By Justin Silverman

U.S. Sen. Chuck Grassley

Grassley

An undergrad professor of mine frequently told our class that if the courts recognize the role of the press in the courtroom, then it should not deprive the press of its tools while at work. If print journalists are allowed to use their notebooks, broadcast journalists should likewise be able to use their cameras. Otherwise, he said, the courts would be granting access to one journalist while unfairly denying that access to another.

U.S. Sen. Chuck Grassley (R-Iowa) recently proposed legislation that would allow judges to give that access to broadcast journalists, allowing cameras in federal appellate courts, including the U.S. Supreme Court. Though Grassley said the bill (S. 657) intends to “give Americans an opportunity to better understand the judicial process” rather than to simply broaden the rights of journalists, the results would be the same: More access for the press and likewise, more information for the public.

A bill such as this is obviously a welcome acknowledgement that government works best in the sunshine; still with a presidential administration preaching the virtues of transparency, Grassley’s legislation may serve as only a nod to the cause.

If the legislation is passed, judges would certainly be able to allow cameras in the courtroom as Grassley advertises. But the presiding judge has complete discretion as to whether or not this will occur. If the judge allows the recording, he or she must take potentially complicated steps to protect the identities of jurors. The judge must also consider whether or not the recording will compromise the safety of an individual, the security of the court, the integrity of law enforcement or “the interest of justice.” If good cause is shown that the recording will do so, the judge may obscure the face and the voice of any individual he or she finds necessary.

Why then would a judge allow cameras at all? It seems too easy for a judge to overlook the premise of this legislation and not permit cameras or any other recording devices as a rule. Doing so would surely save that judge the time and energy of considering factors that are unrelated to the merits of the actual trial. It’s not the judge’s job necessarily to determine what information is most worthy of recording. I’m not convinced that they would take this initiative on their own if not required. Sure, the bill suggests that guidelines are created to help judges faced with possible threats to their court as a result of these recordings. Guidelines, however, are only helpful to those who take the initiative to consider the public interest in broadening press freedoms in the courtroom in the first place. If nothing is required, nothing can be expected.

The press release announcing this bill declares that “48 states currently permit some form of audio-video coverage in their courtrooms and at least 37 directly televise trials.” Though this is a nice trend, it doesn’t speak to any willingness by federal judges to do the same.

What I would have liked to see is a bill that simply permits electronic recording with the burden on the court to show that doing so would compromise its proceedings. This bill merely gives the judge authority to allow cameras and similar devices without any real incentive to do so.

In the press release, Grassley speaks highly of the “studies aimed specifically at the educational benefits that are derived from camera access to courtrooms.” This sentiment should go without saying. Of course cameras would provide educational benefits, they can convey more information than the written press can. They should be given more respect than this bill allows.

Professor Kaplan, let your lecture continue.

Please view our “Legislation Watch” feature on the right sidebar of this blog. There you will find a list of current legislative proposals concerning media and communications, as well as links to the bill’s text and status.

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