified by the court is that media coverage can shape public opinion and thus strip the accused of a fair trial.14
The Supreme Court reversed the conviction in Estes and, quoting Justice Holmes from the 1907 decision in Paterson v. Colorado, ruled that to be constitutional, a conviction must be based on “evidence and arguments in open court, and not by any outside influence, whether of private talk or public print.”15 The next Supreme Court decision to address cameras in the courtroom was Sheppard v. Maxwell.16 Dr. Sam Sheppard was convicted by an Ohio trial court of murdering his wife. His conviction was affirmed through the Ohio Supreme Court. The U.S. Supreme Court denied his initial application for appeal in 1956, but after serving approximately 8 years in prison, he filed a habeas corpus petition in the U.S. District Court. Sheppard prevailed in the district court but lost in the court of appeals. Finally, the U.S. Supreme Court granted certiorari to review the case. The issue before the Supreme Court was,
whether Sheppard was deprived of a fair trial in his state conviction for the second-degree murder of his wife because of the trial judge’s failure to protect Sheppard sufficiently from the massive, pervasive, and prejudicial publicity that attended his prosecution.17
The appeal listed several pages of media abuses but here we focus only on those relating to cameras in the courtroom. First, a television station was permitted to set up broadcasting facilities next door to the jury room, making newscasts from this room throughout the trial and during jury deliberations. Second, television cameras lined the sidewalks and steps in front of the courthouse where trial participants were interviewed. Third, the corridors outside the courtroom were clogged with cameras and reporters filming the trial participants and interviewing witnesses whenever they entered or left the courtroom. These interviews disclosed trial testimony. Fourth, movement of the media representatives into and out of the courtroom often caused so much confusion that, despite an amplification system installed in the courtroom, witnesses and counsel had difficulty being heard. Fifth, an interview with the judge as he entered the court was broadcast to the public. Sixth, television cameras were used to photograph prospective jurors during selection of the jury. Seventh, daily records of the proceedings including the testimony of each witness were often broadcast on the nightly news.18
The U.S. Supreme Court quoted from the Ohio Supreme Court to describe the trial atmosphere: