Broadcasting Telecasting (Jan-Mar 1956)

would welcome an opportunity for them to see and hear the solemn proceedings of a courtroom, demonstrating that "crime does not pay," or the way in which the problems of life are settled in courts of civil jurisdiction? One of the most important functions of the newspapers, the magazines, radio and television is the bringing of information to the people concerning the products of industry. Those who most disparage advertising and "commercials" may be the ones who depend most heavily upon the taxes which are levied upon those who maintain the high level of industrial production and consumption in this country. National defense, education, and other features of American life would not be possible without such industrial enterprise, stimulated and developed by the advertising which industry conducts through the several media. Surely those media can be useful, also, in teaching our people concerning the operations of government. Another argument in support of Canon 35 is based upon the assumed violation of the "right of privacy" of participants in the trial. My careful search of the authorities has failed to reveal a single case in which such a right of privacy has been upheld concerning the participation of a person in a public trial. The important consideration, in all cases, is that the right of the people to know what goes on in the public places of government is superior to any right of the individual to be "let alone." His or her embarrassment is no greater in such cases than in many other life experiences where such embarrassment is taken for granted in the interest of the public welfare. Another argument sometimes urged in favor of Canon 35 is that in Where court proceedings are photographed — unless for television or newsreels — they are nothing more than single shots of particular participants or of the courtroom scene. When a case is "covered" by specialists, looking for "human interest" as is true of the so-called "sob sister" approach, the result cannot fail to be a distorted, over-emphasized presentation which usually misses completely the merits of the case. Why then, should anyone contend that broadcasting should present every moment and every phase of a trial? Consider, next, the question whether it would be "unfair" to broadcast only portions of a trial. To the extent that any broadcasting takes place it will be an accurate, faithful presentation of what goes on in the courtroom. To the extent that any part of a trial is televised the picturization will be in proper perspective; it will show, to the oustide public, exactly what each participant looks like; how he acts; his changing expressions; the reactions of the jury, of the witnesses; the sincerity or falsity of advocacy. The portrayal of a trial by radio or television broadcasting ... is an exact reproduction of what occurs; by way of action or speech. This brings us back to the fundamental considerations underlying our belief in the wisdom of permitting a maximum of freedom of communication. So long as we are committed to that fundamental consideration, there can be only one answer; i.e., it is better that our people know what goes on in our governmental processes, than that those processes should be shrouded in secrecy. Therein lies the remedy for abuse, for wrongdoing, for misfeasance, for malfeasance, for disrespect of government. If the people know, they can correct. If they are not allowed to CANON 35: AS IT IS AND AS IT MIGHT BE THIS is the controversial Canon 35: "Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the courtroom during sessions of the court or recesses between sessions, and the broadcasting or television of court proceedings are calculated to detract from the essential dignity of the proceedings, distract the witness in giving his testimony, degrade the court, and create misconceptions with respect thereto in the mind of the public and should not be per mitted. Provided that this restriction shall not apply to the broadcasting or televising, under the supervision of the court, of such portions of naturalization proceedings (other than the interrogation of applicants) as are designed and carried out exclusively as a ceremony for the purpose of publicly demonstrating in an impressive manner the essential dignity and the serious nature of naturalization." Here is a new version offered by Judge Justin Miller: "Proceedings in court should be conducted with fitting dignity and decorum. When the taking of photographs in the courtroom, or the broadcasting, by radio or television, of court proceedings, are calculated to detract from the essential dignity thereof, distract the witness in giving his testimony, or degrade the court, they should not be permitted until satisfactory corrections have been made in the methods of taking photographs or of broadcasting and approved by the presiding judge." civil cases there should be no right of publicity because, it is said, the controversy is solely one of private interest, between private individuals, concerning their private affairs. This is another disturbing revelation of failure to comprehend the nature of our government. Another favorite argument in support of Canon 35 is that, because the right of a defendant in a criminal case to a public trial is guaranteed by the Sixth Amendment, the right has no existence otherwise; that it is a right exclusively of the defendant and not of the public; that it may be waived by the defendant, in which case the public can be excluded from the trial; that, if the defendant elects to have a public trial, the judge may control the admission or exclusion of persons from the courtroom in his discretion. The due process concept of the Fourteenth Amendment and of the Fifth Amendment concerned not merely the right of an accused to a public trial, but of the public as well. The right of the public to a public trial had been recognized by the common law since the demise of Star Chamber courts. One of the arguments against broadcasting court proceedings is that the whole case would not be broadcast and that it would not be "fair" to portray only part of it. The argument seems incongruous on its face — in view of the fact that no other form of reporting court proceedings, except the official transcript, purports to be complete — but let us assume that the argument is presented sincerely and consider it on its merits. It is significant that much of a trial record never goes to an appellate court. Much of such a trial record is eliminated when the record on appeal is prepared. The tradition of free communication, as guaranteed by our Constitution, forbids the interposition of censorship or official selection between the sources of news and its use by the media of communication. How can we best secure wise selection and intelligent distribution of news, while recognizing that censorship cannot be used? Consider the reporting done by the press. Here we get more or less skilled observers, usually working against deadlines, in and out of the courtrooms, frequently missing the significance of particular evidence, or, even more probably, failing to understand the rulings of the court. :■■ T" ... ...... iHPH Page 96 • February 13, 1956 know and are unable to correct, then the government ceases to be one of the people, by the people, for the people, and becomes a government of the people by those who think they are better qualified to govern the people in a manner which they think is best for the people. The only proper limitation upon the foregoing concept is the requirement of due process, that the trial must be a fair one, with the particular specification that a fair trial requires an orderly procedure. The canons or rules which guide the trial judge, in this important task, should make plain the way for him to follow, in exercising his discretion in each case, I do not intend to suggest any preference for one medium of communication over another. Each is entitled to all possible benefits of the principle enunciated in the First Amendment. Each is subject to the limitations imposed by the due process clause of the Fifth and Fourteenth Amendments. To the extent that either offends — by obtrusive equipment or disturbing personnel — to that extent it is proper to limit or exclude it from the courtroom. This is the sort of limitation which should, properly, be written into an amended Canon 35. The people of this country should have a much better opportunity to see and know what is going on in our courts. Some of the most respected members of our profession have warned us that in the United States it may happen, as it did in England, that the people will grow increasingly impatient with professional unwillingness to revise our concepts of judicial disposition, and through legislative action, even more drastically emasculate our present procedures. Now that television has come to be as much a household institution as the bathtub and the refrigerator, now that the people are privileged to enjoy coronations, inaugurations, Presidential news conferences, cabinet meetings, national political conventions, great symphonic performances, religious services in the churches and cathedrals of the nation, the people are wondering just what there is so sacrosanct about a courtroom. If the magnificent isolation prescribed by Canon 35 is to be maintained we will need a better reason for maintaining it than the canon presently contains. Broadcasting • Telecasting