Last week’s ruling by the New York Court of Appeals, the state’s highest court, that there is no constitutional right for news cameras to be in New York Courts puts the matter back into the hands of the state’s legislature, unless it goes before the United States Supreme Court first. The legislature passed a law allowing cameras in New York courts from 1987 to 1997 as an experiment, but then let the law expire without approving a new one.
The 7-0 Court of Appeals ruling in Albany, NY, said that the press has a constitutional right to attend trials the same as other citizens, but that the right does not extend to filming, videotaping or broadcasting inside court. “We agree with the (NY) Supreme Court and the (NY) Appellate Division that there is no First Amendment or article I, section 8 right to televise a trial,” the court ruled. “Though the public acquires information about trials chiefly through the press and electronic media, the press is not imbued with any special right of access. Rather, the media possesses ‘the same right of access as the public … so that they may report what people in attendance have seen and heard.’”
“The Court’s decision reads as though the First Amendment were an afterthought,” said attorney Jonathan Sherman, one of the lawyers of Boies, Schiller & Flexner LLP who represent Court TV. “This is a statute that upholds an absolute ban on speech about government proceedings that the Court concedes are required to be constitutionally open to attend and to be reported upon. That result is at war with the core of modern First Amendment doctrine. The First Amendment tolerates and indeed promotes vindication of fair trial principles. But in no context other than that of in-court cameras does it permit fair trial principles alone to sustain an absolute ban on information in every case in which a trial could be compromised.”
Unless the New York Legislature takes action and approves a new law, the only recourse is a ruling by the United States Supreme Court on the case or another one like it. Recent statements from U.S. Supreme Court Justices Souter, Breyer, and O’Connor condemning televised proceedings with “uncharacteristic out-of-court vigor,” Sherman said, suggest that the Supreme Court will be inhospitable.
In Court TV v. State of New York, a case filed by Court TV in 2001 challenging the law barring audiovisual coverage in New York courts, a lower court ruled in July 2003 that New York’s statute banning the photography is indeed legal. Court TV wanted to televise trials in New York as they happened and they appealed the lower court’s decision. The National Press Photographers Association, through the Advocacy Committee and NPPA’s lawyers, along with other media groups, submitted amicus curiae (friend of the court) briefs supporting Court TV’s position.
“I am extremely disappointed in the Court’s decision,” said attorney Mickey H. Osterreicher, who helped draft the amicus briefs for the NPPA as of counsel. Osterreicher, who was a photojournalist in Buffalo, NY, for both television and newspapers before entering law, has been an NPPA member since 1972 and is on the NPPA’s Advocacy Committee. “It is not just Court TV which has lost in this case but the public itself. The fact that the Court chose to deal with the First Amendment question in a footnote and even then framed it as a Sixth Amendment issue stating that Section 52 (per se ban) is ‘narrowly tailored to serve the governmental interests at issue, namely insuring that criminal defendants receive fair trials’ begs the question presented.
“What is most evident is the Court’s unwillingness to ‘circumscribe the authority constitutionally delegated to the Legislature’ even if the law that was enacted over 50 years ago is anachronistic and overly broad. It will be interesting to see if Court TV decides to bring this important case to the United States Supreme Court and whether or not they (the Supreme Court) grant certiorari.”
NPPA’s Advocacy Committee has vigorously supported Court TV’s effort to overturn New York’s courtroom camera ban. Advocacy Committee chairperson Alicia Wagner Calzada, who is also NPPA’s vice president, said, “I am disappointed in the ruling. Cameras in the courtroom enhance the public's understanding of complex trials and of the justice system as a whole. Our founding fathers intended for trials to be open and public. In theory, the public has access to public trials. But in reality, the public relies on the media to bring them into the courtroom just as they rely on the media to bring them into city council chambers, school board meetings, press conferences, and other newsworthy events. Particularly in high profile trials, visual media act as a window to a courtroom that is often overflowing.”
“There are many states that do allow cameras in the court and it does not disrupt, or have a negative impact, on the proceedings. Photography is an essential element in a complete news report, whether for print or broadcast, and the NPPA will continue to support efforts to legalize cameras in the courtroom in New York as well as in other states where it’s currently banned."
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 (New York) legislature did the right thing years ago by authorizing an experiment that lasted 10 years, and resulted in no problems at all,” attorney Kurt Wimmer said. “It ought to take the next step and let video cameras in permanently.” Wimmer is with the Washington, DC, law firm of Covington & Burling, which has provided pro bono counsel to the NPPA on many issues involving press freedom and First Amendment challenges, including the 2004 United States Supreme Court case Durruthy v. Pastor. Albert Durruthy, a Miami, FL, television photojournalist, sued a police officer for false arrest, assault, and excessive use of force after being brought down to the ground and injured, then arrested, while on assignment covering an Elián González protest in April, 2000.
Mickey Osterreicher contributed to this story.