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No one seems to know for sure whether the statute banning cameras from New York’s trial courts is constitutional or unconstitutional, or even whether it applies to both still photography and videography. An action commenced by Court TV may, at long last, resolve those issues. Court TV and New York state are embroiled in a lively legal and philosophical debate over the viability and constitutionality of � 52 of the Civil Rights Law, which has been cited since 1952 to bar cameras and recording devices from trial courtrooms. Despite a 10-year experiment and a series of reports generally supportive of cameras, and the fact that New York is now among only nine holdouts, � 52 remains the law of the state. In recent years, some judges have declared � 52 unconstitutional and others have found it constitutional. Some have said it applies to all audio-visual coverage. Others say it addresses only television cameras. Meanwhile, New York Attorney General Eliot Spitzer is fighting to uphold a statute that he would just as soon see repealed. The latest salvo came this week when Court TV responded at length to a summary judgment motion by the attorney general. Spitzer, who is a defendant in the case along with New York Gov. George E. Pataki, the state and Manhattan District Attorney Robert Morgenthau, in February moved for summary judgment before Acting Supreme Court Justice Shirley W. Kornreich. Spitzer’s assistants, Harriet B. Rosen and Sachin S. Pandya, base their argument on one main assumption: There is no federal or state constitutional right to televise or broadcast trial court proceedings. They contend there is a rational basis for � 52, and therefore it is not for the courts to undermine the will of the Legislature. “The Legislature, not the courts, remains the appropriate governmental body to decide whether and under what circumstances to permit audio-visual coverage of court proceedings,” the state argues in its motion papers. Much of the state’s rational basis argument is grounded in reports that followed the four experiments during which cameras were allowed in the courtroom between 1987 and 1997. It maintains that Court TV cannot show that “in every case and in all circumstances” there are no adverse results of audio-visual coverage. Additionally, the state cites opinion polls where judges and other citizens overwhelmingly believe that TV cameras make witnesses nervous and less willing to testify. In response, Jonathan Sherman of Boies, Schiller & Flexner, counsel for the TV network, countered that an opinion poll hardly qualifies as definitive proof. He said the relevant fact is “that not a single reversal of a conviction or vacatur of judgment occurred in trials that were televised in New York between 1987 and 1997.” “[W]e are not unaware that televising trials may … have risks, risks that are perhaps greater in some cases than in untelevised cases,” Sherman said. “We do not ask this or any court to ignore them. We urge only that these risks cannot on their own provide a basis — as a matter of logic, the rationale of the case law and the overwhelming amount of undisputed evidence — to deny the public and press the same presumption to watch trials for themselves outside the courtroom that they have to watch them inside. … This is not the dawn of the television age. It is the middle of the television age.” LEGAL PRECEDENT Legally, Sherman relied heavily on Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980), where the U.S. Supreme Court referred to a “right to observe” court proceedings. “[T]he Court did not limit its holding, as defendants suggest, to permitting only physical attendance in courtrooms,” Sherman argues. “The Court did not limit the press’ ‘surrogate’ role to providing only second-hand accounts. The Court could easily have done so. But it did in fact the opposite.” Also appearing for Courtroom Television Network are Kevin R. Anthony and Alice Yao of Boies, Schiller & Flexner. Representing Morgenthau is Assistant Corporation Counsel Jane R. Goldberg. Spitzer has said repeatedly that courts should generally be open to audio-visual coverage. However, he also defends the constitutionality of � 52. Forty-one states now allow TV cameras in trial courts, with Mississippi joining the list just this month.

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