The Florida Bar News
April 1, 2009
Cameras in Florida's Courts
30 years and counting
Florida’s 1970s Experiment with Cameras in the Courts: Driving from Failure to Success
By Arthur J. England, Jr.
Former Chief Justice of
the Florida Supreme Court
In 1975, a petition to allow cameras and other electronic media into Florida’s courts was filed in the Florida Supreme Court by Sandy D’Alemberte on behalf of the Post-Newsweek stations in Florida. Four years later, the court gave its approval.
One of the “driving” events which led to the court’s Post-Newsweek decision has never previously been disclosed in a public document. The 30th anniversary of the Post-Newsweek decision this month is an appropriate time to reveal an event that was instrumental in turning Florida’s failing camera-in-court experiment into the pioneering program that successfully brought cameras into all of Florida’s courts and started a national trend.
The fits and starts of the court’s four-year effort to determine the feasibility of allowing cameras in Florida’s courtrooms are well-documented in the court’s decisions. The court began its consideration of the Post-Newsweek petition by approving an experiment for televising one civil trial and one criminal trial before the chief judge of the Leon County Circuit Court, subject to the consent of all parties, jurors, and witnesses. Due to the difficulty of obtaining all participants’ consent, the program was expanded to one other judge in September 1976 – then Ninth Judicial Circuit Court Judge Parker Lee McDonald, who would later become chief justice of the Florida Supreme Court. In December, the consent trial program was further expanded to two other judicial circuits, and finally a trial was scheduled in Jacksonville where everyone had consented.
Jacksonville is a two-hour drive from Tallahassee. In response to an invitation to the court from the Post-Newsweek stations, Justice Alan Sundberg and I were tasked by the court to drive there to observe. Unbeknownst to us, one of the attorneys withdrew his client’s consent while we were en route. There were no cellular phones at the time, so we only learned of the cancellation upon our arrival at the courthouse. While there, though, we took advantage of the opportunity to get a demonstration of the new, no-light camera equipment which was being proposed for use in Florida’s courtrooms.
Alan and I returned to Tallahassee with no information about the conduct of a televised trial, or the effects of electronic media coverage on the participants and the process. While driving back on I-10, Alan and I discussed the futility of ever obtaining the consent of all trial participants.
On return to the court we gave our colleagues a two-part report. We duly reported that the so-called “state of the art” television equipment did seem able to overcome the problems and concerns which led the American Bar Association to adopt its universally accepted camera ban. We also told our colleagues of our conclusion that a consensual experimental trial would likely never take place, and we proposed open, nonconsensual media access to all of Florida’s courts for a prescribed period of time long enough to obtain meaningful information from the participants.
On the basis of our report and recommendation, and with Alan’s and my fingers crossed, the justices opened the doors of Florida’s courtrooms to cameras for an experimental period of one year without requiring participants’ consent, subject only to approved equipment standards and reasonable orders and direction from the presiding judge. Happily, the experimental year progressed without any major incident.
Following the experimental year, the court examined the effects of the presence of electronic media in the Florida courts on the basis of a survey of more than 2,750 judges, attorneys, court attachés, jurors, and witnesses who had participated in open media court proceedings. The results were predominantly positive. On the basis of that survey, the Florida Supreme Court adopted the Post-Newsweek decision and opened the doors of all Florida’s courts to the electronic media without any requirement for consent from the participating judges, attorneys, witnesses, or jurors. It is interesting to consider two facts which led to that moment in history.
The first is the effect of technology, and the absence of even newer technology, on the adoption of Florida’s cameras program. New camera technology in 1975 made it possible for cameras to overcome the problems which led to the ABA’s camera ban, but Alan and I would not have seen a demonstration of that equipment in Jacksonville if cellular telephones had been in existence then. One can only speculate whether the court would have tried an experimental open year if all-participant consent remained out of reach, so that no one on the court had the opportunity to view no-light camera technology in a circuit court setting.
Second, the long drive back to Tallahassee following the failed trial with cameras in Jacksonville was unquestionably instrumental in the court’s adoption of the no-consent experimental year. As is so often the case, failure proves to be a driving factor in the success of anything worthwhile.
Cameras in the courtroom: Looking back over 30 years
By Chief Justice Peggy A. Quince
With remarkable wisdom, foresight, and courage, the Florida Supreme Court opened our state’s courtrooms to cameras and other electronic media 30 years ago this month. In one sense, that decision is honored every single day our courts are physically open as journalists in one part of Florida or another bring images and sounds of the work of real justice to the general public. Still, it is very appropriate that we pause and reflect on the anniversary of the decision handed down in the spring of 1979.
As a member of the Supreme Court, I feel a deep sense of pride in and gratitude for the 1979 case In re Petition of Post-Newsweek Stations, Florida, Inc. I know those feelings are shared by our entire court system. My appreciation of the wisdom and courage displayed by my predecessors on this Supreme Court is deepened every time I see a headline from another state about the struggle over a ban on cameras in their courtrooms and when I read about the fear in those states about how judges, lawyers, witnesses, victims, and jurors would be affected by cameras.
Like Florida, many states now allow cameras in the courtrooms. But that certainly wasn’t the case 30 years ago. When the Florida Supreme Court acted, it was breaking new ground. At the same time, its unanimous decision was calm, thoughtful, and honored our state’s legacy of open government:
“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 promoting our conclusion is this state’s commitment to open government.”
Justice Alan Sundberg and his fellow justices have been proven right time and time again — and the entire world was witness to this fact in November 2000, when Florida found itself in the center of a legal whirlwind for several intense and dramatic weeks after the presidential election. As hordes of journalists converged on Tallahassee, they covered protests and press conferences — and court proceedings, including two oral arguments at the Florida Supreme Court. The whole world watched those court proceedings, thanks to Florida’s policy on cameras in the courtroom adopted nearly three decades ago.
When the court issued Post-Newsweek Stations on April 12, 1979, it was bucking the conventional wisdom that had barred cameras from courtrooms across the country for more than 40 years. The court, however, was not acting rashly. A few years earlier, it had set up an experiment to allow cameras in courtrooms, with the consent of the parties.
No one agreed.
The court persevered. It dropped the requirement that the parties and judge consent to the presence of cameras. It spelled out the rules that journalists had to follow and judges had to enforce. And then it opened the doors of Florida’s courtrooms. At the end of the year-long experiment, judges, jurors, witnesses, attorneys, and court personnel all reported that cameras did not disrupt or corrupt what happened in the courtroom.
With that feedback, the Florida Supreme Court forged ahead and created what I would argue was and is the nation’s broadest rule allowing cameras into courtrooms. With the exception of certain categories of cases, such as juvenile proceedings, cameras are permitted. Judges can exclude or limit them only if one of the parties demonstrates that the cameras will cause harm. But the standard for demonstrating such harm is high, and lawyers for the media must have an opportunity to be heard in opposition.
Fast-forward to November 2000: The protests and the press conferences that were covered here in Tallahassee often seemed to be marked by noise and confusion and uncertainty. But when people tuned into the two oral arguments at the Florida Supreme Court, they saw something different. They saw calm, orderly, and dignified proceedings in a courtroom where the focus of every lawyer and every justice was squarely on the legal issues at hand.
We can and should take pride in those proceedings — pride, of course, because the proceedings were properly conducted and properly focused — but pride also because those proceedings were open, literally, to all. That’s a good thing, a very good thing — for the people across our world who were intensely interested in what was happening, for the reputation of the judiciary, and for public confidence in our democracy.
Arguments against cameras have proven to be wrong
By Joseph W. Hatchett
Former Justice of the Florida Supreme Court
Cameras in courtrooms impose irreparable harm upon a citizen’s right to a fair and impartial trial; they intimidate civil defendants; they create security and privacy concerns; and they create spectacles like the 1935 Lindbergh baby kidnapping trial, or the 1954 Dr. Sam Sheppard case, or the O.J. Simpson trial. Consequently, having cameras in courtrooms is contrary to the interest of justice. These concerns, or others very much like them, were voiced 30 years ago when the Florida Supreme Court first considered the issue of cameras in its courts. The same kinds of concerns are being expressed today on the issue of having cameras in federal courts, in spite of Florida’s success with cameras for 30 years and the successes experienced in the courtrooms of numerous other states.
Those opposing cameras in the federal courtrooms argue that cameras negatively impact the trial process, causing changes in witness demeanor and impacting adversely on the deliberations of juries. Opponents also argue that cameras in federal courtrooms could create security concerns, including threats to judges and placing courthouses at greater risk from terrorists.
Privacy is destroyed, say the opponents, because cases often relate to individuals who are not parties, and those persons’ personal facts, including medical and financial information, may be disclosed to hundreds of people outside the courtroom.
As Florida celebrates 30 years of informing citizens of what occurs in its courtrooms, all of the arguments against cameras in courtrooms have proved to be wrong. No serious problems have arisen because of cameras in Florida courtrooms. Not one problem!
The subject of cameras in Florida courtrooms arose in 1975 when Post-Newsweek stations filed a petition to amend Florida Canon 3A(7) of the Code of Judicial Conduct. In April 1975, rulemaking proceedings were instituted, and in January 1976, the Florida Supreme Court ordered an experimental program.
Simultaneously with Florida’s experiment, other state court systems were instituting the same types of experiments. Therefore, in 1978, the Conference of State Chief Judges voted to allow the highest court of a state to promulgate guidelines for the use of cameras in the state’s courtrooms. So, the nation was beginning to explore the educational value of cameras in courtrooms.
At the end of the Florida experiment, with no serious problems having developed during the final phase, and after comment by all interested parties, the Florida Supreme Court, on April 12, 1979, allowed cameras in Florida courtrooms in an opinion reported as Petition of Post-Newsweek Stations, Florida, Inc., 370 So. 2d 764 (Fla. 1979).
An ABA poll recently showed that less than 60 percent of Americans polled could identify the three branches of government and less than 60 percent understood the concepts of separation of powers and checks and balances. Likewise, a poll The Florida Bar conducted in December 2005 showed that most Americans had no knowledge of the court system, except what they had learned in high school in a single course. That is bad!
Cameras in Florida’s courtrooms have served well in educating Floridians and all Americans about the courts and the judiciary’s relationship to the executive and legislative branches. That is good!
Cameras in Florida courtrooms have been so beneficial that many suggest that the federal court system must now follow the Florida example. Because of the federal ban on cameras in courtrooms, Americans did not see the Timothy McVeigh Oklahoma City bombing trial, although the proceedings were broadcast in a closed circuit system. How much better it would have been if the people of America could have seen the McVeigh case in the same way they viewed the most important presidential election case in the history of the country — the Bush and Gore case. Because the case arose in Florida, where cameras were in courtrooms, people worldwide were able to follow the issues, arguments, emergency motions, emergency appeals, and the decisions in numerous trial courts and appellate courts, including the Florida Supreme Court. Who won because cameras were in Florida courtrooms? The American people won.
Recently, a well-known judicial officer, when asked about cameras reporting court proceedings, remarked that having court proceedings reported through the use of a camera would probably “mis-educate” the American people because the cameras would only show a small portion of the proceedings. Evidently, this official believes that unless all portions of a legal proceeding are shown, citizens will not understand the issues involved and how those issues are resolved. This “mis-education” criticism has never been voiced regarding newspaper or radio reporting; therefore, it is difficult to take the remark seriously.
News summaries of court, legislative, and executive proceedings have always been thought sufficient to keep the public informed. Adding pictures to events as they occur cannot subtract from the educational process. Having pictures of important activities, especially after historic events, is priceless.
Proudly, Florida celebrates 30 years of cameras in courtrooms because cameras make better citizens knowledgeable and able to participate in bringing needed changes to courts and to the justice system.
A journalist’s perspective on Florida’s camera rule
By Martin Dyckman
Special to the News
In Atlanta recently, three ex-cops were sentenced to prison for terms of five to 10 years for trying to cover up a bad drug raid that cost the life of the innocent, 92-year-old woman whom they shot to death while she was defending her home. After finding no narcotics to justify their no-knock search warrant, they planted their own. The judge and prosecutors cited an FBI report that narcotics officers had feared for their jobs if they failed to meet quotas of nine arrests and two search warrants each month. They felt themselves under pressures to act on bogus tips and to tell lies.
This was strong stuff, a serious indictment of an agency to which the people of Atlanta had entrusted their lives. They should have been able to see and hear it for themselves and to witness the measure of justice that was done. But because it was a federal court proceeding, they had access only to what the local newspaper had space to print and they had to see it through the eyes of the reporters rather than through their own.
Thirty years after the Florida Supreme Court adopted one of the nation’s most expansive rules on cameras in the courtroom, most states allow at least some access in all courts. The federal system remains in another world. Apart from two circuits that permit camera coverage of their own appellate arguments, the United States courts are as remote to the American public as those in Britain, France, or Moscow. When the Florida Supreme Court heard Gore v. Bush, a chapter in one of the most fateful proceedings in our history, the people were witnesses. When the case became Bush v. Gore, the people were shut out.
Justice Alan Sundberg’s opinion of April 12, 1979, in the Post-Newsweek case, which established Florida’s present rule, reminds us not only of how much he is missed but of the simple verities he expressed:
“We have no need to hide our bench and bar under a bushel. Ventilating the judicial process, we submit, will enhance the image of the Florida bench and bar and thereby elevate public confidence in the system....
“We are not unmindful of the perceived risks articulated by the opponents of change. However, there are risks in any system of free and open government. A democratic system of government is not the safest form of government, it is just the best man has devised to date, and it works best when its citizens are informed about its workings.”
Sundberg’s opinion noted that electronic technology can be used in the courtroom unobtrusively and with minimal effect, if any, on the conduct of those lawyers, witnesses, and judges who are even aware that they are on camera. This is demonstrated at every oral argument of the Florida Supreme Court itself.
One barely notices the lenses.
The same central objection — that electronic media would encourage grandstanding — had already been refuted by Today in the Legislature. As Allen Morris, clerk of the Florida House, remarked in 1977, television had “subtly altered the legislative process for the better.” Members no longer tried to “mumble” bills through. They knew they had to explain them to the satisfaction of their constituents, as well as of their colleagues in the chamber.
But in Washington, the paradox persists. The nation watches and listens as Supreme Court nominees ambiguously promise the Senate that they will respect stare decisis and keep open minds. Once they are in their temple, however, only the print journalists are witnesses to whether their honors keep their word.
Justice David Souter came close, I think, to revealing the real reason in his famous statement, “The day you see a camera come into my courtroom, it’s going to roll over my dead body.” In his view, it’s his courtroom, not ours. With all respect to Justice Souter, whom I admire, it’s our courtroom, not his.
Martin Dyckman, a retired associate editor of the St. Petersburg Times, is author of A Most Disorderly Court: Scandal and Reform in the Florida Judiciary, published by the University Press of Florida.