The statements at issue:
“The First Amendment has nothing to do with whether we have to televise our proceedings.”
– Supreme Court Justice Antonin Scalia, in a comment during an interview on the cable TV network C-SPAN, broadcast on July 29.
We checked the Constitution, and…
Because the Supreme Court has the authority to interpret the meaning of the Constitution, and because it also has the authority to decide for itself whether to permit television or radio broadcast of its public proceedings, there is unlikely ever to be a conflict between those two powers. An argument can be made that the First Amendment should provide a wedge to get TV cameras into the court, an argument that borrows some of its logic from prior Supreme Court rulings, but until the justices agree, the cameras will stay out.
Still, the court has left a trail of uncertainty about what the First Amendment says about public and press access to the courts, and the justices show no sign of wanting to clear that up for the court’s practices. Justice Scalia’s comment on C-SPAN, in fact, only added to the uncertainty. His remark can be read as the functional equivalent of a judicial ruling on the point—at least for himself—and yet the court’s own decisions seem to suggest that the question is still open.
About Constitution Check
- In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.
The Supreme Court at one time was openly hostile to the idea, and then openly welcoming of it. In a 1965 decision in the case of Estes v. Texas, the court ruled that a criminal conviction had to be overturned because of the conditions created in the courtroom by the presence of TV cameras during the trial. There was no question that the court felt that intense broadcast coverage of a high-profile criminal trial was incompatible with the Sixth Amendment right of the accused to a fair trial.
Fifteen years later, the court for the first time gave the public and the press a constitutional right, under the First Amendment, to be present in court to observe—and, for the media, to cover—criminal trials. That came in the decision in Richmond Newspapers v. Virginia. In fact, that 1981 ruling became one of a series of decisions by the justices limiting the power of judges to close courtrooms during public proceedings.
The next year, the court returned to the specific issue of TV coverage of criminal trials. The decision in the case of Chandler v. Florida clearly undermined the authority of its Estes decision when the court ruled that the right to a fair trial did not bar a state from choosing on its own to allow broadcast of criminal trials. It did not require a state to open the courthouse to cameras, but it definitely gave constitutional permission for just that.
Together, the Richmond Newspapers and the Chandler decisions would become central to the argument that TV stations and networks would make in their efforts to get state courts, and then federal courts, to allow broadcasting. The states were far more receptive to that plea than were the federal courts and, even today, broadcast coverage remains the exception in most federal trial and appeals courts.
And, it is obvious, that argument never has had any impact on the Supreme Court itself, as it continued to exclude live, and even delayed, TV or radio coverage of its public sittings. Indeed, the court was pressed by a variety of news organizations this year to allow some camera coverage of its hearings in the historic case over the federal health care law, and of the public session where the final decision in that case was announced. It simply chose not to do so, without any public comment. (The nation will never know whether the incorrect TV reports about that ruling that did emerge that day would have occurred if the public—and TV producers, in particular—could have been watching as Chief Justice John G. Roberts Jr. announced the result.)
It might be fair for the court to defend the exclusion of TV cameras from its chamber by arguing that its decisions in favor of public and press access to courthouses were meant to apply only to criminal trials, because those proceedings traditionally were mostly open to the public. But the usual defense that one hears is that TV accounts of what the Supreme Court was doing would be distorted by the “sound bite” approach of much of television broadcasting of public affairs—in effect, an explanation that makes access seem to depend upon how the proceedings would be covered in the media.
What has been most lacking from the court, though, is anything close to an explanation of why the First Amendment right of access to courts does not apply to the Supreme Court. The public and press have long been welcomed to attend its public meetings, but that tradition has not matured into a First Amendment right to do so, especially for TV and radio. Moreover, the court may well be insulated from ever having to give such an explanation—aside from comments like Justice Scalia’s in a public interview—because it is doubtful that any TV station or network possesses a legal right even to sue the court to test the issue.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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