Nathan Fan is a JD candidate at Osgoode Hall Law School.
Advocates of greater media access to court proceedings were frustrated by a recent U.S. Supreme Court decision to prohibit the live broadcasting of the controversial Proposition 8 trial in California. In a 5-4 majority decision released on 13 January 2010, the U.S. Supreme Court held that the District Court for Northern California District erred in their amendment to allow for the broadcasting of the trial to certain courthouses in California. The Court’s decision to stay the broadcast order was not based on a review of the merits in allowing courtroom broadcasting, but rather that the District Court failed to follow the appropriate procedural rules for local rule amendments outlined in federal law.
Historically, the recording and broadcasting of court proceedings was prohibited in the District Court under Civil Local Rule 77-3. However, with recent renewed interest in broadcasting, the Ninth Circuit Judicial Council approved a pilot program on 17 December 2009 for the limited use of cameras in federal district courts within the circuit. This in effect amended the 1996 Ninth Circuit policy, on which Local Rule 77-3 is based, to ban photography, radio and television coverage of court proceedings. The pilot program would be tested on the Proposition 8 trial, which would have a live broadcast feed to certain federal courthouses in California, and pending further approval, the subsequent streaming of the proceedings on the internet.
The District Court then announced via its website on 23 December 2009 that the rule banning the broadcasting of court proceedings had been amended and that a pilot project had been approved. Although the website was later updated to announce that the amendment would be open to public comment, the public consultation was ultimately scrapped and an update to the website on 4 January 2010 stated that the amendment was effective 22 December 2009 pursuant to the “immediate need” provision of Title 28 Section 2071(e).
While district courts are entitled to amend their own local rules, they must comply with federal statutes governing procedural aspects of such amendments. The motion to stay was applied for by the applicants on the basis that the District Court failed to give appropriate public notice and an opportunity for comment, pursuant to federal statute 28 U.S.C. § 2071(b).
In staying the broadcast of the federal trial, the majority stated their decision stemmed from the Court’s interest in ensuring compliance with proper rules of judicial administration, especially when it relates to the integrity of the judicial process. “If courts are to require that others follow regular procedures, courts must do so as well.” The majority held that the District Court revised its local rules in haste and failed to comply with existing rules or policies and the required procedures for amending them.
While emphasizing that the decision was not a review of the merits of the trial broadcast, the majority expressed their concerns over the increased risk of harassment for witnesses should high-profile cases involving matters of public controversy be broadcast. It is in the majority’s view that such exposure would also chill witness testimony.
Speaking for the dissent, Justice Breyer challenged the majority’s intervention in a matter of local court administration. Breyer J stated that it was not the role of the Court to micromanage the administrative procedures of district courts. Further, the dissent found the majority’s fear of adverse effects on witnesses unconvincing and stated that public interest weighed in favour of providing access to the courts.
The State of Media Access in America’s Courtrooms:
The failure of the District Court to secure live broadcasting for its courtroom is only the most recent in a long string of attempts at achieving greater media access behind the courts’ closed doors. The ‘no broadcasting’ rule has a relatively long history in America, reaching back to the 1930s in response to the extensive media attention surrounding the Lindbergh baby murder trial that brought disruptive flash photography and movie cameras within the courtroom. The ABA adopted Judicial Canon 35 in 1937, which recommended that both still and movie cameras be banned from courtrooms, and in 1962 extended the ban to cover television cameras as well. All states except Texas and Colorado adopted the ban.
At the same time, Congress had banned cameras in all federal courts. The U.S. Supreme Court applied the ban in Estes v. Texas and Sheppard v. Maxwell, where the court in both situations reversed convictions because of the disruptions caused by cameras and extensive media attention both within and outside the courtroom.
Over time, the state courts began to gain the capacity to create their own policy towards cameras in state courts, and as it stands now, most states allow some form of camera reporting in courtrooms (see link for a breakdown by state). For federal criminal trials, media coverage is still generally prohibited due to federal law (with an exception for closed circuit television broadcasting for victims of crime).
For federal civil trials, the rules on broadcasting are more varied and depend on whether the Federal Appeals Court to which a district court is assigned to have adopted the Judicial Conference’s policy to ban courtroom broadcasting. However, most U.S. Circuit Courts of Appeal have prohibited district courts from recording and broadcasting court proceedings, the exceptions being the Second, which has not banned cameras and leaves the district courts to their own local rules, and the Ninth circuit, which has recently introduced the pilot program to allow live broadcasting in certain courthouses.
Congress is also currently considering an amendment to the broadcast ban under Bill S.657, which seeks to provide media coverage to all Federal Court proceedings. The bill is currently under review by the Committee on the Judiciary.
The Future of Courtroom Broadcasting:
As advances in technology help to bring broadcast machinery into more compact and less obtrusive forms, the underlying rationale for imposing the ban seems to grow less and less pertinent. Technology has also allowed us to expand beyond the classic audio-visual format of broadcasting into new forms such as live-blogging, tweeting, texting, etc. As reported previously on IPilogue, the Twitter phenomenon has provided attendees at courtroom proceedings a means to disseminate trial developments without being frustrated by the anti-broadcasting laws.
However, as a society infatuated with instant updates and media streaming, the U.S. courts have had to wrestle with the application of the “no broadcasting” rule to these new forms of media. In the recent case U.S. v. Shelnutt (Nov 2, 2009), the district judge barred a journalist from “tweeting” via his blackberry during the trial. “The contemporaneous transmission of electronic messages from the courtroom describing the trial proceedings, and the dissemination of those messages in a manner such that they are widely and instantaneously accessible to the general public, falls within the definition of “broadcasting”...Therefore, this type of broadcasting is prohibited....”
Concerns regarding the use of these new forms of communication often revolve around the same cautions over the adverse affects on the administration of justice. The access by witnesses to real-time postings about a trial may compromise their impartiality and the fairness of the trial. The dissemination of sensitive subject matter during proceeding may also give rise to concern. Further, the argument is also made that the clicking noises from keyboards or beeping from electronic devices pose distractions in the courtroom.
To the relief of access-advocates, not all judges share this view. Both Iowa District Judge Mark Bennett and Kansas District Judge Thomas Marten have spoken out about the importance of allowing Twitter into the courtroom in an effort to enhance transparency in a court system often shrouded in too much mystery.
Thus, while the “no broadcasting” rule still seems to be in place in many parts of the U.S. court system, there seems to be movement from many areas to challenge the old rule in light of a changing society empowered by technology. However, the opinions of judges on the rules as they apply to newer forms of media are still mixed and in flux. As the country comes to terms with how the law should be applied to new media, those interested in utilizing those broadcasting tools may have to tread the wavering standards carefully. (If you are considering tweeting in court, see Citizen Media Law’s Guidelines for Tweeting and Live-Blogging From Court).