United States of America, Plaintiff-appellee, v. Alcee L. Hastings, Defendant,post-newsweek Stations, Inc., et al., Intervenors-appellants, 695 F.2d 1278 (11th Cir. 1983)

This expedited appeal presents the question whether federal rules which prohibit televising, broadcasting, recording, and photographing proceedings in federal criminal trials violate the First Amendment¹  or the Sixth Amendment.²  In an order denying appellants' application to use electronic audio-visual recording devices during the upcoming trial, the district court cited four rules and authorities, including Rule 53 of the Federal Rules of Criminal Procedure³  (referred to as Rule 53) and Rule 20 of the General Rules of the United States District Court for the Southern District of Florida (referred to as Local Rule 20).⁴  We affirm the district court's order, as we hold that Rule 53⁵  and Local Rule 20 violate neither the First Amendment nor the Sixth Amendment.

This issue first came before the trial court when the defendant, Alcee L. Hastings, moved the trial court to permit his trial to be televised, primarily relying on his Sixth Amendment right to a public trial.⁶  Shortly thereafter, appellants, representing the interests of numerous news organizations, filed a motion to intervene. In this motion, appellants, citing their First Amendment rights, applied to the trial court for an order permitting them to use electronic audio-visual equipment during the trial. After holding a hearing on the issue, the district court denied both motions on November 30, 1982. Trial was set to begin on January 10, 1983. Appellants filed a motion in this court for expedited appeal. The motion was granted, and this appeal followed.⁷  Although defendant Hastings has not joined this appeal, he has filed an amicus brief.

Appellants suggest that recent Supreme Court opinions indicate that the First Amendment should be extended to give the news media the right to televise, photograph, record, and broadcast federal criminal trials. We disagree with appellants' approach. Appellants' approach reflects a tortured reading of these Supreme Court opinions. None of those decisions intimate that the Supreme Court would find First Amendment rights abridged by the exclusion of television cameras and other electronic recording devices from the courtroom. See Globe Newspaper Co. v. Superior Court, --- U.S. ----, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982) (invalidated on First Amendment grounds a state statute which totally excluded the press and the general public from the courtroom in trials for certain sex offenses during the testimony of victims under the age of 18); Chandler v. Florida, 449 U.S. 560, 101 S. Ct. 802, 66 L. Ed. 2d 740 (1981) (state's provision for television coverage of a criminal trial for public broadcast is constitutional); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) (state trial court's order that closed the murder trial to the public and the press violated the First Amendment).

Instead, these recent Supreme Court rulings stand for two propositions, neither of which is dispositive or even genuinely at issue here. First, television coverage of a criminal trial is not inherently unconstitutional. In particular, television coverage does not violate every defendant's due process rights. Chandler v. Florida, 449 U.S. at 574-81, 101 S. Ct. at 809-13. But just because television coverage is not constitutionally prohibited does not mean that television coverage is constitutionally mandated.

Second, the press has a right of access to observe criminal trials, just as members of the public have the right to attend criminal trials. Globe Newspaper Co. v. Superior Court, --- U.S. at ---- - ----, 102 S. Ct. at 2618-19, 73 L. Ed. 2d at 255-57; Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 579-80, 100 S. Ct. at 2828-29. To conclude from these cases, as appellants do, that the right of access extends to the right to televise, record, and broadcast trials, misconceives the meaning of the right of access at stake in those cases. The right of access therein was the right to attend. In the upcoming trial here, journalists will be able to attend, listen, and report on the proceedings as they always have. No part of the trial has been closed from public scrutiny.

With regard to the right of access, appellants overlook the significance of another recent Supreme Court opinion, Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). That case concerned the Watergate tapes, which had been admitted into evidence in the trial of Nixon's former advisers. At trial, the district court supplied earphones to jurors, journalists, and members of the public to enable them to listen to the tapes. The court also released transcripts prepared by the Special Prosecutor which "were widely reprinted in the press." 435 U.S. at 594, 98 S. Ct. at 1310. After the trial had begun, Warner Communications asked the district court for permission to copy, broadcast, and sell the tapes admitted in evidence. The district court denied this request. The Supreme Court, in upholding the district court's decision, rejected Warner Communications' assertion of a First Amendment right to copy and publish the tapes. 435 U.S. at 608-09, 98 S. Ct. at 1317. Justice Powell, writing for a majority of the Court, reasoned that:

The First Amendment generally grants the press no right to information about a trial superior to that of the general public. "Once beyond the confines of the courthouse, a news-gathering agency may publicize, within wide limits, what its representatives have heard and seen in the courtroom. But the line is drawn at the courthouse door; and within, a reporter's constitutional rights are no greater than those of any other member of the public."

435 U.S. at 609, 98 S. Ct. at 1317 (quoting Estes v. Texas, 381 U.S. 532, 589, 85 S. Ct. 1628, 1663, 14 L. Ed. 2d 543 (1965) (Harlan, J., concurring)). The Court explicitly rejected the broadcaster's claim that the right of access includes "the right to copy and publish.... exhibits and materials displayed in open court." 435 U.S. at 609, 98 S. Ct. at 1317. See also Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 426-27 (5th Cir. 1981) (the press has no First Amendment right of physical access to audiotapes which recorded conversations between defendants and FBI agents and which were introduced into evidence).⁸ 

In Warner Communications, Inc. the Supreme Court rejected a First Amendment claim of right to copy and publish particular exhibits which had been admitted into evidence. In the instant case, appellants assert a First Amendment right to record and broadcast the entire trial. Appellants' claim more nearly approximates the claim rejected in Warner Communications, Inc. than the claims which were sustained in Globe Newspaper Co. v. Superior Court, supra, and Richmond Newspapers, Inc. v. Virginia, supra.

On the other hand, this case can be distinguished factually from Nixon v. Warner Communications, Inc. and Belo Broadcasting Corp. v. Clark in two ways. First, the rules at issue here are absolute rules which prohibit televising, recording, photographing and broadcasting federal criminal trials, whereas the rules challenged in Warner Communications and Belo Broadcasting resulted from fact-sensitive determinations made by the trial judge on a case-by-case basis. Second, in the instant case, defendant Hastings has not only requested television coverage, but he has also knowingly and intelligently waived any objection he might have had. There was no such request or waiver in either Warner Communications or Belo Broadcasting.

In our judgment, neither distinction undermines the precedential value for this case of Warner Communications and Belo Broadcasting. We address first the distinction between an absolute per se rule and a case-by-case rule. In Globe Newspaper Co. v. Superior Court, --- U.S. ----, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982), the Supreme Court made it clear that an absolute per se rule which excludes the public and the press from a criminal trial is prohibited by the First Amendment. However, the rule struck down in Globe Newspaper Co. was significantly different from the rules at issue here. In Globe Newspaper Co., the state statute provided that the courtroom be sealed off from public scrutiny whenever minor victims of sex offenses testified at the sex offender's trial. As a result, the alleged victim's testimony, which is likely to be the most critical evidence presented at such a trial, was obscured from the view of the press and the public. By contrast, the rules here do not foreclose public scrutiny of the trial or any segment thereof.

In evaluating the state statute in Globe Newspaper Co., the Supreme Court said that denial of "the right of access in order to inhibit the disclosure of sensitive information" must be "necessitated by a compelling governmental interest" and "narrowly tailored to serve that interest." Id. --- U.S. at ----, 102 S. Ct. at 2620, 73 L. Ed. 2d at 257. Significantly, the mandatory statute in Globe was deemed to violate the "narrowly tailored" test: "In short, Sec. 16A cannot be viewed as a narrowly tailored means of accommodating the State's asserted interest." Id. --- U.S. at ----, 102 S. Ct. at 2620, 73 L. Ed. 2d at 258. However, the Supreme Court expressly noted that "limitations on the right of access that resemble 'time, place, and manner' restrictions on protected speech ... would not be subjected to such strict scrutiny." Id. --- U.S. at ----, 102 S. Ct. at 2620, n. 17, 73 L. Ed. 2d at 257, n. 17. (citation omitted). This was in contrast to the strict scrutiny which was applied to the Globe restriction which totally excluded the public and the press from certain parts of the trial.

The federal rules in the case before us resemble "time, place, and manner" restrictions. Rule 53 and Local Rule 20 do not absolutely bar the public and the press from any portion of a criminal trial; rather, they merely impose a restriction on the manner of the media's news gathering activities. The press is free to attend the entire trial, and to report whatever they observe. Thus, we conclude that strict scrutiny does not apply in the instant case, and that the per se rules here might well survive the lesser level of scrutiny which is applicable, even though the mandatory rule in Globe Newspaper Co. could not survive strict scrutiny.

Before defining the appropriate level of scrutiny applicable in this case and applying that scrutiny to the instant facts, we return briefly to the second factor mentioned above as distinguishing the instant case from Nixon v. Warner Communications, Inc. and Belo Broadcasting Corp. v. Clark. The fact that the defendant here has affirmatively requested television coverage and waived any objection thereto does eliminate one of the most important factors justifying a ban on electronic media news gathering. However, as discussed below, there are other interests supporting the rule which must be weighed against the countervailing interests pursuant to the appropriate level of scrutiny.

We derive from recent Supreme Court cases the appropriate level of scrutiny for a "time, place, and manner" regulation that restricts access in the courtroom. Such a restriction is constitutional if it is reasonable,⁹  if it promotes "significant governmental interests,"¹⁰  and if the restriction does not "unwarrantedly abridge .... the opportunities for the communication of thought."¹¹ 

Having defined the appropriate level of scrutiny, we turn next to a discussion of the competing interests which must be weighed. Addressing first the interests which tend to support the media ban, we note that the highly significant interests of a defendant in obtaining a fundamentally fair trial are eliminated from our consideration in this case because defendant Hastings has expressly waived all such objections. However, at least two other institutional interests support the ban. First, courts have an interest in preserving order and decorum in the courtroom. Illinois v. Allen, 397 U.S. 337, 343, 90 S. Ct. 1057, 1060, 25 L. Ed. 2d 353 (1970). Second, there is an institutional interest in procedures which tend to insure a fair trial.¹²  Stated another way, there is an institutional interest in procedures designed to increase the accuracy of the essential truth-seeking function of the trial. In Estes v. Texas, 381 U.S. 532, 544-51, 85 S. Ct. 1628, 1633-37, 14 L. Ed. 2d 543 (1965), the Supreme Court, noting how television could impair the truth-finding function of the criminal trial, wrote at length about television's probable adverse impact on jurors, witnesses, and other trial participants.¹³  While the Court in Chandler v. Florida, 449 U.S. at 575-78, 101 S. Ct. at 809-11, acknowledged that technological improvements and the safeguards embodied in Florida's experiment may have muted some of the effects enumerated by the Estes court, nevertheless the Chandler court concluded that the effect of television coverage on trial participants is "still a subject of sharp debate." Id. 449 U.S. at 578, 101 S. Ct. at 811.

Turning now to the interests which tend to favor permitting the media coverage, three First Amendment concerns have been articulated by recent Supreme Court cases. First, the right of access to criminal trials fosters public confidence in the fairness of the criminal justice system. Globe Newspaper Co. v. Superior Court, --- U.S. at ----, 102 S. Ct. at 2620, 73 L. Ed. 2d at 257. Gannett Co. v. DePasquale, 443 U.S. 368, 382, 99 S. Ct. 2898, 2907, 61 L. Ed. 2d 608 (1979). Second, the right of access allows the public to operate as a check on potential abuses in the judicial system. Globe Newspaper Co. v. Superior Court, --- U.S. at ----, 102 S. Ct. at 2620, 73 L. Ed. 2d at 257. Finally, the right of access promotes the truth-finding function of the trial. Id.; Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 569, 100 S. Ct. at 2823 (plurality opinion). In our judgment, the foregoing First Amendment concerns would be furthered by the media access sought here only to a minimal degree, if at all. The key factor affecting public confidence is the fact that trials are open and subject to public scrutiny, i.e., that trials are not secret. We can foresee no additional measure of confidence which might emanate merely from the different manner of media access, e.g., excerpts of live witnesses on the television screen, as opposed to an artist's sketch. See United States v. CBS, Inc., 497 F.2d 102, 106 (5th Cir. 1974). Similarly, we do not conceive that the requested manner of access would enhance either the function of public trials as a check on judicial abuses, or the truth-finding role. To the contrary, the Supreme Court has indicated that the central truth-seeking function of the criminal trial could be adversely affected by television coverage, with its adverse impact on jurors, witnesses, and other trial participants. Estes v. Texas, 381 U.S. at 544-50, 85 S. Ct. at 1633-36; Chandler v. Florida, 449 U.S. at 575-78, 101 S. Ct. at 809-11.

Weighing the countervailing interests in favor of and opposed to the media ban embodied in Rule 53 and Local Rule 20, we find that the media access sought here would advance First Amendment concerns only to a minimal degree, if at all. On the other hand, we find significant institutional interests supporting the rules at issue here. Furthermore, several reasons lead us to conclude that the per se approach of the current rule is reasonable. It is apparent from the above discussion that the interests relied upon are institutional interests which will exist generally. Also, the Supreme Court has noted that the impact of television coverage on jurors, witnesses, and other trial participants is "so subtle as to defy detection," Estes v. Texas, 381 U.S. at 545, 85 S. Ct. 1634. Promulgation of the current rules in a legislative-type manner is more appropriate than a case-by-case approach in light of the difficulty of detecting the adverse impact of media coverage, and in view of the minimal or nonexistent infringement on First Amendment concerns. Finally, judicial efficiency and economy are served by a per se rule.

For the foregoing reasons, we find that Nixon Communications, Inc., supra, and Belo Broadcasting Corp. v. Clark, supra,¹⁴  provide the controlling authority for this case, and we reject appellants' First Amendment challenge to Rule 53 and Local Rule 20. The matter is not one that should be fixed in constitutional concrete; rather, the issue is one that should be addressed to the appropriate rule-making authority.

In his amicus brief, defendant Hastings argues that his Sixth Amendment right to a public trial entitles him to have this trial televised, to the extent that is technologically feasible.¹⁵  Without television coverage, Hastings argues, public understanding of his trial will be incomplete. In Hastings' view, television is necessary to rehabilitate his reputation so that he can return to the bench as an effective judge. This argument has been addressed and rejected elsewhere:

Nor does the Sixth Amendment require that the trial--or any part of it--be broadcast live or on tape to the public. The requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed.

Nixon v. Warner Communications, Inc., 435 U.S. at 610, 98 S. Ct. at 1318. Following Warner Communications, Inc., we reject the Sixth Amendment challenge to Rule 53 and Local Rule 20.¹⁶ 

AFFIRMED.