The United States Supreme Court has held that the public has a constitutional right of access to criminal trials and other proceedings, in large part because attendance at these events furnishes a number of public values. The Court has suggested that the press operates as a proxy for the public in vindicating this open court guarantee. That is, the Court has implied that any value that results from general public attendance at trials is replicated when members of the media at-tend and report on trials using the same means of perception as other members of the public.
The concept of “press-as-proxy” has broken down, however, when the media has attempted to bring cameras into the court. The addition of cameras to the experience is thought to change the identity of action between the public generally and the photographic press specifically during the trial process. Despite its skepticism about cameras, the Court has held there is no constitutional bar to their admission at criminal trials. But its wary acceptance of the technology has not translated into the recognition of a constitutional right to bring cameras into courts. Instead, the Justices have developed a sort of constitutional demilitarized zone, in which cameras are neither prohibited nor mandated. Individual states may adopt camera admissions policies that reflect their policy preferences. State rulemakers addressing the camera issue typically perform a cost-benefit analysis. The primary cost—possible interference with Sixth Amendment fair trial guarantees—has been provisionally disproven in a number of studies. The primary benefit—achievement of the public values identified by the Court in the access cases—is typically assumed to exist but lacks empirical documentation. The assumption of a public value is impliedly grounded in the press-as-proxy conceit: if actual public attendance furnishes value and if the press is a viable proxy for the public, and if the camera-bearing press functions identically to other media, then cameras must furnish relevant public values. Using the conceit to prove public value, and survey data to prove a negligible public cost, every state has admitted cameras to one or more levels of their courts.
This Article does two things. First, it examines the access cases to distill the specific values the Supreme Court has identified as relevant byproducts of open courtrooms; the possibility of realizing these values has dictated the constitutional scope of public access. The values fall along a spectrum: those this Article deems “information-dependent” depend on the transmission of objective information, while those this Article deems “response-dependent” depend on subjective citizen opinion and engagement. Second, the Article scrutinizes the assumption that as long as cameras do not impose a demonstrable fair trial cost, they achieve the relevant public values by virtue of the press-as-proxy conceit. Studies suggest that, at least as currently produced, television news with live footage is actually inferior to print, audio, or footage-free television at achieving the information-dependent values the Court has identified as the basis for access. These same studies indicate that it may be superior to other media at fostering opinion development and emotional engagement. At a minimum, studies of typical television news demonstrate that it does not uniformly replicate the values furnished by the camera-free press. In other words, the press-as-proxy conceit is not valid for the camera-bearing press.
Dismantling the press-as-proxy conceit for cameras wipes out the underlying basis for existing state camera policies, most of which rely on the proxy as evidence of public value. Further, it represents an obstacle to possible claims of a First Amendment right of the press to record and televise court proceedings. The invalidity of the proxy does not mean that cameras are categorically incompatible with court proceedings, but it underlines the need for empirical research into claims that cameras should be admitted because they furnish public value. The Article concludes that policymakers weighing the costs and benefits of camera admission—and courts weighing a First Amendment broadcast access right—are hamstrung by the lack of empirical research into the value of cameras in the courtroom. The issue is timely. A significant number of states continue to bar or effectively block trial court cameras, inviting continued pro-camera efforts. And the campaign for televising Supreme Court arguments and lower federal court trials continues unabated, despite the apparent institutional resistance from the Justices and the Judicial Conference. Advocates frustrated by unsuccessful policy arguments for more camera access to the federal courts may eventually consider a constitutional argument as an alternate means of securing camera admission to these proceedings.
I Am a Camera: Scrutinizing the Assumption that Cameras in the Courtroom Furnish Public Value by Operating as a Proxy for the Public,
U. Pa. J. Const. L.
Available at: http://scholarship.law.upenn.edu/jcl/vol16/iss3/3