Cameras Might Alter Courtroom Behavior-Maybe That's the Point

• Author: Frank Lomonte
• Pages: 22-29

Published in Litigation, Volume 47, Number 3, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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Cameras Might Alter

Courtroom Behavior

Maybe That’s the Point

FRANK LOMONTE

The author is a professor and director at the Brechner Center of Freedom of Information at the

University of Florida College of Journalism and Communications, Gainesville.

In August 1953, the corruption indictment of a prominent local

probate judge was front-page news throughout the Cleveland

area. Lou Clifford, the city editor of the crusading Cleveland Press,

sent reporter Sam Giaimo and photographer Jim Thomas to the

Cuyahoga County courthouse with orders to come back with a

picture of the defrocked judge standing before the bench to face

arraignment.

The trial judge cautioned the assembled press corps that, in

keeping with the ABA canons of the day, no photography would

be permitted in the courtroom. Not to be denied, Clifford told

Giaimo and Thomas to defy the order and get the picture.

They did. At a price.

All three journalists were brought up on criminal contempt

charges. All three were fined. Clifford was briefly jailed.

They challenged the sanctions as contrary to the First

Amendment. A unanimous Ohio Supreme Court upheld the con-

tempt judgment. “A court in enforcing reasonable courtroom

decorum,” the Ohio justices wrote, “is preserving the consti-

tutional and unalienable right of a litigant to a fair trial, and

in preserving such right, the court does not interfere with the

freedom of the press.”

Essentially, as long as there has been photojournalism, there

has been tension between journalists and the judiciary over ac-

cess. While pencil-and-pad reporters have been largely accepted

as part of the courtroom furnishings for more than a century, the

attitude of bench and bar toward photo and video coverage has

ranged from grudging tolerance to outright hostility.

In the latter camp, Justice David Souter once told a Senate

hearing that Supreme Court arguments would be televised “over

my dead body.” David Souter may have left the building, but cam-

eras have yet to enter.

To large segments of the American public, the legal system is

a ponderous black box. Cases go in; decisions come out. What

happens in between is a mystery.

The most obvious remedy—televised proceedings—remains

the most elusive. While every one of the states’ highest appellate

courts allows the public to watch at least some oral arguments,

only two of the nation’s 12 federal geographic circuits do so, and

the Supreme Court seems no closer today than it was in 2007,

when Justice Anthony Kennedy told a congressional hearing

forebodingly that television would “alter the way in which we

hear our cases, the way in which we talk to counsel, the way in

which we talk to each other, the way in which we use that pre-

cious hour.”

Roots of the Resistance

The federal judiciary’s resistance to photo and video coverage

has deep roots. It goes back to sensational tabloid coverage of

cases such as the 1935 trial of Bruno Hauptmann, accused of