The Court of Public Opinion: Keeping Hollywood off the Scales of Justice

by Jacob Metzger, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

Cameras provide real-time feedback on the world around us. They can illuminate injustice, but can also be used to manipulate a narrative. Recently, scrutiny regarding cameras in the courtroom has been revived following the historic, unfilmed arraignment of former President Donald J. Trump and the equally historic, filmed trial regarding Gwyneth Paltrow’s ski accident.¹ Due to the inherent unfairness to the defendant, the potential of miseducation to the American public, and cameras manipulating the fabric of judicial discourse, cameras should not be permitted in the courtroom. Part II of this article gives a general background of the history of cameras in the courtroom and the application as it stands now. Part III of this article argues that cameras do not belong in the courtroom because they do more damage than they are worth.

II. Background

A. General History

Criminal trials are presumptively open to the public and have been since the nation’s founding.² The First Amendment permits the public and the press to observe, document, and report these proceedings; however, permitting cameras and video recordings is separate from the right to observe court proceedings.³

The debate surrounding video and audio technology use in the courtroom erupted in 1935 at the first trial utilizing the technology.⁴ The case involved the now-infamous tragedy regarding the kidnapped Lindbergh baby.⁵ The media presence was so intense, chaotic, and intrusive that the judge ended up barring all in-court photographic equipment.⁶ In the aftermath of the media coverage of the trial, the American Bar Association adopted an advisory cannon recommending a ban on all photographic and broadcast coverage of courtroom proceedings.⁷

Several states passed laws ignoring the canon and permitted cameras in the courtroom.⁸ After their passage, defendants began to challenge the constitutionality of cameras in the courtroom, and the Supreme Court took two opportunities to resolve the dispute.⁹ The first case, Estes v. Texas, concerned a defendant and the relative publicity of the trial.¹⁰ In Estes, a divided court found that the presence of cameras in the courtroom can violate the Fourteenth Amendment when the defendant objects to the cameras and when there is widespread public interest.¹¹ A minority of the justices wanted to institute a per se ban on cameras; however, a slim majority determined that a fact-sensitive inquiry into whether the use of cameras would cause prejudice to the defendant was consistent with the United States Constitution.¹² In a unanimous decision in the 1981 case Chandler v. Florida, the Supreme Court affirmed its rationale in Estes. It determined cameras, on their own, do not violate the defendants right to a fair trial guaranteed under the Constitution.¹³ In essence, it was neutral in the debate regarding wide-spread prohibition of cameras in the courtroom.¹⁴

B. Current Supreme Court View

Currently, the United States Supreme Court does not permit cameras to run in the highest court.¹⁵ It operates without filmed proceedings but provides in-person access to the oral arguments, audio recordings of the oral arguments, transcripts, and of course, its decisions.¹⁶ Outside of congressional action, due to judicial hatred of cameras, it is unlikely that cameras will be permitted in the Supreme Court.¹⁷ In their confirmation hearings, some Supreme Court Justices express interest in allowing cameras in the courtroom; however, once confirmed, that opinion often sours.¹⁸ Before they departed from the court, both Justices Scalia and Breyer testified before Congress about their disdain for cameras in the courtroom.¹⁹ Famously, Justice Souter said, “The day you see a camera come into our courtroom, it’s going to roll over my dead body.”²⁰ Therefore, it is unlikely that cameras will be instilled in the highest court unless Congress mandates it.

C. Lower Federal Courts

Pursuant to the Federal Rules of Criminal Procedure, in criminal trials at lower-level federal courts, it is per se prohibited to have trials recorded by a camera.²¹ Federal courts have been incredibly resistant to permitting cameras in the courtroom, with some only offering pilot programs for certain civil cases.²² After these pilot programs, the facilitators of the programs have recommended a continued prohibition of cameras in the courtroom.²³

D. State Courts

Division exists within the states regarding whether to permit cameras in trial and appellate courtrooms; however, it is becoming more common to permit cameras in the courtroom at the state level.²⁴ Thirty-eight state Supreme Courts even live-stream their oral arguments.²⁵ No state mandates that judges permit the press to videotape all their proceedings because the practice is unconstitutional pursuant to the precedent established in Estes and Chandler.²⁶ Even in states that permit cameras, it is not uncommon for judges to kick them out due to potential violations of the Sixth Amendment. For instance, a New York judge declined to permit the videotaping of the recent and unprecedented indictment of former President Donald J. Trump after his legal team declared cameras would “create a circus-like atmosphere,” and would be “inconsistent with President Trump’s presumption of innocence.”²⁷

III. Discussion

A. Policies Opposing Cameras in the Courtroom

1. Human Element: Tragedy on Display

Placing cameras in the courtroom, particularly in criminal trials, opens victims and the parties up to public voyeurism of their pain.²⁸ Trials are consequential matters, and many parties undergo turmoil in court.²⁹ By permitting the media to record, publish, and profit off that pain, the court and the legislature are promoting harm to people who have undergone life-changing events.³⁰ Court TV is known for publicizing gruesome and extraordinary trials of people going through the worst days of their lives.³¹ Outside of their platform on TV, Court TV publishes these videos of sensational witnesses, victims, alleged murderers, and criminal trials on the internet to generate revenue and publicity.³²

2. Celebrity Controversies

As popular culture indicates, people are obsessed with the dramatization cameras capture in the courtroom. For instance, the recent civil trials surrounding Alex Jones, Johnny Depp, Gwyneth Paltrow, and Amber Heard received extreme attention from traditional and nontraditional media.³³ This attention allows parties and witnesses to hijack the proceedings, advertise during trials, and commercialize their appearance in the courtroom, effectively making the trial a real-life version of an Emmy-winning daytime TV show.³⁴

Jurors, attorneys, and the parties use the publicization of trials and justice to achieve fame and fortune.³⁵ After the OJ Simpson trial, half of Simpson’s attorneys got television shows.³⁶ Some tabloids even credit the fame of the Kardashians to attorney Robert Kardashian’s appearance in the trial.³⁷ Witness Kato Kaelin signed a book deal and booked his own radio and comedy show.³⁸ Witness Faye Resnik became a best-selling author.³⁹ Jurors penned several books about the experience as many publishers bombarded them with offers to write tell-all books.⁴⁰

Commercializing and exploiting the justice system has continued since the 1995 trial. For instance, alleged child murderer, Casey Anthony, reportedly generated thousands in revenue from licensing pictures of her daughter to news stations.⁴¹ Recently, she participated in a documentary but maintained that the filmmakers did not pay her.⁴² Gwyneth Paltrow wore and promoted her fashion line “Goop” during her ski trial.⁴³ Donald Trump used the publicity around his indictment, perp walk, and arraignment to fundraise $12,000,000 and continues to sell goods with a fake mugshot.⁴⁴

3. Political Trials

Permitting cameras in the courtroom puts the spotlight on justice and permits judges to perform for the cameras.⁴⁵ Cameras in the courtroom are particularly troublesome when considering the large number of state judges who are elected and not appointed.⁴⁶ Thus, by permitting cameras, judges can showboat and perform for the cameras similarly to your local congress member.⁴⁷ Further, it pushes justice to be political and subjects the judge to consistent political pressure as every word uttered could be ammunition in a campaign advertisement against them or as an opportunity for advancement.⁴⁸ For instance, in a dispute regarding the burial of a body, Judge Larry Seidlin made numerous inappropriate one-liner jokes and, due to Court TV’s presence, became an instant celebrity.⁴⁹ It was speculated that Judge Seidlin was preparing this footage as a demo for a Judge Judy style show.⁵⁰ These actions degrade the profession and turn the courtroom into a spin room, ignoring the judiciary’s purpose, which is to do justice.⁵¹

B. Arguments For Cameras in the Courtroom

1. Transparency

A prominent argument for having cameras permitted in the courtroom is increased judiciary transparency so that everyone can see the proceedings.⁵² However, this argument is misguided; courts currently provide an adequate record of proceedings. When judges make decisions, a judicial opinion can be proffered or demanded of the decider.⁵³ Further, court reporters and recording devices record the hearings; with some exceptions, any person can request a transcript.⁵⁴ In addition, the Supreme Court already protects the right to attend criminal trials, just not the right to record the trials.⁵⁵

2. Education

Another argument is that increased access to judicial proceedings increases the education of the United States citizenry; however, the inverse is likely true.⁵⁶ The average person does not watch court proceedings from start to finish. They likely only view skewed clips that the media presents to them, and with those clips, the viewers believe they understand the trial as a whole.⁵⁷ These clips tend to be sensational because the media is in the business of selling advertising revenue, not education.⁵⁸ Sensationalism and commercialism extend to platforms like TikTok, Twitter, and Instagram, which produce seconds-long videos focusing on outfits, one-liners, and quirky moments in trials.⁵⁹ For instance, in the Paltrow ski trial, TikTok creators posted content mocking Gwyneth Paltrow as she expressed her frustration of being annoyed that she “lost half a day of skiing” generating hundreds of thousands of engagements.⁶⁰ The media emphasizes only the “active” parts of the trial, not the briefs, written arguments, and the totality of the circumstances that make up the law; televised trials merely provide entertainment value for shock and awe.

3. Accountability

Proponents of cameras in the courtroom declare that they make the judiciary more accountable to the whims of the people by increasing transparency; however, this viewpoint is unthought-out.⁶¹ The primary mechanism for accountability is in a judge’s judicial opinion.⁶² At the trial level, if there is judicial error, the aggrieved party can appeal the decision to a group of three appellate judges.⁶³ If the appellate judges agree with the assignments of error, they can reverse the trial judge.⁶⁴ Further, most federal judges are insulated from accountability outside of appellate accountability, especially from popular sentiment.⁶⁵ All federal judges are appointed and do not answer to the people, but to the law.⁶⁶ The most impact that a regular citizen can have on the tenure of a federal judge is to vote for a congressperson who can impeach the judge.⁶⁷

In addition, at the state level, accountability to the people and not the rule of law harms the judiciary.⁶⁸ Elections and public perception of the judiciary have demonstrated effects in altering sentencing, the perception of justice, and the judicial branch’s politicization solely depending on whether it is an election year.⁶⁹ Cameras in the courtroom only give greater access to promoting partisan-based politics to win judicial elections and create further discrepancies by making judges spend time politicking on the bench and not judging.⁷⁰

IV. Conclusion

In conclusion, cameras in the courtroom are inherently harmful to the parties, the system, the judges, and the fabric of the judiciary. To allow or mandate cameras in the courtroom would generate revenue for private companies and actors looking to exploit it; however, it comes at the expense of the dignity of the judicial branch.

Cover Photo generated by DALLE 2 AI System

Jacob T. Metzger

Jacob Metzger is a 3L at the University of Cincinnati College of Law. Jacob received his bachelor's degree in Paralegal Studies at the University of Toledo with a focus in business and communications. Jacob is the editor-in-chief of the University of Cincinnati College of Law Intellectual Property and Computer Law Journal. He joined Law Review to write about consumer protection, intellectual property, advertising law, technology law, and topical topics.

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