By Mickey H. Osterreicher
NPPA's general legal counsel
WASHINGTON, DC (September 27, 2007) - Legislators made progress today on Capitol Hill dealing with two issues affecting journalists: cameras in the courts, and a proposed federal shield law.
During a morning mark-up session of the “Free Flow of Information Act of 2007” (S.2035) the Senate Judiciary Committee dealt with a number of last minute amendments that would have watered-down efforts to provide the first federal media shield law. The proposed legislation would provide a qualified privilege to journalists from being compelled to reveal information and/or the identities of their confidential sources except under certain conditions. The National Press Photographers Association supports this measure along with a coalition of more than fifty other news organizations.
The proposal is a compromise between similar bills, one offered by Senators Arlen Specter (R-PA) and Richard Lugar (R-IN) and the other by Senators Charles Schumer (D-NY) and Christopher Dodd (D-CT). In seeking a balance between the need of the government to obtain information in order to prosecute crime and the obligation of the media to inform the public, Schumer said, “a free and independent press is one of the principal guarantees of liberty in this country. But there needs to be a very careful balance between the freedom of press and our vital national security interests. This bipartisan bill is the best step toward protecting that freedom enshrined in our Constitution, while allowing the government to protect national security in the very small percentage of cases where the law has actually been violated.”
No less than twenty amendments were offered by yesterday’s 5 p.m. deadline. Some of those amendments were in support of written objections received from federal agencies. In a draft letter from the Office of the Director of National Intelligence read by Senator Jon Kyl (R-AZ) during the meeting the director cited “press reports on U.S. intelligence activities” as having “been a valuable source of intelligence to our adversaries.” The Justice Department also noted its objections.
The committee adopted a number of amendments that were acceptable to all sides but voted 13-6 to reject Kyl’s amendment which would have given prosecutors more leeway in forcing journalists to testify as to their sources in both criminal and national security cases. The committee then recessed until next Thursday when they will resume the mark-up.
During an afternoon hearing the House Judiciary Committee took testimony from a panel of witnesses on H.R. 2128, known as the “Sunshine in the Courtroom Act of 2007.” This bill would authorize the presiding judge of a U.S. appellate court or U.S. district court to use his or her discretion in order to permit “the photographing, electronic recording, broadcasting, or televising” of court proceedings over which that judge presides except when such action would constitute a violation of the due process rights of any party. The bill would allow audio-visual coverage as well as still photography for a period of three years in the lower federal courts while making it permanent at the federal appellate level.
Additionally the legislation would provide that the presiding federal trial court judge must “upon the request of any witness in a trial proceeding other than a party” order the face and voice of that witness to be disguised or otherwise obscured to render that witness unrecognizable to the broadcast audience of the trial proceeding; and the presiding judge in a trial proceeding also must inform each witness who is not a party of the right to make such a request. It also authorizes the Judicial Conference of the United States to promulgate advisory guidelines to which a presiding judge may refer in making decisions regarding the management and administration of photographing, recording, broadcasting, or televising described in the Act.
Testifying before acting Committee Chair William Delahunt (D-MA) was Congressman Ted Poe (R-TX), one of the bill’s co-sponsors, along with the Hon. Nancy Gertner of the U.S. District Court, Massachusetts; the Hon. John R. Tunheim, Chair, Judicial Conference Committee on Court Administration and Case Management on behalf of the Judicial Conference of the U.S. District Judge, U.S. District Court, Minnesota; John Richter, U.S. Attorney Western District, Oklahoma on behalf of the U.S. Department of Justice; Susan Swain, president and co-chief operating officer for C-SPAN; Barbara Cochran, president of the Radio-Television News Directors Association & Foundation; and Fred Graham, a news anchor for Court TV.
While everyone agreed that trials and courtrooms are and should be open to the public, they disagreed that such openness permitted the presence of cameras. Judge Gertner addressed this concept directly by stating that “public proceedings in the twenty-first century necessarily mean televised proceedings” because “the vast majority of the American public get information about courts through screens - television or the Internet.”
Congressman Poe, who also served as an assistant district attorney and a Harris County Felony Court Judge for 22 years, was one of the first judges in Texas to allow cameras in the courtroom. He stated unequivocally that, “Cameras in the courtroom benefit a defendant. A public trial ensures fairness. It ensures professionalism by the attorneys and the judge. A camera in the courtroom protects a defendant’s right to a public trial.” In presiding over more than 1,000 jury trials he assuredly stated that “juries especially liked the cameras inside the courtroom because they wanted the public to know what they heard instead of waiting to hear a 30-second sound bite from a newscaster, who may or may not have gotten the facts straight.”
Cochran restated RTNDA’s longheld assertion that “the presence of cameras in many state courtrooms is routine and well-accepted. The anachronistic, blanket ban on electronic media coverage of federal proceedings conflicts with the values of open judicial proceedings and disserves the people.” She then went on to cite the empirical and anecdotal evidence that has been collected over the last 25 years that prove that cameras to not detract from the legal process or the fair administration of justice but in fact enhance them.
Swain pointed to C-SPAN’s participation in the previous experiment with cameras in the Second and Ninth Circuit Courts between 1991-1994 where “the Federal Judicial Center released a summary evaluation that reported ‘small or no effects of camera presence on participants in the proceedings, courtroom decorum, or administration of justice.”
Graham noted that “Court TV has covered more than 900 trials and other judicial proceedings, providing more than 30,000 hours of courtroom coverage,” yet “no judgment in the United States has been reversed because a television camera was in the courtroom.”
Despite all that was said in favor of the bill, Judge Tunheim and U.S. Attorney Richter continued to voice their opposition with words such as: “could jeopardize,” “potential to deprive,” “could profoundly and negatively impact” and “may affect.” They were hard pressed to defend their position that the presence of cameras inherently deprived a defendant of the right to a fair trial and sidestepped the issue that cameras could not in fact affect witness testimony or influence jury verdicts in appellate cases because there are no witnesses or juries. Many of the rulings that they cited were at least thirty years old and spoke of the “hot glare of the cameras” which might have been case back then but were quite ironic given that C-SPAN was actually televising the hearing live using available light and some remote controlled cameras.
Congressman Steve Chabot (R-OH), the bill’s sponsor, noted that while similar bills had been previously introduced for the last ten or eleven years, he believed that “eventually, ultimately cameras will be permitted in federal court all the way up to the Supreme Court!”
Mickey H. Osterreicher, Esq. is the general counsel for NPPA and a member of the New York State Bar Association Media Law Committee. He has been a photojournalist for over thirty years, having covered hundreds of court proceedings. Osterreicher helped draft the NPPA Amicus brief to the New York State Court of Appeals in support of cameras in the courtroom in Court TV v New York in 2005.
