Photo: JUSTIN LANE/EPA-EFE/Shutterstock
Donald Trump is about to be prosecuted, but unless you’re one of the few people who might be allowed inside the courtroom in Manhattan, you won’t be able to watch. That’s because New York is one of the only jurisdictions in the country that still bans cameras in legal trials.
Given the political stakes of prosecuting a former president who is again running for office, the public needs to observe the strength of Manhattan DA Alvin Bragg’s case rather than rely on others to tell them how the evidence shakes out — especially given Trump and his allies’ penchant for spreading disinformation. With confidence in the media and courts at an all-time low, will members of the public trust the outcome of the case if they can’t see it for themselves? To ask the question is to answer it. With the future of other criminal probes unclear, Bragg’s prosecution may be the only public reckoning we get of Trump’s alleged criminality.
Televised court hearings have been around for many decades, but they were quite controversial at first. In the 1960s, the Supreme Court overturned two criminal convictions (Estes v. Texas and Sheppard v. Maxwell) on the basis of disruptive media behavior inside the courtroom. Through the late 1970s, most states continued to bar cameras from courtrooms. Then Florida launched an experimental program pioneering camera access in its state courts, which culminated in the Supreme Court formally blessing courtroom cameras in the 1981 case Chandler v. Florida. Dozens of states then followed Florida’s lead, and the wave gave rise to CourtTV and countless high-profile trials — including what was in 1995 the most-watched television event in American history: the verdict in the O.J. Simpson murder trial. Seventy-five percent of adults, or 150 million viewers, tuned in.
Despite the nationwide popularity of the practice, New York, Louisiana, and the District of Columbia continue to ban virtually all audiovisual coverage in trials. New York ran a successful trial program adding cameras in the 1990s, but then–State Assembly Speaker Sheldon Silver blocked permanent implementation (perhaps foreseeing his own future prosecution). More recently, New York courts made audio recordings of trials available to the public but only as an emergency measure owing to the lack of physical access amid the COVID-19 pandemic.
Trump’s trial in Manhattan is at least several months away, which may be enough time for the state to open up the courtroom to cameras. There just so happens to already be a piece of legislation under consideration that would do that: Senate Bill S160, introduced by State Senator Brad Hoylman-Sigal, would task the court system with implementing free livestreams and allow the media to record trials as long as cameras and equipment are operated quietly and unobtrusively. Judges would be afforded discretion to protect vulnerable witnesses, such as children or victims of sexual abuse. It’s a common-sense approach that has been successful in dozens of jurisdictions, yet the reform has only gained traction in recent years owing to the dramatic increase in attention to transparency in the criminal-justice system.
This is not just about Trump or merely an issue of transparency. It’s a matter of fairness. Many New Yorkers do not have the opportunity to attend court in person for reasons of work, health, child-care responsibilities, or lack of transportation. For certain trials, the number of interested observers can far exceed the capacity of the courtroom. There aren’t enough overflow courtrooms in America to accommodate the estimated 18.4 million people who watched the Derek Chauvin trial on television, a landmark criminal-justice case. Imagine how many would tune into Trump’s trial if they could.
The benefits of allowing such coverage are numerous and significant. It will provide increased accountability from litigants, judges, and the press. It will also educate citizens about the judicial process and allow the public greater certainty that proceedings are conducted fairly and, by extension, that the justice system works correctly. Claims of sensationalistic or inaccurate reporting will be readily verifiable by a public able to view the underlying proceedings for itself. Foes of this transparency have offered the same tired rationales to keep cameras out of court: that they might cause distraction, or diminish courtroom decorum, or prompt the media to sensationalize. Yet in the ensuing decades, no state has ever removed them.
“The day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process,” wrote Justice John Harlan when the Supreme Court tossed Billie Sol Estes’s conviction in 1965. His words are now beyond self-evident. Modern technology has transcended the difficulties that led to bans on such coverage. There are no more whirling, noisy cameras. There are no more glaring lights, nor does a thundering herd of technicians have to go in and out of the courtroom to set up and tear down their gear. Modern equipment is inaudible, requires no additional lighting, and can be operated by a limited number of trained professionals.
If New York ends its ban on cameras in court in time for Trump’s trial, it will be only a partial victory. Federal courts strictly prohibit video coverage of trials, and the Supreme Court only recently deigned to offer an audio livestream. With prosecutors in the Justice Department bearing down on the former president, the most important trial in American history may be yet to come. If so, it will take place in the dark. New York has a chance to walk in the light.
This post has been updated to clarify that virtually all audiovisual coverage is barred at trials in New York courts, since cameras are permitted in some scenarios, but not throughout full trial-court proceedings where witnesses testify under oath. In addition, Louisiana also prohibits cameras in trial-court proceedings under almost all circumstances.
Dan Novack is a First Amendment lawyer, professor of media law, and chair of the New York State Bar Association Committee on Media Law. He also hosts the podcast SLANDERTOWN. The views expressed are purely in his personal capacity. Mickey Osterreicher is general counsel of the National Press Photographers Association and a former photojournalist who covered the O.J Simpson trial.