We carry not only Netflix and YouTube in our pockets but also the video cameras that make content creation possible. Our neighbors are TikTok influencers with a million subscribers. Our kids are YouTube sensations, streaming video game sessions with their friends. We can look out our front door or inside at our pets while on vacation thousands of miles away. We’ve even gotten pretty good at holding meetings, mediations, and even depositions via Zoom, thanks to the lessons learned during the COVID-19 pandemic.
But when the question of broadcasting or recording court proceedings arises, we clam up. No thanks. No comment. Why is that? Maybe we should take a step back, take a deep breath, and consider the notion with a fresh perspective.
Backstory: Cameras Cast as the Villain
The distaste for cameras in the courtroom dates back to as early as 1935, with the “trial of the century” of Bruno Hauptmann; 130 cameramen attempted to photograph the proceedings, spectators posed for pictures with the jury box, and footage of the trial played in movie theaters nationwide.[1] Shattered was the idyllic notion of a quiet courtroom with only the litigants, a jury of your neighbors, and perhaps a local journalist to bear witness. From that time, critics of courtroom cameras have articulated the same arguments against them: they detract from the dignity of the proceedings inside the courtroom and distort the public’s view outside it.
Modern anecdotes have done little to help matters. Whole articles have been written about the spectacles and legal fallout of various high-profile trials in recent memory.[2]
When the dignity and professionalism of the judicial branch and the legal profession as a whole are of utmost importance, perhaps we should resist turning our client’s legal business into made-for-tv courtrooms like Judge Judy. (Though she made a salient point worth considering when she appeared on Larry King Live on February 17, 2010: “[C]itizens of this country pay for a very expensive judicial system and they are entitled to see how it’s functioning.”).
Focusing the Lens: Constitutional Considerations
Beyond the visceral hesitation to turn courtrooms into filming studios, a handful of competing constitutional considerations inevitably enter any debate over cameras in the courtroom.
The First Amendment protects not only the freedom of the press and access to the courts but also the right of the public to receive information.[3] These constitutional rights tend to weigh in favor of cameras in the courtroom.
The Fourteenth Amendment protects the right to due process and the right to privacy.[4] Concerns over the parties’ and jurors’ privacy, as well as concerns over the effects of a “media circus” on the fairness of proceedings, must be balanced against the rights mentioned above.
Zooming Out: Weighing the Pros and Cons
Proponents of cameras in the courtroom point out a number of benefits of direct courtroom observation via broadcast or webcast: education of the public as to the workings of the judicial branch, education of attorneys and litigants as to the cultures and rhythms of a particular court, increased perception of transparency and fairness, and more wholistic dissemination of information of interest to the community.[5]
Opponents worry that cameras are obtrusive, can change the behavior of participants in civil proceedings, infringe upon the parties’ and juror’s rights to privacy, and otherwise contravene the right to a fair trial.[6]
But inevitably, courtroom atmosphere and behavior change and evolve. For example, in 1965, the Supreme Court reversed a conviction, finding that the defendant’s due process rights had been violated by the media circus around the trial. Namely, the proceedings had involved 12 cameramen, as well as microphones and cables throughout the courtroom, all of which had caused disruption and made the jury “aware of the peculiar public importance of the case.”[7] But just 16 years later, the Court concluded that Estes should not be read as a constitutional ban on all camera coverage in a courtroom. Indeed, the Court recognized that in those 16 years, many of the problems identified as disruptive in Estes, such as numerous cameras and bulky microphones and cable equipment, were no longer significant factors given the technology available in 1981.[8]
The technological and cultural advances since that time have only made cameras more accessible; indeed, they are omnipresent in today’s society, and people are now much more comfortable with and tolerant of their presence.
Pan Left: State Courts Allow Cameras
State courts seem, on the whole, more ready for their closeup than their federal counterparts. The overwhelming majority of states allow cameras in the courtroom in some capacity with permission from the presiding judge.[9]
Cutting Room Floor: Federal Courts Are Camera Shy
Generally speaking, cameras are not allowed in federal trial courts except for ceremonial proceedings.[10] The Federal Rules of Criminal Procedure prohibit cameras in criminal proceedings.[11]
In the early 90s, the Judicial Conference conducted a 3-year pilot program through which media representatives were allowed to apply for permission to cover all or parts of selected civil proceedings in several federal court jurisdictions. These included appellate proceedings in the Second and Ninth Circuits, as well as civil proceedings in district courts in Indiana, Massachusetts, Michigan, New York, Pennsylvania and Washington.[12] At the conclusion of this pilot program, the Judicial Conference rejected the recommendation to expand the use of cameras in the courtroom, citing “the intimidating effect of cameras on some witnesses and jurors” as a “cause for concern.”[13]
In 1996, the Judicial Conference authorized the circuit courts to decide for themselves whether to allow cameras in appellate proceedings.[14] The Second and Ninth Circuits authorized such use immediately, and in 2017 the Third Circuit permitted camera use as well.[15] All of the federal appellate courts allow live-streamed and recorded audio. Id.
The U.S. Supreme Court does not allow cameras in the courtroom, but it does livestream audio of oral arguments and posts recordings on the same day arguments are held.[16]
As technology advanced in the early 2000s, people grew not only more comfortable with video cameras but also more reliant on television, social media and web streaming platforms to witness daily life and events of communal importance. The pressure to revisit the idea of courtroom broadcasts grew as well.[17]
In the early 2010s, the Judicial Conference conducted another 3-year pilot program to evaluate the effect of cameras in civil court proceedings.[18] Fourteen district courts participated in Alabama, California, Florida, Guam, Illinois, Iowa, Kansas, Massachusetts, Missouri, Nebraska, Ohio, Tennessee and Washington. With this second pilot program, instead of allowing the media to request camera access, the courts themselves controlled the cameras and the resulting broadcasts.[19]
Nearly two-thirds of judges polled (including those who participated in the pilot program and those who did not) said they would allow video recordings if the Judicial Conference permitted them to do so.[20] Citing a lack of evidence demonstrating that the benefits of allowing cameras would outweigh any negative effects, the Judicial Conference made no changes to its prohibitions after this second pilot program.[21] However, the three Ninth Circuit districts that participated (California Northern, Washington Western, and Guam) were allowed to continue the program to provide longer-term data for consideration.[22]
In March 2020, in the midst of the COVID-19 pandemic, the Judicial Conference temporarily approved teleconference technology to provide live audio access and public access to court proceedings. That approval ended in September 2023.[23]
In September 2023, the Judicial Conference amended its camera policy to allow district court judges to authorize live-streamed audio access to non-trial civil proceedings if a witness is not testifying.[24]
Previews: What’s Ahead for the Camera Debate
As Sonja West, a First Amendment and media law professor at the University of Georgia School of Law, observed in 2016 following the conclusion of the second federal pilot program, advances in technology and shifts in cultural mindset may ultimately soften the judiciary’s stance on recording devices, rather than additional pilot programs or legislation. “At some point, the technology is going to be too ubiquitous,” West said. With a camera in everyone’s pockets, and even in some glasses, she noted that the judiciary may find “it is better off having a formal program where they have control over the cameras.”[25]
Today, most people have a camera and the internet in their pockets. Current events are broadcast live by witnesses and participants via YouTube and TikTok. Even if cameras are not allowed in a particular place, people find a way to share up-to-the-minute updates via live tweeting (or is it now X-ing?). Platforms exist, and anyone who cares enough about a case can utilize those tools to make their opinions known, skewing public perception of the case for better or worse.
In light of these realities, what we seem to need is “an impartial voice, capable of truthfully and authoritatively recounting the events of trial for the absent public in order to set the record straight.”[26] If the federal courts were to install their own cameras and either broadcast live or post unedited footage online, it very well could increase public trust in the courts during a time of growing distrust.
The one who controls the narrative controls the world, after all.
[1] David A. Anderson, Democracy and the Demystification of Courts: An Essay, 14 Rev. Litig. 627, 627-31 (1995); Richard B. Kielbowicz, The Story Behind the Adoption of the Ban on Courtroom Cameras, 63 Judicature 14, 17-18 (1979).
[2] See, e.g., David A. Sellers, The Circus Comes to Town: The Media and High-Profile Trials, 71 Law & Contemp. Probs. 181 (Fall 2008).
[3] Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Stanley v. Georgia, 349 U.S. 557 (1969). The Sixth Amendment protects the right to a fair and public trial. Waller v. Georgia, 467 U.S. 39 (1984); Presley v. Georgia, 558 U.S. 209 (2010).
[4] Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596 (1982); Griswold v. Connecticut, 381 U.S. 479 (1965).
[5] See Jordan M. Singer, Judges on Demand: The Cognitive Case for Cameras in the Courtroom, 115 Colum. L. Rev. Sidebar 79, 85-89 (Apr. 21, 2015); Dennis Hetzel & Ruth Ann Strickland, Cameras in the Courtroom, Free Speech Center at MTSU (last updated Dec. 2, 2023), available at https://firstamendment.mtsu.edu/article/cameras-in-the-courtroom.
[6] Hetzel, Cameras in the Courtroom, supra; Nancy S. Marder, The Conundrum of Cameras in the Courtroom, 44 Ariz. St. L.J. 1489 (Winter 2012).
[7] Estes v. Texas, 381 U.S. 532, 536 (1965).
[8] Chandler v. Florida, 449 U.S. 560, 572-76 (1981).
[9] Cameras in the Courts: A State-by-State Coverage Guide, Radio Television Digital News Association (last updated summer 2022), available at https://courts.rtdna.org/cameras-overview.php (hereinafter “RTDNA Guide”); Open Courts Compendium, Reporters Committee for Freedom of the Press, (last visited Dec. 1, 2023) available at https://www.rcfp.org/open-courts-compendium/ (hereinafter “RCFP Compendium”).
[10] Guide to Judiciary Policy, Vol. 10, ch. 4, § 410 & 420; History of Cameras, Broadcasting, and Remote Public Access in Courts, United States Courts, available at https://www.uscourts.gov/about-federal-courts/judicial-administration/camerascourts/history-cameras-broadcasting-and-remote (last visited Dec. 1, 2023) (hereinafter “History of Cameras”).
[11] Fed. R. Crim. P. 53.
[12] History of Cameras; Singer, Judges on Demand, supra, at 81.
[13] History of Cameras.
[14] Guide to Judiciary Policy, Vol. 10, ch. 4, § 410.10(d); JCUS-MAR 1996, p. 17.
[15] History of Cameras.
[16] See Oral Arguments, Supreme Court of the United States, available at https://www. supremecourt.gov/oralarguments/oral_arguments.aspx.
[17] See, e.g., In re Sony BMG Music Entertainment, 564 F.3d 1, 5 (1st Cir. 2009) (overturning a district court’s order to permit webcasting in light of the prevailing rules against cameras in the courtroom, but noting, “We are mindful that good arguments can be made for and against the webcasting of civil cases. We are also mindful that emerging technologies eventually may change the way in which information–including information about court cases–historically has been imparted.”).
[18] Video Recording Courtroom Proceedings in United States District Courts: Report on a Pilot Project, Federal Judicial Center (2016), available at https://www.govinfo.gov/content/pkg/GOVPUB-JU13-PURL-gpo77000/pdf/GOVPUB-JU13-PURL-gpo77000.pdf (hereinafter “FJC Report”).
[19] Singer, Judges on Demand, supra, at 84.
[20] Courtroom Camera Pilot Program Grounded, Reporters Committee for Freedom of the Press (Spring 2016), available at https://www.rcfp.org/journals/news-media-and-law-spring-2016/courtroom-camera-pilot-prog/ (hereinafter “Pilot Program Grounded”).
[21] Report of the Judicial Conference: Cameras Pilot Project (March 2016), available at https://pdfserver.amlaw.com/nlj/Cameras%20pilot%20project%20committee%20report.pdf.
[22] History of Cameras.
[23] History of Cameras.
[24] History of Cameras.
[25] Pilot Program Grounded.
[26] Alex Kozinski & Robert Johnson, Of Cameras and Courtrooms, 20 Fordham Intell. Prop. Media & Ent. L.K. 1107 (Summer 2010).
Finis
