Petitioner had been indicted by a Texas county grand jury for
swindling. Massive pretrial publicity had given the case national
notoriety. On the trial date, following a change of venue, a
hearing commenced on petitioner's motion to prevent telecasting,
radio broadcasting, and news photography. The hearing, conducted in
the presence of some trial witnesses and veniremen later released,
was carried live on television and radio, and news photography was
permitted. The original jury panel, petitioner, counsel, and the
trial judge were highly publicized during the two days the pretrial
hearing lasted, emphasizing throughout the community the notorious
character that the trial would take. Four of the jurors selected
later at the trial had seen or heard all or part of the broadcasts.
The profusion of cameramen with their equipment in various parts of
the crowded courtroom caused considerable disruption. The trial
court denied petitioner's motion, but granted a continuance of
almost a month. During the interim, a booth was erected in the rear
of the courtroom to which television cameramen and equipment were
restricted. Live telecasting was prohibited during most of the
actual trial. The State's opening and closing arguments were
carried live with sound (though, because of mechanical difficulty,
there was no picture of the former), as were the return of the
jury's verdict and its receipt by the judge. The court's order
allowed videotapes without sound of the whole proceeding, and the
cameras operated intermittently during the three-day trial, which
ended with petitioner's conviction. Film clips of the trial were
shown, largely on regularly scheduled news programs. Both the trial
court and the appellate court rejected petitioner's claim of denial
of due process in violation of the Fourteenth Amendment by the
televising and broadcasting of the trial.
Held: The televising over petitioner's objections of
the courtroom proceedings of petitioner's criminal trial, in which
there was widespread public interest, was inherently invalid as
infringing the fundamental right to a fair trial guaranteed by the
Due Process Clause of the Fourteenth Amendment. Pp.
381 U. S.
536-552.
(a) The high degree of publicity given to the two-day hearing,
which could only have impressed those present and the community
Page 381 U. S. 533
at large with the notorious character of the petitioner and the
proceeding, made what occurred at the pretrial relevant to
determining whether petitioner was accorded due process at his
trial. Pp.
381 U. S.
536-537.
(b) The constitutional guarantee of a public trial is to ensure
that the accused is fairly dealt with, and not unjustly condemned.
Pp.
381 U. S.
538-539.
(c) The freedom granted to the press under the First Amendment
must be subject to the maintenance of absolute fairness in the
judicial process, and, in the present state of television
techniques such freedom does not confer the right to use equipment
in the courtroom which might jeopardize a fair trial, the
atmosphere for which must be preserved at all costs. Pp.
381 U. S.
539-540.
(d) The public's right to be informed about court proceedings is
satisfied if reporters are free to attend and to report on the
proceedings through their respective media. Pp.
381 U. S.
541-542.
(e) Where, as here, the procedure employed by the State involves
the probability that prejudice to the accused will result, that
procedure, in line with the principle established in such cases as
Rideau v. Louisiana, 373 U. S. 723,
will be deemed lacking in due process whether or not isolatable
prejudice can be demonstrated. Pp.
381 U. S.
542-544.
(f) There are numerous respects in which televising court
proceedings may alone, and in combination almost certainly will,
cause unfairness, such as: (1) improperly influencing jurors by
emphasizing the notoriety of the trial and affecting their
impartial judgment, distracting their attention, facilitating (in
States which do not sequester jurors) their viewing of selected
parts of the proceedings, and improperly influencing potential
jurors, and thus jeopardizing the fairness of new trials; (2)
impairing the testimony of witnesses, as by causing some to be
frightened and others to overstate their testimony, and generally
influencing the testimony of witnesses, thus frustrating invocation
of the "rule" against witnesses; (3) distracting judges generally
and exercising an adverse psychological effect, particularly upon
those who are elected; and (4) imposing pressures upon the
defendant and intruding into the confidential attorney-client
relationship. Pp.
381 U. S.
544-550.
(g) The foregoing factors are not merely "hypothetical," as is
evidenced by the bar on television in federal criminal trials
imposed by the Federal Rules of Criminal Procedure and by such a
bar in all but two States. P.
381 U. S.
550.
Page 381 U. S. 534
(h) Application of the rule of the
Rideau case, supra,
is clearly warranted by the facts of this case. Pp.
381 U. S.
550-552.
Reversed.
MR. JUSTICE CLARK delivered the opinion of the Court.
*
The question presented here is whether the petitioner, who
stands convicted in the District Court for the Seventh Judicial
District of Texas at Tyler for swindling, [
Footnote 1] was
Page 381 U. S. 535
deprived of his right under the Fourteenth Amendment to due
process by the televising and broadcasting of his trial. Both the
trial court and the Texas Court of Criminal Appeals found against
the petitioner. We hold to the contrary, and reverse his
conviction.
I
While petitioner recites his claim in the framework of Canon 35
of the Judicial Canons of the American Bar Association, he does not
contend that we should enshrine Canon 35 in the Fourteenth
Amendment, but only that the time-honored principles of a fair
trial were not followed in his case, and that he was thus convicted
without due process of law. Canon 35, of course, has of itself no
binding effect on the courts, but merely expresses the view of the
Association in opposition to the broadcasting, televising and
photographing of court proceedings. Likewise, Judicial Canon 28 of
the Integrated State Bar of Texas, 27 Tex.B.J. 102 (1964), which
leaves to the trial judge's sound discretion the telecasting and
photographing of court proceedings, is, of itself, not law. In
short, the question here is not the validity of either Canon 35 of
the American Bar Association or Canon 28 of the State Bar of Texas,
but only whether petitioner was tried in a manner which comports
with the due process requirement of the Fourteenth Amendment.
Petitioner's case was originally called for trial on September
24, 1962, in Smith County after a change of venue from Reeves
County, some 500 miles west. Massive pretrial publicity totaling 11
volumes of press clippings, which are on file with the Clerk, had
given it national notoriety. All available seats in the courtroom
were taken, and some 30 persons stood in the aisles. However at
that time, a defense motion to prevent telecasting, broadcasting by
radio, and news photography, and a defense motion for continuance
were presented, and, after a two-day hearing, the former was denied
and the latter granted.
Page 381 U. S. 536
These initial hearings were carried live by both radio and
television, and news photography was permitted throughout. The
videotapes of these hearings clearly illustrate that the picture
presented was not one of that judicial serenity and calm to which
petitioner was entitled.
Cf. Wood v. Georgia, 370 U.
S. 375,
370 U. S. 383
(1962);
Turner v. Louisiana, 379 U.
S. 466,
379 U. S. 472
(1965);
Cox v. Louisiana, 379 U.
S. 559,
379 U. S. 562
(1965). Indeed at least 12 cameramen were engaged in the courtroom
throughout the hearing taking motion and still pictures and
televising the proceedings. Cables and wires were snaked across the
courtroom floor, three microphones were on the judge's bench, and
others were beamed at the jury box and the counsel table. It is
conceded that the activities of the television crews and news
photographers led to considerable disruption of the hearings.
Moreover, veniremen had been summoned, and were present in the
courtroom during the entire hearing, but were later released after
petitioner's motion for continuance had been granted. The court
also had the names of the witnesses called; some answered, but the
absence of others led to a continuance of the case until October
22, 1962. It is contended that this two-day pretrial hearing cannot
be considered in determining the question before us. We cannot
agree. Pretrial can create a major problem for the defendant in a
criminal case. Indeed, it may be more harmful than publicity during
the trial, for it may well set the community opinion as to guilt or
innocence. Though the September hearings dealt with motions to
prohibit television coverage and to postpone the trial, they are
unquestionably relevant to the issue before us. All of this two-day
affair was highly publicized, and could only have impressed those
present, and also the community at large, with the notorious
character of the petitioner, as well as the proceeding. The trial
witnesses present at the hearing, as well as the original jury
panel, were undoubtedly
Page 381 U. S. 537
made aware of the peculiar public importance of the case by the
press and television coverage being provided and by the fact that
they themselves were televised live, and their pictures rebroadcast
on the evening show.
When the case was called for trial on October 22, the scene had
been altered. A booth had been constructed at the back of the
courtroom which was painted to blend with the permanent structure
of the room. It had an aperture to allow the lens of the cameras an
unrestricted view of the courtroom. All television cameras and
newsreel photographers were restricted to the area of the booth
when shooting film or telecasting.
Because of continual objection, the rules governing live
telecasting, as well as radio and still photos, were changed as the
exigencies of the situation seemed to require. As a result, live
telecasting was prohibited during a great portion of the actual
trial. Only the opening [
Footnote
2] and closing arguments of the State, the return of the jury's
verdict, and its receipt by the trial judge were carried live with
sound. Although the order allowed videotapes of the entire
proceeding without sound, the cameras operated only intermittently,
recording various portions of the trial for broadcast on regularly
scheduled newscasts later in the day and evening. At the request of
the petitioner, the trial judge prohibited coverage of any kind,
still or television, of the defense counsel during their summations
to the jury.
Because of the varying restrictions placed on sound and live
telecasting, the telecasts of the trial were confined largely to
film clips shown on the stations' regularly scheduled news
programs. The news commentators would use the film of a particular
part of the day's trial activities as a backdrop for their reports.
Their commentary
Page 381 U. S. 538
included excerpts from testimony and the usual reportorial
remarks. On one occasion, the videotapes of the September hearings
were rebroadcast in place of the "late movie."
II
In
Rideau v. Louisiana, 373 U.
S. 723 (1963), this Court constructed a rule that the
televising of a defendant in the act of confessing to a crime was
inherently invalid under the Due Process Clause of the Fourteenth
Amendment even without a showing of prejudice or a demonstration of
the nexus between the televised confession and the trial.
See
id. at
373 U. S. 729
(dissenting opinion of Clark, J.). Here, although there was nothing
so dramatic as a home-viewed confession, there had been a
bombardment of the community with the sights and sounds of a
two-day hearing during which the original jury panel, the
petitioner, the lawyers and the judge were highly publicized. The
petitioner was subjected to characterization and minute electronic
scrutiny to such an extent that at one point, the photographers
were found attempting to picture the page of the paper from which
he was reading while sitting at the counsel table. The two-day
hearing and the order permitting television at the actual trial
were widely known throughout the community. This emphasized the
notorious character that the trial would take, and, therefore, set
it apart in the public mind as an extraordinary case or, as Shaw
would say, something "not conventionally unconventional." When the
new jury was empaneled at the trial, four of the jurors selected
had seen and heard all or part of the broadcasts of the earlier
proceedings.
III
We start with the proposition that it is a "public trial" that
the Sixth Amendment guarantees to the "accused." The purpose of the
requirement of a public trial was to guarantee that the accused
would be fairly dealt with, and
Page 381 U. S. 539
not unjustly condemned. History had proven that secret tribunals
were effective instruments of oppression. As our Brother BLACK so
well said in
In re Oliver, 333 U.
S. 257 (1948):
"The traditional Anglo-American distrust for secret trials has
been variously ascribed to the notorious use of this practice by
the Spanish Inquisition, to the excesses of the English Court of
Star Chamber, and to the French monarchy's abuse of the
lettre
de cachet. . . . Whatever other benefits the guarantee to an
accused that his trial be conducted in public may confer upon our
society, the guarantee has always been recognized as a safeguard
against any attempt to employ our courts as instruments of
persecution."
At
333 U. S.
268-270. (Footnotes omitted.) It is said however, that
the freedoms granted in the First Amendment extend a right to the
news media to televise from the courtroom, and that to refuse to
honor this privilege is to discriminate between the newspapers and
television. This is a misconception of the rights of the press.
The free press has been a mighty catalyst in awakening public
interest in governmental affairs, exposing corruption among public
officers and employees and generally informing the citizenry of
public events and occurrences, including court proceedings. While
maximum freedom must be allowed the press in carrying on this
important function in a democratic society, its exercise must
necessarily be subject to the maintenance of absolute fairness in
the judicial process. While the state and federal courts have
differed over what spectators may be excluded from a criminal
trial, 6 Wigmore, Evidence ยง 1834 (3d ed. 1940), the
amici
curiae brief of the National Association of Broadcasters and
the Radio Television News Directors Association, says, as indeed it
must, that "neither of these two amendments [First and Sixth]
speaks of an unlimited
Page 381 U. S. 540
right of access to the courtroom on the part of the broadcasting
media. . . ." At 7. Moreover, they recognize that the "primary
concern of all must be the proper administration of justice"; that
"the life or liberty of any individual in this land should not be
put in jeopardy because of actions of any news media"; and that
"the due process requirements in both the Fifth and Fourteenth
Amendments and the provisions of the Sixth Amendment require a
procedure that will assure a fair trial. . . ."
At 3-4.
Nor can the courts be said to discriminate where they permit the
newspaper reporter access to the courtroom. The television and
radio reporter has the same privilege. All are entitled to the same
rights as the general public. The news reporter is not permitted to
bring his typewriter or printing press. When the advances in these
arts permit reporting by printing press or by television without
their present hazards to a fair trial, we will have another
case.
IV
Court proceedings are held for the solemn purpose of endeavoring
to ascertain the truth which is the
sine qua non of a fair
trial. Over the centuries, Anglo-American courts have devised
careful safeguards by rule and otherwise to protect and facilitate
the performance of this high function. As a result at this time,
those safeguards do not permit the televising and photographing of
a criminal trial save in two States, and there only under
restrictions. The federal courts prohibit it by specific rule. This
is weighty evidence that our concepts of a fair trial do not
tolerate such an indulgence. We have always held that the
atmosphere essential to the preservation of a fair trial -- the
most fundamental of all freedoms -- must be maintained at all
costs. Our approach has been through rules, contempt proceedings,
and reversal of convictions obtained under unfair conditions. Here,
the remedy is
Page 381 U. S. 541
clear and certain of application, and it is our duty to continue
to enforce the principles that, from time immemorial, have proven
efficacious and necessary to a fair trial.
V
The State contends that the televising of portions of a criminal
trial does not constitute a denial of due process. Its position is
that, because no prejudice has been shown by the petitioner as
resulting from the televising, it is permissible; that claims of
"distractions" during the trial due to the physical presence of
television are wholly unfounded; and that psychological
considerations are for psychologists, not courts, because they are
purely hypothetical. It argues further that the public has a right
to know what goes on in the courts; that the court has no power to
"suppress, edit, or censor events, which transpire in proceedings
before it," citing
Craig v. Harney, 331 U.
S. 367,
331 U. S. 374
(1947); and that the televising of criminal trials would be
enlightening to the public and would promote greater respect for
the courts.
At the outset, the notion should be dispelled that telecasting
is dangerous because it is new. It is true that our empirical
knowledge of its full effect on the public, the jury, or the
participants in a trial, including the judge, witnesses and
lawyers, is limited. However, the nub of the question is not its
newness, but, as MR. JUSTICE DOUGLAS says, "the insidious
influences which it puts to work in the administration of justice."
Douglas, The Public Trial and the Free Press, 33 Rocky Mt.L.Rev. 1
(1960). These influences will be detailed below, but, before
turning to them, the State's argument that the public has a right
to know what goes on in the courtroom should be dealt with.
It is true that the public has the right to be informed as to
what occurs in its courts, but reporters of all media, including
television, are always present if they wish to be,
Page 381 U. S. 542
and are plainly free to report whatever occurs in open court
through their respective media. This was settled in
Bridges v.
California, 314 U. S. 252
(1941), and
Pennekamp v. Florida, 328 U.
S. 331 (1946), which we reaffirm. These reportorial
privileges of the press were stated years ago:
"The law, however, favors publicity in legal proceedings, so far
as that object can be attained without injustice to the persons
immediately concerned. The public are permitted to attend nearly
all judicial inquiries, and there appears to be no sufficient
reason why they should not also be allowed to see in print the
reports of trials, if they can thus have them presented as fully as
they are exhibited in court, or at least all the material portion
of the proceedings impartially stated, so that one shall not, by
means of them, derive erroneous impressions which he would not have
been likely to receive from hearing the trial itself."
2 Cooley's Constitutional Limitations 931-932 (Carrington ed.
1927).
The State, however, says that the use of television in the
instant case was "without injustice to the person immediately
concerned," basing its position on the fact that the petitioner has
established no isolatable prejudice, and that this must be shown in
order to invalidate a conviction in these circumstances. The State
paints too broadly in this contention, for this Court itself has
found instances in which a showing of actual prejudice is not a
prerequisite to reversal. This is such a case. It is true that, in
most cases involving claims of due process deprivations, we require
a showing of identifiable prejudice to the accused. Nevertheless at
times, a procedure employed by the State involves such a
probability that prejudice will result that it is deemed inherently
lacking in due
Page 381 U. S. 543
process. Such a case was
In re Murchison, 349 U.
S. 133 (1955), where MR. JUSTICE BLACK for the Court
pointed up with his usual clarity and force:
"A fair trial in a fair tribunal is a basic requirement of due
process. Fairness, of course, requires an absence of actual bias in
the trial of cases. But our system of law has always endeavored to
prevent even the
probability of unfairness. . . . [T]o
perform its high function in the best way, 'justice must satisfy
the appearance of justice.'
Offutt v. United States,
348 U. S.
11,
348 U. S. 14."
At
349 U. S. 136.
(Emphasis supplied.) And, as Chief Justice Taft said in
Tumey
v. Ohio, 273 U. S. 510,
almost 30 years before:
"the requirement of due process of law in judicial procedure is
not satisfied by the argument that men of the highest honor and the
greatest self-sacrifice could carry it on without danger of
injustice. Every procedure which would offer a
possible
temptation to the average man . . . to forget the burden of proof
required to convict the defendant, or which might lead him not to
hold the balance nice, clear, and true between the state and the
accused denies the latter due process of law."
At
273 U. S. 532.
(Emphasis supplied.)
This rule was followed in
Rideau, supra, and in
Turner v. Louisiana, 379 U. S. 466
(1965). In each of these cases, the Court departed from the
approach it charted in
Stroble v. California, 343 U.
S. 181 (1952), and in
Irvin v. Dowd,
366 U. S. 717
(1961), where we made a careful examination of the facts in order
to determine whether prejudice resulted. In
Rideau and
Turner, the Court did not stop to consider the actual
effect of the practice, but struck down the conviction on the
ground that prejudice was inherent in it. Likewise, in
Gideon v.
Wainwright,
Page 381 U. S. 544
372 U. S. 335
(1963), and
White v. Maryland, 373 U. S.
59 (1963), we applied the same rule, although in
different contexts.
In this case, it is even clearer that such a rule must be
applied. In
Rideau, Irvin, and
Stroble, the
pretrial publicity occurred outside the courtroom, and could not be
effectively curtailed. The only recourse other than reversal was by
contempt proceedings. In
Turner, the probability of
prejudice was present through the use of deputy sheriffs, who were
also witnesses in the case, as shepherds for the jury. No prejudice
was shown, but the circumstances were held to be inherently
suspect, and therefore such a showing was not held to be a
requisite to reversal. Likewise, in this case, the application of
this principle is especially appropriate. Television, in its
present state and by its very nature, reaches into a variety of
areas in which it may cause prejudice to an accused. Still one
cannot put his finger on its specific mischief and prove with
particularity wherein he was prejudiced. This was found true in
Murchison, Tumey, Rideau, and
Turner. Such
untoward circumstances as were found in those cases are inherently
bad, and prejudice to the accused was presumed. Forty-eight of our
States and the Federal Rules have deemed the use of television
improper in the courtroom. This fact is most telling in buttressing
our conclusion that any change in procedure which would permit its
use would be inconsistent with our concepts of due process in this
field.
VI
As has been said, the chief function of our judicial machinery
is to ascertain the truth. The use of television, however, cannot
be said to contribute materially to this objective. Rather, its use
amounts to the injection of an irrelevant factor into court
proceedings. In addition, experience teaches that there are
numerous situations
Page 381 U. S. 545
in which it might cause actual unfairness -- some so subtle as
to defy detection by the accused or control by the judge. We
enumerate some in summary:
1. The potential impact of television on the jurors is perhaps
of the greatest significance. They are the nerve center of the
factfinding process. It is true that, in States like Texas, where
they are required to be sequestered in trials of this nature, the
jurors will probably not see any of the proceedings as televised
from the courtroom. But the inquiry cannot end there. From the
moment the trial judge announces that a case will be televised, it
becomes a
cause celebre. The whole community, including
prospective jurors, becomes interested in all the morbid details
surrounding it. The approaching trial immediately assumes an
important status in the public press, and the accused is highly
publicized, along with the offense with which he is charged. Every
juror carries with him into the jury box these solemn facts, and
thus increases the change of prejudice that is present in every
criminal case. And we must remember that, realistically, it is only
the notorious trial which will be broadcast, because of the
necessity for paid sponsorship. The conscious or unconscious effect
that this may have on the juror's judgment cannot be evaluated, but
experience indicates that it is not only possible, but highly
probable, that it will have a direct bearing on his vote as to
guilt or innocence. Where pretrial publicity of all kinds has
created intense public feeling which is aggravated by the
telecasting or picturing of the trial, the televised jurors cannot
help but feel the pressures of knowing that friends and neighbors
have their eyes upon them. If the community be hostile to an
accused, a televised juror, realizing that he must return to
neighbors who saw the trial themselves, may well be led "not to
hold the balance nice, clear and true between the State and the
accused. . . ."
Page 381 U. S. 546
Moreover, while it is practically impossible to assess the
effect of television on jury attentiveness, those of us who know
juries realize the problem of jury "distraction." The State argues
this is
de minimis, since the physical disturbances have
been eliminated. But we know that distractions are not caused
solely by the physical presence of the camera and its telltale red
lights. It is the awareness of the fact of telecasting that is felt
by the juror throughout the trial. We are all self-conscious and
uneasy when being televised. Human nature being what it is, not
only will a juror's eyes be fixed on the camera, but also his mind
will be preoccupied with the telecasting rather than with the
testimony.
Furthermore, in many States the jurors serving in the trial may
see the broadcasts of the trial proceedings. Admittedly, the Texas
sequestration rule would prevent this occurring there. [
Footnote 3] In other States following
no such practice, jurors would return home and turn on the TV, if
only to see how they appeared upon it. They would also be subjected
to reenactment and emphasis of the selected parts of the
proceedings which the requirements of the broadcasters determined
would be telecast, and would be subconsciously influenced the more
by that testimony. Moreover, they would be subjected to the
broadest commentary and criticism, and perhaps the well meant
advice of friends, relatives and inquiring strangers who recognized
them on the streets.
Finally, new trials plainly would be jeopardized, in that
potential jurors will often have seen and heard the original trial
when it was telecast. Yet viewers may later
Page 381 U. S. 547
be called upon to sit in the jury box during the new trial.
These very dangers are illustrated in this case, where the court,
due to the defendant's objections, permitted only the State's
opening and closing arguments to be broadcast with sound to the
public.
2. The quality of the testimony in criminal trials will often be
impaired. The impact upon a witness of the knowledge that he is
being viewed by a vast audience is simply incalculable. Some may be
demoralized and frightened, some cocky and given to overstatement;
memories may falter, as with anyone speaking publicly, and accuracy
of statement may be severely undermined. Embarrassment may impede
the search for the truth, as may a natural tendency toward
overdramatization. Furthermore, inquisitive strangers and "cranks"
might approach witnesses on the street with jibes, advice or
demands for explanation of testimony. There is little wonder that
the defendant cannot "prove" the existence of such factors. Yet we
all know from experience that they exist.
In addition, the invocation of the rule against witnesses is
frustrated. In most instances, witnesses would be able to go to
their homes and view broadcasts of the day's trial proceedings
notwithstanding the fact that they had been admonished not to do
so. They could view and hear the testimony of preceding witnesses,
and so shape their own testimony as to make its impact crucial. And
even in the absence of sound, the influences of such viewing on the
attitude of the witness toward testifying, his frame of mind upon
taking the stand, or his apprehension of withering
cross-examination, defy objective assessment. Indeed, the mere fact
that the trial is to be televised might render witnesses reluctant
to appear, and thereby impede the trial, as well as the discovery
of the truth.
Page 381 U. S. 548
While some of the dangers mentioned above are present as well in
newspaper coverage of any important trial, the circumstances and
extraneous influences intruding upon the solemn decorum of court
procedure in the televised trial are far more serious than in cases
involving only newspaper coverage.
3. A major aspect of the problem is the additional
responsibilities the presence of television places on the trial
judge. His job is to make certain that the accused receives a fair
trial. This most difficult task requires his undivided attention.
Still, when television comes into the courtroom, he must also
supervise it. In this trial, for example, the judge, on several
different occasions -- aside from the two days of pretrial -- was
obliged to have a hearing or enter an order made necessary solely
because of the presence of television. Thus, where telecasting is
restricted, as it was here and as even the State concedes it must
be, his task is made much more difficult and exacting. And, as
happened here, such rulings may unfortunately militate against the
fairness of the trial. In addition, laying physical interruptions
aside, there is the ever-present distraction that the mere
awareness of television's presence prompts. Judges are human beings
also, and are subject to the same psychological reactions as
laymen. Telecasting is particularly bad where the judge is elected,
as is the case in all save a half dozen of our States. The
telecasting of a trial becomes a political weapon which, along with
other distractions inherent in broadcasting, diverts his attention
from the task at hand -- the fair trial of the accused.
But this is not all. There is the initial decision that must be
made as to whether the use of television will be permitted. This is
perhaps an even more crucial consideration. Our judges are
high-minded men and women. But it is difficult to remain oblivious
to the pressures that the news media can bring to bear on them both
directly
Page 381 U. S. 549
and through the shaping of public opinion. Moreover, where one
judge in a district, or even in a State, permits telecasting, the
requirement that the others do the same is almost mandatory.
Especially is this true where the judge is selected at the ballot
box.
4. Finally, we cannot ignore the impact of courtroom television
on the defendant. Its presence is a form of mental -- if not
physical -- harassment resembling a police lineup or the third
degree. The inevitable close-ups of his gestures and expressions
during the ordeal of his trial might well transgress his personal
sensibilities, his dignity, and his ability to concentrate on the
proceedings before him -- sometimes the difference between life and
death -- dispassionately, freely, and without the distraction of
wide public surveillance. A defendant on trial for a specific crime
is entitled to his day in court, not in a stadium, or a city, or
nationwide arena. The heightened public clamor resulting from radio
and television coverage will inevitably result in prejudice. Trial
by television is, therefore, foreign to our system. Furthermore,
telecasting may also deprive an accused of effective counsel. The
distractions, intrusions into confidential attorney-client
relationships, and the temptation offered by television to play to
the public audience, might often have a direct effect not only upon
the lawyers, but the judge, the jury and the witnesses.
See Pye, The Lessons of Dallas -- Threats to Fair Trial
and Free Press, National Civil Liberties Clearing House, 16th
Annual Conference.
The television camera is a powerful weapon. Intentionally or
inadvertently, it can destroy an accused and his case in the eyes
of the public. While our telecasters are honorable men, they too
are human. The necessity for sponsorship weighs heavily in favor of
the televising of only notorious cases, such as this one, and
invariably focuses the lens upon the unpopular or infamous
Page 381 U. S. 550
accused. Such a selection is necessary in order to obtain a
sponsor willing to pay a sufficient fee to cover the costs and
return a profit. We have already examined the ways in which public
sentiment can affect the trial participants. To the extent that
television shapes that sentiment, it can strip the accused of a
fair trial.
The State would dispose of all these observations with the
simple statement that they are for psychologists, because they are
purely hypothetical. But we cannot afford the luxury of saying
that, because these factors are difficult of ascertainment in
particular cases, they must be ignored. Nor are they "purely
hypothetical." They are no more hypothetical than were the
considerations deemed controlling in
Tumey, Murchison,
Rideau, and
Turner. They are real enough to have
convinced the Judicial Conference of the United States, this Court,
and the Congress that television should be barred in federal trials
by the Federal Rules of Criminal Procedure; in addition, they have
persuaded all but two of our States to prohibit television in the
courtroom. They are effects that may, and in some combination
almost certainly will, exist in any case in which television is
injected into the trial process.
VII
The facts in this case demonstrate clearly the necessity for the
application of the rule announced in
Rideau. The sole
issue before the court for two days of pretrial hearing was the
question now before us. The hearing was televised live and repeated
on tape in the same evening, reaching approximately 100,000
viewers. In addition, the courtroom was a mass of wires, television
cameras, microphones and photographers. The petitioner, the panel
of prospective jurors, who were sworn the second day, the
witnesses, and the lawyers were all exposed to this untoward
situation. The judge decided that the trial
Page 381 U. S. 551
proceedings would be telecast. He announced no restrictions at
the time. This emphasized the notorious nature of the coming trial,
increased the intensity of the publicity on the petitioner, and,
together with the subsequent televising of the trial, beginning 30
days late,r inherently prevented a sober search for the truth. This
is underscored by the fact that the selection of the jury took an
entire week. As might be expected, a substantial amount of that
time was devoted to ascertaining the impact of the pretrial
televising on the prospective jurors. As we have noted, four of the
jurors selected had seen all or part of those broadcasts. The
trial, on the other hand, lasted only three days.
Moreover, the trial judge was himself harassed. After the
initial decision to permit telecasting, he apparently decided that
a booth should be built at the broadcasters' expense to confine its
operations; he then decided to limit the parts of the trial that
might be televised live; then he decided to film the testimony of
the witnesses without sound in an attempt to protect those under
the rule; and finally, he ordered that defense counsel and their
argument not be televised, in the light of their objection. Plagued
by his original error -- recurring each day of the trial -- his
day-to-day orders made the trial more confusing to the jury, the
participants, and to the viewers. Indeed, it resulted in a public
presentation of only the State's side of the case.
As Mr. Justice Holmes said in
Patterson v. Colorado,
205 U. S. 454,
205 U. S. 462
(1907):
"The theory of our system is that the conclusions to be reached
in a case will be induced only by evidence and argument in open
court, and not by any outside influence, whether of private talk or
public print."
It is said that the ever-advancing techniques of public
communication and the adjustment of the public to its
Page 381 U. S. 552
presence may bring about a change in the effect of telecasting
upon the fairness of criminal trials. But we are not dealing here
with future developments in the field of electronics. Our judgment
cannot be rested on the hypothesis of tomorrow, but must take the
facts as they are presented today.
The judgment is therefore
Reversed.
* MR. JUSTICE HARLAN concurs in this opinion subject to the
reservations and to the extent indicated in his concurring opinion,
post, p.
381 U. S.
587.
[
Footnote 1]
The evidence indicated that petitioner, through false pretenses
and fraudulent representations, induced certain farmers to purchase
fertilizer tanks and accompanying equipment which in fact did not
exist, and to sign and deliver to him chattel mortgages on the
fictitious property.
[
Footnote 2]
Due to mechanical difficulty, there was no picture during the
opening argument.
[
Footnote 3]
Only six States, in addition to Texas, require sequestration of
the jury prior to its deliberations in a noncapital felony trial.
The great majority of jurisdictions leave the matter to the trial
judge's discretion, while, in at least one State, the jury will be
kept together in such circumstances only upon a showing of cause by
the defendant.
MR. CHIEF JUSTICE WARREN, whom MR. JUSTICE DOUGLAS and MR.
JUSTICE GOLDBERG join, concurring.
While I join the Court's opinion and agree that the televising
of criminal trials is inherently a denial of due process, I desire
to express additional views on why this is so. In doing this, I
wish to emphasize that our condemnation of televised criminal
trials is not based on generalities, or abstract fears. The record
in this case presents a vivid illustration of the inherent
prejudice of televised criminal trials, and supports our conclusion
that this is the appropriate time to make a definitive appraisal of
television in the courtroom.
I
Petitioner, a much-publicized financier, was indicted by a
Reeves County, Texas, grand jury for obtaining property through
false pretenses. The case was transferred to the City of Tyler, in
Smith County, Texas, and was set for trial on September 24, 1962.
Prior to that date, petitioner's counsel informed the trial judge
that he would make a motion on September 24 to exclude all cameras
from the courtroom during the trial.
On September 24, a hearing was held to consider petitioner's
motion to prohibit television, motion pictures, and still
photography at the trial. The courtroom was filled with newspaper
reporters and cameramen, television cameramen, and spectators. At
least 12 cameramen, with
Page 381 U. S. 553
their equipment, were seen by one observer, and there were 30 or
more people standing in the aisles. An article appearing in the New
York Times the next day stated:
"A television motor van, big as an intercontinental bus, was
parked outside the courthouse, and the second-floor courtroom was a
forest of equipment. Two television cameras had been set up inside
the bar, and four more marked cameras were aligned just outside the
gates. . . . [C]ables and wires snaked over the floor. [
Footnote 2/1]"
With photographers roaming at will through the courtroom,
petitioner's counsel made his motion that all cameras be excluded.
As he spoke, a cameraman wandered behind the judge's bench and
snapped his picture. Counsel argued that the presence of cameras
would make it difficult for him to consult with his client, make
his client ill at ease, and make it impossible to obtain a fair
trial, since the cameras would distract the jury, witnesses, and
lawyers. He also expressed the view that televising selected cases
tends to give the jury an impression that the particular trial is
different from ordinary criminal trials. The court, however, ruled
that the taking of pictures and televising would be allowed so long
as the cameramen stood outside the railing that separates the trial
participants from the spectators. The court also ruled that, if a
complaint was made that any camera was too noisy, the cameramen
would have to stop taking pictures; that no pictures could be taken
in the corridors outside the courtroom; and that those with
microphones were not to pick up conversations between petitioner
and his lawyers. Subsequent to the court's ruling, petitioner
arrived in the courtroom, [
Footnote
2/2] and the defense introduced testimony
Page 381 U. S. 554
concerning the atmosphere in the court on that day. At the
conclusion of the day's hearing, the judge reasserted his earlier
ruling. He then ordered a roll call of the prosecution witnesses at
least some of whom had been in the courtroom during the
proceedings.
The entire hearing on September 24 was televised live by station
KLTV of Tyler, Texas, and station WFAA-TV of Dallas, Texas.
Commercials were inserted when there was a pause in the
proceedings. On the evening of Monday, September 24, both stations
ran an edited tape of the day's proceedings and interrupted the
tape to play the commercials ordinarily seen in the particular time
slot. In addition to the live television coverage, there was also a
live radio pickup of the proceedings by at least one station.
The proceedings continued on September 25. There was again a
significant number of cameramen taking motion pictures, still
pictures, and television pictures. The judge once more ordered
cameramen to stay on the other side of the railing, and stated that
this order was to be observed even during court recesses. The panel
from which the petit jury was to be selected was then sworn in the
presence of the cameramen. The panel was excused to permit counsel
to renew his motion to prohibit photography in the courtroom. The
court denied the motion, but granted a continuance of trial until
October 22 and dismissed the jury panel. At the suggestion of
petitioner's counsel, the trial judge warned the prosecution
witnesses who were present not to discuss the case during the
continuance. The proceedings were televised live, and portions of
the television tape were shown on the regularly scheduled evening
news programs. Live radio transmission apparently occurred as on
the day before.
On October 1, 1962, the trial judge is sued an order explaining
what coverage he would permit during the trial. The judge delivered
the order in his chambers for the
Page 381 U. S. 555
benefit of television cameramen so that they could film him. The
judge ruled that, although he would permit television cameras to be
present during the trial, they would not be permitted to present
live coverage of the interrogation of prospective jurors or the
testimony of witnesses. He ruled that each of the three major
television networks, NBC, CBS, ABC, and the local television
station KLTV, could install one camera not equipped to pick up
sound, and the film would be available to other television stations
on a pooled basis. In addition, he ruled that, with respect to news
photographers, only cameramen for the local press, Associated
Press, and United Press would be permitted in the courtroom.
Photographs taken were also to be made available to others on a
pooled basis. The judge did not explain how he decided which
television cameramen and which still photographers were to be
permitted in the courtroom, and which were to be excluded.
For the proceedings beginning on October 22, station KLTV at its
own expense, and with the permission of the court, had constructed
a booth in the rear of the courtroom painted the same or near the
same color as the courtroom. An opening running lengthwise across
the booth permitted the four television cameras to photograph the
proceedings. The courtroom was small, and the cameras were clearly
visible to all in the courtroom. [
Footnote 2/3] The cameras were equipped with "electronic
sound-on camera" which permitted them to take both film and sound.
Upon entering the courtroom, the judge told all those with
television cameras to go back to the booth; asked the press
photographers not to move around any more than necessary; ordered
that no flashbulbs or floodlights be used; and again told cameramen
that they could not go inside the railing. Defense counsel renewed
his motion
Page 381 U. S. 556
to ban all "sound equipment . . . still cameras, movie cameras
and television, and all radio facilities" from the courtroom.
Witnesses were again called on this issue, but at the conclusion of
the hearing, the trial judge reaffirmed his prior ruling to permit
cameramen in the courtroom. In response to petitioner's argument
that his rights under the Constitution of the United States were
being violated, the judge remarked that the "case [was] not being
tried under the Federal Constitution."
None of the proceedings on October 22 was televised live.
Television cameras, however, recorded the day's entire proceedings
with sound for later showings. Apparently none of the October 22
proceedings was carried live on radio, although the proceedings
were recorded on tape. The still photographers admitted by the
court were free to take photographs from outside the railing.
On October 23, the selection of the jury began. Overnight, an
additional strip had been placed across the television booth so
that the opening for the television cameras was reduced, but the
cameras and their operators were still quite visible. [
Footnote 2/4] A panel of 86 prospective
jurors was ready for the
voir dire. The judge excused the
jurors from the courtroom and made still another ruling on news
coverage at the trial. He ordered the television recording to
proceed from that point on without an audio pickup, and, in
addition, forbade radio tapes of any further proceedings until all
the evidence had been introduced. During the course of the trial,
the television cameras recorded without sound whatever matters
appeared interesting to them for use on later newscasts; radio
broadcasts in the form of spot reports were made from a room next
to the courtroom. There was no live television or radio coverage
until November 7, when the trial judge permitted live coverage of
the prosecution's
Page 381 U. S. 557
arguments to the jury, the return of the jury's verdict, and its
acceptance by the court. Since the defense objected to being
photographed during the summation, the judge prohibited television
cameramen or still photographers from taking any pictures of the
defense during its argument. But the show went on, and, while the
defense was speaking, the cameras were directed at the judge, and
the arguments were monitored by audio equipment and relayed to the
television audience by an announcer. On November 7, the judge, for
the first time, directed news photographers desiring to take
pictures to take them only from the back of the room. Up until this
time, the trial judge's orders merely limited news photographers to
the spectator section.
II
The decision below affirming petitioner's conviction runs
counter to the evolution of Anglo-American criminal procedure over
a period of centuries. During that time, the criminal trial has
developed from a ritual practically devoid of rational
justification [
Footnote 2/5] to a
factfinding process the acknowledged purpose of which is to provide
a fair and reliable determination of guilt. [
Footnote 2/6]
An element of rationality was introduced in the
guilt-determining process in England over 600 years ago when a
rudimentary trial by jury became "the principal institution for
criminal cases." [
Footnote 2/7]
Initially members of the jury were expected to make their own
examinations of the cases they were to try, and come to court
already familiar
Page 381 U. S. 558
with the facts, [
Footnote 2/8]
which made it impossible to limit the jury's determination to
legally relevant evidence. Gradually, however, the jury was
transformed from a panel of witnesses to a panel of triers passing
on evidence given by others in the courtroom. [
Footnote 2/9] The next step was to insure the
independence of the jury, and this was accomplished by the decision
in the case of
Edward Bushell, 6 How.St.Tr. 999 (1670),
which put an end to the practice of fining or otherwise punishing
jury members who failed to reach the decision directed by the
court. As the purpose of trial as a vehicle for discovering the
truth became clearer, it was recognized that the defendant should
have the right to call witnesses and to place them under oath,
[
Footnote 2/10] to be informed of
the charges against him before the trial, [
Footnote 2/11] and to have counsel assist him with his
defense. [
Footnote 2/12] All
these protections, and others which could be cited, were part of a
development by which "the administration of criminal justice was
set upon a firm and dignified basis." [
Footnote 2/13]
When the colonists undertook the responsibility of governing
themselves, one of their prime concerns was the establishment of
trial procedures which would be consistent with the purpose of
trial. The Continental Congress passed measures designed to
safeguard the right to a fair trial, [
Footnote 2/14] and the various States adopted
constitutional provisions
Page 381 U. S. 559
directed to the same end. [
Footnote 2/15] Eventually, the Sixth Amendment
incorporated into the Constitution certain provisions dealing with
the conduct of trials:
"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining Witnesses in his favor, and to have the
Assistance of Counsel for his defence."
Significantly, in the Sixth Amendment the words "speedy and
public" qualify the term trial, and the rest of the Amendment
defines specific protections the accused is to have at his trial.
Thus, the Sixth Amendment, by its own terms, not only requires that
the accused have certain specific rights, but also that he enjoy
them at a trial -- a word with a meaning of its own,
see
Bridges v. California, 314 U. S. 252,
314 U. S.
271.
The Fourteenth Amendment, which places limitations on the
States' administration of their criminal laws, also gives content
to the term "trial." Whether the Sixth Amendment as a whole applies
to the States through the Fourteenth, [
Footnote 2/16] or the Fourteenth Amendment embraces
only those portions of the Sixth Amendment that are "fundamental,"
[
Footnote 2/17] or the Fourteenth
Amendment incorporates a standard of "ordered liberty" apart from
the
Page 381 U. S. 560
specific guarantees of the Bill of Rights, [
Footnote 2/18] it has been recognized that state
prosecutions must at the least, comport with "the fundamental
conception" of a fair trial. [
Footnote 2/19]
It has been held on one or another of these theories that the
fundamental conception of a fair trial includes many of the
specific provisions of the Sixth Amendment, such as the right to
have the proceedings open to the public,
In re Oliver,
333 U. S. 257, the
right to notice of specific charges,
Cole v. Arkansas,
333 U. S. 196; the
right to confrontation,
Pointer v. Texas, 380 U.
S. 400;
Douglas v. Alabama, 380 U.
S. 415, and the right to counsel,
Gideon v.
Wainwright, 372 U. S. 335. But
it also has been agreed that neither the Sixth nor the Fourteenth
Amendment is to be read formalistically, for the clear intent of
the amendments is that these specific rights be enjoyed at a
constitutional trial. In the words of Justice Holmes, even though
"every form [be] preserved," the forms may amount to no "more than
an empty shell" when considered in the context or setting in which
they were actually applied. [
Footnote
2/20]
In cases arising from state prosecutions, this Court has acted
to prevent the right to a constitutional trial from being reduced
to a formality by the intrusion of factors into the trial process
that tend to subvert its purpose. The Court recognized in
Pennekamp v.
Florida, 328 U.S.
Page 381 U. S. 561
331,
328 U. S. 334,
that the "orderly operation of courts" is "the primary and dominant
requirement in the administration of justice." And, in
Moore v.
Dempsey, 261 U. S. 86,
261 U. S. 90-91,
it was held that the atmosphere in and around the courtroom might
be so hostile as to interfere with the trial process, even though
an examination of the record disclosed that all the forms of trial
conformed to the requirements of law: the defendant had counsel,
the jury members stated they were impartial, the jury was correctly
charged, and the evidence was legally sufficient to convict.
Moreover, in
Irvin v. Dowd, 366 U.
S. 717, a conviction was reversed where extensive
pretrial publicity rendered a fair trial unlikely despite the
observance of the formal requisites of a legal trial. We commented
in that case:
"No doubt each juror was sincere when he said that he would be
fair and impartial to petitioner, but the psychological impact
requiring such a declaration before one's fellows is often its
father."
Id. at
366 U. S.
728.
To recognize that disorder can convert a trial into a ritual
without meaning is not to pay homage to order as an end in itself.
Rather, it recognizes that the courtroom in Anglo-American
jurisprudence is more than a location with seats for a judge, jury,
witnesses, defendant, prosecutor, defense counsel and public
observers; the setting that the courtroom provides is itself an
important element in the constitutional conception of trial,
contributing a dignity essential to "the integrity of the trial"
process.
Craig v. Harney, 331 U.
S. 367,
331 U. S. 377.
As MR. JUSTICE BLACK said in another context:
"The very purpose of a court system is to adjudicate
controversies, both criminal and civil, in the calmness and
solemnity of the courtroom according to legal procedures. [
Footnote 2/21]"
In light of this fundamental conception of what the term
trial
Page 381 U. S. 562
means, this Court has recognized that often, despite widespread
hostile publicity about a case, it is possible to conduct a trial
meeting constitutional standards. Significantly, in each of these
cases, the basic premise behind the Court's conclusion has been the
notion that judicial proceedings can be conducted with dignity and
integrity so as to shield the trial process itself from these
irrelevant external factors, rather than to aggravate them, as
here. Thus, in reversing contempt convictions for out-of-court
statements, this Court referred to "the power of courts to protect
themselves from disturbances and disorder
in the
courtroom,"
Bridges v. California, 314 U.
S. 252,
314 U. S. 266
(emphasis added); "the necessity for fair adjudication, free from
interruption of its processes,"
Pennekamp v. Florida,
328 U. S. 331,
328 U. S. 336,
"the integrity of the trial,"
Craig v. Harney,
331 U. S. 367,
331 U. S. 377.
And, in upholding a conviction against a claim of unfavorable
publicity, this Court commented "that petitioner's trial was
conducted in a calm judicial manner,"
Darcy v. Handy,
351 U. S. 454,
351 U. S.
463.
Similarly, when state procedures have been found to thwart the
purpose of trial, this Court has declared those procedures to be
unconstitutional. In
Tumey v. Ohio, 273 U.
S. 510, the Court considered a state procedure under
which judges were paid for presiding over a case only if the
defendant was found guilty and costs assessed against him. An
argument was made that the practice should not be condemned
broadly, since some judges undoubtedly would not let their judgment
be affected by such an arrangement. However, the Court found the
procedure so inconsistent with the conception of what a trial
should be, and so likely to produce prejudice, that it declared the
practice unconstitutional even though no specific prejudice was
shown.
In
Lyons v. Oklahoma, 322 U. S. 596,
this Court stated that if an involuntary confession is introduced
into evidence
Page 381 U. S. 563
at a state trial the conviction must be reversed even though
there is other evidence in the record to justify a verdict of
guilty. We explained the rationale behind this judgment in
Payne v. Arkansas, 356 U. S. 560,
356 U. S.
568:
"[W]here . . . a coerced confession constitutes a part of the
evidence before the jury and a general verdict is returned, no one
can say what credit and weight the jury gave to the
confession."
Similar reasoning led to the decision last Term in
Jackson
v. Denno, 378 U. S. 368. We
held there that, when the voluntariness of a confession is at
issue, there must be a procedure adopted which provides "a reliable
and clearcut determination of . . . voluntariness."
Id. at
378 U. S. 391.
We found insufficient a procedure whereby the jury heard the
confession, but was instructed to disregard it if the jury found
the confession involuntary:
"[T]he New York procedure poses substantial threats to a
defendant's constitutional rights to have an involuntary confession
entirely disregarded, and have the coercion issue fairly and
reliably determined. These hazards we cannot ignore."
Id. at
378 U. S.
389.
Earlier this Term, in
Turner v. Louisiana, 379 U.
S. 466, we considered a case in which deputy sheriffs,
who were the prosecution's principal witnesses, were in charge of a
sequestered jury during the trial. The Supreme Court of Louisiana
criticized the practice, but said that, in the absence of a showing
of prejudice, there was no ground for reversal. We reversed because
the "extreme prejudice inherent" in the practice required its
condemnation on constitutional grounds.
Finally, the Court has, on numerous other occasions, reversed
convictions, where the formalities of trial were
Page 381 U. S. 564
observed, because of practices that negate the fundamental
conception of trial. [
Footnote
2/22]
This line of cases does not indicate a disregard for the
position of the States in our federal system. Rather, it stands for
the proposition that the criminal trial under our Constitution has
a clearly defined purpose -- to provide a fair and reliable
determination of guilt -- and no procedure or occurrence which
seriously threatens to divert it from that purpose can be
tolerated.
III
For the Constitution to have vitality, this Court must be able
to apply its principles to situations that may not have been
foreseen at the time those principles were adopted. As was said in
Weems v. United States, 217 U. S. 349,
217 U. S. 373,
and reaffirmed in
Brown v. Board of Education,
347 U. S. 483,
347 U. S.
492-493:
"Legislation, both statutory and constitutional, is enacted, it
is true, from an experience of evils, but its general language
should not, therefore, be necessarily confined to the form that
evil had theretofore taken. Time works changes, brings into
existence new conditions and purposes. Therefore, a principle, to
be vital, must be capable of wider application than the mischief
which gave it birth. . . . In the application of a constitution,
therefore, our contemplation cannot be only of what has been, but
of what may be. Under any other rule, a constitution would indeed
be as easy of application as it would be deficient in efficacy and
power. Its general principles would have little value, and be
converted by precedent
Page 381 U. S. 565
into impotent and lifeless formulas. Rights declared in words
might be lost in reality."
I believe that it violates the Sixth Amendment for federal
courts and the Fourteenth Amendment for state courts to allow
criminal trials to be televised to the public at large. I base this
conclusion on three grounds: (1) that the televising of trials
diverts the trial from its proper purpose, in that it has an
inevitable impact on all the trial participants; (2) that it gives
the public the wrong impression about the purpose of trials,
thereby detracting from the dignity of court proceedings and
lessening the reliability of trials; and (3) that it singles out
certain defendants and subjects them to trials under prejudicial
conditions not experienced by others.
I have attempted to show that our common law heritage, our
Constitution, and our experience in applying that Constitution have
committed us irrevocably to the position that the criminal trial
has one well defined purpose -- to provide a fair and reliable
determination of guilt. In
Tumey v. Ohio, supra, at
273 U. S. 532,
this Court condemned the procedure there employed for compensating
judges because it offered a "possible temptation" to judges "not to
hold the balance nice, clear, and true between the state and the
accused." How much more harmful is a procedure which not only
offers the temptation to judges to use the bench as a vehicle for
their own ends, but offers the same temptation to every participant
in the trial, be he defense counsel, prosecutor, witness or juror!
It is not necessary to speak in the abstract on this point. In the
present case, on October 1, the trial judge invited the television
cameras into his chambers so they could take films of him reading
one of his pretrial orders. On this occasion, at least, the trial
judge clearly took the initiative in placing himself before the
television audience, and, in giving his order, and himself, the
maximum possible publicity. Moreover, on October 22, when trial
counsel renewed
Page 381 U. S. 566
his motion to exclude television from the courtroom on the
ground that it violated petitioner's rights under the Federal
Constitution, the trial judge made the following speech:
"This case is not being tried under the Federal Constitution.
This Defendant has been brought into this Court under the state
laws, under the State Constitution."
"
* * * *"
"I took an oath to uphold this Constitution -- not the Federal
Constitution, but the State Constitution -- and I am going to do my
best to do that as long as I preside on this Court, and, if it is
distasteful in following my oath and upholding the constitution, it
will just have to be distasteful."
"One is entitled to wonder if such a statement would be made in
a court of justice by any state trial judge except as an appeal
calculated to gain the favor of his viewing audience. I find it
difficult to believe that this trial judge, with over 20 years'
experience on the bench, was unfamiliar with the fundamental duty
imposed on him by Article VI of the Constitution of the United
States:"
"This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the Authority of the United States, shall be
the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding."
This is not to say that all participants in the trial would
distort it by deliberately playing to the television audience, but
some undoubtedly would. The even more serious danger is that
neither the judge, prosecutor, defense counsel, jurors, or
witnesses would be able to go
Page 381 U. S. 567
through trial without considering the effect of their conduct on
the viewing public. It is admitted in dissent that,
"if the scene at the September hearing had been repeated in the
courtroom during this jury trial, it is difficult to conceive how a
fair trial in the constitutional sense could have been afforded the
defendant."
Post, p.
381 U. S. 612.
But it is contended that what went on at the September hearing is
irrelevant to the issue before us. With this I cannot agree. We
granted certiorari to consider whether petitioner was denied due
process when he was required to submit to a televised trial. In
this, as in other cases involving rights under the Due Process
Clause, we have an obligation to make an independent examination of
the record,
e.g., Watts v. Indiana, 338 U. S.
49,
338 U. S. 51;
Norris v. Alabama, 294 U. S. 587,
294 U. S. 590;
and the limited grant of certiorari does not prohibit us from
considering all the facts in this record relevant to the question
before us. The parties to this case, and those who filed briefs as
amici curiae, recognize this, since they treat the
televising of the September proceedings as a factor relevant to our
consideration. Our decisions in
White v. Maryland,
373 U. S. 59, and
Hamilton v. Alabama, 368 U. S. 52,
clearly hold that an accused is entitled to procedural protections
at pretrial hearings, as well as at actual trial, and his
conviction will be reversed if he is not accorded these
protections. In addition, in
Pointer v. Texas,
380 U. S. 400, we
held that a pretrial hearing can have a profound effect on the
trial itself, and effectively prevent an accused from having a fair
trial. Petitioner clearly did not have a fair determination of his
motion to exclude cameras from the courtroom. The very presence of
the cameras at the September hearing tended to impress upon the
trial judge the power of the communications media and the criticism
to which he would have been subjected if he had ruled that the
presence of the cameras was inconsistent with petitioner's right to
a fair trial. The prejudice to petitioner
Page 381 U. S. 568
did not end here. Most of the trial participants were present at
the September hearing -- the judge, defense counsel, prosecutor,
prosecution witnesses and defendant himself -- and they saw for
themselves the desecration of the courtroom. After undergoing this
experience, it is unrealistic to suppose that they would come to
the October trial unaware that court procedures were being
sacrificed in this case for the convenience of television. The
manner in which the October proceedings were conducted only
intensified this awareness. It was impossible for any of the trial
participants ever to be unaware of the presence of television
cameras in court for the actual trial. [
Footnote 2/23] The snouts of the four television
cameras protruded through the opening in the booth, and the cameras
and their operators were not only readily visible, but were
impossible to ignore by all who were surveying the activities in
this small courtroom. No one could forget that he was constantly in
the focus of the "all-seeing eye." Although the law of Texas
purportedly permits witnesses to object to being televised, it is
ludicrous to place this burden on them. They would naturally accept
the conditions of the courtroom as the judge establishes them, and
feel that it would be as presumptuous for them to object to the
court's permitting television as to object to the court reporter's
recording their testimony. Yet it is argued that no witnesses
objected to being televised. This is indeed a slender reed to rely
on, particularly in view of the trial judge's failure, in the
course of his self-exculpating statements justifying his decision
to allow television, to advise the witnesses or the jurors that
they had the right to object to being televised. Defense counsel,
however, stated forcefully that he could not concentrate on the
case because of the distraction caused by the cameras. And the
trial judge's attention
Page 381 U. S. 569
was distracted from the trial, since he was compelled to make
seven extensive rulings concerning television coverage during the
October proceedings alone, when he should, instead, have been
concentrating on the trial itself.
It is common knowledge that "television . . . can . . . work
profound changes in the behavior of the people it focuses on."
[
Footnote 2/24] The present
record provides ample support for scholars who have claimed that
awareness that a trial is being televised to a vast but unseen
audience is bound to increase nervousness and tension, [
Footnote 2/25] cause an increased
Page 381 U. S. 570
concern about appearances, [
Footnote 2/26] and bring to the surface latent
opportunism that the traditional dignity of the courtroom would
discourage. Whether they do so consciously or subconsciously, all
trial participants act differently in the presence of television
cameras. And even if all participants make a conscientious and
studied effort to be unaffected by the presence of television, this
effort, in itself, prevents them from giving their full attention
to their proper functions at trial. Thus, the evil of televised
trials, as demonstrated by this case, lies not in the noise and
appearance of the cameras, but in the trial participants' awareness
that they are being televised. To the extent that television has
such an inevitable impact, it undercuts the reliability of the
trial process.
In the early days of this country's development, the
entertainment a trial might provide often tended to obfuscate its
proper role.
"The people thought holding court one of the greatest
performances in the range of their experience. . . . The country
folks would crowd in for ten miles to hear these 'great lawyers'
plead, and it was a secondary matter with the client whether he won
or lost his case, so the 'pleading' was loud and long. [
Footnote 2/27]"
"In early frontier America, when no motion pictures, no
television, and no radio provided entertainment,
Page 381 U. S. 571
trial day in the county was like fair day, and, from near and
far, citizens young and old converged on the county seat. The
criminal trial was the theater and spectaculum of old rural
America. Applause and cat-calls were not infrequent. All too
easily, lawyers and judges became part-time actors at the bar. . .
. [
Footnote 2/28]"
I had thought that these days of frontier justice were long
behind us, but the courts below would return the theater to the
courtroom.
The televising of trials would cause the public to equate the
trial process with the forms of entertainment regularly seen on
television and with the commercial objectives of the television
industry. In the present case, tapes of the September 24 hearing
were run in place of the "Tonight Show" by one station, and in
place of the late night movie by another. Commercials for soft
drinks, soups, eyedrops, and seatcovers were inserted when there
was a pause in the proceedings. In addition, if trials were
televised, there would be a natural tendency on the part of
broadcasters to develop the personalities of the trial
participants, so as to give the proceedings more of an element of
drama. This tendency was noticeable in the present case. Television
commentators gave the viewing audience a homey, flattering sketch
about the trial judge, obviously to add an extra element of viewer
appeal to the trial:
"Tomorrow morning at 9:55, the WFAA T.V. cameras will be in
Tyler to telecast live [the trial judge's] decision whether or not
he will permit live coverage of the Billie Sol Estes trial. If so,
this will be the first such famous national criminal proceeding to
be televised in its entirety live. [The trial judge]
Page 381 U. S. 572
was appointed to the bench here in Tyler in 1942 by [the
Governor]. The judge has served every two years since then. This
very beautiful Smith County Courthouse was built and dedicated in
1954, but, before that, [the trial judge] had made a reputation for
himself that reached not only throughout Texas, but throughout the
United States, as well. It is said that [the trial judge], who is
now 53 years old, has tried more cases than any other judge during
his time in office."
The television industry might also decide that the bare-boned
trial itself does not contain sufficient drama to sustain an
audience. It might provide expert commentary on the proceedings,
and hire persons with legal backgrounds to anticipate possible
trial strategy, as the football expert anticipates plays for his
audience. The trial judge himself stated at the September hearing
that, if he wanted to see a ball game, he would turn on his
television set, so why not the same for a trial.
Moreover, should television become an accepted part of the
courtroom, greater sacrifices would be made for the benefit of
broadcasters. In the present case, construction of a television
booth in the courtroom made it necessary to alter the physical
layout of the courtroom, and to move from their accustomed position
two benches reserved for spectators. [
Footnote 2/29] If this can be done in order better to
accommodate the television industry, I see no reason why another
court might not move a trial to a theater, if such a move would
provide improved television coverage. Our memories are short indeed
if we have already forgotten the wave of horror that swept over
this country when Premier Fidel Castro conducted his prosecutions
before 18,000 people in Havana Stadium. [
Footnote 2/30] But, in the decision
Page 381 U. S. 573
below, which completely ignores the importance of the courtroom
in the trial process, we have the beginnings of a similar approach
toward criminal "justice." This is not an abstract fear I am
expressing, because this very situation confronted the Nebraska
Supreme Court in
Roberts v. State, 100 Neb. 199, 203, 158
N.W. 930, 931-932 (1916):
"The court removed the trial from the courtroom to the theater,
and stated as a reason therefor:"
"By reason of the insufficiency of the courtroom to seat and
accommodate the people applying for admission . . . , it is by the
court ordered that the further trial of this cause be had at the
Keith Theater, and thereupon the court was adjourned to Keith
Theater, where trial proceeded."
"The stage was occupied by court, counsel, jury, witnesses, and
officers connected with the trial. The theater proper was crowded
with curious spectators. Before the trial was completed, it was
returned to the courtroom and concluded there. At the adjournment
of court on one occasion, the bailiff announced from the
stage:"
"The regular show will be tomorrow; matinee in the afternoon,
and another performance at 8:30. Court is now adjourned until
7:30."
There would be a real threat to the integrity of the trial
process if the television industry and trial judges were allowed to
become partners in the staging of criminal proceedings. The trial
judge in the case before us had several "conferences [with]
representatives of the news media."
Post, p.
381 U. S. 606.
He then entered into a joint enterprise with a television station
for the construction of a booth in his courtroom. The next logical
step in this partnership might be to schedule the trial for a time
that would permit the maximum number of viewers to watch and to
schedule recesses to coincide with the need for station breaks.
Should the television industry become an
Page 381 U. S. 574
integral part of our system of criminal justice, it would not be
unnatural for the public to attribute the shortcomings of the
industry to the trial process itself. The public is aware of the
television industry's consuming interest in ratings, and it is also
aware of the steps that have been taken in the past to maintain
viewer interest in television programs. Memories still recall
vividly the scandal caused by the disclosure that quiz programs had
been corrupted in order to heighten their dramatic appeal. Can we
be sure that similar efforts would not be made to heighten the
dramatic appeal of televised trials? Can we be sure that the public
would not inherently distrust our system of justice because of its
intimate association with a commercial enterprise?
Broadcasting in the courtroom would give the television industry
an awesome power to condition the public mind either for or against
an accused. By showing only those parts of its films or tapes which
depict the defendant or his witnesses in an awkward or unattractive
position, television directors could give the community, state or
country a false and unfavorable impression of the man on trial.
Moreover, if the case should end in a mistrial, the showing of
selected portions of the trial, or even of the whole trial, would
make it almost impossible to select an impartial jury for a second
trial.
Cf. Rideau v. Louisiana, 373 U.
S. 723. To permit this powerful medium to use the trial
process itself to influence the opinions of vast numbers of people
before a verdict of guilt or innocence has been rendered would be
entirely foreign to our system of justice.
The sense of fairness, dignity and integrity that all associate
with the courtroom would become lost with its commercialization.
Thus, the televising of trials would not only have an effect on
those participating in the trials that are being televised, but
also on those who observe the trials and later become trial
participants.
Page 381 U. S. 575
It is argued that television not only entertains, but also
educates the public. But the function of a trial is not to provide
an educational experience; and there is a serious danger that any
attempt to use a trial as an educational tool will both divert it
from its proper purpose and lead to suspicions concerning the
integrity of the trial process. The Soviet Union's trial of Francis
Gary Powers provides an example in point. The integrity of the
trial was suspect because it was concerned not only with
determining the guilt of the individual on trial, but also with
providing an object lesson to the public. This divided effort
undercut confidence in the guilt-determining aspect of the
procedure, and, by so doing, rendered the educational aspect
self-defeating.
"Was it prejudicial to [Powers] that the trial took place in a
special hall with over 2,000 spectators; that it was televised;
that prominent representatives of many organizations in various
countries were invited to attend; that simultaneous oral
translations of the proceedings . . . were provided; and that
detailed . . . reports of the case in various languages were
distributed to the press before, during, and after the trial?"
". . . [T]he Soviet legal system . . . consciously and
explicitly uses the trial, and indeed the very safeguards of
justice themselves, as instruments of the social and political
objectives of the state. . . ."
". . . A Soviet trial is supposed to be correct, impartial,
just, reasonable, and, at the same time, it is supposed to serve as
an object lesson to society, a means of teaching the participants,
the spectators and the public generally, to be loyal, obedient,
disciplined fighters for Communist ideals. . . ."
". . . [T]he tension between the demands of justice and the
demands of politics can never be entirely
Page 381 U. S. 576
eliminated. The fate of the accused is bound to be influenced in
one way or another when the trial is lifted above its individual
facts and deliberately made an object lesson to the public."
". . . [T]he deliberate use of a trial as a means of political
education threatens the integrity of the judicial process.
[
Footnote 2/31]"
Finally, if the televising of criminal proceedings were
approved, trials would be selected for television coverage for
reasons having nothing to do with the purpose of trial. A trial
might be televised because a particular judge has gained the fancy
of the public by his unorthodox approach; or because the district
attorney has decided to run for another office, and it is believed
his appearance would attract a large audience; or simply because a
particular courtroom has a layout that best accommodates television
coverage. [
Footnote 2/32] For the
most part, however, the most important factor that would draw
television to the courtroom would be the nature of the case. The
alleged perpetrator of the sensational murder, the fallen idol, or
some other person who, like petitioner, has attracted the public
interest would find his trial turned into
Page 381 U. S. 577
a vehicle for television. Yet these are the very persons who
encounter the greatest difficulty in securing an impartial trial,
even without the presence of television. This Court would no longer
be able to point to the dignity and calmness of the courtroom as a
protection from outside influences. For the television camera
penetrates this protection, and brings into the courtroom tangible
evidence of the widespread interest in a case -- an interest which
has often been fanned by exhaustive reports in the newspapers,
television and radio for weeks before trial. The present case
presents a clear example of this danger. In the words of
petitioner's counsel:
"The Saturday Evening Post, The Readers Digest, Time, Life --
all had feature stories upon [petitioner's] story, giving in detail
his life history and the details of . . . alleged fraudulent
transactions. . . ."
"The metropolitan papers throughout the country featured the
story daily. Each day, for weeks, the broadcasts carried some
features of the story. [
Footnote
2/33]"
After living in the glare of this publicity for weeks,
petitioner came to court for a legal adjudication of the charges
against him. As he approached the courthouse, he was confronted by
an army of photographers, reporters and television commentators
shoving microphones in his face. [
Footnote 2/34] When he finally made his way into the
courthouse, it was reasonable for him to expect that he could have
a respite from this merciless badgering and have his case
adjudicated in a calm atmosphere. Instead, the carnival atmosphere
of the September hearing served only to increase the publicity
surrounding petitioner, and to condition further the public's mind
against him. Then, upon his entrance into the courtroom for his
actual trial, he was
Page 381 U. S. 578
confronted with the sight of the television camera zeroed in on
him and the ever-present still photographers snapping pictures of
interest. As he opened a newspaper waiting for the proceedings to
begin, the close-up lens of a television camera zoomed over his
shoulder in an effort to find out what he was reading. In no sense
did the dignity and integrity of the trial process shield this
petitioner from the prejudicial publicity to which he had been
exposed, because that publicity marched right through the courtroom
door and made itself at home in heretofore unfamiliar surroundings.
We stated in
Gideon v. Wainwright, 372 U.
S. 335,
372 U. S.
344,
"From the very beginning, our state and national constitutions
and laws have laid great emphasis on procedural and substantive
safeguards designed to assure fair trials before impartial
tribunals in which every defendant stands equal before the
law."
This principle was not applied by the courts below.
I believe petitioner in this case has shown that he was actually
prejudiced by the conduct of these proceedings, but I cannot agree
with those who say that a televised trial deprives a defendant of a
fair trial only if "actual prejudice" can be shown. The prejudice
of television may be so subtle that it escapes the ordinary methods
of proof, [
Footnote 2/35] but it
would gradually erode our fundamental conception of trial.
[
Footnote 2/36] A defendant may
be unable to prove that he was actually prejudiced by a televised
trial, just as he may be unable to prove that the introduction of a
coerced confession at his trial influenced the jury to convict him
when there was substantial evidence to support his conviction aside
from the confession,
Payne v. Arkansas, supra; that the
jury refrained from making a
Page 381 U. S. 579
clearcut determination on the voluntariness question,
Jackson v. Denno, supra; that a particular judge was
swayed by a direct financial interest in his conviction,
Tumey
v. Ohio, supra; or that the jury gave additional weight to the
testimony of certain prosecution witnesses because of the jury's
repeated contacts with those witnesses during the trial,
Turner
v. Louisiana, supra. How is the defendant to prove that the
prosecutor acted differently than he ordinarily would have, that
defense counsel was more concerned with impressing prospective
clients than with the interests of the defendant, that a juror was
so concerned with how he appeared on television that his mind
continually wandered from the proceedings, that an important
defense witness made a bad impression on the jury because he was
"playing" to the television audience, or that the judge was a
little more lenient or a little more strict than he usually might
be? And then, how is petitioner to show that this combination of
changed attitudes diverted the trial sufficiently from its purpose
to deprive him of a fair trial? It is no answer to say that an
appellate court can review for itself tapes or films of the
proceedings. In the first place, it is not clear that the court
would be able to obtain unedited tapes or films to review. Even
with the cooperation of counsel on both sides, this Court was
unable to obtain films of this trial which were in any sense
complete. In addition time limitations might restrict the
television companies to taking pictures only of those portions of
the trial that are most newsworthy and most likely to attract the
attention of the viewing audience. More importantly, the tapes or
films, even if unedited, could give a wrong impression of the
proceedings. The camera which takes pictures cannot take a picture
of itself. In addition, the camera cannot possibly cover the
actions of all trial participants during the trial. While the
camera is focused on the
Page 381 U. S. 580
judge who is apparently acting properly, a juror may be glancing
up to see where the camera is pointing, and counsel may be looking
around to see whether he can confer with his client without the
close-up lens of the camera focusing on them. Needless to say, the
camera cannot penetrate the minds of the trial participants and
show their awareness that they may at that moment be the subject of
the camera's focus. The most the camera can show is that a formally
correct trial took place, but our Constitution requires more than
form.
I recognize that the television industry has shown in the past
that it can be an enlightening and informing institution, but, like
other institutions, it must respect the rights of others, and
cannot demand that we alter fundamental constitutional conceptions
for its benefit. We must take notice of the inherent unfairness of
television in the courtroom, and rule that its presence is
inconsistent with the "fundamental conception" of what a trial
should be. My conviction that this is the proper holding in this
case is buttressed by the almost unanimous condemnation of
televised court proceedings by the judiciary in this country and by
the strong opposition to the practice by the organized bar in this
country. Canon 35 of the American Bar Association's Canons of
Judicial Ethics prohibits the televising of court trials. [
Footnote 2/37] With only two or possibly
three exceptions, [
Footnote 2/38]
the highest court of each
Page 381 U. S. 581
State which has considered the question has declared that
televised criminal trials are inconsistent with the Anglo-American
conception of "trial." [
Footnote
2/39] Similarly, Rule 53 of the Federal Rules of Criminal
Procedure prohibits
Page 381 U. S. 582
the "broadcasting" of trials, [
Footnote 2/40] and the Judicial Conference of the
United States has unanimously condemned televised trials. [
Footnote 2/41] This condemnation rests on
more than notions of policy; it arises from an understanding of
the
Page 381 U. S. 583
constitutional conception of the term "trial." Such a general
consensus is certainly relevant to this Court's determination of
the question.
See Mapp v. Ohio, 367 U.
S. 643,
367 U. S.
651.
IV
Nothing in this opinion is inconsistent with the constitutional
guarantees of a public trial and the freedoms of speech and the
press.
This Court explained in
In re Oliver, 333 U.
S. 257,
333 U. S. 266,
333 U. S. 270,
that the public trial provision of the Sixth Amendment is a
"guarantee to an accused" designed to "safeguard against any
attempt to employ our courts as instruments of persecution."
Clearly, the openness of the proceedings provides other benefits as
well: it arguably improves the quality of testimony, it may induce
unknown witnesses to come forward with relevant testimony, it may
move all trial participants to perform their duties
conscientiously, and it gives the public the opportunity to observe
the courts in the performance of their duties and to determine
whether they are performing adequately. [
Footnote 2/42] But the guarantee of a public trial
confers no special benefit on the press, the radio industry, or the
television industry. A public trial is a necessary component of an
accused's right to a fair trial, and the concept of public trial
cannot be used to defend conditions which prevent the trial process
from providing a fair and reliable determination of guilt.
To satisfy the constitutional requirement that trials be public
it is not necessary to provide facilities large enough
Page 381 U. S. 584
for all who might like to attend a particular trial, since to do
so would interfere with the integrity of the trial process and make
the publicity of trial proceedings an end in itself. Nor does the
requirement that trials be public mean that observers are free to
act as they please in the courtroom, for persons who attend trials
cannot act in such a way as to interfere with the trial process,
see Moore v. Dempsey, supra. When representatives of the
communications media attend trials, they have no greater rights
than other members of the public. Just as an ordinary citizen might
be prohibited from using field glasses or a motion picture camera
in the courthouse because, by so doing, he would interfere with the
conduct of the trial, representatives of the press and broadcasting
industries are subject to similar limitations when they attend
court. Since the televising of criminal trials diverts the trial
process from its proper end, it must be prohibited. This
prohibition does not conflict with the constitutional guarantee of
a public trial, because a trial is public, in the constitutional
sense, when a courtroom has facilities for a reasonable number of
the public to observe the proceedings, which facilities are not so
small as to render the openness negligible and not so large as to
distract the trial participants from their proper function, when
the public is free to use those facilities, and when all those who
attend the trial are free to report what they observed at the
proceedings.
Nor does the exclusion of television cameras from the courtroom
in any way impinge upon the freedoms of speech and the press. Court
proceedings, as well as other public matters, are proper subjects
for press coverage.
"A trial is a public event. What transpires in the courtroom is
public property. If a transcript of the court proceedings had been
published, we suppose
Page 381 U. S. 585
none would claim that the judge could punish the publisher for
contempt. And we can see no difference though the conduct of the
attorneys of the jury, or even of the judge himself, may have
reflected on the court. Those who see and hear what transpired can
report it with impunity. There is no special perquisite of the
judiciary which enables it, as distinguished from other
institutions of democratic government, to suppress, edit, or censor
events which transpire in proceedings before it. [
Footnote 2/43]"
So long as the television industry, like the other
communications media, is free to send representatives to trials and
to report on those trials to its viewers, there is no abridgment of
the freedom of press. The right of the communications media to
comment on court proceedings does not bring with it the right to
inject themselves into the fabric of the trial process to alter the
purpose of that process.
In summary, television is one of the great inventions of all
time, and can perform a large and useful role in society. But the
television camera, like other technological innovations, is not
entitled to pervade the lives of everyone in disregard of
constitutionally protected rights. [
Footnote 2/44] The television industry, like other
institutions, has a proper area of activities and limitations
beyond which it cannot go with its cameras. That area does not
extend into an American courtroom. On entering that
Page 381 U. S. 586
hallowed sanctuary, where the lives, liberty and property of
people are in jeopardy, television representatives have only the
rights of the general public, namely, to be present, to observe the
proceedings, and thereafter, if they choose, to report them.
[
Footnote 2/1]
N.Y. Times, Sept. 25, 1962, p. 46, col. 4.
See Appendix
Photographs
381
U.S. 532app1|>1,
381
U.S. 532app2|>2,
381
U.S. 532app3|>3.
[
Footnote 2/2]
Counsel explained to the trial court that he desired to protect
petitioner from the cameras until the court had made its
ruling.
[
Footnote 2/3]
See 381
U.S. 532app6|>Appendix, Photograph 6.
[
Footnote 2/4]
See 381
U.S. 532app7|>Appendix, Photograph 7.
[
Footnote 2/5]
Jenks, A Short History of English Law 46-47 (6th ed. 1949); I
Stephen, A History of the Criminal Law of England 51-74 (1883).
[
Footnote 2/6]
See, e.g., Craig v. Harney, 331 U.
S. 367,
331 U. S. 378;
Irvin v. Dowd, 366 U. S. 717,
366 U. S. 728;
Brady v. Maryland, 373 U. S. 83,
373 U. S. 87;
Jackson v. Denno, 378 U. S. 368,
378 U. S.
391.
[
Footnote 2/7]
See Singer v. United States, 380 U. S.
24,
380 U. S.
27.
[
Footnote 2/8]
II Pollock and Maitland, The History of English Law 621-622 (2d
ed. 1906).
[
Footnote 2/9]
I Stephen,
supra, 381
U.S. 532fn2/5|>note 5 at 260.
[
Footnote 2/10]
See 7 Will. 3, c. 3 (1695).
[
Footnote 2/11]
Ibid.
[
Footnote 2/12]
Ibid; 6 & 7 Will. 4, c. 114 (1836).
[
Footnote 2/13]
I Stephen,
supra, 381
U.S. 532fn2/5|>note 5 at 427.
[
Footnote 2/14]
I Journals of the Continental Congress 1774-1789, 69 (Ford ed.
1904).
[
Footnote 2/15]
Radin, The Right to a Public Trial, 6 Temple L.Q. 381, 383, n.
5a (1932).
[
Footnote 2/16]
Adamson v. California, 332 U. S.
46,
332 U. S. 71-72
(dissenting opinion of MR. JUSTICE BLACK).
[
Footnote 2/17]
Gideon v. Wainwright, 372 U. S. 335,
372 U. S.
342.
[
Footnote 2/18]
Pointer v. Texas, 380 U. S. 400,
380 U. S. 408
(opinion of MR. JUSTICE HARLAN, concurring in the result).
[
Footnote 2/19]
Cox v. Louisiana, 379 U. S. 559,
379 U. S. 562;
Frank v. Mangum, 237 U. S. 309,
237 U. S. 347
(dissenting opinion of Justice Holmes).
See Adamson v.
California, 332 U. S. 46,
332 U. S. 53;
In re Murchison, 349 U. S. 133,
349 U. S. 136;
Irvin v. Dowd, 366 U. S. 717,
366 U. S. 722;
Jackson v. Denno, 378 U. S. 368,
378 U. S. 377
(Court opinion),
378 U. S. 424
(dissenting opinion of MR. JUSTICE CLARK),
378 U. S. 428
(dissenting opinion of MR. JUSTICE HARLAN).
[
Footnote 2/20]
Frank v. Mangum, 237 U. S. 309,
237 U. S. 346
(dissenting opinion).
[
Footnote 2/21]
Cox v. Louisiana, 379 U. S. 559,
379 U. S. 583
(dissenting opinion).
[
Footnote 2/22]
See Mooney v. Holohan, 294 U.
S. 103;
Alcorta v. Texas, 355 U. S.
28;
Napue v. Illinois, 360 U.
S. 264; and Brady v. Maryland,
373 U. S.
83.
[
Footnote 2/23]
See 381
U.S. 532app7|>Appendix, Photograph 7.
[
Footnote 2/24]
Keating, "Not
Bonanza,' Not `Peyton Place,' But the U.S.
Senate," N.Y. Times Magazine, April 25, 1965, 67, 72. See,
e.g., N.Y. Times, April 22, 1965, p. 43, col. 2 (in describing
a televised stockholders' meeting the Times reported, "Some
stockholders seemed very much aware they were on camera"); Tinkham,
Should Canon 35 Be Amended? A Question of Proper Judicial
Administration, 42 A.B.A.J. 843, 845 (1956) (in giving examples of
how people react when they know they are on television, the author
describes the reactions of a television audience when the camera
was turned on it as "contorted, grimacing"); Gould, N.Y. Times,
March 11, 1956, ยง 2, p. X11, col. 2 ("The most experienced
performers in show business know the horrors of stage fright before
they go on TV. This psychological and emotional burden must not be
placed on a layman whose testimony may have a bearing on whether,
in a murder trial, another human being is to live or
die.").
[
Footnote 2/25]
See, e.g., Douglas, The Public Trial and the Free
Press, 46 A.B.A.J. 840, 842 (1960). In
United States v.
Kleinman, 107 F.
Supp. 407 (D.C.D.C.1952), the court refused to hold in contempt
witnesses in a congressional hearing who refused to answer
questions while television cameras were focused on them. The court
stated:
"The only reason for having a witness on the stand, either
before a committee of Congress or before a court, is to get a
thoughtful, calm, considered and, it is to be hoped, truthful
disclosure of facts. That is not always accomplished even under the
best of circumstances. But at least the atmosphere of the forum
should lend itself to that end."
"In the cases now to be decided, the stipulation of facts
discloses that there were, in close proximity to the witness,
television cameras, newsreel cameras, news photographers with their
concomitant flashbulbs, radio microphones, a large and crowded
hearing room with spectators standing along the walls, etc. The
obdurate stand taken by these two defendants must be viewed in the
context of all these conditions. The concentration of all of these
elements seems to me necessarily so to disturb and distract any
witness to the point that he might say today something that next
week he will realize was erroneous. And the mistake could get him
in trouble all over again."
Id. at 408.
[
Footnote 2/26]
See, e.g., Douglas,
supra, note 25 at 842;
Yesawich, Televising and Broadcasting Trials, 37 Cornell L.Q. 701,
717 (1952).
[
Footnote 2/27]
Wigmore, A Kaleidoscope of Justice 487 (1941).
[
Footnote 2/28]
Mueller, Problems Posed by Publicity to Crime and Criminal
Proceedings, 110 U.Pa.L.Rev. 1, 6 (1961).
[
Footnote 2/29]
Compare 381
U.S. 532app5|>Appendix, Photograph 5,
with
381
U.S. 532app6|>Appendix, Photograph 6.
[
Footnote 2/30]
N.Y. Times, Jan. 23, 1959, p. 1, col. 1.
[
Footnote 2/31]
Berman, Introduction to the Trial of the U-2 xiii, xii-xiii,
xxix (1960).
[
Footnote 2/32]
A revealing dialogue took place in the present case between
defense counsel and one of the television executives present in the
courtroom during the September 24 hearing.
"Q. The camera on the other side of the room has to look over a
corner of the jury box and past the jurors to be aimed at the
witness box, does it not?"
"A. I think that is pretty clear, sir. I don't think the jurors
would be in the way there."
"Q. You don't think the jurors would get in the way of your
operations?"
"A. I don't mean that exactly, sir."
[
Footnote 2/33]
Petition for writ of certiorari, 35a.
[
Footnote 2/34]
See 381
U.S. 532app4|>Appendix, Photograph 4.
[
Footnote 2/35]
See, e.g., Douglas,
supra, 381
U.S. 532fn2/25|>note 25 at 844.
[
Footnote 2/36]
Cf. Fay v. New York, 332 U. S. 261,
332 U. S. 300
(dissenting opinion of Mr. Justice Murphy).
[
Footnote 2/37]
The Canon provides in pertinent part:
"Proceedings in court should be conducted with fitting dignity
and decorum. The taking of photographs in the court room during
sessions of the court or recesses between sessions, and the
broadcasting or televising of court proceedings, detract from the
essential dignity of the proceedings, distract participants and
witnesses in giving testimony, and create misconceptions with
respect thereto in the mind of the public, and should not be
permitted."
[
Footnote 2/38]
Colorado,
In re Hearings Concerning Canon 35 of Canons of
Judicial Ethics, 296 P.2d 465
(Colo.Sup.Ct.1956), and Texas permit televising of trials in the
discretion of the trial judge. The current situation in Oklahoma is
unclear. In
Lyles v. State, 330 P.2d 734 (1958), the
Criminal Court of Appeals of Oklahoma stated that the televising of
proceedings was in the discretion of the trial judge. In 1959,
however, the Supreme Court adopted a rule prohibiting television
during actual proceedings. Okl.Stat.Ann., Tit. 5 at 65-66 (1963
Supp.). Nevertheless, in 1961, the court again stated that the
televising of trials is a matter for the trial judge's discretion.
Cody v. State, 361
P.2d 307, 84 A.L.R.2d 997 (Ct.Crim.App.Okl.1961).
[
Footnote 2/39]
With the exceptions stated in
381
U.S. 532fn2/38|>note 38,
supra, no State
affirmatively permits televised trials. It has been stated that
Canon 35 is in effect in 30 States. 48 J.Am.Jud.Soc. 80 (1964);
Brief for Petitioner, p. 39. It is difficult to verify this figure
because of the lack of uniformity among the States in reporting
their court rules. However, the following States have clearly
adopted Canon 35 or its equivalent: Alaska, Alaska Rules Crim.Proc.
48; Arizona, Ariz.Sup.Ct.Rule 45, 17 Ariz.Rev.Stat.Ann. at 40;
Connecticut, Conn. Practice Book 27 (1963); Delaware,
Del.Sup.Ct.Rule 33, 13 Del.Code Ann. at 23 (1964 Supp.) (adopted
Canon 35 in its pre-1952 form, which does not explicitly prohibit
television, but does prohibit "the taking of photographs" and
"broadcasting of court proceedings"); Florida, Code of Ethics, Rule
A35, 31 Fla.Stat.Ann. at 285 (1964 Supp.),
see Brumfield v.
State, 108 So. 2d
33 (Fla.Sup.Ct.1958); Hawaii, Hawaii Sup.Ct.Rule 16, 43 Haw.
450; Illinois, 1964 Ann.Rep. of the Ill.Judicial Conference
168-169,
see People v. Ulrich, 376 Ill. 461, 34 N.E.2d 393
(1941),
People v. Munday, 280 Ill. 32, 117 N.E. 286
(1917); Iowa, Iowa Sup.Ct.Rule 119, 40 Iowa Code Ann., c. 610 (1964
Supp.); Kansas, Kansas Sup.Ct. Rule 117, 191 Kan. xxiv (1963) (does
not refer specifically to television); Kentucky, Ky.Ct.App.Rule
3.170, Russell's Kentucky Practice and Service 21 (1964);
Louisiana, Canon of Judicial Ethics XXIII, 242 La. LI (1960);
Michigan, Canon of Judicial Ethics 35, Callaghan's Michigan
Pleading and Practice, Rules at 422-423 (2d ed. 1962); New Jersey,
Canon of Judicial Ethics 35, 1 Waltzinger, New Jersey Practice 299
(Rev. ed. 1954); New Mexico, N.M.Sup.Ct.Rule 27, 4 N.M.Stat.Ann. at
95 (1963 Supp.); New York, N.Y.Rules of the Administrative Board of
the Judicial Conference, Rule 5, N.Y.Judiciary Law at 320 (1964
Supp.); Ohio, 176 Ohio St. lxiv (1964),
see State v.
Clifford, 162 Ohio St. 370, 123 N.E.2d 8 (1954),
cert.
denied, 349 U.S. 929; Tennessee, Tenn.Sup.Ct.Rule 38, 209
Tenn. 818 (1961); Virginia, 201 Va. cvii (1960) (prohibits taking
of photographs and broadcasting, although it does not refer
specifically to television); Washington, 61 Wash.2d xxviii (1963);
West Virginia, 141 W.Va. viii (1955).
In addition, Brand, Bar Associations, Attorneys and Judges (1956
and 1959 Supp.) reports that the Idaho Supreme Court adopted Canon
35 in its present form, and the Supreme Courts of Oregon, South
Dakota and Utah adopted the Canon when it merely prohibited
"photographing" and "broadcasting" without specifically mentioning
television. It has also been reported that the Supreme Court of
Arkansas adopted Canon 35. 44 J.Am.Jud.Soc. 120 (1960).
Moreover, the Supreme Court of California assumed it was
"improper" to televise criminal proceedings in
People v.
Stroble, 36 Cal. 2d
615, 226 P.2d 330 (1951),
affirmed, 343 U. S. 343 U.S.
181,
rehearing denied, 343 U.S. 952;
see the rule
adopted by the Conference of California Judges, 24 Cal.State Bar J.
299 (1949); the Court of Appeals of Maryland, in
Ex parte
Sturm, 152 Md. 114, 122, 136 A. 312, 315, 51 A.L.R. 356
(1927), used language indicating that Maryland would probably bar
television from the courtroom if faced with the problem; and the
Supreme Court of Pennsylvania cited with approval Canon 35 in
Mack Appeal, 386 Pa. 251, 257, n. 5, 126 A.2d 679,
681-682, n. 4 (1956),
cert. denied, 352 U.S. 1002;
see 48 J.Am.Jud.Soc. 200 (1965).
[
Footnote 2/40]
Rule 53 provides:
"The taking of photographs in the court room during the progress
of judicial proceedings or radio broadcasting of judicial
proceedings from the court room shall not be permitted by the
court."
[
Footnote 2/41]
"Resolved, That the Judicial Conference of the United States
condemns the taking of photographs in the courtroom or its environs
in connection with any judicial proceedings, and the broadcasting
of judicial proceedings by radio, television, or other means, and
considers such practices to be inconsistent with fair judicial
procedure, and that they ought not to be permitted in any federal
court."
Annual Report of the Proceedings of the Judicial Conference of
the United States, March 8-9, 1962, p. 10.
[
Footnote 2/42]
See, e.g., 3 Blackstone, Commentaries on the Laws of
England 372-373 (15th ed. 1809); 6 Wigmore, Evidence 332-335 (3d
ed. 1940).
[
Footnote 2/43]
Craig v. Harney, 331 U. S. 367,
331 U. S. 374.
See Bridges v. California, 314 U.
S. 252;
Pennekamp v. Florida, 328 U.
S. 331.
[
Footnote 2/44]
Compare Olmstead v. United States, 277 U.
S. 438,
277 U. S. 471
(dissenting opinion of Mr. Justice Brandeis);
On Lee v. United
States, 343 U. S. 747,
343 U. S. 762
(dissenting opinion of MR. JUSTICE DOUGLAS);
Silverman v.
United States, 365 U. S. 505;
Lopez v. United States, 373 U. S. 427,
373 U. S.
445-446 (opinion concurring in the result),
373 U. S. 465
(dissenting opinion of MR. JUSTICE BRENNAN).
APPENDIX TO OPINION OF MR. CHIEF JUSTICE WARREN.
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Page 381 U. S. 587
MR. JUSTICE HARLAN, concurring.
I concur in the opinion of the Court, subject, however, to the
reservations and only to the extent indicated in this opinion.
The constitutional issue presented by this case is far-reaching
in its implications for the administration of justice in this
country. The precise question is whether the Fourteenth Amendment
prohibits a State, over the objection of a defendant, from
employing television in the courtroom to televise
contemporaneously, or subsequently by means of videotape, the
courtroom proceedings of a criminal trial of widespread public
interest. The issue is no narrower than this because petitioner has
not asserted any isolatable prejudice resulting from the presence
of television apparatus within the courtroom or from the
contemporaneous or subsequent broadcasting of the trial
proceedings. On the other hand, the issue is no broader, for we are
concerned here only with a criminal trial of great notoriety, and
not with criminal proceedings of a more or less routine nature.
The question is fraught with unusual difficulties. Permitting
television in the courtroom undeniably has mischievous
potentialities for intruding upon the detached atmosphere which
should always surround the judicial process. Forbidding this
innovation, however, would doubtless impinge upon one of the valued
attributes of our federalism by preventing the States from pursuing
a novel course of procedural experimentation. My conclusion is that
there is no constitutional requirement that television be allowed
in the courtroom, and, at least as to a notorious criminal trial
such as this one, the considerations against allowing television in
the courtroom so far outweigh the countervailing factors advanced
in its support as to require a holding that what was done in this
case infringed the fundamental right to a fair trial assured by the
Due Process Clause of the Fourteenth Amendment.
Page 381 U. S. 588
Some preliminary observations are in order: all would agree, I
am sure, that, at its worst, television is capable of distorting
the trial process so as to deprive it of fundamental fairness.
Cables, kleig lights, interviews with the principal participants,
commentary on their performances, "commercials" at frequent
intervals, special wearing apparel and makeup for the trial
participants -- certainly such things would not conduce to the
sound administration of justice by any acceptable standard. But
that is not the case before us. We must judge television as we find
it in this trial -- relatively unobtrusive, with the cameras
contained in a booth at the back of the courtroom.
I
No constitutional provision guarantees a right to televise
trials. The "public trial" guarantee of the Sixth Amendment, which
reflects a concept fundamental to the administration of justice in
this country,
In re Oliver, 333 U.
S. 257, certainly does not require that television be
admitted to the courtroom.
See United Press Assns. v.
Valente, 308 N.Y.
71, 123 N.E.2d 777. Essentially, the public trial guarantee
embodies a view of human nature, true as a general rule, that
judges, lawyers, witnesses, and jurors will perform their
respective functions more responsibly in an open court than in
secret proceedings.
In re Oliver, supra, 333 U.S. at
333 U. S.
266-273. A fair trial is the objective, and "public
trial" is an institutional safeguard for attaining it.
Thus, the right of "public trial" is not one belonging to the
public, but one belonging to the accused, and inhering in the
institutional process by which justice is administered. Obviously,
the public trial guarantee is not violated if an individual member
of the public cannot gain admittance to a courtroom because there
are no available seats. The guarantee will already have been met,
for the "public" will be present in the form of those persons
Page 381 U. S. 589
who did gain admission. Even the actual presence of the public
is not guaranteed. A public trial implies only that the court must
be open to those who wish to come, sit in the available seats,
conduct themselves with decorum, and observe the trial process. It
does not give anyone a concomitant right to photograph, record,
broadcast, or otherwise transmit the trial proceedings to those
members of the public not present, although, to be sure, the
guarantee of public trial does not, of itself, prohibit such
activity.
The free speech and press guarantees of the First and Fourteenth
Amendments are also asserted as embodying a positive right to
televise trials, but the argument is greatly overdrawn.
Unquestionably, television has become a very effective medium for
transmitting news. Many trials are newsworthy, and televising them
might well provide the most accurate and comprehensive means of
conveying their content to the public. Furthermore, television is
capable of performing an educational function by acquainting the
public with the judicial process in action. Albeit these are
credible policy arguments in favor of television, they are not
arguments of constitutional proportions. The rights to print and
speak, over television as elsewhere, do not embody an independent
right to bring the mechanical facilities of the broadcasting and
printing industries into the courtroom. Once beyond the confines of
the courthouse, a news-gathering agency may publicize, within wide
limits, what its representatives have heard and seen in the
courtroom. But the line is drawn at the courthouse door, and
within, a reporter's constitutional rights are no greater than
those of any other member of the public. Within the courthouse, the
only relevant constitutional consideration is that the accused be
accorded a fair trial. If the presence of television substantially
detracts from that goal, due process requires that its use be
forbidden.
Page 381 U. S. 590
I see no force in the argument that to exclude television
apparatus from the courtroom, while at the same time permitting
newspaper reporters to bring in their pencils and notebooks, would
discriminate in favor of the press as against the broadcasting
services. The distinctions to be drawn between the accouterments of
the press and the television media turn not on differences of size
and shape, but of function and effect. The presence of the press at
trials may have a distorting effect, but it is not caused by their
pencils and notebooks. If it were, I would not hesitate to say that
such physical paraphernalia should be barred.
II
The probable impact of courtroom television on the fairness of a
trial may vary according to the particular kind of case involved.
The impact of television on a trial exciting wide popular interest
may be one thing; the impact on a "run of the mill" case may be
quite another. Furthermore, the propriety of closed circuit
television for the purpose of making a court recording or for
limited use in educational institutions obviously presents markedly
different considerations. The Estes trial was a heavily publicized
and highly sensational affair. I therefore put aside all other
types of cases; in so doing, however, I wish to make it perfectly
clear that I am by no means prepared to say that the constitutional
issue should ultimately turn upon the nature of the particular case
involved. When the issue of television in a non-notorious trial is
presented, it may appear that no workable distinction can be drawn
based on the type of case involved, or that the possibilities for
prejudice, though less severe, are nonetheless of constitutional
proportions.
Compare Powell v. Alabama, 287 U. S.
45;
Betts v. Brady, 316 U.
S. 455;
Gideon v. Wainwright, 372 U.
S. 335. The resolution of those further questions should
await an appropriate case; the
Page 381 U. S. 591
Court should proceed only step by step in this unplowed field.
The opinion of the Court necessarily goes no farther, for only the
four members of the majority who unreservedly join the Court's
opinion would resolve those questions now.
I do not deem the constitutional inquiry in this case ended by
the finding, in effect conceded by petitioner's counsel, that no
isolatable prejudice was occasioned by the manner in which
television was employed in this case. [
Footnote 3/1] Courtroom television introduces into the
conduct of a criminal trial the element of professional
"showmanship," an extraneous influence whose subtle capacities for
serious mischief in a case of this sort will not be underestimated
by any lawyer experienced in the elusive imponderables of the trial
arena. In the context of a trial of intense public interest, there
is certainly a strong possibility that the timid or reluctant
witness, for whom a court appearance -- even at its traditional
best -- is a harrowing affair, will become more timid or reluctant
when he finds that he will also be appearing before a "hidden
audience" of unknown but large dimensions. There is certainly a
strong possibility that the "cocky" witness having a thirst for the
limelight will become more "cocky" under the influence of
television. And who can say that the juror who is gratified by
having been chosen for a front-line case, an ambitious prosecutor,
a publicity-minded defense counsel, and even a conscientious judge
will not stray, albeit unconsciously, from doing what "comes
naturally" into pluming themselves for a satisfactory television
"performance"?
Page 381 U. S. 592
Surely possibilities of this kind carry grave potentialities for
distorting the integrity of the judicial process bearing on the
determination of the guilt or innocence of the accused, and, more
particularly, for casting doubt on the reliability of the
factfinding process carried on under such conditions.
See
Douglas, The Public Trial and the Free Press, 46 A.B.A.J. 840
(1960). To be sure, such distortions may produce no telltale signs,
but, in a highly publicized trial, the danger of their presence is
substantial, and their effects may be far more pervasive and
deleterious than the physical disruptions which all concede would
vitiate a conviction. A lively public interest could increase the
size of the viewing audience immensely, and the masses of
spectators to whom the trial is telecast would have become
emotionally involved with the case through the dissemination of
pretrial publicity, the usual concomitant of such a case. The
presence of television would certainly emphasize to the trial
participants that the case is something "special." Particularly
treacherous situations are presented in cases where pretrial
publicity has been massive, [
Footnote
3/2] even when jurors positively state they will not be
influenced by it;
see Rideau v. Louisiana, 373 U.
S. 723;
Irvin v. Dowd, 366 U.
S. 717. To increase the possibility of influence and the
danger of a "popular verdict" by subjecting the jurors to the view
of a mass audience whose approach to the case has been conditioned
by pretrial publicity can only make a bad situation worse. The
entire thrust of rules of evidence and the other protections
attendant upon the modern trial is to keep extraneous influences
out of the courtroom.
Turner v. Louisiana, 379 U.
S. 466,
379 U. S.
472-473. As we recently observed in
Turner,
"Mr. Justice Holmes stated no more than a truism when he
observed that '[a]ny judge who has sat with juries knows that, in
spite of forms they
Page 381 U. S. 593
are extremely likely to be impregnated by the environing
atmosphere.'
Frank v. Mangum, 237 U. S.
309, at
237 U. S. 349 (dissenting
opinion)."
Id. at
379 U. S. 472.
[
Footnote 3/3] The knowledge on the
part of the jury and other trial participants that they are being
televised to an emotionally involved audience can only aggravate
the atmosphere created by pretrial publicity.
The State argues that specific prejudice must be shown for the
Due Process Clause to apply. I do not believe that the Fourteenth
Amendment is so impotent when the trial practices in question are
instinct with dangers to constitutional guarantees. I am at a loss
to understand how the Fourteenth Amendment can be thought not to
encompass protection of a state criminal trial from the dangers
created by the intrusion of collateral and wholly irrelevant
influences into the courtroom. The Court has not hesitated in the
past to condemn such practices, even without any positive showing
of isolatable prejudice. In
Turner v. Louisiana, supra,
decided just this Term, we held that the "potentialities" for
distortion of the trial created by a key witness serving as bailiff
to a sequestered jury were sufficient to violate the Due Process
Clause of the Fourteenth Amendment. In
Jackson v. Denno,
378 U. S. 368, the
Court made the judgment that a trial judge's determination of a
coerced confession issue is more likely to avoid prejudice than a
jury determination, a judgment which indeed overrode a longstanding
contrary state practice. And in
Irvin v. Dowd,
366 U. S. 717, we
held that flamboyant pretrial publicity cast sufficient doubt on
the impartiality of the jury to vitiate a conviction, even in the
face of statements by all the jurors that they were not subject to
its influence.
See 366 U.S. at
366 U. S. 729
(Frankfurter, J., concurring). Other examples of
Page 381 U. S. 594
instances in which the Court has exercised its judgment as to
the effects of one thing or another on human behavior are
plentiful.
See, e.g., Griffin v. California, 380 U.
S. 609;
Tancil v. Woolls, 379 U. S.
19;
Mapp v. Ohio, 367 U.
S. 643 (
compare People v. Defore, 242 N.Y. 13,
150 N.E. 585);
Avery v. Georgia, 345 U.
S. 559;
Brown v. Board of Education,
347 U. S. 483,;
Tumey v. Ohio, 273 U. S. 510.
The judgment that the presence of television in the courtroom
represents a serious danger to the trial process is supported by a
vast segment of the Bar of this country, as evidenced by Canon 35
of the Canons of Judicial Ethics of the American Bar Association,
counseling against such practices, [
Footnote 3/4] the views of the Judicial Conference of
the United States (
infra, p.
381 U. S.
601), Rule 53 of the Federal Rules of Criminal
Procedure, and even the "personal views" (
post, pp.
381 U. S.
601-602) of the Justices on the dissenting side of the
present case.
The arguments advanced against the constitutional banning of
televised trials seem to me peculiarly unpersuasive. It is said
that the pictorial broadcasting of trials will serve to educate the
public as to the nature of the judicial process. Whatever force
such arguments might have in "run of the mill" cases, they carry
little weight in cases of the sort before us, where the public's
interest in viewing the trial is likely to be engendered more by
curiosity about the personality of the well known figure who is the
defendant (as here), or about famous witnesses or lawyers who will
appear on the television screen, or about the details of the
particular crime involved, than by innate curiosity to learn about
the workings of the judicial process itself. Indeed, it would be
naive not to suppose that it would be largely such factors that
would qualify a trial for commercial television
Page 381 U. S. 595
"billing," and it is precisely that kind of case where the risks
of permitting television coverage of the proceedings are at their
greatest.
It is also asserted that televised trials will cause witnesses
to be more truthful, and jurors, judges, and lawyers more diligent.
To say the least, this argument is sophistic, for it is impossible
to believe that the reliability of a trial as a method of finding
facts and determining guilt or innocence increases in relation to
the size of the crowd which is watching it. Attendance by
interested spectators in the courtroom will fully satisfy the
safeguards of "public trial." Once openness is thus assured, the
addition of masses of spectators would, I venture to say, detract,
rather than add, to the reliability of the process.
See Cox v.
Louisiana, 379 U. S. 559,
379 U. S. 562.
A trial in Yankee Stadium, even if the crowd sat in stony silence,
would be a substantially different affair from a trial in a
traditional courtroom under traditional conditions, and the
difference would not, I think, be that the witnesses, lawyers,
judges, and jurors in the stadium would be more truthful, diligent,
and capable of reliably finding facts and determining guilt or
innocence. [
Footnote 3/5] There
will be no disagreement, I am sure, among those competent to judge
that precisely the opposite would likely be the case.
Finally, we should not be deterred from making the
constitutional judgment which this case demands by the prospect
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. If and when that day arrives, the
constitutional
Page 381 U. S. 596
judgment called for now would, of course, be subject to
reexamination in accordance with the traditional workings of the
Due Process Clause. At the present juncture, I can only conclude
that televised trials, at least in cases like this one, possess
such capabilities for interfering with the even course of the
judicial process that they are constitutionally banned. On these
premises, I concur in the opinion of the Court.
[
Footnote 3/1]
The trial judge ordered that there was to be no audio
transmission of the witnesses' testimony. The witnesses, however,
were present at the September hearing when everything was
broadcast, and the record does not show affirmatively that they
were aware that the microphone which confronted them during the
actual trial was not being used for the same purpose.
[
Footnote 3/2]
Petitioner in this case amassed 11 volumes of pretrial press
clippings.
[
Footnote 3/3]
The Court had occasion to recognize in
Cox v.
Louisiana, 379 U. S. 559,
379 U. S. 565,
that even "judges are human," and not immune from outside
environmental influences.
[
Footnote 3/4]
The consistent position of the American Bar Association is set
out in the
381
U.S. 532app2|>Appendix.
[
Footnote 3/5]
There may, of course, be a difference in impact upon the
atmosphere and trial participants between the physical presence of
masses of people and the presence of a camera lens which permits
masses of people to observe the process remotely. However, the
critical element is the knowledge of the trial participants that
they are subject to such visual observation, an element which is,
of course, present in this case.
|
381
U.S. 532app2|
APPENDIX TO OPINION OF MR. JUSTICE HARLAN,
CONCURRING.
The development of Canon 35 is set out at length in the
amicus curiae brief of the American Bar Association, pp.
3-8, as follows:
"It [Canon 35] was originally adopted on September 30, 1937, by
the House of Delegates [
Footnote
4/1] in the following form:"
"'Proceedings in court should be conducted with fitting dignity
and decorum. The taking of photographs in the court room, during
sessions of the court or recesses between sessions, and the
broadcasting of court proceedings are calculated to detract from
the essential dignity of the proceedings, degrade the court and
create misconceptions with respect thereto in the mind of the
public and should not be permitted.'"
"62 A.B.A.Rep. 1134-35 (1937)."
"A Special Committee on Cooperation Between Press, Radio and
Bar, as to Publicity Interfering with Fair Trial of Judicial and
Quasi-Judicial Proceedings had reported to the Association its
grave concern with the dangers attendant upon the use of radio in
connection with trials, particularly
Page 381 U. S. 597
in light of the spectacular publicity and broadcast of the trial
of Bruno Hauptmann. [
Footnote 4/2]
The Committee specifically referred to the evil of 'trial in the
air'. [
Footnote 4/3] 62 A.B.A.Rep.
860 (1937)."
"After the adoption of Judicial Canon 35, the direct radio
broadcasting of court proceedings was disapproved by the
Association's Committee on Professional Ethics and Grievances in
its Opinion No. 212, March 15, 1941, as being specifically
condemned. The Committee quoted with approval the following
statement of the Michigan and Detroit Bar Associations:"
" Such broadcasts are unfair to the defendant and to the
witnesses. The natural embarrassment and confusion of a citizen on
trial should not be increased by a realization that his voice and
his difficulties are being used as entertainment for a vast radio
audience. The fear expressed by most persons when facing an
audience or microphone is a matter of common knowledge, and but few
defendants or witnesses can properly concentrate on facts and
testify fully and fairly when so handicapped. . . . Such broadcasts
are unfair to the Judge, who should be permitted to devote his
undivided attention to the case unmindful of the effect which his
comments or decision may
Page 381 U. S. 598
have upon the radio audience."
"AMERICAN BAR ASSOCIATION, OPINIONS OF THE COMMITTEE ON
PROFESSIONAL ETHICS AND GRIEVANCES 426 (1957)."
"In 1952, the growing prominence of television as a medium of
mass communication was dealt with in a report of the Special
Committee on Televising and Broadcasting Legislative and Judicial
Proceedings (headed by the late John W. Davis). 77 A.B.A.Rep. 607
(1952). In condemning the practice of televising judicial
proceedings, the Committee called attention to the fact that:"
" The attention of the court, the jury, lawyers and witnesses
should be concentrated upon the trial itself, and ought not to be
divided with the television or broadcast audience who, for the most
part, have merely the interest of curiosity in the proceedings. It
is not difficult to conceive that all participants may become
over-concerned with the impression their actions, rulings or
testimony will make on the absent multitude."
"
Id. at 610. As a result of this report, and the
recommendation of the Committee on Professional Ethics and
Grievances, Judicial Canon 35 was amended by inserting a ban on the
'televising' of court proceedings and inserting the descriptive
phrase 'distract the witness in giving his testimony' before the
phrase 'degrade the court.' In addition, a second paragraph was
added providing for the televising and broadcasting of certain
ceremonial proceedings.
Id. at 110-11."
"In October, 1954, the Board of Governors authorized the
appointment of a Special Bar-Media Conference Committee on Fair
Trial-Free Press to meet with representatives of the press, radio,
and television. The views of both sides were thoroughly explored,
and were presented in detail in the September, 1956, issue of the
American Bar Association Journal. [
Footnote 4/4] After extensive joint debate,
Page 381 U. S. 599
no solutions or agreements were reached. 83 A.B.A.Rep. 790-91
(1958). The Committee did report that it was convinced that"
"courtroom photographing or broadcasting or both would impose
undue police duties upon the trial judge[,] . . . that the
broadcasting and the photographing in the courtroom might have an
adverse psychological effect upon trial participants, judges,
lawyers, witnesses and juries[,] . . . [and] that partial
broadcasts of trials, particularly on television, might influence
public opinion which in turn might influence trial results. . .
."
"
Id. at 645."
"Following the presentation of the Bar-Media Conference
Committee report, and in connection with the consideration of a
report and recommendation of a Special Committee of the American
Bar Foundation created in July, 1955 (83 A.B.A.Rep. 643-45 (1958)),
the House of Delegates conducted a hearing as a 'Committee of the
Whole' during its February, 1958, session at which proponents and
opponents of Judicial Canon 35 were fully heard. 83 A.B.A.Rep.
648-69 (1958). Thereafter at the August, 1958, meeting of the House
of Delegates, it was decided to have a Special Committee study
Canon 35 and"
"conduct further studies of the problem, including the obtaining
of a body of reliable factual data on the experience of judges and
lawyers in those courts were either photography, televising or
broadcasting, or all of them, are permitted. . . . The fundamental
objective of the Committee and of all others interested must be to
consider and make recommendations which will preserve the right of
fair trial."
"83 A.B.A.Rep. 284 (1958)."
"The Special Committee filed an Interim Report and
Recommendations with the House of Delegates in August,
Page 381 U. S. 600
1962 setting forth the 'Area and Perspective' of its survey and
studies. The report included portions of testimony by media
representatives taken at a hearing held in Chicago on February 18,
1962, as well as a summary of the Committee's informal conference
with certain representatives from Colorado and Texas. In addition,
the report included written comments by officers of State Bar
Associations responding to a Committee survey, and certain general
correspondence received by the Committee regarding Judicial Canon
35. The report also listed significant publications favoring either
revision or retention of the Canon. . . . [Hereinafter cited
Int.Rep.]"
"The Special Committee thereafter submitted its final report and
recommendations, concluding that the substantive provisions of
Judicial Canon 35 remain valid, and 'should be retained as
essential safeguards of the individual's inviolate and personal
right of fair trial.' . . . The Committee did recommend certain
minor deletions . . . and changes . . . which were adopted by the
House of Delegates, after full debate, on February 5, 1963:"
"The taking of photographs in the courtroom, during sessions of
the court or recesses between sessions, and the broadcasting or
televising of court proceedings [are calculated to] detract from
the essential dignity of the proceedings, distract [the]
participants and witnesses in giving [his] testimony, [degrade the
court,] and create misconceptions with respect thereto in the mind
of the public, and should not be permitted. [
Footnote 4/5] "
Page 381 U. S. 601
"A vast majority of the states have voluntarily adopted Judicial
Canon 35 in one form or another, and it has been embodied in
principle in Rule 53 of the Federal Rules of Criminal Procedure. In
a recent Resolution of the Judicial Conference of the United
States, the philosophy of Canon 35 was unanimously reaffirmed:"
" Resolved, That the Judicial Conference of the United States
condemns the taking of photographs in the courtroom or its environs
in connection with any judicial proceeding, and the broadcasting of
judicial proceedings by radio, television, or other means, and
considers such practices to be inconsistent with fair judicial
procedure and that they ought not to be permitted in any federal
court."
"
Int.Rep. p. 97."
(Footnotes numbered and partially omitted.)
[
Footnote 4/1]
The House of Delegates is not only the governing body of the
American Bar Association; because of the presence of
representatives of all State Bar Associations, the largest and most
important local bar associations, and of other important national
professional groups, it is in fact a broadly representative policy
forum for the profession as a whole.
[
Footnote 4/2]
See State v. Hauptmann, 115 N.J.L. 412, 180 Atl. 809
(Ct.Err. & App.),
cert. denied, 296 U.
S. 649.
[
Footnote 4/3]
Prior to the adoption of Judicial Canon 35, the impropriety of
permitting radio broadcasts of court proceedings was recognized by
the Committee on Professional Ethics and Grievances of the
Association in its Opinion No. 67, March 21, 1932. The Committee
had recourse to Judicial Canon 34, which provides that a judge
should not administer his office "for the purpose of advancing his
personal ambitions or increasing his popularity." The Committee
found that radio broadcasting of a trial changes
"what should be the most serious of human institutions either
into an enterprise for the entertainment of the public or of one
for promoting publicity for the judge."
AMERICAN BAR ASSOCIATION, OPINIONS OF THE COMMITTEE ON
PROFESSIONAL ETHICS AND GRIEVANCES 163 (1957).
[
Footnote 4/4]
42 A.B.A.J. 834, 838, 843 (1956).
[
Footnote 4/5]
The full text of Judicial Canon 35, as amended, is as
follows:
"IMPROPER PUBLICIZING OF COURT PROCEEDINGS"
"Proceedings in court should be conducted with fitting dignity
and decorum. The taking of photographs in the courtroom, during
sessions of the court or recesses between sessions, and the
broadcasting or televising of court proceedings detract from the
essential dignity of the proceedings, distract participants and
witnesses in giving testimony, and create misconceptions with
respect thereto in the mind of the public and should not be
permitted."
"Provided that this restriction shall not apply to the
broadcasting or televising, under the supervision of the court, of
such portions of naturalization proceedings (other than the
interrogation of applicants) as are designed and carried out
exclusively as a ceremony for the purpose of publicly demonstrating
in an impressive manner the essential dignity and the serious
nature of naturalization."
MR. JUSTICE STEWART, whom MR. JUSTICE BLACK, MR. JUSTICE
BRENNAN, and MR. JUSTICE WHITE join, dissenting.
I cannot agree with the Court's decision that the circumstances
of this trial led to a denial of the petitioner's Fourteenth
Amendment rights. I think that the introduction of television into
a courtroom is, at least in the present state of the art, an
extremely unwise policy. It invites many constitutional risks, and
it detracts from the inherent dignity of a courtroom. But I am
unable to escalate this personal view into a
per se
constitutional
Page 381 U. S. 602
rule. And I am unable to find, on the specific record of this
case, that the circumstances attending the limited televising of
the petitioner's trial resulted in the denial of any right
guaranteed to him by the United States Constitution.
On October 22, 1962, the petitioner went to trial in the Seventh
Judicial District Court of Smith County, Texas, upon an indictment
charging him with the offenses of (1) swindling, (2) theft by false
pretenses, and (3) theft by a bailee. After a week spent in
selecting a jury, the trial itself lasted some three and a half
days. At its conclusion, the jury found the petitioner guilty of
the offense of swindling under the first count of the indictment.
The trial judge permitted portions of the trial proceedings to be
televised, under the limitations described below. He also gave news
photographers permission to take still pictures in the courtroom
under specified conditions.
The Texas Court of Criminal Appeals affirmed the petitioner's
conviction, and we granted certiorari, limited to a single
question. The question, as phrased by the petitioner, is this:
"Whether the action of the trial court, over petitioner's
continued objection, denied him due process of law and equal
protection of the laws under the Fourteenth Amendment to the
Constitution of the United States, in requiring petitioner to
submit to live television of his trial, and in refusing to adopt in
this all out publicity case, as a rule of trial procedure, Canon 35
of the Canons of Judicial Ethics of the American Bar Association,
and instead adopting and following, over defendant's objection,
Canon 28 of the Canons of Judicial Ethics, since approved by the
Judicial Section of the integrated (State agency) State Bar of
Texas."
The two Canons of Judicial Ethics referred to in the
petitioner's statement of the question presented are set
Page 381 U. S. 603
out in the margin. [
Footnote
5/1] But, as the Court rightly says, the problem before us is
not one of choosing between the conflicting guidelines reflected in
these Canons of Judicial Ethics. It is a problem rooted in the Due
Process Clause of the Fourteenth Amendment. We deal here with
matters subject to continuous and unforeseeable change -- the
Page 381 U. S. 604
techniques of public communication. In an area where all the
variables may be modified tomorrow, I cannot at this time rest my
determination on hypothetical possibilities not present in the
record of this case. There is no claim here based upon any right
guaranteed by the First Amendment. But it is important to remember
that we move in an area touching the realm of free communication,
and, for that reason, if for no other, I would be wary of imposing
any
per se rule which, in the light of future technology,
might serve to stifle or abridge true First Amendment rights.
I
The indictment was originally returned by a grand jury in Reeves
County, Texas, and it engendered widespread publicity. After some
preliminary proceedings there, the case was transferred for trial
to Smith County, more than 500 miles away. The trial was set for
September 24, 1962, but it did not commence on that date. Instead,
that day and the next were spent in hearings on two motions filed
by defense counsel: a motion to bar television and news cameras
from the trial and a motion to continue the trial to a later date.
Those proceedings were themselves telecast "live," and news
photographers were permitted to take pictures in the courtroom. The
activities of the television crews and news photographers led to
considerable disruption of the hearings. [
Footnote 5/2] At the conclusion
Page 381 U. S. 605
of the hearings the motion for a continuance was granted, and
the case reset for trial on October 22. The motion to bar
television and news photographers from the trial was denied.
[
Footnote 5/3]
Page 381 U. S. 606
On October 1, the trial judge issued an order delineating what
coverage he would permit during the trial. [
Footnote 5/4] As a result of that order and ensuing
conferences between the judge and representatives of the news
media, the environment for the trial, which began on October 22,
was in sharp contrast to that of the September hearings. The actual
extent of television and news photography in the
Page 381 U. S. 607
courtroom was described by the judge, after the trial had ended,
in certifying the petitioner's bill of exceptions. This description
is confirmed by my understanding of the entire record, and was
agreed to and accepted by defense counsel:
"Prior to the trial of October 22, 1962, there was a booth
constructed and placed in the rear of the courtroom painted the
same or near the same color as the courtroom, with a small opening
across the top for the use of cameras. . . ."
"Live telecasting and radio broadcasting were not permitted, and
the only telecasting was on film without sound, and there was not
any broadcasting of the trial by radio permitted. Each network,
ABC, NBC, CBS and KRLD (KLTV) Television in Tyler was allowed a
camera in the courtroom. . . . The telecasting on film of this case
was not a continuous camera operation, and only pictures being
taken at intervals during the day to be used on their regular news
casts later in the day. There were some days during the trial that
cameras of only one or two stations were in operation, the others
not being in attendance upon the Court each and every day. The
Court did not permit any cameras other than those that were
noiseless, nor were flood lights and flash bulbs allowed to be used
in the courtroom. The Court permitted one news photographer
with
Page 381 U. S. 608
Associated Press, United Press International, and Tyler Morning
Telegraph and Courier Times. However, they were not permitted
inside the Bar, and the Court did not permit any telecasting or
photographing in the hallways leading into the courtroom or on the
second floor of the courthouse, where the courtroom is situated, in
order that the Defendant and his attorneys would not be hindered,
molested or harassed in approaching or leaving the courtroom. The
Court did permit live telecasting of the arguments of State's
counsel and the returning of the verdict by the jury and its
acceptance by the Court. The opening argument of the District
Attorney of Smith County was carried by sound, and, because of
transmission difficulty, there was not any picture. The closing
argument for the State by the District Attorney of Reeves County
was carried live by both picture and sound. The arguments of
attorneys for Defendant, John D. Cofer and Hume Cofer were not
telecast or broadcast, as the Court granted their Motion that same
not be permitted."
"There was not any televising at any time during the trial
except from the booth in the rear of the courtroom, and, during the
argument of counsel to the jury, news photography was required to
operate from the booth so that they would not interfere or detract
from the attention of either the jurors or the attorneys."
"During the trial that began October 22nd, there was never at
any time any radio broadcasting equipment in the courtroom. There
was some equipment in a room off of the courtroom where there were
periodic news reports given, and, throughout the trial that began
October 22nd, not any witness requested not to be televised or
photographed while they were testifying. Neither did any juror,
while being interrogated on
voir dire or at any other
time, make any request of the Court not to be televised."
Thus, except for the closing arguments for the prosecution and
the return of the jury's verdict, there was no "live" telecasting
of the trial. And, even for purposes of delayed telecasting on
later news programs, no words or other sounds were permitted to be
recorded while the members of the jury were being selected or while
any witness was testifying. No witnesses and no jurors were
televised or photographed over their objection. [
Footnote 5/5]
Finally, the members of the jury saw no telecasts and no
pictures of anything that went on during the trial. In accord with
Texas law, the jurors were sequestered, day and night, from the
beginning of the trial until it ended. [
Footnote 5/6] The jurors were lodged each night in
quarters provided for that purpose in the courthouse itself. On the
evening of November 6, by agreement of counsel and special
permission of the court, the members of the jury were permitted to
watch the election returns on television for a short period. For
this purpose, a portable television was brought into the jury's
quarters by a court officer, and operated by him. Otherwise, the
jurors were not permitted to watch television at any time during
the trial. The only newspapers permitted the jury were ones from
which all coverage of the trial had been physically removed.
II
It is important to bear in mind the precise limits of the
question before us in this case. The petition for a writ of
certiorari asked us to review four separate constitutional claims.
We declined to review three of them, among which was the claim that
the members of the jury "had received through the news media
damaging and prejudicial
Page 381 U. S. 610
evidence. . . ." [
Footnote 5/7]
We thus left undisturbed the determination of the Texas Court of
Criminal Appeals that the members of the jury were not prejudiced
by the widespread publicity which preceded the petitioner's trial.
One ingredient of this pretrial publicity was the telecast of the
September hearings. Despite the confusion in the courtroom during
those hearings, all that a potential juror could have possibly
learned from watching them on television was that the petitioner's
case had been called for trial, and that motions had been made and
acted upon for a continuance, and to exclude cameras and
television. At those hearings, there was no discussion whatever of
anything bearing on the petitioner's guilt or innocence. This was
conceded by the petitioner's counsel at the trial. [
Footnote 5/8]
Because of our refusal to review the petitioner's claim that
pretrial publicity had a prejudicial effect upon the jurors in this
case, and because, insofar as the September hearings were an
element of that publicity, the claim is patently without merit,
that issue is simply not here. Our decision in
Rideau v.
Louisiana, 373 U. S. 723,
therefore, has no bearing at all in this case. There, the record
showed that the inhabitants of the small Louisiana parish where the
trial was held had repeatedly been exposed to a television film
showing
"Rideau, in jail, flanked by the sheriff and two state troopers,
admitting in detail the commission of the robbery, kidnapping, and
murder, in response to leading questions by the sheriff."
373 U.S.
Page 381 U. S. 611
at
373 U. S. 725.
We found that "[a]ny subsequent court proceedings in a community so
pervasively exposed to such a spectacle could be but a hollow
formality."
Id. at
373 U. S. 726.
See also Irvin v. Dowd, 366 U. S. 717.
The
Rideau case was no more than a contemporary
application of enduring principles of procedural due process,
principles reflected in such earlier cases as
Moore v.
Dempsey, 261 U. S. 86;
Brown v. Mississippi, 297 U. S. 278; and
Chambers v. Florida, 309 U. S. 227,
309 U. S.
235-241. "Under our Constitution's guarantee of due
process," we said,
"a person accused of committing a crime is vouchsafed basic
minimal rights. Among these are the right to counsel, the right to
plead not guilty, and the right to be tried in a courtroom presided
over by a judge."
373 U.S. at
373 U. S.
726-727. We had occasion to apply the same basic
concepts of procedural due process earlier this Term in
Turner
v. Louisiana, 379 U. S. 466.
"In the constitutional sense, trial by jury in a criminal case
necessarily implies at the very least that the 'evidence developed'
against a defendant shall come from the witness stand in a public
courtroom where there is full judicial protection of the
defendant's right of confrontation, of cross-examination, and of
counsel."
379 U.S. at
379 U. S.
472-473.
But we do not deal here with mob domination of a courtroom, with
a kangaroo trial, with a prejudiced judge or a jury inflamed with
bias. Under the limited grant of certiorari in this case, the sole
question before us is an entirely different one. It concerns only
the regulated presence of television and still photography at the
trial itself, which began on October 22, 1962. Any discussion of
pretrial events can do no more than obscure the important question
which is actually before us.
III
It is obvious that the introduction of television and news
cameras into a criminal trial invites many serious constitutional
hazards. The very presence of photographers
Page 381 U. S. 612
and television cameramen plying their trade in a courtroom might
be so completely and thoroughly disruptive and distracting as to
make a fair trial impossible . Thus, if the scene at the September
hearing had been repeated in the courtroom during this jury trial,
it is difficult to conceive how a fair trial in the constitutional
sense could have been afforded the defendant. [
Footnote 5/9] And even if, as was true here, the
television cameras are so controlled and concealed as to be hardly
perceptible in the courtroom itself, there are risks of
constitutional dimensions that lurk in the very process of
televising court proceedings at all.
Some of those risks are catalogued in the
amicus curiae
brief filed in this case by the American Bar Association:
"[P]otential or actual jurors, in the absence of enforceable and
effective safeguards, may arrive at certain misconceptions
regarding the defendant and his trial by viewing televised pretrial
hearings and motions from which the jury is ordinarily excluded.
Evidence otherwise inadmissible may leave an indelible mark. . . .
Once the trial begins, exposure to nightly rebroadcasts of selected
portions of the day's proceedings will be difficult to guard
against, as jurors spend frequent evenings before the television
set. The obvious impact of witnessing repeated trial episodes and
hearing accompanying commentary, episodes admittedly chosen for
their news value, and not for evidentiary purposes, can serve only
to distort the jurors' perspective. . . . Despite the court's
injunction not to discuss the case, it seems undeniable that jurors
will be subject to the pressure of television-watching family,
friends and, indeed, strangers. . . . It is not too much to imagine
a juror being confronted with his wife's television-oriented
viewpoint. . . . Additionally, the jurors' daily television
appearances may make them recognizable celebrities, likely to be
stopped by passing
Page 381 U. S. 613
strangers, or perhaps harried by intruding telephone calls. . .
."
Constitutional problems of another kind might arise if a witness
or juror were subjected to being televised over his objection.
The plain fact of the matter, however, is that none of these
things happened or could have happened in this case. The jurors
themselves were prevented from seeing any telecasts of the trial,
and completely insulated from association with any members of the
public who did see such telecasts. This case, therefore, does not
remotely resemble
Turner v. Louisiana, 379 U.
S. 466, where, during the trial, the jurors were
subjected outside the courtroom to unmeasured and unmeasurable
influences by key witnesses for the prosecution.
In the courtroom itself, there is nothing to show that the trial
proceeded in any way other than it would have proceeded if cameras
and television had not been present. In appearance, the courtroom
was practically unaltered. There was no obtrusiveness and no
distraction, no noise and no special lighting. There is no
indication anywhere in the record of any disturbance whatever of
the judicial proceedings. There is no claim that the conduct of the
judge, or that any deed or word of counsel, or of any witness, or
of any juror, was influenced in any way by the presence of
photographers or by television.
Furthermore, from a reading of the record, it is crystal clear
that this was not a trial where the judge was harassed or confused
or lacking in command of the proceedings before the jury. Not once,
after the first witness was called, was there any interruption at
all of the trial proper to secure a ruling concerning the presence
of cameramen in the courtroom. There was no occasion during the
entire trial -- until after the jury adjourned to reach its verdict
-- for any cautionary word to members of the press in the
courtroom. The only time a motion was made, the jury was not in the
courtroom. The trial itself was a
Page 381 U. S. 614
most mundane affair, totally lacking in the lurid and completely
emotionless. The evidence related solely to the circumstances in
which various documents had been signed and negotiated. It was
highly technical, if not downright dull. The petitioner called no
witnesses, and counsel for petitioner made only a brief closing
argument to the jury. There is nothing to indicate that the issues
involved were of the kind where emotion could hold sway. The
transcript of the trial belies any notion that frequent
interruptions and inconsistent rulings communicated to the jury any
sense that the judge was unable to concentrate on protecting the
defendant and conducting the trial in a fair manner, in accordance
with the State and Federal Constitutions.
IV
What ultimately emerges from this record, therefore, is one bald
question -- whether the Fourteenth Amendment of the United States
Constitution prohibits all television cameras from a state
courtroom whenever a criminal trial is in progress. In the light of
this record and what we now know about the impact of television on
a criminal trial, I can find no such prohibition in the Fourteenth
Amendment or in any other provision of the Constitution. If what
occurred did not deprive the petitioner of his constitutional right
to a fair trial, then the fact that the public could view the
proceeding on television has no constitutional significance. The
Constitution does not make us arbiters of the image that a
televised state criminal trial projects to the public.
While no First Amendment claim is made in this case, there are
intimations in the opinions filed by my Brethren in the majority
which strike me as disturbingly alien to the First and Fourteenth
Amendments' guarantees against federal or state interference with
the free communication of information and ideas. The suggestion
that there are limits upon the public's right to know what goes on
in
Page 381 U. S. 615
the courts causes me deep concern. The idea of imposing upon any
medium of communications the burden of justifying its presence is
contrary to where I had always thought the presumption must lie in
the area of First Amendment freedoms.
See Speiser v.
Randall, 357 U. S. 513,
357 U. S. 525.
And the proposition that nonparticipants in a trial might get the
"wrong impression" from unfettered reporting and commentary
contains an invitation to censorship which I cannot accept. Where
there is no disruption of the "essential requirement of the fair
and orderly administration of justice," "[f]reedom of discussion
should be given the widest range."
Pennekamp v. Florida,
328 U. S. 331,
328 U. S. 347;
Bridges v. California, 314 U. S. 252.
Cf. Cox v. Louisiana, 379 U. S. 559,
379 U. S.
563.
I do not think that the Constitution denies to the State or to
individual trial judges all discretion to conduct criminal trials
with television cameras present, no matter how unobtrusive the
cameras may be. I cannot say at this time that it is impossible to
have a constitutional trial whenever any part of the proceedings is
televised or recorded on television film. I cannot now hold that
the Constitution absolutely bars television cameras from every
criminal courtroom, even if they have no impact upon the jury, no
effect upon any witness, and no influence upon the conduct of the
judge.
For these reasons I would affirm the judgment.
[
Footnote 5/1]
Canons of Judicial Ethics. American Bar Association: Judicial
Canon 35. Improper publicizing of Court proceedings.
"Proceedings in court should be conducted with fitting dignity
and decorum. The taking of photographs in the courtroom, during
sessions of the court or recesses between sessions, and the
broadcasting or televising of court proceedings detract from the
essential dignity of the proceedings, distract participants and
witnesses in giving testimony, and create misconceptions with
respect thereto in the mind of the public, and should not be
permitted."
"Provided that this restriction shall not apply to the
broadcasting or televising, under the supervision of the court, of
such portions of naturalization proceedings (other than the
interrogation of applicants) as are designed and carried out
exclusively as a ceremony for the purpose of publicly demonstrating
in an impressive manner the essential dignity and the serious
nature of naturalization."
Canons of Judicial Ethics, Integrated State Bar of Texas:
Judicial Canon 28. Improper Publicizing of Court Proceedings.
"Proceedings in court should be conducted with fitting dignity
and decorum. The taking of photographs in the courtroom, during
sessions of the court or recesses between sessions, and the
broadcasting or televising of court proceedings unless properly
supervised and controlled, may detract from the essential dignity
of the proceedings, distract participants and witnesses in giving
testimony, and create misconceptions with respect thereto in the
mind of the public. The supervision and control of such trial
coverage shall be left to the trial judge, who has the inherent
power to exclude or control coverage in the proper case in the
interest of justice."
"In connection with the control of such coverage, the following
declaration of principles is adopted:"
"(1) There should be no use of flashbulbs or other artificial
lighting."
"(2) No witness, over his expressed objection, should be
photographed, his voice broadcast, or be televised."
"(3) The representatives of news media must obtain permission of
the trial judge to cover by photograph, broadcasting or televising,
and shall comply with the rules prescribed by the judge for the
exercise of the privilege."
"(4) Any violation of the Court's Rules shall be punished as a
contempt."
"(5) Where a judge has refused to allow coverage or has
regulated it, any attempt, other than argument by representatives
of the news media directly with the Court, to bring pressure of any
kind on the judge pending final disposition of the cause in trial
shall be punished as a contempt."
[
Footnote 5/2]
A contemporary newspaper account described the scene as
follows:
"A television motor van, big as an intercontinental bus, was
parked outside the courthouse, and the second-floor courtroom was a
forest of equipment. Two television cameras had been set up inside
the bar, and four more marked cameras were aligned just outside the
gates."
"A microphone stuck its 12-inch snout inside the jury box, now
occupied by an overflow of reporters from the press table, and
three microphones confronted Judge Dunagan on his bench. [C]ables
and wires snaked over the floor."
The New York Times, September 25, 1962, p. 46, col. 4.
[
Footnote 5/3]
In ruling on the motion, the trial judge stated:
"In the past, it has been the policy of this Court to permit
televising in the courtroom under the rules and supervision of the
Court. Heretofore, I have not encountered any difficulty with it. I
was unable to observe any detraction from the witnesses or the
attorneys in those cases. We have watched television, of course,
grow up from its infancy and now into its maturity, and it is a
news media. So I really do not see any justified reason why it
should not be permitted to take its proper seat in the family
circle. However, it will be under the strict supervision of the
Court. I know there has been pro and con about televising in the
courtroom. I have heard some say that it makes a circus out of the
Court. I had the privilege yesterday morning of sitting in my home
and viewing a sermon by the First Baptist Church over in Dallas,
and certainly it wasn't any circus in that church; and I feel that
if it is a proper instrument in the house of the Lord, it is not
out of place in the courtroom, if properly supervised."
"Now, television is going to be televising whatever the scene is
here. If you want to watch a ball game and that is what they
televise, you are going to see a ball game. If you want to see a
preacher and hear a sermon, you tune in on that, and that is what
you are going to get. If the Court permits a circus in this
courtroom, it will be televised, that is true, but they will not be
creating a circus."
"Now, the most important point is whether or not it would
interfere with a fair and impartial trial of this Defendant. That
is the most important point, and that is the purpose, or will be
the primary purpose of the Court, to insure that he gets that fair
trial."
"There is not anything the Court can do about the interest in
this case, but I can control your activities and your conduct here;
and I can assure you now that this Court is not going to be turned
into a circus -- with TV or without it. Whatever action is
necessary for the Court to take to insure that, the Court will take
it."
"
* * * *"
"There has been one consideration that the Court has given, and
it is that this is a small courtroom, and there will be hundreds of
people trying to get into this courtroom to witness this trial. I
believe we would have less confusion if they would stay at home and
stay out of the courtroom and look in on the trial. With all of
those people trying to crowd in and push into this courtroom, that
is another consideration I have given to it."
[
Footnote 5/4]
"In my statement of September 24, 1962, admitting television and
other cameras in the courtroom during the trial of Billie Sol
Estes, I said cameras would be allowed under the control and
direction of the Court so long as they did not violate the legal
rights of the Defendant or the State of Texas."
"In line with my statement of September 24, 1962, I am at this
time informing both television and radio that live broadcasting or
telecasting by either news media cannot and will not be permitted
during the interrogation of jurors in testing their qualifications,
or of the testimony given by the witnesses, as to do so would be in
violation of Art. 644 of the Code of Criminal Procedure of Texas,
which provides as follows:"
" At the request of either party, the witnesses on both sides
may be sworn and placed in the custody of an officer and removed
out of the courtroom to some place where they can not hear the
testimony as delivered by any other witness in the case. This is
termed placing witnesses under rule."
". . . [E]ach television network and the local television
station will be allowed one film camera without sound in the
courtroom, and the film will be made available to other television
stations on a pool basis. Marshall Pengra, manager of Television
Station KLTV, Tyler, will be in charge of the independent pool, and
independent stations may contact him. The same will be true of
cameras for the press, which will be limited to the local press,
Associated Press, and United Press."
"I am making this statement at this time in order that the two
news media affected may have sufficient notice before the case is
called on October 22nd."
"The rules I have set forth above concerning the use of cameras
are subject to change if I find that they are too restrictive or
not workable, for any reason."
[
Footnote 5/5]
There were nine witnesses for the prosecution, and no witnesses
for the defense.
[
Footnote 5/6]
Arts. 668, 745 and 725, Tex.Code Crim.Proc.
[
Footnote 5/7]
Petition for Writ of Certiorari, Question 3, p. 3.
[
Footnote 5/8]
"A. (Mr. Hume Cofer, counsel for petitioner). . . . The
publicity that was given this trial on the last occasion and the
number of cameras here, I think was sufficient to spread the news
of this case throughout the county, to every available juror; and
it is my opinion that, on that occasion, there were so many cameras
and so much paraphernalia here that it gave an opportunity for
every prospective juror in Smith County to know about this
case."
"Q. Not about the facts of the case?"
"A. No, sir; not about the facts, nor any of the evidence."
[
Footnote 5/9]
See 381
U.S. 532fn5/2|>note 2.
MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN joins,
dissenting.
I agree with MR. JUSTICE STEWART that a finding of
constitutional prejudice on this record entails erecting a flat ban
on the use of cameras in the courtroom, and believe that it is
premature to promulgate such a broad constitutional principle at
the present time. This is the first case in this Court dealing with
the subject of television
Page 381 U. S. 616
coverage of criminal trials; our cases dealing with analogous
subjects are not really controlling,
cf. Rideau v.
Louisiana, 373 U. S. 723, and
there is, on the whole, a very limited amount of experience in this
country with television coverage of trials. In my view, the
currently available materials assessing the effect of cameras in
the courtroom are too sparse and fragmentary to constitute the
basis for a constitutional judgment permanently barring any and all
forms of television coverage. As was said in another context, "we
know too little of the actual impact . . . to reach a conclusion on
the bare bones of the . . . evidence before us."
White Motor
Co. v. United States, 372 U. S. 253,
372 U. S. 261.
It may well be, however, that, as further experience and informed
judgment do become available, the use of cameras in the courtroom,
as in this trial, will prove to pose such a serious hazard to a
defendant's rights that a violation of the Fourteenth Amendment
will be found without a showing on the record of specific
demonstrable prejudice to the defendant.
Compare Wolf v.
Colorado, 338 U. S. 25,
with Mapp v. Ohio, 367 U. S. 643;
Betts v. Brady, 316 U. S. 455,
with Gideon v. Wainwright, 372 U.
S. 335;
Stein v. New York, 346 U.
S. 156,
with Jackson v. Denno, 378 U.
S. 368,
378 U. S.
389-390.
The opinion of the Court in effect precludes further opportunity
for intelligent assessment of the probable hazards imposed by the
use of cameras at criminal trials. Serious threats to
constitutional rights in some instances justify a prophylactic rule
dispensing with the necessity of showing specific prejudice in a
particular case.
Rideau v. Louisiana, 373 U.
S. 723,
373 U. S. 727;
Jackson v. Denno, 378 U. S. 368,
378 U. S. 389.
But these are instances in which there has been ample experience on
which to base an informed judgment. Here, although our experience
is inadequate and our judgment correspondingly infirm, the Court
discourages further meaningful study of the use of television at
criminal trials. Accordingly, I dissent.
Page 381 U. S. 617
MR. JUSTICE BRENNAN.
I write merely to emphasize that only four of the five Justices
voting to reverse rest on the proposition that televised criminal
trials are constitutionally infirm whatever the circumstances.
Although the opinion announced by my Brother CLARK purports to be
an "opinion of the Court," my Brother HARLAN subscribes to a
significantly less sweeping proposition. He states:
"The Estes trial was a heavily publicized and highly sensational
affair. I therefore put aside all other types of cases. . . . The
resolution of those further questions should await an appropriate
case; the Court should proceed only step by step in this unplowed
field.
The opinion of the Court necessarily goes no farther,
for only the four members of the majority who unreservedly join the
Court's opinion would resolve those questions now."
Ante, pp.
381 U. S.
590-591. (Emphasis supplied.)
Thus, today's decision is not a blanket constitutional
prohibition against the televising of state criminal trials.
While I join the dissents of my Brothers STEWART and WHITE, I do
so on the understanding that their use of the expressions "the
Court's opinion" or "the opinion of the Court" refers only to those
views of our four Brethren which my Brother HARLAN explicitly
states he shares.