Come December 31, a dark curtain will fall around the nation's federal courtrooms, blacking out television coverage. Thus will end a modest experiment and any prospect of TV in those courts for years to come – unless Congress orders it.
Voting in secret in late September, the U.S. Judicial Conference rejected a proposal by one of its own committees to allow cameras and tape recorders in federal courts for civil cases. This would have been no experiment: Beginning May 1, all civil courts would have been open to broadcast crews and equipment.
The conference, policy making arm of the federal judiciary, offered no explanation to the public. The issue may have been significant, but the conference customarily reveals little about its deliberations except the outcome.
Since July 1, 1991, two federal courts of appeals and six district courts have taken part in a pilot project allowing broadcast coverage of civil cases. The experiment was limited to civil proceedings because a federal court rule imposes an absolute ban on camera coverage of criminal cases. The Judicial Conference in September refused to relax that ban.
With the pilot program scheduled to end soon and with the conference acting as it did, federal courts once again will be entirely off limits for TV cameras. The conference apparently was unimpressed by a study by the Federal Judicial Center, the federal courts' research arm, which found TV had caused no significant disruption during the experiment (see "The Press and the Law," June).
The Judicial Center's findings were hardly a surprise. Forty-seven states allow some form of camera coverage in their courts, including criminal trials in many states. A cable network, Court TV, has broadcast many of the more celebrated state cases, including pretrial proceedings in the O.J. Simpson case. There has been no indication such coverage has posed problems for the judicial system.
At the same time, TV broadcasters have long been aware that their opportunity to broadcast trials and appeals frequently depends upon judicial whim. Judges frustrated by the tenor of broadcast coverage have sometimes vented their displeasure by threatening a blackout, as did Superior Court Judge Lance Ito in the Simpson case.
Ito's action illustrated the Catch 22 factor in broadcast coverage of courts. The judge was upset by news stories based on events or incidents outside of his courtroom, yet the punishment he considered was to bar cameras from the courtroom itself. There may have been little or no logic to that reaction, but it did serve to punctuate the perils of affronting a judge.
Ito, at least, dared to act in the open. The Judicial Conference dropped the curtain on federal courts with no member of the public or the media watching.
Those most affected by that decision did not rail angrily at the conference. Brian Lamb, CEO and founder of C-SPAN, merely called it a "sad result" meaning that "one-third of our federal government will remain inaccessible to American citizens." Court TV's founder and chief executive, Steven Brill, accused the federal judges of rejecting their own evidence and called the action "frustrating." He also pointed out the irony that his network would be able to cover sensational cases in the state courts, but not the sometimes more meaningful civil trials in federal courtrooms.
Broadcast executives, although unhappy for years with the federal ban, have been unwilling to assail the blackout in strong terms for fear that they would forfeit any long-term chance of getting cameras into federal courthouses. As a result, the Judicial Conference may well be left with the impression that the blackout really offends no one deeply.
Television, of course, has long since lost the constitutional battle for a right of access to courtrooms. The Supreme Court said in 1947 that a trial in court "is a public event. What transpires in the courtroom is public property." But that has never meant that TV could expect access to such events as a First Amendment right. Access to courts did become a First Amendment right under a 1980 Supreme Court ruling, but that right has never been shared by TV camera or sound crews. In 1983 the court turned down the only test case ever to reach it seeking to establish that right for broadcasters.
Broadcasters, therefore, remain beggars before the federal courts, wholly dependent upon the generosity and understanding of the Judicial Conference. They and their lawyers seemed to be optimistic that the conference would vote their way, especially since the pilot project seemed to go so well. They had kept their request for access modest and unthreatening, and they thought that tactic would succeed. It died in just 20 minutes or so of debate among the 26 judges who vote in the conference. Seldom have journalistic hopes been crushed with so little ceremony. l