Let the Cameras Roll ingly, the Supreme Court said state rules allowing camera coverage were not unconstitutional – especially with the advent of technology that made cameras a less intrusive presence. “Dangers lurk in this, as in most experiments, but unless we were to conclude that television coverage under all conditions is prohibited by the Constitution, the states must be free to experiment,” wrote Chief Justice Warren Burger for the majority.25 The ruling unleashed widespread experimentation among the states. The American Bar Association’s Canon 35 (renumbered Canon 3A(7))26 which first disapproved the broadcast of trials in 1937, was revised to allow it.27 Now, in many areas of the country, camera coverage of trials has become commonplace.28 The high (or low) point came in 1995, when the murder trial of O.J. Simpson captivated television audiences nationwide. That coverage, and the management of the trial by Judge Lance Ito, was subject to widespread criticism. But in his 1998 book TV or Not TV, author Ronald Goldfarb could still report that since the Chandler decision, “no verdict has been overturned on the basis of prejudice caused by television.”29
Supreme Court Resistance
D
espite the rapid development of a culture and tradition of openness at the level of state courts, the Supreme Court and other federal courts remained stubbornly resistant to the trend. Ironically, perhaps, it was Warren Burger, the justice whose Chandler opinion let a thousand flowers bloom at the state level, who was most responsible for keeping the media at bay in federal courts. Burger was determined to keep cameras and microphones out of his Court. Broadcasters would have to have to climb over his dead body to get in, he reportedly once said.30 He later thought better of that oft-repeated quote, worrying that his words “might give the networks too much of a temptation.”31 (A decade later, Justice David Souter repeated Burger’s “over my dead body” threat.32) In 1986 broadcasters asked Burger for one-time access to air arguments in Bowsher v. Synar,33 a test of the constitutionality of the Gramm-Rudman budget law. Burger sent back a formal denial with a handwritten postscript: “When you get Cabinet meetings on the air, call me!”34 The analogy between private Cabinet meetings—to which the press has never sought access—and public oral arguments was flawed beyond rescue, but it was symbolic of Burger’s nearly obsessive opposition to the idea.
25. Id. at 581. 26. Susanna Barber, News Cameras in the Courtroom: A Free Press – Fair Trial Debate 15 (1987). 27. Id. at 19. 28. For a summary of the states’ rules regarding camera coverage of the courts, see Radio Television Digital News Ass’n, Cameras in the Court: A State-By-State Guide (2011), http://www.rtnda. org/pages/media_items/cameras-in-the-court-a-state-by-state-guide55.php. 29. Goldfarb, supra note 14, at 188. 30. Howard Rosenberg, Burger's Day in Moyers’ Court, L.A. Times, July 9, 1986, § 6, at 1 (quoting Burger in a CBS interview saying, “I once said, early, ‘Over my dead body,’ …”), http://articles.latimes.com/198607-09/entertainment/ca-14289_1_burger-court. 31. See id. 32. On Cameras in Supreme Court, Souter Says, ‘Over My Dead Body,’ Associated Press, Mar. 30, 1996, available at http://www.nytimes.com/1996/03/30/us/on-cameras-in-supreme-court-souter-saysover-my-dead-body.html. 33. 478 U.S. 714 (1986). 34. Smolla, supra note 1. Reynolds Courts & Media Law Journal
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