Petition — Post-Newsweek Stations, Florida, Inc. v. United States
Supreme Court brief1983
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No. | APR 4 1983
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In the Supreme Court of the United States: |
LERK
October Term, 1982 —
POST-NEWSWEEK STATIONS, FLORIDA, INC., COM-
MUNITY TELEVISION FOUNDATION OF SOUTH
FLORIDA, INC., and THE MIAMI HERALD
PUBLISHING COMPANY,
Petitioners,
VS.
UNITED STATES OF AMERICA,
Respondent.
JOINT PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Counsel of Record
Ta.LBoT D’ALEMBERTE PARKER D, THOMSON
STEEL Hector & DAvIs Pau. & THOMSON
1400 Southeast Bank Bldg. 1300 Southeast Bank Bldg.
Miami, Florida 33131 Miami, Florida 33131
(305) 577-2816 (305) 371-2000
Of Counsel
DonaLp M. MiIpDLEBROOKS RICHARD J. OVELMEN
THOMAS R, JULIN General Counsel
The Miami Herald
Publishing Company
One Herald Plaza
Miami, Florida 33101
Attorneys for Petitioners
April 4, 1983
-_-_-__-_—_———_-—— - -—_-_C CO -:C.d CC CrrvmVWl-- > ————-
E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030
QUESTION PRESENTED FOR REVIEW
Is the First Amendment Abridged by the Application of
Court Rules Requiring Arbitrary Exclusion of Electronic
Media From a Federal Criminal Trial of Great Public In-
terest in Which the Defendant Requested That Electronic
Media Access Be Allowed and the Government Asserted
No Interest in Exclusion?
PARTIES TO THE PROCEEDINGS BELOW
The following is a list of all parties appearing in the
proceedings before the United States Court of Appeals
for the Eleventh Circuit:
Appellants
Post-Newsweek Stations, Inc.
Wometco Enterprises, Inc.
Community Television Foundation of South Flor-
ida, Inc.
The Miami Herald Publishing Company
The Radio-Television News Directors Association
The National Association of Broadcasters
Appellee
The United States of America
Appellee in Support of the Appellants
The Honorable Alcee L. Hastings
PARENTS, SUBSIDIARIES AND AFFILIATES
OF THE PETITIONERS
Petitioner, Post-Newsweek Stations, Florida, Inc., is
a wholly-owned subsidiary of Post-Newsweek Stations,
Inc., a subsidiary of The Washington Post Company. The
petitioner owns and operates television station WPLG-TV,
Channel 10, an affiliate of the American Broadcasting
Companies, Inc. in Miami, Florida.
Petitioner, The Miami Herald Publishing Company, is
an unincorporated operating division of Knight-Ridder
Nev." °~ers, Inc.
Vv
TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW ............0.0000 I
PARTIES 'TO THE PROCEEDINGS BELOW .............. 8
PARENTS, SUBSIDIARIES, AND AFFILIATES OF
Re a eI | cs sihcaichicniesbiveiiibarisinioninhedeninisdenencsinees III
RES SGA RUT INET csesitecccesseccsanssonsnsnsosnensesscesinesenensees IV
ee Ble ap Nig ¢ | yy) SEER nee Oe vI
OPINION IN THE COURT BELOW ......0.....ccccccccccseseseees 1
III scsctaasicssukanietereptitndedbiuintisiesasinsnhenpsncionunsbantoved 2
CONSTITUTIONAL PROVISIONS, STATUTES,
RULES INVOLVED ........... saalien dian itieciaionlacbsaniiieteiaaniatct 2
PUTER ETE GOO EMUED GPU cerstcrscvecnssicsntarcornsccesesecehencsets 3
REASONS FOR GRANTING THE WRIT—
1. The Court Of Appeals Has Decided An Impor-
tant Question Of Federal Law Which Has Not
Been, But Should Be Settled By This Court .... 8
2. The Court Of Appeals Has Decided A Federal
Question In A Way Which Is In Conflict With
Applicable Decisions Of This Court .................... 11
IIIT cinssssdssciesishcruisinecsuleiasbuniacaseiantaviasepictaiiiiontniadchings 21
APPENDICES
Appendix A: Opinion of the United States Court of
Appeals for the Eleventh Circuit ............ Al
Appendix B: Opinion of the United States District
Court for the Southern District of
Appendix C: U.S. Constitution Amendment 1 ............ A2l
Appendix D:
Appendix E:
Appendix F:
Appendix G:
Appendix H:
Vv
Rule 53, Federal Rules of Criminal
ND, sasicssitsscvimnisisdsscentitaneeaaadaaae A22
General Rule 20, Local Rules of the
United States District Court for the
Southern District of Florida .................... A23
Canon 3A(7), Code of Judicial Conduct
for United States Judges ............0.0000... A24
Resolution G, Judicial Conference of
BERR Ae A25
Canon 3A(7), Florida Code of Judicial
CONE | scccccisransnsceaviernnremsinesiiaiiigdeaiaaanaa A26
TABLE OF AUTHORITIES
Constitutional Provisions, Statutes and Rules
U.S. Constitution Amendment I aman 2,12
28 U.S.C. §1254(1) (1976) ... 2
Rule 53, Federal Rules of Criminal Procedure ............ 2, 6,8
Rule 20, General Rules of the United States District
Court, Southern District of Florida .................... 2, 6, 8, 20
Canon 3A(7), Code of Judicial Conduct for United
ETERS CM eee 2, 6, 8, 16, 20
Cases
Chandler v. Florida, 449 U.S. 560 (1981) ................ 4,9, 17, 20
Gannett Co. v. DePasquale, 443 U.S. 368 (1979) .......... 2,18
Globe Newspaper Co. v. Superior Court for the County
of Suffolk, ........ or , 102 S.Ct. 2613, 73 L.Ed.
2d 248 (1982) 2, 12, 13, 14, 17
In re Petition of Post-Newsweek Stations, Florida, Inc.,
| | Ee en 20
Landmark Communications, Inc. v. Virginia, 435 U.S.
i Tales ced tstlddbidasiabienioutimentiafianischetesenaeaioniens 15
Linmark Associates, Inc. v. Willingboro, 431 US. 85
(1979) i
Louis v. Blackburn, 630 F.2d 1105 (5th Cir. 1980) .......... 17
Miranda v. Arizona, 389 U.S. 436 (1966) 18
Morris v. Oliver, 645 F.2d 327 (5th Cir. 1981) ................ 17
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555
(1980) 2, 11, 13, 14, 18
Southern Pacific Terminal Co. v. ICC, 219 U.S. 498
(1911) 2
Thornhill v. Alabama, 310 U.S. 88 (1940) ........-ccceeseee 19
VII
Townsend v. Sain, 372 U.S. 293 (1963) ji 17
United States v. Brown, 569 F.2d 286 (5th Cir. 1978) .... 18
United States v. Hastings, 681 F.2d 706 (11th Cir.
a AAS Ae Ree DE A A ARO Le 3, 14
United States v. Hastings, ........ | , 8 Med.L.
Rptr. (BNA) 2617 (11th Cir. 1983) -.0000000020.. 1
United States v. Hastings, 8 Med.L.Rptr. (BNA) 2559
(S.D. Fla. 1982) .. sccssanabdaiseisnsababbeiaesamiebastadatios 1
Virginia Pharmacy Board v. Virginia Citizens Con-
sumer Counsel, 425 U.S. 748 (1977) .......ececcecccceceeceseeee 16
Other Authorities
Comment, The “Right of Information Triangle”: A
First Amendment Basis for Televising Judicial Pro-
ceedings, 4 U. Haw. L. Rev. 85 (1982) 0.00. 11
Note, The First Amendment Overbreadth Doctrine,
Be a: GE CRTD crccscecicnensninitcsthiinttintccsacinosninsene 19
Radio-Television News Directors Association, News
Media Coverage of Judicial Proceedings with
Cameras and Microphones: A Survey of the States
(February 4, 1983) ...............:.0 9
Resolution G of the Judicial Conference of the United
SII: wcdastasdoaeibiiasnamitinttivainiteniiciabs a 2,6
No.
In the Supreme Court of the United States
October Term, 1982
POST-NEWSWEEK STATIONS, FLORIDA, INC., COM-
MUNITY TELEVISION FOUNDATION OF SOUTH
FLORIDA, INC., and THE MIAMI HERALD
PUBLISHING COMPANY,
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondent,
JOINT PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
OPINION IN THE COURT BELOW
The opinion of the United States Court of Appeals for
the Eleventh Circuit appears at ........ FN senicam , 8 Med.L.
Rptr. (BNA) 2617 (11th Cir. 1983) and is reproduced as
Appendix A. The oral ruling of the United States Dis-
trict Court for the Southern District of Florida rendered
November 30, 1982, was transcribed and is reported at 8
Med.L.Rptr. (BNA) 2559 (S.D. Fla. 1982) and is re-
produced as Appendix B.
JURISDICTION
The opinion of the United States Court of Appeals for
the Eleventh Circuit was entered on January 4, 1983. This
petition was filed within ninety days of that date. The
Court has jurisdiction to review the judgment of the Court
of Appeals under 28 U.S.C. §1254(1) (1976).*
CONSTITUTIONAL PROVISIONS, STATUTES
AND RULES INVOLVED
This case involves the first amendment of the United
States Constitution, which is reproduced in Appendix C,
Rule 53 of the Federal Rules of Criminal Procedure, which
is reproduced ‘n Appendix D, Rule 20 of the General Rules
of the United States District Court for the Southern Dis-
trict of Florida, which is reproduced in Appendix E, Canon
3A(7) of the Code of Judicial Conduct for United States
Judges, which is reproduced in Appendix F, and Resolution
G of the United States Judicial Conference, which is re-
produced in Appendix G.
1. Although the trial in which the question presented arose
is over and no relief can be granted to the petitioners which
would cure the error below, the question is not moot because
it is capable of repetition yet evading review. See Globe News-
paper Co. v. Superior Court for the County of Suffolk, —.... U.S.
ceemy 102 S.Ct. 2613, 73 L.Ed. 2d 248 (1982); Richmond News-
papers, Inc. v. Virginia, 448 U.S. 555 (1980); Gannett Co. v.
DePasquale, 443 U.S. 368 (1979); Southern Pacific Terminal Co.
v. ICC, 219 U.S. 498, 515 (1911).
STATEMENT OF THE CASE
In December, 1981, a federal grand jury in the South-
ern District of Florida returned a four-count indictment
against the Honorable Alcee L. Hastings, a United States
District Judge for the Southern District of Florida, and
William A. Borders, Jr., a prominent Washington, D.C, at-
torney. The indictment alleged Hastings and Borders
solicited and accepted a bribe from an undercover FBI
agent who was posing as a criminal defendant in a
case that had been before Judge Hastings. The bribe
allegedly was given in return for Hastings’ agreement to
reduce the defendant’s prison sentence and to revoke an
order that defendant forfeit certain property. United
States v. Hastings, 681 F.2d 706, 707 (11th Cir. 1982).
Judge Hastings, who had direct experience with tele-
vised trials as a state trial judge in Florida and who was
on record, prior to his indictment, as favoring camera ac-
cess to judicial proceedings, filed a motion with the trial
court October 27, 1982, to allow the telecasting, broadcast-
ing, recording, and still photography of his trial.
The motion and accompanying memorandum asserted
that electronic media* coverage of his trial would be es-
sential to the preservation of his right to receive a fair
and public trial.
The petitioners, Post-Newsweek Stations, Florida, Inc.,
Community Television Foundation of South Florida, Inc.,
the owner and operator of the public television station in
Miami, Florida, and The Miami Herald Publishing Com-
2. Unless the context otherwise requires, “electronic media”
shall be used as a generic term which encompasses all television,
film and video type cameras, still photography cameras, tape
recording devices, and radio broadcasting equipment.
4
pany, as well as other media organizations, became aware
of Judge Hastings’ motion and filed a motion to intervene
with an application to allow telecasting, broadcasting, re-
cording, and photographing of the trial, including gavel-to-
gavel uninterrupted telecasting of the entire trial. Within
the application, petitioners agreed that if they were granted
access they would adhere to the Standards of Conduct and
Technology Governing Electronic Media and Still Photo-
graphic Coverage of Judicial Proceedings which are a part
of Canon 3A(7) of the Florida Code of Judicial Conduct
and which is reproduced in Appendix H. That rule was
the subject of this Court’s scrutiny in Chandler v. Florida,
449 U.S. 560 (1981).
The application was supported by the affidavits of
Edward D. Cowart, former chief judge of the Eleventh
Judicial Circuit of the State of Florida, and William L.
Richey, former Chief of the Organized Crime and Public
Corruption Division of the Dade County State Attorney’s
Office. Both Judge Cowart and Mr. Richey have extensive
experience with televised trials including cases which
are more notorious, more highly publicized and more con-
troversial in the Miami community than the Hastings’ trial.
The affidavits stated that electronic media coverage of
trials causes no disruption of the proceedings. Edward D.
Cowart, former chief judge of the Eleventh Judicial Circuit
of the State of Florida, stated that “the coverage of highly
publicized trials by television in the courtroom actually
makes the highly publicized trial more manageable and
takes considerable pressure from the trial participants,
including the trial judge.” William Richey, one of Dade
County’s most experienced prosecutors testified in his af-
fidavit that cameras did not to him appear to have any
influence whatsoever on witnesses or jurors. Finally, the
affidavit of the president of Community Television Foun-
5
dation of South Florida, Inc. indicated that this trial would
be telecast in its entirety, from gavel-to-gavel, if the peti-
tioners’ application were granted.
Petitioners also filed in support of their application a
stipulation executed by counsel for Judge Hastings indi-
cating that Hastings knowingly and intelligently waived
all objections to electronic media coverage of his trial
and a joinder in that stipulation personally executed by
Judge Hastings.
Judge Hastings’ joinder stated “he is familiar with
courtroom access by electronic media under the Florida
rules and he believes that access under those rules is en-
tirely consistent with the rights of all parties and the pub-
lic interest in the administration of justice.”
The Honorable Edward Thaxter Gignoux, sitting by
designation, conducted a hearing on Judge Hastings’ motion
and on petitioners’ motion and application November 30,
1982. At that hearing, Judge Gignoux granted petitioners’
motion to intervene. Petitioners proffered videotape evi-
dence, testimonial evidence,’ and oral argument in support
of their application. Judge Gignoux stated further evi-
dence was unnecessary because he was prepared to assume
that all factual representations by coynsel for the peti-
tioners, made during argument, in affidavits, and in memo-
randa were true.
Judge Gignoux stated during the course of oral argu-
ment:
The Court is prepared to accept for the purposes of
the present motion that the news media applicants are
3. Petitioners’ videotape evidence included actual Florida
trials (Intervenors’ Exhibits A-E), including various judicial
proceedings presided over by Judge Hastings himself (Inter-
venors’ Exhibit C), to demonstrate that unobtrusive electronic
media coverage of trials is in fact possible.
6
responsible representatives of the television and radio
broadcasting industry and that the representations
which are made in their supporting papers and memo-
randum will be complied with and that the electronic
television (sic) and broadcasting of a trial, if per-
mitted, would be unobtrusive and not interfere with
the conduct of the trial, all as set forth in your
memorandum and proffer.
After hearing argument of counsel for Judge Hastings
and for the petitioners, Judge Gignoux asked the govern-
ment for its position. Counsel for the government re-
sponded not by asserting any interest in excluding elec-
tronic media, but rather counsel argued that Rule 53 of
the Federal Rules of Criminal Procedure requires arbitrary
exclusion of electronic media from every criminal trial re-
gardless of the factual circumstances. In their earlier writ-
ten opposition to Judge Hastings’ motion, government coun-
sel urged the court not to consider whether electronic
media coverage would in fact cause the disruption of the
trial in any manner, stating, “The government takes no
position on these practical considerations because they are
irrelevant in the present context. Rule 53 is essentially a
legislative decision that broadcasting of federal trials
should not be permitted.”
Applying Rule 53 of the Federal Rules of Criminal Pro-
cedure, Rule 20 of the General Rules of the United States
District Court for the Southern District of Florida, Canon
3A(7) of the Code of Judicial Conduct for United States
Judges, and Resolution G of the Judicial Conference of the
United States, the trial judge denied petitioners’ application
for access without articulating any findings which sup-
ported the order. He determined that he was bound
by the rules to exclude the eleetronic media irrespec-
tive of the interests in the case before him. Judge Gignoux
held:
7
This Court is faced with not simply one but four
unyielding obstacles to the granting of these mo-
tions . . . Just as the moving parties heve presented
no authority for their contention that this Court has
the power to simply ignore Rule 53 of the Federal
Rules of Criminal Procedure, they have presented no
authority for the suggestion that this Court can disre-
gard the explicit prohibition of radio or television
broadcasting of judicial proceedings, not only by
Local Rule 20 of this Court, but more importantly by
amended Resolution G of the Judicial Conference of
the United States and by Canon 3A(7) of the Code of
Judicial Conduct for United States Judges, a code of
conduct which is binding on me as a federal district
judge.
The Court rejected arguments that the first amendment
at a minimum precludes exclusion of electronic media
absent an overriding interest articulated in findings.
Judge Gignoux concluded: “The First Amendment right
of the news media are (sic) fully satisfied by their ability
to be present and to report what may transpire at a crim-
inal trial.” In accordance with these determinations, he
entered a one-line, hand-written order which read:
Hearing had. Application denied.
/s/ Edward T. Gignoux,
U.S.D.J., by designation.
Petitioners filed a notice of appeal December 1, 1982,
and an emergency motion to expedite the appeal the fol-
lowing day. The motion was granted and a briefing sched-
ule concluding December 15, 1982 was set. On January 4,
1982, the Eleventh Circuit issued an opinion affirming the
district court’s judgment. The Eleventh Circuit held the
absolute prohibitions on electronic media access imposed
8
by Rule 53, Rule 20 and Canon 3A(7) are “time, place,
and manner” restrictions on the first amendment right of
access which are justified by two ‘institutional interests”:
(1) an interest in preserving order and decorum and (2)
an interest in procedures which tend to insure a fair trial.
The appellate court found these interests applicable even
though they were not present in this case at all. The court
further held that the absence of any sixth amendment
fair trial concern. was irrelevant.
Petitioners filed motions for stay pending review by
the United States Supreme Court in both the district court
and the court of appeals. Both motions were denied.
The trial of Alcee L. Hastings commenced on January
13, 1983, and concluded eight days later when the jury
returned a verdict of not guilty. No electronic media
were present during any portion of the trial.
REASONS FOR GRANTING THE WRIT
This case raises an important question of federal law
that has not been, but should be, answered by this Court.
The court below answered the question in a manner which
conflicts with principles enunciated by the Court.
1. The Court Of Appeals Has Decided An Im-
portant Question Of Federal Law Which Has
Not Been, But Should Be Settled By This Court.
The primary reason that this Court should accept juris-
diction is that the question presented is of importance
to the public interest in directly observing the working
of the federal criminal justice system and to the adminis-
tration of justice in every federal court in the United
States.
A technological revolution has occurred since the rules
banning electronic media from all federal trials were en-
acted in the late 1930s and mid-1940s. The reasons which
once justified the rules no longer exist. It is now possible,
as has been demonstrated in some forty states which allow
some type of electronic media coverage of state judicial
proceedings,‘ to televise and photograph trials in an unob-
trusive fashion which neither lessens courtroom decorum
nor infringes upon the fair trial rights of parties. The
states have proven through extensive experimentation that
electronic media coverage of trials now may be accom-
plished in a way which is consistent with all constitutional
principles. The Court recognized that proposition in
Chandler v. Florida, 449 U.S. 560 (1981), upholding the
Florida rule which allows electronic media coverage of
trials.
Chandler having established that electronic media cov-
erage of trials is constitutionally possible, this Court must
now consider whether absolute legislative bans of such
coverage are constitutionally permissible. Chandler did
not address this issue. See 449 U.S. at 589 (White, J.,
concurring). The issue is important because large seg-
ments of the public are not receiving adequate information
about the federal criminal justice system generally and
about individual trials. The courts are flooded with liti-
gation—both civil and criminal—yet public understanding
of the federal judicial system necessarily is minimal be-
cause the vast majority of the public has no opportunity
to observe the system directly.
Our constitutional system is predicated on an assump-
tion that citizens will be as informed as possible about
4. See Radio-Television News Directors Association, News
Media Coverage of Judicial Proceedings with Cameras and Micro-
phones: A Survey of the States (February 4, 1983).
10
all branches of government, including the judiciary.
Greater public awareness of the courts could lead to a
better understanding of their workings and to a more
informed public debate on substantive law issues and ju-
dicial administration. It also could result in an increased
appreciation of the complex, important and time-consuming
work performed by all trial participants.
Television, as a visual medium, is particularly suited
to fulfilling the need of the American public for greater
information about the federal court system. It conveys
information through pictures and sounds of actual events
as they happen. Through these pictures and voices of
the participants, the atmosphere—the tones, inflections,
and subtleties—of the event are conveyed to the viewer.
Television provides the most accurate and effective tool
to report that has ever been devised and the public today
relies on that medium more than any other for complete,
honest, and objective information about virtually all news
events. The electronic media literally provide citizens with
a window through which they may see, understand, and
participate in an increasingly complex world. The process
is unique to these times. No parallel exists in history.
Still photographs of news events illustrate printed re-
ports and provide an important source of information to
the public. No subjective narrative description of what
has transpired in a courtroom can provide the instantane-
ous, accurate information contained in even a single photo-
graph.
This case squarely presents the important issue of
whether a legislative prohibition of electronic media ac-
cess to federal criminal trials is constitionally permis-
sible—the Court already having established that electronic
media access to criminal trials is constitutionally possible.
11
2. The Court Of Appeals Has Decided A Federal
Question In A Way Which Is In Conflict With
Applicable Decisions Of This Court.
This Court first held a right of access to criminal trials
exists under the first amendment of the United States
Constitution in Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980). Although the Court reached no ma-
jority opinion in that case, seven of the justices agreed that
the right of access does exist—and none of the various opin-
ions attempted to limit the right to any particular sectors
of the public or media. It is a constitutional right which
may be asserted by any person and any medium. See
generally, Comment, The “Right of Information Triangle”:
A First Amendment Basis for Televising Judicial Proceed-
ings, 4 U. Haw. L. Rev. 85 (1982).
Chief Justice Burger’s piurality opinion in Richmond
Newspapers concluded that the right of access may not be
denied “[a]bsent an overriding interest articulated in find-
ings.” 448 U.S. at 581. The statute interpreted in Richmond
Newspapers did give the trial judge discretion to exclude
from the trial any “persons whose presence would impair
the conduct of a fair trial.” Va. Code §19.2-266 (Supp.
1980). In holding that the trial court’s exercise of this
Giscretion required individualized findings to satisfy the
first amendment, the Supreme Court recognized a consti-
tutionally-mandated role for the trial judge in all decisions
5. Petitioners in the instant case sought only to bring un-
obtrusive electronic media equipment into a courtroom for the
purpose of reporting a trial. In essence, they sought to do
only what every member of the public may do—attend a public
trial in an unobtrusive fashion to observe, consider, and report
to others what transpires. The fact that members of the public
use their ears, eyes and minds to do this function while members
of the electronic press use cameras and recorders is constitu-
tionally irrelevant.
12
which restrict the right of access to trials. In essence, the
Court held that the first amendment dictates a case-by-
case analysis by the trial judge to weigh the particular
interests in exclusion against the first amendment interest
in access. Chief Justice Burger did not view this require-
ment as limited only to decisions involving total closure of
trials. The presiding judge also must articulate findings
which would justify any time, place or manner restrictions
on access. Justice Burger stated:
We have no occasions here to define the circumstances
in which all or parts of a criminal trial may be closed
to the public, cf., e.g. 6 J. Wigmore, Evidence §1835
(J. Chadbourn rev. 1976), but our holding today does
not mean that the First Amendment rights of the pub-
lic and representative of the public are absolute. Just
as a government may impose reasonable time, place,
and manner restrictions upon the use of its streets in
the interest of such objectives as the free flow of traf-
fic, see e.g., Cox v. New Hampshire, 372 U.S. 569, 85
L.Ed. 1049, 61 S. Ct. 752, 133 ALR 1369 (1941), so may
a trial judge, in the interest of the fair administra-
tion of justice, impose reasonable limitations on access
to a trial. “[T]he question in a particular case is
whether that control is exerted so as not to deny or
unwarrantedly abridge . . . the opportunities for the
communication of thought and the discussion of public
questions immemorially associated with resort to pub-
lic places,” 448 U.S. at 581, n.18.
The case-by-case method of analysis again was held
necessary by this Court in Globe Newspaper Co. v. Su-
perior Court for the County of Suffolk, ........ CN sna
102 S.Ct. 2613, 73 L.Ed. 2d 248 (1982), when the Court
was faced with a Massachusetts statute requiring closure
13
of all rape and other sexual assault trials during testi-
mony of victims who are minors. Massachusetts asserted
its interest in protecting rape victims and in encouraging
such victims to testify was a sufficiently “overriding”
interest to justify closure of every case involving this type
of testimony.
The Court held that the Massachusetts legislature could
not usurp the power of the trial judge to determine
whether closure is required under the facts of any given
case. The Court agreed that the interest asserted in Mas-
sachusetts in safeguarding the physical and psychological
well-being of minors was compelling but held “it does not
justify a mandatory-closure rule, for it is clear that the
circumstances of the particular case may affect the signif-
icance of the interest. A trial court can determine on a
case-by-case basis whether closure is necessary to protect
the welfare of a minor.” ........ ' * a , 73 L.Ed. 2d at 258
(emphasis in original). The Court then noted that Chief
Justice Burger’s plurality opinion in Richmond Newspapers
had “suggested that individualized determinations are al-
ways required before the right of access may be denied.”
oe a US. ........, 0.20, 73 L.Ed, 2d at 258, n.20 (emphasis
in original).
These two recent decisions recognize that absolute leg-
islative bans are inappropriate for the resolution of access
questions concerning the judicial system. Although a state
legislature or the Judicial Conference of the United States
can, and should, promulgate guidelines that trial courts
should apply in making their findings of fact, these legis-
lative bodies may not mandate absolute denial of access
because they inherently are unable to weigh the relevant
facts of a particular case. Even this Court, when acting
in its legislative capacity promulgating rules of procedure
for lower federal courts, cannot determine whether the
14
facts of a particular case would justify a limitation on the
right of access. In every case in which the right of access
is in any way limited, either by full closure of the trial,
by partial closure of the trial, or by a limitation on the
time, place, or manner of access, the trial judge presiding
over that case must articulate in findings the interest over-
riding the right of access, This is the fundamental holding
of Richmond Newspapers and Globe Newspaper Co.
Rules of procedure that impose arbitrary and absolute
bans on access violate the first amendment.
That the rules at issue here call for only exclusion of
electronic media rather than complete closure of trials
does not justify application of per se rules in a case such
as this one in which the rules serve no legitimate govern-
mental purpose. The rules significantly diminish com-
municative activity yet are not supported by a “sufficient”
governmental interest to warrant exclusion of electronic
media from every case.
The petitioners before the Court sought permission
from the trial judge to provide uninterrupted gavel-to-gavel
television coverage of the trial of Alcee L. Hastings be-
cause of its historical uniqueness and social importance.
In this Republic’s long history there have been only three
other instances of criminal proceedings against active fed-
eral judges and this was the first trial of a federal judge
for crimes allegedly committed while on the bench. See
United States v. Hastings, 681 F.2d 706, 709 n.7 (11th Cir.
1982). The fact that Judge Hastings is the first black
federal judge in Florida and he publicly claimed his prose-
cution was racially motivated also called for close public
scrutiny of the trial. Gavel-to-gavel coverage of this trial
would have provided the public with unique information
which could not be provided by any other medium and
15
which could not reach the public any other way than
through electronic media reports. Members of the public
were able to assert their right of access individually by
coming to the courthouse.’ But no reason existed to limit
the benefits of access to those privileged few who could
afford the luxury of attending a trial.
As serious as the failure to recognize the need for
case-by-case adjudications of access claims, was the judg-
ment of both the Eleventh Circuit and the district court that
a court need not look beyond naked legislative declarations
to determine whether a restriction impinging upon the first
amendment actually serves any governmental interest.
This decision is directly contrary to this Court’s holding in
Landmark Communications, Inc. v. Virginia, 435 U.S. 829
(1978), that:
Deference to a legislative finding cannot limit ju-
dicial inquiry when First Amendment rights are at
stake... Were it otherwise, the scope of freedom of
speech and of the press would be subject to legislative
definition and the function of the First Amendment
as a check on legislative power would be nullified.
435 U.S. at 843-44,
6. Many people who came to the courthouse, however, were
not allowed in because of the size of the courtroom, Lines
formed early each morning outside the courtroom and only the
earliest arrivals were allowed into the trial. The line remained
outside the courtroom for the duration of the trial. If any
observer left during the trial, the next person in line was allowed
in. Of course, whenever a irial is of historic importance or
social significance, many mernbers of the public are denied the
opportunity to attend the trial because of the physical limita-
tions of courtrooms. In many cases, an amphitheatre would be
insufficient to accommodate all those who wished to attend, The
presence of a television camera in the courtroom would provide
those excluded from a courtroom because of space limitations,
as well as those — unable to make the journey to the
courtroom, an opportunity to see the trial.
16
The prohibitions of electronic media coverage of crim-
inal trials also clearly eliminated an effective means of
communicating information about the trial to the public,
and such restrictions may not be justified because alter-
native means of obtaining the information, such as attend-
ing the trial or reading about it in the newspapers exists.
In cases such as Linmark Associates, Inc. v. Willingboro,
431 U.S. 85 (1979) and Virginia Pharmacy Board v. Virginia
Citizens Consumer Counsel, 425 U.S. 748 (1977), this Court
rejected arguments that government could vindicate bans
on real estate ‘For Sale” signs and pharmaceutical price
advertising because there were alternative methods of ob-
taining the information conveyed by the signs through
less effective media. Similarly, the bans on electronic
media coverage of trials may not be sustained because
other media may carry reports about the trial. No medium
can provide as full and accurate a report as the electronic
media. Petitioners emphasize that Community Television
Foundation of South Florida, Inc., the public television
station in Miami, would have provided uninterrupted
gavel-to-gavel coverage if it had been granted access.’ Ob-
7. The petitioners pointed out to Judge Gignoux that the
Community Television Foundation of South Florida, Inc.,
WPBT-TV, Channel 2, has engaged in substantial coverage of
judicial proceedings, including trials, under Florida’s camera-
in-the-courtroom program and Revised Canon 3A(7). Such
coverage has included the taping of four trials in their entirety;
State v. Zamora, State v. Herns, State v. Alvorado and State v.
Reid. WPBT-TV broadcast (i) 27 hours of the Zamora trial, as
well as the 2-1/2 hour sentence hearing; (ii) about 42 hours of the
Herns trial; (iii) a 3-1/2 edited version of the Alvorado trial;
(iv) and a 75 hour trial broadcast of the Reid trial in its en-
tirety. According to the Nielsen television market research sur-
vey between 75,000 and 125,000 people in the Miami area alone
watched the Zamora trial, and the Herns’ audience varied be-
tween 30,000 and 60,000. WPBT-TV was highly interested in
covering this trial because it believed the public has a right
to know how the judicial system handles the trial of a sitting
federal judge for alleged corrupt practices.
17
viously, no written news account could match the thorough-
ness of such an account.°
The Globe Newspaper Co. decision itself stressed that
the structural role of the first amendment in this society
is not merely to protect discussion of governmental affairs
but “to ensure that this constitutionally protected ‘discus-
sion of governmental affairs’ is an informed one.” _.........
Wa OB eaten , 73 L.Ed. 2d at 256. When electronic media
are denied access to courtrooms it is clear that many mem-
bers of the public are denied both qualitative and quan-
titative information which prevents them from making
informed decisions or participating in meaningful discus-
sion. The substantial impact of the rules prohibiting elec-
tronic media access to criminal trials is undeniable.
No countervailing societal interest in excluding elec-
tronic media from every criminal trial exists. This be-
came clear after this Court held in Chandler v. Florida, 449
U.S. 560 (1981), that the access rights of the electronic
media need not fall to the fair trial rights of criminal de-
fendants in every case.
The facts of the instant case presented absolutely no
justification for excluding the electronic media or any
other media, let alone any compelling or even significant
governmental interest in exclusion. The defendant, a sit-
ting federal judge whe, as a former Florida judge, was
fully aware of any influence electronic media can have
on trials, had knowingly and intelligently waived all rights
he may have had to object to electronic media coverage
8. Electronic media also provides a more effective means
of communication because it allows viewers to observe directly
the demeanor of witnesses and other trial participants. Ap-
pellate judges frequently have deferred to their trial court
brethren on factual issues because of just this point. See, e.g.,
Townsend v. Sain, 372 U.S. 293, 322 (1963); Morris v. Oliver,
645 F.2d 327, 331 (5th Cir. 1981); see also, Louis v. Blackburn,
630 F.2d 1105, 1109-10 (5th Cir. 1980).
18
of his trial.® In fact, he demanded that such access be
allowed and asserted that his fair trial rights in fact
depended on such access being granted. The concerns
for protecting the defendant emphasized in such cases as
Richmond Newspapers and Gannett therefore simply do
not exist.
Protection of governmental witnesses from publicity
also was not a problem in this case. Counsel for the
United States in fact argued to the trial court that “we
favor, encourage, desire full, fair and accurate reporting
of all proceedings in this case and we're certain that
any media representative who wishes to be present will
be present and can be present and they are free to report
everything that they see and they are free to get access
to the transcripts of the trial and thus the information
itself, albeit not in the form they desire, is fully avail-
able to the press.”
The interest of the judiciary in preserving the decorum
and dignity of a federal criminal trial was not present
in this case. Judge Gignoux eliminated that interest from
this case by assuming for purposes of his ruling that the
“electronic televisi[ng] and broadcasting of a trial, if per-
mitted, would be unobtrusive and not interfere with the
conduct of the trial.” Additionally, no empirical evidence
ever has shown that the mere presence of modern elec-
tronic media lessens the dignity of a courtroom anymore
than the dignity of proceedings at the Vatican or the
swearing in of judges, governors or presidents. Indeed,
9. Even the most fundamental rights can be waived. Mi-
randa v. Arizona, 389 U.S. 436 (1966) (setting forth the “know-
ing and intelligent” waiver standard for deciding whether a
defendant has given up his Fifth Amendment right to remain
silent and his Sixth Amendment right to assistance of counsel);
United States v. Brown, 569 F.2d 286 (5th Cir. 1978) (waiver
of representation of counsel). Unlike cases dealing with fun-
damental, inviolate rights where waiver has been upheld, this
case presents waiver of a purportedly procedural rule.
19
the rules allow cameras to be present in the court for
such court proceedings as naturalization proceedings and
other special events and these exemptions could not be
allowed if there were any lessening of dignity of the court.
The Florida experience with cameras has proven that the
decorum of the court is in no way harmed by the electronic
media. To the contrary, in highly publicized trials access
by cameras actually eases the burden on the trial judge.
The rules may be held unconstitutional as applied
to the facts of this case, but petitioners also submit that
the rules are facially unconstitutional. Any governmental
rule is void on its face if it “does not aim specifically
at evils within the allowable area of control, but...
sweeps within its ambit other activities that constitute
an exercise” of protected rights. Thornhill v. Alabama,
310 U.S. 88, 97 (1940).
The overbreadth doctrine frequently has been applied
to strike down statutes and ordinances which constituted
complete bans on one particular means of communication.
For example, in Thornhill a statute banning all picket-
ing including peaceful picketing protected by the first
amendment was held void on its face. In such cases where
the statute on its face is not susceptible to a narrowing
interpretation and the mere existence of the statute or
rule is likely to chill the exercise of protected rights,
courts have not waited to adjudicate each application of
the rule as it arises, but instead have short-circuited the
usual adjudicatory process by sending it back to the legis-
lative body for redrafting. See generally Note, The First
Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844
(1970).
Application of the overbreadth doctrine is particularly
appropriate in this case. Petitisners are entitled to be
free from the patently unconstitutional rules of procedure
20
and judicial conduct which prohibit all electronic media
access to trials. The rules now stand as blanket prohibi-
tions. In every subsequent case, petitioners or other news
organizations will be required to bear the heavy burden
of litigating the constitutionality of the application of those
heavy-handed restrictions uniess the rules are rewritten
so they may be applied in a way which will not violate
the first amendment. The Supreme Court of Florida and
many other state courts already have demonstrated that
it is possible to draft rules that will satisfactorily discrim-
inate between harmless and pernicious types of access. In
re Petition of Post-Newsweek Stations, Florida, Inc., 370
So.2d 764 (Fla. 1979). The American Bar Association
also has promulgated a model canon which expressly per-
mits electronic media coverage of judicial proceedings.’®
Should the Court accept jurisdiction and hold the existing
rules unconstitutional, it then would be able, in its legis-
lative rule-making capacity, to promulgate rules which
would accommodate all constitutional interests."
10. On August 11, 1982, the ABA, largely in response to
this Court’s Chandler decision and changes made in state codes,
amended Canon 3A(7) of the ABA Code of Judicial Conduct.
The new canon permits electronic media coverage “consistent
with the right of the parties to a fair trial and subject to express
conditions, limitations, and guidelines which allow such coverage
in a manner that will be unobtrusive, will not otherwise interfere
with the administration of justice.” The United Siates Conference
of Chief Justices had recommended this change of the ABA Code,
by a 44-1 vote, four years earlier. Resolution I. Television, Radio,
Photographic Coverage of Judicial Proceedings, Annual Meeting
in Burlington, Vermont, August 2, 1982.
11. One legislative process, petitioners note, already is
underway in the United States Judicial Conference. The pe-
titioners along with 25 other news organizations filed a petition
with the Conference March 8, 1983, proposing amendments to
Canon 3A(7) of the Code of Judicial Conduct for United States
Judges and Rule 53 of the Federal Rules of Criminal Procedure
which would allow electronic media coverage of federal criminal
trials pursuant to guidelines promulgated by the Conference. This
Court has supervisory authority over federal courts and consider-
able flexibility in directing procedures to accommodate electronic
media access.
21
CONCLUSION
This petition for certiorari should be granted and, upon
review, the decisions of the court of appeals and the district
court should be reversed.
Dated: Miami, Florida
April 4, 1983
Respectfully submitted,
TaLsot D’ALEMBERTE
Counsel of Record
Stee, Hector & Davis
1400 Southeast Bank Building
Miami, Florida 33131
(305) 577-2816
ParRKER D. THOMSON
Counsel of Record
Pau, & THOMSON
1300 Southeast Bank Building
Miami, Florida 33131
(305) 371-2000
Of Counsel
DonaLtp M. MippLEesBRooKS
Tuomas R. JULIN
RicHarp J. OVELMEN
General Counsel
The Miami Herald Publishing
Company
One Herald Plaza
Miami, Florida 33101
(305) 350-2204
22
CERTIFICATE OF SERVICE
I hereby certify that this petition for writ of certiorari
was served April 4, 1983, in accordance with Rule 28.1 of
the Rules of the Supreme Court of the United States by
depositing three true and correct copies in a United States
post office or mailbox, with first-class postage prepaid,
addressed to:
The Solicitor General
Department of Justice
Washington, D.C. 20530
Jo Ann Farrington
Robert I. Richter
Reid H. Weingarten
Public Integrity Section
Department of Justice
Washington, D.C. 20004
Patricia Williams
1700 East Las Olas Boulevard
Fort Lauderdale, Florida
/s/ Tatsot D’ALEMBERTE
Counsel of Record
Al
APPENDICES
APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 82-6137
Non-Argument Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALCEE L. HASTINGS,
Defendant,
POST-NEWSWEEK STATIONS, INC., ET AL.,
Intervenor-Appellants.
Appeal from the United States District Court for the
Southern District of Florida
(January 4, 1983)
Before RONEY, VANCE and ANDERSON, Circuit Judges.
ANDERSON, Circuit Judge:
This expedited appeal presents the question whether
federal rules which prohibit televising, broadcasting, re-
cording, and photographing proceedings in federal criminal
trials violate the First Amendment or the Sixth Amend-
1. “Congress shall make no law . . . abridging the freedom
of speech, or of the press.” U.S. Const. amend. I.
A2
ment.* In an order denying appellants’ application to
use electronic audio-visual recording devices during the
upcoming trial, the district court cited four rules and au-
thorities, including Rule 53 of the Federal Rules of Crim-
inal Procedure® (referred to as Rule 53) and Rule 20 of
the General Rules of the United States District Court for
the Southern District of Florida (referred to as Local Rule
20).* We affirm the district court’s order, as we hold that
2. “In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial.” U.S. Const. amend. VI.
It is argued that the Sixth Amendment entitles the criminal de-
fendant herein to “a trial which is as public as the limits of tech-
nology permit.” Brief for Amicus Curiae, Alcee L. Hastings, at 2.
3. Fed.R.Crim.P. 53 provides that “taking of photographs in
the court room during the progress of judicial —. or
radio broadcasting of judicial proceedings from the court room
shall not be permitted by the court.” Congress authorized the
Supreme Court to develop the Federal Rules of Criminal Pro-
cedure. 18 U.S.C. § 3771.
4. Local Rule 20 provides:
Other than required by authorized personnel in the dis-
charge of official duties, all forms of equipment or means
of photographing, tape-recording, broadcasting or televising
within the environs of any place of holding court in the
District, including courtrooms, chambers, adjacent rooms,
hallways, doorways, stairways, elevators, or offices of sup-
porting personnel whether the Court is in session or at
recess, is prohibited; provided that photography in con-
nection with naturalization hearings or other special pro-
— as approved by a Judge of this Court, will be per-
tt
Local Rule 20 is promulgated pursuant to 28 U.S.C. § 2071
authorizing the federal courts to “prescribe rules for the con-
uct of their business”’).
The district court cited two other authorities, Canon 3A(7)
of the Code of Judicial Conduct for United States Judges and
Resolution G of the Judicial Conference of the United States.
In our judgment, the district court was bound by Rule 53 and
Local Rule 20. Hence, we do not need to consider whether
Canon 3A(7) and Resolution G violate the First Amendment.
Canon 3A(7) provides that:
A judge should prohibit broadcasting, televising, re-
cording, or taking photographs in the courtroom and areas
immediately adjacent thereto during sessions of court or re-
cesses between sessions except that a judge may authorize:
(Continued on following page)
A3
Rule 53° and Local Rule 20 violate neither the First Amend-
ment nor the Sixth Amendment.
This issue first came before the trial court when the
defendant, Alcee L. Hastings, moved the trial court to
permit his trial to be televised, primarily relying on his
Sixth Amendment right to a public trial. Shortly there-
after, appellants, representing the interests of numerous
news organizations, filed a motion to intervene. In this
Footnote continued—
(a) the use of electronic or photographic means for the
presentation of evidence, or for the perpetuation of a
record; and
(b) the broadcasting, televising, recording, or photo-
graphing of investitive, ceremonial, or naturalization pro-
gs.
Resolution G states:
RESOLVED, that the Judicial Conference of the United
States condemns the taking of photographs in the court-
room or its environs in connection with any judicial pro-
ceedings by radio, television, or other means, and considers
such practices to be inconsistent with fair judicial pro-
cedure and that they ought not be permitted in any federal
court. A Judge may, however, permit the broadcasiing,
televising, recording, or photographing of investitive, cere-
monial, or naturalization proceedings.
5. Appellants argue that Rule 53 does not, by its terms,
ban television cameras in the courtroom. Appellants’ Brief at 42.
In our view, the time for serious consideration of this interpre-
tation has long since passed. See Estes v. Texas, 381 U.S. 532,
581-82 (1965). In any event, we need not reach the question
of the precise meaning of Rule 53 because the district court
applied Rule 53 in conjunction with Loca! Rule 20. Since Local
Rule 20 clearly prohibits television cameras in the courtroom,
we cannot avoid reaching the constitutional issue. Moreover,
appellants seek permission for photographing and radio broad-
casting, two activities which Rule 53 clearly proscribes.
6. Since 1979 Hastings has been a federal judge for the
United States District Court for the Southern District of Florida.
On December 29, 1981, he was indicted for conspiracy and ob-
struction of justice. The indictment accused him of accepting
a bribe from an undercover agent posing as a criminal defen-
dant. Judge Hastings voluntarily removed himself from his
duties while his trial is pending. He favors televising of his
trial so that his reputation can be restored.
A4
motion, appellants, citing their First Amendment rights,
applied to the trial court for an order permitting them to
use electronic audio-visual equipment during the trial.
After holding a hearing on the issue, the district court
denied both motions on November 30, 1982. Trial was set
to begin on January 10, 1983. Appellants filed a motion in
this court for expedited appeal. The motion was granted,
and this appeal followed.’ Although defendant Hastings
has not joined this appeal, he has filed an amicus brief.
I, FIRST AMENDMENT
Appellants suggest that recent Supreme Court opin-
ions indicate that the First Amendment should be extended
to give the news media the right to televise, photograph,
record, and broadcast federal criminal trials. We disagree
with appellants’ approach. Appellants’ approach reflects
a tortured reading of these Supreme Court opinions. None
of those decisions intimate that the Supreme Court would
find First Amendment rights abridged by the exclusion
of television cameras and other electronic recording de-
vices from the courtroom. See Globe Newspaper Co.
v. Superior Court, ........ Pa anneal , 73 L.Ed.2d 248 (1982)
(invalidated on First Amendment grounds a state statute
which totally excluded the press and the general public
from the courtroom in trials for certain sex offenses
during the testimony of victims under the age of 18);
Chandler v. Florida, 449 U.S. 560 (1981) (state’s provision
for television coverage of a criminal trial for public broad-
cast is constitutional); Richmond Newspapers, Inc. v,
Virginia, 448 U.S. 555 (1980) (state trial court’s order
that closed the murder trial to the public and the press
violated the First Amendment).
7. This court has jurisdiction to review the order at this
Sw 1909) Cohen v. Beneficial Industrial Loan Corp., 337 U.S.
A5
Instead, these recent Supreme Court rulings stand
for two propositions, neither of which is dispositive or
even genuinely at issue here. First, television coverage
of a criminal trial is not inherently unconstitutional. In
particular, television coverage does not violate every de-
fendant’s due process rights. Chandler v. Florida, 449
U.S. at 574-81. But just because television coverage is
not constitutionally prohibited does not mean that tele-
vision coverage is constitutionally mandated.
Second, the press has a right of access to observe crim-
inal trials, just as members of the public have the right
to attend criminal trials. Globe Newspaper Co. v. Superior
Court, 73 L.Ed.2d at 255-57; Richmond Newspapers, Inc.
v. Virginia, 448 U.S. at 579-80. To conclude from these
cases, as appellants do, that the right of access extends
to the right to televise, record, and broadcast trials, mis-
conceives the meaning of the right of access at stake in
those cases. The right of access therein was the right
to attend. In the upcoming trial here, journalists will be
able to attend, listen, and report on the proceedings as
they always have. No part of the trial has been closed
from public scrutiny.
With regard to the right of access, appellants overlook
the significance of another recent Supreme Court opinion,
Nixon v. Warner Communications, Inc., 435 U.S. 589
(1978). That case concerned the Watergate tapes, which
had been admitted into evidence in the trial of Nixon’s
former advisers. At trial, the district court supplied ear-
phones to jurors, journalists, and members of the public
to enable them to listen to the tapes. The court also
released transcripts prepared by the Special lrosecutor
which “were widely reprinted in the press.” 435 U.S.
at 594. After the trial had begun, Warner Communica-
tions asked the district court for permission to copy,
A6
broadcast, and sell the tapes admitted in evidence. The
district court denied this request. The Supreme Court,
in upholding the district court’s decision, rejected Warner
Communications’ assertion of a First Amendment right to
copy and publish the tapes. 435 U.S. at 608-09. Justice
Powell, writing for a majority of the Court, reasoned that:
The First Amendment generally grants the press no
right to information about a trial superior to that of
the general public. ‘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 con-
stitutional rights are no greater than those of any
other member of the public.”
435 U.S. at 609 (quoting Estes v. Texas, 381 U.S. 532, 589
(1965) (Harlan, J., concurring)). The Court explicitly
rejected the broadcaster’s claim that the right of access
includes “the right to copy and publish .... exhibits and
materials displayed in open court.” 435 U.S. at 609. See
also Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 426-27
(5th Cir. 1981) (the press has no First Amendment right
of physical access to audiotapes which recorded conver-
sations between defendants and FBI agents and which
were introduced into evidence) .*
In Warner Communications, Inc. the Supreme Court
rejected a First Amendment claim of right to copy and
publish particular exhibits which had been admitted into
evidence. In the instant case, appellants assert a First
Amendment right to record and broadcast the entire trial.
8. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.
1981) (en banc), this court adopted as binding precedent all of
the decizions of the former Fifth Circuit handed down o. to
the close of business on September 30, 1981. Id. at 120
AT
Appellants’ claim more nearly approximates the claim re-
jected in Warner Communications, Inc. than the claims
which were sustained in Globe Newspaper Co. v. Superior
Court, supra, and Richmond Newspapers, Inc. v. Virginia,
supra,
On the other hand, this case can be distinguished factu-
ally from Nixon v. Warner Communications, Inc, and Belo
Broadcasting Corp. v. Clark in two ways. First, the rules
at issue here are absolute rules which prohibit televising,
recording, photographing and broadcasting federal criminal
trials, whereas the rules challenged in Warner Communica-
tions and Belo Broadcasting resulted from fact-sensitive
determinations made by the trial judge on a case by case
basis. Second, in the instant case, defendant Hastings has
not only requested television coverage, but he has also
knowingly and intelligently waived any objection he might
have had. There was no such request or waiver in either
Warner Communications or Belo Broadcasting.
In our judgment, neither distinction undermines the
precedential value for this case of Warner Communications
and Belo Broadcasting. We address first the distinction
between an absolute per se rule and a case-by-case rule.
In Globe Newspaper Co. v. Superior Court, ........ Ss ovine
73 L.Ed.2d 248 (1982), the Supreme Court made it deen
that an absolute per se rule which excludes the public
and the press from a criminal trial is prohibited by the
First Amendment. However, the rule struck down in
Globe Newspaper Co. was significantly different from the
rules at issue here. In Globe Newspaper Co., the state
statute provided that the courtroom be sealed off from
public scrutiny whenever minor victims of sex offenses
testified at the sex offender’s trial. As a result, the al-
leged victim’s testimony, which is likely to be the most
critical evidence presented at such a trial, was obscured
A8
from the view of the press and the public. By contrast,
the rules here do not foreclose public scrutiny of the
trial or any segment thereof.
In evaluating the state statute in Globe Newspaper
Co., the Supreme Court said that denial of “the right of
access in order to inhibit the disclosure of sensitive infor-
mation” must be “necessitated by a compelling govern-
mental interest” and “narrowly tailored to serve that
interest.” Id. at 257. Significantly, the mandatory statute
in Globe was deemed to violate the “narrowly tailored”
test: “In short, § 16A cannot be viewed as a narrowly
tailored means of accommodating the State’s asserted in-
terest.” Id. at 258. However, the Supreme Court ex-
pressly noted that “limitations on the right of access that
resemble ‘time, place, and manner’ restrictions on protected
speech would not be subject to such strict scrutiny.” Id.
at 257, n.17. This was in contrast to the strict scrutiny
which was applied to the Globe restriction which totally
excluded the public and the press from certain parts of
the trial.
The federal rules in the case before us resemble “time,
place, and manner” restrictions. Rule 53 and Local Rule
20 do not absolutely bar the public and the press from
any portion of a criminal trial; rather, they merely impose
a restriction on the manner of the media’s news gathering
activities. The press is free to attend the entire trial,
and to report whatever they observe. Thus, we conclude
that strict scrutiny does not apply in the instant case,
and that the per se rules here might well survive the
lesser level of scrutiny which is applicable, even though
the mandatory rule in Globe Newspaper Co. could not
survive strict scrutiny.
Before defining the appropriate level of scrutiny appli-
cable in this case and applying that scrutiny to the instant
A9
facts, we return briefly to the second factor mentioned
above as distinguishing the instant case from Nixon v.
Warner Communications, Inc. and Belo Broadcasting Corp.
v. Clark. The fact that the defendant here has affirma-
tively requested television coverage and waived any ob-
jection thereto does eliminate one of the most important
factors justifying a ban on electronic media news gath-
ering. However, as discussed below, there are other in-
terests supporting the rule which must be weighed against
the countervailing interests pursuant to the appropriate
level of scrutiny.
We derive from recent Supreme Court cases the appro-
priate level of scrutiny for a “time, place, and manner”
regulation that restricts access in the courtroom. Such
a restriction is constitutional if it is reasonable,® if it
promotes “significant governmental interests,”’® and if the
restriction does not “unwarrantedly abridge . . . the oppor-
tunities for the communication of thought.’
9. Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 600
(Stewart, J., concurring in judgment) (“Just as a legislature
may impose reasonable time, place, and manner restrictions upon
the exercise of First Amendment freedoms, so may a trial judge
impose reasonable limitations upon the unrestricted occupation
of a courtroom by representatives of the press and members
of the public.”) (emphasis added).
10. Young v. American Mini Theatres, Inc., 427 U.S. 50, 63
n.18 (1976) (‘Reasonable regulations of the time, place, and
manner of protected speech, where those regulations are necessary
to further significant governmental interests, are permitted by
the First Amendment.”) (emphasis added).
11. Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 581,
n.18 (citing Cox v. New Hampshire, 312 U.S. 569, 574 (1941)
(“Just as a government may impose reasonable time, place, and
manner restrictions upon the use of its streets in the interest of
such objectives as the free flow of traffic .. . so may a trial judge
in the interest of the fair administration of justice, impose reason-
able limitations on access to a trial. ‘[T]he question in a par-
ticular case is whether that control is exerted so as not to deny
or unwarrantedly abridge . . . the opportunities for the com-
munication of thought and the discussion of public questions
immemorially associated with resort to public places.’ ’’).
Al0
Having defined the appropriate level of scrutiny, we
turn next to a discussion of the competing interests which
must be weighed. Addressing first the interests which
tend to support the media ban, we note thai the highly
significant interests of a defendant in obtaining a funda-
mentally fair trial are eliminated from our consideration
in this case because defendant Hastings has expressly
waived all such objections. However, at least two other
institutional interests support the ban. First, courts have
an interest in preserving order and decorum in the court-
room. Illinois v. Allen, 397 U.S. 337, 343 (1970). Sec-
ond, there is an institutional interest in procedures which
tend to insure a fair trial.’* Stated another way, there is
an institutional interest in procedures designed to increase
the accuracy of the essential truth-seeking function of the
trial. In Estes v. Texas, 381 U.S. 532, 544-51 (1965), the
Supreme Court wrote at length about television’s probable
adverse impact on jurors, witnesses, and other trial par-
ticipants, thus impairing the truth-finding function.”
While the Court in Chandler v. Florida, 449 U.S. at 575-78,
acknowledged that technological improvements and the
safeguards embodied in Florida’s experiment may have
muted some of the effects enumerated by the Estes court,
nevertheless the Chandler court concluded that the effect of
12. Cf. Gannett Co. v. DePasquale, 443 U.S. 368, 398
(1979) (Powell, J., concurring) (The government, as well as
the defendant, has an interest in obtaining “just convictions.”).
13. Appellants argue that the district court accepted as
true their proffer that the media coverage in the instant case
would be unobstrusive. Thus they argue that we are presented
with a unique case in which there is absolutely no legitimate
interest favoring the media ban. Appellants’ argument is with-
out merit. The district court decided that it was bound by Rule
53 and Local Rule 20 and thus that an individualized considera-
tion of the facts in this case—i.e., whether or not the media
coverage would be obtrusive—was therefore inappropriate.
Thus, there is no merit in appellants’ suggestion that the insti-
tutional interests discussed in the text are not present in this case.
All
television coverage on trial participants is “still a subject
of sharp debate.” Id. at 578.
Turning now to the interests which tend to favor per-
mitting the media coverage, three First Amendment con-
cerns have been articulated by recent Supreme Court
cases. First, the right of access to criminal trials fosters
public confidence in the fairness of the criminal justice
system. Globe Newspaper Co. v. Superior Court, 73 L.Ed.
2d at 257. Gannett Co. v. DePasquale, 443 U.S. 368, 382
(1979). Second, the right of access allows the public to
operate as a check on potential abuses in the judicial sys-
tem. Globe Newspaper Co. v. Superior Court, 73 L.Ed.2d
at 257. Finally, the right of access promotes the truth-
finding function of the trial. Id.; Richmond Newspapers,
Inc. v. Virginia, 448 U.S. at 569 (plurality opinion). In
our judgment, the foregoing First Amendment concerns
would be furthered by the media access sought here only
to a minimal degree, if at all. The key factor affecting
public confidence is the fact that trials are open and sub-
ject to public scrutiny, i.e., that trials are not secret. We
can foresee no additional measure of confidence which
might emanate merely from the different manner of media
access, e.g., excerpts of live witnesses on the television
screen, as opposed to an artist’s sketch. See United States
v. CBS, Inc., 497 F.2d 102, 106 (5th Cir. 1974). Similarly,
we do not conceive that the requested manner of access
would enhance either the function of public trials as a
check on judicial abuses, or the truth-finding role. To the
contrary, the Supreme Court has indicated that the central
truth-seeking function of the criminal trial could be ad-
versely affected by television coverage, with its adverse
impact on jurors, witnesses, and other trial participants.
Estes v. Texas, 381 U.S. at 544-50; Chandler v. Florida, 449
US. at 575-78.
Al2
Weighing the countervailing interests in favor of and
opposed to the media ban embodied in Rule 53 and Local
Rule 20, we find that the media access sought here would
advance First Amendment concerns only to a minimal de-
gree, if at all. On the other hand, we find significant in-
stitutional interests supporting the rules at issue here. Fur-
thermore, several reasons lead us to conclude that the
per se approach of the current rule is reasonable. It is
apparent from the above discussion that the interests re-
lied upon are institutional interests which will exist gen-
erally. Also, the Supreme Court has noted that the impact
of television coverage on jurors, witnesses, and other
trial participants is “so subtle as to defy detection,” Estes
v. Texas, 381 U.S. at 545. Promulgation of the current
rules in a legislative-type manner is more appropriate than
a case-by-case approach in light of the difficulty of detect-
ing the adverse impact of media coverage, and in view
of the minimal or nonexistent infringement on First
Amendment concerns. Finally, judicial efficiency and
economy are served by a per se rule.
For the foregoing reasons, we find that Nixon Com-
munications, Inc., supra, and Belo Broadcasting Corp. v.
Clark, supra," provide the controlling authority for this
case, and we reject appellants’ First Amendment challenge
to Rule 53 and Local Rule 20. The matter is not one
14. The preceding discussion also makes clear that the
recent developments in First Amendment law leave intact the
Fifth Circuit’s ruling in Seymour v. United States, 373 F.2d 629
(5th Cir. 1967). In that case, a television news photographer
had taken television photographs of a criminal defendant and
his attorney in the hallway outside the courtroom where the
defendant had been arraigned. The photographer was found
guilty of criminal contempt for violating the district court’s
standing order which prohibited photographing, televising, and
broadcasting “in connection with any judicial proceeding on or
from the same floor of the building on which the courtrooms
are located.” 373 F.2d at 630. The Fifth Circuit uffirmed, and
in so doing upheld the standing order against the First Amend-
ment challenge. 373 F.2d at 631-32.
Al3
that should be fixed in constitutional concrete; rather, the
issue is one that should be addressed to the appropriate
rule-making authority.
II. SIXTH AMENDMENT
In his amicus brief, defendant Hastings argues that
his Sixth Amendment right to a public trial entitles him
to have this tria] televised, to the extent that is technologi-
cally feasible.** Without television coverage, Hastings
argues, public understanding of his trial will be incom-
plete. In Hastings’ view, television is necessary to re-
habilitate his reputation so that he can return to the bench
as an effective judge. This argument has been addressed
and rejected elsewhere:
Nor does the Sixth Amendment require that the trial
—or any part of it—be broadcast live or on tape to
the public. The requirement of a public trial is satis-
fied by the opportunity of members of the public and
the press to attend the trial and to report what they
have observed.
Nixon v. Warner Communications, Inc., 435 U.S. at 610.
Following Warner Communications, Inc., we reject the
Sixth Amendment challenge to Rule 53 and Local Rule 20."*
AFFIRMED.
15. Appellants also mention the Sixth Amendment claim.
Appellants’ Brief at 14. As in Nixon v. Warner Communications,
Inc., supra, we assume arguendo that appellants have standing
to assert defendant Hastings’ Sixth Amendment right.
16. We note appellants’ argument that the ban on use of
audiovisual equipment arbitrarily discriminates against radio and
television reporters. We disagree. While the ban on televising
affects television reporters, the rules also prohibit tape recording
and still photography, thus affecting radio broadcasters and
newspaper ay age as well. See Garrett v. Estelle, 556 F.2d
1274, 1279 (5th Cir. 1977).
We have also considered appellants’ other contentions, and
find them without merit.
Al4
APPENDIX B
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CRIM. NO. 81-596-CR-ETG
UNITED STATES OF AMERICA
v.
ALCEE L. HASTINGS
TRANSCRIPT OF PROCEEDINGS RELATING TO
HEARING ON DEFENDANT HASTINGS’ MOTION
TO ALLOW BROADCASTING AND TELEVISING OF
TRIAL, ETC.
Pursuant to notice, hearing was had in the above-
entitled matter before Honorable Edward T. Gignoux,
Chief Judge, United States District Court, District of Maine,
sitting by designation as a United States District Judge in
the United States District Court, Southern District of
Florida, in the Main Courtroom, United States Courthouse,
Miami, Florida, on Tuesday, November 30, 1982, at which
time and place the following transpired.
APPEARANCES:
For the Government:
Reid H. Weingarten, Esq., Washington, D.C.
Robert I. Richter, Esq., Washington, D.C.
Jo Ann Farrington, Esq., Washington, D.C,
Al5
For Defendant Hastings:
Andrew P. Mavrides, Esq., Ft. Lauderdale, FL.
Patricia Williams, Esq., Ft. Lauderdale, FL.
William Waterman, Esq., Pontiac, Mich.
(Defendant Hastings was also personally present.)
For the Intervenors:
Talbot D’Alemberte, Esq., Miami, FL.
Richard Ovelmen, Esq., Miami, FL.
Alan Rosenthal, Esq., Miami, FL.
BENCH RULING OF THE COURT WITH RESPECT
TO DEFENDANT HASTINGS’ MOTION TO ALLOW
BROADCASTING AND TELEVISING
OF TRIAL, ETC.
THE COURT: Well, counsel, the Court feels that it
has heard all that needs to be said on these motions. The
Court’s ruling will be quite brief.
There are two motions before the Court at the present
time. The first is the defendant Hastings’ motion to allow
broadcasting and televising of trial proceedings in this case
via electronic media. The second motion is the application
of the intervening news media to allow the telecasting,
broadcasting, recording and photographing of the impending
trial proceedings. In support of these motions, the defen-
dant has recourse to his Sixth Amendment right to a public
trial. The news media assert their First Amendment right
of access to criminal trials. In support of both motions,
the moving parties point to the allegedly unobtrusive state
of the current art of radio aid ielevision broadcasting of a
judicial proceeding, a representation based on the expe-
rience of the Florida state courts and other material in
Al6
the record, which the Court has indicated it will accept for
the purposes of the present motions.
Despite the submissions of counsel, the Court has con-
cluded that these two motions must be denied.
This Court is faced with not simply one but four un-
yielding obstacles to the granting of these motions. First,
Rule 53 of the Federal Rules of Criminal Procedure, prom-
ulgated pursuant to 18 U.S.C. §3771, specifically pro-
hibits the photographing or broadcasting of a judicial pro-
ceeding. Second, Rule 20 of the General Rules of the
United States District Court for the Southern District of
Florida, adopted pursuant to 28 U.S.C. §2071, prohibits
all forms of broadcasting or televising equipment within
the environs of a courthouse, including courtrooms,
whether the Court is in session or in recess. Third, Res-
olution G, as amended, adopted in March, 1979, by the
Judicial Conference of the United States, provides as
follows—and I will read the Resolution in full because it
has not been included in any of the submissions:
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 per-
mitted in any federal court. A Judge may, however,
permit the broadcasting, televising, recording, or pho-
tographing of investitive, ceremonial, or naturalization
proceedings.
Fourth, Canon 3A(7) of the Code of Judicial Conduct for
United States Judges adopted by the Judicial Conference
of the United States specifically mandates that “[a] judge
Al7
should prohibit broadcasting, televising, recording, or tak-
ing photographs in the courtroom and areas immediately
adjacent thereto during sessions of court or recesses be-
tween sessions,” except that a judge may authorize the use
of such equipment for the presentation of evidence, for the
perpetuation of a record and for the broadcasting of in-
vestitive, ceremonial or naturalization proceedings.
Rule 53 of the Federal Rules of Criminal Procedure
clearly and in unambiguous terms precludes this Court
from granting these motions. Rule 1 of the Federal Rules
of Criminal Procedure provides that “[t]hese rules govern
the procedure in all criminal proceedings in the courts of
the United States ...” The movants are not asking that
Rule 53 be interpreted or construed, but simply that the
Court set that Rule aside. The Court is without power to
do so. As the Fifth Circuit observed in Dupoint v. United
States, 388 F.2d 39, 44 (5th Cir. 1967): “The Federal
Rules of Criminal Procedure have the force and effect
of law. Just as a statute, the requirements promulgated
in these Rules must be obeyed.”
Just as the moving parties have presented no authority
for their contention that this Court has the power to simply
ignore Rule 53 of the Federal Rules of Criminal Procedure,
they have presented no authority for the suggestion that
this Court can disregard the explicit prohibition of radio or
television broadcasting of judicial proceedings, not only
by Local Rule 20 of this Court, but more importantly by
amended Resolution G of the Judicial Conference of the
United States and by Canon 3A(7) of the Code of Judicial
Conduct for United States Judges, a code of conduct which
is binding upon me as a federal district judge.
Relying principally upon Gannett Newspaper Co. v.
DePasquale, 443 U.S. 368 (1978); Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co.
Al8
v. Superior Court, ........ it See , 102 S. Ct. 2613 (1982);
and Chandler v. Florida, 449 U.S. 560 (1981), movants
contend that Rule 53, and presumably the cited Local
Rule, Judicial Conference Resolution and Canon of Con-
duct, are unconstitutional. But Gannett held no more
than that a criminal trial may not be closed to the public
or the press without violating the defendant’s Sixth
Amendment right to a public trial. Richmond Newspapers
and Globe Newspaper Co. held only that a criminal trial
may not be closed to the public or the press without
violating their First Amendment right of access to criminal
trials, absent an overriding interest articulated in findings.
And Chandler merely held that it was not a denial of the
defendant’s right to due process to permit the broadcasting
of a trial over his objection. Separately, or in conjunction,
these cases are inapposite to the argument made by the
moving parties in this case. It is a far leap from those
holdings te the holding sought here that the Constitution
guarantees a criminal defendant and the news media the
affirmative right to an electronically broadcast trial. As
government counsel has pointed out in their brief, no
court has ever held, or even suggested, that there is a
constitutional right to have a criminal trial broadcast.
In sum, the movants have made no showing that the
Constitution, or any statutory or case law by which the
Court is bound, entitles this Court to disregard Rule 53
of the Federal Rules of Criminal Procedure, Local Rule
20 of the District Court for the Southern District of
Florida, Judicial Conference Amended Resolution G, or
Canon 3A(7) of the Code of Judicial Conduct for United
States Judges. The defendant’s Sixth Amendment right
to a public trial is fully satisfied by a trial which is open
to the public and the press. The First Amendment right
of the news media are fully satisfied by their ability to
Alg
be present and to report what may transpire at a criminal
trial.
An additional comment is appropriate. The argu-
ments which have been so persuasively and ably presented
by counsel today are addressed in this instance to the
wrong forum. They should be made to the legislative
bodies which enacted the rules, resolution and ethical
canon here challenged. Some 26 States have granted
the news media the type of access they seek. In my
own State of Maine, limited access has recently been
provided to the media. The Court has no doubt the day
will come when those responsible for the various enact-
ments which are binding upon this Court will be persuaded
that under controlled circumstances, the televising and
radio broadcasting of judicial proceedings may be per-
mitted. But the mandate of Criminal Rule 53, Local
Rule 20, Judicial Conference Resolution G, and Canon
3A(7) is explicit. It is binding on this Court and simply
cannot be ignored.
The motion of the defendant Hastings to allow broad-
casting and televising of his trial is denied. The applica-
tion of the intervening news media to telecast, broadcast,
record and photograph the impending trial proceedings in
this case is denied. The Court will endorse its action on
the original motion and application. (Pause.) The Court
has endorsed the defendant’s motion to allow broadcasting
and televising of trial by unobtrusive electronic media with
the date: “Hearing had. Motion denied. Edward T.
Gignoux, U.S.D.J., by designation,” and the Court has
endorsed the application of the news media to allow tele-
casting, broadcasting, recording and photographing of the
trial with the date: “Hearing had. Application denied.
Edward T. Gignoux, U.S.D.J., by designation.”
A20
May the Court say this has been a most interesting
argument. The Court appreciates the sincerity with which
these arguments have been presented, and the Court will
anticipate with great interest the views which may be
expressed by the Eleventh Circuit, and possibly even by
the Supreme Court, between now and January 10th.
(Whereupon, these proceedings were concluded.)
CERTIFICATE
I hereby certify that the foregoing is a true and com-
plete transcript of the proceedings above-described, how-
ever, that Judge Gignoux has edited so much of this tran-
script as contains his bench ruling prior to release.
/s/ (Illegible)
Official Court Reporter
A21
APPENDIX C
U.S. CONSTITUTION AMENDMENT I
Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the government for a redress of grievances.
A22
APPENDIX D
RULE 53
FEDERAL RULES OF CRIMINAL PROCEDURE
The taking of photographs in the courtroom during the
progress of judicial proceedings or radio broadcasting of
judicial proceedings from the courtroom shall not be per-
mitted by the court.
A23
APPENDIX E
GENERAL RULE 20
LOCAL RULES OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT
OF FLORIDA
Other than required by authorized personnel in the
discharge of duties, all forms of equipment or means of
photographing, tape-recording, broadcasting or televising
within the environs of any place of holding court in the
District, including courtrooms, chambers, adjacent rooms,
hallways, doorways, stairways, elevators or offices of sup-
porting personnel whether the Court is in session or at re-
cess, is prohibited; provided that photographing in connec-
tion with naturalization hearings or other special proceed-
ings, when approved by a Judge of this Court, will be
permitted.
A24
APPENDIX F
CANON 3A(7)
CODE OF JUDICIAL CONDUCT FOR
UNITED STATES JUDGES
A judge should prohibit broadcasting, televising, re-
cording or taking photographs in the courtroom and areas
immediately adjacent thereto during sessions of the court
or recesses between sessions except that a judge may au-
thorize:
(a) the use of electronic or photographic means for
the presentation of evidence, or for the perpetuation of a
record; and
(b) the broadcasting, televising, recording or photo-
graphing of investigative, ceremonial, or naturalization
proceedings.
A25
APPENDIX G
RESOLUTION G
JUDICIAL CONFERENCE OF THE
UNITED STATES
RESOLVED, that the Judicial Conference of the United
States condemns the taking of photographs in the court-
room with any 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. A Judge may, however,
permit the broadcasting, televising, recording or photo-
graphing of investigative, ceremonial, or naturalization
proceedings.
APPENDIX H
CANON 3A(7)
FLORIDA CODE OF JUDICIAL CONDUCT
Subject at all times to the authority of the presiding
judge to (i) consider the conduct of proceedings before
the court, (ii) ensure decorum and prevent distractions,
and (iii) ensure the fair administration of justice in the
pending cause, electronic media and still photography
coverage of public judicial proceedings in the appellate
and trial courts of this state shall be allowed in accordance
with standards and conduct and technology promulgated
by the Supreme Court of Florida.
Standards of Conduct and Technology Governing Elec-
tronic Media and Still Coverage of Judicial Proceedings
1. Equipment and personnel.
(a) Not more than one portable television
camera [film camera—l6mm sound on film (self-blimped)
or video tape electronic camera], operated by not more
than one camera person, shall be permitted in any trial
court proceeding. Not more than two television cameras,
operated by not more than one camera person each, shall
be permitted in any appellate court proceeding.
(b) Not more than one still photographer, utiliz-
ing not more than two still cameras with not more than
two lenses for each camera and related equipment for
print purposes shall be permitted in any proceeding in a
trial or appellate court.
(c) Not more than one audio system for radio
broadcast purposes shall be permitted in any proceeding
A27
in a trial or appellate court. Audio pickup for all media
purposes shall be accomplished from existing audio sys-
tems present in the court facility. If no technically suit-
able audio system exists in the court facility, microphones
and related wiring essential for media purposes shall be
unobtrusive and shall be located in places designated in
advance of any proceeding by the chief judge of the judicial
circuit or district in which the court facility is located.
(d) Any “pooling” arrangements among the
media required by these limitations on equipment and per-
sonnel shall be the sole responsibility of the media with-
out calling upon the presiding judge to mediate any dis-
pute as to the appropriate media representative or equip-
ment authorized to cover a proceeding. In the absence of
advance media arrangement on disputed equipment or per-
sonnel issue, the presiding judge shall exclude all contest-
ing media personnel from a proceeding.
2. Sound and light criteria.
(a) Only television photographic and audio
equipment which does not produce distracting sound or
light shall be employed to cover judicial proceedings.
Specifically, such photographic and audio equipment shall
produce no greater sound or light than the equipment
designated in Schedule A annexed hereto, when the same
is in good working order. No artificial lighting device of
any kind shall be employed in connection with the televi-
sion camera.
(b) Only still camera equipment which does not
produce distracting sound or light shall be employed to
cover judicial proceedings. Specifically, such still camera
equipment shall produce no greater sound or light than a
35mm Leica “M” Series Rangefinder camera, and no artifi-
cial lighting device of any kind shal be employed in con-
nection with a still camera.
A28
(c) It shall be the affirmative duty of media
personnel to demonstrate to the presiding judge adequately
in advance of any proceeding that the equipment sought
to be utilized meets the sound and light criteria enunciated
herein. A failure to obtain advance judicial approval for
equipment shall preclude its use in any proceeding.
3. Location of Equipment personnel.
(a) Television camera equipment shall be posi-
tioned in such a location in the court facility as shall be
designated by the chief judge of the judicial circuit or
district in which such facility is situated. The area des-
ignated shall provide reasonable access to coverage. If
and when areas remote from the court facility which
permit reasonable access to coverage are provided all tele-
vision camera and audio equipment shall be positioned
only in such area. Video tape recording equipment which
is not a component part of a television camera shall be
located in an area remote from the court facility.
(b) A still camera photographer shall position
himself or herself in such location in the court facility as
shall be designated by the chief judge of the judicial cir-
cuit or district in which such facility is situated. The area
designated shall provide reasonable access to coverage.
Still camera photographers shall assume a fixed position
within the designated area and, once a photographer has
established himself or herself in a shooting position, he
or she shall act so as not to call attention to himself or
herself through further movement. Still camera photogra-
phers shall not be permitted to move about in order to
obtain photographs of the proceedings.
(c) Broadcast media representatives shall not
move about the court facility while proceedings are in
session, and microphones or taping equipment once posi-
A29
tioned as required by 1.(c) above shall not be moved dur-
ing the pendency of the proceeding.
4. Movement during the proceedings, News media
photographic or audio equipment shall not be placed in or
removed from the court facility except prior to commence-
ment or after adjournment of proceedings each day, or
during a recess. Neither television film magazines nor
still camera film or lenses shall be changed within a court
facility except during a recess in the proceeding.
5. Courtroom light sources. With the concurrence of
the chief judge of a judicial circuit or district in which
a court facility is situated, modifications and additions
may be made in light sources existing in the facility, pro-
vided such modifications or additions are installed and
maintained without public expense.
6. Conferences of counsel. To protect the attorney-
client privilege and the effective right to counsel, there
shall be no audio pickup or broadcast of conferences which
occur in a court facility between attorneys and their
clients, between co-counsel of a client, or between counsel
and the presiding judge held at the bench.
7. Impermissible use of media material. None of the
film, video tape still photographs or audio reproductions
developed during or by virtue of coverage of a judicial
proceeding shall be admissible as evidence in the proceed-
ing out of which it arose, any proceeding subsequent to
collateral thereto, or upon a retrial or appeal of such pro-
ceeding.
8. Appellate review. Review of an order excluding
the electronic media from access to any proceeding, ex-
cluding coverage of a particular participant of upon any
other matters arising under these standards shall be pur-
suant to Florida Rule of Appellate Procedure 9.100(d).
FILM CAMERAS
Cinema Products
Arriflex
Frezzolini
Auricon
Auricon
General Camera
Eclair
General Camera
Wilcam Reflex
WOOAIAYULWNHe
A30
Schedule A
-16mm Sound on Film (self blimped)
CP-16A-R
16mm-16BL Model
16mm (LW16)
"Cini Voice"
"Pro-600"
ss III
Model ACL
DGX
16mm
VIDEO TAPE ELECTRONIC CAMERAS
Ikegami
RCA
Sony
ASACA
Hitachi
Hitachi
Phillips
Sony BVP-200
Fernseh
JvC-8800 u
10. AKAI
11. Panasonic
12. Jvc
WDIAYULSWWwWnPKe
VIDEO TAPE RECORDERS/used with video cameras
Ikegama
Sony
Sony
Ampex
Panasonic
Jvc
Sony
NQuhLwanre
Sound
Sound
Sound
Sound
Sound
Sound
Sound
Sound
Sound
HL-77 HL-33 HL-35 HL-34 HL-51
TK76
DXC-16
ACC-20
SK 80,
FP-303
LDK-25
0O Trinicon
06
SK 90
0
ENG Camera
Video
Camera
ENG Camera
Cvc-15
WV-308
GC-480
3800
3800
BVC-10
Video
1 inch Video Recorder
4400
3800H
O VTS-150
5 NV-3085
Ou
0
Recorder
Camera
Camera
on Film Camer
Camera
Camera
Camera
Camera
Camera
Camera
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.