Yale law professor, legal scholar, and novelist, Stephen L. Carter (“Televising Trump’s Trials Is a Mistake,) argues in Bloomberg and The Washington Post that the criminal trial of former president Donald J. Trump, who is charged with conspiring to overturn the results of Georgia’s free and fair presidential election, should not be televised.
Carter claims that televising and/or livestreaming the historical trial will not serve the public good because the attorneys and witnesses will mug for the cameras, and few people will actually watch gavel-to-gavel coverage. So televising the trial will not help the public understand the basis for the jury’s verdict.
I vigorously disagree.
First, the argument that few, if any, so-called “ordinary Americans” will watch the entirety of the trial, which will likely span months, applies with full force to the argument that the press should not be permitted to report on trials on a daily basis because few Americans will bother to read the full daily summaries. Those who selectively skim the daily news report won’t have a complete picture of the evidence.
But the First Amendment guarantees to We the People the right to attend and observe criminal trials. The Supreme Court has repeatedly recognized the vital role the press plays in publishing accurate accounts of what transpires in courts of law for the benefit of the broader public.Even if only a miniscule portion of the public chooses to consume that information, the government is prohibited from barring us from receiving it.
Access to trials must not be limited only to those able to squeeze through the courtroom door. As great jurist Oliver Wendell Holmes Jr. famously declared, centuries ago, “It is desirable that the trial of causes should take place under the public eye (so) every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.”
As for the claim that attorneys and other trial participants will alter their courtroom conduct as a result of a single video camera being present, decades of actual experience and empirical studies prove otherwise. California found that 75% of trial participants surveyed were completely unaware of the camera’s presence, and studies of televised criminal trials in Arizona, Florida, Hawaii, Kansas Maine, Massachusetts, Nevada, New Jersey, New York, Ohio and Virginia found “there was virtually no negative impact on courtroom proceedings resulting from electronic media coverage.”
And, of course, if the judge notices during the trial that the camera’s presence is adversely affecting the participants, she has the discretion to terminate such coverage immediately.
Yes, Trump’s trial will undoubtedly spawn a “media circus” outside the courtroom. But that will be the case even if the trial were not televised and/or live-streamed.
As for the “upside” of allowing each of us – if we so choose – to see and hear for ourselves the evidence that will be presented by The People and by Trump’s attorneys?
Former Chief Justice Warren Burger said it best, “To work effectively, it is important that society’s criminal process satisfy the appearance of justice, and the appearance of justice can best be provided by allowing people to observe it.”
In 2014, then judge Carlos Samour (now a state Supreme Court justice) authorized the live streaming of the entire six-month trial of James Eagan Holmes, who was later convicted of murdering 12 and wounding 70 others in a movie theater in Aurora.
Over the objections of both the defendant and the prosecution, Samour quoted a former Colorado chief justice who had recognized that “it is in the interest of justice that the public understand as fully as possible the operation of the justice system.”
Samour wisely recognized that: “While the media can generally serve as the public’s surrogate, members of the public should have the opportunity to see firsthand their justice system at work.“Allowing (camera coverage) actually affords members of the public an opportunity to view the proceedings for themselves, instead of being forced to rely on characterizations by journalists, consultants, experts and others.”It would be hard to imagine a criminal trial of greater public importance than The People v. Donald J. Trump. Regardless of the verdict, the 12 jurors will ultimately return, the public’s trust in that outcome, and its ability to fully understand how “justice was done,” can only occur if We the People are able to sit, proverbially (and virtually), in their shoes.
Steve Zansberg is a First Amendment litigator in Denver, who has also represented The Durango Herald.