Reporters have always been able to take their pens, pencils and notebooks with them into the courtroom to assist them in covering proceedings. As technology advanced, reporters made use of new tools such as still cameras, movie cameras and radio microphones to cover trials. In 1925, the trial of Tennessee school teacher John Scopes for teaching evolution was broadcast live on radio by WGN in Chicago.[96] Also, the notorious murder trial of Nathan Leopold Jr. and Richard Loeb was covered by still and motion picture cameras located in the courtroom.[97] Beginning in 1935, however, in the wake of the extensive media coverage surrounding the trial of Bruno Hauptmann for the kidnapping and murder of Charles Lindbergh’s baby, reporters’ ability to use cameras to cover court proceedings began to be restricted.[98] The American Bar Association recommended, and many states adopted, rules restricting the use of television cameras, still cameras and broadcast recorders and microphones in courtrooms.[99]
In 1965, the U.S. Supreme Court held that Texas financier Billy Sol Estes had been denied his right to a fair trial because the court proceedings were televised.[100] According to news reports, the Estes courtroom was cluttered with cameras, cables, wires and microphones. Legal scholars debated the scope of the Supreme Court’s opinion. Some contended the Court had ruled that the mere presence in the courtroom of broadcast cameras and equipment automatically amounted to a denial of due process of law to a criminal defendant. Others, including some members of the Court, suggested that the requirements of due process might not be offended if technology made cameras less obtrusive. Justice Tom Clark wrote, “When the advances in these arts permit reporting by the printed press or by television without their present hazards to a fair trial, we will have another case.”[101] The legal debate continued for years, during which broadcast reporters and newspaper photographers were generally unable to use cameras, microphones and recorders to cover court proceedings.
North Carolina first adopted a ban on television cameras, still cameras and broadcast microphones and recorders in 1970.[102] In 1973 the Code of Judicial Conduct adopted by the N.C. Supreme Court also contained a prohibition against judges allowing television, radio and still photographic coverage of court proceedings.[103]
In 1981 the “other” case that Justice Clark had referred to 16 years earlier found its way to the U.S. Supreme Court. It began when Florida adopted rules to allow a pilot program to evaluate television coverage of court proceedings. Two men charged with burglary appealed their convictions, asserting that television coverage of their trial had denied them a fair and impartial trial. In Chandler v. Florida,[104] the U.S. Supreme Court unanimously affirmed their convictions. Rejecting the defendants’ argument that televising a criminal trial inherently denies the defendant due process, the Court said that “no one has been able to present empirical data sufficient to establish that the mere presence of the broadcast news media inherently has an adverse effect on [the judicial process].”[105] The Court was careful to note, as had Justice Clark in Estes in 1965, that if circumstances changed in the future, the legal rule might change as well.
After Chandler many states, including North Carolina, began to adopt rules allowing radio, television and still photographic coverage of court proceedings.[106] Some states permit coverage of appellate proceedings only or limit trial coverage to civil cases. Others permit coverage of both criminal and civil trials and appeals.
N.C. courts. In 1987, in response to petitions from the North Carolina Association of Broadcasters, the Radio Television Digital News Association of the Carolinas and the North Carolina Press Association,[107] the N.C. Supreme Court adopted experimental rules designed to permit electronic coverage of court proceedings in trial and appellate courts. The state Supreme Court extended and modified the experimental rules between 1982 and 1988. Finally, on June 25, 1990, the N.C. Supreme Court adopted permanent rules allowing cameras in the courtroom—Rule 15 of the General Rules of Practice for the Superior and District courts. In recognition of this fact, Cannon 3A(7) of the North Carolina Code of Judicial Conduct was amended to state:
A Judge should exercise discretion with regard to permitting broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during civil or criminal sessions of court or recesses between sessions, pursuant to the provisions of Rule 15 of the General Rules of Practice for the Superior and District Courts.
From the perspective of the news media and the public, North Carolina court proceedings are now presumptively open to broadcast and still photographic coverage. To be sure, a judge may exercise his or her discretion to forbid such coverage for any reason. But in light of Rule 15’s statement that “Electronic media and still Photographic coverage of public judicial proceedings shall be allowed in the appellate and trial courts of this state . . . ,”[108] it is reasonable to infer that the burden should be on the party proposing that a judge exercise his discretion to prohibit such coverage to demonstrate why such an action should be taken.
Under the current North Carolina rules, reporters must simply exercise good judgment and common sense in securing prior permission of the court for television, radio or still photographic coverage. Pooling of resources is required to minimize the number of cameras and microphones.[109] The state’s media trade associations are responsible for appointing coverage coordinators in all of North Carolina’s 100 counties to assist in arranging for photographic or electronic coverage.[110] Thus, the reporter’s first contact should be the coordinator assigned to the county in which the case is located. A reporter can get a list of coordinators from the NCAB or NCPA.
Under the rules, coverage of certain types of cases and proceedings is prohibited. Proceedings involving adoptions, juveniles, probable cause determinations, child custody, divorce, temporary and permanent alimony, motions to suppress evidence, trade secrets, in camera presentations and proceedings before magistrates and clerks of court may not be covered.[111] In addition, the rules forbid coverage of jurors and the following types of witnesses: police informants, minors, undercover agents, relocated persons, and victims and families of victims of sex crimes.[112]
All reporters should familiarize themselves with the rules because violations are punishable as contempt of court. Also, reporters and camera crews should lay competitive concerns aside to ensure that judges are not called upon to arbitrate disputes between reporters or competing newspapers or stations. Rule 15 is reprinted at the end of this chapter.
Federal courts. The rules permitting the use of cameras in North Carolina’s state courts have no parallel in the federal courts. Broadcast coverage of federal court proceedings has long been forbidden by Canon 3A(7) of the Code of Judicial Conduct for the United States Courts, by Rule 53 of the Federal Rules of Criminal Procedure and by the local rules of most federal courts.
In 1990, the Judicial Conference of the United States voted to suspend Canon 3A(7) to permit a three-year experimental program to allow television, radio and still photographic coverage of civil cases in a select handful of federal courts.[113] At the conclusion of the three-year experiment, the Judicial Conference voted to refuse camera access to federal trials. However, the Judicial Conference did vote to allow individual federal courts of appeals to determine, in civil cases, whether they would permit cameras in the courtroom.
In recent years, the Congress has considered several bills that would allow federal judges the option of allowing cameras and microphones in federal district courts.[114] In 2010, for example, a bill that would generally allow electronic media coverage of U.S. Supreme Court proceedings passed the Senate Judiciary Committee. The bill has not yet been adopted, however.
Also in 2010, the Judicial Conference authorized another three-year pilot project to evaluate the effect of cameras in district court courtrooms, video recordings of proceedings, and publication of such video recordings. The pilot is limited to civil cases, and camera access requires approval from the presiding judge and consent by the parties to the case. Unless the presiding judge decides not to make the recordings publicly available, they will subsequently be posted on www.uscourts.gov. The pilot program, which began in June 2011, involves only 14 federal courts, none of which is located in North Carolina.[115]
Accordingly, at this time, broadcast coverage of trials is forbidden in federal courts in North Carolina. At the appellate level, the Fourth Circuit has generally refused all requests by the news media to use cameras and other recording devices in the courtroom (other than for ceremonial purposes). The U.S. Supreme Court has taken a similarly dim view of televising proceedings in that court, and there is no indication that this view will change anytime soon. The Court has, however, taken steps to make oral argument transcripts available the same day as the argument on the Court’s website (http://www.supremecourt.gov/default.aspx) and has agreed to allow audio recordings of oral arguments in certain cases to be released soon after the argument.
[96] See Alan Wurtzel, Free Press/Fair Trial: Broadcast Access to Courtroom Proceedings 3 (1978).
[97] See Richard B. Kielbowicz, The Story Behind the Adoption of the Ban on Courtroom Cameras, 63 Judicature 14 (June/July 1979).
[98] See State v. Hauptmann, 115 N.J.L 412, cert. denied, 296 U.S. 649 (1935).
[99] See Albert E. Blashfield, The Case of the Controversial Canon, 48 A.B.A.J. 429, 430 (1962); Estes v. Texas, 381 U.S. 532, 595-96 (1965) (Harlan, J., concurring).
[100] See Estes, 381 U.S. at 578.
[101] Id. at 540.
[102] General Rules of Practice 15.
[103] Code of Judicial Conduct, Canon 3A(7).
[104] 449 U.S. 560 (1981).
[105] Id. at 561.
[106] A number of lower courts have resolved the question of whether there is a constitutional right of broadcast and photographic access to courtrooms adversely to the media. See, e.g., Conway v. United States, 852 F.2d 187 (6th Cir. 1988); United States v. Edwards, 785 F.2d 1293 (5th Cir. 1986); United States v. Kerly, 753 F.2d 617 (7th Cir. 1985); Westmoreland v. CBS, Inc., 752 F.2d 16, 24 (2d Cir. 1984), cert. denied, 472 U.S. 1017 (1985); United States v. Hastings, 695 F.2d 1278 (11th Cir.), cert denied, sub nom. Post-Newsweek Stations Florida, Inc. v. United States, 461 U.S. 931 (1983); Combined Commc'ns Corp. v. Finesilver, 672 F.2d 818 (10th Cir. 1982); Mazzetti v. United States, 518 F.2d 781 (10th Cir. 1975); United States v. Yonkers, 10 Media L. Rep (BNA) 2188 (S.D.N.Y. 1984). However, the U.S. Supreme Court has yet to squarely address the issue of whether the First Amendment right of access to judicial proceedings requires that cameras be permitted in court. But cf. Estes v. Texas, 381 U.S. at 588 (Harlan, J., concurring) (dicta suggesting no such right); Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 610-11 (1978) (dicta to the effect that there is no constitutional right to have testimony recorded and broadcast).
[107] NCAB is a trade association of radio and television stations in North Carolina. RTDNAC is a trade association of news directors employed at such stations. NCPA is a trade association of newspapers published in North Carolina.
[108] See General Rules of Practice 15(b) (2011).
[109] See id. Rule 15(e).
[110] See id. Rule 15(d).
[111] See id. Rule 15(b)(2).
[112] See id. Rule 15(b)(3).
[113] See, e.g., Harvey L. Zuckman, et. al., Modern Communications Law 150-52 (1999).
[114] See, e.g., Federal Courts Improvement Act of 2000, H.R. 1752, 106th Cong.
[115]See History of Cameras in the Federal Courts, available at http://www.uscourts.gov/Multimedia/Cameras/history.aspx.
