F.  TV Cameras at Terrorism Trials 

Would Pose Security Risk

 

      A federal judge in early 2002 denied media requests to televise the trial of Zacarias Moussaoui, ruling that televising terrorism trials would intimidate witnesses and pose a threat to security.  Mr. Moussaoui, who had been arrested in Minnesota on immigration charges shortly before the Sept. 11 attacks, has been charged with six counts of conspiracy arising from the attacks.

      Federal court rules ban cameras in courtrooms. Court TV had filed a motion with the U.S. district court in Alexandria, Va., asking it to rule that the per se ban on cameras was unconstitutional and no longer practical, given advances in technology.  Court TV, later joined in the motion by C-SPAN, sought to provide the public with gavel-to-gavel coverage of the trial.  However, Court TV also proposed that it would block out the faces of any witness who requested that his or her face not be shown, and stated that it would not show the jurors.

      Mr. Moussaoui’s lawyers said their client had no objection to the media’s motion as long as pre-trial television coverage was not allowed and rebroadcast of trial video was not allowed.  U.S. district court Judge Leonie Brinkema denied the media’s motion on Jan.18, 2002, ruling that “any societal benefits from photographing and broadcasting these proceedings are heavily outweighed by the significant dangers worldwide broadcasting of this trial would pose to the orderly and secure administration of justice.”  United States v. Moussaoui, 205 F.R.D. 183 (E.D. Va. 2002).

 

Camera Ban Ruled Constitutional

      Court TV had argued that the ban on cameras is unconstitutional because it discriminates between print and broadcast media.  The network argued that the traditional justification for the distinction is no longer valid.  In the mid-1900s, televising a trial created a disruption because the equipment was bulky and obtrusive.  With modern technology, however, such problems no longer exist.

      Judge Brinkema ruled that the ban on camera coverage was constitutional.  She found that the right of access was satisfied because “some” members of the media and public could attend the proceedings.  Also, transcripts of proceedings would be made available electronically within three hours of the close of each day's court session.

      “Contrary to what intervenors and amici have argued,” Judge Brinkema said, “the inability of every interested person to attend the trial in person or observe it through the surrogate of the media does not raise a question of constitutional proportion.  Rather, this is a question of social and political policy best left to the United States Congress and the Judicial Conference of the United States.”

      The court also said that even if the rule were unconstitutional, it would still be acceptable to ban cameras in this case because of security concerns.  Judge Brinkema was concerned that witnesses might be intimidated by the prospect of televised coverage of their testimony.  The judge acknowledged that cameras were now unobtrusive, but a witness could be afraid that “his or her face or voice may be forever publicly known and available to anyone in the world.”  She also expressed a concern that the safety of the court and its personnel might be compromised by broadcasting photographic images of the court’s physical layout and of court personnel.  Finally, the judge determined that there was a risk of “showmanship,” evidenced by Mr. Moussaoui himself, who behaved erratically at his arraignment.

      Court TV did not appeal the ruling, which raises the question of whether federal courts will ever permit cameras in their courtrooms.  At present, all 50 states permit television cameras in some of their courtrooms, recognizing that cameras do not adversely affect the efficient administration of justice but rather help the public understand how the court system works.

 

Congressional Action Urged

      With state courts on one side of the issue and federal courts on the other, Kathleen Kirby, counsel for the Radio-Television News Directors Association, said that Congress may need to address the issue.  In her decision, Judge Brinkema agreed that Congress should clarify the issue if it wishes to permit cameras in the courts.

      Congress has, in fact, considered legislation that would permit federal judges to use discretion to allow cameras in the courtroom.  The legislation, called “Sunshine in the Courtroom,” passed the Senate Judiciary Committee in November 2001.  The bill died in the last Congress, but it would have given all federal judges, even U.S. Supreme Court justices, discretionary power to permit trials to be televised and photographed.  On March 6, 2003, Sens. Charles E. Schumer (D-N.Y.) and Charles E. Grassley (R-Iowa) held a press conference to announce reintroduction of the legislation.

      Bruce Collins, general counsel for C-SPAN, believes that cameras eventually will be permitted into federal courtrooms.  But, he said, “something seminal is going to have to happen before cameras become a regular presence in federal courts.”  For state courts, Mr. Collins noted, the Supreme Court decision in Chandler v. Florida, 449 U.S. 560 (1981), was the precipitating factor.

      In Chandler, the Court ruled that the Constitution does not prohibit a state from experimenting with televised trials.  The Court recognized that, in some cases, camera coverage might impair a defendant’s right to a fair trial, but a per se ban on television coverage was not necessary.  After the Chandler decision, states began to experiment.  Many found that cameras posed little or no interference with the defendant’s rights in most cases, and eventually all states allowed cameras into the courtroom in some circumstances.

      Mr. Collins said that convincing the Supreme Court to televise oral arguments might be the type of seminal act needed to convince other federal courts that cameras would not harm the administration of justice.  But, Mr. Collins said, the Supreme Court “made it very clear that they’re not going to start.”

      Efforts to provoke action have not been successful.  The Federal Judicial Conference conducted a four-year experiment with televised trials involving six trial courts and two appellate courts.  Although a report concluded that the harms the courts feared did not materialize, the conference never took action on allowing cameras into federal courts.

 

--Lucy Dalglish and Ashley Gauthier