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The case against cameras in Maryland courtrooms | COMMENTARY

Judge Lance Ito orders the prosecution to begin its rebuttal even though the defense has not yet rested.
Judge Lance Ito orders the prosecution to begin its rebuttal even though the defense has not yet rested. (POOL/AFP/Getty Images North America/TNS)

The British courts have sweeping bans against press coverage of ongoing trials, and the Federal Judicial Conference, after several experiments, banned broadcast coverage in United States federal courts. Many state courts, too, forbid such recording, including Maryland’s, which in 1981 outlawed the use of electronic news media, cameras and recording devices. It is the only state I know of to impose an unequivocal ban by statute.

Two U.S. Supreme Court cases drove much of the thinking in this area.

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In 1965, in the case of Estes v. Texas, the high court overturned the conviction of a notorious defendant because of media coverage; four justices — Chief Justice Warren, joined by Justices Douglas, Goldberg and Harlan — delivered impassioned opinions in support of an absolute ban. Yet, 16 years later, in the case of Chandler v. Texas in 1981, another set of justices, decided that broadcasting did not necessarily violate the Due Process Clause nor prohibit a state experimenting with evolving technology.

A decade later, a Court TV network had been developed as a branch of the entertainment industry, and a few years after that, the 1995 O.J. Simpson trial illustrated the corrupting effect that the possibility of money and fame have against any discretionary controls short of an absolute ban. All the major participants in that trial — prosecutors, defense counsel and even the judge — were rewarded with lucrative media contracts.

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Currently some media organizations, including Jeff Bezos’ Washington Post, are mounting an attack on the Maryland statute, which was upheld in a reasoned opinion by U.S. District Court Judge Richard Bennett. The case is pending before the Fourth Circuit Court of Appeals. The media briefs are signed by the usual plethora of bored associates in large firms seeking to redeem their sense of having “sold out” by supporting modish “civil rights” causes — an exercise in dilettantism.

But as a wise 2008 report, by a committee appointed to study the issue for the Maryland Judicial Conference, pointed out, it is important that they fail.

“The Committee found that broadcast news coverage of criminal matters neither educates the public nor instills confidence in the system’s ability to accomplish the sole objective of a criminal trial — to fairly and reliably determine guilt,” the authors wrote, concluding that state “prosecutors, public defenders, organized bar and victims’ rights advocates were properly concerned that the potential to prejudice the trial significantly outweighs any purported public benefits of extended coverage.”

Broadcasting gives listeners the illusion that the chosen snatches of testimony that they are shown by the all-powerful media are all that there is to know about a case, and that the selected case is transcendently important and the reporter’s comments on it are gospel. Participants in a trial, all or part of which is to be televised, know that their friends and neighbors may thus acquire fashionable opinions about it and that they may thus be stigmatized for their role as jurors or witnesses. Even when their faces are obscured, it will at the least be necessary to insulate them from broadcast coverage while the trial goes on, requiring the expense and difficulty of sequestration and eliminating from the jury pool those with family responsibilities requiring them to stay at home.

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It is our highly concentrated media, much of which are owned by the richest men on earth, who will determine: what trials will be broadcast, what sensational testimony will be excerpted, and what comments will be made on the outcome of trial verdicts, the testimony of particular witnesses, and the conduct of judges, prosecutors and defense counsel.

“The hand that rules the press, the radio, the screen, and the far-spread magazine rules the country,” Judge Learned Hand once observed in the heyday of Josef Goebbels, the Nazi minister of propaganda.

The stillness of the courtroom, its delays and deliberateness, its insistence on full context, is one of the few remaining sanctuaries from the pervasive power of the broadcasting networks and their ever-more-shrill partisan propagandists, magnified by the internet far beyond their immediate listeners. Maryland’s statutory ban, an example for the common-law world, must be preserved.

George Liebmann (george.liebmann2@verizon.net) is president of the Library Company of the Baltimore Bar and the author of numerous works on law and history, including “The Common Law Tradition: A Collective Portrait of Five Legal Scholars” (Transaction Books) and most recently " Vox Clamantis In Deserto: An Iconoclast Looks At Four Failed Administrations” (Amazon 2021).

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