The New York Supreme Court for the County of Albany, a trial level court, has used one of the most visible criminal cases in years as a vehicle for overturning a state law prohibiting the audiovisual coverage of criminal trials in that state. The case, People v. Boss, 701 N.Y.S.2d 891 (N.Y. Sup. Ct. Albany County 2000), allowed the CourtTV network to cover the trial of four New York City policemen charged with the unlawful death of an immigrant who was shot 41 times in an apartment building lobby. It also found a constitutional right to the televised coverage of criminal trials in New York, the first time such a right has been recognized.

    The case revolves around one of the most talked-about criminal trials in recent years -- even for New York City. Policemen Kenneth Boss, Sean Carroll, Edward McMellon, and Richard Murphy were charged with murder after the shooting death of Amadou Diallo, an immigrant who was shot 41 times as police arrested him (mistakenly) on rape charges. The case had generated so much attention in New York City that a change of venue was granted, moving the trial to the state capital of Albany.

    CourtTV intervened in the case seeking an order (a) permitting CourtTV to televise the trial; and (b) determining that this coverage was allowed on the grounds that Section 52 of the Civil Rights Law of New York was unconstitutional. That section reads:

No person, firm, association, or corporation shall televise, broadcast, take motion pictures or arrange for the televising, broadcasting, or taking of motion pictures within this state of proceedings, in which the testimony of witnesses by subpoena or other compulsory process is or may be taken, conducted by a court, commission, committee, administrative agency or other tribunal in this state.

    This section thus created a per se ban on all audio-visual coverage of trial court proceedings, under all circumstances, in any case. Section 52 was originally passed in 1952, when such bans were commonplace. However, in 1987 the New York State Legislature approved an 18-month experiment -- later extended to 10 years -- with audio-visual coverage of all civil and criminal trial court proceedings. These 10 years proved highly successful and many recommendations suggested that the experiment be enacted into permanent law. Despite this support the experiment was not revived, meaning that Section 52 was again effective.

    However, in People v. Boss, the New York Supreme Court for the County of Albany declared this law unconstitutional. It noted that Section 52 was an old law and that times had changed. Citing one of its recent decisions, In Re Clear Channel Communications, Inc. (N.Y. Sup. Ct. Albany County March 3, 1999), the court stated:

This Court cannot help but basically agree that the Holmesian "felt necessitates of time" have not well treated § 52’s original intent. It has been powerfully argued, in CCI’s submission that § 52 of the Civil Rights law is hopelessly anachronistic and needs a permanent shelving, not merely the just-completed ten (10) year experimental amendment. This court can hardly envision any serious argument that a rational basis can be crafted to justify what appears to be a clear discrimination against the electronic media.

 

    In In Re Clear Channel Communications, Inc., the supreme court had declined to strike down the law, preferring instead to refer the law for legislative action. It did not make the same mistake twice. The supreme court noted that the First Amendment to the U.S. Constitution requires that all criminal trials be open to the press and public, absent compelling and clearly articulated reasons for closing such proceedings, citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). It cited O’Neill v. Oakgrove Construction, Inc., 71 N.Y.2d 521, 529 (1988), for the proposition that Article 1, Section 8 of the New York Constitution requires the same.

    It was then but a small step for the supreme court to hold that a constitutional right to televise criminal trials existed. It crafted this right from a mix of case law, a review of other states’ practices with regard to televised trials, and policy supporting the right of the public to view criminal proceedings. The court first noted that the U.S. District Court for the Southern District of New York had recognized that changes in technology had made televising trials less disruptive. That court, in Katzman v. Victoria’s Secret Catalogue, 923 F. Supp. 580, 588-89 (S.D.N.Y. 1996), said:

[T]he advances in technology and the above-described experiments have demonstrated that the stated objections can be readily addressed and should no longer stand as a bar to a presumptive First Amendment right of the press to televise, as well as publish, court proceedings, and of the public to view those proceedings on television.

    The supreme court also found that there was a growing trend around the nation toward allowing cameras in the courtroom. It was highly persuaded by the fact that 48 states have some form of audio-visual coverage in the courtroom and 37 states fully televise trials. Against this backdrop, New York’s absolute ban on cameras in the courtroom is an anachronism.

    Finally, the supreme court discussed the benefits of cameras in the courtroom. Because the Diallo criminal case was one with great public interest, the courtroom’s limited seating would preclude the vast majority of the public and press from viewing any of the trial. Thus, the constitutional right of access to criminal trials would be curtailed to the point that it would be effectively denied. In the end, the supreme court stated:

The quest for justice in any case must be accomplished under the eyes of the public. The denial of access to the vast majority will accomplish nothing but more divisiveness while the broadcast of the trial will further the interests of justice, enhance public understanding of the judicial system and maintain a high level of public confidence in the judiciary. Boss, 701 N.Y.S.2d at 894.

 

    The supreme court, while finding New York Civil Law Section 52 to be unconstitutional, did not create an unfettered right to broadcast trials. Indeed, the supreme court placed great weight on the agreement of CourtTV to be bound by its own internal coverage guidelines and noted that other rules were in place to ensure that decorum still reigned. CourtTV was allowed to provide the only audio-visual camera in the courtroom, serving as the pool camera for the broadcast media at large and providing its broadcast feed to all interested media.