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August 8, 2023

Andrea Widburg reported recently that John Lauro, a lawyer defending Trump against the Jack Smith witch hunt, will request that cameras be allowed in the courtroom during the trial.

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As Widburg notes, this argument looks like a long shot, because the Federal Rules of Criminal Procedure specifically forbid cameras.  Rule 53 says: “Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”

But not so fast, because the Sixth Amendment to the Constitution says: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”  In addition, the First Amendment is implicated, because the public has a right to hear information, and media and other interested parties have a right to obtain and communicate it.

The logical question is whether these constitutional guarantees trump Rule 53, if the defendant either desires this or has no objection.  Does the defendant’s right to a “public” trial extend to a right to a “broadcast” trial, or only to a right to have the public admitted to the courtroom?  The same is true for the First Amendment — does the right to attend a trial encompass a right to broadcast it?

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Rule 53 is defended by two sets of arguments.  The first is the fear that cameras would worsen a media circus that compromises the right of the accused to a fair trial, with famous examples being the Lindbergh kidnapping case and the Sam Sheppard murder trial.  Indeed, the Supreme Court held in Estes v. Texas that a television circus of a trial despite a defendant’s objections violated his right to due process of law.

The second fear is that broadcasting might unnerve witnesses and jurors, apprise future witnesses of earlier testimony, or otherwise have a negative impact on the trial itself and on the dignity of the proceedings.

If the defendant desires cameras, then the first of these has no weight.  The second is worthy of concern, but not undue, and it must be interpreted with recognition of the fact that the ban on broadcasting is primarily to protect the defendant.

So the basic issue is whether a defendant who wants the proceedings broadcast has a Sixth Amendment right that negates Rule 53.  As an ancillary question, does the media’s/public’s interest in effective access outweigh concerns about a negative impact?

So far, the courts have rejected both arguments, deciding that the Sixth and First Amendments require only that public have physical access to the courtroom during the trial.  (See U.S. v Hastings, 1983.)

The reasoning underlying this conclusion is weak to nonexistent, relying mostly on the literal meaning of the term “public.”  But only an autistic originalist can argue that because the Founders did not specify camera access in 1787, it cannot be required now.  For comparison, note that Fourth Amendment protections extend to electronic communications, which were equally unheard of in 1787.  Adapting the terms of the Constitution to present-day technologies is how judges earn their pay.