|CAMERAS IN COURT|
November 30, 2000
Four experts discuss the U.S. Supreme Court's decision to prohibit television coverage of the ballot recount hearing.
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SMITH: The Supreme Court has said "no" to the media's request
to televise tomorrow's historic arguments. But it has decided, for the
first time, to release an audiotape of the proceedings immediately after
Brian Lamb, I know you had an exchange of letters with Chief Justice Rehnquist. You said, "Please." He said, "No." What was your argument for broadcasting this case live?
BRIAN LAMB: Well, actually, this is an ongoing discussion that we've had with the court for the last 21 years. And it seemed like an opportunity to once again say, "Is it time now?" And I must say, even though we were told "No," it's a very exciting thing that we will be able, all of us, all of our networks, will be able to hear this via audiotape after the oral argument is over tomorrow.
TERENCE SMITH: Explain why you think that's important and how it's different than what's been done before.
BRIAN LAMB: Well, this town is an evolutionary, evolving, incremental place. And it means that almost always when you ask for access to anything, first up they say no. And then eventually, like Tip O'Neill did in the House of Representatives, he said, "Come on in." He was the last guy anybody expected to invite cameras into the House of Representatives. And even though this court has been solidly against the idea of televising, ask and ask again, and when the public begins to see this as being important, finally they turn around and say, in this case, we're going to let the audio go. I think this is a huge step in the right direction.
|A nose under the tent|
TERENCE SMITH: A nose under the tent?
BRIAN LAMB: Well, I don't know. I mean they're not going to do this very quickly, but the fact is, on our radio station in Washington, we have for two years run old oral arguments that have been archived every Saturday afternoon, and it's one of those things that you do. The sky doesn't fall. You keep on moving.
TERENCE SMITH: Judge Becker, what do you think of both the argument and this decision on the audiotape?
CHIEF JUDGE EDWARD BECKER: I think the Supreme Court made exactly the right decision. Our court, and I believe most other courts of appeals, make audiotapes available. We'll make them available as soon as anybody wants them. I must tell you that, in almost two decades on the Third Circuit Court of Appeals, I can't recall the media ever asking for them; but we're not the Supreme Court.
I think the court made exactly the right decision on television. We did a three-year pilot study of television in federal trial and appellate courts, in trial courts it was a very serious problem, but we're here today talking about appellate courts. We found that the content and emphasis of questions, both by the court and the presentations by the lawyers, was affected by the presence of television.
And to understand this, you have to understand something about the dynamic of the oral argument process. The oral argument process is very intense, rigorous. It's rough. Judges play devil's advocate. Sometimes you even deride a counsel's argument so as to bring him or her out and to test the argument. You do it to both sides. The problem with televising arguments is that they can be edited, and if the public sees me giving a rough time to one lawyer, they think I'm biased. They don't see the whole picture, and they don't see me giving the same rough time to the other lawyers, as a result of which courts being under criticism, judges will alter... judges will change their mode of questioning, and this changes the dynamic of the oral argument process to the detriment of the system.
TERENCE SMITH: Floyd Abrams, does it change the dynamic? Does it alter what happens in the courtroom?
FLOYD ABRAMS: I don't think so. Forty-eight states now allow television of appellate proceedings in their courts. They haven't found that...
TERENCE SMITH: That's in state courts?
FLOYD ABRAMS: Yes, right, in 48 states of the 50 states, in state courts, television is allowed in the appellate proceedings. We saw it in Florida, for example, with respect to the very case that's going to be argued tomorrow in the U.S. Supreme Court. And I think the experience of those courts has been that it does not affect the quality of the argument, the nature of the questions or the like. As for the study that Chief Judge Becker referred to, the final conclusion of that study, after a three-year effort at finding out how it works -- and I'm reading-- is that "the presence of cameras did not distort court proceedings, affect participants in the proceedings or interfere with the administration of justice." Those results were rejected, then, by the Federal Judicial Conference. But those were the results. And those are entirely consistent with the sense of the various states, the overwhelming majority of states in the country. So it works, and I wish we would do it.
|Gavel to gavel coverage|
TERENCE SMITH: Joel Hirschhorn, you're down in Florida, the Florida Supreme Court -- its arguments were broadcast on eight networks gavel to gavel. What did you think of that? Did that affect your view in any way?
JOEL HIRSCHHORN: For 20 years, I've been opposed to cameras in the courtroom. Floyd hasn't changed his position. I haven't changed mine. I've argued 62 federal appeals, 98 state appeals. The only one that's ever been televised was the oral argument in the Florida Supreme Court on whether or not trials should be televised. I do think people posture before cameras, whether it's now on television for a commercial audience or whether it's in a courtroom. I think televising judicial proceedings even at the Supreme Court level, the United States Supreme Court level, trivializes, commercializes and tends to erode respect for the system and the very system of justice that we are all bound to. Part of the reason why the system works is because of the respect we have for it.
As Judge Becker made a very good point, unless you've actually been involved in oral argument as a lawyer, you don't realize that many of the questions that are posed to you are designed to prod you on by a judge or a justice who's being a devil's advocate. I think seeing that televised is going to be misinterpreted. Every time I've had an oral argument and I've walked out of court, I've never been able to figure out whether I've won or lost because you just can't tell from oral arguments. So I don't know what's going to gained by that, except giving an opportunity for people to express political views when this is a legal question.
TERENCE SMITH: Brian Lamb, Joel Hirschhorn thinks it would trivialize and commercialize what goes on in the Supreme Court. Do you?
BRIAN LAMB: Well, I must say that anybody that's been inside the U.S. Supreme Court can't come away with anything but respect for an institution that has high numbers across this country. So I can see why people are very concerned about it. But you know, this is a public institution. We built this pipeline 21 years ago without Nielsen ratings, without advertising, without needs for numbers so that people could see the whole event. And we have told the court that, if they ever go on television, we will televise all 75 oral arguments a year from gavel to gavel so people can see the whole thing.
TERENCE SMITH: No excerpts, the whole thing?
BRIAN LAMB: The whole thing. And that ensures them that the entire process can be seen. And you know, I can understand where their concern comes in, but this is paid for by the American taxpayer. The judges work for us, and it's time that they realize that America would benefit from seeing this superb institution do its work. We have seen some bad institutions of the law around the country do their work because they are televised. There were criminal trials. We're talking here about appellate courts, the Supreme Court. And by the way, we have televised the Ninth Circuit Court on several occasions every year for the last several years, and nothing has happened untoward, and no bad publicity has come out of it.
|High stakes case|
TERENCE SMITH: Judge Becker, what about this case, since it is such high stakes, since it could involve or affect the outcome of a presidential election? Does that change anything, in your view?
CHIEF JUDGE EDWARD BECKER: No. Indeed, I think the case for televising this particular argument is poorer than the case for televising arguments about matters such as the right to sue an HMO, the issues perhaps in the Microsoft case, abortion issues, First Amendment issues, prayer in the school, that kind of thing.
TERENCE SMITH: Poorer? Why poorer?
CHIEF JUDGE EDWARD BECKER: Because... well, first of all, we are dealing with an arcane statute, 100 and some odd years old. What the public will get out of this, if it were televised, is not any substantive education, but a sense of the process. They got that in Florida, that the judges are intelligent individuals, they're thoughtful, that they ask good questions. But that's not how the Supreme Court is judged or how the Florida Supreme Court is judged. As Brian Lamb says, the court is respected as an institution. The court is measured by its judgments, by its opinions. The Florida Supreme Court has not escaped criticism by reason of the fact that it was televised and the public saw the justices ask intelligent questions. Its judgment, its opinion has been the measure of its stewardship, and that has been roundly criticized. And in my view, a cloistered, a reflective institution ought not to be drawn into the maelstrom, into the maelstrom of the public, as Justice Kennedy called it. I understand there's a certain amount of edification, but in my view, the process, the court, the holy of holies of our judicial system, is drawn down into the maelstrom. They become a spectacle by the very act of being televised.
TERENCE SMITH: Floyd Abrams, what do you think is the strongest argument you can make for this case being televised?
FLOYD ABRAMS: This case may decide who becomes the president of the United States. It's not just an important case; it is a quintessentially important case in our nation's history. Where will the public get its news from? Where will it get its information from? Primarily from two sources: Journalists, who will do their best to convey what occurred in court -- and partisans who will do their best to spin what occurred in court. The best way for the public to become really knowledgeable, as best they can, about what occurred in what Judge Becker rightly refers to as the holiest of holy place, is to see it. And if we don't trust them to understand it, if we don't trust them really to make head or tail of it, we are reflecting, I think, a profound distrust for democracy itself. So I think the public should see it. I am, as Brian is, extremely pleased that the court is allowing the audio to be played to the public shortly after the argument. That is an enormous step forward, and it shouldn't be overlooked. But I do think the public ought to have a chance to see contemporaneously what goes on in its courtroom.
TERENCE SMITH: Joel Hirschhorn, do you think there's an educational value in this, do you think, more specifically, the public can sort out the devil's advocate role of one judge, the posturing perhaps of an attorney? In other words, the audience is pretty sophisticated, isn't it?
JOEL HIRSCHHORN: No. If sophisticated skilled trial lawyers can't figure out whether a judge is playing with them as devil's advocate or is really bearing down on them, it's unlikely that the larger venue, the American public, not skilled in appellate arguments, is going to be able to do it. And I mean I have this vision that, you know, the camera magnifies personality. If you're inclined to act out in front of a camera, if that's your personality, you're going to do it. If you are reluctant to speak up for fear of looking foolish or maybe misspeaking, you're not going to speak your mind. I don't know what's so extraordinary about tapes being released. I have an audiotape of my oral argument in the U.S. Supreme Court. All the lawyers who argue their cases get cassette tapes.
TERENCE SMITH: Well, we should explain that normally those tapes are released only to the public, only at the end of the term so that this is making it available immediately.
JOEL HIRSCHHORN: Oh, in that sense, it is unique. But I don't think that that's so extraordinary. I mean the fact of the matter is I have this vision, if this were being televised, of commentators commenting on what the judge really meant by his question, and no one knows what these judges mean. In reality, oral argument gives a justice an opportunity to think out loud, unencumbered by instantly being reviewed by 100 or 200 million people. It's really an opportunity for the judge to get some things off his chest and maybe push other justices to push the lawyers, the litigants, to raise issues no one had even thought of.
TERENCE SMITH: Okay, Brian Lamb, very quickly a final word. You'll take this audiotape, you'll broadcast it and broadcast it again?
BRIAN LAMB: Absolutely. We'll broadcast it the minute we have access to it tomorrow, and we'll rerun it in prime time, so people can see it. And we'll rerun it again, I'm sure, so that people can get a sense of what the atmosphere was in the court and what the questions and answers were.
TERENCE SMITH: And I suspect it'll whet the appetite for more?
BRIAN LAMB: I hope so.
TERENCE SMITH: Okay. Gentlemen, thank you all very much.
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