Broadcasting Telecasting (Jan-Mar 1956)

broadcasting, either by radio or television, is such that if any participant evidenced an intention to offend in this matter all the judge would have to do would be to press a button and the offensive conduct would be inaudible and invisible to any person except those in the courtroom. The capable trial judges of this state can keep full control of any such situation. . . . It is perfectly obvious that the solution of the problem does not lie in arbitrarily forbidding the photographing or broadcasting of court proceedings. A constitutional right of all citizens cannot be denied because a very few persons may conceivably make fools of themselves before a larger audience than that which might otherwise be subjected to their offensive conduct. In the case of People v. Hensley, 75 Ohio St. 255, 79 N. E. 462, the court said: "The people have the right to know what is being done in their courts, and free observation and the utmost freedom of discussion of the proceedings of public tribunals that is consistent with truth and decency, tends to the public welfare." (4) Another argument frequently referred to during the hearings as supporting Canon 35 is that to permit photography at public trials would violate the "right of privacy" of participants or spectators. There are at least two conclusive answers to this contention: First: One needs only to cite the law applicable to the question, which unequivocally and repeatedly has stated that when one becomes identified with an occurrence of public or general interest, he emerges from his seclusion and it is not an invasion of his "right of privacy" to publish his photograph or to otherwise give publicity to his connection with that event. The law does not recognize a right of privacy in connection with that which is inherently a public matter. Numerous cases are available on the subject and I have found no disagreement as to the law. Second: To uphold Canon 35 on the ground that it prevents a violation of the individual's "right to privacy" would be to repudiate the provision of our Constitution by rule of court, and to make effective the prior restraint upon freedom to publish, although the Constitution expressly prohibits such restraints by clearly indicating that the remedy for abuse of the constitutional right to publish "whatever he will on any subject" is that the publisher shall be "responsible for all abuse of that liberty." How can it be contended that the prior restraint upon conduct imposed by the canon is valid when the Constitution clearly indicates that the remedy for abuse of the "right of privacy" must be compensatory in its character? (5) It also is argued that to permit photography or broadcasting of court scenes would mean that the trial judge would be confronted by innumerable persons clamoring for access to photograph and broadcast the proceedings, each attempting in a highly competitive business to outsmart his competitors. If such a threat were to become a reality there could be little hope of maintaining order and decorum in the judicial proceedings. The representatives of press and broadcasting interests have been alert to this situation and have taken effective steps to insure against any such debacle in this state. I can do no better than to quote from the testimony of Sheldon Peterson of the staff of KLZ-AM-TV: "The Court is aware, of course, that the Denver area now has 14 radio stations and 4 television stations. . . . "The stations are thoroughly cognizant of this danger and, through a pooling arrangement, have taken positive steps to safeguard against it. To this end, they have organized a permanent association. From the membership in this association, a standing committee has been named in which is fixed full responsibility for courtroom broadcasts and telecasts, should they be permitted. The committee consists of Joe Herold of KBTV (TV) Denver; Grady Franklin Maples of KGMC; William Grant of KOA-AM-TV; John Bosman of KIMN and Mr. Peterson. Mr. Herold and Mr. Maples are co-chairmen of the committee and Mr. Peterson is the secretary. "Here is the way in which this association proposes to function. Whenever any of the member stations wish to cover a given trial, they will communicate with the secretary who will carry the request to the judge. Should the judge decree that radio and television coverage shall be permitted, he need deal with only one individual — that is the secretary — in laying down the ground rules for such coverage. Having reached a clear understanding where the microphones and cameras shall be placed in the court room, the secretary shall then make the necessary arrangements. . . . "From this basic equipment, duplicate tape recordings and film prints will be made available to all the Denver area radio and television stations that desire them. In this way, as many stations as wish may derive the benefits from the pool, yet there will be only one set of equipment for radio and one set for television. If the judge deems that live television of a trial shall be permitted, the same pooling arrangement shall prevail. "The radio and television industries in the Denver area are highly competitive. The newsmen of these stations are fully as eager to exceed each other as are the newspaper photographers. Moreover, they are firmly convinced that under the freedoms guaranteed by the Constitution, they have the right of access to the courts with microphone and camera. "But they are mindful, too. that the decorum of the courtroom must be preserved at all costs. That is why they have decided to forego the possibility of gaining competitive advantage and have agreed to cooperate through this system of pooling. Having reached this agreement, the Denver area radio and television stations, through their association, have every confidence that they can broadcast and telecast trial proceedings in a fashion thoroughly compatible with the traditional dignity of the courts." A similar pooling arrangement has been entered into by representatives of the press photographers. This cooperative effort is to be commended; but even in the absence of these formal agreements the court, in the exercise of its discretion could, and in cases of wide public interest unquestionably should, enforce similar regulations as a condition under which photographs or broadcasting of any kind would be permitted. All of the above arguments, and others not specifically mentioned, are directed at preventing that which conjecture fears may produce an undesired result in matters wholly unrelated to the disposition of the trial thus publicized, and have nothing whatever to do with the proper determination of the issues on trial. I have given careful consideration to the language which should be employed in a new rule which would effectively do away with the discrimination against actual pictures in favor of word pictures, and at the same time afford positive protection against interference with orderly procedure and a fair public trial. In my judgment the entire matter should be left to the discretion of the trial judge. Limitations upon that power affixed by the Supreme Court rule would leave the impression that all matters within the field not covered by the express limitations were proper subjects of reproduction by photograph or radio. I know of no limitation which should be inflexibly applied to all cases because every case involves different personalities and circumstances, all of which should be considered by the trial judge before prescribing the conditions under which radio or photography might be had. I recommend that the following rule be adopted, effective forthwith, which shall hereafter govern trial courts in matters pertinent thereto, and that it shall supercede any rule heretofore issued in conflict therewith. "Proceedings in court should be conducted with fitting dignity and decorum. "Until further order of this court, if the trial judge in any court shall believe from the particular circumstances of a given case, or any portion thereof, that the taking of photographs in the court room, or the broadcasting by radio or television of court proceedings would detract from the dignity thereof, distract the witness in giving his testimony, degrade the court, or otherwise materially interfere with the achievement of a fair trial, it should not be permitted; provided, however, that no witness or juror in attendance under subpoena or order of the court shall be photographed or have his testimony broadeast over his expressed objection; and provided further that under no circumstances shall any court proceeding be photographed or broadcast by any person without first having obtained permission from the trial judge to do so, and then only under such regulations as shall be prescribed by him." The broad discretion thus given the trial court affords ample protection against abuses of the constitutional right of freedom of the press, and will lead to a cooperative effort as between the judiciary and the press to protect, preserve, and portray the judicial process upon the level of justice to which it actually attains. Broadcasting • Telecasting March 5, 1956 • Page 51