As I strode to the podium earlier this month to face the seven justices of the Minnesota Supreme Court, it occurred to me that my visage would be seen by anyone watching the proceedings livestreaming online. But that wouldn’t be so if the case were taking place before the counterpart U.S. Supreme Court, where I also have represented parties on occasion. There, a rule promulgated by the justices themselves has long barred any audio or visual dissemination of the proceedings. It’s called the “No Cameras in the Courtroom” edict.
The proscription dates back decades, spurred by sensational trials of the 1920s and 1930s, when the new media of the day, primarily newspaper cameras and radio broadcasts, overran those proceedings, creating what was later termed by the High Court as a “circus atmosphere.” After the trial of Bruno Hauptmann, accused kidnapper of the infant of Minnesota-born Charles Lindbergh in 1935, the authorities began to crack down on visual or audio depictions of what was taking place in the courtrooms across America.
The American Bar Association issued guidelines curtailing audio-visual broadcast or film devices in courtrooms in the wake of the Hauptmann hoopla in 1937, and again in 1952. While lacking the force of law, the proscriptions were soon adopted by nearly all jurisdictions as a matter of custom, practice, or legal prohibitions, although some states allowed limited camera coverage.
The federal judiciary weighed in a few years later, forbidding cameras and their audio kin from federal criminal cases in 1946 and extended in 1972 to all federal court proceedings of any nature, including civil litigation. Minnesota fell in line, barring audio or visual coverage of all courtroom proceedings in both federal and civil tribunals.
The principal reasons for the proscriptions included the distasteful experience of the Hauptmann case and some other high-profile proceedings of that time period; the disruptive effect of cumbersome devices and their operators in courtrooms; potential prejudice to litigants, particularly criminal defendants; a potential deleterious effect on witnesses, jurors, and other participants; a tendency to focus on sensationalized cases; and the concern over showboating by publicity-seeking lawyers, among other matters.
Advocates for expanded access countered with the recognition that the awkward audio and video devices of the bygone days had been replaced by more streamlined, less intrusive mechanisms; the tools available to judges to control abuses; imperatives of transparency in publicly funded proceedings; the increasing number of media outlets, particularly cable TV stations; the watchdog role of the media; and, of course, First Amendment rights of the media on their own behalf and as surrogates for the public, coupled with the disparate treatment of traditional print media and more modern audio-visual modes.
The trumpeting for transparency was bolstered by a number of court rulings, especially those of the U.S. Supreme Court extolling the media and their virtues in covering courtroom proceedings, augmented by another constitutional provision, the guarantee in the Sixth Amendment of a criminal defendant’s right to a “public trial.” In the noteworthy 1979 case of Richmond Newspapers, Inc. v. Virginia, the High Court lauded the role of the media in reporting on courtroom proceedings. The decision authored by Chief Justice Warren Burger of Minnesota, no friend of the media, traced the history of public access to judicial proceedings, noting that because the “wide-spread pastime” of citizenry attending trials no longer exists, the media must be “functioning as a surrogate for the public” as well as to engender a “perception of fairness” in the judicial process.”
But other court rulings of the era gave conflicting signals. The famous Sam Sheppard case vaulted a young lawyer named F. Lee Bailey to prominence in 1966 in the overturning by the High Court of a capital spousal-murder conviction of a Cleveland osteopath. The ruling was notable for its excoriation of the media coverage of the case before and during the trial that created a “carnival atmosphere,” depriving Sheppard of a fair trial — an outcome that was reversed when he was acquitted in a more sedate re-trial.
The stage for that seminal ruling was set a year earlier In Estes v. Texas, when the High Court reversed another notorious conviction, this one of swindling by Billy Sol Estes, a Texas political operative and fixer for Lyndon B. Johnson, because of the prejudicial effect of the allowance of televised legal proceedings of the pre-trial that polluted the jury pool that later convicted the LBJ crony. In retrial, Estes was convicted again and imprisoned.
Faced with these conflicting threads, the appetite of the public for greater transparency, along with some less altruistic voyeurism, and the media’s technological advances making their presence less obtrusive, the citadel against cameras in the courtroom began crumbling. A number of states, first provisionally and then unconditionally, allowed audio-visual coverage of trials. They were spurred by a 1980 ruling of the High court in Chandler v. Florida permitting states to allow the live televising of criminal trials over the objection of the defendants. Places like Florida, Texas, and California were in the vanguard; others followed, including Wisconsin, Iowa, and North Dakota. But not Minnesota, which stood steadfast against the wave.
And then came O.J. The live televising of the double-murder criminal trial of football star O.J. Simpson in the mid-1990s made the reality of cameras in the courtroom beyond cavil.
While not without its excesses, the huge ratings and concomitant advertising revenues for the wall-to-wall coverage provided an opening to extend cameras in the courtrooms where they had been and bring them into venues where they had not. By the turn of the millennium, audio and visual coverage of trials, especially high-profile criminal cases, was inescapable, and the issue became more of what conditions would be imposed on their presence rather than whether they could be there at all.
But the Supreme Court and most federal courts, with rare exceptions at some mid-level appellate tribunals in selected cases, continued to adhere to the ban. A study commissioned in 1991 by Supreme Court Chief Justice William Rehnquist urged more liberalization, but it gathered more dust than developments. (The High Court does provide transcripts and audio recordings of its proceedings on a delayed recorded basis.)
Suggestions to enact legislation to provide contemporaneous coverage have languished, impeded in part by concerns that such directives might intrude upon the separation-of-powers doctrine.
Meanwhile, even Minnesota, long a holdout, has waded in with various experimental or “pilot” programs allowing cameras in courtrooms. But the requirement of multiple consents required to do so by all parties and the judges, who usually were opposed, left the “pilots” grounded in nearly all circumstances. Although audio-visual devices have been allowed in civil cases since 2011 if approved by the particular judge, regardless of objections from the litigants or their lawyers, their presence has been virtually nonexistent, largely because of the soporific nature of most of those cases.
But the media has persisted, despite attitudes ranging from skepticism to outright opposition by other stakeholders, including prosecutors, defense lawyers, and the judiciary. The pro cameras-in-courtrooms crowd has managed to achieve breakthroughs in Minnesota in several matters recently.
Last summer, the judicial system here made permanent a three-year experimental initiative allowing audio-visual coverage of criminal proceedings in the state’s trial courts. But the program is extremely limited, extending only to coverage after a guilty verdict or plea, which essentially restricts it to sentencing proceedings. The edict also prohibits cameras-in-the-courtroom in a number of sensitive matters, such as criminal sexual cases, family and domestic abuse hearings, substance abuse matters, witness testimony, and views of jurors.
The restrictions make the long-awaited lifting of the courtroom curtains anti-climatic and, in view of many transparency advocates, unacceptably narrow. Meanwhile, the amenability of audio-visual coverage upon consent of the participants, if approved by a judge, remains possible. But its implausibility was reflected in the homicide trial of Minneapolis police officer Mohamed Noor in Hennepin County last month. A request to allow cameras in that trial of enormous public interest and importance was rejected by the judge, Kathryn Quaintance, upon objections by both the prosecution and defense counsel. The judge had her own share of run-ins with the media before and during the trial and contretemps are continuing after the conviction as some media seek access to prosecutorial data not used at trial.
It seems likely that other cases that the media and public find of greatest interest, particularly criminal cases, will meet the same fate.
But the angst of advocates of open courtroom coverage may be dispelled a bit at the appellate level. The Minnesota Court of Appeals, the intermediate body in the state judicial system, allows audio and camera coverage of its proceedings.
The state Supreme Court adopted its own program of livestreaming its cases beginning in September 2017. It selected a good case to start with, the brouhaha over Gov. Mark Dayton’s veto of the budget of the Legislature, which the jurists in St. Paul ultimately upheld after a pair of hearings. Since then, all of its proceedings have been livestreamed. They can be viewed at www.mncourts.gov/SupremeCourt.
Which brings me back to my appearance there. It was a significant labor law case out of Brainerd, where the city in 2015 disbanded its long-time full-time fire department, replacing it with volunteer on-call personnel. The displaced firefighters, all members of a union, sued under the state Public Employees Labor Relations Act (PELRA), claiming that the action unlawfully interferes with the union’s existence. The trial judge in Crow Wing County dismissed the case, but his ruling was reversed and the lawsuit was reinstated by the Court of Appeals. That set the stage for the Supreme Court case.
A decision is expected sometime this summer. But those who want to watch the hearing can see it preserved in the livestream system. It may not be as compelling as a murder mystery, but its public accessibility does constitute a stride in the direction of transparency.
Marshall H. Tanick is a Twin Cities constitutional and employment law attorney and historian.
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