Section IV

Press Restrictions: A

A. Courts Deny Video Coverage of Two Highly Charged Events


     Federal courts, including the U.S. Supreme Court, denied permission to provide video coverage of two of the most highly politicized events of 2001 at the same time that Congress was considering a measure to allow federal trials to be televised.  Court decisions in Bush v. Gore, 531 U.S. 98 (2000), and Entertainment Network, Inc. v. Lappin, 134 F. Supp. 2d 1002 (S.D. Ind. 2001), prevented the American public from seeing legal arguments over the election of its next president and the execution of perhaps its most infamous citizen.  However, a bill in the Senate could go a long way toward changing those results in the future.

Supreme Court: Bush v. Gore

     For several weeks in late 2000, the Supreme Court was the focal point of national attention as it heard two cases that helped decide the outcome of the 2000 presidential election.  But in spite of pressure from news organizations and public interest groups, the Court held to its tradition of not allowing television cameras to record or broadcast its proceedings.

     The Court did make two concessions, however, that aided coverage and public understanding: It made the audiotape and written transcript of its hearings available within minutes after they were over.  The result for many television networks was an  unusual pairing of the delayed audio of the arguments accompanied by still photographs of the justices and lawyers as they spoke.

     The pressure on the Supreme Court to televise its proceedings resulted, in part, from the accident of history that made Florida the focus of the election recount dispute.  Florida’s courts had a long tradition of allowing camera coverage.  Thus in the earlier stages of the dispute, every Florida court proceeding was televised, from the lowest trial court to the Florida Supreme Court itself.  In addition, Florida Supreme Court spokesman Craig Waters was frequently seen on television explaining procedural matters and spelling out the court’s schedule.  By the time the case was granted review by the U.S. Supreme Court in late November 2000, then, the public had grown accustomed to seeing the legal battle over the recount fought out in full view of electronic media.  Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000).  

Journalists Push for Access

     C-SPAN Chairman and CEO Brian Lamb, among others, urged the Supreme Court to follow the example of the Florida courts.  “The public interest in the Court and its role in our government would likely never be higher,” Mr. Lamb wrote.  “We respectfully suggest that televised coverage of that role would be an immense public service and would help the country understand and accept the outcome of the election.”

     Barbara Cochran, president of the Radio-Television News Directors Association, also urged the chief justice to allow camera coverage.  “Video is our society’s common language, and eliminating television coverage will significantly impact upon the content of the information conveyed about the unprecedented role the Supreme Court is taking in this year’s presidential election,” she wrote.  “Certainly, there is no better time for the Supreme Court justices to suspend the ban on cameras in the court and to allow live coverage of these proceedings.”

     The media had asked the Court before to suspend its rules against broadcast coverage for other high-profile cases and for ceremonial occasions -- all to no avail.  And even though the media hoped that newer justices would have less concern about electronic media coverage than their more senior colleagues, support for the idea has not increased.  Justice David Souter, who had experienced television coverage during his days on the New Hampshire Supreme Court, had told a congressional hearing in 1996 that cameras would come to the U.S. Supreme Court “over my dead body.” 

     A few weeks before the presidential election, Justice Ruth Bader Ginsburg had told a Canadian newspaper that she would favor camera coverage only if media outlets would be required to air Court hearings gavel-to-gavel.  “It’s very easy to distort a legal proceeding if you don’t do it gavel-to-gavel, so it would have to be the full argument,” she said.  Most of all, Chief Justice William Rehnquist, who lamented his loss of anonymity when he presided over the televised Senate impeachment of President Clinton, was opposed.

     So it came as no surprise on Nov. 28, 2000 when Chief Justice Rehnquist replied to C-SPAN’s  Mr. Lamb that “a majority of the Court remains of the view that we should adhere to our present practice of allowing public attendance and print media coverage of argument sessions, but not allow camera or audio coverage.”  By using the word “majority,” Chief Justice Rehnquist left the implication that one or more justices may have disagreed.  But that possibility has not been confirmed.

     Advocates of cameras in the court reacted strongly to the chief justice’s announcement. Sen. Charles Schumer (D-N.Y.) and Sen. Charles Grassley (R-Iowa), sponsors of legislation that would allow cameras in federal courts, called on the Court to reconsider.  The successful airing of the court proceedings in Florida, they said in a joint statement, was “the single strongest argument” in favor of the U.S. Supreme Court following suit.  “Letting the world watch would bolster confidence in our judicial system, increase faith in the integrity of our courts, and underscore that we are a country devoted to the rule of law,” the senators said.

Quick Release of Audiotapes and Transcript

     Shortly before the Dec. 1 oral arguments in the first case before the High Court, information officer Kathy Arberg announced that the Court had agreed to the same-day release of the transcript and rapid release of audiotapes of the oral argument.  These measures apparently appealed to the Court because they did not represent a change in Court procedures, but rather an acceleration of what the Court was already doing routinely. 

     Transcripts have generally been available one week or so after oral arguments for many years, and more recently on the Court’s own Web site,  As for audiotapes, the Court has been taping its proceedings since the mid-1950s for transcribing and historical purposes.  In recent years, the tapes have been made available to reporters on a limited basis for checking their notes on the same day of oral argument.  And at the end of each term, tapes of the Court’s oral arguments are transferred to the National Archives, where they are generally available for public use.

     The experiment with the tapes and transcripts went well, so when the more pivotal case of Bush v. Gore was argued on Dec. 11, 2000, the expedited procedure was repeated.  But it did not reduce the intense media glare on the Supreme Court.  Reporters and television anchors broadcast from outside the Court, and journalists crowded the Court’s usually sparsely populated press room.  Reporters accustomed to covering the other branches of government looked for clues and leaks from an institution that dispenses neither.

     In public comments after the Court issued its opinion on Dec. 12, several justices said they were surprised at the level of public interest in the Supreme Court generated by the election cases, and that they were generally pleased with the early release of the audiotapes and transcripts.  But Court officials have let it be known that the media should not expect such early release in more routine cases, nor expect that the success of the experiment will lead the Court to extend access to television cameras anytime soon.

Live Video Feed of Execution Denied

     The other major case involving camera coverage played out before fewer observers in the more traditional forum of the courtroom itself, ending in a decision issued by the U.S. District Court for the Southern District of Indiana.  In Entertainment Network, Inc. v. Lappin, 134 F. Supp. 2d 1002 (S.D. Ind. 2001), the district court considered whether federal regulations guaranteeing that media representatives are entitled to observe a federal execution also allow the media to conduct a live broadcast of that execution.

     The plaintiff, Entertainment Network, Inc., provides news, information, and entertainment via the World Wide Web.  The company sought declaratory and injunctive relief challenging the constitutionality of 28 C.F.R. 26.4(f), a Bureau of Prisons regulation prohibiting photographic, audio, and visual recording devices at federal executions.  Specifically, Entertainment Network, Inc. sought to provide a live video feed via the Internet of the execution of Timothy McVeigh, convicted of killing 168 people by detonating a bomb at a federal building in Oklahoma City in 1995.  Entertainment Network, Inc. requested permission to bring a small camera to the witness chamber to record and simultaneously broadcast the May 16 execution via the Internet.  In the alternative, Entertainment Network, Inc. sought permission to engage in a live audio broadcast of the execution.

     The district court recognized the media’s right to gather news and information but said, initially, that this right had been honored simply through the presence of the media at the execution.  In fact, the rights of the press do not exceed mere attendance at prison events.  The district court cited a number of cases for this proposition, including  Houchins v. KQED, Inc., 438 U.S. 1 (1978) (upholding denial of media requests for a special inspection of facilities and interview of inmates); Saxbe v. Washington, 417 U.S. 843 (1974) (upholding regulations prohibiting face-to-face interviews with specific inmates); and Pell v. Procunier, 417 U.S. 817 (1974) (upholding regulations limiting media selection of a particular inmate for an interview).  A number of appellate and district courts have reached the same conclusion.

     Similar situations outside the prison context also mitigate against access.  For instance, in JB Pictures, Inc. v. Department of Defense, 86 F.3d 236 (D.C. Cir. 1996), the U.S. Court of Appeals for the District of Columbia Circuit upheld a Department of Defense policy allowing families of soldiers killed abroad to prevent members of the press from witnessing the return of soldiers’ bodies to the United States.  Other courts have reached the same result in cases denying access to actual videotaped or audiotaped testimony in criminal trials in favor of access to a written transcript.  These cases include Fisher v. King, 232 F.3d 391 (4th Cir. 2000), and United States v. McDougal, 103 F.3d 651 (8th Cir. 1996). 

     Entertainment Network, Inc. argued that the challenged regulation was content based and, therefore, should be subject to strict scrutiny review.  The district court disagreed, concluding that this argument rested on a flawed view of “content.”  Content depicted through the form of written journals or verbal accounts is different than content depicted through the lens and tape of the audiovisual broadcast: “In short, as to this aspect of ENI’s argument, the medium is not the messenger, and ENI, as the would-be messenger, is not being discriminated against by the BOP’s regulation because of the medium or means by which ENI seeks to broadcast the execution.”  Entertainment Network, Inc., 134 F. Supp. 2d at 1014.  Further, “all that is at stake here is a limitation on the manner of news coverage; the media can do everything but televise the trial.”  Id. at 1015. 

     The district court therefore analyzed the regulation to determine if it was a valid “time, place, and manner” restriction on expressive conduct.  This form of content-neutral regulation is permissible if supported by a substantial governmental interest and if it does not unreasonably limit alternative avenues of communication. 

     The district court determined that this regulation passed constitutional muster.  It found a legitimate governmental interest in “the core function of prison administration [to maintain] safety and internal security.”  Id. at 1017.  The Bureau of Prisons advanced four purposes for this regulation: (1) the prevention of sensationalism; (2) the preservation of the solemnity of executions; (3) the maintenance of security and good order in the Federal Prison System; and (4) the protection of the privacy rights of a condemned individual, the victims, their families, and those who carry out the execution.  The regulation was held to be reasonably related to these interests, mainly because the district court was not willing to substitute its judgment for that of the Bureau of Prisons in determining how to maintain safety and security.

Legislation Introduced

     The trend illustrated by these cases, however, may be waning.  On June 5, 2001, Sen. Charles Schumer (D-N.Y.) and  Sen. Charles Grassley (R-Iowa) introduced S. 986, which would allow judges in federal courts, including the U.S. Supreme Court, to decide on a case-by-case basis whether to allow video and still cameras in their courtrooms.  These senators indicated that cameras would offer an unedited, unfiltered, unvarnished glimpse of the judicial process as it really is.  The proposal was opposed by the Judicial Conference of the United States, the federal judiciary’s policymaking body. 

     The Senate Judiciary Committee approved the bill in a 12-to-7 vote on Nov. 29, 2001.


-- Kevin Goldberg and Tony Mauro  

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