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Oklahoma court makes dubious assumptions about cameras in court

By Douglas Lee
Special to freedomforum.org

06.29.00

The news media's recent excesses have cost them dearly in Oklahoma.

In fact, the Oklahoma Court of Criminal Appeals didn't hesitate to burden five local television stations and Court TV with the weight of every recent excess in television courtroom coverage. Television coverage, the court said, threatens "the atmosphere essential to the preservation of a fair 'public' trial – the most fundamental of all freedoms."

The court's ruling reversed a state judge's decision allowing television coverage of pretrial proceedings in the Terry Nichols case. Nichols, who is charged with 160 state counts of first-degree murder in the bombing of the Alfred P. Murrah Federal Building, had objected to television courtroom coverage of his case. Although an Oklahoma judicial canon prohibits the televising of criminal court cases when the defendant objects, the judge hearing the pretrial proceedings held that the canon unconstitutionally infringes on the news media's right to cover criminal cases.

Significantly, the judge limited his ruling to the case's pretrial proceedings. Whether the trial would be televised, he said, would be determined by the trial judge.

Nichols and the prosecutor nevertheless appealed the judge's ruling, which the Court of Criminal Appeals struck down on June 1. The television stations appealed that decision to the Oklahoma Supreme Court, which heard arguments in the case on June 19.

Regardless of how the state high court rules, the appellate court's decision sends a disturbing message to trial court judges across Oklahoma and, indeed, to judges nationwide. The appellate court, for example, did not consider less restrictive alternatives or require any evidence that television coverage actually threatened any of Nichols' rights. Rather, the court simply assumed that such coverage would taint the jury pool and interfere with a fair trial.

These assumptions are dubious at best, especially when the televised coverage might be limited to pretrial proceedings. The case already has received considerable publicity and undoubtedly will receive more as the trial nears. To assume that televised coverage of pretrial proceedings will bias potential jurors is to ridiculously assume that people who have not followed the case so far will be glued to Court TV's coverage of Nichols' preliminary hearing.

The assumption that televised coverage will interfere with Nichols' trial also is misplaced. As the judge hearing the pretrial matters noted, Court TV has covered more than 700 trials and other proceedings, and "the appellate courts have yet to reverse a single case due to the presence of a camera."

Nevertheless, the Oklahoma Court of Criminal Appeals, relying on a 35-year-old U.S. Supreme Court decision, Estes v. Texas, concluded that televised courtroom coverage "cannot be said to contribute materially to the objective of a fair trial." "Rather," the appellate court said, "its use amounts to the injection of an irrelevant factor into court proceedings." Because television is a "powerful medium," the court reasoned that it has the potential to distort the integrity of the judicial process and to cast doubt on the reliability of the jury's verdict.

In light of the appellate court's assumptions about televised courtroom coverage, the news media had no chance to overcome the Oklahoma rule permitting a criminal defendant to bar cameras from his or her case. The constitutionality of this unique approach to striking the balance between fair trials and a free press – only Alabama has a similar rule – was not questioned by the court, but its validity is highly suspect.

Nowhere else in First Amendment law is press freedom dependent upon the consent of the person being covered. While no one disputes that a criminal defendant's right to a fair trial must be considered when setting the boundaries of the news media's right to cover the proceedings, the Oklahoma rule fails to give proper weight to the media's right. By allowing a criminal defendant to arbitrarily exclude cameras from the courtroom, the Oklahoma rule fuels the notion that televised courtroom coverage is inherently dangerous.

With amazingly few exceptions, televising court proceedings has not demonstrably affected the potential jurors, parties, lawyers or judges involved. The most common complaint from lawyers, in fact, is not that television coverage sensationalizes cases but that it reveals that most trials are tedious and, yes, boring.

Because most courts have held that televising trials is a privilege rather than a right, the Oklahoma Supreme Court likely will not reverse the appellate court's opinion. It then will be up to Terry Nichols to decide whether cameras are allowed in his courtroom. However he decides, the television stations — and the public — will be the losers.