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When asked at his recent confirmation hearing whether he supported allowing television cameras in federal courtrooms, Chief Justice John Roberts joked that former Senator (and current “Law and Order” star) Fred Thompson assured him that “television cameras are nothing to be afraid of.” For politicians and actors, that may be true, but what about for the federal judiciary? That question was squarely presented this month in the Middle District of Pennsylvania, where the trial in Kitzmiller v. Dover Area School District is underway. The Kitzmiller case — which has been called the Scopes trial of the 21st century — pits a group of parents against the school board of a Pennsylvania town in which high school biology students are being told about intelligent design at the beginning of their class’s study of evolution. The case presents a host of weighty issues: the proper place of religion in the public square, how our children are educated and even the origins of life itself. The American public has been discussing, studying and debating these issues for many years, and its attention is now keenly focused on the federal courthouse in Harrisburg, Pa. Indeed, the national and international media have followed the case closely since the parents filed suit last year. Given the importance of the issues presented and the passionate and legitimate public interest in them, Court TV petitioned the court for permission to televise the Kitzmiller trial in its entirety. Although the public has a right to attend the Kitzmiller proceedings, just 40 seats in the Harrisburg courtroom’s gallery are open to the public. Only these fortunate few will see and hear the arguments of counsel and the testimony of the scientists, scholars and parties. Everyone else will be relegated to learn about the trial through second-hand accounts and soundbites. The public at large will never hear the testimony, the advocacy or even the judge’s rulings. Instead, people will hear only summary accounts in the news, the commentary of talking heads and the spin of interested parties. In a case of this import, where the public debate has raged for many years, the value of learning about the issues firsthand cannot be underestimated. The court never addressed the benefits (or even the potential drawbacks) of televising the Kitzmiller trial. Instead, it summarily denied Court TV’s petition, ruling that it lacked the authority to permit a television camera in its courtroom. Although the Federal Rules of Criminal Procedure provide that “courts must not permit” the broadcast of judicial proceedings in criminal matters, the Rules of Civil Procedure are silent on the issue. For nearly a decade, however, the Federal Judicial Conference has taken the position that district court proceedings should never be televised. Under federal law, the conference’s position is merely a “recommendation.” Many district and circuit courts have followed the Judicial Conference’s recommendation, implementing blanket prohibitions against cameras in the courtroom. Other courts, however, have taken a different approach, barring cameras generally, but affording judges the discretion to permit them in individual proceedings. One such court is the Middle District of Pennsylvania. Its local rules provide that television and radio broadcasts from the courtroom are prohibited but that “the court may make such orders as may be necessary in connection with any specific case to protect the rights of all parties and the public.” In other words, the court may decide broadcasting proceedings is appropriate in a particular case. In Kitzmiller, the court found that the Judicial Conference’s “recommendation” was a “mandate” and concluded — without any explanation and in defiance of the provision’s plain language — that the local rule “does not permit … television broadcasting, or taping or recording in the courtroom” in any case. Whatever the merits of Court TV’s petition, the Middle District court plainly has the discretion to allow cameras in its own courtroom — and it should have that discretion. There may be good reason to prohibit certain proceedings from being broadcast, but for others the benefits of broadcasting outweigh any potential downside. The Kitzmiller trial seemed to present just such a case. In fact, the Judicial Conference itself acknowledges that televising judicial proceedings is not inherently inappropriate. The conference has expressly recommended that federal appellate courts decide for themselves when broadcasting proceedings is warranted, and, in recent years, consistent with their local rules, some appellate courts have opened their proceedings to public telecasts when they considered significant public issues. For example, the 9th U.S. Circuit Court of Appeals allowed C-SPAN to cover the oral argument in the Napster file-sharing case, and the D.C. Circuit permitted the press to disseminate live audio coverage of the oral arguments in the Microsoft antitrust case. Likewise, the U.S. Supreme Court broke with tradition when it released the audiotape of the oral argument in Bush v. Gore promptly following the conclusion of the argument. Each of these cases provided Americans with the opportunity to observe their judicial system directly as it wrestled with some of the most significant legal issues of our time. By opening up their courtrooms, these courts gave citizens the means to participate in the judicial process and the satisfaction of observing justice in action. In each instance, the country was treated to a civics lesson. It learned not only about the particular issues presented in court but also about the judicial process itself. In each case, the courts understood the significance of the issues to the public and, by allowing the proceedings to be broadcast, helped to fulfill the American ideal of informed discourse and debate. The court denied the public this same opportunity in Kitzmiller and never explained why. None of the concerns that often cause courts to be reluctant about television coverage is present in the Kitzmiller case. First, it is a civil case and thus does not present any of the serious considerations that accompany a criminal trial. Second, the case is being tried to the bench, so there is no need to protect a jury. Third, all of the witnesses — from the most famous scholar to the individual plaintiff parents — are people who have taken public stands on the controversies at the heart of the case. The case arouses no prurient interest. There are no salacious factual details or privacy issues. The Kitzmiller case could never be confused with the Scott Peterson trial. Fourth, the technology used to telecast judicial proceedings is remarkably unobtrusive. It requires only one or two stationary cameras, which make no noise and need no additional lighting, and several small microphones that pick up neither conversations between attorneys and their clients nor conferences at the bench. Finally — and perhaps most notably — neither party opposed Court TV’s petition. Televising the Kitzmiller proceedings would have allowed the public at large to observe the trial as if it were in the courtroom. It would have provided the public the opportunity to consider and weigh each side’s unfiltered, unedited arguments. Instead, the closest that most people will get to what really matters — the actual arguments and evidence presented inside the courtroom — will be images broadcast from the courthouse steps. A blanket restriction against broadcasting undermines American citizens’ interest in observing their judiciary preside in public proceedings and discounts judges’ ability and authority to control proceedings in their own courtrooms. Individual judges are in the best position to determine whether a specific civil proceeding can be broadcast without prejudicing the parties or adversely affecting the court’s ability to adjudicate the case. In cases like Kitzmiller, and the Napster and Microsoft cases — where the issues at stake are of the utmost importance to the public and the drawbacks of coverage seem so negligible — the court should have the authority to permit television or radio coverage and, if it bars coverage, should provide an explanation for why it concluded coverage was not appropriate. The timing of Court TV’s petition and Chief Justice Roberts’ confirmation could not have been more fortuitous. Now that he has been sworn in as chief justice of the Supreme Court — and is thus the head of the Federal Judicial Conference — Roberts should re-examine the conference’s stance on cameras in the courtroom. Although the chief justice has said he has no “set view” on the issue, his joke about Sen. Thompson rang true: There is “nothing to be afraid of” in allowing courts to permit radio and television coverage when they wrestle with weighty public matters and neither party will be prejudiced. Rather, there is everything to gain. Michael Berry is an associate in the Philadelphia office of Levine Sullivan Koch & Schulz. His practice focuses on representing news and entertainment media in defamation, privacy, newsgathering, access and related First Amendment matters. Berry represented Court TV in its motion to televise the proceedings in Kitzmiller v. Dover Area School District. He can be contacted via e-mail at [email protected].

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