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Court TV’s attempt to break New York’s ban on cameras in courtrooms and Newsday‘s efforts to obtain highway safety records explicitly excluded from litigation discovery highlight a heavy caseload awaiting the New York Court of Appeals as the judges return to Albany this week. In back-to-back arguments Wednesday, the judges will consider the two media-related cases. One seeks to shoot down the state’s per se prohibition on televising trial court proceedings; the other seeks to obtain through the Freedom of Information Law data on dangerous intersections that cannot be obtained through discovery and cannot be used in personal injury actions. The Court TV case centers on New York Civil Rights Law �52 which, since 1952, has barred at least motion picture cameras, and possibly still cameras, from trial courtrooms. Citing both the First Amendment to the U.S. Constitution and its New York counterpart, Article 1 �8 of the state Constitution, Court TV claims that a total ban on TV cameras — leaving no room for judicial discretion — is unwarranted and unconstitutional. Court TV makes three main arguments: trials are presumptively open to the public and press; per se rules imposing categorical restrictions on access are unconstitutional; and that any statute that burdens free speech is subject to heightened constitutional scrutiny. “We do not suggest that televised coverage of trials is a constitutional requirement in every case,” Court TV argues in a main brief by David Boies of Boies, Schiller & Flexner in Armonk, N.Y. “We do not propose that every proceeding open to the attending public and the press must also be open to cameras. A carefully tailored statute or rule granting trial judges discretion under appropriate circumstances … may well be a constitutional mechanism for balancing the rights of press and public.” But Solicitor General Caitlin J. Halligan maintains that the points of Court TV are merely “policy arguments, not interests of constitutional magnitude.” She stresses that the courts exist for the “fair, impartial, and judicious administration of justice” and that any other interest — educational, commercial, public insight — is secondary. “While Court TV’s arguments to this Court say much about the purported benefits of televising trial proceedings, they fail altogether to establish that either the federal or state Constitution confers a right to televise trials,” Halligan argues in her brief. The case began in 2001, when Court TV filed a declaratory judgment motion in Manhattan Supreme Court claiming that Civil Rights Law �52 is facially unconstitutional and violates the free speech provisions in both the state and U.S. constitutions. It sought to enjoin the state from enforcing �52. Acting Supreme Court Justice Shirley Werner Kornreich rejected the challenge and was upheld last year by the Appellate Division, 1st Department. The 1st Department unanimously agreed with Kornreich that the state Legislature “could reasonably conclude that its legitimate interest in fair trials outweighs the benefits of permitting camera coverage, even on a discretionary basis.” The Court of Appeals granted leave. SEVERAL EXPERIMENTS The matter continues and possibly culminates a lengthy debate over whether cameras and recording devices have a place in New York’s trial courts. The state banned cameras in 1952, but the Legislature in 1987 essentially suspended �52 and began the first of four consecutive experiments in which cameras were allowed on a limited basis. The experiments resulted in comprehensive reports endorsing cameras in the courts. However, the experiments were not glitch-proof and there were a handful of problems. For instance, there was at least one incident where a judge re-enacted an arraignment for the benefit of the press. Meanwhile, opponents came forward with opinion polls indicating a significant percentage of crime victims — perhaps more than half — said they would be less willing to testify at a televised trial. In another poll, 37 percent of the judges responding said the presence of cameras can skew the results in a courtroom. Regardless, of the roughly 1,700 trials where cameras and recording devices were permitted, there were no reversals related to the presence of the cameras. The fourth and last experiment expired in 1997, and the Legislature permitted the law to sunset. Since then, media have lobbied for the return of cameras and some judges have permitted them in spite of �52. There is some question whether �52 even applies to still photography since the statute specifically addresses only motion picture cameras. The legislative history, however, suggests that still cameras were meant to be included, in part over concern that flash bulbs would disrupt trial proceedings. Court TV does not raise the question of whether �52 applies to both still and motion picture cameras. Court TV’s case, Courtroom Television Network v. State of New York, 88, has generated a plethora of amicus briefs for both sides. Among the organizations opposing Court TV are trial lawyers and the New York State Defenders Association. Supporting Court TV are myriad media outlets and the New York State Bar Association. FOIL MATTER Immediately after the Court TV case, the judges will turn their attention to Matter of Newsday Inc. v. State Department of Transportation. The case hinges on whether traffic safety records are exempt from the Freedom of Information Law and, if not, whether FOIL is preempted by federal law. The dispute arose in 2003, when the newspaper was preparing a series on hazardous intersections on Long Island and in New York City. Newsday‘s reporter sought data on dangerous roadways that New York is required to maintain in order to qualify for federal Highway Hazard Elimination Program funds. However, in reaction to states’ concern that the information would become a treasure trove for personal injury lawyers, the federal government directed that the data was not subject to discovery and could not be used in litigation. New York argues that the intent of the federal directive would be undermined if the information were available via FOIL to anyone — including personal injury lawyers — who want it. Assistant Solicitor General Robert M. Goldfarb contends that the data is not covered by FOIL, and even if it were, FOIL is preempted by federal law. Last summer, the Appellate Division, 3rd Department, rejected the state’s argument in affirming Supreme Court Justice George B. Ceresia of Troy, N.Y. It said that even if lawyers can FOIL the highway records, they still cannot use them at trial, so the aim of the federal statute is not frustrated. The court also observed that Congress was specifically asked to exempt those materials from the federal Freedom of Information Act, and declined to do so. Representing Newsday are in-house counsel Stephanie S. Abrutyn and Michael J. Grygiel of McNamee, Lochner, Titus & Williams in Albany.

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