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September 19, 1984

GENERAL WILLIAM C. WESTMORELAND, Plaintiff, against CBS INC., et al., Defendants.

The opinion of the court was delivered by: LEVAL



 Cable News Network (CNN) petitions for permission to record and distribute live comprehensive televised coverage of this trial. The petition recognizes that the introduction of cameras and recording equipment into a federal court proceeding is contrary to Canon 3A(7) of the Code of Judicial Conduct for the United States Courts and local General Rule 7 of this Court. The petition requests an experimental exception for this case for the purposes (1) of demonstrating to the federal courts that such use of cameras will not impair or diminish the integrity and effectiveness of a judicial proceeding and (2) of distributing (on a pooled basis) comprehensive coverage of a trial that raises profoundly important questions concerning this country's conduct of the war in Vietnam and the privileges, ethical responsibilities and liabilities of the press. All parties to the case support the application.

 My training in the long accepted tradition that banished the camera from the federal courtroom produced an instinctive negative reaction. I have been taught to assume that cameras would turn trials into vaudeville. A more careful reading of the petition, however, reveals a powerful argument.

 There was a time when the blanket exclusion of the camera from the courtroom was understandable and appropriate. Equipment was cumbersome and noisy. Filmcould not function indoors without either the popping of flash bulbs or glaring stage lights. Television was a novelty, and no doubt justified, to conclude that the instrusion of the camera would disrupt and pervert the orderly conduct of the serious business of courts. Today, much has changed. Cameras are small, noiseless and equipped with distance lenses. Modern technology has made film that is sensitive to ordinary indoor light, and sound recording is similarly advanced. It appears that filming can be done without the slightest obstruction of dignified, orderly court procedure.

 Although in 1965 the Supreme Court concluded that television coverage of a criminal proceeding was incompatible with due process, Estes v. Texas, 381 U.S. 532, 14 L. Ed. 2d 543, 85 S. Ct. 1628, Justice Harlan opined that "the day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process." 381 U.S. at 595.

 History has shown that Justice Harlan wrote these words with characteristic foresight. More and more states gradually adopted rules permitting telecasting of court proceedings. In 1981 the Supreme Court ruled in Chandler v. Florida, 449 U.S. 560, 66 L. Ed. 2d 740, 101 S. Ct. 802, that absent a showing of prejudice, the telecasting of a criminal proceeding did not infringe constitutional rights.

 Since Chandler, thetrend toward opening courtrooms to cameras and telecasting has accelerated. It appears from CNN's petition that 41 of the 50 states now permit live filmed coverage of court proceedings, generally under rules designed to insure that fair and orderly administration of justice is not impaired. The Code of Judicial Conduct governing the federal courts, however, has made no concession.

 On consideration of this petition, I have come to question the wisdom of the categorical ban imposed by our code.

 1.The experience of a multitude of states has shown that under appropriate rules preserving the court's control over the use of cameras, live filming and telecasting need not interfere in any degree with fair and orderly administration of justice. A single, silent, fixed-location camera is no more intrusive than the familiar phenomena of courtroom artists working on their sketches and notetaking reporters making entrances and hasty exits to phone in their stories on deadline.

 2. I need not consider here whether there may be instances in which live telecasting might create pressures capable of prejudicing the outcome of a trial. Assuming for argument that this is a reasonable, if rare, possibility, it is sufficient answer for cases presenting such dangers to be dealt with as they arise. As the Supreme Court noted in Chandler, supra at 574-75, the possible importance of excluding cameras from some cases is not a reason to exclude them from all cases.

 Here all parties wish the proceedings to be telecast. It is certainly not to protect them that cameras are excluded.

 3. Chandler and the experience of 41 states has laid to rest the question whether, in the absence of prejudice, telecasting offends the Constitution. I would venture that the question courts will find more troublesome in the future is whether the mandatory exclusion of the camera violates the litigant's (and perhaps the public's) right to a public trial. But see United States v. Hastings, 695 F.2d 1278 (11th Cir. 1983). The Supreme Court has recently reaffirmed the importance of the constitutional principles requiring court proceedings to be held in public view, absent the most compelling reasons to the contrary. See Waller v. Georgia, 467 U.S. 39, 52 U.S.L.W. 4618, 81 L. Ed. 2d 31, 104 S. Ct. 2210 (May 21, 1984) (Sixth Amendment right to public trial encompasses suppression hearing); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 52 U.S.L.W. 4113, 78 L. Ed. 2d 629, 104 S. Ct. 819 (Jan. 18, 1984) (voir dire examination of potential jurors covered by guarantees of public trial); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982) (state statute cannot exclude press and public from testimony of minor victim of sex crimes without case-by-case determination that compelling interests of the state require exclusion). The question then arises whether good reasons must also be found for restricting the means of public access and the types of media coverage -- especially where the restriction effectively precludes the public at large from gaining any meaningful acquaintance with the conduct of court business.

 I would think it a strong argument on the part of a litigant -- especially in the type of case that arouses strong public interest -- that he depends on the monitoring presence of the camera to insure that witnesses tell the truth and that the court does not influence the jury by gesture, expression and tone. See Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 383, 61 L. Ed. 2d 608, 99 S. Ct. 2898 (1979) (openness in court ...

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