The demand for instant images and information has irrevocably altered our society as today's fiercely competitive media fights to be the first to report breaking news and transmit live pictures. Therefore, it is more important than ever to protect the dignity and fairness of our legal system while preserving the public's right to know. Against this noisy background of demands for televised judicial proceedings, we must consider how to preserve free speech while defusing the intrusion and sensationalism of the media.

Background

The Lindbergh trial of 1934 arguably marked the dawn of the modern media age in the courtroom. The court allowed still photography, but was unprepared for the crush of cameras (including a smuggled newsreel camera) inside the court. Thereafter, the ABA called for prohibiting photography in its Canons of Professional and Judicial Ethics. Congress also responded by amending the Federal Rules of Criminal Procedure to prohibit broadcasting from federal courts. All but two states (Texas and Colorado) adopted the ban.

Constitutional Foundations for Public Access to Judicial Proceedings

Both the federal and state courts acknowledge a presumption in favor of public access to judicial proceedings. Under the First Amendment, made applicable to the states by the Fourteenth Amendment, the public has a right to attend civil proceedings and trials. The press does not have a special right to access, but instead enjoys the same right afforded to the rest of the public. Closed proceedings or partial closures, however, may be allowed upon a showing that press coverage would cause prejudice based on the specific facts in the case.

The public and the press do not have a constitutional right to televise court proceedings or videotape them for future broadcasting. The United States Supreme Court has permitted the states to delegate authority to the trial courts to decide whether press coverage would be appropriate on a case-by-case basis.

When a party challenges the court's decision to allow broadcasting on constitutional grounds, the party must demonstrate actual prejudice. To demonstrate prejudice in a specific case, the standard is whether the camera equipment, the broadcasts, or the prospect of future broadcasts adversely affected the party's trial and amounted to a denial of due process. Reliance on the right to access cases is entirely inapposite to the question of whether to allow cameras in the courtroom.

At present, court proceedings are being recorded by private companies, who often broadcast their videos on the internet. They charge subscription fees to view their videos and cater to attorneys and law schools alike.

California Courts (California Rules of Court Rule 1.150)

California's guidelines for determining whether to allow the press to televise or videotape judicial proceedings are set forth in Rule 1.150. The general rule is stated in 1.150(c): "Except as provided in this rule, court proceedings may not be photographed, recorded, or broadcast." However, the "cameras rule" (subdivision (e)(3)) allows judges to decide when such coverage is appropriate by applying 18 factors in deciding such requests. Some of those factors are: the nature of the case; the importance of maintaining public trust and confidence in the judicial system; the importance of promoting public access to the judicial system; the effect on any unresolved identification issues; and the effect on excluded witnesses who would have access to the televised testimony of prior witnesses.

Opposing Media Requests

Media outlets have the authority to record and broadcast cases under Rule 1.150 by filing a Media Request to Photograph, Record or Broadcast and a completed, proposed order at least five court days before the portion of the proceeding to be covered unless good cause is shown.

A party may file a motion opposing a Media Request to Photograph, Record, or Broadcast and may request a hearing before the judge makes a ruling. The opposing party can scrutinize the procedure of the media request or argue statutory factors enumerated in Rule 1.150. They can also argue that the media request is not necessary for public access to the trial or that manipulation or distortion of court proceedings by out of context usage could be directly implicated as a result of the media request.

In the event coverage is allowed, an argument could be made that coverage should be subject to certain conditions regarding microphone and camera placement.

Pressure applied by the media in light of today's technology is an ongoing challenge to civil litigation attorneys.


Karen Johnson is an attorney in the asbestos department of the firm's Orange office. She can be contacted at kjohnson@wbm.com, or (714) 634-2522.

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