

Who's Afraid of Cameras in the Courtroom - grellas
http://online.wsj.com/article/SB10001424052748703964104575334831068223478.html?mod=WSJ_Opinion_LEFTTopOpinion

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anigbrowl
Anyone who thinks this is a good idea will be quickly cured by watching 5
minutes of _Entertainment Tonight_...or indeed, most local news broadcasts.

I'm very much against censorship and think the 1st Amendment is one of the
cornerstones of American life, but in a few matters I am unable to shake off
my European upbringing. One is Court TV shows like Judge Judy where they re-
enact small claims hearings for entertainment purposes. Another is mugshots
and 'perp walks' released to or conducted for the media when someone is
arrested. While the suspect very often turns out to be the right person, I'm
just horrified by the fact that someone can be identified and displayed
publicly as a prisoner before they've even been arraigned and entered a plea.
It creates a presumption of guilt among the general public and (IMHO) is a
direct cause of lawyers following up by holding press conferences and making
statements designed to sway 'the court of public opinion'.

Public opinion occasionally yields treasures like the Declaration of
Independence, but is equally enthusiastic about everything from riots to the
idea of buying a pet rock. Excuse my cynicsm...this topic brings out my grumpy
elitist like few others!

~~~
gills
* Article I Section 1.

All legislative powers herein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and House of Representatives.

Amendment I

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or
of the press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances. *

Regardless of our respective opinions on the matter, I don't see an [honest]
interpretation of the above which gives the court (a) legislative power to (b)
abridge the freedom of the press [within it's on courtrooms].

~~~
anigbrowl
That argument depends on showing how photo/videography of courtroom
proceedings would provide substantially more information to the public than
textual or graphical reportage does now. Is the public going to be any better
off by having access to recording of a judge's furrowed brow or the steely
glint in a prosecutor's eye? Because past experience has shown that such
trivialities are the sort of material that gets replayed over and over on TV.

More seriously, consider the fact that people's attractiveness varies
considerably, and a large part of our media is built upon selecting for visual
attraction. What effect do you think that televised trials will have for
plaintiffs, defendants, or witnesses who are ugly, or have a speech
impediment, or whose attorney would come last in a beauty contest? It's a
well-known fact that simply being taller correlates strongly with victory in
presidential elections. Televised coverage of an emotive case mandates
developing a 'charismatic strategy', and selecting for counsel and testimony
based on their favorable visual impact - after all, this is the essential
function of the casting process in narrative filmmaking (where I work). Once
you go down this road you might as well go all the way: 'Your honor, I move
for an extreme close-up of the witness, emphasizing his shifty gaze!'
'Objection! A cutaway to the defendant's cringing posture is clearly in
order!'

On a more general note, your literalist reading of the 1st Amendment would
grant the press the right to do anything at all - burst into your home while
you're on the toilet, raid your bank account, murder people on live TV, and
start shooting wars in the name of public curiosity about the potential
outcome. By this logic, anyone who declares themselves to be a publisher and
has an inkjet printer or a blog is exempt from any constraints as long as they
provide regular updates on their field of interest. Strict construction that
leads to absurdities is no better than implicit assumptions about the judicial
branch's freedom to establish standards for its own operation.

~~~
gills
Heh. You say "literalist reading" is if that's a bad thing! Surely you jest.
In my opinion it's the only way to read that document, and on this point we
obviously disagree.

I will be more clear. In my opinion, freedom of the press is intended to
perpetuate the ability of private citizens to monitor _actions of government_.
Freedom of speech protects the right to publish those _facts_ discovered by
the press. You may twist that to include intrusion on private parties, or a
slippery slope where lawlessness and slander rule, but that is not what I am
saying.

The foundation of my argument is that proceedings of any court are official
actions of government, and therefore information that shall be in the public
domain. If you want, you could add the word _eventually_ to the end of that
sentence, I don't really care. I'm not talking about beauty contests or
"courts of public opinion", I'm only talking about accountability of
government. In that context, if the press deems themselves, or their viewers
the private citizens, best served by documenting the actions of government
with the most sophisticated technologies available, where is the power of the
judiciary explicitly enumerated to deny it?

~~~
anigbrowl
I can't help observing that you go from saying a literalist reading "[is] the
only way to read that document" to inferring the purpose and scope of the 1st
Amendment in the very next paragraph.

Now, it happens that I agree its primary purpose is to guarantee citizens'
right to oversee and criticize governors - and like you, I infer that from its
context. That can include the overall thrust of the document, its historical
context (eg the oft-quoted _Federalist Papers_ ), and to some extent the
interpretations of it since that time by various parties at the Supreme Court;
your choices of context may vary, but we both seem to agree that some purpose
was intended for this amendment to exist, and that both purpose and intent are
discoverable.

I'll move on to your substantive argument in a moment, but you can't champion
a literal reading or interpretation of the words as written, while
simultaneously applying three separate constraints to 'freedom of the press'.
You limited to freedom of _publication_ rather than discovery (and obviated
your own argument about the press's right to use the technology of choice in
courtrooms); you limited it to _factual_ matters (which would instantly put
fictional, speculative, and political opinion outside the scope of the 1st
amendment); and you limited to reports on _government_ (so coverage of
anything not funded by the taxpayer isn't protected either). Maybe that would
actually be a good standard, and balance the need for an informed electorate
with individuals' valuable privacy. But your stated opinion about the purpose
or meaning of a free press is _not_ found in the constitution. Beyond
construing 'the press' as a means of and proxy for 'publishing', courts have
interpreted the 1st amendment as its actually written to mean almost anything,
short of a direct danger to public safety...a far broader freedom that your
own definition would confer.

Apart from my natural pedantry :-) I mention all this because I've noticed
that when complaints about the scope of judicial power come up, they are often
coupled with tendentious comments on the correct manner of interpreting and
administering the law. I think this 'strict construction' meme needs to die:
the law is not specified as tightly as a programming language and judges are
not dispassionate compilers. As you have demonstrated above, even the simplest
syllogisms are predicated on implicit assumptions. Instead of a fallacious
appeal to authority (strict construction of vague axioms, to say nothing of
linguistic ambiguity), we would do better to accept the limitations of
formalism and resort to tools like Bayesian inference or economic analysis
when they can help us decide between conflicting imperatives.

As you say elsewhere, the court doesn't have _legislative_ power to abridge
the freedom of the press, since courts aren't legislatures. Correct me if I'm
wrong, but I assume your meaning was that since no legislation exists banning
cameras from courts, and congress can't pass any for constitutional reasons,
judges should not abrogate to themselves such decisions as if they were
legislators. Fair enough - but a constitutional constraint on legislative
power does not bar the exercise of executive or judicial power - subject to
oversight, impeachment or constitutional amendment by Congress. Thus it is
within the president's power to classify information, conduct certain
activities in secret, and even to prevent publication under some
circumstances. Where the scope of that power is in dispute, the question is
generally justiciable, and judges in turn frequently issue injunctions which
limit the power of the press to publish certain information - sometimes on
grounds of security, sometimes to facilitate a fair trial.

As to your closing question: Article III of the constitution establishes the
judiciary, and section 2 of that article extends the judicial Power 'to all
cases, in law or equity, arising under this constitution, the laws of the the
United states, and Treaties made under their authority" [and going on to
describe the boundaries thereof]. This has been understood for a long time to
mean the Judicial Branch is competent to supervise its own operations, and not
least because the constitution places so few constraints on the membership or
operations of the judicial branch, in contrast to the executive and
legislative ones.

Thus, the question is left to the judiciary itself. The press may assert that
its interests or those of the public (which the press, to its great credit,
has always found to be identical) are best served by the addition of cameras
or by conducting continuous MRI/PET scans of the parties' brainwaves during
proceedings; but the decision of that claim is made on the bench. If the press
has any argument for why video delivers greater accountability than the
almost-instant availability of transcripts and opinions that exists currently,
I look forward to hearing it.

Now the issue in Grellas' original article (though only implicitly stated) is
an ongoing argument about putting cameras in the Supreme Court. This is a good
question to ask, because you can already listen to audio recordings of all
proceedings (which are most instructive) and since arguments in the supreme
court almost never involve defendants or witnesses, but only attorneys
presenting _short_ arguments about legal technicalities, justice would
probably not be harmed by letting the public see the proceedings. Indeed,
since looking at the court requires going to DC and standing in line to get a
gallery ticket, most people never get the opportunity to see the Supremes at
work - you have a far better chance of seeing the President in person than a
Supreme Court justice. Thus, it's argued, TV would make the operation of the
judicial branch much more accessible to ordinary Americans.

I think they object for 3 reasons. One is a sentimental fondness for judicial
mystique among some justices. This is a poor reason, but I'm sentimental
enough to admit that and yet share it myself. Two is a more serious worry that
every Supreme Court hearing and subsequent delivery of an opinion would be
subjected to the 'true crime!!!' video editing treatment. This would arguably
undermine the dignity of the judicial process in general, but in particular
where highly emotive or grave cases were before the court - can you imagine
someone's death penalty appeal being reported with crash zooms and freeze
frame closeups of a justice every time one asks a question? Equally, it could
be used to mislead: popular stereotypes about the court, both left and right,
have little to do with reality. I would hate to see footage of proceedings
recycled in support of 'Impeach Justice ____' campaigns on YouTube or the TV.

The third reason is the most important. Whereas regular video of Supreme Court
proceedings might result in mockery or misuse, the most likely casualty would
be bruised egos rather than justice itself. but if they were the norm in the
Supreme Court, it would be very difficult to argue that they should be
excluded from proceedings in appellate, district, specialty or the various
state courts. And that _would_ be bad for the reasons I stated above:
basically, civil and criminal proceedings would become the stuff of reality
shows (TV producers would love it, since they would have an endless supply of
free public domain footage). One might object that this hasn't really happened
in congress of state legislatures: my answer is that it actually has to an
extent, and that in the meantime the mechanism of representative government
acts as a filter for what gets to the floor of the legislature. In court
proceedings parties are often there involuntarily, whether at the behest of
prosecutors or to answer civil suits. Treating their due process as the raw
material of tabloid entertainment would make a wreck of the legal system in
short order, to the great detriment of the public.

So much as I'd like to be able to watch the Supremes at work rather than just
listen to or read transcripts of them, I'm not willing to pay the likely price
for my curiosity.

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kd0amg
_It can't be fear of pre-trial publicity: Major trials are front-page news,
with or without a video feed, and the days of the blissfully ignorant jury
pool are long gone._

It can still be fear of exacerbating an existing problem. That said, would
this be mitigated by only allowing release of the footage after everything is
over?

~~~
epochwolf
> That said, would this be mitigated by only allowing release of the footage
> after everything is over?

I'd recommend only releasing the footage if the person was found guilty.

~~~
anigbrowl
...and has exhausted all appeals, and...

I know I'm being grumpy about this, but I just don't see what public good will
be served by such a move. I can't think of any clear benefit the televised
coverage has brought to the legislative process, and extrapolating from
existing coverage of the courts I suspect the vast majority of airtime would
be spent on catering to the most prurient sort of public curiosity.

If one considers McLuhan's famous remark that 'the medium is the message,'
it's hard to ignore the fact that the medium of television is awash in
sensational trivia, relies heavily on emotional manipulation of the viewer to
construct a compelling visual narrative, and frequently oversimplifies complex
issues to the point of distorting the facts. Now this is no more the fault of
broadcast technology or infrastructure any more than lies are the fault of the
speaker's larynx or distant relatives; but the sad reality is that a great
deal of television is the intellectual equivalent of a sewer, and whatever you
drop into a sewer is going to end up getting dirty. It's a problem that law
and the legal process are so obscure and inaccessible to the public - but not
one that will be solved by turning courtrooms into studio sets.

~~~
epochwolf
Okay, let me clarify. I do not support releasing the footage. (I've argued
both sides of this for an ethics class in college, I'm definitely against) I,
for one, am definitely not sexy enough to be innocent on TV.

If footage is ever to be released that guy had been damn well be guilty. (I'd
disagree with releasing footage that involves a plea bargin)

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techsupporter
Perhaps having live streams of trial courts might not be the right idea(1),
but if we can't videotape trial courts, I definitely think appeals courts
should have A/V access. In large part, appeals courts are where the law is
"decided," versus the outcome of a case impacting, usually, a single person.
The actions, decisions, and debate found in appellate courts (including the
Supreme Court of the U.S., as well as the highest courts in a given state)
should be widely available. The Supreme Court's practice of not immediately
releasing audio recordings of certain high-profile cases, but selectively
releasing them in others, is troubling to me.

1 - Editorial: I think that all courts should have live A/V feeds
automatically available, except in cases involving a minor or a victim of a
sexually-related crime.

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nym
Are good artists prohibited from drawing in courtrooms? I'm not familiar with
the rules, so I'm curious if a photo realistic artist could draw the scene.

~~~
anigbrowl
Short deadlines and photorealism are not very compatible.

~~~
shasta
Maybe we should require all video be run through a cell-shader pass before it
airs

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mattmanser
I don't get it, did a moron write this piece?

 _In 1965...[the Supreme] Court found that cameras had a prejudicial impact on
pre-trial publicity, affected the truthfulness of witnesses, and generally
impacted (negatively) a defendant's fair-trial rights._

2 paragraphs later, without even trying to tackle any of these 3 points:

 _Why, then, the ban?_

Um, read your own story man.

