I published the following piece on Forbes.com 4/9/15:
Almost two years after the most frightening terrorist event in the U.S. post-9/11, a Boston, Massachusetts federal court jury has now convicted the Boston Marathon bomber. The penalty phase (determining whether the defendant should receive the death penalty or life in prison) is still to come, but the trial has already served a hugely important civic purpose. In the heart of this historic city (my hometown) in which hundreds of lives were ended or immeasurably harmed by this terrorist act, a civilian court conducted a trial with dignity in the service of justice. In an age of rampant frustration with the federal government and its partisan intransigence, this trial has been a rare shining light. So why sheath it in darkness?
It is stunning that in an age of dozens of local broadcast television and radio stations, a plethora of 24-hour regional, national and international cable news networks, hundreds of local, regional, national and international newspapers with digital media presences, thousands of online video sites, millions of social media users on Facebook and Twitter and hundreds of millions of smartphone owners, that the only visualization we have of this historic trial comes from sketches. Even audio is non-existent. People consume ancient religious texts on iPads, and absorb the power of great works of art on their Samsung smartphones. But when it comes to trying to educate the public about enormously complex issues at the center of our existence today, like violence, justice, civil rights, Islamism, and public safety, we rely on charcoal and colored pencil. It’s maddening.
The record of the United States federal court system in permitting cameras and/or sound recording is abysmal, from the top down. Interested in goings on at the U.S. Supreme Court, which only concerns itself with small issues such as free speech, same-sex marriage, abortion, immigration, health care and the environment? Not only can you not see or hear the proceedings at the Court live, but the first we see or hear of what happens there is when NPR’s Nina Totenberg literally reads to us from a transcript on the radio. I feel like a child at bedtime wondering whether Harry Potter will escape Voldemort.
The lower federal courts follow the dictates from above. Cameras and other electronic media coverage of federal criminal and civil proceedings have been prohibited since 1946 and 1972, respectively. In 2011, 14 federal trial courts finally began a “pilot” to assess the impact of having cameras in the courtroom, and the “data gathering” will conclude later this year. Congress has attempted to enhance the discretion of judges in this area, through legislation such as The Sunshine in the Courtroom Act (sponsored by Iowa Senator Charles Grassley), but despite much (and rare) bipartisan support there is no short-term movement of this on the horizon (there’s been a variation of this same legislation since at least 1997). The earliest that the U.S. Judicial Conference could consider changes to present bans on cameras would be March 2016, which can’t come soon enough in my book.
State courts have had cameras in many areas for years, and many point to use that experience to justify keeping cameras and recording devices out of federal courts. But those arguments always seem to come down to the criminal trial of O.J. Simpson. Yes, that was a circus, but it took place twenty years ago and reflected a bizarre mix of an egomaniacal judge in literally a Hollywood setting. It’s very much an exception to the rule. In fact, there is little evidence that electronic media in the courtroom has a detrimental impact on court proceedings and their outcomes.
In fact, the ubiquity and technological flexibility of digital media should make it far more palatable to place electronic media in the courtroom. Concerned about sensitive language? Institute a time delay for any live broadcast. Need context to be provided to viewers? The judge or other commentator could address the audience outside of the presence of the jury. Protecting privacy of witnesses or troublesome images? Digital technology makes this far easier. I would expect that a decision to open up federal courts more fully would only encourage an array of technological solutions to interest in court proceedings or knotty but legitimate privacy concerns. Yes, you should ban individual use of Twitter, Facebook, texting, etc. from inside the courtroom. But imagine the value of creative dissemination of financial data to iPads from an insider trading trial? Or video about climate change regulation explained in a fashion that a non-expert could understand? Or hearing live the heartfelt testimony of a gay couple seeking the right to marry?
Resolution of this issue is long overdue. If we expect and in fact demand that citizens serve on juries, and hope that they will participate in society by voting, how can we justify such restrictive access to information critical to understanding our society? Somehow the country has survived (ok, mostly slept through) C-Span’s wall-to-wall coverage of Congress. I think we can not only handle but grow from exposure to the judicial branch of the federal government.