The Florida Bar
|Cameras in the Courtroom|
by Dana J. McElroy and Allison S. Lovelady
Answer: In general, cameras may be excluded from a courtroom in Florida if the person asking the judge to do so produces evidence to prove: (i) that the presence of the cameras has a qualitatively different effect on that person than on other people and (ii) that effect is qualitatively different from the effect of other types of media (such as print or radio). If the person trying to exclude the cameras is a criminal defendant, she must produce evidence to demonstrate the cameras prevent her from getting a fair trial.
II. Historical Perspective
III. Florida Courtrooms
IV. Federal Courtrooms
VI. What To Do When Someone Asks To Exclude the Cameras
Rule 2.450. Technological Coverage of Judicial Proceedings
About the Authors
For more than two decades, cameras and other electronic media have been allowed in Florida courtrooms. Camera coverage is a routine part of the state judicial system, although it still is prohibited in federal trial courts. Subject to clearly defined rules, cameras may be excluded from state courts only after an evidentiary finding that their presence would have a substantial effect on a trial participant. This substantial effect must be qualitatively different from the effect on members of the public generally and from that of coverage by other types of media. Camera coverage most commonly is challenged by criminal defendants who claim the coverage violates their constitutional rights.
II. Historical Perspective
Despite their widespread acceptance today, cameras and other electronic media were banned from virtually all courtrooms for much of the twentieth century. The ban on electronic media from courtrooms commonly is traced to the 1935 trial of Bruno Hauptmann, who was accused of kidnapping and murdering the son of famous aviator Charles Lindbergh. The Hauptmann trial attracted hundreds of journalists and photographers, with accompanying distractions and disruptions, all vying for a shot at the sensational story.
In 1937, as a result of the overwhelming media presence at the Hauptmann trial, the American Bar Association (ABA) adopted Canon 35 of the ABA’s Canons of Judicial Ethics. Canon 35 recommended a ban of electronic media from courtrooms. In support of its recommendation, the ABA articulated concerns that electronic media coverage detracted from the dignity of judicial proceedings and created public misconceptions about the judicial process. Subsequently, the federal courts and all of the states adopted rules prohibiting electronic media in courtrooms. With few exceptions, cameras and other electronic media were banned from all courtrooms through the early 1970’s.
One of the exceptions was Texas, where beginning in the early 1960’s, cameras were permitted in the state’s courtrooms. This liberal policy led to televised coverage of the 1962 trial of Billy Sol Estes and formed the basis for Estes’ appeal to the United States Supreme Court. Estes, a Texas businessman convicted of swindling, argued the television and radio coverage deprived him of a fair and impartial trial and thus violated his constitutional right to due process. A majority (5-4) of the Court’s Justices agreed and voted to overturn Estes’ conviction. Estes v. Texas, 381 U.S. 532 (1965).
Although the Court held that camera and audio coverage violated Estes’ constitutional rights, only four of the five Justices in the majority agreed that the presence of cameras automatically violated a criminal defendant’s right to due process. The fifth Justice, Justice Harlan, stated that it was not constitutionally necessary to ban cameras from run-of-the-mill criminal trials and believed they also should be allowed for educational purposes.
The Estes majority cited numerous potential problems associated with camera coverage of criminal trials, including the adverse impact on jurors’ impartiality and the quality of witness testimony. The Court additionally was concerned that the presence of cameras would increase a judge’s already significant responsibilities and serve to harass the defendant.
Although the Estes Court held that there is no First Amendment right to broadcast from the courtroom, the Court recognized the importance of informing citizens of events and occurrences in criminal trials and court proceedings. The Court stated that in light of evolving technology, an absolute ban on cameras may not always be necessary. The Court thus explicitly left the door open for a future examination of the issue of cameras in the courtroom.
Because of the Estes decision, every state except Colorado continued the ban on cameras. In the 1970’s, however, a number of states, including Florida, revisited the issue and began to experiment with cameras in the courtroom. Florida’s program, which allowed electronic media coverage of judicial proceedings, ultimately resulted in an appeal to the United States Supreme Court and a landmark ruling.
In 1981, two Miami Beach police officers challenged their burglary convictions and argued that camera coverage, pursuant to the experimental program, had violated their constitutional right to a fair and impartial trial. The United States Supreme Court ruled that the Constitution does not prohibit states from permitting cameras in judicial proceedings. Chandler v. Florida, 449 U.S. 560 (1981).
The Chandler Court held that the Estes decision did not establish a blanket rule that electronic media coverage automatically violates the Constitution. Further, because of technological advances since Estes, states now should be permitted to allow cameras in courtrooms. The Chandler Court stated that criminal defendants must show actual prejudice to their constitutional rights before cameras can be banned. Thus, although the presence of cameras in some circumstances may violate a defendant’s constitutional rights, the Supreme Court refused to adopt an absolute prohibition on cameras in state courts.
As a result of Chandler, the ABA revised Rule 3A(7) of its Code of Judicial Conduct (formerly Canon 35) to permit cameras under guidelines designed to ensure the fair administration of justice. Currently, all states except Indiana, Mississippi, South Dakota, and the District of Columbia permit cameras in courtrooms on at least an experimental basis. Most of these states permit cameras in all courts, while the rest limit electronic media coverage to appellate proceedings, where jurors and witnesses are not present.
The 1995 murder trial of O.J. Simpson, which was televised nationally and watched by millions of viewers on a daily basis, rekindled the national debate about camera coverage of court proceedings, particularly criminal trials. For example, as a result of the Simpson trial, the Judicial Council of California considered banning cameras in state courtrooms. In May 1996, although the Council rejected a blanket ban on camera coverage, it expanded the circumstances under which judges may exclude cameras from a particular proceeding, and specifically prohibited coverage of jury selection, jurors and spectators in courtrooms. Further, in August 1996, a California Superior Court judge banned electronic media coverage of the Simpson civil trial, citing negative impacts such as participant distraction and undue influence he believed resulted from camera coverage of the criminal trial.
III. Florida Courtrooms
Prior to the Chandler decision, the Florida Supreme Court reviewed results of its one-year pilot program and ruled that allowing cameras in state courtrooms did not inherently violate a defendant’s constitutional rights. In re Petition of Post-Newsweek Stations Fla., Inc., 370 So. 2d 764 (Fla. 1979). The court accordingly approved a change to the judicial rules that historically had prohibited camera coverage.
Specifically, the court amended Canon 3A(7) of the Florida Code of Judicial Conduct to allow camera coverage of judicial proceedings, subject to the authority of the presiding judge to control conduct and decorum of the proceedings and to ensure the fair administration of justice. The court since has adopted a new Code of Judicial Conduct, but explicitly did not repeal Canon 3A(7) and its accompanying commentary. The court stated instead that the Canon was moved to Rule 2.170 of the Florida Rules of Judicial Administration. In re: Code of Judicial Conduct, 643 So. 2d 1037 (Fla. 1994). The rule since has been renumbered to Florida Rule of Judicial Administration 2.450 (Technological Coverage of Judicial Proceedings).
The Post-Newsweek court articulated a test for judges to use when determining if camera access should be denied. The court stated that trial participants seeking to prohibit camera coverage must show that such coverage will have a substantial effect upon the particular individual which would be qualitatively different from the effect on members of the public in general and such effect will be qualitatively different from coverage by other types of media. Post-Newsweek, 370 So. 2d at 779.
The court also announced specific standards of conduct and technology to govern electronic and still photography in judicial proceedings, which were amended in 2003. Amendments to the Florida Rules of Judicial Administration, 851 So. 2d 698 (Fla. 2003). The amended standards are reproduced in full at the end of this article. Generally, they provide for camera coverage as follows:
(a) At least one portable television camera is allowed in trial and appellate proceedings. Additional television cameras may be allowed by the presiding judge at his or her discretion. Only one still photographer, with no more than two cameras, is allowed at any judicial proceeding.
(b) Audio pickup for all media purposes must be accomplished using existing systems present in the courtroom. If no suitable system exists, microphones and related audio equipment must be unobtrusive and located in designated areas.
(c) Pooling arrangements must be made by the media in advance, without judicial intervention. Absent advance agreement, contesting media personnel will be excluded from a particular proceeding.
(d) Camera personnel must use equipment that does not produce distracting light or sound. No artificial lighting device of any kind is permitted.
(e) Cameras must be positioned in areas designated by the court. Camera personnel may not enter or leave the courtroom, move about, or change film, lenses or other equipment while court is in session.
(f) Audio recording or broadcast of conferences between attorneys and clients, or between attorneys and the judge is prohibited.
(g) Film, photographs, or other recordings of the proceeding may not be used as evidence in any judicial proceeding.
(h) Court orders banning cameras are immediately reviewable pursuant to Rule 9.100(d) of the Florida Rules of Appellate Procedure.
In ruling to permit electronic media coverage, the Post-Newsweek court rejected arguments that the presence of cameras would cause a laundry list of problems, such as physical disruption, adverse psychological effects on trial participants, prejudicial publicity and exploitation of courtroom images by the media. The court based its conclusions on results of the one-year pilot program, commenced on July 5, 1977, that allowed cameras to cover all levels of the Florida court system without the consent of trial participants.
At the conclusion of the program, the court requested the parties, judges and media who participated to report on their experiences with cameras in the courtroom. The court further ordered a survey of all participants other than judges and invited comments from members of the general public who attended trials that were covered by cameras. After reviewing and analyzing the results, the court concluded that the effects of camera coverage were not prohibited constitutionally nor compelling enough to continue the ban on cameras. The court stated:
While we do not accept all of the claims made by the proponents [of cameras] and will not discuss them in detail, we are persuaded that on balance there is more to be gained than lost by permitting electronic media coverage of judicial proceedings subject to standards for such coverage. The prime motivating consideration prompting our conclusion is this state’s commitment to open government. Post-Newsweek, 370 So. 2d at 780.
The court reasoned that trials were public events and that electronic media coverage of other branches of government both had informed the public about the operation of government and encouraged its representatives to act more responsibly. The court argued that, likewise, the judicial branch would benefit from such coverage.
Two years later, the Florida Supreme Court further refined and explained its Post-Newsweek holding. In State v. Palm Beach Newspapers, Inc., 395 So. 2d 544 (Fla. 1981), the court ruled that a trial court must hold an evidentiary hearing whenever the presence of cameras is challenged and must make specific findings on the record to support their exclusion. Id. at 548. Additionally, the court stated that the affected media must be permitted to participate in the hearing and that the qualitative difference required by Post-Newsweek must be real and identifiable, as opposed to general or speculative. State v. Green, 395 So. 2d 532 (Fla. 1981).
In the wake of Post-Newsweek, Florida courts at all levels have endorsed cameras in the courtroom, consistently ruling that their presence does not deprive criminal defendants of a fair trial or otherwise adversely affect judicial proceedings. See, e.g. Chavez v. State, 832 So. 2d 730 (Fla. 2002) (trial court’s refusal to prohibit camera coverage of jurors did not impair criminal defendant’s right to fair trial); Patten v. State, 467 So. 2d 975 (Fla. 1985) (cameras did not interfere with criminal defendant’s right to consult with counsel); Jent v. State, 408 So. 2d 1024 (Fla. 1981) (alleged clicking of the camera was not distracting enough to deny criminal defendant effective assistance of counsel); Clark v. State, 379 So. 2d 97 (Fla. 1979) (criminal defendant failed to demonstrate specific denial of due process resulting from presence of cameras); WFTV, Inc. v. State, 704 So.2d 188 (Fla. 4th DCA 1997) (restriction of camera coverage of jury was unsupported by proper findings); Times Publishing Co. v. State, 632 So.2d 1072 (Fla. 4th DCA 1991) (criminal trial court order prohibiting media from publishing photographs of potential or seated jurors was unconstitutional); Gore v. State, 573 So. 2d 87 (Fla. 3d DCA 1991) (presence of cameras did not render criminal defendant incompetent to testify); Zamora v. State, 422 So. 2d 325 (Fla. 3d DCA 1982) (no ineffective assistance of counsel where defendant failed to show specific prejudice from unchallenged presence of television cameras); State v. Conde, 6 Fla. L. Weekly Supp. 692, 27 Media L. Rep. (BNA) 2311 (Fla. 11th Cir. Ct. 1999) (motion to restrict camera coverage of jurors and to seal juror information denied); State v. Conde, 6 Fla. L. Weekly Supp.692 (Fla. 11th Cir. Ct. 1998) (motion to exclude cameras from all proceedings denied); State v. Chavez, 6 Fla. L. Weekly Supp. 691 (Fla. 11th Cir. Ct. 1998) (motion to exclude cameras from all proceedings denied); Lang v. Tampa Television, Inc., 11 Media L. Rep. (BNA) 1150 (Fla. 4th Cir. Ct. 1984) (despite plaintiff’s objection, restricted camera coverage allowed in civil proceeding); State v. Alvarez, 10 Media L. Rep. (BNA) 1493 (Fla. 11th Cir. Ct. 1984) (cameras could not be excluded from jury selection in criminal trial); In re B.P., 9 Media L. Rep. (BNA) 1151 (Fla. 4th Cir. Ct. 1983) (subject to certain restrictions, cameras could not be excluded from juvenile proceedings). But cf. Sunbeam Television Corp. v. State, 723 So.2d 275 (Fla. 3d DCA 1998) (restriction of camera coverage of jurors affirmed where jurors’ names and addresses were sealed).
The court reaffirmed its commitment to camera coverage of judicial proceedings in late 2005 when it declined to amend then-Rule 2.170 to give trial courts broad authority to restrict such coverage to protect privacy rights and “confidential matters.” In re Amendments to the Rules of Judicial Administration (Two-Year Cycle), 915 So. 2d 157, 161-62 (Fla. 2005). The proposed rule change also would have provided for an automatic ban on photographing jurors’ faces. Id. at 162 n. 5. In so ruling, the court clarified that parties seeking to prohibit or limit camera coverage of judicial proceedings still must meet the Post-Newsweek test, after notice to the media and an opportunity to be heard. Id. at 162 n.7.
Additionally, as part of its continued expansion of public access to courts, the Florida Supreme Court in late 1997 began statewide television broadcasts of its oral arguments. The broadcasts also are available in audio form over the internet. Spearheaded by former Chief Justice Gerald Kogan, the broadcasts are a joint project between the Florida Supreme Court and Florida State University’s Department of Communications and College of Law. These broadcasts drew nationwide attention in November, 2000, when oral arguments in the dispute over the Florida presidential election results reached millions of viewers.
In April 2009, Chief Justice Peggy Quince proclaimed that month as the 30th Anniversary of the Post-Newsweek Station decision in order to commemorate the nation’s broadest camera allowance rule.
In 2010, Florida’s First District Court of Appeal in Morris Publishing Co. v. State et. al,held that that laptop computers are excluded from the scope of Rule 2.450 and are allowed in a court proceeding unless the court finds that such use will cause undue disruption. Morris, 2010 WL 363318, 38 Media. L. Rep. (BNA) 1245 (Fla. 1st DCA Jan. 20, 2010).
IV. Federal Courtrooms
Despite the routine presence of cameras in most state courtrooms, federal courts have yet to allow electronic media coverage of all federal proceedings. In March 1996, the Judicial Conference of the United States -- the policy-making body for the federal courts -- took a significant step forward when it decided that federal appellate courts may allow camera coverage of their proceedings. At the same time, however, the Judicial Conference reiterated its opposition to camera coverage at the trial level.
The United States Supreme Court has held consistently that neither the media nor a criminal defendant has a constitutional right to camera coverage. The federal court ban is incorporated in Canon 3A(7) of the Code of Judicial Conduct for civil proceedings, and in Rule 53 of the Federal Rules of Criminal Procedure for criminal proceedings.
In 1991, the Judicial Conference authorized a three-year experimental program permitting camera coverage in approximately eight civil trial and appellate courts. After an analysis of the program and its effect on jurors, judges, witnesses and the judicial process in general, the Committee on Court Administration and Case Management recommended that the Judicial Conference authorize federal courts of appeals and district courts nationwide to provide camera access to civil proceedings.
On September 20, 1994, the Judicial Conference voted in a closed-door meeting to reject the Committee’s recommendation, as well as a proposed amendment to Rule 53 of the Federal Rules of Criminal Procedure. In support of its decision, and in apparent disagreement with a report of the Federal Judicial Center, the participating judges expressed concerns regarding the effect of camera coverage on jurors and witnesses. The federal pilot program ended on December 31, 1994.
Consequently, cameras still were prohibited in all federal courtrooms until the March 1996 decision to allow federal appellate courts to provide electronic media access to appellate proceedings. Since that time, only two federal appellate courts, the Second and Ninth Circuit Courts of Appeals, have elected to allow such coverage.
Although cameras continue to be banned from virtually all federal courtrooms, in a historic decision in late 2000, the U.S. Supreme Court allowed a delayed audio broadcast of oral arguments in the dispute over the presidential election. The Court refused, however, to allow camera coverage of the arguments.
In a progressive step in September 2010, the U.S. Judicial Conference approved a pilot project to allow cameras in federal district courts. The pilot, launched on July 18, 2011, is set to last three years and involves more than 100 U.S. District Court judges in 14 jurisdictions. One main hurdle of the project, however, is the requirement that all parties and the presiding judge must approve of the recording in order to proceed with the recording in that courtroom. While several of the districts have posted online recordings, it will likely be years before the pilot reveals true data regarding the allowance of cameras in federal courtrooms.
Also in 2011, versions of the Cameras in the Courtroom Act of 2011 were referred to the Senate and House committee. That Act would require the Supreme Court to permit television coverage of all open sessions of the Court unless a majority vote decides that allowing the coverage violates the due process rights of any parties involved.
The Sunshine in the Courtroom Act, which has been introduced several years between 2005 and 2012, was introduced again in May 2012. The Act allows for any presiding United States district or appellate court judge to exercise his or her discretion in allowing cameras in court proceedings, rather than requiring a judge’s participation. Both the Cameras in the Courtroom Act and Sunshine in the Courtroom Acts are still under consideration.
After many years of legal and political struggle, cameras are allowed, and frequently present, in state courtrooms. High-profile criminal trials continue to bring the issue of courtroom cameras to the forefront and have caused many states and individual judges to reconsider their routine presence in state proceedings. Access to federal courtrooms, on the other hand, has expanded, with the opening of appellate proceedings to the electronic media. Furthermore, efforts by varied interests to permit cameras in federal trial courtrooms continue.
VI. What To Do When Someone Asks To Exclude the Cameras
Just as in the context of a request to close a hearing (see the Judicial Access article elsewhere in this Handbook), you have a right to object to efforts to exclude cameras and to request that the judge follow the procedures established by the Florida Supreme Court. If someone asks the judge to exclude the cameras, use the suggested form of statement set out in the Judicial Access chapter. Modify the portion which identifies your objection to say:
I am not an attorney, but I understand the Florida Supreme Court permits cameras to be present in Florida courtrooms, and has established a test that must be met before the cameras can be excluded. At the very least, the law requires that a hearing be held, with the press and public having an opportunity to be heard through counsel, prior to closure. I therefore request such a hearing so our attorney can be heard on our behalf.
Again, the same general principles regarding your right to be heard, asking for a stay, and so on, apply with respect to cameras as apply with respect to closure generally.
Rule 2.450. Technological Coverage of Judicial Proceedings
(a)Electronic and Still Photography Allowed. Subject at all times to the authority of the presiding judge to: (i) control the conduct of proceedings before the court; (ii) ensure decorum and prevent distractions; and (iii) ensure the fair administration of justice in the pending cause, electronic media and still photography coverage of public judicial proceedings in the appellate and trial courts of the state shall be allowed in accordance with the following standards of conduct and technology promulgated by the Supreme Court of Florida.
(b)Equipment and Personnel.
(1) At least 1 portable television camera operated by not more than 1 camera person, shall be permitted in any trial court or appellate court proceeding. The number of permitted cameras shall be within the sound discretion and authority of the presiding judge.
(2) Not more than 1 still photographer, using not more than 2 still cameras, shall be permitted in any proceeding in a trial or appellate court.
(3) Not more than 1 audio system for radio broadcast purposes shall be permitted in any proceeding in a trial or appellate court. Audio pickup for all media purposes shall be accomplished from existing audio systems present in the court facility. If no technically suitable audio system exists in the court facility, microphones and related wiring essential for media purposes shall be unobtrusive and shall be located in places designated in advance of any proceeding by the chief judge of the judicial circuit or district in which the court facility is located.
(4) Any “pooling” arrangements among the media required by these limitations on equipment and personnel shall be the sole responsibility of the media without calling upon the presiding judge to mediate any dispute as to the appropriate media representative or equipment authorized to cover a particular proceeding. In the absence of advance media agreement on disputed equipment or personnel issues, the presiding judge shall exclude all contesting media personnel from a proceeding.
(c) Sound and Light Criteria.
(1) Only television photographic and audio equipment that does not produce distracting sound or light shall be used to cover judicial proceedings. No artificial lighting device of any kind shall be used in connection with the television camera.
(2) Only still camera equipment that does not produce distracting sound or light shall be used to cover judicial proceedings. No artificial lighting device of any kind shall be used in connection with a still camera.
(3) It shall be the affirmative duty of media personnel to demonstrate to the presiding judge adequately in advance of any proceeding that the equipment sought to be used meets the sound and light criteria enunciated in this rule. A failure to obtain advance judicial approval for equipment shall preclude its use in any proceeding.
(d) Location of Equipment Personnel.
(1) Television camera equipment shall be positioned in such location in the court facility as shall be designated by the chief judge of the judicial circuit or district in which such facility is situated. The area designated shall provide reasonable access to coverage. If and when areas remote from the court facility that permit reasonable access to coverage are provided, all television camera and audio equipment shall be positioned only in such area. Videotape recording equipment that is not a component part of a television camera shall be located in an area remote from the court facility.
(2) A still camera photographer shall position himself or herself in such location in the court facility as shall be designated by the chief judge of the judicial circuit or district in which such facility is situated. The area designated shall provide reasonable access to coverage. Still camera photographers shall assume a fixed position within the designated area and, once established in a shooting position, shall act so as not to call attention to themselves through further movement. Still camera photographers shall not be permitted to move about in order to obtain photographs of court proceedings.
(3) Broadcast media representatives shall not move about the court facility while proceedings are in session, and microphones or taping equipment once positioned as required by subdivision (a)(3) shall not be moved during the pendency of the proceeding.
(e) Movement during Proceedings. News media photographic or audio equipment shall not be placed in or removed from the court facility except before commencement or after adjournment of proceedings each day, or during a recess. Neither television film magazines nor still camera film or lenses shall be changed within a court facility except during a recess in the proceeding.
(f) Courtroom Light Sources. With the concurrence of the chief judge of a judicial circuit or district in which a court facility is situated, modifications and additions may be made in light sources existing in the facility, provided such modifications or additions are installed and maintained without public expense.
(g) Conferences of Counsel. To protect the attorney-client privilege and the effective right to counsel, there shall be no audio pickup or broadcast of conferences that occur in a court facility between attorneys and their clients, between co-counsel of a client, or between counsel and the presiding judge held at the bench.
(h) Impermissible Use of Media Material. None of the film, videotape, still photographs, or audio reproductions developed during or by virtue of coverage of a judicial proceeding shall be admissible as evidence in the proceeding out of which it arose, in any proceeding subsequent or collateral thereto, or upon retrial or appeal of such proceedings.
(i) Appellate Review. Review of an order excluding the electronic media from access to any proceeding, excluding coverage of a particular participant, or upon any other matters arising under these standards shall be pursuant to Florida Rule of Appellate Procedure 9.100(d).
ABOUT THE AUTHORS
Dana J. McElroy is a partner at Thomas & LoCicero, PL in Fort Lauderdale. She specializes in media law, with an emphasis on libel defense and access to courts, meetings and records. Ms. McElroy has served as chair and vice chair of The Florida Bar’s Media & Communications Law Committee. A former editor of the Independent Florida Alligator, she worked as a reporter for the Florida Times Union and the Gainesville Sun before attending law school at the University of Florida.
Allison S. Lovelady is an associate attorney at Thomas & LoCicero, PL in Fort Lauderdale. Ms. Lovelady focuses on intellectual property, media law and civil litigation matters. She received her Juris Doctorate from Nova Southeastern University, where she was an Editorial Board member of the esteemed ILSA Journal of International & Comparative Law.
Authored by the Media & Communications Law Committee, the handbook serves as a resource guide for members of the media about topics in the legal profession.
[Revised: December 2012]