Broadcasting Telecasting (Jan-Mar 1956)

THE EMANCIPATION OF COLORADO RADIO-TV JUDGE MOORE'S HISTORIC RECOMMENDATION FOR COURT ACCESS CONSTITUTIONAL protection granted the press, with freedom of speech, "is a right of wide import" and includes every vehicle of information and opinion, Judge O. Otto Moore, of the Colorado Supreme Court, wrote Feb. 27 in his referee's report to the full court. This report was approved by the full court. The main part of Judge Moore's report on Canon 35 and the rights of media follows: We are concerned with realities and not with conjecture. Canon 35 assumes the fact to be that the use of camera, radio and television instruments must in every case interfere with the administration of justice in the particulars above mentioned. If this assumption of fact is justified the canon should be continued and enforced. If the assumption is not justified, the canon cannot be sustained. For six days I listened to evidence and witnessed demonstrations which proved conclusively that the assumption of facts as stated in the canon is wholly without support in reality. At least one hundred photographs were taken at various stages of the hearing which were printed and introduced as exhibits. All of them were taken without the least disturbance or interference with the proceedings, and, with one or two exceptions, without any knowledge on my part that a photograph was being taken. A newsreel camera operated for half an hour without knowledge on my part that the operation was going on. Radio microphones were not discovered by me until my attention was specifically directed to their location. Several hours were devoted to the technique involved in modern production of live telecasts and for one whole day the events taking place in the court room were produced on a closed circuit telecast and shown as they happened on the television set in the courtroom. Cameras used in photo and television demonstrations were of different kinds. In still photography and newsreel activity they were not noticeable and were operated in such manner that I was unaware that they were functioning. The television cameras shown were of several kinds, varying from the large, already outmoded one which is mounted on a movable tripod, to the small one which is 4" x 5" x 7" in size. All equipment used, whether large or small, is capable of installation outside the court room with only the lens appearing on the exterior wall, through an otherwise concealed door or window, or from a booth in the rear of the courtroom. Only the regular lighting at all times functioning in the courtroom was used, and any court room with adequate sunlight for ordinary court proceedings would require no additional lighting. There was nothing connected with the telecast which was obtrusive. The dignity or de corum of the court was not in the least disturbed. Many persons entered and retired from the courtroom without being aware that a live telecast was in progress. Others who took seats which were so located that they could see the television screen which was reproducing the hearing, were obviously surprised when they observed it a brief time after being seated. I am very sure that many well meaning persons, including some leaders of the bench and bar, are of the firm conviction that some, or all. of the prohibitions contained in Canon 35 should be continued and enforced without variation. I must confess that prior to this hearing I leaned definitely toward that view insofar as television and radio were concerned. I am equally certain that the vast majority of those supporting continuance of Canon 35 have failed, neglected, or refused to expose themselves to the information, evidence, and demonstrations of progress which are available in this field. I am also satisfied that they are unfamiliar with the actual experiences and recommendations of those who have permitted supervised coverage by photographers, radio and television of various stages of court proceedings. I do not mean to say that in every case photography, radio and television broadcasting should be permitted. There are doubtless many cases and portions thereof, which, in the court's discretion to insure justice, should be withdrawn from reproduction by photo, film, radio or television. The responsible leadership in each of these fields are in agreement that the trial court should have complete discretion to rule out all, or any part of, such activity in those instances where proper administration of justice requires it. Arguments and suggestions of various kinds have been submitted to me in various ways in support of the retention of Canon 35. Generally they fall into one or more of the following classifications. A brief discussion on each may be of assistance. ( 1 ) It is claimed that permitting photographs, newsreels, radio and telecasts of court proceedings amounts to entering the field of entertainment and is not strictly within the field covered by the term "freedom of the press." The Supreme Court of the United States has held otherwise. From the opinion in Winters v. New York, 333 U. S. 507, I quote: "The line between the informing and the entertaining is too elusive for the protection of that basic right (a free press). Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to protection of free speech as the best of literature. Hannegan v. Esquire, 327 U. S. 146." (2) Closely related to the foregoing is the argument that coverage of court proceedings going beyond the inaccurate word pictures painted with the pen of the courtroom press reporter, would be merely to satisfy "idle curiosity" for entertainment purposes. This contention overlooks the obvious fact that under our concept of government there is a constant regard for the necessity of educating and informing our people concerning the proper functioning of all three branches of government. There is no field of governmental activity concerning which the people are as poorly informed as the field occupied by the judiciary. It is highly inconsistent to complain of the ignorance and apathy of voters and then to "close the windows of information through which they might observe and learn." Generally only idle people, pursuing "idle curiosity," have time to visit courtrooms in person. What harm could result from portraying by photo, film, radio and screen to the business, professional and rural leadership of a community, as well as to the average citizen regularly employed, the true picture of the administration of justice? Has anyone been heard to complain that the employment of photographs, radio and television upon the solemn occasion of the last presidential inauguration or the coronation of Elizabeth II was to satisfy an "idle curiosity"? Do we hear complaints that the employment of these modern devices of thought transmission in the pulpits of our great churches destroys the dignity of the service; that they degrade the pulpit or create misconceptions in the mind of the public? The answers are obvious. That which is carried out with dignity will not become undignified because more people may be permitted to see and hear. (3) It is contended, usually orally and in smothered words or whispers, that some trial judges, and lawyers "who are hungry for publicity, will conclude that they are actors, and by some psychological motivation, 'play to the galleries' and so conduct themselves as to satisfy their own vanity, or otherwise exploit themselves." Any judge or lawyer who so demeans himself before a camera does not change his inherent characteristics for that particular occasion. A "show-off" or a "strutter" will be just that whether a camera is present or not. They are readily identified by any person of ordinary intelligence and are ultimately adequately and justly disposed of by the people. If a larger segment of society is permitted to witness such offensive conduct the offender will be properly judged by the people sooner than might otherwise be possible. Actual experience, however, has led to the majority view that participants in legal proceedings are far more careful in their conduct and indulge in less bickering in those cases where cameras are permitted to operate under court supervision. Equipment employed in Page 50 • March 5, 1956 Broadcasting • Telecasting