When the U.S. Supreme Court hears challenges to the national health care law this spring, fewer than 2,000 people, including press, guests, and representatives of the public, will be able to see the court proceedings with their own eyes. That's because the nation's highest court imposes an unequivocal ban on cameras in the courtroom.
The states, on the other hand, are gradually moving toward transparency. All 50 have declared themselves willing to open up some court business to cameras, although the levels of openness vary from state to state.
Within the last year, Pennsylvania, Minnesota, South Dakota, and Illinois have all amended their court procedures to be more camera-friendly. Kathy Kirby, general counsel for the Radio, Television and Digital News Association (RTDNA) says these states are acting as part of a "slow and steady trend on the part of states to at least engage in experiments with cameras in the courtroom." The Pennsylvania Supreme Court and South Dakota trial courts are now permanently opened to cameras, while Illinois and Minnesota are allowing cameras in trial courts as a pilot project.
Other states are experimenting with online broadcasting. According to research conducted by the National Center for State Courts, the highest courts in 37 states provide webcasts, video, or audio recordings of their oral arguments online, either using court-installed equipment or equipment provided through a cooperative agreement with a local cable television network. Just last month, Indiana authorized an 18-month pilot project to webcast civil trials in three Lake County courts on a three-hour delayed basis through a partnership with The Times of Northwest Indiana.
Televised court proceedings first reached a mass audience in 1991 when journalist Steven Brill created CourtTV , the first cable network to air gavel-to-gavel coverage of trials. Although the number of cases aired was a very small percentage of all trials, high profile cases, most notably the O.J. Simpson murder trial, riveted audiences and caused concerns that justice was being reduced to entertainment. More than ten years later, Lucy Dalglish, executive director of the Reporter's Committee for Freedom of the Press, says that states are still dealing with the public spectacle of the Simpson trial.
The Simpson case looms large for opponents of cameras in the courtrooms, who argue that their presence can lead a jury to consider public opinion rather than just the facts of the case. They also worry that cameras can cause a chilling effect on witnesses and victims who might be afraid to testify. On the other side, proponents of cameras say that opening the courts will lead to greater public understanding of the workings of the judicial system. They point out that no judge in a state that allows cameras has ever complained that the cameras got in the way of a fair, respectful trial, or tried to dial back openness to cameras once they were in place.
Access still an issue
However, while laws allowing courtroom cameras in some form are in place in all states, getting a camera into a courtroom is hardly guaranteed. "Lots of states say they permit cameras," says Kirby, "but there are a lot of barriers. Usually… the impetus is on the advocates of openness."
Until March of last year, this was the case in Minnesota. For more than 25 years, media representatives were required to file an application with the court in advance of the trial, and each of the parties to the case had a chance to refuse camera access to the courtroom. This resulted, says John Kostouros, of the Minnesota court information office, in very few cases ever being shown. It provided little evidence to determine whether having cameras in the court affects the fairness of the trial. Last year's state law was largely an attempt to deal with this obstacle. Minnesota's Supreme Court is now giving veto power only to district judges to refuse cameras.
Indiana faced a similar problem in 2008, when after an 18-month pilot program giving all parties veto power over cameras in eight trial courts, only five of 350 applications for access had been approved , according to the Indianapolis Star .
South Dakota has gone from a total ban on cameras in criminal trials to a system like the previous ones in Indiana and Minnesota, allowing cameras only when all parties agree. But in South Dakota, during the first six months under the new rules, all the parties agreed to allow cameras in two cases, and audio recording was allowed in 17 other cases.
"I'm very pleasantly surprised," South Dakota Chief Justice David Gilbertson told the state's Keloland News. "In that six months there were 31 requests statewide that were reviewed by a judge and ruled on…and nineteen of the cases allowed press access. It's not a knee-jerk reaction where everybody is just automatically saying no. They are looking at it on a case by case basis, and that's what the Supreme Court was hoping for when we enacted the rule."
New media in the courts
Further complicating states' decisions about cameras and recording equipment in courtrooms are cell phone cameras and micro-blogging platforms such as Twitter. Courts have very ill-defined rules when it comes to allowing reporters and the public to use smart phones, cameras or social media to cover trials.
Connecticut courts were among the first to allow reporters to tweet, rather than record video, during a murder trial in 2010, and the guilty verdict in the case was upheld after challenges were raised that the tweets jeopardized the fairness of the trial. Eric Robinson, deputy director of the Reynolds National Center for Courts and Media at the University of Nevada-Reno, says that currently it's up to individual judges to make the determination about social media use. "In this segment of law," Robinson says, "the next issue will be smart phones and social media."
Looking forward, both state courts and the U.S. Supreme Court will be urged to examine their policies toward cameras. In November, C-SPAN network executive Brian Lamb wrote to U.S. Chief Justice John Roberts that because the health care case "will affect every American's life, our economy, and will certainly be an issue in the upcoming presidential campaign…we ask you and you colleagues to set aside any misgivings you have about television in the Courtroom in general and permit cameras to televise live this particular argument."
U.S. Senators Richard Durbin of Illinois and Charles Grassley of Iowa have submitted legislation to force the Supreme Court to open up to cameras, and will hold a markup session today on that bill. The Judicial Conference of the United States authorized a three-year pilot project this past July allowing cameras in 14 federal district courts. Chief Justice Roberts said the Supreme Court would "take those (results) into account in considering whether we need to move forward."
Some court observers say the issue is largely generational. The youngest U.S. Supreme Court Justice, Elena Kagan, said in her confirmation hearing in 2010 that cameras in the high court would "be a great thing for the institution and…for the American people." With the advent of social media and the internet, people have gotten a lot more accustomed to being watched, says Dalglish. "We're getting a younger generation of lawyers, judges, and witnesses who've had experiences with pervasive media, and as time goes on, this won't be as much of an issue."