1 No. 88
Courtroom Television Network LLC,
Appellant, v. The State of New York, et al.,
Respondents.
2005 NY Int. 102
June 16, 2005
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
David Boies, for appellant. Caitlin J. Halligan, for State respondents. Janet L. Zaleon, for respondent Morgenthau. National Press Photographers Association, et al.; New
York State Association of Criminal Defense Lawyers; Richard J.
Sexton, Esq.; New York State Bar Association; New York State
Defenders Association; Clear Channel Communications, Inc.; ABC,
Inc., et al., amici curiæ.
G.B. SMITH, J.:
The primary issue on this appeal is whether Civil
Rights Law section 52, which bans audio-visual coverage of most
courtroom proceedings,[1]
violates the Federal or State
Constitution. We agree with the Supreme Court and the Appellate
Division that there is no First Amendment or article I, section 8
right to televise a trial. On September 5, 2001, Court Television Network LLC
("Court TV") filed a complaint against the State and Robert
Morgenthau in his official capacity as District Attorney of New
York County seeking a declaratory judgment that Civil Rights Law § 52 is unconstitutional and enjoining the prosecutor's office
from enforcing it.[2]
On July 15, 2003, Supreme Court granted
summary judgment to defendants stating:
"...the Court declines to establish a
constitutional rule in New York granting
the media a right to televise court
proceedings. The record is consistent
with the traditional approach of New
York courts to public access questions,
giving great weight to fair trial
concerns. The record also is consistent
with New York's statutory scheme which
guarantees public trials, but gives
primacy to fair trial rights. Moreover,
to the extent any changes to the
statutory scheme have been put into
experimental use, these were initiated
and reviewed by the Legislature. A
state constitutional rule expanding the
rights of the media in New York to
include the right to photograph and
broadcast court proceedings would derail
what is, and always has been, a
legislative process."
(1 Misc 3d 328 [2003], supra). The Appellate Division affirmed.
Court TV appeals as of right on constitutional grounds pursuant
to CPLR 5601(b) (1). Court TV asserts that Section 52 denies it the right of
access to trials guaranteed by the First Amendment to the United
States Constitution and article I, section 8 of the New York
State Constitution. Court TV argues further that most states
permit televised trials, that New York stands alone in having an
"absolute ban" on televised trials and that the evidence
supporting access to information for the general public far
outweighs any attendant problems of having cameras in the
courtroom. New York State counters that there is no First
Amendment right to televised trials, and that the concerns of
Court TV are more appropriately directed to the Legislature than
to the courts. The State additionally argues that allowing
cameras in the courtroom is a discretionary policy determination
that may be made by the Legislature.
I. First AmendmentThe First Amendment to the United States Constitution
guarantees the press and the public a right of access to trial
proceedings. Without the right to attend trials, which people
have exercised for centuries, important aspects of freedom of
speech and 'of the press could be eviscerated'" ( Richmond
Newspapers Inc. v Virginia, 448 US 555, 580 [1980]; see also Globe Newspaper Co. v Sup. Ct. County of Norfolk, 457 US 596, 605
[1982]; Press-Enterprise Co. v Sup. Ct. California Riverside
County, 464 US 501, 510 [1984] ["Press Enterprise I"]; Press-
Enterprise Co. v Sup. Ct. of California Riverside County, 478 US 1,9 [1986]["Press Enterprise II"]). Though the public acquires information about trials
chiefly through the press and electronic media, the press is not
imbued with any special right of access. Rather, the media
possesses the same right of access as the public . . . so that
they may report what people in attendance have seen and heard
( Richmond Newspapers, 448 US at 573). Thus, the press has no
right to information about a trial superior to that of the
general public ( Nixon v Warner Comm. Inc., 435 US 589, 609
[1978]), nor any right to information greater than the public
( see Houchins v KQED,Inc., 438 US 1,15 [1978]). Civil Rights Law § 52 does not prevent the press,
including television journalists, from attending trials and
reporting on the proceedings. What they cannot do under the
statute is bring cameras into the courtroom. This is not a
restriction on the openness of court proceedings but rather on
what means can be used in order to gather news. The media's
access is thus guaranteed. But it does not extend to a right to
televise those proceedings ( Westmoreland v CBS, Inc., 752 F2d 16,
23 [2d Cir 1984]). "There is a long leap . . . between a public
right under the First Amendment to attend trials and a public
right under the First Amendment to see a given trial televised"
( id.). Estes v Texas, 381 US 532 [1965] is the seminal case on
televising a trial. Five Justices concurred in the Court's
holding that defendant had been denied due process because of the
televising and broadcasting of his trial and held there was no
constitutional right of the press to have access to the courtroom
during a trial. The Court listed a number of concerns about the
presence of cameras at the trial, including the prejudicial
impact of pretrial publicity on the jurors, the impact on the
truthfulness of the witnesses, responsibilities placed on the
trial judge to assure a fair trial and the impact on the
defendant. The Court wrote, "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" (381 US at 549; see also Sheppard v
Maxwell, 384 US 333, 355 [1966]). The Court did acknowledge that
"the ever-advancing techniques of public communication and the
adjustment of the public to its presence may bring about a change
in the effect of telecasting upon the fairness of criminal
trials" (381 US at 552). Today, television has become a commonplace . . .
affair in the daily life of the average person ( id. at 595,
Harlan, J., concurring). While the Supreme Court has revisited
the effects of televised coverage of trials, concluding that such
broadcasts are not a per se violation of fair trial rights, it
has never deviated from its holding that 'there is no
constitutional right to have [live witness] testimony recorded
and broadcast' ( Chandler v Florida, 449 US 560, 569 1981],
quoting Nixon v Warner Communications, 435 US 589, 610 [1978]).[3]Thus, it is clear that the Federal Constitution does
not require courtrooms to be open to televise court proceedings.
II. The New York State ConstitutionThe New York State Constitution, similarly, does not
provide a right to televise trials. Article 1, section 8 states,
"Every citizen may freely speak, write and publish his or her
sentiments on all subjects, being responsible for the abuse of
that right; and no law shall be passed to restrain or abridge the
liberty of speech or of the press." Court TV argues that Civil Rights Law § 52 is an unlawful "restraint on the press." It
concedes, however, that this court has not "explicitly"
recognized "a state constitutional right to public and press
access to trial court proceedings." While we have in certain
circumstances interpreted article I, § 8 more broadly than its
Federal counterpart ( see O'Neill v Oakgrove Constr., Inc., , 71 NY2d 521, 530-532, then Judge Kaye concurring), we decline to do
so here. In New York, the press, like the public, has a right of
access to criminal proceedings ( see Matter of Westchester
Rockland Newspapers v Leggett, , 48 NY2d 430, 437-438 1979];
Matter of Gannett v De Pasquale, , 43 NY2d 370, 376 [1977]; Matter
of Assoc. Press v Bell, , 70 NY2d 32, 38 [1987]). This includes
access to pretrial hearings ("We conclude, therefore, that the
public and the press may have a First Amendment right of access
to pretrial suppression hearings"[ id.]). Any exception to a
public trial should be narrowly construed ( Westchester Rockland
Newspapers Inc. v Leggett, 48 NY2d, at 443; People v Hinton, , 31 NY2d 71, 75-76 [1972]["While we reaffirm today the inherent
discretionary power of the trial court to close the courtroom, we
need only point out that the discretion be sparingly exercised
and then, only when unusual circumstances necessitate
it"][citation omitted]).
Court TV relies on courtroom closure cases to suggest
that New York has granted the press broader rights than those
provided under the First Amendment. But even if the right to
access was the equivalent of a right to televise courtroom
proceedings, which it is not, our cases do not support
appellant's assertions. Even prior to Estes, New York did not recognize any
independent right of the press beyond that of the public to have
access to the court. In United Press Assocs. v Valente (308 NY
71, 84-85 [1954]), this Court held that the press had no
independent right to request that the courtroom remain open
separate from defendant's right to make either a request for the
court to remain open or closed. In fact, our approach to
courtroom closure has been comparable to the Federal analysis.
In imposing such a restraint on the press, the government must
show that there is a legitimate governmental interest which
outweighs any constitutional right of access by the press and
public ( see New York Times Co. v United States, 403 US 713, 715
[1971], Black, J. concurring [government has the burden of
proving that governmental interest outweighs the constitutional
right]).
The primary governmental interest, both State and
Federal, is guaranteeing that the defendant receives a fair trial
( see Estes v Texas, supra; Matter of Westchester Rockland
Newspapers Inc. v Leggett, supra). Consistent with that
interest, the court must be concerned with the defendant, jurors,
witnesses, attorneys and the public at large ( see Waller v
Georgia, 467 US 39, 45-46 [1984]; People v Ramos, , 90 NY2d 490,
497-498 [1997]). In Westchester Rockland Newspapers Inc. v Leggett, this
Court stated, "All court proceedings are presumptively open to
the public, but when this would jeopardize the right of the
accused to a fair trial, the competing interests must be balanced
and reconciled as far as possible" (48 2 430, 438, supra).
The governmental interests of the right of a defendant to have a
fair trial and for the trial court to maintain the integrity of
the courtroom outweigh any absolute First Amendment or article I,
section 8 right of the press or the public to have access to
trials. This Court has clearly and unequivocally held that the
state constitutional right of the press to attend a trial is the
same as that of any citizen. "The fact that petitioners are in
the business of disseminating news gives them no special right or
privilege, not possessed by other members of the public. Since
the only rights they assert are those supposedly given 'every
citizen' to attend court sessions (Judiciary Law § 4[4]
), they are
in no position to claim any right or privilege not common to
'every [other] citizen'" ( see United Press Assocs. v Valente, 308
NY 71, 85 [1954]). The Valente court held that the press had no
independent right to request that the courtroom remain open
separate from defendant's right to make either a request for the
court to remain open or closed. Thus, under New York State law
the press has no right separate from the public to challenge the
judge's order to close the courtroom. In Johnson Newspaper Corp. v Melino (, 77 NY2d 1,8
[1990]), this Court held that there is no broader protection for
the press under the State Constitution article I, section 8, than
under the United States Constitution with respect to right of
access to judicial proceedings. Even though Johnson specifically
addressed disciplinary proceedings which are traditionally
closed, and Court TV petitions this court for a ruling on trials
which are presumptively open, Johnson does guide this Court in
that it addressed whether or not article I, section 8 gives
greater rights than the First Amendment. Johnson also refused to
find that there was a greater protection for the press than for
the public to have access to the court. Together, Valente and Johnson hold that there is no
additional or broader protection under State Constitution,
article I, section 8, than under the First Amendment insofar as
access to court proceedings is concerned.[5]
Thus, we conclude
that Civil Rights Law § 52 withstands State constitutional
challenge.
III. The Legislative PrerogativeIn New York State, the decision whether or not to
permit cameras in the courtroom is a legislative prerogative.
The Legislature may and has, under our State Constitution,
experimented with rules regarding audiovisual broadcasts of trial
proceedings. Beginning in 1987 with the enactment of Judiciary Law §
218, the Legislature has on four occasions temporarily permitted
certain courtroom broadcasts. Specifically, Judiciary Law § 218
permitted the Chief Judge of the State to authorize an
experimental program in which presiding trial judges, in their
discretion, may permit audio-visual coverage of civil and
criminal proceedings, including trials subject to certain
conditions and restrictions.[6]Judiciary Law § 218 contained
sunset provisions upon which the statute, if not extended, would
automatically expire. It also required the Chief Administrator
of the Courts to hold public hearings on audio-visual coverage
and to issue reports evaluating the efficacy of the program [of
audio-visual coverage] and whether any public benefits accrue
from the program, any abuses that occurred during the program,
with recommendations for future legislation (Judiciary Law § 218
[9][c]). After each experiment, lasting approximately two to
three years, the Legislature reviewed the findings and reports on
audiovisual equipment in the courtroom, all of which recommended
cameras in the courtroom, and, after each review, rejected the
recommendation. On June 30, 1997, the Legislature and Governor
allowed Judiciary Law § 218 to sunset. Thus, the ban on
televised trials contained in Civil Rights Law § 52 resumed as of
July 1, 1997, a ban which continues to the present. Despite the
technological improvements to audiovisual equipment, which
renders its presence in courtrooms less obtrusive, the
Legislature has not seen fit since 1997 to amend section 52 or
reenact section 218. We will not circumscribe the authority constitutionally
delegated to the Legislature to determine whether audio-visual
coverage of courtroom proceedings is in the best interest of the
citizens of this state. A state constitutional rule expanding
the rights of the media in New York to include the right to
photograph and broadcast court proceedings would derail what is,
and always has been a legislative process (3 Misc 3d 328, 375
[2003] supra).For all of the foregoing reasons, we hold that Civil Rights Law § 52 is constitutional under both the First Amendment
to the United States Constitution, and article I, section 8 of
the New York State Constitution. Accordingly, the order of the Appellate Division should
be affirmed, with costs.
Footnotes
1Civil Rights Law § 52 provides in part: No person, firm,
association or corporation shall televise, broadcast, take motion
pictures or arrange for the televising, broadcasting, or taking
of motion pictures within this state of proceedings, in which the
testimony of witnesses by subpoena or other compulsory process is
or may be taken, conducted by a court, commission, committee,
administrative agency or other tribunal in this state ....
2 Since there is no pending action by the District Attorney
of Manhattan against Court TV, there is no justiciable issue
before us, and the case against the District Attorney should be
dismissed.
3 We note that after Chandler, no Federal Circuit Court has
opined that the Federal Constitution guarantees the media a right
to televise trials ( see e.g. Westmoreland v CBS, Inc., 752 F2d 16
at 24; Whiteland Woods LP v Township of West Whiteland, 193 F3d
177, 181 [3d Cir. 1999] [press has no absolute right of access to
a criminal trial]; Edwards, 785 F2d 1293, 1295, supra, [First
Amendment does not guarantee a positive right to televise or
broadcast criminal trials]; Conway v US, 852 F2d 187, 188-189
[6th Cir. 1988][no First Amendment right to televise judicial
proceedings]; United States v Kerley, 753 F2d 617, 621 [7th Cir.
1985][exclusion of cameras from Federal courtrooms is
constitutional]; Rice v Kemper, 374 F3d 675, 678 [8th Cir.
2004][we hold that the First Amendment does not protect the use
of video cameras or any other cameras or, for that matter, audio
recorders in the execution chamber]; California First Amendment
Coalition v Woodford, 299 F3d 868, 877 [9th Cir. 2002][reaffirms
First Amendment right of access to attend executions]; Combined
Comm. Corp. v Finesilver, 672 F2d 818, 821 [10th Cir. 1982][The
First Amendment does not guarantee the media a constitutional
right to televise inside a courthouse]; United States v
Hastings, 695 F2d 1278, 1280 [11th Cir. 1983][right of access
does not extend to the right to televise, record, photograph and
broadcast Federal trials]).
4 Judiciary law § 4--Sittings of courts to be public-The
sittings of every court within this state shall be public, and
every citizen may freely attend the same, except that in all
proceedings and trials in cases for divorce, seduction, abortion,
rape, assault with intent to commit rape, criminal sexual act,
bastardy or filiation, the court may, in its discretion, exclude
therefrom all persons who are not directly interested therein,
excepting jurors, witnesses, and officers of the court.
5 Because we conclude that Civil Rights Law § 52 does not
affect a Federal or State constitutional right, we need not
consider Court TV's argument that the State's law should be
analyzed under a strict scrutiny standard. Even if we were to
consider section 52 under a constitutional lens, however, it
would pass constitutional muster. This Court concludes that the
statute is narrowly tailored to serve the governmental interests
at issue, namely insuring that criminal defendants receive fair
trials ( see Sheppard v Maxwell, supra), that witnesses are
forthcoming in their testimony, ( see People v Hinton, supra),
that the trial court has control of the courtroom and that the
integrity of the trial is maintained ( see People v Ramos, 90 NY2d at 504.
6 When Judiciary Law § 218 was in effect, the court system
itself exercised control over the means of access to proceedings
made available to broadcast media under the Rules of the Chief
Administrator of the Courts (22 NYCRR 131).