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As the attorney for Al Gore in Bush v. Gore and the advocate who beat Bill Gates in U.S. v. Microsoft, David Boies is no stranger to controversial cases of constitutional dimension — or to thinking on his feet. Wednesday, he marshaled all of his experience and skills at the New York Court of Appeals. Boies and his client, Courtroom Television Network, are attempting to shoot down a 53-year-old state law that bars motion picture cameras from trial courtrooms. They can prevail only by convincing at least four judges — they have yet to convince even one judge at the trial or appellate level — to strike the legislative enactment as unconstitutional, a difficult challenge in any case. Boies has factors in his favor, which he seemed to exploit, and factors that weigh against him, which he sought to deflect. The Court of Appeals has a long tradition of supporting free speech and its corollaries, and on many occasions has found that New York’s version of the First Amendment is more potent than its federal counterpart. That apparently inures to Boies’ benefit. But this court is also reserved and restrained, and reluctant to undermine legislative enactments without a good reason. And that may make Boies’ task all the more difficult. On Wednesday, Boies tried to offer the judges a have-your-cake-and-eat-it-too alternative where they could take a bold and historic stand in favor of cameras in the courts without stepping too brashly on the sensitive toes of 212 lawmakers a block away. Boies, of Boies, Schiller & Flexner in Armonk, N.Y., acknowledged that the media have no right to televise any trial they wish to broadcast. But he also argued that the Legislature has no right to tell judges that they cannot under any circumstances ever allow TV cameras in their courtrooms. He appealed to the judges to not only take a stand for free speech and free press, but for judicial discretion as well. Boies urged the court to give the judges authority to determine, on a case-by-case basis and within certain strictures, whether cameras should be permitted at a particular trial. He said the Legislature could constitutionally enact guidelines and rules, as it did when it authorized a series of experiments with cameras in the courts between 1987 and 1997, but it cannot categorically ban cameras or dictate to journalists which tools of their trade they use for a particular assignment. If Wednesday’s colloquy, and lower court rulings, are any indication, Boies may be fighting an uphill battle. Acting Supreme Court Justice Shirley Werner Kornreich of Manhattan and the Appellate Division, 1st Department, bluntly rejected Court TV’s argument. And the comments from the bench Wednesday suggested at least some on the Court of Appeals were skeptical of Boies’ position. Chief Judge Judith S. Kaye, for instance, asked Boies at least twice how the Court could grant the relief he seeks, and whether it has any capacity to define the parameters of cameras in the courts. She did not seem satisfied with the answer. “How do we get there, Mr. Boies?” she asked. “Is this just our evolving sense of the First Amendment? What do we ground the opinion you seek on? Where do we find the basis and the authority, other than in our own instinct?” Boies said there is no way, other than to declare the law unconstitutional. “Shouldn’t you be addressing your arguments to the Legislature instead of this Court?” asked Judge George Bundy Smith. Boies said the Legislature has spoken, by authorizing four experiments, each with somewhat different rules for what proceedings could be televised and to what extent. However, the Legislature allowed those experiments to come to an end in 1997. Legislation is introduced annually to restore cameras in the courts, and year-after-year those bills die in committee. At the center of the case, Courtroom Television Network LLC v. State of New York, 88, is Civil Rights Law �52. That provision outlaws the broadcasting of a trial proceeding. In fact, a violation of �52 is a misdemeanor punishable by a year in jail. Court TV is challenging �52, arguing that its per se ban, affording no room for judicial discretion, violates both the First Amendment to the U.S. Constitution and Article 1 �8 of the state Constitution. The network contends that the sweeping language of �52 — written when TV cameras were large, noisy and inherently disruptive — can no longer withstand the heightened scrutiny that must be applied when free speech rights are burdened. And it argues that the court should permit the trial courts to undertake a balancing test and weigh the risk of prejudice against the benefits of openness and public edification of the judicial process. But to prevail, it must get past the clear prose of �52, as well as Attorney General Eliot Spitzer’s top appellate litigator, Solicitor General Caitlin J. Halligan. Halligan made a forceful argument Wednesday, relying heavily on U.S. Supreme Court precedent. She noted that a concurring opinion in Estes v. Texas, 381 US 532 (1965), found no constitutional right to televise trials (Boies, however, cites the same concurrence by Justice John Marshall Harlan, pointing to a portion suggesting the day may come when television is so “commonplace” that the constitutional question would have to be re-examined.) The solicitor general also cited Nixon v. Warner Communications Inc., 435 US 589 (1978), Richmond Newspapers Inc. v. Virginia, 448 US 555 (1980) and Chandler v. Florida, 449 US 560 (1981) — all of which, she claims, stand firmly against the proposition that there is any federal constitutional right to bring a TV camera into a courtroom. Halligan reminded the judges that while they have found Article 1 �8 more protective than the First Amendment at times, they have never held that the state Constitution affords more access to the courts than the U.S. Constitution. Earlier, Boies made clear to Judge Albert M. Rosenblatt that he was not resting his case on the federal Constitution. “And then you’d lose for sure,” Rosenblatt said. “The question is whether our state Constitution should [set a different standard]… . You want us to override the Legislature, and the question on the floor is how many state high courts have overridden their state legislature’s action or inaction [and ordered that courtrooms be opened to cameras]?” Boies was able to cite only a mid-level opinion in Ohio, although he did note that 43 states now permit cameras in the courts, up from two in 1965, 23 in 1981 and 37 in 1995. However, virtually all of those authorizations came from legislative enactments or judicial administrative orders, not constitutional rulings, Boies admitted. Halligan began her argument by answering the question that Chief Judge Kaye posed to her adversary. “Judge Kaye I’d like to start with the First Amendment and the question you asked, which is how can we get the right Court TV asks for here from the case law that we have before us,” Halligan said. “The answer is, we cannot.” Halligan said the right of access has never included a right to broadcast trial proceedings. “Precedent is on your side,” Judge Robert S. Smith said to Halligan. “You can cite a lot of them, and Mr. Boies is having trouble coming up with them.” However, Smith also said that providing the public with a transcript of a court proceeding after the fact is not a constitutionally acceptable alternative to an open courtroom. “Why is it logically different?” Smith asked. “If you can’t say everyone is relegated to reading the transcript, how can you say that everyone who can’t get in is relegated to reading what’s written by people who can get in?” Halligan said cameras can have an insidious impact on court proceedings. “But why isn’t that a constitutional balance to be struck by courts rather than legislatures?” Smith asked. Judge Victoria A. Graffeo observed that the cameras and recording devices of today are nowhere near as intrusive as those used when Civil Rights Law �52 was enacted or when several of the cited Supreme Court precedents were written. She asked if it was still valid to distinguish between a TV camera and a journalist with a notebook. Assistant New York City Corporation Counsel Janet L. Zaleon also appeared, representing Manhattan District Attorney Robert Morgenthau, an initial defendant in the case. She argued that there should be no cause of action against Morgenthau because there was no threat of prosecution against Court TV. Spitzer has said he supports cameras in the courts, but as a matter of legislative prerogative rather than constitutional mandate. HIGHWAY SAFETY RECORDS UNDER FOIA Immediately following the Court TV arguments, advocates argued another case of major interest to the media — Matter of Newsday Inc. v. State Department of Transportation, 89. That case centers on whether highway safety records compiled under 23 USC �409 are subject to the state Freedom of Information Law. Section 409 says that “reports, surveys, schedules, lists, or data” compiled for the Highway Hazard Elimination Program “shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or date.” The restriction was added to encourage states to take part in the program, and not to opt-out in fear that its participation would expose it to limitless litigation. Newsday sought records on dangerous intersections for a series it was preparing on treacherous stretches of roadway on Long Island and in New York City. Even though there was no suggestion that Newsday‘s aim was simply to provide information to its readers — and not to initiate any tort action — its request was largely denied. It appealed and prevailed at the trial level and before a 5-0 panel of the Appellate Division, 3rd Department. But the state remains insistent that the release of those materials to the paper would invariably frustrate the intent of �409. Assistant Solicitor General Robert M. Goldfarb argued that once the information is in the public domain, it will inevitably be used directly or indirectly by tort litigants, undermining the federal program. He argued that FOIL does not apply to the records at issue, and even if it did, federal law would preempt the state access law. “If materials are publicly disseminated under the Freedom of Information [law] to any member of the public at any time, that will necessarily include court litigants,” Goldfarb said. He said there is no point in a statute that limits civil discovery if the same information is available under FOIL.” “But even if it was disseminated, court litigants couldn’t use it,” observed Judge Carmen Beauchamp Ciparick. But Stephanie S. Abrutyn, in-house counsel for Newsday, and Michael J. Grygiel of McNamee, Lochner, Titus & Williams in Albany, N.Y., contended that if Congress wanted to exclude �409 data from freedom of information statutes it could have and would have done so. Instead, in both in 1983 and 1987, Congress specifically declined to amend �409 to exempt the information from the federal Freedom of Information Act. Graffeo described that as a “big hurdle” for Goldfarb and the state to overcome. Abrutyn noted that approximately two dozen states routinely disclose the materials at issue here, with no apparent impact on civil litigation and no remedial response from Washington, D.C.

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