The social distancing mandated by the tenacious COVID-19 virus has had the unintended consequence of bringing closer together two parties that have long been separated by code and custom: the Supreme Court and the American citizen. In a practice initiated in May, the now-eight justices of the Supreme Court are hearing oral arguments in the fall term over digital speakerphone. Lawyers on the sidelines, court reporters, and Americans with too much time on their hands can also listen in to the livestreamed sessions along with the justices. (The court began recording oral arguments in 1955 but made the audio available to the public only at the end of the term and, as of 2010, at the end of each argument week; the eavesdropping here is in real time.) But there are still no cameras in the court. “If SCOTUS had its druthers, it would probably have kept its oral arguments sealed off from the world forever, rejecting cameras in the courtroom even after Google someday implants webcams into every human retina,” Dahlia Lithwick and Mark Joseph Stern wrote for Slate in May.
The resistance to cameras in the courtroom is an enduring legacy of a national trauma that was rightly called the Crime of the Century: the kidnap-murder in 1932 of the 20-month-old son of Charles Lindbergh, the famed aviator who was then the most admired man in America. After a search of more than two years, the accused perpetrator, an unemployed carpenter and undocumented German immigrant named Bruno Richard Hauptmann, was captured and indicted. On Jan. 2, 1935, in Flemington, New Jersey, the Crime of the Century gave way to what was billed, with no expectation the title would ever be surrendered, as the Trial of the Century. The proceedings lasted six weeks, with a verdict that condemned Hauptmann to the electric chair. The sentence was carried out, to the regret of few, on April 3, 1936.
Of course, the innate sensationalism of the case guaranteed the transfixed attention of the nation, but thanks to newspaper syndication, radio broadcasting, and sound newsreels, journalists could feed that appetite. Walter Winchell, Damon Runyon, Adela Rogers St. Johns, and other well-known columnists descended on Flemington for a syndicated dateline. Radio, which had lately supplanted the newspaper as the go-to source for breaking news, was equally energized. Though not allowed to broadcast the trial live, stations hired performers to act out testimony and recruited prominent lawyers to comment nightly on the proceedings.
And, not to be outdone, the five newsreel companies (Fox Movietone, Hearst Metrotone, Paramount News, Pathé News, and Universal Newsreel) also invaded in full force. In what a Paramount News editor described as “the greatest concentration of men and equipment for newsreel coverage since the Great War,” the screen journalists marshaled more than 100 men, 50 cameras, and 35 sound trucks.
Against expectations, the presiding judge, New Jersey Supreme Court Justice Thomas W. Trenchard, granted the newsreels permission to coordinate pool coverage inside the courtroom but with a crucial caveat. Under the terms of “a friendly gentleman’s agreement,” the two cameras granted access—a hand-held camera on the floor and a stationary camera in the balcony—were permitted to film only during recesses in the trial, never during the actual trial when the judge was officiating from the bench and witnesses were testifying on the stand.
The ensuing testimony was heart-wrenching and dramatic. Anne Lindbergh had most of the courtroom in tears when she identified the night suit her baby wore the night of the kidnapping; a stoic Lindbergh firmly asserted that it was Hauptmann’s voice he heard during the night of the ransom exchange; and John F. “Jafsie” Condon, the eccentric bagman for the ransom exchange, declared emphatically that Hauptmann was “Cemetery John,” the moniker Condon gave to the man he met in two different Bronx cemeteries to arrange the exchange of $50,000 in ransom money.
However, the most cinematic moment of the entire trial was the fiery confrontation between relentless New Jersey District Attorney David T. Wilentz and a truculent Hauptmann, a blistering mano a mano that absorbed two full days of testimony. There was no on-the-stand confession from Hauptmann, no Hollywood catharsis, but the sight of the two men in the same frame was a faceoff too good not to film. Friendly gentleman’s agreement or not, the newsreel boys reneged on their solemn agreement with Trenchard and filmed what they had promised not to film.
Unbeknownst to Trenchard, the camera in the balcony, whirring quietly, had already filmed some of the most electric moments of the trial, probably as a test run. The editors had squirreled away silent footage of Anne’s identification of the baby’s clothing and Lindbergh’s identification of Hauptmann and sound footage of Condon’s theatrical j’accuse: “John … is … Bruno Richard Hauptman!”
The newsreel editors rushed the stolen footage by motorcycle courier to New York labs for development, edited it for maximum impact, and recorded commentary tracks with their trademark announcers. The freshly printed newsreels were then distributed to movie houses. Within 24 hours, the clips were playing in theaters in New York and, soon, in metropolitan theaters around the country.
Having never seen—or heard—anything like it, moviegoers were mesmerized. “Patrons gasped, leaned forward to catch every word and the audiences buzzed for half an hour afterward,” Variety reported. At the Embassy Newsreel Theatre in Times Square, the Hauptmann-Wilentz newsreels played from morning to midnight to standing-room-only crowds.
Meanwhile, back in Flemington, court officials were furious when they learned of the release of the reels. District attorney Wilentz telegrammed each of the five outfits with a terse message. “In the name of the State of New Jersey and in the name of decency, it is requested that you order the immediate withdrawal of Hauptmann trial pictures taken during actual trial sessions,” he fumed. “These sound pictures were procured by trickery and in defiance of the order of the court.”
Fox, Paramount, and Hearst withdrew their reels, but Pathé and Universal held their ground, citing their rights as motion picture journalists. “I don’t see how anyone could withdraw the subject and still have respect for their medium,” declared Pathé’s Courtland Smith, oozing contempt for his three compliant competitors.
Regardless, Trenchard still reigned supreme in his courtroom. When newsreel cameramen next showed up for court, he ordered them evicted and their equipment in the balcony dismantled. If necessary, his bailiffs and deputies would use force to keep them out of the courtroom.
Elite opinion—from judges, lawyers, and commentators in the press—strongly backed Trenchard. Even before the jury in the Flemington courthouse pronounced Hauptmann guilty, there was a consensus that newsreels had a corrosive influence on the dignified conduct of American jurisprudence. “Judges should, following the early but abandoned effort of Justice Trenchard at Flemington, decline to permit cameramen to degrade the process of the law in the pursuit of their trade,” editorialized the New York Times. “Those news and newsreel photographers who attempt these things hereafter should be forcibly prevented.”
Prevented they were—not by force but by a code of professional conduct. In 1937, as a direct result of the media sensation surrounding the Hauptmann trial, the American Bar Association adopted a resolution condemning photography and broadcasting in the courtroom. Added as Canon 35 to the ABA’s Code of Judicial Ethics, the resolution read:
Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the courtroom during sessions of the court and recesses between sessions, and broadcasting of court proceedings are calculated to detract from the essential dignity of the proceedings, degrade the court, and create misconceptions with respect thereto in the minds of the public, and should not be permitted.
In 1956, the ABA prohibition was updated to include television. For decades, to the eternal gratitude of freelance sketch artists, Canon 35 kept cameras out of even the most headline-grabbing criminal trials. Not until 1982 would the ABA formally repeal the canon, not until the mid-1980s would some state judges permit television into court, and not until 1991 would enough courtrooms be wired to make Court TV a viable cable concept—gaining for television the right of coverage that the newsreels lost in Trenchard’s courtroom in 1935.
By the mid-1990s, the march of television cameras into the courtroom seemed poised to penetrate every level of the American judiciary. Yet the intrusion halted at the entrance to federal courthouses due to the media frenzy surrounding the only other plausible “Trial of the Century” candidate, the trial in 1995 of football great and Hertz pitchman O. J. Simpson for the murders of his former wife, Nicole Brown Simpson, and her friend Ronald Goldman. The gavel-to-gavel, wall-to-wall television coverage of every moment of the actual trial, supplemented by endless hours of on-air punditry from journalists and lawyers, accrued huge ratings for cable news stations and black-humor fodder for late night comedians. Grandstanding attorneys, money-grubbing witnesses, a starstruck judge, and a shocking verdict of “not guilty” stopped cold the march of the medium into the federal trial system, and the highest court in the land. Still invested in the idea of the majesty of the law, the federal judiciary took OJ TV—be it sleazy reality show or miscarriage of justice—as a cautionary lesson.
The cultural legacy of the Hauptmann and Simpson trials within the legal profession have rendered proceedings in federal courtrooms across the country invisible to anyone not physically present. When you couple that legacy with the passions elicited by many of the issues that come before the Supreme Court, it becomes all the more unlikely the justices will be in a rush to end the ban on cameras—film, video, or digital—anytime soon. So when the Supreme Court sets about deliberating the future of Obamacare, reproductive rights, and maybe even a 2020 election dispute, the microphones will be turned on for you to listen. But don’t expect to get a link to an open-access Zoom meeting.
Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.