By Mickey H. Osterreicher, Esq.
ALBANY, NY – New York’s highest court heard oral arguments yesterday in a case involving cameras in the courtroom. David Boies, of the law firm of Boies, Schiller & Flexner LLP, spoke before the New York Court of Appeals on behalf of Court TV in its ongoing legal battle to overturn the law barring audiovisual coverage in New York courts. “I’ve been waiting for this case to be heard for the last 10 years,” said Jonathan Sherman, one of the firm’s lead lawyers.
“The absolute categorical ban on cameras in the courtroom, under any circumstances, a ban that deprives the trial judge of the discretion to determine whether and to what extent television cameras should be permitted or prohibited, violates the New York state constitution,” said Boies, who served as the lead counsel for former Vice President Al Gore in connection with litigation before the Supreme Court relating to the election 2000 Florida vote count.
“Cameras capture information that you don’t get second hand,” Boies continued. “Cameras provide another means of newsgathering that has certain advantages. With respect to newsgathering, this court and the United States Supreme Court have held that it is not up to the Legislature to determine what forms of newsgathering will be permitted and which forms of newsgathering won’t be permitted.”
Solicitor General Caitlin Halligan spoke on behalf of the State of New York, countering that while the press may have the right to cover trials, that right does not extend to television which she said negatively affects the proceedings, citing previous studies during New York’s 10-year experiment with cameras in the courtroom (1987-1997). She also noted that eight federal circuit courts have found no constitutional right for televised courtroom coverage.
“The (U.S.) Supreme Court has said clearly that the right of access does not contain a constitutional right to televise,” Halligan added. “Openness means that the doors are open to public scrutiny and anyone who wants can come and watch. New York’s courts are open in that way.” Commenting after the hearing, Henry Schleiff, chief executive officer of Court TV said, “It’s absurd in this day and age to have New York be so backwards on this issue.”
The case originated in September 2001, when Court TV initiated an action against the State of New York seeking a declaration that Section 52 of the state’s civil rights law was unconstitutional under both the state and federal constitutions. The lower court in that case upheld the statute in a decision issued in July 2003, and Court TV appealed. The matter then went before the Appellate Court with the NPPA, through its lawyers, submitting an amicus curiae (friend of the court) brief in support of that appeal. In June 2004 that midlevel court issued its decision inCourt TV v. State of New York, holding that “Section 52 of Civil Rights Law is not unconstitutional” and that the ban on audiovisual coverage in the State of New York “is sufficiently tailored to further important state interest, namely, preservation of value and integrity of live witness testimony in state tribunals.”
The court seemed receptive to Mr. Boies’ arguments and appeared somewhat skeptical when questioning Ms. Halligan. “I never want to predict what a court will decide,” Mr. Boies said afterward. Ms. Halligan declined to comment. In an ironic note there were two cameras in the chambers and the proceedings were televised on Court TV. New York does allow electronic coverage at the appellate level where no witness testimony is taken. Analogous to this argument is the Jackson trial being held in California, which permits cameras but is not being televised at the discretion of the trial judge. In commenting on this Court TV’s Schleiff said, “The absence of cameras has not minimized that story.” In an oft-repeated saying he added, “Our cameras may show the circus, they didn’t create the circus.”
The 53-year-old state law bars motion picture cameras from trial courtrooms but there is some question as to whether or not that language also precludes still photography. No verdicts in any of the approximately 800 trials the cable network has televised since 1991 have been reversed because of the presence of cameras, nor was there ever an appeal of any case on those grounds during New York’s 10-year experiment.
The Court of Appeals is comprised of seven judges and for Court TV to prevail at least four of them must vote to strike down the statute. A written opinion is expected this summer.
Mickey H. Osterreicher helped draft both amicus briefs for the NPPA as of counsel. He has been a member of the NPPA since 1972 and is on the Advocacy Committee. Osterreicher has been a photojournalist for more than 30 years in Buffalo, NY, where he now practices law.