No Cameras in the Courtroom for Trump Trial Is A Travesty

Practical Experience of Cameras in Courts Has Clearly Negated Validity of Contentions Against Access

Most of us agree with the vast majority of media laws, and in those cases where we disagree with some of the particulars, we still tend to understand their justification and rationale. But one area where media law seems inane is in not allowing tv cameras in the courts.

It’s hard to come up with any sensible reason why cameras shouldn’t be allowed in the courts of New York state, the so-called “media capital of the world,” which remains one of only two states to have such a thoughtless blanket rule. And it’s even harder to justify why possibly the most important and long-awaited trial in our history, the trial of Donald Trump for trying to rig a presidential election so that he could remain in office despite the result of a fair election, will not be televised and will be kept from the many millions of Americans who so keenly would like to watch it firsthand.

So having a zoom call on this issue seemed appropriate even though many of us already know the issue and arguments very well. But then I realized that 2024 marked the 30^th anniversary of the OJ Simpson murder trial which began in November of that year, spanned 11 months, and had an outsized influence on televised access to the courts ever since. Indeed, over those 30 years, it’s been rare to have any conversation with a judge, legislator or even other lawyer about cameras without that person’s rebuttal of, “But in the OJ case…”

That anniversary somehow made a zoom on cameras more fitting, and we therefore scheduled a session and invited speakers. But then, to make it even more timely, on April 10, OJ died. Obituaries and articles ensued, and many of them included paragraphs about his televised trial and its ramifications. With these timely hooks, we had a sizeable audience for the call which included Kelli Sager, who represented the national media coalition on access and tv matters before Judge Ito in the OJ case, Dan Novack, who has been working on legislation which would change New York’s antiquated rule, Chad Bowman, who briefed the motion seeking television access in the Trump January 6^th case, and Leita Walker, who led the way arguing for the televised trial of Derek Chauvin for murdering George Floyd in Minneapolis.

The reason why at first blush this does not seem like a great topic for discussion is that there is no reasoned argument against cameras, notwithstanding the rules in New York and the Federal Courts which are the basis for the outlier situations of the Trump trials and the anachronistic New York rule. But the practical experience of cameras in trials in most states and in trial after trial around the country have clearly negated the validity of the well-worn contentions against camera access. As a general matter, in over 40 years of televised trials in many states, I know of not one result which was overturned because of the presence of cameras. Moreover, the more specific arguments against cameras which were repeated by camera opponents time and time again have been thoroughly debunked by the facts.

Thus, the first argument typically spouted by the opposition was and still is that judges and lawyers will behave differently if their trials are televised on tv. This has simply not been the case. This very speculative argument, which could at least have been hypothesized at the outset of the camera “experiment”, has been shown to be failing. Lawyers are so busy doing their jobs and trying to win their cases, they barely know the cameras are there, let alone change what they say or how they perform because of it. According to surveys the only influence of cameras on judges is that their presence on some occasions makes them more alert and diligent – hardly a grounded point against television access. And if in the 1970’s the argument might have been made that all the camera equipment in the courtroom would somehow interfere with the proceedings and make everyone aware of the cameras every moment, technology has improved to the extent that the cameras and equipment necessary are well-neigh invisible.

Technology has destroyed other arguments as well. When I served on a New York state committee to evaluate two year camera “experiments” in New York, a prime argument of the criminal defense bar, which was the main opposition, was the so-called “snippet” issue. Thus, while camera proponents argued that camera access was important because it educated the public about the way the courts worked and the administration of justice, and sometimes even substantive knowledge about the subject of the trials (one of the first cases to be televised in New York was a spousal abuse trial), the tart rebuttal was that all the networks usually showed was a 30-second snippet on the 6 and 11 o’clock news, not gavel to gavel coverage; they argued such editing hardly educated anyone; it just showed the most sensational minute of the day. I remember answering that even the most spectacular portion of a day’s trial was slow, plodding, thorough and unsensational, and showed lawyers and jurists seriously and diligently doing their jobs. In any event, the snippet argument has been mooted by technology. Even if the networks don’t cover a trial gavel to gavel, it can easily be streamed such that anyone can watch the whole thing if she chooses to.

Another argument rebutted by our experience is that televised trials somehow sensationalize the whole event and show them to be tawdry spectacles rather than serious judicial proceedings. The OJ trial is often cited for that proposition. But that misjudges what the problem was with the OJ coverage. It was not televising the trial inside the courtroom. That went on as pretty much would have been the case without cameras – is there any reason Johnny Cochran wouldn’t have orchestrated the gloves don’t fit debacle if no cameras were present? What was tawdry was the lawyers’ bloviating on the courthouse steps every day when the trial was over, evaluating opposing witnesses and evidence against the ethical rules, and the selling of t-shirts and other paranaphalia, all of which did somewhat debase the proceedings. But as Kelli reminded us, all of that occurred outside the courtroom; and, indeed, even more emphasis would have been paid the out-of-court-proceedings if hours a day hadn’t been spent in the courtroom. And, by the way, C-Span’s coverage of Congress for decades now hasn’t been responsible for the lack of respect for that body. The Congressmen themselves have done that.

Another argument – not relevant or even extant 30  years ago – was also made on our zoom call, dealing with the relatively new phenomena of disinformation and deep fakes. As those intentional attempts to deceive become more prevalent, the best solution is to allow the public to watch the proceedings live and firsthand. The problem of getting an artificially altered account is removed if a national audience can watch the real thing. In a sense, this echoes the old argument that the problems of bias and reporters’ inaccuracies disappear if rather than get their secondhand accounts the public can see a trial firsthand. As disinformation becomes a bigger problem, live coverage becomes a stronger answer.

Finally, it should be pointed out that the pandemic has in a sense aided the situation. Leita Walker weighed in to say that in Minnesota camera access to the Chauvin trial was perhaps given because Covid made it impractical to allow the public into the courtroom, yet the judge felt that some public access needed to be given. Television was the easy answer. Many judges got more comfortable with cameras and zoom during the last few years, so one would hope the judiciary will be less opposed to camera access going forward even if a few members of the public who trudge down to the courthouse are again allowed to watch in the courtroom.

So with no ostensible argument against cameras, why will they still not be permitted in the Trump trial or in New York state. The answer is the historical anomaly of old legislation and rules which the regulators, for no good reason, don’t want to change. The Trump situation is the starkest and most telling, especially since he is on record as saying he would prefer his trials to be televised. Whether that’s because his ego demands he be on tv as much as possible notwithstanding most defendants abhor being shown as a criminal defendant or because he thinks he gains points and votes by appearing as a victim and it furthers his witch-hunt theme, one would think that where both sides are not against camera coverage, it would be a fait accompli. Mais non.

Rule 53 of the Federal Judicial Code of Conduct decrees that judges “must” forbid live televised or broadcast proceedings. This seems to be both the first and last word, especially since Chief Justice Roberts heads the body which could make amendments, and we know how the Supreme Court feels about cameras in their or any other courts. So, though the second most important Trump trial,  the Georgia election fixing trial, will be televised since it is in Georgia state court, it is the only one which the public will be able to see. (And, in large part, because of the shenanigans between the judge and a prosecutor, it is very unlikely to be tried before Election Day.)

The current New York Stormy Daniels/Trump hush money trial, which at least in my view is an awful opener for the quartet of Trump trials both because it doesn’t go to the heart of his attempts to rig the election and may well be the hardest for the prosecution to win, is not being televised because of the strict New York law. And the other two more important trials will be in Federal Court under Rule 53. The Florida trial, of course, deals with national security documents, an additional argument against public access. The media has made motions to allow cameras in the D.C. trial, which is the one that is of such public importance that it would seem to be almost required watching for a democratic citizenry. However, the judge for months has not ruled, the trial is being delayed because of the Supreme Court’s questionable views on the immunity issue, and, in any event, the judge would be hard-pressed to find a way around Rule 53.

It is simply an outrage that this trial – where the issue is if and how a sitting President tried to fix the result of a national election to keep himself in office despite the contrary vote of the electorate- will likely not be televised. There is simply no justification for such an outcome.

The New York situation is not much more sane. In the mid-1980’s the legislature allowed for a 2-year experimental period where trial judges had the discretion to allow television cameras in their courtrooms. (As a footnote, I argued New York’s first camera case in the Appellate Division, whether the murder trial of Robert Chambers, the “Central Park preppie sex killer”,  could be televised. I repped the New York media, and lost handily, largely because the first day that camera access was effective was some days into the trial, and the court felt that the procedures shouldn’t be changed during its pendency; that the trial would be mainly about sex didn’t help either; I did get a kind concurrence from a judge who had married me and my wife a few years earlier.)

After surveys, hearing, committee recommendations, etc, which all favored camera access, the experiment was renewed for 2 more years, and then twice more after that. But the legislature, for no seeming reason than to keep its power as a decider, never made camera access permanent. And then when it should, at least, have enacted a 5^th 2 year extension came OJ – and the legislature turned inextricably contra. Again it was hard to see why OJ so turned them off, but it did, and that was that. Some years later, the New York media tried again, but then ran into another roadblock. The New York Assembly speaker was Sheldon Silver, who ruled that body with an iron hand. ( When some of us went to Albany to lobby on this and other issues, the only question legislators would ask was “What does Shelly think?”) Silver, later found guilty and jailed on federal corruption charges, was against televised trials because of some incident he was involved with which he barely could explain, and didn’t really weigh against cameras, but he was agin it, and that killed cameras in New York for years, just as OJ had earlier. When he left Albany, his successor was similarly unfavorable, and although there was some hope earlier this term, we are fighting uphill odds again.  

Why we should be hitting these walls despite a history of thousands of trials being televised without a problem really is inexplicable. What the media can and should do is not let the issue die, but write and editorialize about it. I am confident public opinion is in our favor, so bringing public pressure and positive public opinion to the rulemakers should help. The media all too often doesn’t argue for itself in the media, but, at least in my view, this situation is so egregious, that this is one instance in which we really ought to do everything we can.