Should the Revolution Be Televised?

No, but that doesn’t mean the Moussaoui trial shouldn’t be broadcast.

Illustration by Mark Alan Stamaty

The federal judiciary has long resisted letting TV cameras into the courtroom, and the terrorism trial of Zacarias Moussaoui was the last place it was going to make a change. Last month, Court TV filed a motion demanding access to the trial of the French national accused of helping to plan to the Sept. 11 attacks, and Moussaoui’s lawyers gave a qualified endorsement of the request. But there was never much chance that U.S. District Judge Leonie M. Brinkema was going to let the proceedings be beamed to every home and terrorist cell in the world with a TV set.

Though the Moussaoui trial is bound to generate intense public interest, the high stakes and exceptional circumstances of this case had to give some pause even to the most fervent advocates of putting trials on television.

The long-standing federal ban has not been quite total. The Supreme Court forbids cameras, but two federal appeals courts allow them, and under a rule adopted by the Judicial Conference of the United States, the others are free to do so anytime they choose. An experimental program a few years ago, since discontinued, allowed them in civil trials. But television has been barred from federal criminal proceedings since 1946.

Brinkema declined to overturn that policy. “Any societal benefits from photographing and broadcasting these proceedings,” she wrote in her opinion, handed down last Friday, “are heavily outweighed by the significant dangers worldwide broadcasting of this trial would pose to the orderly and secure administration of justice.” The drawbacks were obvious. Having cameras present would present witnesses and jurors with the prospect that their images would be transmitted around the world, exposing them to retaliation great or small. A prosecution informant from inside al-Qaida would have to worry that he or his relatives would be murdered. A defense witness from Main Street, U.S.A., might face ostracism and even violence from his fellow Americans. Court TV addressed this concern by reaffirming its policy of not photographing jurors unless allowed to do so and by promising that it would “visually obscure the image of any non-party witness during his or her testimony upon request by such person.” But TV equipment is operated by human beings, and human beings are famous for their fallibility. Any witness or juror looking at the little red light might reasonably fear a momentary lapse that would put his face irretrievably in the public domain.

Court TV’s offer, in any case, offers no comfort to others in the courtroom who may have legitimate worries. Some of the federal judges who have handled previous terrorism trials, including the 1993 World Trade Center bombing, are still under 24-hour armed protection of the sort normally provided only to presidents and vice presidents—and they are likely to remain that way for the rest of their lives. Presiding over this case will be a heavy enough burden on the trial judge without showing her face to every terrorist on earth every day for months on end. Courtroom personnel—marshals, clerks, interpreters, stenographers—would also be captured on television. Obscuring the image of everyone who might face vengeance would leave the cameras showing little more than Moussaoui’s attorneys and the exit signs. And that’s to say nothing about the problems of keeping the trial under control when lawyers and jurors know that everything they do is being seen live around the world. Cameras affect trials in unpredictable ways, and it would be foolish to introduce a large element of uncertainty into a trial of an accused terrorist.

Court TV’s argument that it has a constitutional right to broadcast this and other federal criminal trials was pitifully flimsy. The Sixth Amendment requires that trials be open to the public, which under the First Amendment means representatives of the news media must generally also be admitted. “The public and press possess constitutional rights to attend and observe trial court proceedings,” noted the network’s lawyers. If people have the right to attend trials, the argument went, they also have the right to see the trials even if they, “for any variety of reasons, cannot attend the proceedings at the courthouse.” As for the news media, the network insists, “If a reporter may take notes and a sketch artist may draw a portrait, there simply is no principled basis on which to exclude cameras.”

But that logic works just as well for still photographs as for telecasts, and it would be startling indeed for the courts to discover a century and a half after the invention of the camera that it has been illegally excluded from federal courtrooms all this time. The Sixth Amendment mandate, in any case, is not that trials must be accessible to all who want to observe—which in earlier days would have obligated courts to hold sessions in auditoriums or stadiums to accommodate all the potential specators. It’s that trials must be open to a finite number of individuals in order to assure that what happens in court will be seen and recounted outside the courtroom. This essential protection for defendants exists whether the number of observers is a dozen or a billion.

But if the constitutional argument may be dubious, the value of granting citizens access to what goes on in criminal courts is beyond debate. The interests cited by Court TV—encouraging fair trials, fostering public trust in their judicial system, informing citizens about a matter of great public importance—are as weighty as they are real. So is the need to demonstrate the fairness of the trial to our friends and enemies. And it would be wise to uphold all these interests if it could be done without creating the security risks cited by Judge Brinkema.

In reality, it could be done, via a means acknowledged by the judge herself during her hearing on the Court TV motion. The means is audiotaping—something federal courts already are allowed to use to provide a record of proceedings. And it’s been sanctioned even by the famously camera-shy Supreme Court. When it heard oral arguments in the case of Bush v. Gore, the justices made audiotapes available immediately afterward, at which time they were broadcast (and widely heard) on various TV and radio networks. The Court of Appeals for the D.C. circuit waived its usual prohibition to permit a live audio broadcast of arguments in the Microsoft antitrust case.

A broadcast of the audio portion of the Moussaoui trial, live or taped, would give people here and abroad ample direct access to what is going on in the courtroom day-to-day. But it wouldn’t create the risk of intimidation and retaliation that would accompany a permanent photographic record. Since audio recording is already commonplace in federal court, its effect on the behavior of the participants would be modest or even nonexistent. Judge Brinkema suggested this option on Jan. 9, commenting on a proposal for an audio broadcast by the National Narrowcast Network. In that sort of broadcast, she noted, “the worst that happens is that someone’s voice may be captured, but it’s very hard to identify someone on the street from their voice.” The National Narrowcast Network argued in friend of the court briefs (click here and here) that district judges have the authority to allow broadcasts despite the general prohibition. The existing policy says a judge may authorize broadcasts to present evidence, provide a record, or “for other purposes of judicial administration.”

In her opinion, though, Brinkema refused to address that option head-on. In fact, she made almost no effort to distinguish audio from video—or to explain why the dangers inherent in the latter justify a ban on the former. This tactic is like justifying a ban on tennis and boxing by listing all the fatalities that have occurred in the ring. Her only acknowledgment of the audio option was to say in a footnote, “Our concerns about security of trial participants and the integrity of the fact finding process remain, but to a lesser degree, if an audio broadcast of the trial were available over the radio or Internet.”

Judge Brinkema framed her decision as a choice between two opposing interests: the “orderly and secure administration of justice” and the “societal benefits” of opening the trial to broadcast. But she—and we—could have both.