"Mischievous potentialities"


Material Information

"Mischievous potentialities" a case study of courtroom camera guidelines, Eighth Judicial Circuit, Florida, 1989
Physical Description:
x, 312 leaves : ill. ; 29 cm.
Alexander, S. L
Publication Date:


Subjects / Keywords:
Conduct of court proceedings -- Florida   ( lcsh )
Video tapes in courtroom proceedings -- Florida   ( lcsh )
Free press and fair trial -- Florida   ( lcsh )
Television broadcasting of news -- Florida   ( lcsh )
bibliography   ( marcgt )
theses   ( marcgt )
non-fiction   ( marcgt )


Thesis (Ph. D.)--University of Florida, 1990.
Includes bibliographical references (leaves 282-311).
Statement of Responsibility:
by S.L. Alexander.
General Note:
General Note:

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Source Institution:
University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
aleph - 001610987
notis - AHN5350
oclc - 23445655
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Full Text








Copyright 1990


S.L. Alexander


First, my appreciation is extended to all those who

aided me in the field work (most of whom are named in Chapter

4 as those whose work is the subject of the study): members

of the media, particularly representatives of WCJB-TV (ABC),


Gainesville Sun; and the Honorable Chester Chance, Chief

Judge of Florida's Eighth Judicial Circuit, as well as the

other judges, attorneys, court personnel and anonymous jurors

who were involved with the case study.

I wish to express special gratitude to the following at

the University of Florida: professors who served as

supervisory committee members (gentlemen and scholars) Drs.

David Ostroff (Chairman), Bill F. Chamberlin, Kermit Hall,

Albert Matheny, and John Wright; Dean Ralph Lowenstein

(College of Journalism and Communications), Assistant Dean

Kurt Kent (Graduate Studies), and Dean Jeff Lewis (College of

Law); librarians Rick Donnelly, Dolores Jenkins, and Rosalie

Sanderson; and copy editors Morgan Piazza and Barbara


I will remember with fondness the late Joseph L.

Brechner, who was the primary patron of my studies and a

warm, sincere supporter. My thanks also go to the William C.


Steel Media Access Fund (and particularly Steel, Hector Davis

attorneys Dean Sandy D'Alemberte, Norm Davis, and Tom Julin).

Finally, my thanks are offered to the advisors who

rendered various types of personal assistance (a debt of

gratitude I can never repay): Dee, Beans, Richard, Charles,

Christopher, and Alexandra.



ACKNOWLEDGMENTS....................................... iii

LIST OF TABLES........................................ vii

ABSTRACT.............................................. viii


1 INTRODUCTION.................................... 1

Free Press/Fair Trial............................ 2
The Curious History of Canon 35................. 6
The Supreme Court Decisions and Cameras in
State Courts ................................... 13
The Federal Courts ............................... 29
Hypotheses...................................... 38
Notes ............................................ 43

2 REVIEW OF LITERATURE............... ............ 54

General History .................................. 54
Law.............................................. 61
Social Science ................................... 73
Notes............................................. 91

3 METHODS......................................... 104

Participant Observation......................... 105
Refinement of Methodology....................... 112
Limitations ...................................... 120
Notes ............................................ 122

4 RESULTS AND DISCUSSION .......................... 125

Preliminary Study: Eighth Judicial Circuit...... 125
Florida v. Simmons ........................... .. 137
Florida v. C. Harris & P. Harris................ 150
Florida v. Spikes ............................... 166
Florida v. Stanley.............. ... .............. 174
Notes ............................................ 184

5 SUMMARY AND CONCLUSIONS......................... 186

Case Study........................................ 186
Analysis........................................ 193
Conclusions and Recommendations ................. 196
Suggestions for Further Research................ 203
Notes .............................. .............. 207




C CONTENT ANALYSES ................................ 213

D SELECTED ARTICLES AND SCRIPTS................... 227

E JUROR EXIT POLL ................................. 280

BIBLIOGRAPHY.......................................... 282

BIOGRAPHICAL SKETCH................................... 312


1-1 CAMERA COVERAGE OF STATE COURTS .................. 27

4-1 CONTENT ANALYSIS: Florida v. Simmons.............. 143

4-2 CONTENT ANALYSIS: Florida v. C. Harris &
P. Harris.... ..................................... 155

4-3 CONTENT ANALYSIS: Florida v. Spikes.............. 170

4-4 CONTENT ANALYSIS: Florida v. Stanley.............. 178

4-5 JUROR RESPONSE .................... ............... 183

4-6 JUROR RESPONSE: PERCENTAGES ...................... 184


Abstract of Dissertation Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the
Requirements for the Degree of Doctor of Philosophy




Chairman: Dr. David Ostroff
Major Department: Mass Communication

This study explored the problem of how closely broadcast

journalists follow state guidelines for behavior in courtrooms

during criminal trials, the impact of the guidelines on

coverage, and whether use of courtroom cameras results in

undistorted coverage without observable disruption to the

judicial process. The study focused on the process of

broadcast coverage of four criminal trials in Florida's Eighth

Judicial Circuit in 1989.

Four research questions were analyzed:

1. How closely do broadcast journalists follow state
guidelines for behavior in courtrooms during criminal

2. What impact do the guidelines have on coverage?

3. Do broadcast journalists present undistorted coverage
of criminal trial proceedings?

4. Do broadcast journalists observably disrupt the
judicial process at the trial court level?


The primary method of data collection was participant

observation. Interviews with trial participants were conducted

prior to the observation period and during each trial. Content

analysis of trial coverage presented by four broadcast stations

was also included.

The results indicate general satisfaction with media

behavior by courtroom participants. Juror exit polls (50%

response rate) appear to uphold these results: respondents

selected answers most favorable to the press 35% of the time,

answers neutral toward the press 58%, and answers least

favorable to the press 7% of the time.

It is concluded first, that the Florida Guidelines are

appropriate and should continue to be strictly adhered to. In

the interest of improved coverage, media policy makers might

work with courtroom personnel to permanently wire courtrooms to

accommodate broadcasters.

Second, rather than specific fact errors, the major cause

of perceived distortion is an intuition that brevity of

coverage might lead to misunderstanding. Media policy makers

might attempt fuller coverage of trials.

Finally, although no specific examples of disruption were

cited by participants or noted by the researcher, improved

education of broadcast journalists and "beat" coverage of

courtroom news might decrease the perceived potential for


The first full study of actual courtroom behavior is of

limited generalizability. However, future research should

validate its findings that traditional speculation as to

possible disruption to the judicial process by courtroom

cameras appears to be unwarranted.


Permitting television in the courtroom undeniably has
mischievous potentialities for intruding upon the
detached atmosphere which should always surround the
judicial process. Forbidding this innovation, however,
would doubtless impinge upon one of the valued attributes
of our federalism by preventing the States from pursuing
a novel course of procedural experimentation.
Justice John Harlan, Estes v. Texas, 1965

This study explores how closely broadcast journalists

follow state guidelines for behavior in courtrooms during

criminal trials, the impact of the guidelines on coverage,

and whether the use of courtroom cameras results in

undistorted coverage without observable disruption to the

judicial process. The study focuses on the process of

broadcast coverage of four criminal trials in Florida's

Eighth Judicial Circuit in 1989.

Traditional objections to courtroom cameras have

revolved around their presumed impact on the process of the

trial. Legal scholars have discussed the Constitutional

aspects of coverage, and social scientific research has been

conducted in experimental settings to test apparent effects.

Now that news cameras are allowed in courtrooms, it is time

to examine their actual role in news media coverage of the

judicial process rather than the theoretical effects on

participants and public.

This study is an effort to conduct such an examination.

Through participant observation of news media behavior, and

through interviews with news and court personnel and trial

participants, as well as content analyses of news stories,

the researcher has gathered data which should contribute to a

better understanding of the actual role the television

cameras play, and, as necessary, to suggested refinements in

current practices. The development of courtroom cameras will

be described in detail after a brief introduction to Free

Press/Fair Trial issues.

Free Press/Fair Trial

The conflict between Free Press and Fair Trial (or, as

the legal community sees it, between Fair Trial and Free

Press) has been present at least since the controversy over

coverage of the 1807 treason trial of Aaron Burr.1 Lofton2

has written a classic study of the relationship between the

press and the judiciary in the U.S.: he defends the press

against popular misconceptions but also chronicles a handful

of cases in which the behavior of the press contributed to a

miscarriage of justice. Friendly and Goldfarb3 similarly

conclude that although Free Press/Fair Trial problems are

minimal, some coverage of crime news is excessive, and the

press should institute self-restraint.

However, the decisions in a half dozen High Court cases

in more recent times may be briefly mentioned to highlight

such issues as prior restraint, "gag orders," and access to

courts--before turning to the specific question of courtroom

cameras--as the Court balances the rights of the press to

report court proceedings against the defendant's right to

receive a trial by an impartial jury.

Of particular relevance is Nebraska Press Assn. v.

Stuart (427 U.S. 539, 1976). In this case, in advance of a

trial of a Nebraska farmhand for the murders of all six

members of a family (for which the defendant was ultimately

convicted), the judge ordered all news media to refrain from

publishing any confessions or other facts "strongly

implicative" of the accused.

Speaking for a unanimous Court, Chief Justice Warren

Burger held that the trial judge should have considered

alternative means of protecting the defendant's rights, such

as change of venue, continuance, strict voir dire.

admonitions, or sequestering of the jury, in preference to

the restraints on the press. According to Burger, "[P]rior

restraints on speech and publication are the most serious and

the least tolerable infringement on First Amendment rights"

(at 559).

A second area in which the Court must balance First

Amendment and Sixth Amendment rights regards access to

courts: here, too, the Court generally tips the scale in

favor of free expression, although less absolutely than in

the case of prior restraints. The Court held in Craig v.

Harney (331 U.S. 367, 1974) that "[A] trial is a public

event. What transpires in the court room is public property.

Those who see and hear what transpired can report it

with impunity" (at 374). Although in Gannett v. DePasquale

(443 U.S. 368, 1979) the Court held the press had no

constitutional right to attend pretrial hearings, in a later

case, Press-Enterprise v. Riverside Sup. Ct. (478 U.S. 1,

1986), the Court held the defendant must show openness would

cause "substantial probability" of danger to a free trial;

however, the court emphasized the qualified nature of the

presumption of openness.

A year after Gannett, the Court, switching from a Sixth

Amendment to a First Amendment approach, ruled that closing a

trial absent an overriding competing interest violated the

First and Fourteenth Amendments. Although Richmond

Newspapers v. Virginia (448 U.S. 555, 1980) did not overrule

Gannett--instead distinguishing on grounds of the difference

between a pretrial hearing and a trial--Richmond is generally

regarded as a landmark case in determining press rights of


In Richmond, the Court held a defendant's request to

exclude the public from his trial should not have been

granted. Justice Warren Burger (joined by White and Stevens)

discussed the history of open trials: "People in an open

society do not demand infallibility from their institutions,

but it is difficult for them to accept what they are

prohibited from observing" (at 572), and he concluded,

"Plainly it would be difficult to single out any aspect of

government of higher concern and importance to the people

than the manner in which criminal trials are conducted" (at


Richmond did not create an absolute right of access to

trials, and the press is not guaranteed access to all aspects

of the judicial process. True, in Press-Enterprise, the

Court had ruled in favor of a qualified privilege of access

to pretrial hearings, absent a "substantial probability" of

endangering a free trial. However, in states such as

Florida, recent cases4 have gone against access to discovery

material, based on a unique civil case.5 Moreover, observers

have noted that as closing of courtrooms is no longer an

option to prevent prejudicial publicity, "gag orders"

limiting trial participants' statements outside the courtroom

(an alternative to closed courtrooms offered by Sheppard v.

Maxwell, 384 U.S. 333, 1966) may become more attractive to

judges.6 This apparent trend among judges, upon whom rests

the initial burden of balancing the rights of the press and

the rights of the defendant, is noteworthy.

Mention of closely related issues considered by the

High Court is relevant in any discussion of Free Press/Fair

Trial. For instance, regarding contempt: the Court has

limited the power of judges to punish for publication of

material obtained out of court (Bridges v. Ca, 314 U.S. 252,

1941). As for material obtained during the trial, the press

must follow the judge's orders even if they are later

determined unconstitutional (U.S. v. Dickinson, 465 F.2d 496,

5th Cir., 1972. But for a different interpretation, see U.S.

v. Providence Journal, 485 U.S. 673, 1988, dismissed on

procedural grounds: the appeals court had held that if the

publisher made a "good faith effort" to appeal a

"transparently unconstitutional" order and was denied a

hearing, he might go ahead and publish in the interim.)

However, it is in the final area of Free Press/Fair

Trial conflict, courtroom cameras, that the law is most

unsettled in the High Court's weighing First Amendment versus

Sixth Amendment rights. Even First Amendment absolutists

such as Justice William Douglas have decried cameras as an

"insidious" intrusion into the decorum of the court and the

judicial process.

The Curious History of Canon 35

Canon 35, the American Bar Association's prohibition

against courtroom cameras, stood virtually intact for nearly

50 years. Only recently, however, have the revisionists

brought one or two curious aspects of the issue to light.

For instance, it had generally been accepted that the

behavior of cameramen inside the courtroom at the trial of

Bruno Hauptmann for the kidnap and murder of the Lindbergh

baby inspired the ABA to pass the prohibition. However,

critics now point out that there were other factors which

contributed to the circus-like atmosphere of the Hauptmann

trial, and the development of Canon 35 should not be viewed

as a result solely of courtroom cameras as employed in 1935.7

Moreover, a close examination of the proceedings of the

ABA during the 1930s as Canon 35 developed provides an

alternative explanation for the ban. First, in the United

States during this time there was a "press-radio war" taking

place: print journalists were fighting the advent of

broadcasting, including radio and the nascent television

industry. Second, the traditional tension between press and

bar was reflected in the attempts of the members of the

committees on Free Press Fair Trial issues to work together

under the auspices of the American Bar Association. Finally,

the organizational politics of the ABA also affected the

development of Canon 35; in fact, in 1937 the ABA ignored the

guidelines for courtroom cameras recommended by one of its

committees specifically appointed to consider the issue and

favored the sudden adoption of the flat ban on courtroom

cameras proposed by another committee.

In 1935, Bruno Richard Hauptmann was tried for the 1932

kidnap and murder of the eighteen-month-old son of Charles

Lindbergh.8 The trial, in tiny Flemington, New Jersey, was

among the most widely publicized in history, with an

estimated 700 newsmen, including 120 cameramen, covering the

trial.9 The presiding judge, Thomas Trenchard, allowed

newsreel and still photographers in the courtroom with the

proviso that they follow his guidelines restricting

photographic coverage.10 Only when he discovered that one of

the newsreel companies had violated his order to keep the

cameras in the courtroom turned off during actual court

proceedings did the judge withdraw his permission for film

cameras inside the courtroom; still cameramen were allowed to


Photographer Joseph Costa of the New York Morning

World, who covered the trial, recently said that although

some still photographs had been taken surreptitiously, the

idea that the cameramen inside the courtroom disrupted the

Hauptmann trial was a myth.12 Costa called the myth a

"falsehood" and a "total fabrication," which he said was

picked up by researchers and students writing dissertations.

Researcher Richard Kielbowicz was then one of the first to

present the revisionist interpretation of events.13

Hauptmann juror Ethel Stockton repeatedly has insisted

still and film photographers caused no problem in the

courtroom. She said, "I didn't even know they had cameras

there until I got home after the trial and saw the pictures

in the newspaper."14

Examination of contemporary press accounts of the

Hauptmann trial led Susannah Barber to conclude that the

traditional interpretations regarding the Hauptmann trial

were indeed incorrect. The "carnival atmosphere" in the

courtroom was not created primarily by photographers but by

"prejudicial press reports, contemptuous statements by the

trial attorneys and police, the rowdy behavior of the 150

spectators crammed inside the courtroom, by the too numerous

reporters who descended on the trial, and by the neglectful

judge. "15

The ABA appointed a Special Committee on Publicity in

Criminal Trials, headed by Judge Oscar Hallam, to study the

problems caused by press coverage of the Hauptmann trial, and

Hallam's Report of the Special Committee on Publicity in

Criminal Trials cited four specific reasons for the

committee's objections to courtroom cameras: sound

reproduction did not allow for deletion of offensive matter;

cameras included inadmissible and prejudicial material;

cameras dramatized court proceedings, and the use of cameras

(i.e., radio) brought "the revolting details of a murder

trial, its crime story and its sensational matter to children

of all ages."16 Hallam and his committee's strong objection

to coverage may have been the most influential aspect of the

events which ultimately led to the flat ban on courtroom

cameras, Canon 35.

The ABA's Special Committee on Press, Radio, and Bar,

chaired by Newton Baker, succeeded Hallam's committee in

1936. There were seven representatives of the American

Newspaper Publishers Association (ANPA) on the new committee

and five who represented the American Society of Newspaper

Editors (ASNE). The Report cautioned that although jury

members could be shielded from newspaper coverage of trials,

headlines, and especially photographs, might catch the eye of

a juror. Even worse, according to the Report, was radio

coverage and its concomitant "evil of the trial in the air."17

It was not surprising that a committee in which the

sole press representatives were executives of newspapers

would be unanimous in its wariness toward broadcast coverage

of courtrooms. In fact, during the 1930s, a "press-radio

war" was being fought. Newspapermen resented the upstart

medium, viewed as a threat to their advertising income, and

employed such tactics as threatening to boycott wire services

which supplied broadcasters with stories.18

Thus, the Baker Report, written by a committee of

newspaper men and lawyers during the "press-radio war,"

emphasized special caution in broadcasting courtroom

proceedings. The Report noted that suggestions had been made

from the start that representatives of radio should be added

to the Committee but that members felt the current committee

"adequately represented those most directly concerned."19

The one issue about which the members of the Baker

Committee did not agree was the consent requirement regarding

cameras in the courtroom.20 Thus, the divisive issue was how

to implement courtroom coverage--not whether courtroom

coverage should be allowed.

On September 27, 1937, the ABA convention delegates

voted to accept the Baker Committee recommendations and to

extend the Baker Committee for another year so that the final

issue of conflict--specifics of control of courtroom cameras--

could be resolved. Then, just three days after the Baker

Report was accepted, the same delegates, at the same ABA

convention, voted without discussion to accept a package of

recommendations from the Standing Committee on Professional

Ethics. This package included a flat ban on courtroom

cameras, Canon 35:

Improper Publicizing of Court Proceedings

Proceedings in court should be conducted with fitting
dignity and decorum. The taking of photographs in the
courtroom during sessions of the court or recesses
between sessions, and the broadcasting of such
proceedings are calculated to detract from the essential
dignity of the proceedings, degrade the court and create
misconceptions with respect thereto in the mind of the
public and should not be permitted.21

Why did the ABA pass Canon 35 three days after voting

to accept the Baker Committee Report which called for another

year to work out specifics of courtroom coverage? Why would

an organization ignore two years' work by one committee,

specifically appointed to work out Free Press/Fair Trial

guidelines, and adopt a conflicting recommendation from a

standing committee? One potential explanation lies in the

politics of the ABA.

The principal ABA member on the Special Committee--the

one who (ironically) was selected actually to deliver the

Baker Report to the ABA convention--was Judge Oscar Hallam.

Hallam had written the earlier study on coverage of the

Hauptmann trial and had released part of it to the ABA

delegates and to the press despite objections from others

involved. Hallam, one might infer, may have had some concern

that his own report, which had called for a flat ban on

courtroom cameras, had been suppressed in favor of a report

which called for developing guidelines to implement camera


The events surrounding the adoption of Canon 35 were

symptomatic of continued bickering among ABA factions. Thus,

self-criticism by the Bar of the manner in which the ABA had

adopted Canon 35 was a long time coming. ABA member Albert

Blashfield, representing those then concerned with revising

Canon 35, wrote in the 1962 Bar Journal of the genesis of

Canon 35 "with the hope that the story will serve to

encourage a more responsible and objective approach to the

proposed revision." Blashfield pointed out that in 1937

there had been no reference to the Baker Report when Canon 35

was adopted, no discussion of the Canon, no dissenting vote.22

One other ABA member, Elisha Hanson, representing a

1958 coalition of press groups hoping to revise Canon 35, had

also gone on record noting the "curious history" of Canon 35:

Entirely without referenceto the work of the Special
Committee on Cooperation with the Media, the Committee on
Professional Ethics and Grievances proposed the adoption
of a new canon--the present Canon 35. Its motion was
carried without discussion. Canon 35 was not only drastic
but punitive in effect--the very antithesis of what the
Committee on Cooperation was striving for. Its adoption
was a rebuff not only to the Special Committee, but to the
media committees as well. Its adoption pointed up not
only a deep-seated conflict within this Association, but
an equally deep-seated resentment by some members of this
Association against the media.23

The Supreme Court Decisions and Cameras in State Courts

Canon 35 remained in effect for more than 40 years.

The ABA Committee on Ethics handed down a handful of opinions

regarding the Canon.24 There was only one significant

revision: television was specifically added to the

prohibition in 1952.25 Although there was continued debate

about revising or even revoking Canon 35, and some coverage

was permitted in such state courts as Kansas, by 1965 state

bar associations everywhere but in Colorado and Texas had

adopted bans on courtroom cameras.26

Moreover, from 1959 through 1966, the U.S. Supreme

Court had overturned convictions in five cases due to lack of

due process caused by pretrial publicity or press coverage of

trials.27 Two of these cases, Estes v. Texas and Sheppard v.

Maxwell, to different degrees had involved television


Estes v. Texas (381 U.S. 532, 1965) is considered the

first of two landmark courtroom camera cases (the second

being Chandler v. Florida, 449 U.S. 560, 1981). The court

overturned the swindling conviction of Billie Sol Estes based

on denial of due process under the Fourteenth Amendment,

mainly because of courtroom coverage. A pretrial hearing had

been carried live on television and radio, and, although live

broadcasting was forbidden during the trial itself, silent

cameras operated intermittently, and excerpts were shown on

news programs each night.

The decision was split 4-1-4. Justice Tom Clark,

speaking for the plurality, held television might improperly

influence jurors, impair the testimony of witnesses, distract

judges, and burden defendants (at 554-550). Chief Justice

Warren (joined by Justices Douglas and Goldberg) concurred,

citing the "inherent prejudice" of televised trials (at 552).

Justice Harlan limited his concurrence: he wanted to

encourage experimentation despite television's "mischievous

potentialities" (at 587-601). Justice Stewart (joined by

Black, Brennan and White) dissented, saying, "The idea of

imposing upon any medium of communication the burden of

justifying its presence is contrary to where I had always

thought the presumption must lie in the area of First

Amendment freedoms" (at 615). Justices White and Brennan

also added separate dissents, with Justice Brennan's pointing

out the limitations of Harlan's vote and insisting the

decision was not a blanket constitutional prohibition (at

617). However, Justice Brennan's caveat notwithstanding, the

case was regarded as such.

Although the 1966 decision in Sheppard v. Maxwell dealt

with pretrial publicity, it reinforced for many the idea that

courtroom cameras interfere with the judicial process.

Sheppard represents perhaps the most egregious reported

example of press interference with due process.28 Dr. Sam

Sheppard had been tried for murder of his wife in 1954. A

five-hour, three-day inquest was televised live; a prisoner's

claims she had borne Sheppard's child were widely publicized;

during the trial a debate on the case was broadcast live.

The Court held 8-1 (Justice Black dissenting without comment)

that due process had been denied, and the conviction was


Often overlooked in discussion of the case is the

Court's holding that the blame lay less with the press than

with the trial judge for failing to take proper precautions

such as continuance and change of venue. In fact, Justice

Clark, speaking for the Court, held "A responsible press has

always been regarded as the handmaiden of effective judicial

administration, especially in the criminal field." Moreover,

the press "guards against the miscarriage of justice by

subjecting the police, prosecutors, and judicial processes to

extensive public scrutiny and criticism" (at 350).

The Court suggested alternatives, including regulating

conduct of the press in the courtroom, insulating the

witnesses, and controlling the behavior of trial

participants. These suggestions were incorporated into the

ABA's 1969 "Reardon Report," The Rights of Fair Trial and

Free Press, which made recommendations as to how to avoid

future due process problems which had resulted in overturned


After Estes and Sheppard, the ABA strengthened its

position on Canon 35. In 1972, the organization revised its

Code of Professional Responsibility, and Canon 35 became

Canon 3A(7). The revised canon allowed cameras for use by

the court for educational purposes only; in essence, the ban

remained. Finally, after the Chandler decision and the

increase in use of courtroom cameras in the states, at the

1982 ABA convention the delegates voted 162-112 to revise

Cannon 3A(7) to allow for broadcast news coverage at the

discretion of each state's high court:

Canon 3A(7)

A judge should prohibit broadcasting, televising,
recording or photographing in courtrooms and areas
immediately adjacent thereto during sessions of court, or
recesses between sessions, except that under rules
prescribed by supervising appellate court or other
appropriate authority, a judge may authorize broadcasting,
televising, recording, and photographing of judicial
proceedings in the courtrooms and areas immediately
adjacent thereto consistent with the right of the parties
to a fair trial and subject to express conditions,
limitations, and guidelines which allow such coverage in a
manner that will be unobtrusive, will not distract the
trial participants, and will not otherwise interfere with
the administration of justice.30

The issue of courtroom cameras as it developed in

Florida, which eventually led to the landmark Supreme Court

decision Chandler v. Florida, may have influenced the

attitude of the ABA. In 1975, the Post-Newsweek television

stations in Florida petitioned the Florida Supreme Court to

revise the state's Canon 3A(7) to allow cameras in courts.

After a successful mock trial by a cooperative group of

lawyers and journalists,31 the Court agreed to a one-year

experiment, provided all participants in a case would agree.

When no willing participants had been found after a year, the

Court revised the experiment, authorizing coverage as long as

the presiding judge agreed. The experiment lasted from July,

1977, through June, 1978. In April, 1979, the Court ruled in

favor of the Post-Newsweek petition.

Florida Justice Alan Sundberg wrote the decision in the

case, providing a response to six traditional objections to

courtroom cameras.32 He said technological advances had

solved most of the problems of physical disruptions. As far

as psychological effects, Sundberg concluded although they

might be a problem, no one had substantiated these fears.

Regarding the charge of exploitation of the courts by

commercial media, Sundberg saw no difference between

electronic and print media. He found no evidence an accurate

electronic transcription would enhance potential for

prejudice of witnesses and jurors; guidelines would determine

whether certain sensitive witnesses would be exempt from

coverage. Finally, regarding the charge that cameras invade

privacy, Sundberg concluded, "[T]here is no constitutionally

recognized right of privacy in the context of a judicial

proceeding" (at 774-779).

During the Post-Newsweek experiment, the first trial to

be televised involved a 15-year-old Miami Beach boy, Ronny

Zamora, accused of killing his elderly neighbor.33 The

novelty of courtroom cameras, as well as the novel defense--

Zamora's attorney argued the boy was the victim of too much

TV watching--led the local public television station WPBT to

provide gavel-to-gavel coverage of the case in Miami, and

stations around the country carried excerpts. With dozens of

reporters from around the world covering the case, the

potential for a repeat of Estes or Sheppard existed.

However, the case was extensively studied, and the general

conclusion among researchers and legal commentators was the

coverage did not affect Zamora's Sixth or Fourteenth

Amendment rights.34

In the second landmark camera case, 1981's Chandler v.

Florida, two policemen in Miami Beach appealed their

convictions for burglary on the grounds they had not had a

fair trial due to the presence of cameras in the courtroom;

their trial had also taken place during Florida's year-long

experiment with courtroom cameras which allowed coverage

despite the defendants' objections.35 Less than three minutes

of the trial had been broadcast, all of it from the

prosecution's case. Chief Justice Warren Burger delivered

the 8-0 opinion of the court, which upheld the convictions on

the grounds the mere presence of cameras did not violate the

defendants' right to a fair trial.

After presenting a history of courtroom cameras,

Justice Burger described the changing technology of broadcast

equipment since Estes. He said that although Estes had been

interpreted by some as a per se ban on cameras, the

defendants in this particular case had not proved a lack of

due process caused by the mere presence of cameras. Although

he found "dangers lurk in this as in most experiments," he

said that unless television coverage under all conditions

were prohibited by the Constitution, states must be free to

experiment, and the Court should neither endorse nor

invalidate a state's experiment with courtroom cameras (at


Justices Stewart and White each wrote separate

concurrences, saying they felt it necessary to overturn Estes

(at 583-586). But the decision did not overturn Estes and,

in fact, suggested under similar circumstances a conviction

might again be overturned. It did not suggest broadcasters

had a constitutional right of access for courtroom coverage.

It did not mention federal courts, but limited the holding to

state courts, and, in fact, suggested the concept of

federalism in support of the decision. What it did do was to

emphasize the need for stringent guidelines regarding

courtroom coverage and call for more research on the effects

of coverage on defendants' rights.

Since Florida's experimental period, observers contend

the state may have televised more trials than any other.36

Although many of these case have involved sensational

murders, such as the trials of Mark Herman in Palm Beach in

1978,37 and the trials of serial murderer Ted Bundy in 1979,38

the general consensus among journalists covering the trials

has been the defendants received a fair trial.

In fact, Florida courts historically have upheld the

right of the electronic media to enter the courtroom despite

motions to exclude them. Even prior to Chandler, the state

constitutionality of the new camera rules had survived

challenges (Briklod v. Rivkind, 2 Med. L. Rptr. 2258, 1977;

Trinidad v. Stettin, 5 Med. L. Rptr. 1171, 1979). After

Chandler, in three cases (Florida v. Russell, 8 Med. L. Rptr.

2176, 1982; Florida v. Pryor, 10 Med. L. Rptr. 1902, 1984;

and Florida v. Garcia, 12 Med. L. Rptr. 1750, 1986), the

courts denied petitions to exclude cameras on grounds of

failure to meet the "qualitative differential test," i.e.,

the suggestion in Post-Newsweek that the burden would be on

the defendant to show electronic coverage would have a

significantly different impact from print coverage, a

difference which would affect due process rights.

In two sensitive cases, one involving a juvenile

charged with killing his parents (In Re B.P., 9 Med. L. Rptr.

1151, 1983) and one involving a defendant charged with rape

(Lang v. Tampa TV, 11 Med. L. Rptr. 1150, 1984), television

cameras were permitted (although showing the juvenile in the

former and the victim in the latter were prohibited). Also,

in Florida v. Palm Beach Newspapers (395 So. 2d 544, 1981),

the court held that although it might have granted a request

to exclude cameras when prisoner witnesses at a convict's

murder trial refused to testify with cameras present ("The

electronic media's presence in Florida's courtrooms is

desirable, but it is not indispensable," at 549), in this

specific case the exclusionary hearing had been faulty (and

the issue was moot, in any case).

Likewise, Florida courts rarely overturn convictions

where cameras are alleged to have interfered with due

process. One exceptional case was Florida v. Green (395 So.

2d 532, 1981), in which the exclusion of cameras from a

lawyer's grand larceny case had been denied, even though the

defendant's psychologist had testified coverage would render

her client incompetent to stand trial; the court remanded for

a new trial.

But at least three other attempts to have murder

convictions in Florida courts overturned on grounds including

presence of courtroom cameras were denied on grounds of

failure to show interference with due process: Clark v.

Florida (379 So. 2d 97, 1979); King v. Florida (390 So. 2d

315, 1980); and the aforementioned Herman v. Florida (396 So.

2d 222, 1981, sentencing partially reversed on other


As Florida and the other states have continued to

experiment with courtroom cameras, two modest trends among

reported cases might be noted. The first is toward more

generally allowing cameras into the courts, absent

exceptional circumstances. For instance, in only a handful

of reported cases have cameras been denied entry. Before

Chandler, Tribune Review v. Thomas (254 F.2d 883, 1958)

upheld the Pennsylvania ban; after Chandler, KARK-TV v.

Lofton (9 Med. L. Rptr. 1016, 1982) upheld the Arkansas

provision allowing exclusion of cameras upon the defendant's

request. In Georgia, a ban was upheld in the sensational

child-murder case of Wayne Williams (Georgia v. Williams, 7

Med. L. Rptr. 1849, 1981) after testimony that psychological

harm might be inflicted on child viewers. A second ban in

Georgia was upheld in the case of a retrial of a defendant

whose prior conviction had been vacated due to extensive

pretrial publicity (Georgia TV v. Georgia 363 S.E.2d 528,

1988). And in New York, in two recent sensational trials--

the "Howard Beach" murder trial (New York v. Kern, 137 A.D.

862, 1988) and the "Preppy Murder" trial (New York Times v.

Bell, 135 A.D.2d 182, 1988)--due to the sensitive nature of

the crimes, both were considered by respective trial judges

as unsuitable for coverage during the New York experiment

with courtroom cameras.

In contrast, in at least a dozen other cases, the

electronic media have been allowed in the courtroom even over

the defendant's objections. For instance, there have been

three cases in Ohio: Ex Rel Grinnell Communications v. Love,

406 N.E.2d 809, 1980; Ohio Ex Rel Miami Valley Broadcasting

v. Kessler, 413 N.E.2d 1203, 1980; and Ohio Ex Rel Cosmos

Broadcasting v. Brown, 471 N.E.2d 874, 1984 (decision based

on First Amendment grounds--"[U]nless there is an overriding

consideration to the contrary .representatives of the

electronic news media must be allowed to bring their

technology with them into the courtroom," at 883).

Thus, the media have successfully survived challenges

to entry to the courtroom. Further examples include cases in

New Mexico (New Mexico ex rel Journal Publishing v. Allen, 8

Med. L. Rptr. 1320, 1984--although the issue was moot); in

Wisconsin (Wisconsin v. Koput, 10 Med. L. Rptr. 1932, 1984);

in two cases in Georgia (Multimedia v. Georgia, 353 S.E.2d

173, 1987--although the issue was moot, and Georgia TV v.

Napper, 14 Med. L. Rptr. 2382, 1988--allowing coverage of

hearings on allegations of drug use by former State Senator

Julian Bond); in Kansas (Kansas v. Garrett, 11 Med. L. Rptr.

2385, 1985--although coverage of the defendant was

prohibited); and in New York (New York v. Torres, 529 N.Y.S.

954, 1988--coverage of sentencing in the case of a defendant

convicted of killing a nun was allowed with limitations).

Even more significant, however, is the upholding of

convictions despite defendants' claims of denial of due

process due to the presence of courtroom coverage, including

camera usage. True, a few convictions were overturned: for

instance, in one early Illinois case, People v. Sunday (117

N.E. 286, 1917), the conviction was overturned on several

grounds, including actual interruption of the proceedings by

photographers. And the flurry of reversals in the Warren

Court years of the 1960s (although none but Estes

significantly involved courtroom cameras) has already been

noted.39 Likewise, a conviction was overturned in Hudson v.

Georgia (132 S.E.2d 508, 1963): in that case a radio

microphone had been placed within five feet of the defense

table. In Callahan v. Lash (381 F. Supp. 827, 1974,

involving a conviction for murder of a police officer), a new

trial was ordered on due process grounds, including the

presence of four cameras inside an "excessively cluttered"


However, with the exception of the aforementioned

Florida v. Green, it appears no convictions have been

overturned due to courtroom cameras since Chandler. And even

back in 1951 in California, in People v. Stroble (226 P.2d

330, 1951), the court had held that although at that time

courtroom cameras were "improper," there was "no indication

that the jury's verdict was influenced by the taking of the

pictures or the televising of courtroom scenes" (at 334), and

the conviction had been upheld.

A similar decision was reached in Oklahoma in 1958

(Lyles v. Oklahoma, 330 P.2d 734). The court held that the

bans were recommendations, not law, and that "Basically there

is no sound reason why photographers and television

representatives should not be entitled to the same privileges

of the courtroom as other members of the press" (at 741).

In several other cases the courts have upheld

convictions despite due process challenges including

reference to courtroom cameras. Examples include Gonzales v.

Colorado (438 P.2d 686, 1968), Oregon v. Wampler (569 P.2d

146, 1977), New Jersey v. Newsome (426 A.2d 68, 1980),

Washington v. Wixon (631 P.2d 1033, 1981), and Halsey v.

Bonar (683 S.W.2d 898, 1985).

Most dramatically, in Massachusetts v. Cordeiro (519

N.E.2d, 1328, 1988), the convictions of the defendants in the

"Big Dan Rape Case" were upheld, despite their charges of

denial of due process. The defendants contended that the

judge's decision allowing broadcast coverage of the trial,

but excluding coverage of the alleged victim, prejudiced the

jurors against them; the court held it was within the

discretion of the trial judge to control coverage.

Moreover, there seem to be fewer instances of the

courts' upholding contempt convictions of those who violate

the bans. One of the first contempt cases, In Re Mack (126

A.2d 679, 1956), involved photographers, supported by

newspaper publishers, who responded to a court's suggestion

that they challenge the court ban by violating it--and their

subsequent citations for contempt were upheld by the appeals

court. Appeals Court Judge Michael Musmanno--who had been a

judge at the Nuremberg trials, which he pointed out had been

televised--wrote a lengthy "dissent to the ultimate" in

which he said the journalists had been double-crossed by the

court. In Brumfield v. Fla. (108 So. 2d 33, 1959), the

contempt citations for photographers who violated a ban

against photos of a prisoner on his way to arraignment were

also upheld. However, few examples of upholding of contempt

by the court in recent years turn up in the case reporters.40

At any rate, as of 1980, 45 states (all but Indiana,

Mississippi, Missouri, South Carolina, and South Dakota--

along with the District of Columbia)--permitted some type of

courtroom coverage. (Texas allows audio coverage only in

appellate courts.) States allowing cameras have adopted

guidelines governing such issues as coverage of cases

involving juveniles as well as testimony of certain

witnesses.41 New York's experiment with cameras in trial

courts received extensive press coverage, particularly the

child-abuse trial of Joel Steinberg and Hedda Nussbaum.42

However, despite the 1982 revision of Canon 3A(7) and the

activity in state courts, there are still no cameras allowed

in federal courts. (See Table 1-1, Camera Coverage of State




States with Permanent Rules

Effective Date Courts
Experimental Permanent Level Division







Illinois 01/01/84
Iowa 01/01/80
Kansas 09/14/81
Louisiana**** 07/13/79
Maine 04/02/82
Maryland 01/01/81
Maryland** 01/01/81
Massachusetts 04/01/80
Massachusetts 06/01/80
Michigan 02/01/88
Minnesota 01/27/78
Montana 04/01/78
Nebraska 10/01/82
New Hampshire
New Jersey 05/01/79
New Jersey 05/01/79
New Mexico 07/01/80
New York
North Dakota 02/01/79
Ohio*** 06/01/79
Oklahoma*** 01/01/79
Vermont 07/01/84
West Virginia 01/01/79
Wisconsin 04/01/78

02/01/76 Trial & Appellate
07/01/83 Trial & Appellate
03/08/82 Trial & Appellate
07/01/84 Trial & Appellate
02/27/56 Trial & Appellate
10/01/84 Trial & Appellate
05/01/79 Trial & Appellate
05/12/77 Trial & Appellate
12/07/87 Trial & Appellate
08/27/79 Supreme Court in
10/01/80 Supreme Court on


Trial & Appellate
Trial & Appellate
Trial & Appellate
Supreme Court
Trial & Appellate
Trial & Appellate
Supreme Court
Trial & Appellate
Dist. & Appellate

Trial &
Trial &
Trial &
Trial &
Trial &
Trial &




Civil & Criminal

Civil & Criminal


Civil & Criminal
Civil & Criminal

Civil & Criminal

Civil & Criminal

Civil & Criminal
Civil & Criminal





Table 1-1--Continued.

States with Experimental Rules

Effective Period Level Division






New Jersey
New York


Rhode Island




08/24/78 To 1/15/90,
then permanent
05/01/82 Extended
01/04/82 Extended
04/18/83 Unofficially
04/01/80 Unofficially
01/03/84 Indefinite
12/01/87 Extended to
10/18/82 Extended to
06/01/83 Indefinite
*10/01/79 Extended
10/01/81 Extended
01/01/88 Completed,
07/01/87 Extended to
08/14/81 Extended

Trial & Appellate

Supreme Court

Court of Appeals


Trial & Appellate

Municipal Courts
Selected Trial
Trial & Appellate

Trial, nonjury

Trial & Appellate

Supreme Court

Trial & Appellate

Civil & Criminal


Civil & Criminal

Civil & Criminal

Civil & Criminal
Civil & Criminal

Civil & Criminal


& Criminal

& Criminal

Civil & Criminal

Civil & Criminal

Supreme Court

* Consent of accused required in
** Consent of parties and witness
*** No coverage of individuals who

criminal trials.

**** Subject to approval of the individual court.
# Still photography only in trial courts.

Used with permission of National Center for State Courts, 300
Newport Avenue, Williamsburg, Virginia 23187 (November, 1989).

The Federal Courts

Cameras have been banned from federal courts since the

1946 adoption of Rule 53 of the Federal Rules of Criminal

Procedure.43 In 1962, the Judicial Conference adopted a

resolution prohibiting cameras in any federal courts, thus

including civil proceedings, and, in 1972, the Judicial

Conference incorporated the ABA Code of Judicial Conduct

Canon 3A(7).44 As discussion of courtroom coverage in federal

courts generally has centered on the possibility of coverage

in the U.S. Supreme Court, a description of the development

of broadcast coverage of the High Court is appropriate at

this time.

The press corps covering the Supreme Court has grown

from fewer than half a dozen reporters in the 1930s to more

than 50 today,45 including correspondents from all three major

television networks and Cable News Network (CNN).46 Many

reporters, including those for the television networks

(beginning with NBC's Carl Stern in 1967 followed by CBS'

Fred Graham in 1972 and ABC's Tim O'Brien in 1977), have law


In 1983, researcher Ethan Katsh studied the extent to

which the three television networks covered the Supreme

Court.48 He reported that .from 1967-1981, each network had

covered approximately one out of five decisions handed down,

with one out of ten of the decisions analyzed by the

network's legal correspondent.49

In 1987, researcher Richard Davis included CBS News

coverage (along with that of two newspapers) in a study of

media portrayal of the U.S. Supreme Court.50 Of a random

sample of 32 CBS Evening News broadcasts, Davis found only

one included a story on the Supreme Court.51

There is general agreement that the institution of the

Supreme Court itself is a major impediment to more coverage

by television. As Congressional Ouarterly explains, "[T]he

Court, almost by definition, is a rigid, tradition-bound, and

intensely secretive institution, while the press is, by

necessity, adaptive, exploratory, and devoted as a matter of

principle to the elimination of secrecy."52 Paletz and Entman

point out the two main strategies of the Supreme Court in

dealing with the media: "[A]ccentuate the majesty of the

Court, and minimize access to its inner workings."53

The Court makes minimal accommodation to the press and

at one time considered closing the press work room.54 Until

1965, decisions were announced only on Mondays; since 1971

the practice has been when hearing arguments (October through

April), the Court announces opinions only on Tuesdays and

Wednesday, then, in May and June, on Mondays along with the

orders.55 There is no prior announcement as to when cases

will be handed down.56 Since 1971, the Justices announce most

opinions, many of them complex and confusing even for members

of the legal profession, in two to four minutes, stating only

the result of each case.

As Katsh points out, announcing the decisions in

clusters on one or two days makes it less likely any single

decision will be covered, as does the practice of announcing

more than one third of the decisions in June.57 ABC's Tim

O'Brien says that Katsh's study of the Evening News leaves

out the other 90 percent of news and public affairs

programming such as ABC's "Nightline" which explores issues

confronting the Supreme Court. However, O'Brien does cite

the networks' 22-minute limit for the Evening News combined

with the Court's tendency to announce the preponderance of

its decisions in June as an "annual, unyielding nightmare."58

Furthermore, the veil of secrecy surrounding the

activities of the .members of the High Court is well

documented (most dramatically in Woodward and Armstrong's

1979 The Brethren).59 At times when reporters penetrate the

shield of secrecy surrounding the Justices or the Court (as

NPR's Nina Totenberg did in 1977 and ABC's O'Brien did in

1979),60 the Court responds by limiting access even more.61

As Tim O'Brien once described it, "Most Justices avoid

reporters like lepers."62

Researcher Davis suggests certain constitutional and

political weaknesses of the Court--for instance, the need to

exercise caution in defining its own role in the national

government--have necessitated a norm of institutional

loyalty, with individual Justices' avoiding actions

detrimental to the Court.63 However, the norm

notwithstanding, some individual Justices have recently

allowed reporters, including broadcast journalists, to

interview them, such as Justice Brennan on NBC's "Today Show"

in April 1986,64 and Justice Blackmun on the syndicated

"Superior Court" in February of 1987,65 and Justice Brennan on

NPR's "All Things Considered," also in February of 1987.66 In

1987-1988, in honor of the Bicentennial of the U.S.

Constitution, the Justices participated in several

educational programs. The most elaborate was a two-part

documentary on the High Court which included unprecedented

behind-the-scenes footage; it was aired on PBS stations in

May, 1988.67

There have been some recent attempts to open federal

courts to cameras. For instance, in 1982, an attempt to

televise hearings on a lawsuit concerning a congressional

redistricting plan--hearings which were held in the federal

courthouse in Denver--was unsuccessful: in Combined

Communications v. Finesilver (672 F.2d, 818, 1982), the court

held the local rule banning electronic media in the federal

courthouse applied, and the question of application of the

Colorado Open Meetings Law was "irrelevant."

In 1983, then U.S. District Judge Alcee Hastings of

Miami unsuccessfully sued to allow cameras into his trial for

allegedly conspiring to solicit a bribe. Although his

request was denied and the denial upheld on appeal, a

concurring judge in the appeals case said the issue of camera

coverage of federal courts is "ripe for reconsideration by

the appropriate rulemaking authority."68

A petition by CBS to televise the libel trial--in which

the network news department was the defendant--brought by

General William Westmoreland was denied (Westmoreland v. CBS

in re Waiver, 752 F.2d 16, 1984): the appeals court held that

although it acknowledged that such coverage would provide a

public service, "[U]ntil the First Amendment expands to

include television access to the courtroom as a protected

interest, television coverage of federal trials is a right

created by consent of the judiciary .a consent which the

federal courts have not given" (at 24).69 Also in 1984,

a newspaper reporter's request to bring a tape recorder into

a courtroom in a civil trial was denied: in U.S. v. Yonkers

Board of Education (747 F.2d 111), the court held that the

local rule banning electronic equipment in a courtroom was a

reasonable "time, place, and manner" regulation.

In U.S. v. Kerley (753 F.2d 617, 1985), the defendant

(indicted for failure to register for the draft) petitioned

the court to be allowed to videotape his own proceedings:

citing Hastings, the court held Rule 53 was not

unconstitutional. Journalists wishing to televise coverage

of the federal fraud and racketeering trial of Louisiana

Governor Edwin Edwards were likewise unsuccessful (U.S. v.

Edwards v. Wise, 785 F.2d 1293, 5th Cir., 1986), as were

those attempting to cover electronically the racketeering

trial of union officials (Conway v. U.S., Presser, 852 F.2d

187, 6th Cir., 1988).

However, in at least one case (Dorfman v. Meiszner, 430

F.2d 558, 1970), the court held that the local rule

forbidding broadcasting in a Chicago courthouse/federal

office building went beyond the scope of the First Amendment,

and parts of the building were opened to the electronic

media. And in 1983 in Hutchinson v. Marshall (9 Med. L.

Rptr. 2443), the federal district court dismissed the

petition of a state prisoner who complained about a four-

month delay in his trial while television stations challenged

bans on broadcast coverage. (The Ohio state case was

discussed earlier, Ex Rel Miami Valley Broadcasting.)

Moreover, as in the state courts, most attempts to have

convictions overturned on courtroom-camera/due-process

grounds have generally failed in the federal courts. For

instance, in Bell v. Patterson (279 F. Supp. 760, 1968), the

court upheld a murder conviction on various grounds, despite

charges of disruption by photographers (still and television,

allowed in the courtroom only for the verdict). In Texas

(which allowed cameras in courts until 1974),70 in Bradley v.

Texas (470 F.2d 785, 1972), an aiding and abetting murder

conviction was upheld despite complaints including camera

coverage. In Iowa, the conviction for murder of a police

officer in Zaehringer v. Brewer (635 F.2d 734, 1980) was

upheld. In Zaehringer, the court held that televising of the

sentencing hearing "deprived the petitioner of his right of

due process"--both the trial judge and the prosecuting

attorney were candidates for reelection a month after the

hearings and figured prominently in the coverage. However,

the conviction was upheld due to lack of evidence that the

sentence itself was prejudiced by the cameras.

In at least two cases, contempt citations for

photographers violating camera bans in federal courts were

upheld on due process grounds. In Seymour v. U.S. (373 F.2d

629, 1967), a television news photographer in Texas

photographed a defendant in the hallway outside the

courtroom. And in Kansas in 1975, a newspaper photographer

was cited for contempt for taking pictures of federal

prisoners in prohibited areas of the federal courthouse: in

In re Mazzetti v. U.S. (518 F.2d 781), the bans were found to

be a reasonable implementation of due process safeguards.

However, despite the record in the federal courts,

proponents of federal courtroom camera coverage see some

signs of possible change in developments outside the court.

For instance, in April of 1986, the cable television network

C-SPAN produced a five-hour segment of its series "America

and the Courts" entitled "A Focus on the Federal Judiciary."71

The program included interviews "live" from inside the U.S.

Court of Appeals, D.C. Circuit, as well as recorded

interviews such as one with then D.C. Circuit Judge Antonin

Scalia.72 The same week, then Chief Justice Warren Burger

told the American Society of Newspaper Editors he might

consider allowing C-SPAN to cover arguments in the Supreme

Court if the cable channel could guarantee full presentation

of the proceedings, without editing--and prevent excerpts of

coverage by other broadcasters:73 C-SPAN did commit to

coverage of all 160 hours of oral argument each year.74

When Justice Potter Stewart retired, he held a press

conference in which he suggested camera coverage of the High

Court would be most appropriate: "Our courtroom is an open

courtroom. The public and the press are there routinely, and

since today television is part of the press, I have a hard

time seeing why it should not be there too as long as it is

not a disruptive influence."75

However, the High Court turned down a request for live

radio coverage of arguments on the constitutionality of the

Gramm-Rudman-Hollings bill in 1986. But three of the

Justices--Brennan, Marshall, and Stevens--announced they

would have granted the request.76 Also in 1986, then dean of

the College of Law at the Florida State University, Talbot

(Sandy) D'Alemberte--a longtime supporter of courtroom

cameras77--sent Chief Justice William Rehnquist a proposal for

implementation of camera coverage under the auspices of FSU

and the American Judicature Society; D'Alemberte suggested

implementation of a modification of the Florida Guidelines.78

Justice Antonin Scalia, who might represent a vote for

courtroom cameras, indicated to members of the Federal


Communications Bar Association that if broadcasters would air

arguments in their entirety, he would not object to cameras.79

And Justice Brennan stated in an NPR interview in 1987, "I

don't understand why two or three hundred people can sit in

our courtroom when [radio and television] could expand that

audience to millions."80

Thus, the time is ripe for a study of courtroom

cameras. In September, 1988, the Judicial Conference

approved an experimental program permitting use of video

cameras to create the official court record of proceedings in

a designated federal court.81 In November, 1988, three of the

Supreme Court Justices--Chief Justice William Rehnquist (who

had promised to give the issue "sympathetic consideration")

and Justices Byron White and Anthony Kennedy--witnessed a

courtroom camera demonstration conducted by CBS News and 12

other media organizations.82 In February, 1989, the Court of

Military Appeals, the three-member high court in all military

cases, allowed ABC News to film oral arguments in two cases

involving drug testing. It was the first time a legal

argument had ever been filmed in a federal courtroom.83

Although in September, 1989, a special committee to consider

the issue recommended to the Judicial Conference that the

flat ban on cameras in federal courts continue, one of the

five members of the committee voted to end the ban, and the

committee did suggest judges should continue to monitor state

court coverage with an eye to future change.84

Finally, other countries--including Australia, Canada,

France, Israel, Italy, the Netherlands, and Spain--have

experimented with courtroom cameras.85 After more than 60

years, in 1989, even Britain considered revising its ban

(part of the Criminal Justice Act of 1925, Section 41).

After visiting courtrooms in New York and Florida in 1989,

the members of the bar committee considering the question

unanimously recommended rescinding the ban in England.86

Evidence in the U.S. also points to a reconsideration of the

question of the "mischievous potentialities" of courtroom

cameras. 87


The preceding discussion describes the development of

the law regarding the use of news cameras in courtrooms,

along with descriptions of the growing use of cameras in

state courts since 1981 and the possibility of overturning of

the ban on cameras in federal courts, particularly in the

U.S. Supreme Court. The literature review (Chapter 2) will

discuss in depth three areas in which speculation has been

presented regarding possible effects of courtroom cameras:

general history, law, and social science.

Briefly, in the area of general history, there have

been frequent debates speculating on the merits of and

drawbacks to camera coverage. Also, the process of news

production has changed, with various news media becoming

increasingly similar in electronic means of assimilation.

Thus, there has been a growing body of literature on the

resultant "convergence of modes," i.e., the blurring of lines

between print and electronic media, and the appropriateness

of continued differential treatment of newspaper and

broadcast journalists in light of this technological advance.

Legal scholars have discussed the constitutional

dimensions of the right of access to courtrooms as well as

speculated on the possible impact of cameras on courtroom

participants. As already touched upon, the case law,

including the landmark Supreme Court decisions, speculates on

effects of cameras and calls for empirical research.

Finally, due to the recency of most of the camera

implementation, as well as to the traditional conservative

approach regarding social science in the courts, there has

been little gathering of empirical data regarding actual

behavior of broadcast journalists employing courtroom

cameras. Studies of the role of the journalist, the

adversarial relationship between the press and the

government, and the political aspects of televised coverage

put the issue into perspective. Surveys of those involved in

experimental camera coverage as well as a handful of

(noncourtroom) experiments with cameras fuel the speculation.

Therefore, the question of whether broadcast

journalists actually do disrupt judicial proceedings, until

now only a matter of speculation, would be an important

subject of study. However, as discussed more fully in the

methodology section (Chapter 3), rather than starting off

with a priori formal hypotheses, a pioneering researcher

would more appropriately select a theory-generating method of

study. Field research, specifically participant observation,

is one such approach.

One of the major differences between a quantitative

study and one involving such methods as participant

observation is the lesser emphasis on construction of formal

theories and hypotheses by the field researcher. The

participant observer would not approach the study with

precisely-defined hypotheses to be tested but would rather

alternate deduction and induction during the course of the

study to continuously modify the research design.

Thus, participant observation is considered a theory-

generating process. According to Earl Babbie, the author of

The Practice of Social Research, "To the field researcher,

the formulation of theoretical propositions, the observation

of empirical events, and the evaluation of theory are

typically all part of the same ongoing process."88

Moreover, Clifford Christians and James Carey,

describing "The Logic and Aims of Qualitative Research" in

Research Methods in Mass Communication, state it is not

necessary for qualitative social science research to be so

closely modeled on the hard sciences as quantitative social

science research may be. The contribution of the qualitative

researcher may be in adding to dialogue rather than in

theoretical generalizations.89

Thus, rather than stating formal hypotheses, the

appropriate method in this case study involves setting out

research questions. Analysis of the issues studied should

yield data eventually leading to theoretical propositions,

the basis for more formal quantitative research in the


Accordingly, four questions regarding courtroom cameras

were asked in advance of the study.

Q1: How closely do broadcast journalists follow state
guidelines for behavior in courtrooms during criminal

Broadcast journalists refer to reporters,

photographers, producers, or other employees of broadcast

stations (both radio and television) assigned to present news

coverage of trials.

State guidelines are the rules such as those included

in the Standards of Conduct and Technology Governing

Electronic Media and Still Photography Coverage of Judicial

Proceedings, codified in the Florida Rules as Code of

Judicial Conduct 3A(7) and hereafter called "Guidelines."

(See Appendix A.)

Criminal Trials refer to trials of defendants indicted

on such charges as murder or aggravated assault (excluding

sexual battery and lewd assaults) or other felonious charges,

limited to such cases heard in the judicial circuit studied

during the period of observation (and excluding subsequent

related appellate court action).

Q2: What impact do the guidelines have on coverage?

Impact refers to effect on methods of gathering news

and broadcast presentation of courtroom coverage, as may be

apparent to the observer in the courtroom, as may be

described by media personnel and trial participants, and as

may be evident in the work product of the broadcast

journalists covering the trial.

Q3: Do broadcast journalists present undistorted
coverage of criminal trial proceedings?

Undistorted coverage refers to a high degree of

correspondence between events (as perceived by the

researcher, described by print journalists, and evaluated by

trial participants) with the work product of the broadcast

journalists covering the same criminal trial (taking into

account assumed stylistic differences).

Q4: Do broadcast journalists observably disrupt the
judicial process at the trial court level?

Observably disrupt the judicial process refers to

incidents which might be noted by the researcher or by

members of the print media and/or any trial participants

regarding behavior of broadcast journalists. It can also

refer to formal motions for and/or possible granting of

mistrial due to behavior of broadcast journalists during the

period of observation.

In the following chapter, a review of literature

related to this study will be presented. Chapter 3 will

include a description of the methodology employed, while the

results and conclusions will be presented in Chapters 4 and

5, respectively.


'U.S. v. Burr, 25 Fed. Cas. 49 No. 14692g, 1807. For
general discussion of basic Free Press/Fair Trial issues,
see, e.g., Henry Abraham, "Press Freedom and Fair Trial and
Prior Restraint," in Freedom and the Court: Civil Rights and
Liberties in the United States, 4th ed. (New York: Oxford
University Press, 1982), 160-162; Jerome Barron & C. Thomas
Dienes, "Free Press and Fair Trial," in Handbook of Free
Speech and Free Press (Boston: Little, Brown & Co., 1979),
531-608; T. Barton Carter, Marc Franklin, & Jay Wright,
"Restrictions on Cameras and Other Equipment," in The First
Amendment and the Fifth Estate (Mineola, NY: Foundation
Press, 1986), 551-557; Marc Franklin, "Discrimination Among
Media," in Cases and Materials on Mass Media Law, 3rd ed.
(Mineola, NY: Foundation Press, 1987, 639-645; Warren
Freedman, Press & Media Access to the Criminal Courtroom (New
York: Quorum Books, 1988), 41-68; Donald Gillmor & Jerome
Barron, "Access to the Judicial Process: Free Press and Fair
Trial," in Mass Communication Law: Cases and Comment, 4th ed.
(St. Paul: West Publishing Co., 1984), 485-557; Yale Kamisar,
Wayne LaFave, & Jerold Israel, "Trial by Newspaper--and
Television," in Modern Criminal Procedure, 6th ed. (St. Paul:
West Publishing, 1986), 1298-1331; Kent Middleton and Bill F.
Chamberlin, "The Media and the Judiciary," in The Law of
Public Communication (New York: Longman, 1988), 385-434;
Harold Nelson & Dwight Teeter, "Publicity During Trial:
Cameras in the Courtroom," in Law of Mass Communications, 4th
ed. (Mineola, NY: Foundation Press, 1982), 432-444; Wayne
Overbeck & Rick Pullen, "Fair Trial/Free Press Conflicts," in
Major Principles of Media Law, 2d ed. (New York: Holt,
Rinehart & Winston, 1985), 176-200; Don Pember, "Cameras in
the Courtroom," in Mass Media Law, 4th ed. (Dubuque: Wm. C.
Brown, 1987), 401-405. For specific overviews, see, e.g.,
American Bar Association, The Rights of Fair Trial and Free
Press (Chicago, 1981); American Society of Newspaper Editors/
American Newspaper Publishers Association, Free Press and
Fair Trial (Washington, DC, 1982); Chilton Bush, ed., Free
Press and Fair Trial: Some Dimensions of the Problem (Athens:
University of Georgia Press, 1970); Alfred Friendly & Ronald

Goldfarb, Crime and Publicity: The Impact of News on the
Administration of Justice (New York: Vintage Books, 1967); J.
Edward Gerald, News of Crime: Court and Press in Conflict
(Westport, CT: Greenwood Press, 1983); Donald Gillmor, Free
Press and Fair Trial (Washington, DC: Public Affairs Press,
1966); Peter Kane, Murder. Courts and the Press: Issues in
Free Pres-s/Fair Trial (Carbondale, IL: Southern Illinois
University Press, 1986); John Lofton, Justice and the Press
(Boston: Beacon Press, 1966); Paul Reardon & Clifton Daniel,
Fair Trial and Free Press (Washington, DC: American
Enterprises Institute for Public Policy Research, 1968).

2Lofton, Ibid.

3Friendly and Goldfarb.

4See, e.g., Palm Beach Newspapers v. Burk, 504 So. 2d
378 (1987); Florida Freedom Newspapers v. McCrary, 520 So.
2d 32 (1988).

5Seattle Times v. Rinehart, 467 U.S. 20, 1984.

6See, e.g., Diane Kightligner, "Judges Fight Trial
Publicity: Open the Courtroom But Close Participants'
Mouths," Association for Education in Journalism and Mass
Communication, Portland OR, July 1988.

7For history of the ABA, including canons, see, e.g.,
American Bar Association, ABA Project on Minimum Standards
for Criminal Justice (New York: Institute of Judicial
Administration, 1968); Edson Sunderland, History of the
American Bar Association and Its Work (Ann Arbor: R. Heber
Smith, 1953); Wayne Thode, Reporter's Notes to Code of
Judicial Conduct (Chicago, 1973). For discussion of typical
state standards, see, e.g., Special Committee on Radio,
Television, and the Administration of Justice of the
Association of the Bar of the City of New York, Radio,
Television, and the Administration of Justice (New York:
Columbia University Press, 1965), and Freedom of the Press
and Fair Trial (1967). For revisionist history of Canon 35,
see, e.g., Susanna Barber, Chapter Two, "A History of Cameras
in the Courtroom: A Social Scientific Evaluation," Ph.D.
dissertation, Bowling Green State University, 1981; Joseph
Costa, "Cameras in Courtrooms: A Position Paper," Muncie, IN,
1980; Richard Kielbowicz, "The Making of Canon 35: A Blow to
Press-Bar Cooperation," Association for Education in
Journalism and Mass Communication, Houston, 1979; and "The
Story Behind the Adoption of the Ban on Courtroom Cameras,"
Judicature 63:1 (June-July 1979):14-23. Also, S.L.
Alexander, "Curious History: The ABA Code of Judicial Ethics

Canon 35," Association for Education in Journalism and Mass
Communication, Portland, OR, 1988.

8New Jersey v. Hauptmann, 115 N.J.L. 412, 180 A. 809,
cert. denied, 296 U.S. 649 (1935).

9Discussion here based on accounts of the trial in
Alexander, Barber, Costa, & Kielbowicz; and Oscar Hallam,
"Some Object Lessons on Publicity in Criminal Trials,"
Minnesota Law Review 24:4 (March 1940):453-477, and Appendix:
"Report of Special Committee on Publicity in Criminal Trials"

o1Kielbowicz ("Story," 19) points out that the cameras
could run without the judge's knowledge, which seems to
contradict traditional speculation that film equipment 50
years ago was too crude to allow cameras in courts without

11Throughout the 1920s, cameras were allowed in some
courtrooms and banned in others. For example, Judge J.
Raultson allowed them at the "monkey trial." (Scopes v.
Tennessee, 152 Tenn. 424, 1925); Judge Eugene O'Dunne
prohibited them and cited photographers who defied his orders
for contempt at a murder trial in Baltimore (Ex part sturm,
152 Md. 114, 136 A. 312, Ct. App. 1927): "The liberty of the
press does not include the privilege of taking advantage of
the incarceration of a person accused of crime to photograph
his face and figure against his will," at 314.) The ABA
Ethics Committee recommended condemnation of broadcasting in
1932 (Formal Opinion 67, 57 ABA Reports, 147). However, the
practice continued: e.g., a Chicago traffic court judge, upon
finding 90% of tickets were "fixed," began broadcasting
proceedings in 1934. See Mitchell Dawson, "Broadcast Trials?
Yes," The Lawyer, March 1938, 8-10.



14Author's interview with Ethel Stockton, Ocala, FL
(July 31, 1989).

IsBarber, 11-12.

16Hallam, 493-494. A sidelight reflective of the times
is the agreement of all the gentlemen on the Committee of the
need to show concern for certain trial participants: "Women
and children whose presence at a trial is compelled are often
humiliated by the thought that they are accidentally
associated with the sordid details of a criminal trial. It

seems an unjustifiable addition to their distress that they
should be photographed against their will, pictured in the
Press, and their personal appearance and clothes made the
subject of gossiping comment."

1762 ABA Reports, 1937, 860.

18See Christopher Sterling and John Kittross, Stay
Tuned: A Concise History of American Broadcasting (Belmont,
CA: Wadsworth, 1978), 122-123. Also Broadcasting,
specifically "UP and INS May Sell Radio News," April 15,
1935, 11; "Publishers Liberalize Press-Radio Plan," May 1,
1935, 7; "Rival News Services Acquire More Clients at NAB
Session," July 15, 1935, 15; "Pirating of Press Service News
Adjudged Unfair Competition," Jan. 1, 1936, 12; "Exclusion of
Press Services From Radio to be Proposed at Publishers
Session," Feb. 15, 1936, 16; "Press Drops Cudgel, Ends Radio
Feud," May 1, 1936, 9; "News 'Piracy,'" Jan. 1, 1937, 44.

1961 ABA Reports, 1936, 801.

2062 ABA Reports, 1937, 852.

21Ibid, 1134-1135.

22"The Case of the Controversial Canon," ABA Journal
May 1962, 431.

2383 ABA Reports, 1958, 660.

24See ABA: Opinions of the Committee on Professional
Ethics and Grievances, Chicago, 1967; Standing Committee on
Professional Ethics: Informal Opinions, Vols. I & II,
Chicago, 1969; Standing Committee on Ethics and Professional
Responsibility: Formal and Informal Ethics Opinions, Chicago,
1985; Recent Ethics Opinions, 1985.

2577 ABA Reports, 1952, 607-611.

26Frank White, "Cameras in the Courtroom: A U.S.
Survey," Journalism Monographs 60 (April 1979) 3.

27Marshall v. U.S., 360 U.S. 310 (1959); Irvin v. Dowd,
366 U.S. 717 (1961); Rideau v. Louisiana, 373 U.S. 723
(1963); Estes v. Texas, 381 U.S. 532 (1965); Sheppard v.
Maxwell, 384 U.S. 333 (1966). See Kent Middleton and Bill F.
Chamberlin, The Law of Public Communication (New York:
Longman, 1988), 394.

28See also Shepherd v. Florida, 341 U.S. 50; 71 S. Ct.
549 (1951), in which a rape conviction was overturned on

grounds "prejudicial influences outside the courtroom .
were brought to bear on this jury with such force that the
conclusion is inescapable that these defendants were
prejudged as guilty and the trial was but a legal gesture to
register a verdict already dictated by the press and the
public opinion which it generates" (at 51).

29Broadcaster Joseph Brechner wrote a response to the
Reardon Report in which he claimed the media was a scapegoat.
"News Media & the Courts," FoI Report No. 004, Columbia, MO,
June 1967.

30107 ABA Reports, 1982, 729. The 1984 Lawyers Manual
on Professional Conduct (Chicago) presents the 1982 revision
and is quoted here.

31A Statement from the Central Florida Chapter SDX/SPJ,
In Re Case No. 46835," Orlando, 1978.

32In Re Petition of Post-Newsweek Stations, 370 So. 2d
764 (1979).

33Zamora v. Fla., 372 So. 2d 472 (1979). See also
Zamora v. CBS, ABC, NBC, 480 F. Supp. 199 (1979): complaint
against the TV networks for negligence dismissed on First
Amendment grounds: "The importance of the First Amendment to
our freedoms as a whole cannot be overemphasized" (at 203).

34See, e.g., Martin Bass, "Cameras in the Courtroom:
The Florida Experience," Television Ouarterly 17:2 (Summer
1980):13-17; Raymond Buchanan, Bert Pryor, Milan Meske, &
David Strawn, "The Florida Experiment," Trial 15:4 (April
1979):34-36; "Courtroom Cameras Face Crucial Test," Editor &
Publisher, October 8, 1977, 11; R. Stephen Craig, "Cameras in
Courtrooms in Florida," Journalism Ouarterly 56 (1979): 703-
710; "Florida Trial of 'TV Addict' Goes on the Air,"
Broadcasting, October 3, 1977, 31; Terry Knopf, "The State of
Florida v. Ronny Zamora: Camera Coverage on Trial," The Quill
65:10 (1977):21-23+; Judith Kreeger, "Cameras in the
Courtroom," The Florida Bar Journal 52:6 (1978):450-52;
"Valid Judgment," Broadcasting, October 3, 1977, 82.
However, John Hanchette points out that at one point the
jurors did ask the judge if they could see themselves on
television; the judge denied the request. ("Courtroom is
Laboratory for Photography Experiment," Gannetteer, December
1977, 14). See also, "TV on Trial," a two-hour documentary
aired on PBS May 23, 1978. For a recent update on the Zamora
trial, see Donna Gehrke, "Trial Over But Ordeal Continues: TV
Intoxication Murder Case Still Haunts Principles," Miami
Herald, 3 December 1989, 1 G+.

35For coverage of the case, see, e.g., Jean Chance,
"Cameras in Court: Is Presence Prejudicial?" Florida Freedom
of Information Clearing House Newsletter, 4:8 (September-
October 1980) 5; "A David Among Goliaths on the Chandler
Case," The Quill, September 1980, 9.

36See, e.g., Norman Davis, "Courtroom Television on
Trial: It's Here, It Works," Television Ouarterly 18:3 (1981)

37Herman v. Florida, (77-1236, 1978); 402 So. 2d 610

38Bundy v. Florida, 362 So. 2d 1050 (Fla. 1978). For
press coverage, see, e.g., "The Cameras Were Rolling at
Murder Trial in Florida," The Ouill 67:8 (September 1979):7;
"Defendant 'Stars' in Televised Trial," Editor & Publisher,
August 18, 1979, 54; "Proof of Performance," Broadcasting,
July 23, 1979, 74.

39See Note 27.

40It should be noted that most contempt trials are on
the state trial court level and thus would remain unreported.
Moreover, the prime supplementary data base--Media Law
Reporter--relies on self-reported cases, so the lack of
contempt citations might not accurately reflect the

41"Summary of TV Cameras in the State Courts," November
22, 1989, Williamsburg, VA: National Center for State Courts;
"Five States, DC Ban Cameras From Courtrooms," Society of
Professional Journalists/Sigma Delta Chi Freedom of
Information Report 1988-89, Washington, DC, 1989, 3-5.

42See, e.g., "Audio-Visual Coverage on Trial in
States," The News Media & the Law 13:1 (Winter 1988):48-50;
"Cameras Barred From New York, Alaska Murder Trials Despite
Coverage Rules," The News Media & the Law 13:2 (Spring 1988):
46-48; "Cameras Put Followers of Steinberg Case in
Courtroom," Broadcasting, December 18, 1988, 65-66; David
Friedman, "Court of Public Opinion," Newsday, 6 December
1988, 11:5; "Gauging Effect of TV Trials," Newsday, 29
January 1989, 5; D. Guttenplan, "Hottest Ticket in Town is to
Court," Newsday, 6 December 1988, 31; Kirk Johnson, "New York
Courts Allowing Cameras for First Time in 50 Years," New York
Times, 18 December 1987, 16 Y; David Kaplan, "TV View: The
Camera is Proving Its Case in the Courtroom," New York Times,
18 December 1988, 11:37; "Keep the Justice Windows Open," New
York Times, 28 March 1989, 22; "Light from Courtroom
Cameras," New York Times, 6 December 1988, 18 Y; Sam Roberts,

"TV in the Court: Titillation or Education?, New York Times,
27 November 1987, B:l; Albert Scardino, "Court TV is a
Fixture Even as New York is Deciding," New York Times, 22
January 1989, 7 E; Patricia Volk, "The Steinberg Trial:
Scenes from a Tragedy," New York Times Magazine, January 15,
1989, 21-25. Also, in 1988-89, a syndicated television
program, "On Trial," presented condensed coverage of actual
trials from states which allow cameras. See'Kevin Goldman,
"Courtrooms 'On Trial,'" Newsday, 4 April 1988; Richard
Mahler, "'On Trial' Raises Questions of Cameras in
Courtrooms," Electronic Media, January 1989, 96+; Richard
Zoglin, "A Walk on the Seamy Side: New Tabloid Shows Are
Thriving on Sex & Violent Crime," Time, October 31, 1988, 78.

43FED R. CRIM. P. 53.

44See, e.g., Richard Lindsey, "An Assessment of the Use
of Cameras in State and Federal Courts," Georgia Law Review
18:3 (Spring 1984):389-424; and Diane Kiesel, "Will There
Ever Be Cameras in the Federal Courtrooms?" Communications
Lawyer 1:4 (1983):1+.

45Elder Witt, Congressional Ouarterly's Guide to the
U.S. Supreme Court, 1990, Washington, DC, 713. For how it
used to be, see David Grey, The Supreme Court and The News
Media (Evanston, IL: Northwestern University Press, 1968).

46David O'Brien, Storm Center: The Supreme Court in
American Politics (New York: W.W. Norton, 1986), 82.

47Richard Reeves, "The Supreme Court vs. the Press," TV
Guide, December 1, 1979, 8.

48"The Supreme Court Beat: How Television Covers the
U.S. Supreme Court," Judicature 67:1 (June-July 1983) 1.

49Ibid., 8.

50"Lifting the Shroud: News Media Portrayal of the U.S.
Supreme Court," Communications and the Law 9 (October

5lIbid., 44-45.

52Congressional Ouarterly, 712.

53David Paletz & Robert Entman, "The Supreme Court," in
Media. Power. Politics (New York: The Free Press, 1981), 101.

54Conaressional Ouarterly, 713. However, in this
revised edition, Elder Witt points out the Court has taken

some steps to make it easier on the press, including use of
headnotes on decisions, making available a preview of Supreme
Court cases (published by the ABA and the ANPA) and
attempting to limit the number of decisions handed down in a
given day (747).

55Ibid., 737. According to former public information
officer for the Supreme Court Barrett McGurn, despite efforts
to improve, "The Court's order list is impossible for an
unprepared reporter to understand." ("Public Information at
the United States Supreme Court," American Bar Association
Journal 69 (January 1983):42.)

56David O'Brien.

57Ethan Katsh, 11.

58Tim O'Brien, "Yes, but ," Judicature 67:1 (June-
July 1983):12.

59The Brethren: Inside the Supreme Court (New York:
Simon & Schuster, 1979).

6oCongressional Ouarterly, 715 & 749.

61William Rivers, "Justice Takes the Veil," The Quill
70:6 (June 1982):33.

62Cited by Katsh, "Why We're Not Getting the Full Story
on the Supreme Court," TV Guide, March 3, 1984, 9.

63Richard Davis, 47.

64Ibid., 46.

65Reported by Associated Press, "Supreme Court Justice
Blackmun to Discuss His Views on 'Superior Court,'"
Gainesville Sun, January, 1987.

66"Brennan Says He Doesn't Think Rehnquist is Opposed
to Electronic Coverage of Supreme Court Proceedings," Radio-
Television News Directors Association Intercom, February
1987, 1.

67"This Honorable Court," (Press Release), WETA-TV,
Washington, DC, 1988. See also Tony Mauro, "Clearer Signals?
TV Milestone: Justices at Work & Play," Legal Times, 18
January 1988, 18.

68U.S. v. Hastings, 695 F.2d 1278 (11th Cir.); reh'g en
banc denied, 704 F.2d 559 (1983). For news coverage of the
issue, see, e.g., "Judge Strikes Blow in TV Trial Coverage,"
Broadcasting, December 6, 1982, 69; "Judicial Conference
Blocks Broadcast Media Access to Federal Courts,"
Broadcasting, September 24, 1984, 36; Thomas Julin, "Federal
Electronic Media Ban Challenged," Florida Freedom of
Information Clearing House Newsletter, 7:4 (May 1983):4;
"Supreme Court Declines to Review Cameras in Court Case,"
Broadcasting, May 23, 1983, 38; "U.S. Judicial Conference
Votes Overwhelmingly to Continue Ban Against Television and
Radio Coverage of Federal Court Proceedings," SNPA Bulletin,
October 17, 1984.

69For news coverage of the case, see, e.g., "Judge
Denies CNN Request to Televise CBS/Westmoreland Libel Trial,"
Broadcasting, September 24, 1984, 80.

70Frank White, 47.

71"Press at the Bench," Broadcasting, April 14, 1986,

72 Ibid.

73"All or Nothing at All," Broadcasting, April 14,
1986, 204; Gilbert Cranberg, "Warren Burger's Flimsy Case,"
Columbia Journalism Review, July-August 1986, 19-20.

74Lamb, Brian, "TV: Making Democracy Come Alive," USA
Today, 28 June 1988, 10 A.

75"Justice Stewart Retires," American Bar Association
Journal 67 (August 1981):954.

76"High Court Rejects Radio Coverage," Radio Television
News Directors Association Bulletin, May 1986, 1. See also,
Susan Lamontagne, "Cameras in the Supreme Court?" C-SPAN
Update, January 11, 1986, 1+; "Supreme Court Still Says No,
But Some Justices Favor Broadcast Coverage," Broadcasting,
April 28, 1986, 65. (Senator Jeremiah Denton (R-AL), who
proposed federal courtroom camera guidelines, was defeated by
Richard C. Shelby in 1986.); "No Cameras in Burger's Court,"
Broadcasting, November 19, 1984, 71; and Steve Caminis,
"Analysis: Miami Herald Interview with U.S. Supreme Court
Chief Justice Warren Burger," Radio-Television News Directors
Association Communicator, July 1985, 149-150.

77See, for example, D'Alemberte, "Cameras in the
Courtroom," Litigation (Fall 1982) 20-23; "Let the Sunshine
In," in Mass Media and the Supreme Court: The Legacv of the

Warren Years, ed. Kenneth Devol, 2d ed. (New York: Hastings
House, 1976), 433-436. (Dean D'Alemberte was counsel for
Post-Newsweek in 1979; he returned to private practice from
FSU in 1989.)

78Letter from Dean D'Alemberte to Justice Rehnquist,
September 30, 1986.

79"Supreme Court May Allow Cameras," National Newspaper
Publishers Association News Media Update, May 25, 1987, 3.
However, the newest justice, Anthony Kennedy, reportedly said
he opposes cameras in part because a sketch artist once
disrupted his courtroom by dropping pencils. See Tony Mauro,
"Throw Doors Open, Let Public In," USA Today, 28 June 1988,
10 A. See also, Charles Firestone, "It's Time to Open the
Supreme Court to Cameras," Broadcasting, October 3, 1988, 23;
James Kilpatrick, "Televising the High Court? Of Course!"
(syndicated column), Tallahassee Democrat, 26 November 1988,
11 A.

so0"Brennan Says."

81Some Federal Court Video-Taping Approved," Florida
Press Association Bulletin, October 1988, 6-7; "Official
Cameras in U.S. Courts?" The News Media & the Law 12:4 (Fall

82"Cameras in the Supreme Court: A Dry Run for the
Justices," Broadcasting, November 28, 1988, 57-58; "Decision
Time," Broadcasting, December 5, 1988, 98; Richard Kleeman,
"Is the High Court Still Camera Shy?" The Quill 77:1 (January
1989):8-9; "3 Justices Show Interest in Camera
Demonstration," The News Media and the Law 13:1 (Winter
1989):23-24; "Three Supreme Court Justices Watch Electronic
Coverage Demo," Radio Television News Directors Association
Intercom, December 1988, 4; "TV and the High Court," New York
Times, 22 November 1988, 10.

83"A Lens in the Door," New York Times, 28 February
1989, 12 Y; "Military Court Allows Cameras in Courtroom,"
(AP) Gainesville Sun, 26 February 1989; "Military Court of
Appeals Lets ABC Tape Argument," The News Media & the Law
13:2 (Spring 1989):38-39.

84"Bartlett: High Court Perpetuates 'Medieval
Atmosphere of Mystery,'" Radio Television News Directors
Association Intercom, November 3, 1989, 1+; Lyle Denniston,
"Judges, Jurors, & Videotape," Washington Journalism Review
11:10 (December 1989):9; "Judges Keep Court Clear of
Cameras," (AP) Gainesville Sun, 22 September 1989, 4 A.

85See, e.g., Jonathan Caplan, "Court in the Eye of the
Camera," Times (London), 23 May 1989, 34.

86Ibid. See also, e.g., "Electronic Courtroom Coverage
to be Studied in Great Britain," Radio-Television News
Directors Association Intercom, August 1988, 1; Richard
Evans, "Bar Committee Sees No Threat to Justice From Cameras:
TV and Radio Should Broadcast Court Cases, Say Lawyers,"
Times (London) 23 May 1989, 6; Valerie Grove, "Out to Open a
Window on the Law," Times (London), 28 May 1989, B 5; Robert
Rice, "Bar Wants Courts to be Televised," Financial Times
(London), 23 May 1989, 11; Terence Shaw, "Allow the Courts to
be Televised, Says Bar Council," Daily Telegraph (London), 23
May 1989, 3.

87See, e.g., S.L. Alexander, "Courtroom Cameras:
Florida at Center Stage," The Brechner Report, 13:5 (May

88Earl Babbie, "Field Research," in The Practice of
Social Research, 4th ed. (Belmont, CA: Wadsworth, 1986) 254.

89Clifford Christians & James Carey, ed. Guido Stempel
& Bruce Westley (Englewood Cliffs, NJ: Prentice Hall, 1981)


The literature on Free Press/Fair Trial issues is

fairly extensive, including general commentary on the history

and status of courtroom cameras as well as discussions of

constitutional aspects of coverage. However, the suggestions

of the need for more data by Justice White in Estes and

Justice Burger in Chandler notwithstanding, a survey of the

literature shows there have been few empirical studies;

particularly lacking are field studies involving broadcast

journalists' coverage of actual trials. Therefore, as

discussed in Chapter 1, the literature review will look at

three areas in which speculation has been presented regarding

possible effects of courtroom cameras: general history, law,

and social science. In the area of social science in

particular, discussion of tangential studies of theories

regarding behavior of journalists, surveys of those involved

in experimental courtroom coverage, as well as description of

the handful of noncourtroom experiments with cameras will put

the issue into perspective.

General History

Perhaps the definitive survey of the literature is

found in Susanna Barber's 1987 News Cameras in the Courtroom:

A Free Press-Fair Trial Debate.l An outgrowth of her 1981

doctoral dissertation2 and much earlier writing on the

subject,3 the study is the first comprehensive look at the

issue, including sections on the development of the ban, the

constitutional issues involved, the research to date, and

what she sees as a shift of the focus of discussion from the

courtroom to the audience.4

ABA members Elisha Hanson in 19585 and Albert

Blashfield in 1962,6 each representing media interests

determined to revise or revoke Canon 35, should be credited

as the first two to point out the internal ABA politics

involved in the 1937 ban, which Hanson described as the

result of "curious history." Their work stands in contrast

to Judge Oscar Hallam's nonrepentant apologia for the major

role he played in the development of the ban, "Some Object

Lessons on Publicity in Criminal Trials," published in 1940.7

Another with first-hand knowledge of the development of

Canon 35, photographer Joseph Costa, who covered the

Hauptmann trial, published his version of the story in 1980.8

Costa said the traditional interpretation, that the behavior

of the cameramen caused the "carnival atmosphere" which led

to the ban, was a "myth" which persisted, picked up time and

again by researchers. One doctoral student, Richard

Kielbowicz, supported Costa's viewpoint in his writings, and,

like Barber, presented the revisionist interpretation that it

was the behavior of the press and the public, both inside and

outside the courtroom, which had distracted from due process--

not the cameras.9

As the state began to experiment with courtroom

coverage during the 1970s, researchers studied the

developments in individual states and even individual trials.

Perhaps the most comprehensive look at the events in the

keynote state of Florida is R.S. Craig's 1979 "Cameras in

Courtrooms in Florida."o0 Craig discussed the major studies

during the experimental years, the Zamora and Hermann trials,

and the bench-press guidelines for coverage. He concluded

current technology allows for coverage without disruption.

Martin Bass11 and Don White12 similarly described Florida's

success with courtroom cameras.

Others in Florida discussed the issue. In addition to

writing numerous stories in the popular press, reporters such

as the Miami Herald's Terry Knopf wrote "The State of Florida

v. Ronny Zamora: Camera Coverage on Trial" for the Society of

Professional Journalists/SDX's Ouill in 1977.13 Then-Post-

Newsweek News Vice President Norm Davis debated Baltimore Sun

reporter Curt Matthews about the merits of courtroom cameras

as implemented in Florida in the pages of the Washington

Journalism Review.14

Others described experimental coverage in various

states.15 General discussions on courtroom cameras include

those of Colorado Supreme Court Justice Edward Pringle

(former chairman of the Conference of Chief Justices) in

1979; Pringle and six other state supreme court justices also

discussed courtroom cameras in a one-hour documentary on

PBS.16 Witt wrote an excellent pre-Chandler summary.17

As far as the development of courtroom coverage in the

states, several researchers have produced state-by-state

surveys. Frank White published an extensive survey in 1979.18

The National Center for State Courts publishes an annual in-

depth survey which includes state-by-state guidelines.19 The

Radio-Television News Directors Association publishes a

"Survey of Courtroom Access" every six months (and an

excellent source of information is the organization's

periodic "News Media Coverage of Judicial Proceedings," with

references to statutes and case cites as well as various

compilations),20 while the Society of Professional Journalists

publishes an annual roundup.21 Others who have gathered

surveys include James Hoyt,22 David Graves,23 and Lyle


Denniston has also written frequently on courtroom

cameras in Ouill and Washington Journalism Review.25 Others

who have written generally on the issue include Martin Bass,26

Talbot D'Alemberte,27 Edward Estlow,28 and John Weisman,29 as

well as the authors of the American Society of Newspaper

Editors/American Newspaper Publisher's Association "Free

Press and Fair Trial."30

CBS newsman (and attorney) Fred Graham debated the

merits of camera coverage with California Superior Court

Judge Donald Fretz.31 Judith Lindahl, one of the defense

attorneys for the widely publicized rape trial in New

Bedford, Massachusetts (Massachusetts v. Corderiro), later

wrote a critical piece in which she suggested cameras have

negative impact on the judicial process: at the least, she

says, a seven-second delay device on live coverage would have

avoided the accidental broadcast of the victim's name as

occurred in this case.32

Regarding the general question of cameras in federal

courts, helpful background material on the issue is found in

Congressional Ouarterly,33 in David O'Brien's Storm Center:

The Supreme Court in American Politics,34 and in Grey's The

Supreme Court and the News Media.35

William L. Rivers describes why the Supreme Court is so

reluctant to allow coverage,36 as do Richard Reeves37 and

Ethan Katsh.38 Diane Kiesel answers her question "Will There

Ever Be Cameras in the Federal Courtrooms?" with a "yes, and

maybe soon."39 Mauro recently suggested a range of political

reasons why the High Court remains reluctant to implement

coverage, including the highly televised political demise of

nominee Robert Bork in 1987 and the advanced age of many of

the Justices who might be embarrassed if cameras recorded

their actions. He cites thepresident of the Radio-

Television News Directors Association, Ernie Schultz, who

says, "You would think the justices would look at the

evidence--that's what courts are supposed to do--and see the

reality of what the states have done, but they completely

ignore it."40 (As Lou Prato, describing the efforts of the

Radio-TV News Directors Association to work with the National

Judicial College, claims, "No group is more adversarial in

its relationship with the news media than judges.")41

In addition to the discussion of the historical

development of courtroom cameras, there is a small but

growing body of literature on the related issue of the

continued appropriateness of broadcast regulation in general

as well as of the differential treatment of traditional

"print" and "broadcast" media under the First Amendment--the

differential which allows for restrictions on courtroom

cameras despite the First Amendment. The traditional

rationale for broadcast regulation has been the concept of

limitation of access due to technological scarcity. However,

today, due to the process referred to as "convergence of

modes," there is a blurring of lines between different media,

including print, broadcast, cable, teletext, and videotex.

Smith42 points out the perplexing problem of

determining whether new media should be considered as mere

extensions of newspapers and thus should be unregulated, or

whether it would be better to treat computer-controlled

information systems differently, as sovereignty over text

moves from the message creator to the message receiver.

Wicklein43 suggests the backbone of the new

communication system be treated as a common carrier, to avoid

governmental control of content as evolved in broadcasting.

He cites Oettinger on the danger to First Amendment rights of

a regulated press: "The fiction that newspapers are distinct

from television and cable television, is just that--a

fiction. If rights, First Amendment rights, either of

publishers or broadcasters or of the public are abrogated in

the broadcast medium .they will sooner or later

disappear in the print media."44

Fowler and Brenner45 propose that the trusteeship model

of broadcast regulation be replaced by a deregulated

marketplace approach. The authors point out the flaw of the

scarcity rationale and suggest the legal basis for the

marketplace approach, emphasizing the First Amendment rights

of the broadcaster rather than those of the audience.

Finally, de Sola Pool considers the current electronic

revolution as significant as the development of writing and

later of printing: he says the justification for regulation

of electronic media in contrast to First Amendment

protections offered the print media is no longer appropriate.

Regarding the specific area of courtroom cameras, de Sola

Pool suggests one cause of judicial reluctance to implement

the new technology: "Technical laymen, such as judges,

perceive the new technology in early clumsy form, which then

becomes their image of its nature, possibilities and use.

This perception is an incubus on later understanding."46

Thus, based on an examination of the literature, the

revisionists' interpretations of the development of the

courtroom camera ban lead to the conclusion that at the

least, the ban was politically motivated; moreover, with the

development of the new technology, the flat ban against

cameras in federal courtrooms may no longer be appropriate.


The constitutional dimensions of the right to access

might begin with a discussion of Blasi,47 who, building on

Meiklejohn,48 suggests the First Amendment is an absolute in

the coverage of issues which lead to an informed electorate,

with the press to serve as a watchdog for possible government


The "Triangle of Information Theory" developed by

Emerson,49 and elaborated upon by Kuriyama,50 further adds

support to the suggestion that the camera ban, distinguishing

between print and electronic media, is unconstitutional. In

brief, Emerson discerned a "triangle" involving

newsgathering, dissemination of news, and the right to

receive news, with all three elements of the triangle under

the umbrella of the First Amendment.

Following Emerson, Kuriyama's interpretation of Justice

Potter Stewart's concurrence in Houchins v. KQED (438 U.S. 1,

1978) leads to what he calls a "First Amendment pathway to

the courthouse" for electronic journalists, along with the

tools of their trade, under the newsgathering element of the

triangle. According to Kuriyama, Justice Stewart implies

that if the public is allowed access, the electronic media

must be allowed to bring in cameras for analogous "effective

access." Then, as Branzburg v. Hayes (408 U.S. 665, 1972)

supports a newsgathering right for the press, and as Richmond

implies parity between the public and the press, electronic

media and print media, both with rights equivalent to those

accorded to the general public, have equivalent rights of

full access.

Regarding the second leg of the triangle, citing U.S.

v. A.P. (326 U.S. 1, 1945), Kuriyama suggests it would

likewise be "constitutional folly" to deny an electronic

journalist the right to disseminate information he has

recorded. Finally, regarding the third leg of the triangle,

Emerson says the public has a right to receive information,

and since most people today receive most of their news from

the electronic media, according to Kuriyama's interpretation,

the public has a right to full coverage by the electronic


Some of the best summaries of the law regarding

courtroom cameras are to be found in case law itself. For

instance, the Colorado Supreme Court, per curiam, adopted a

report rejecting Canon 35 in 1956 (In Re Hearings Concerning

Canon 35 of the Canons of Judicial Ethics, 296 P.2d 465).

Citing the lack of disruption caused by extensive use of

photographic equipment, Justice Otto Moore noted he was not

even aware of when equipment was being operated in his

courtroom and held there was no need for the ban: "We are

concerned with realities, and not conjecture" (at 468). The

court also held that the educational value of courtroom

coverage was crucial: "Generally only idle people pursing

idle curiosity have time to visit court rooms in person. .

That which is carried out with dignity will not become

undignified because more people may be permitted to see and

hear" (at 469).

Included in the Appendix to Justice Harlan's opinion in

Estes (at 596-601) is an amicus curiae brief of the ABA with

a complete legal history of Canon 35. Similarly, the

decision in Florida's landmark Post-Newsweek case includes,

in addition to results of surveys undertaken during the

experimental period, a legal history including a state-by-

state survey prepared by the National Center for State Courts

and relevant material relating to the Code of Judicial

Conduct (at Appendix 2). "Validity, Propriety, and Effect of

Allowing or Prohibiting Media Broadcasting, Recording, or

Photographing Court Proceedings," published by American Law

Reports, presents a thorough background of the issue.51

Back in 1938, "Distinguished American Lawyer Mitchell

Dawson" and British MP Robert Bernays debated the pros and

cons of cameras in courts.52 Dawson suggested that although

the use of cameras might shock lawyers and judges, not only

would use extend the public's right to known, but it would

also serve to "counteract the perversions of the press."53

Bernays, however, insisted "Crime is something shameful, and

it is highly dangerous to advertise criminals as if they were

as interesting as Presidents or Prime Ministers or film stars

or professional footballers."54

The author of a 1958 Iowa Note, "Television and

Newsreel Coverage of a Trial,"55 opted for retention of the

ban absent a reliable standard for determining whether-

coverage would interfere with due process. However, the same

year in Florida, Hodges and Staggs made a legal case in favor

of courtroom cameras, on the grounds that the Colorado

solution--in which the judge has the responsibility of

assuring decorum--is the "most sensible" solution to the

problem of balancing constitutional rights.56

In 1976, Roberts and Goodman,57 and, in 1978, Wolf58

presented general perspectives on courtroom cameras. In

1978, California Superior Court Judge Donald Fretz, then-

chairman of the ABA Committee on Criminal Justice and the

Media, called for a national clearing house on courtroom

camera data.59 The same year, Judith Kreeger, then-chairman

of the Florida Bar Media Relations Committee, described the

state's pilot program with courtroom cameras.60 In Georgia,

Stone and Edlin described the "demanding challenge" presented

by courtroom cameras,61 while in Kansas, Loewen insisted the

press had matured enough to handle cameras in the courtroom.62


A thorough look at the issue was taken by federal Judge

Paul Goldman of Nevada and Richard Larson in 1978 in "News

Cameras in the Courtroom during State v. Solorzano: End to

the Estes Mandate?"63 Goldman had been chief judge of the

district at the time of the Solorzano attempted-murder case

and had authorized the videotaped coverage. After an

extensive discussion of the development of Canon 35, the

writers described the production details of coverage,

including a diagram of equipment placement during the 35

hours of the trial. All but the jury deliberations were

taped. After a year of post-production, five hours of

coverage was broadcast in 1976.

The writers found that, in general, none of the

"detrimental behavior modification" predicted in Estes, such

as witness intimidation or playing to the camera, took place.

The only point at which the predictions were borne out was

that the trial participants, at least initially, seemed aware

of the presence of the cameras. However, the writers

concluded the effect was the opposite of what had been

predicted in Estes: the presence of the cameras actually had

a benign, if not beneficial, influence, acting as a "catalyst

to heighten individual performances." The writers include a

look at post-Solorzano cases in other jurisdictions where

camera coverage subsequently developed (including Alabama,

Washington, Georgia, and Florida) and closed with a

prediction that "Traditional hostility toward the presence of

the in-court news camera will diminish as the nation's state

courts become increasingly familiar with the new video


Tongue and Lintotte make "The Case Against Television

in the Courtroom"65 by arguing that the news media's coverage

of mostly sensational trials "warps the public understanding

of courtroom proceedings."66 They suggest that it is

unrealistic to expect witnesses to admit their testimony

might have been different but for the cameras and that jurors

may enter the courtroom remembering incorrect "facts" from

earlier television hearings or trials. They conclude that

courtroom cameras violate privacy of witnesses and jurors,

have a negative impact on public opinion, and are an added

burden on the trial judge and court administration.

At the same time, Nevas makes "The Case for Cameras in

the Courtroom,"67 arguing their presence is required by the

tradition of open courts. Nevas emphasizes the need for

research, primarily to see whether the effects of print

coverage are any different from those of modern electronic

media, research which he says should take into account the

novelty of current courtroom coverage. Townend68 similarly

suggests "Cameras in the Courtroom: Let's Give Them Another

Try," arguing that cameras would help the electorate access

judicial candidates (the very notion of which might

contribute to judicial reluctance to courtroom cameras).

Zimmerman69 presents what she calls a "modest proposal"

for the constitutional protection of courtroom cameras; as

did Kuriyama,70 Zimmerman cites Stewart's dissent in Houchins

and suggests absolute bans cannot be justified. After

describing the "parade of horribles" often associated with

courtroom cameras, she suggests any controls over courtroom

cameras must involve the least restrictive means possible,

and thus she concludes her "modest proposal" that the High

Court recognize a constitutional right of technological


"Television in the Courtroom Devil or Saint?" ask

Tornquist and Grifall--and the answer seems to be neither.71

Discussing the possibility of a camera experiment in Oregon,

the authors suggest the court maintain control over

production of the tapes and allow the tapes to become part of

the court record (and this unique approach was, in fact,

taken by the state in its experiment).

Naturally, the implications of the Chandler decision in

1981 were the subject of legal discussion. Ares72 argues that

the court reached the right result but failed to justify the

decision in a persuasive way. Ares suggests that exclusion

of television--the most "important" source of information

about the courts--absent compelling reason, cannot be squared

with the First Amendment, and he concludes that "[I]t is hard

to see how the Court, once it directly faces the question,

can hold that properly controlled television reporters do not

have the same constitutional right of access to the courts as

do other news people."73

Beisman74 discusses the impact of the Chandler decision

and suggests television stations wishing to cover trials

should petition a panel--made up of the trial judge, both

attorneys, and the media representative--outlining procedures

to be followed. Beisman also suggests the broadcaster sign a

statement promising to maintain decorum--and, if covering a

sensational criminal trial, a promise to cover a civil trial.

(The last would surely be the immediate subject of a First

Amendment challenge should any court employ such a


Pequignot75 says the Chandler decision is consistent

with the Burger Court's pattern of subordinating all rights

of criminal defendants (and, when they coincide, the rights

of the press) to the rights of the state. Rather than the

Post-Newsweek "qualitative difference test" to determine

worthiness of coverage, Pequinot proposes a checklist of

questions the court might ask to determine merits of

exclusion, including how crucial the movant's testimony is to

the case, whether the witness is fearful of reprisals for

specific testimony, and whether the press can present a

viable alternative to excluding cameras which would protect

the witness from reprisals.

Tajgiman76 suggests an analytical approach analogizing

the court arguments in Estes and Chandler to the paradigm of

Herbert Packer, who contrasted a "due process model" and a

"crime control model" of law enforcement. Tajgiman insists

"[T]he television reporter, without his camera, cannot cover

the trial proceedings with analogous comprehensiveness."77

A year after Chandler, writing about the significance

of the case in removing "the cloud of Estes," Robert Hughes78

pointed out that the Court in Chandler emphasized a lack of

reliable data; Hughes urged researchers to heed the call of

the Court for more research. Similarly, Jeremy Cohen79

analyzed Chandler and suggested the Court's repeated

invitations for more empirical research may indicate "not

only a desire for fairness but an uneasiness with its current


A year later, Cohen80 again wrote on the issue; he

discussed cameras in Washington and Florida and supported the

Post-Newsweek "qualitative difference test"--i.e.,

determination of whether cameras will have a substantial

effect different from traditional coverage. Cohen says such

a test must take into account both First Amendment and Sixth

Amendment rights, must be practical, and must be

understandable. He concludes more social science research on

effects of courtroom cameras is needed.

Julin81 discusses the 1983 request of indicted federal

judge (now former judge) Alcee Hastings to allow broadcast of

his trial on bribery charges (U.S. v. Hastings, 695 F.2d

1278); Julin was among the counsel for the 28 media

organizations who subsequently petitioned the court to extend

broadcast coverage to the federal courts. Julin says

absolute legislative bans are inappropriate for access

questions concerning the judicial system and concludes the

issue is not longer whether electronic media will be granted

access to federal courts, but when. (The petition itself82 is

a wonderful compendium of information on courtroom cameras.)

Richard Lindsey presented an in-depth study, "An

Assessment of the Use of Cameras in State and Federal Courts"

in 1984.83 Lindsey discusses the Constitutional implications

of the issue including First and Sixth Amendment aspects of

concern as well as problems with due process considerations,

which he argues are caused primarily by the failure of

Chandler to override Estes. As did Goldman and Larson,

Lindsey includes a state-by-state survey. Lindsey suggests a

strong state interest for occasional denial of access: for

instance, compelling desire for confidentiality or for

protection of minors involved in the juvenile justice system

might override First Amendment rights of coverage. Moreover,

Lindsey finds a weak First Amendment interest in

indiscriminate photographing of a jury. However, Lindsey

concludes that jurisdictions which condition coverage upon

consent give too much power to participants to deny access

and suggests the most sound policy is one allowing coverage

on a case-by-case basis at the discretion of the judge.

McCall84 also posits a procedure for determining when

it is appropriate to sustain objections to the presence of

cameras. McCall's approach draws on the recent line of cases

establishing the defendant's right to evidence under the.

Sixth Amendment compulsory process clause. McCall suggests

that when exclusion of cameras is requested, the court should

determine whether the presence of cameras would cause a

defendant to lose evidence that might be relevant, material,

and vital to the defense.

In a footnote-heavy piece,85 Riemer calls for

constitutional protection against absolute bans on cameras

absent a compelling government interest. Riemer says (Kerley

and Hastings notwithstanding) absolute bans are not "time,

place, and manner" regulations and are unconstitutional. Her

suggested test for whether cameras might be excluded requires

the government to show a compelling interest, narrowly drawn,

before exclusion should be allowed.

Dyer and Hauserman86 present a comprehensive look at

the issue of courtroom cameras. They recommend coverage be

permitted in all cases, with exceptions based on coverage of

participants. Rather than the Post-Newsweek "qualified

differential" test, they suggest mere "good cause" suffice

for exclusion, with recommended exemptions for victims of

rape, child abuse, and "other violent crimes" (the last the

most likely cases the media would choose to televise).

Gardner87 describes the need for uniform state

guidelines for courtroom coverage and presents a model which

includes automatic exemptions of camera coverage of victims

of sex crimes, juveniles, and undercover agents--which is

already the case in many states--as well as automatic

exemptions for any witness who objects to coverage--which

would be problematic in many states such as Florida. She

also suggests all broadcasters would have to keep all

equipment and personnel in the courtroom throughout the

entire trial, which might make it impossible for all but

private production companies to cover most trials. (Her

suggested requirement that all broadcasters must present

balanced coverage of the prosecution and defense might be

found unconstitutional, particularly in light of the recent

FCC abandonment of the Fairness Doctrine--assuming Congress

does not reinstate it.)

Douglas P. Killian also discusses "The Propriety of

Restrictive Guidelines for Cameras in the Court."88 Killian

supports the broadcasters' position that party consent should

not be a precondition to coverage. Joining the bandwagon

decrying the paucity of reliable empirical data, Killian says

flawed methodology notwithstanding, the few studies available

have failed to confirm feared negative impact of coverage on

trial participants, and he concludes the time is ripe for

full courtroom coverage.

Thus, although opinions differ, there is a good deal of

support for the constitutionality of courtroom cameras.

Moreover, with few exceptions, legal scholars support the

concept of courtroom cameras, differing mostly regarding the

best test for determining the details of coverage.

Social Science

The field of social science has been strangely lacking

in the gathering of empirical data regarding the question of

courtroom cameras. Therefore, a brief description of the

literature on the values of journalists, particularly those

affecting the relationship of the press and the judiciary in

regard to broadcast coverage of courts, will be followed by a

general discussion of the approach of social scientists to

the specific question of courtroom cameras, followed by an

examination of the handful of empirical studies on the


Although researchers have found differences in the

effect on the audience depending on the dominant source of

news (print or broadcast),89 in general those who gather,

prepare, and present the news share the same basic values and

attitudes. Weaver and Wilhoit90 updated the classic Johnstone

study91 to present a picture of the typical journalist.

Becker92 reanalyzed Johnstone's data and found similar

results, with the major differences between print and

broadcast journalists including the increased likelihood the

broadcasters would deal with conflict since they are more

likely to seek contrasting viewpoints in preparing coverage.

(This would have potentially important consequences for the

way a trial is presented by broadcast journalists compared to

print journalists.)

Paul Weaver93 studied differences between print and

broadcast journalists and concluded broadcasters are more

likely to organize "stories" with a beginning, a middle, and

an end, leading to charges broadcast coverage is

"simplistic." Weaver also suggested the broadcaster's

personality intrudes into the story, since he cannot maintain

a print journalist's impersonal narrative voice. Moreover,

television's need for visuals vitiates the interpretive

capabilities of the television news story and reinforces the

image of television coverage as superficial and melodramatic.

Fico94 surveyed broadcast and print reporters covering

a session of the Indiana legislature and found the broadcast

reporters relied slightly more on establishment sources of

news. However, Fico stresses the tentative nature of his

findings and suggests that sweeping generalizations about the

performance of broadcast reporters may be unwarranted.

Sheldon et al.95 recently completed a study of Bench-

Bar-Press guidelines in Washington state. The authors

surveyed members of the press, the judiciary, and the bar

regarding three areas: free press, fair trial, and privacy

protection for trial participants. Regarding press adherence

to the guidelines, although more than half of the broadcast

journalists felt they consistently followed the guidelines,

only a third of the other respondents agreed; print reporters

felt they followed the guidelines 85% of the time; only 42%

of the others agreed. In other words, all the respondents

gave print journalists higher marks for consistency with the

guidelines than they gave broadcast journalists--and none of

the respondents was nearly so confident in any of the

journalists as the journalists were in themselves. In the

area of trial coverage accuracy and bias, more than two-

thirds of the broadcast journalists felt their coverage was

accurate and unbiased; only one-third of the others agreed;

print reporters gave their own work high marks 90% of the

time while only 38% of the others agreed. In other words,

once again, all the respondents gave print journalists higher

marks for accuracy and lack of bias than they gave broadcast

journalists--and again, none of the respondents was nearly so

positive about the journalists as the journalists were about


Weinthal and O'Keefe96 surveyed broadcast journalists

in Denver. Their findings supported a profile of broadcast

journalists similar to that of print journalists, with the

only differences including broadcasters' higher desire for

freedom from close supervision and for excitement and variety

as well as for working with congenial colleagues.

A field of study of broadcast journalists at all three

network affiliates in each of six television markets in

Wisconsin led Idsvoog & Hoyt97 to conclude market size did not

affect level of professionalism (measured on the McLeod &

Hawley scale), and, as predicted, professional journalists

perform with more skill on the job than less professional


Epstein,98 Altheide,99 and Gans100 conducted expansive

studies of values of broadcast journalists; presumably,

broadcast journalists in courtrooms might share this set of

values. For instance, Epstein spent four months at NBC,

backed up with interviews and material from ABC and CBS; in

all, he interviewed nearly 100 broadcast journalists. He

concluded organizational imperatives of news organizations

shape the news, imperatives which include the budget of the

news department, the need to maintain an audience flow due to

network dependence on ratings, the nationalization of news

due to the network affiliate systems, and external factors

such as the FCC's fairness rules and other governmental


Altheide spent four months in a network affiliate's

newsroom, along with nearly a year off and on at a second and

three days at a network owned-and-operated station in a third

market, backed up with a colleague's research. He found that

the "news perspective" of the journalist creates a "bias."

Factors affecting this perspective include commercialism and

ratings, competition with other stations, and community


Sociologist Gans used the method of content analysis

along with participant observation to study CBS Evening News,

NBC Nightly News, Newsweek, and Time. Gans concluded the

news is shaped by the power of official sources, the need for

efficiency in organizations, and journalistic news values,

particularly such "enduring values" as ethnocentrism,

altruistic democracy, responsible capitalism, small-town

pastoralism, individualism, and moderatism.

Bantz, McCorkle, and Baade101 presented an analogue of

the local television newsroom as a factory. They suggested

the organizational consequences of this include lack of

flexibility, lack of personal investment in the product,

evaluation of newswork in production terms, and goal

incongruence between the newsworker's job expectations and

job reality.

Breed102 had interviewed more than 120 newspapermen in

an attempt to discover why they followed the publishers'

policies regarding orientation of editorials and news. He

had described six characteristics of what he called a system

of "social control": institutional authority and sanctions,

feelings of obligation and esteem for superiors, mobility

aspirations, absence of conflicting group allegiance, the

pleasant nature of the activity, and news as a value.

Garvey'03 later replicated Breed's work in broadcast newsrooms

with similar results.

Phillips' study104 of the differences between

journalistic versus social science perspectives included

unobtrusive measures and surveys as well as participant

observation at a newspaper, two commercial radio stations,

and a commercial TV station. Phillips concluded that the

journalist's perspective was based on direct sense experience

rather than on theoretical, abstract reflection.

In addition to conducting interviews, Tuchmani05 was a

participant observer at a newspaper, a city hall press room,

and a major market noncommercial television station. Tuchman

described the routine processing of news events and explained

how even "exceptional" stories were forced into


White,106 building on the work of sociologist Kurt

Lewin, had spent a week with a wire editor at a daily and had

described the "gatekeeping" process by which editors made

selection decisions. White questioned "Mr. Gates" on the

influence of the categories of news, his personal prejudices,

his concept of the audience and of the subject matter of the

story on his choices. Dimmick107 expanded on White's theory,

suggesting journalists seek validation of their choices, thus

leading to charges of "pack journalism."

Buckalew108 applied gatekeeping theory to broadcasting.

He first sat through the production of newscasts with 12

television news editors and found only slight variety in

selection of stories, variety which he said was related to

the size of the community: smaller markets were more

concerned with proximity of stories, larger with timeliness.

Buckalew also studied gatekeeping methods at 29 radio

stations. He found seven of the stations took most of their

news directly from the wire services ("rip 'n' read"), two

rewrote wire copy, and the rest used the wire copy as impetus

for following up stories.109

Harless110 presented what he called a "quasi-

replication" of the original White study, only this time in a

broadcast newsroom. His gatekeeper, "Mr. Collins," seemed to

show a slight bias for business and civic news, and Harless

concluded the television gatekeeper was more creative than

"Mr. Gates" and more medium-oriented than subjective or


Drew111 suggested role expectation theory plays a part

in gatekeeping. Studying three city hall beat reporters at

three television stations in a medium-sized Midwest market,

Drew found Reporter A based his choices on his own idea of

what the audience expected in the news, Reporter B based his

choices on what Breed had described as the "social control"

of the newsroom, and Reporter C on his own ideas of his role

as a news producer.

Finally, most recently, Wickham'12 did a content

analysis of a week's newscasts at the three network

affiliates in Memphis. She suggested the role of the

television reporter in the overall gatekeeping process is not

as isolated as that of the newspaper reporter, and the

television reporter is also more affected by technical

limitations than his counterpart.

Thus, the typical journalist holds certain values and

follows certain norms, some of which, such as the intrusion

of the broadcast journalist's personality into his coverage

of a process which holds to an ideal of objectivity and

neutrality ("blind justice"), have the potential to

contribute to judicial reluctance regarding cameras in court.

These theoretical suggestions have been borne out by judicial

response to actual broadcast coverage of courts, as evidenced

by surveys of judges and judges' reports on cases, which will

be discussed shortly.

First, however, brief mention of several other general

issues studied by the social scientists is also appropriate

to the discussion of courtroom cameras. For instance, the

"mediated reality" of political news in the U.S.--from the

possible unwitting bias produced by news coverage of

political events to the underlying "adversary model," the

assumption of varying degrees of conflict of interest between

journalists and government and political figures113--has been

described by researchers such as Lang and Lang,114 Blumler and

Gurevitch,115 Ostroff,116 Paletz and Entman,117 Ranney,118 and

Rivers.119 Members of the judiciary might assume an analogous

possible bias and adversarial relationship underlie press

coverage in the courts.

The catalogue of objections to the televising of

Congress, ranging from predictions of "undignified behavior"

to potential political abuse, might also affect the

judiciary.120 Although canons of judicial decorum preclude

public discussion of the political aspects of a judge's

career, trial judges in most jurisdictions today are subject

to the electorate (and the political nature of the appellate

judiciary, particularly the High Court, has already been

mentioned.)121 Barber most directly refers to this possible

"hidden agenda": "Judges may be worried that television

exposure will make them more accountable to the public for

their rulings and courtroom behavior."122

Thus, even a brief discussion of news values of

broadcast journalists, the traditional adversarial

relationship between the press and government, and the

political aspects of televised coverage, puts the issue into

perspective for the social scientist concerned with

researching courtroom cameras.

Turning to the specific question of social science

research on the topic of courtroom cameras, just prior to

Chandler, George Gerbner wrote "Trial by Television: Are We

at the Point of No Return?"123 According to Gerbner, the

social functions of television and of the courts are at cross

purposes, and in the absence of conclusive research, he

suggested restriction of courtroom coverage. Gerbner said

the purpose of trials is to protect the defendant, not to

entertain or to educate, and he called for more research

based on actual court studies.

During the experiment with cameras in Florida in 1978-

78, several studies were conducted, some of which became part

of the court record in Post-Newsweek.124 Reports of five

judges as well as results of four surveys will be briefly


Judge Paul Baker presided over the most spectacular of

the cases, Zamora v. Florida (372 So. 2d 473, 1979; 77-25123-

A, 11/30/77), covered gavel-to-gavel by Miami's WPBT (PBS).

Despite the massive publicity and complex logistics

necessitated by the trial, Judge Baker came out in favor of

cameras. He made several recommendations for future cases,

including sequestering of jurors in some case, admonishing of

witnesses, and providing a separate room for the media in

major cases.125

Judge Edward P. Cowart, Chief Justice of Florida's llth

Circuit (and later presiding judge in the trial of serial

murderer Ted Bundy) joined two other judges in a report

supporting the pilot program: "We think it is just another

extension of the first amendment through a different medium.

The disorder, disarray, and carnival atmosphere of the past

trials are not here today."126

Justice Dorothy Pate,127 who presided over four trials

during the experiment, could find few specific ill effects;

however, in her report she was generally negative toward

courtroom cameras. Similarly, Judge Marvin Mounts,128 who

presided over a murder trial, said the cameras made him

nervous, and his reading of Marshall McLuhan on the enormous

impact of television led him to a cautious approach toward

courtroom coverage.

Finally, the most negative opinion was that of Judge

Thomas Sholts,129 who had presided over the Mark Herman murder

case. Sholts conceded current technology allowed for

coverage without distraction, and the experiment worked out

much better than he had predicted. However, Sholts objected

on general grounds that use of television does not contribute

to the objective of ascertaining truth and has the potential

to cause burdens on the judge and extra expense as well as

possible grounds for appeal.

The first of the four surveys regarding courtroom

cameras in Florida was conducted by the Office of the State

Court Administrator.130 A total of 2,660 jurors, witnesses,

attorneys, and court personnel involved in cases of courtroom

coverage were questioned, with a 62% response rate. Although

methodological flaws led to conclusions considered

statistically insignificant, the court administrator found

the survey in general indicated little or no effect of

courtroom cameras.

A second survey was conducted by Judge Arthur Franza,

then-Chairman of the Public Information Press Relations

Committee of the Florida Circuit Judges.131 Judge Franza

polled the 286 circuit judges (with a 54% response rate).

Most of the judges either favored cameras or were neutral

toward courtroom cameras.

A third survey was conducted by Judge David Strawn and

three researchers from Florida Technological University.132

Participants in five of the trials which took place during

the experiment were surveyed, including two of the presiding

judges. Questionnaires were then sent to the 286 state

circuit judges (with a 45% return rate) and 181 county judges

(with a 56% return rate). The results of the survey

indicated that although judges were prejudiced against

cameras in general, once they had some actual experience with

cameras in their own courtrooms, they tended to become more

inclined to favor courtroom cameras.

A fourth brief study was conducted by Jean Chance at

the University of Florida.133 Her 18 questions went to news

directors, managing editors, and 20 presiding circuit judges

(with a 60% return rate for the judges before the experiment,

20% return rate a year later). Although the response rate

was too low for significant conclusions, the judges who

returned the second questionnaire tended to be those who had

negative feelings toward courtroom cameras.

The Justices in Estes and Chandler and writers such as

Hughes, Cohen, and Gerbner lamented the lack of empirical

research, particularly case studies of media behavior in

actual courtrooms. Indeed, few such field studies turn up in

the literature survey.

Barber,134 who has gathered a definitive bibliography on

the subject of courtroom cameras, could find only 19 direct

studies of the question, with 15 of these case studies and/or

surveys commissioned by various bench/bar committees or state

courts (such as those Florida studies discussed) studying the

possibility of implementation of courtroom cameras. (The

sixteenth study is the aforementioned case study by Goldman

and Larson.)135 Only three empirical studies were discussed.

The first, Hoyt's 1979 experiment, 36 involved 36

volunteers in a media class in Madison, Wisconsin. The

students were shown a film and questioned afterward: half

were in a room in which a video cameraman very obviously was

taping their answers; half were in a room in which the camera

was not actually in sight, although they were told it was

there. Hoyt reported no significant difference in

respondents' verbal behavior and concluded cameras might

actually lead to fairer trials with witnesses giving more

complete answers.

The second study, Netteburg's 1980 survey,137 involved

300 people selected at random from telephone directories in

two Wisconsin cities. Netteburg asked respondents about a

recently-televised trial in which the defendant had been

tried for murder and arson and had been found guilty of the

former, innocent of the latter. According to Netteburg,

although many subjects recognized the defendant's name--and

mistakenly thought she had been convicted of both crimes--

most were not aware of either her name or of the outcome of

the case. Netteburg concluded that the data contradict the

proposition that television can destroy an accused's case.

The final study cited by Barber is Short's 1981 survey

and experiment.138 Part of this study involved observer

evaluations of participant behavior in experiment versus

control conditions; another part of the study gathered data

via survey questionnaires. Short found little negative

impact of courtroom cameras, with little negative disposition

toward the cameras, and what there was, primarily among

defense attorneys. The study also suggested other potential

sources of distraction--including conventional media, court

personnel, trial participants, and audience--were

approximately equal to the cameras in causing distraction.

After a detailed analysis of the Short study, along

with the earlier research, Barber concluded

It seems fairly striking that 19 pieces of independent
research, conducted in 11 states over a span of over 8
years, reached similar conclusions about the relative
lack of behavioral prejudice caused by news cameras in
courtrooms. This is not to say that many trial
participants do not have mixed or negative attitudes
toward courtroom coverage, only that the bulk of
empirical research conducted to date shows little
correlation between the presence of cameras at trials

and perceived prejudicial behavior on the part of
jurors, witnesses, judges, or attorneys.139

Several other studies, although not included in

Barber's survey, seem on point with the present discussion.

For instance, Einsiede1140 did not actually attend the murder

trial she studied, but she did interview some participants

after the trial, mostly by telephone. She reported a

generally positive response to courtroom coverage with

unobtrusive cameras.

Underwritten in part by the Scripps-Howard Foundation,

Lancaster141 made a comparative study of two trials for the

same $6 million robbery and murder: the trial of one

defendant involved courtroom coverage, the other did not.

Lancaster found the public claimed to learn more about the

trials and the criminal justice system in general when

cameras were allowed, and the majority of those questioned--

including the jurors--did not believe the cameras jeopardized

the defendant's right to a fair trial. Lancaster found it

was the "celebrity factor" of the presence of television

reporters rather than the cameras which signalled

participants that the trial rated the attention of the media.

Three recent studies also involved experimental (non-

courtroom) studies of the impact of courtroom cameras.

Pasternack142 asked whether, if'juror's identities became

known through televising of trials, they would become more

susceptible to community pressure to convict. In a

laboratory setting, he handed subjects news stories (some of

which included an extra paragraph expressing community

interest in convicting criminals), showed them a videotape,

and had them fill out a questionnaire. He found subjects

exposed to more pressure (i.e., reading the doctored story)

were more likely to deliver a guilty verdict, and he

recommended states might prohibit televising of the jury.

However, Pasternack himself points out some of the obvious

limitations of the study--the artificiality of the

experiment, the subject awareness of the project, the

expectation of the test's possibly leading to more diligent

viewing of the tape, the lack of external validity. Even

more significant, however, is an additional limitation that

might be noted by a critic: the leap Pasternack makes in

assuming, first, that jurors are "unknown" if untelevised (an

actual trial takes place in an open courtroom; if a TV camera

is present, it is likely print journalists will also be

covering the trial, and with all eyes on the jurors,

particularly during voir dire, they are hardly "unknown").

And there is a second leap in logic in assuming that exposure

of jurors' identities is the most relevant factor in making a

juror feel more subject to community pressure to convict.

Finally, the responses of college students, many of whom do

not register to vote and would not be called to jury duty in

many states, may not be representative of an actual jury


A second study, by Paddon,143 described the differences

between trial coverage using video versus those using

sketches from the courtroom. Building on information

processing theory, this study involved exposing subjects to

one of four treatments in a half-hour newscast followed by a

questionnaire. Paddon found cameras appeared to enhance a

viewer's information about the trial but led to no attitude

changes which might threaten justice. She points out some of

the obvious limitations of the study--for instance, the

artificiality of the experimental situation where one brief

exposure to news of a crime is not representative of the real

world, where newspaper coverage would reinforce exposure.

Finally, Kassin144 showed 51 "mock jurors" a videotape

of a civil trial either in the presence of or absence of a

camera; they then were questioned about the trial. He

concluded the impact of cameras at a trial would be minimal,

could be mitigated with pretrial warnings, and generally

would have no effect on the outcome of a trial. Major

limitations of the study which Kassin points out include its

lack of concern with the indirect effects of cameras on the

jury compared with those of print coverage, as well as the

fact that different types of cases might affect the degree of

impact of cameras.

Rimmer145 recently presented a study of the status of

research regarding courtroom cameras. He suggested that from

a legal perspective, it appears there is little support for a

ban on electronic media access, and from a social science

perspective, evidence suggests access does not appear to

produce the effects its critics assert. However, he notes

that much of the evidence available has not really focused on

whether access actually causes the effects claimed for it.

Rimmer cites Boggs' review146 of 72 empirically based studies

of state court experience with television coverage which

found in 20 of the studies basic methodological flaws which

mar the reliability and validity of the findings. In short,

Rimmer concludes, studies of effects attributed to electronic

media access to the court were often "generalized beyond

their data."

Thus, it is apparent that, as Rimmer says, "[T]here is

a dearth of valid, reliable, and generalizable social science

evidence" regarding courtroom cameras.147 Rimmer suggests,

first, there is a need to gain access to actual courtrooms so

data can be gathered in real time/space conditions rather

than in courtroom simulations; second, concerns about the

longer term impact of electronic media access suggest

research designs which measure impact over time. Among the

subjects Rimmer suggests for further research include

replication of case studies and surveys with better controls;

a study of the differences between effects associated with

routine trials and sensational trials; examination of impact

of cameras inside the courtroom vis-a-vis the courthouse

environs; and the nature of possible long-term effects.