The latest on televising important court cases

The issue in the case wasn’t whether the trial would be
covered by Court-TV or C-SPAN or another network. It was whether the trial
could be broadcast closed-circuit to five other federal courthouses in the
United States (two in California and one apiece in Seattle, Portland, Ore., and
Brooklyn) a practice occasionally allowed (the Oklahoma bombing case is a
recent example). The trial court said yes, but the United Sates Supreme Court
stayed the application of the ruling because the trial court had not followed
proper procedures for doing what it did.

The U.S. Supreme Court opinion stated that its decision was
“confined to a narrow legal issue,” whether the District Court complied with
local procedural rules. The court stated, “We do not here express any views on
the propriety of broadcasting court proceedings generally,” an avowal cynics
will find difficult to believe.

The Supreme Court has historically resisted televising its
own proceedings, though, decades ago, it allowed states to decide whether to
permit televising their court proceedings. Forty-two states now do so (along
with several federal trial courts).

The Supreme Court opinion in Hollingsworth referred to old fears about televised trials — that
witnesses would be afraid to testify, and that some witnesses are paid,
arguments that have been disputed in past debates on the subject. That witness
testimony, along with attorneys’ arguments, would be televised was a factor the
Supreme Court relied upon, despite acknowledging the important social issues
debated in the case.

Four justices dissented: Breyer, Stevens, Ginsburg and
Sotomayor — surprise! They noted the limited distribution of the requested
television coverage, and the great public interest in this non-jury, civil
trial. The dissenters stated the obvious, that “there is a larger question of
the place of cameras in the courtroom” involved here, not simply a question of
the local administrative rule under question.

The Supreme Court historically does not reach out for
issues, especially issues that are divisive in society and within the court
itself. It is a matter of Supreme Court policy to decide issues in the most
limited, not the most expansive, fashion. That said, the court missed an opportunity
to 1) allow a federal trial court to do what the governing trial judge ordered;
and 2) deal head-on with an important issue of national judicial
administration.

The clear trend in American courts is to permit televised
trials unless the rules of the courts involved deny it. This is an especially
important question because there is a unique educational feature in some cases,
Hollingsworth being a classic example.
The public would be edified by controlled rational debate by experts on both
sides of the same-sex marriage issue, if this trial were televised beyond a few
federal courts themselves — not an issue in this case, but a subject on every
interested party’s mind.

The federal courts have been slower than the states in
allowing cameras into courts — interesting since the Supreme Court ruled
decades ago that cameras in courts were not constitutionally barred. Since that
ruling in a Florida state court, the national trend has been to permit the
practice in cases like the one in question.

The old argument about television disrupting court
proceedings is obsolete since the advent of modern technology. (See photos
attached demonstrating that trial bedlam goes on outside courts, not in court
proceedings.) Reactionary judges claim television would only show “snippets,”
distorting the actual proceedings. But all current news coverage is no more
than the reporters’ snippets, while gavel-to-gavel coverage reports the whole
proceeding. Some judges fear losing their public anonymity — not a decisive
factor when the issues are, as here, so important to a public debate.

For those who advocate more widespread use of televised
trials — I am one, and have testified on the subject before Congress on this
issue — this case presented a missed opportunity. Then again, this Supreme
Court as presently constituted — had it dealt with the issue of televised
trials — probably would have voted 5-4 against. Perhaps advocates should
welcome its ducking the issue.

Visit www.RonaldGoldfarb.com.