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On Thursday, the New York Court of Appeals upheld the state’s 53-year-old ban on cameras in the courts, flatly rejecting Court TV’s invitation to stake independent state constitutional ground in favor of electronic access to trial proceedings. The court found that a 1952 law banning cameras from the trial courts easily survives both federal and state constitutional muster — even if a strict scrutiny standard were applied, which it said was not necessary here. Additionally, the court made clear that the press has no greater right of access to the courtroom than the general public, that the state Legislature and not the courts should decide if televising trials is in the public interest and that in some applications New York’s historically expansive free speech provision covers no more ground than the First Amendment to the U.S. Constitution. It also stressed that the right to a fair trial outweighs any right of access afforded either the public or the press. Thursday’s ruling was a total loss for Court TV, with the court declining to address the media company’s argument that judges have discretionary power to decide on a case-by-case basis if cameras should be allowed in their courtroom. A handful of trial judges have embraced that position, occasionally admitting television and still photographers. Their authority to do so was undercut by this decision. “While we have in certain circumstances interpreted article 1, �8 [of the state Constitution] more broadly than its Federal counterpart, we decline to do so here,” Judge George Bundy Smith wrote for the unanimous court. “Court TV relies on courtroom closure cases to suggest that New York has granted the press broader rights than those provided under the First Amendment, but even if the right to access was the equivalent of a right to televise courtroom proceedings, which it is not, our cases do not support appellant’s assertions.” Jonathan Gradess, executive director of the New York State Defenders Association, which was among the amici curiae opposing Court TV, said the ruling should “stop the rogue judges who have been breaking the law and lay this issue to rest.” The court’s ruling came as no surprise to observers who watched oral arguments on April 27 or who followed the case in its journey through the courts. Acting Manhattan Supreme Court Justice Shirley Werner Kornreich and the Appellate Division, First Department, bluntly shot down Court TV’s argument, and Thursday the Court of Appeals found no fault with the lower courts’ reasoning. It acknowledged Court TV’s insistence that TV coverage of trial proceedings would benefit the public and the judicial system, but suggested that argument should be pitched to the Legislature, not the judiciary. “In New York State, the decision whether or not to permit cameras in the courtroom is a legislative prerogative,” Smith wrote. “We will not circumscribe the authority constitutionally delegated to the Legislature to determine whether audio-visual coverage of courtroom proceedings is in the best interest of the citizens of this state.” LITIGATION STRATEGY Court TV had attempted to achieve through litigation what its lobbyists at Ostroff, Hiffa & Associates of Albany could not achieve legislatively. Records maintained by the state Lobbying Commission indicate Court TV has spent next to nothing on lobbying the last few years as its attorney, David Boies of Boies, Schiller & Flexner in Armonk, N.Y., pursued the legal case. That case, Courtroom Television Network v. State of New York, 88, amounted to a constitutional attack on Civil Rights �52, a provision written when TV cameras were large and noisy and had yet become a fixture at public gatherings. Except for a decade of experiments between 1987 and 1997, when �52 was suspended by the Legislature, the provision generally kept audiovisual equipment out of the courtroom. Media organizations have been lobbying the Legislature for years to lift the ban, a position supported by the New York State Bar Association. But with strong opposition from criminal defense attorneys and apparent indifference by the public, the Legislature has largely ignored the issue. Smith’s analysis centered largely on federal First Amendment jurisprudence making plain that the media has no right of access superior to that of the general public. He also cited a series of Court of Appeals rulings recognizing the right of the public and press to witness criminal proceedings, but he said the right to a fair trial cannot be compromised to satisfy the curiosity of the viewing public. “The primary governmental interest, both State and Federal, is guaranteeing that the defendant receives a fair trial,” Smith wrote. “Consistent with that interest, the court must be concerned with the defendant, jurors, witnesses, attorneys and the public at large … The governmental interests of the right of a defendant to have a fair trial and for the trial court to maintain the integrity of the courtroom outweigh any absolute First Amendment or article I, section 8 right of the press or the public to have access to trials.” Smith said in a footnote that since Civil Rights Law �52 does not implicate a state or federal constitutional right, there was no need to address Court TV’s argument that the statute should be evaluated under a strict scrutiny standard. “Even if we were to consider section 52 under a constitutional lens, however, it would pass constitutional muster,” he wrote. “This Court concludes that the statute is narrowly tailored to serve the governmental interests at issue, namely insuring that criminal defendants receive fair trials, that witnesses are forthcoming in their testimony, that the trial court has control of the courtroom and that the integrity of the trial is maintained.” Boies was unavailable for comment Thursday. Court TV Chairman and Chief Executive Officer Henry Schleiff said in a press release that while the company “completely understand[s] the court’s reluctance to act in place of the legislature in providing a remedy to our state’s citizens” it hopes “that our legislative representatives will now respond accordingly in providing the same access to our trial courts as exists in the vast majority of our other states.” STILL CAMERA BAN NOT AT ISSUE The ruling leaves New York as the only state with an absolute ban on cameras, at least television cameras, in the courts. However, the court did not decide, nor was it asked to decide, whether �52 applies to still photography. The bill memoranda shows that the impetus for the legislation was concern over the blinding flash bulbs on the still cameras used in the 1950s, but the bill itself refers solely to videography. It is unclear why the Legislature and then-Governor Thomas E. Dewey did not explicitly include still photography in the �52 ban, and attorneys say that may be the next avenue of attack for the media. Michael J. Grygiel, a media attorney and partner at McNamee, Lochner, Titus & Williams in Albany, said a finding that still cameras are permitted in the courtroom while television cameras are barred would “raise a serious equal protection concern.” Mark C. Zauderer, a partner at DLA Piper Rudnick Gray Cary US in Manhattan and a member of a state bar committee that had recommended legislation permitting cameras in the courts, said the Court of Appeals “acted predictably” in the Court TV case. “This decision … is not surprising, first, in giving primacy to the rights of a criminal defendants and, second, in deference to the Legislature,” Zauderer said. “I think it is a comfortable decision for this court. It leaves the field wide open to the Legislature.” State bar President A. Vincent Buzard of Harris Beach in Rochester, N.Y., noted that the organization, in its amicus brief supporting cameras in the courts, did not weigh in on the constitutionality of �52. He said the group maintains that cameras have a place in the trial courtroom, so long as judges retain discretion to permit or exclude them as conditions warrant. Buzard also said he will appoint a task force to explore ways of taking better advantage of a rule that permits audiovisual coverage of appellate proceedings, such as those at the Court of Appeals and the appellate divisions. He maintains that public access to trial courts via television would enhance public understanding and acceptance of controversial verdicts, and suggested that a similar benefit would be achieved if the media paid closer attention to appellate proceedings. Solicitor General Caitlin J. Halligan argued for the state. Her boss, Attorney General Eliot Spitzer, has said repeatedly that while he would support legislation opening the trial courts to audiovisual coverage as a matter of public policy, he does not believe that there is either a federal or state constitutional right involved. Thursday’s ruling vindicates that position. “The court has acknowledged that the Legislature is the appropriate venue for making this policy decision,” said Spitzer’s spokeswoman, Christine Pritchard. Assistant New York City Corporation Counsel Janet L. Zaleon appeared for Manhattan District Attorney Robert Morgenthau. Court TV had named Morgenthau as a defendant on the grounds that he could, under �52, prosecute a misdemeanor against it for televising a trial. However, Morgenthau has never attempted to prosecute such a case and the Court of Appeals dismissed the claim against him in a footnote.

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