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There were no cameras in Justice Shirley W. Kornreich’s courtroom Thursday, and the judge seemed skeptical that news organizations had a constitutional right to bring them there. “This is a policy question, is it not?” the acting Supreme Court justice asked David Boies of Boies, Schiller & Flexner, who is representing Court TV in a suit that contends New York’s ban on cameras in court, enacted in 1952, is unconstitutional. The judge’s remarks came during an hour-long hearing at State Supreme Court in Manhattan, about a year and a half after Court TV filed a declaratory judgment action to wipe the camera ban — � 52 of New York Civil Rights Law — off the books. New York is one of just nine states that still bans cameras at trial courts, and at least nine courts in the state have reached different conclusions on the constitutionality and scope of the statute. For example, does the ban apply to all audio and visual devices, but not still photography? Or only television cameras? Does it differentiate between witnesses who are subpoenaed and those who are not? Court TV brought its suit in hopes of answering those questions once and for all, and did so with the help of a road map laid out in Santiago v. Bristol, 273 AD2d 813, a 3-year-old ruling from the New York Appellate Division, 4th Department. The declaratory judgment action — the first ever by a media organization to attempt to invalidate a statewide ban — argues that there is no rational basis for � 52, which relies on now-invalid assumptions like the bulky and disruptive nature of cameras. It also contends that � 52 is invalid under the First Amendment of the U.S. Constitution and, more important, the state constitution, which prohibits government restraint on free speech. New York Attorney General Eliot L. Spitzer, who is a defendant in the suit along with New York Gov. George E. Pataki, the state and Manhattan District Attorney Robert M. Morgenthau, has said he supports cameras in the courtroom. But in court papers Spitzer has argued that there is no federal or state constitutional right to broadcast trials. “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,” Spitzer’s office argued in a summary judgment motion filed in April. The office has also based its arguments on reports from four experiments between 1987 and 1997, when the Legislature allowed cameras in courts. The office cites surveys in which people and judges in other jurisdictions that allow cameras say they have an effect on the behavior of witnesses. TELEVISION NEWS Thursday, Boies opened his arguments by saying most people, including New Yorkers, get most of their news from television. But Justice Kornreich immediately said she had difficulty understanding why that mattered. When Boies noted the public’s right to attend trials, the judge replied, “There is a leap from the right to be there and the right to televise.” Boies stressed that Court TV was not seeking a license to broadcast “gavel-to-gavel” coverage of every trial, but a right to broadcast unless a judge ruled that cameras would somehow jeopardize the fairness of a trial. “We are not arguing that there is an absolute right to have cameras in the courtroom all of the time,” he said. Kornreich was not satisfied, though, and asked if there were appellate decisions finding a constitutional right, to which Boies responded no. Later the judge asked Boies, “As someone who has been there, and I haven’t, does the United States Supreme Court allow cameras in the courtroom?” Boies said no, but did point out the high court’s tacit acknowledgement of changing times and technology when it released the oral arguments in Bush v. Gore, in which Boies represented Vice President Al Gore, on audio. Justice Kornreich also questioned one of Spitzer’s assistants, Sachin S. Pandya, during his arguments, but less often. Saying she found Boies’ state constitution argument more persuasive, the judge pressed Pandya on whether the Legislature had ever expressed a rational basis for the ban. Pandya could only reply that bar associations had expressed concern at the time that witnesses would be made nervous by the spectacle. When Kornreich asked why cameras would be more upsetting than having print reporters sitting in the front row, Pandya referred to his office’s statistics, including that 53 percent of California Superior Court judges surveyed in 1996 thought cameras affected witness behavior. Pandya said there was a rational argument to be made both for and against cameras in the court, but “the problem here is that Court TV wants a constitutional right.” He added: “That debate is properly with the Legislature, not this court.” Justice Kornreich reserved judgment on the matter.

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