By Elaine Hargrove-Simon
Even though alleged terrorist Zacarias Moussaoui has himself requested cameras at his conspiracy trial, U.S. District Court Judge Leonie Brinkema (E.D. Va.) on January 18, 2002 denied the motion of the Courtroom Television Network (Court TV) to broadcast the pretrial and trial proceedings. Brinkema cited both federal and local rules (see Federal Rule of Criminal Procedure 53, and Local Rule 83.2 (a)) as grounds for her ruling. Both rules prohibit taking photographs in or transmitting radio and television broadcasts from the federal criminal courtrooms.
Joined by C-SPAN Networks, Court TV had filed the motion in the hopes that Brinkema would find that the rules violated the constitutional rights of the public as well as those of the broadcast media. Five other media companies, together with the Reporters Committee for Freedom of the Press, filed an amicus brief supporting some form of electronic access. Lee Levine, who delivered the 2001 Silha Lecture, argued on behalf of the media.
In addition to finding that the federal and local rules did not violate First Amendment rights, Brinkema stated that "any societal benefits from photographing and broadcasting these proceedings are heavily outweighed by the significant dangers worldwide broadcasting of this trial would pose to the orderly and secure administration of justice."
Although the Supreme Court has never had occasion to consider the constitutionality of Federal Rule 53, Brinkema said that the Fifth, Sixth, Seventh and Eleventh Circuits have found Rule 53 to be constitutional. She concluded that the First Amendment does not give the media a right to televise, record or otherwise broadcast federal criminal trial proceedings. Although the public certainly has a right of access to observe trial proceedings, Brinkema agreed with the decision in Westmoreland v. Columbia Broadcasting Systems, Inc., (752 F.2d 16 (2nd Cir. 1984)), that "there is a long leap. . . between a public right under the First Amendment to attend and a public right to see a given trial televised." She said that the public's right of access is satisfied when some members of both the public and the media are able to attend the trial and report what they observed. An audio-visual feed will also be provided to a nearby courtroom, increasing seating capacity by 200. Half the seats will be available to the general public, and half to the media. Brinkema said that the constitutional requirements of openness and accessibility will have been met by these accommodations.
Attorneys for the media argued that prohibiting television cameras in the courtroom discriminated against the electronic media, likening the video camera to the sketch artist's pencil and drawing pad or to a reporter's pen and paper. But Brinkema said that print reporters are also required to leave behind their electronic devices, such as laptop computers and cell phones.
Brinkema further stated that the right of public access is itself not absolute, and that there are other rights and concerns to bear in mind. The defendant has a right to a fair trial; the secrecy of Grand Jury proceedings must be preserved; and the security of witnesses needs to be considered, as well as that of other trial participants. The integrity of the fact-finding process also must be maintained. Although media attorneys argued that televising the trial would enable the public at large to view the trial and thereby serve as a check on the judicial process, Brinkema maintained that opening the trial proceedings to a larger portion of the public would not enhance such judicial checks in proportion to the size of the audience observing it.
Brinkema agreed with the media that technology has made televising the trial less disruptive, because cameras are smaller and less obtrusive. But she added that while technology has been simplified, participants' faces and testimony can still appear on television and the Internet and "be forever publicly known and available to anyone in the world." Such exposure would be intimidating, and would hamper the proceedings. Furthermore, the images of law and court officials could jeopardize their personal safety, and would end the careers of those working undercover. Even though the media have offered to mask the faces of witnesses, Brinkema said that accidents happen, and that there might be moments when, due to simple human error, the masking might not occur, thus compromising the safety of the person. The risk was simply too great.
Finally, Brinkema said that she is reluctant to permit the broadcasting of proceedings because participants could be tempted to engage in showmanship. Moussaoui's actions thus far in the proceedings, such as refusing to stand when the judge entered the courtroom, and refusing to file a plea, have already indicated that his behavior may be "unorthodox and unpredictable."
On January 23, it was announced that Court TV would not appeal Brinkema's decision but will instead support legislation currently in Congress that would allow cameras in federal courtrooms.