Chandler v. Florida – Oral Argument – November 12, 1980

Media for Chandler v. Florida

Audio Transcription for Opinion Announcement – January 26, 1981 in Chandler v. Florida

del

Warren E. Burger:

We will hear arguments first this morning in the case of Chandler and Granger v. Florida.

Mr. Hirschhorn, you may proceed whenever you are ready.

Joel Hirschhorn:

Mr. Chief Justice, and may it please the Court:

This is a criminal conviction in which the only issue raised before this Court is whether the defendants were denied their rights to a fair trial and due process of law by virtue of the mere presence of cameras in the courtroom over their objection.

The appellants contend that–

This is any camera?

Joel Hirschhorn:

–Any camera in which an effort is made to broadcast or taperecord for later broadcast and still photographic equipment.

Harry A. Blackmun:

Does the record show that the trial was televised either live or taped?

Joel Hirschhorn:

The record will reflect that portions of the trial were televised over the evening news in certain spots.

A total of two minutes and 55 seconds were televised on the evening news of selected portions of the trial.

Harry A. Blackmun:

How about still photographs?

Joel Hirschhorn:

The record will not reflect the presence of any still photographic camera present during the proceeding.

Warren E. Burger:

But this was both audio and visual?

Joel Hirschhorn:

Yes, Mr. Chief Justice.

William J. Brennan, Jr.:

And the record reflects the location of the camera?

Joel Hirschhorn:

Yes, as a matter of fact, in the Appendix to the appellees’ reply brief at page A36, you have a picture of the courtroom in which the circle with the “x” in it reflects the presence of the television camera.

Warren E. Burger:

But the recording was made of the entire trial?

Joel Hirschhorn:

No, Mr. Chief Justice.

The television camera was present only for jury selection, only for the direct examination and portions of cross-examination of the State’s main witness and for the rendition of the verdict.

Warren E. Burger:

How about the defense evidence?

Joel Hirschhorn:

None whatsoever.

There was no recordation of defense evidence by the television camera nor was it even present during presentation of defense evidence.

William H. Rehnquist:

Was the jury sequestered?

Joel Hirschhorn:

No, it was not, Mr. Justice Rehnquist.

Motions were repeatedly made to sequester the jury and denied.

The record will reflect that.

William H. Rehnquist:

But the District Court of Appeal in Florida found against you on your claim of prejudice from the pretrial publicity?

Joel Hirschhorn:

That is correct, and that is perhaps because I misperceived the issue in the District Court of Appeal when I argued it.

This is not a pretrial publicity case like Gannett.

This is not an effort to close the courtroom like Gannett in pretrial matters.

Joel Hirschhorn:

This is not an effort, as in Richmond Newspapers, to close the trial.

This is not a closure case.

The defendants here do not seek whatsoever to limit the normal investigative and normal methods of covering trials in progress.

What is under attack here is the method by which television claims it has a right of access.

And we contend, Mr. Justice Rehnquist, that the method is inherently prejudicial, just as in Estelle v. Williams this Court concluded that it was inherently prejudicial for a state to compel a prisoner to go to trial in prison garb without any showing of psychological studies.

William H. Rehnquist:

Then you accept the finding of the Florida District Court of Appeal that there was no prejudice in fact in this case?

Joel Hirschhorn:

I concede that the Florida District Court of Appeal was correct in finding on the record there was no measurable prejudice.

The issue we raised there and the issue we raise here is that human nature and our understanding of human nature and common sense tells us that being on television is different than any other type of public trial and that although we may not be able to measure with specificity the prejudice, behavioral scientists tell us that people act differently, posture differently, pose differently when they know they’re on TV.

William H. Rehnquist:

Was this kind of evidence introduced in your record at some point?

Joel Hirschhorn:

No, we were not permitted to introduce any evidence.

We were never granted a de novo hearing on this.

William H. Rehnquist:

Did you tender such evidence?

Joel Hirschhorn:

No, Mr. Justice Rehnquist, what occurred was, we filed a motion to exclude cameras in the courtroom over the defendants’ objection.

The trial judge determined that he had no discretion; it was mandatory.

He denied my motion, certified the question to the Florida Supreme Court.

Without a hearing it was fully briefed, including psychological studies.

After briefing on the certified question the Florida Supreme Court dismissed the certified question on the grounds that it was not dispositive of the issue.

When we went back to trial we were then placed in a posture where the judge said he had a mandate, he could not even ask whether it was mandatory or discretionary.

There is no evidence that there was in fact prejudice per se because we were not afforded an evidentiary hearing, nor do I believe an evidentiary hearing would have been necessary.

An evidentiary hearing was not necessary in Estelle v. Williams, an evidentiary hearing was not necessary in Jackson v. Denno when this Court determined that it is inherently prejudicial to a defendant for a jury to determine the voluntariness of a confession.

William H. Rehnquist:

You’re saying in effect that we as presumably not behavioral psychologists but as lay people in that field can determine on our own whether it’s inherently prejudicial that something be done?

Joel Hirschhorn:

I am saying that, Mr. Justice Rehnquist, that your understanding of human nature, as you did in Tumey, Turner, Estes, it is not necessary to have an evidentiary hearing.

Because we all know that timid people become more timid, nervous people become more nervous, people who are not used to being in a courtroom can only have their anxiety exacerbated by the presence of a television camera.

Harry A. Blackmun:

You’re also saying, really, I think, that there’s a bit of ham in all of us, including jurists.

Joel Hirschhorn:

Mr. Justice Blackmun, I think that that is accurate, but I’m not sure that ham is the issue.

I know television will make a cocky witness more cocky.

I certainly know it will make a timid witness more timid.

Warren E. Burger:

Now, when you say you know these things, do you get them by osmosis or how do you… I realize we all “know” certain things that we can’t demonstrate, but when you say you know, this is from your own experience as a litigation lawyer?

Joel Hirschhorn:

Mr. Chief Justice, I think we know that no judge would not be fair and impartial where he imposed a $12 fine against somebody or his portion of the fine came to $12.

But this Court in Tumey said, that procedure is inherently prejudicial because it creates the possibility, the probability of a denial of a fair and an impartial trial.

Joel Hirschhorn:

Human nature is such that being on television is more important than not being on television.

William H. Rehnquist:

Well, how do we know that without some sort of findings of fact or conclusions of law?

Joel Hirschhorn:

Well, there’s never been a hearing on the issue.

There’s never been a trial.

There’s never been an adversary hearing.

When the Florida Supreme Court enacted this rule which made it mandatory and the defendant had no consent, it did it without the benefit of testimony.

Well, haven’t the Florida courts rejected your position?

Joel Hirschhorn:

Oh, yes.

Byron R. White:

And so we have a set of state courts saying that your submission is erroneous?

Joel Hirschhorn:

We have a set of state courts saying that the public’s… the method of access is more important in the context of sunshine in the government than individuals’ rights to a fair and impartial trial.

Byron R. White:

You mean, did the Florida courts say that, yes, there is some inherent prejudice to the defendant?

They said there was none, didn’t they?

Joel Hirschhorn:

They said there was nothing demonstrated as applied.

Byron R. White:

So we’d have a set of findings against you?

Joel Hirschhorn:

In that sense, yes, we do.

Warren E. Burger:

What did you tender before trial that would support what you now say you know?

What did you tender to support that conclusion?

Joel Hirschhorn:

Well, I tendered my faith in the system, I presume, but there was nothing to tender, Mr. Chief Justice.

The Florida Supreme Court made it mandatory–

Warren E. Burger:

I mean at the trial court level, when you first were confronted with the problem, did you make an offer of proof to the court, or did the court deny you any opportunity to do that?

Joel Hirschhorn:

–No, and yes.

I did not make an offer of proof, and the trial judge said, it won’t make any difference if you do.

The rule is mandatory, but I’ll certify the question as one of great public import.

Let the Florida Supreme Court hear it.

Warren E. Burger:

Well, then, to pursue Mr. Justice Rehnquist’s question, and then several others, are we to rely, for example, on… to take some current things… a question and answer interview by George Ball in the current issue of Newsweek, something like that, and a column by a columnist in the Washington Post, Ellen Goodman, who said that television tends to distort the processes that it depicts?

Is that the kind of thing we as a reviewing court can rely on?

Joel Hirschhorn:

Well, when you review Jackson v. Denno and Estelle v. Williams, and Rideau and Turner, there were no evidentiary matters or psychological studies.

This Court held that where the procedure employed is inherently prejudicial, it wasn’t necessary to discuss the facts of the case.

William H. Rehnquist:

But how do we know here that it was inherently prejudicial?

Joel Hirschhorn:

Since time began.

Joel Hirschhorn:

Human nature hasn’t changed, Mr. Justice Rehnquist.

Thurgood Marshall:

Well, we didn’t have television–

–You mean, when time began.

Joel Hirschhorn:

Nor did we have the Constitution.

Thurgood Marshall:

Yes, I know.

Mr. Hirschhorn, do you rely on the Estes case at all?

Joel Hirschhorn:

Yes, I do.

John Paul Stevens:

What was the evidence of actual prejudice in that case?

Joel Hirschhorn:

None.

No evidence whatsoever.

John Paul Stevens:

Didn’t the Supreme Court just take judicial notice of everything, at least in Chief Justice Warren’s opinion and in the majority opinion?

They had no hearing on prejudice, did they?

Joel Hirschhorn:

None whatsoever, and in fact, in the Estes case the only thing that was televised was the prosecutor’s closing argument and the rendition of the verdict.

And we suggest in this case that this is not a gag order case and this is not a First Amendment access case.

The method of gathering news is at issue here because the method is inherently prejudicial.

This Court, for example, would not hesitate to strike down any state statute which said the state has a right to compel a defendant who is a prisoner to appear in prison garb because, for the same reason, appearing in prison garb, human nature tells the jurors there’s something different.

William J. Brennan, Jr.:

Mr. Hirschhorn, you referred me to page A36 and that diagram.

Am I to infer that the word electric locates the camera?

Joel Hirschhorn:

No, no.

William J. Brennan, Jr.:

Where is the camera?

Joel Hirschhorn:

The camera is that circle with the “X” in it.

“Electric” is so that the cameraman would know where to plug his cord in.

William J. Brennan, Jr.:

I see.

But the camera is over in the public seats section, is that it?

Joel Hirschhorn:

Yes.

Right behind the bar.

William J. Brennan, Jr.:

What’s the evidence that the participants in the trial and the jury knew that they were being televised?

Joel Hirschhorn:

Well, the jury box is right next to it, and–

William J. Brennan, Jr.:

No, no.

What is the evidence in the record that they knew the proceedings were being televised?

Joel Hirschhorn:

–The record will reflect that during jury selection I asked every… not all, but most jurors whether being on television would in one way or another affect–

William J. Brennan, Jr.:

Well, did anyone point out to them the camera located where it is?

Joel Hirschhorn:

–Oh, yes, and the record will so reflect.

I think in one of my questions that’s in my appendix to my original brief, I point out the question,

“You see the camera over there? “

And a little later on, during Mr. Sion’s testimony I pointed out to the Court in an aside,

“Your Honor, I want the record to reflect that cameras are present. “

and the judge quickly corrected me that it was “a camera”, the same camera.

Byron R. White:

Mr. Hirschhorn, I would almost conclude from your submission that you would urge that neither the defendant nor the prosecution, together, could stipulate to have cameras in the room?

Joel Hirschhorn:

That is correct.

And unlike Richmond Newspapers, where the prosecution and defense stipulated and the judge granted the stipulation, there was no discretion whatsoever.

The judge had to do it–

Byron R. White:

Do you think there just ought to be a flat rule excluding them, no matter whether there’s any objection by anybody or not?

Joel Hirschhorn:

–No.

That would be asking for too much.

I think that–

Byron R. White:

Well, who could… whose objection must be waived before cameras can be… just the defendant?

Joel Hirschhorn:

–Yes.

In Richmond, if you’ll permit me to explain my answer, in Richmond this Court said that closure places a very high burden on the defendant in an effort to protect the First Amendment and the public right to know.

Down the scale a little bit, you said in Gannett,

“Pretrial closure places a high burden on the defendant; we need to protect the Sixth Amendment, the defendant’s personal right. “

We say that where a defendant objects to the presence of cameras in the courtroom, his objection is sufficient… if a witness… because the method of gathering news is inherently prejudicial… if a witness or a juror objects, then the judge… the per se rule is where the defendant objects.

If a witness or a juror objects, or a lawyer objects, then the judge has to do the balancing test.

Which is more important at this point, the witness or juror’s right of privacy, if there is one in a courtroom, and I don’t think that there is, against the media’s method of gathering news in this case.

Byron R. White:

You wouldn’t say the defendant in that kind of a situation you were just describing would have any special right to demand that television be admitted?

Joel Hirschhorn:

No, and in fact, in fact there are cases that, obviously, it’s been used as a tool where a defendant has demanded that a camera come in the courtroom because he wanted to embarrass and humiliate the victim who was going to be testifying against him and the judges have exercised their discretion properly under the theory that the Sixth Amendment is not absolute, nor is the First.

The Sixth Amendment yields to confidential informers, trade secrets, unruly people, embarrassment, Richmond.

The First Amendment yields to Zurcher, yields to Branzburg, yields to libel and obscenity, yields to the clear and present danger doctrine, yields to Zemel, yields to Saxbe.

The First Amendment has to yield too.

William H. Rehnquist:

Yes, but this case is in quite a different posture from either De Pasquale or Richmond Newspapers, in that the state has opted for television coverage.

William H. Rehnquist:

In those two cases the state opted against coverage.

You make it sound as if the Constitution covers the entire 100 percent of the spectrum, without any state latitude.

Joel Hirschhorn:

Mr. Justice Rehnquist, the state did not opt.

The Florida Supreme Court enacted a rule without the consent of the governed.

William H. Rehnquist:

Well, that’s the state, for our purposes, when the Florida Supreme Court opts it for a rule.

Joel Hirschhorn:

Well, Mr. Rehnquist, your views on state’s rights are well known to me.

I have read and reread your dissent, and I suggest to you that the state under state’s rights could not enact a rule that said, Chandler, if you’re a convicted felon or in prison, you appear in trial wearing Dade County Jail on your T-shirt, because that is inherently prejudicial.

William H. Rehnquist:

Because it violates the Federal Constitution.

Joel Hirschhorn:

And I suggest, Mr. Justice Rehnquist, that the presence of cameras in the courtroom, which is an unnecessary method of gathering news, violates the Sixth Amendment for the simple reason that Devitt and Blackmar, they are the landmark when it comes to standard jury instructions, they… every trial, federal and state, at the conclusion of a case the jury is instructed, you, the jury, are the sole judges of the credibility and believability of the witnesses.

You, the jury, shall determine the demeanor of the witness and the witness’s ability to know and remember the facts about which he testifies.

How do we know that the witness is sweating because on cross-examination the defense attorney finally hit a nerve center that causes the witness to wonder whether he’s going to recant, or is he sweating because of the presence of cameras in the courtroom?

We don’t know that.

But we certainly know, we certainly know that the greater the exposure… and behavioral scientists have told us, and we know… that as in Brown v. Board of Education and the Brandeis brief that was filed, that behavioral scientists tell us what human nature and common sense tells us.

Warren E. Burger:

Mr. Hirschhorn, obviously the behavioral scientists’ views are relevant here.

But if no courtrooms undertake to try this out, how will behavioral scientists or judges, or anyone else, accumulate some empirical data, if empirical data will ever be available on the consequences, instead of just what might be called speculation by behavioral scientists and judges?

Joel Hirschhorn:

Well, that’s what the dissenters in Estes left open.

That day has come, and I think Mr. Justice Stewart and Mr. Justice Harlan and those who joined were reluctant to close the doors on the grounds that we need this novel form of experimentation to see.

Well, we’ve had this novel form of experimentation, an experiment without direction, an experiment without guidance, an experiment without controls.

And I don’t think anybody on this bench can stand here and say, when 23 percent of the jurors or 30 percent of the witnesses who finally responded to questionnaires which were subjective in and of themselves, admitted an awareness of cameras in the courtroom.

That’s infecting the process by its very method.

That gets right down to the whole purpose behind due process of law.

That gets us back to In re: Murchison.

That gets us back to why having a bailiff who is also a deputy sheriff and a witness, but who swears he didn’t say anything to the jurors, in Turner v. Louisiana?

Why this Court didn’t hesitate to strike that down as being an inherently prejudicial aspect of a denial of due process is–

Byron R. White:

How many states have taken Florida’s course?

Joel Hirschhorn:

–Ten.

I’m sorry; there are 27 states that currently permit televising, including Maryland.

However, ten require the consent of the defendant.

Byron R. White:

Of the defendant.

So there are… 18?

Joel Hirschhorn:

Let’s see.

Ten do not require the consent of the defendant.

There are seventeen in addition who do require the consent of the defendant.

Byron R. White:

So, if you were in one of those 17 states you wouldn’t be here?

Joel Hirschhorn:

That’s correct.

I absolutely would not be here because of the waiver principles.

Warren E. Burger:

Under the Florida procedure can the complaining witness… does the trial judge have discretion to exclude any pictures if the complaining witness is testifying?

Joel Hirschhorn:

Yes, Mr. Chief Justice, at page 779 of the Post-Newsweek decision, the last… there’s a paragraph that says,

“The presiding judge may exclude the electronic media coverage of a particular participant only upon a showing that such coverage will have a substantial effect upon a particular individual which would be qualitatively different from the effect on members of the public in general, and such effect will be qualitatively different from coverage by other types of media. “

However, two things occur.

One is, it doesn’t preclude coverage of the trial but just coverage of that particular witness.

And two, despite what that says, I don’t know how a judge is going to apply it.

I don’t understand, and I don’t think the bench and the bar and I don’t think witnesses will know how to demonstrate the qualitative difference.

And what that does is invite mini-trials during trials on qualitative difference.

Do we really have to have a behavioral scientist tell us that when a juvenile or a woman is victimized by a sexual assault, she doesn’t need to testify in front of a television camera to further and deepen her humility?

Do we need evidence in the record of that?

I suggest not.

John Paul Stevens:

Mr. Hirschhorn, does the record tell us why the portions of the trial that were televised and no others?

In other words, why the defense case was not televised?

Joel Hirschhorn:

Well, the record doesn’t have to.

The Constitution of the United States tells us.

It’s the First Amendment.

John Paul Stevens:

That doesn’t explain it to me.

Joel Hirschhorn:

Well, I didn’t mean to be flip, Mr. Justice Stevens.

I can’t… this Court has held in Cox Broadcasting and Tornillo that we can’t compel… not even this Court can compel–

John Paul Stevens:

Well, are you telling me that it was just a voluntary decision by the media that that’s all they wanted to?

Joel Hirschhorn:

–That’s quite correct.

The media selects what it wants to televise, just like it selects what it wants to put in the newspapers.

John Paul Stevens:

Does the record also tell us that… as I understand, there’s one mini-camera in the courtroom.

Does it tell us what it picked up in the camera?

John Paul Stevens:

Is it just focused on the witness, or is it on the whole courtroom, or how does it, what is the picture that is televised, do you know?

Joel Hirschhorn:

Well, this record won’t tell, because I was busy trying the case.

And I have to presume from the clips I saw on the evening news that they focused on Mr. Sion, the State’s main witness, giving his key testimony.

And they focused on jurors giving responses and they focused–

John Paul Stevens:

Is the cameraman in the courtroom who points the camera in different directions?

It’s not just a fixed camera is what I’m trying to say.

Joel Hirschhorn:

–It’s a fixed camera on a tripod swivel, but I think they use a zoom lens so they don’t move the camera per se.

Byron R. White:

But the camera can swivel around?

Joel Hirschhorn:

I mean, I must say, I must confess that I–

William J. Brennan, Jr.:

In your colloquy with Mr. Justice Stevens were you suggesting that, do you support your argument in the fact that only snippets of what the camera picks up that actually are broadcast in the evening news?

Joel Hirschhorn:

–Yes.

William J. Brennan, Jr.:

And to what effect?

Joel Hirschhorn:

Because, not in the sense of what the public sees but the fact that the jury knows that the camera’s present just for that portion of the State’s direct examination, but is not present for any portion of cross or the defendant’s case.

And I suggest that behavioral scientists, common sense, and human nature tell us that if a television camera picks up one part of a trial but not another, it’s because someone has made a judgment that that part is more important than the other.

Potter Stewart:

That has nothing to do with the defendant’s rights, though, does it?

Joel Hirschhorn:

Oh, yes, it does, with all due respect.

Potter Stewart:

What the public sees is no part of this case.

Joel Hirschhorn:

I’m sorry, I misunderstood your question.

Of course.

I was trying to draw that distinction.

I don’t care what the public sees in terms of the defendant’s rights.

It’s what the jurors–

Potter Stewart:

The jury was not sequestered here, was it?

Joel Hirschhorn:

–The jury was not sequestered.

John Paul Stevens:

I thought you were concerned about what the neighbors might say to the jurors or something like that–

Joel Hirschhorn:

That is the only aspect.

John Paul Stevens:

–Related to the selective televising of the prosecution’s case and not the defense case.

Joel Hirschhorn:

That is the only aspect.

The marshal has advised me I have about six minutes.

I’d like to reserve that for rebuttal, if I might.

Warren E. Burger:

Mr. Fox.

Calvin L. Fox:

Mr. Chief Justice, and may it please the Court:

I will be arguing the case in chief here this morning.

The Attorney General of Florida will address broader policy considerations with respect to the 17 states and the conference of chief justices who have submitted amicus briefs in support of the State’s position.

The State’s position in this case is quite clear.

The defendants received a fair trial.

The defendants, on the other hand, Your Honor, we submit, seek to turn the Constitution upside down.

They make no effort whatsoever to discuss how Noel Chandler and Robert Granger did not receive a fair trial.

John Paul Stevens:

Mr. Fox, before you get through will you explain to me why the Estes decision is not squarely in point in this case?

Calvin L. Fox:

The Estes opinion, Your Honor, as I am sure you are well aware–

John Paul Stevens:

I’m talking about the holding in that case based specifically on the one question the Court granted certiorari to consider.

Calvin L. Fox:

–It is a plurality opinion in which only four members of the Court joined in a rule, per se rule against judgment of the Court, however, reversing–

John Paul Stevens:

I’m talking about the judgment of the Court on the facts of the case.

Why isn’t that directly in point?

In fact, why isn’t that a stronger case because there the jury was sequestered?

Calvin L. Fox:

–It is a stronger case, Your Honor.

And that’s precisely the point.

The facts–

John Paul Stevens:

A stronger case for allowing the television.

Calvin L. Fox:

–Pardon me, Your Honor?

John Paul Stevens:

I said, it’s a stronger case for allowing television because the jury was sequestered.

Calvin L. Fox:

But on the other hand the extreme fact circumstances in that case–

John Paul Stevens:

There were no extreme fact circumstances.

I understand that all that was at a pre-trial hearing on whether or not to allow television.

At the trial itself they had a thing built up there so you couldn’t notice the television cameras, and there was no disorder during the trial, if I understand the case correctly.

Calvin L. Fox:

–Well, Mr. Justice… well, Your Honor, Mr. Justice Stevens, the court focused upon pre-trial hearings.

The cables snaking all over the floor–

John Paul Stevens:

I asked you, why wasn’t the holding specifically in point here?

Calvin L. Fox:

–It is not specifically on point, Your Honor, because of the fact circumstance there.

The facts there do not remotely relate to–

John Paul Stevens:

In what respect?

How are they different, other than the fact that the jury was sequestered there?

Calvin L. Fox:

–The facts in that case, the–

John Paul Stevens:

I’m talking about the trial, too; not the pre-trial hearing.

Calvin L. Fox:

–Your Honor, I would submit to you that the trial was a separate and distinctly serene proceeding.

In fact, we would submit that the only televised portion of that trial was the prosecutor’s opening and closing argument I believe.

John Paul Stevens:

It was selected portions here too, though.

Calvin L. Fox:

Yes, you’re certainly correct, Your Honor.

But I think the court was concerned with the infection that had preceded the trial; as, for example, in the Sheppard case, the infection that had preceded the trial–

John Paul Stevens:

The court declined to grant certiorari on that very question.

That’s right.

Calvin L. Fox:

–But, Your Honor, a reading of the Clark opinion, a reading of the Warren, Douglas, and Goldberg opinions, they concentrate entirely upon the pre-trial hearings, and the infection which preceded the trial.

They do not discuss the serenity which prevailed at the trial.

They do not separate–

Potter Stewart:

That’s all that was actually an issue in the Court’s judgment, and the Court, as a Court, not a plurality but a Court, five people reversed the conviction in the case because of the presence of television at the trial, per se.

Calvin L. Fox:

–Your Honor, the–

Potter Stewart:

So why isn’t my brother Stevens exactly correct in his question?

Calvin L. Fox:

–Most respectfully, by your leave, Mr. Justice Stewart, I’d submit to you that Mr. Justice Harlan would not have joined in a per se rule, and in fact he did not.

And he states quite clearly in his opinion that he restricts his holding and his support of the majority opinion to the very fact of the Estes trial, the facts in that case, the extreme–

John Paul Stevens:

The fact that he relied on was the fact that it was a notorious case, not a run-of-the-mill case, and this was sufficiently notorious so that it justified 2-1/2 minutes on the evening news.

Do you rely on the distinction between a notorious case and a routine case?

Calvin L. Fox:

–Yes, Your Honor, that becomes a question, then.

What’s a notorious case?

I would submit to you the Estes case was a notorious case.

Thurgood Marshall:

Well, do the Florida rules apply to all trials?

Calvin L. Fox:

Yes, Your Honor, it certainly does.

I think if the Court wants–

Thurgood Marshall:

Would it apply to a drunken driving case?

Calvin L. Fox:

–Pardon me?

Thurgood Marshall:

Would it apply to a drunken driving case?

Calvin L. Fox:

Yes, Your Honor.

Any judicial proceedings.

Thurgood Marshall:

And would it apply to a misdemeanor case?

Calvin L. Fox:

Yes, Your Honor, any trial.

Or–

Thurgood Marshall:

It would apply to a spitting-on-the-sidewalk case?

Calvin L. Fox:

–Yes, Your Honor, that’s correct.

Potter Stewart:

Or to an Estes case?

Calvin L. Fox:

Or to an Estes case, or to a Zamora case.

John Paul Stevens:

The Estes case was a case involving a lot of financial records, if I remember the opinion, whereas this is a case involving a couple of police officers who allegedly robbed a popular restaurant.

Calvin L. Fox:

Yes, Your Honor, and I submit that three minutes on the evening news does not compare to the eleven volumes of publicity in the trial of the Estes case.

John Paul Stevens:

On the pre-trial publicity point that’s certainly true, but that was not what was decided.

Do you think there’d be any tendency on the part of the local television station to televise a case involving an action to quiet title to real estate?

Calvin L. Fox:

Yes, Your Honor, as the Wisconsin brief notes, television cameras have been at zoning appeals, at traffic appeals, at any sort of civil proceedings–

Warren E. Burger:

The action to quiet title that I hypothesized.

Do you think there’d be any interest in a television station or in any of the people who watch television to see that kind of a trial?

Calvin L. Fox:

–Your Honor, I would submit to you that it is possible that a circumstance could arise where a quiet title case could be publicized.

Warren E. Burger:

Oh, I suppose… I’m talking about the typical action to quiet title.

I picked the lease noticeable.

If it were an action to quiet title on the State Capitol, I assume it would be quite news.

Calvin L. Fox:

Yes, that was the case I had in mind, Your Honor.

Warren E. Burger:

But to quiet title on an ordinary residence, would television be interested in it?

Calvin L. Fox:

Your Honor, that’s a question of editorial policy which I think this Court has not intruded into.

It’s a matter of First Amendment freedoms.

I think the editorial policy of the stations cannot be governed by this court or any court.

It may be they don’t have the time or the expense to put a camera in every courtroom and that type of case would probably certainly have a very low priority.

Warren E. Burger:

Let me ask you this hypothetical question since we have no empirical evidence in the record.

Suppose in this particular case the television after showing whatever it was they showed, the opening statement and the closing arguments of the prosecution?

Calvin L. Fox:

In Estes, Your Honor?

Warren E. Burger:

No, this case.

Calvin L. Fox:

No, this case was a brief segment of the jury selection and a brief segment of the State’s key witness.

Warren E. Burger:

Now, that’s all the television viewers saw, was the witness?

Calvin L. Fox:

Yes, Your Honor.

Warren E. Burger:

Suppose that they then followed a recent example and said, call 993-1234 if you think this fellow is guilty, no toll charge.

Call 111-4567 if you think he’s not guilty, and we’ll take a poll.

Would the court under the Florida rule have any authority to say, no, you can’t do that?

Calvin L. Fox:

Yes, Your Honor, I think the Florida Supreme Court has clearly in the final paragraph of its opinion left a warning to the media that any abuses by the media would result in a rescission of the rule.

Now, this is a rule–

Warren E. Burger:

If they abuse the First Amendment, the Supreme Court’s going to go after them?

Calvin L. Fox:

–No, Your Honor–

Warren E. Burger:

Is that the way you read that rule?

Calvin L. Fox:

–Pardon me?

Warren E. Burger:

Is that the way you read that rule?

Calvin L. Fox:

Your Honor, in the final paragraph of the opinion, the Court says that the past abuses of the press are in the past, and we believe that.

That is what the Court states in its final paragraph of the Post-Newsweek opinion.

And I think, quite clearly, the Florida Supreme Court has left it open for abuses by the press.

And I think in the event that there are abuses by the press, in the event that the trust that the Court has extended in balancing the public policy of open trials and open government in Florida, I think that the Florida Supreme Court quite clearly could withdraw the rule.

Warren E. Burger:

What would be your view, if you care to express it, on whether that would be an abuse of the rules, the hypothetical I gave you, to take this instant ballot having heard only the prosecution’s evidence?

Calvin L. Fox:

The basis in the rule for the rescission, Your Honor?

Warren E. Burger:

Could the Court have found them in contempt for doing that?

Calvin L. Fox:

I think the judicial control which has been left in the Florida trial courts by the rule.

It’s quite clear in the rule that the judicial control and discretion, to control the camera and the media and disputes among the media, is strictly restricted into the trial court.

Warren E. Burger:

Could they?

Could the Court properly find them in contempt for having shown only the prosecution’s case and then taken an instant poll on guilty or innocent?

Calvin L. Fox:

I think it’s a very close question.

I think the trial court probably would and then we could litigate it from there.

I would submit to you, Your Honor, that the questions that the defendant raises and the questions, the concerns the Court has expressed will occur in any sort of highly publicized case, whether it’s televised or not.

They could run a poll in any sort of case, whether it’s publicized or not.

It makes no difference that the camera is there.

The camera does not change the circumstances.

Calvin L. Fox:

The camera does not change the abuse by the press.

If the press is going to abuse the circumstance they will abuse it, no matter what.

Lewis F. Powell, Jr.:

Mr. Fox, may I ask this question?

Under the Florida rule, does the trial judge under any circumstances have the right to exclude cameras, including television cameras, from an entire trial?

Calvin L. Fox:

Yes, Your Honor, he certainly does.

Lewis F. Powell, Jr.:

Have they done so since the rule was adopted?

Calvin L. Fox:

Yes, Your Honor, they certainly have.

Lewis F. Powell, Jr.:

What considerations impel a court to make that ruling?

Calvin L. Fox:

Well, the rule itself states quite clearly the grounds relating to the difference in the effect upon the witness as opposed to the general public, and the difference relating to the type of media coverage.

As, for example, the trial court may exclude the electronic media but not other types of media.

Lewis F. Powell, Jr.:

I would distinguish, of course, the printed press media.

You have different authorities that control that.

But I understand your answer to be that the Court does have authority to exclude all cameras from the entire trial?

Calvin L. Fox:

Yes, Your Honor.

There’s a case, Palm Beach Newspapers case which is cited, I believe, in the CBS amicus brief, in which the cameras were excluded.

And that issue has–

Lewis F. Powell, Jr.:

Why was it done in that case?

Calvin L. Fox:

–In that case a prisoner had objected to being filmed because of the fact that he felt his life would be in jeopardy if he testified.

And the trial court closed the trial.

And the media appealed; the 4th District in that case reversed, stating that there needed to be an evidentiary hearing on the issue, and that the motion showed a prima facie case but then there should be an evidentiary hearing.

That case is currently on appeal to the Florida Supreme Court.

We’re in a frontier area here, Your Honor.

There have been very, very few cases with respect to closure or the media appealing a closure or the defendant appealing from an issue where closure was denied.

Lewis F. Powell, Jr.:

Have you had a case yet where a witness after being sworn but before taking the stand simply said to the judge, I’ve been camera-shy all my life, I just don’t think I can possibly testify fairly and honestly with cameras on me?

Calvin L. Fox:

We have a case involving a defendant, Green v. State, cited in our brief, where the defendant stated a long winding motion about her background and her social upbringing and so forth, and she stated that she was bothered with conferring with her counsel.

In that case the trial court denied closure, but the 3rd District Court of Appeal reversed that case and ordered an evidentiary hearing, stating that the defendant had made a prima facie case and the State–

Lewis F. Powell, Jr.:

You are saying, as I understand it, that the judge has full discretion to exclude cameras from the courtroom?

Calvin L. Fox:

–Yes, Your Honor.

Lewis F. Powell, Jr.:

If a witness or a juror persuaded him that it was in the best interests of justice?

Calvin L. Fox:

Yes, Your Honor.

Calvin L. Fox:

I think a full discretion should rest in the trial court.

Lewis F. Powell, Jr.:

Suppose you had a camera-shy lawyer?

Calvin L. Fox:

Well, Your Honor, that relates to another issue, I think, an issue which this Court has occasionally had a chance to address, Mr. Chief Justice, involving the quality of representation, the quality of trial court judges, and so forth.

We submit that the exposure of the trial courts and the attorneys to public scrutiny I think will have an educative effect upon the public.

I think an incompetent attorney will clearly be demonstrated in front of the cameras.

I think a trial judge who is not up on the law will clearly be demonstrated by the actual and real picture of what’s going on.

Warren E. Burger:

I understood Mr. Justice Powell to be probing at the idea that even a competent lawyer might be less competent if he was allergic to cameras?

Calvin L. Fox:

Yes, Your Honor.

Warren E. Burger:

And therefore his performance might be negatively affected.

Calvin L. Fox:

That’s correct.

Warren E. Burger:

What do you have to say about that?

Calvin L. Fox:

I would submit to you, the man, as the Colorado Supreme Court said in 1956, an attorney who is a strutter, an attorney who is a show-off an attorney who’s incompetent, is going to be incompetent, a show-off or a strutter, whether the cameras are there or not.

Warren E. Burger:

But that doesn’t answer the question I put and that I thought Mr. Justice Powell was probing at.

What if the very presence of the camera as with the camera-shy witness, impairs the functioning of a highly self-conscious lawyer, if you can hypothesize that?

Calvin L. Fox:

Mr. Chief Justice, I’d submit to you that that is precisely what we’ve argued in our brief.

We should proceed on a case by case basis.

In the event that is shown, in the event that a defendant files a 3.850 proceeding in Florida collaterally attacking the competency of his counsel, then we should proceed on a case-by-case basis.

We should not predicate our decision in this case upon conjecture, but upon the demonstrable reality, as the Court stated in Beck v. Washington.

The Attorney General of Florida will address the Court now.

Thank you.

Warren E. Burger:

Mr. Attorney General.

Jim Smith:

Mr. Chief Justice, and may it please the Court:

In the 1965 Estes opinion Justice Harlan, which was the swing vote in the plurality decision in that case, echoed the underlying philosophy and restricted scope of Justice Clark’s opinion when he said, and I quote from that opinion briefly,

“Finally, we should not be deterred from making the constitutional judgment which this case demands by the prospect that the day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process. “

“If and when that day arrives, the constitutional judgment called for now would of course be subject to reexamination. “

William H. Rehnquist:

Mr. Smith, do you suppose this Court would give very serious consideration to the claim of a lawyer who said he was used to practicing in a courtroom that only seated 20 people, and was now trying a case that seated 300 people, that he just wasn’t used to practicing before a large crowd and therefore all but 20 should be excluded?

Jim Smith:

Mr. Justice Rehnquist, I really don’t think that that issue would ever be heard by this Court.

It wouldn’t rise to this level.

Certainly, he would be expected to perform as an attorney in that courtroom whether there was one spectator or 300.

John Paul Stevens:

What if it was Yankee Stadium or the Gary Powers’ trial?

Jim Smith:

This Court would not accommodate–

John Paul Stevens:

You wouldn’t have to ask them to try it first in Yankee Stadium?

Jim Smith:

–No, sir.

This Court, obviously, wouldn’t accommodate–

Thurgood Marshall:

That’s about the only way you can get a public trial in New York, isn’t it?

Jim Smith:

–I’m sorry, Your Honor?

Thurgood Marshall:

That’s about the only way you could get a “public” trial in New York, would be a building twice the size of Yankee Stadium.

How do you differentiate this from Yankee Stadium?

I suppose the audience is even larger here.

Jim Smith:

The courtroom size will accommodate the number of people that the particular courtroom designated can take.

John Paul Stevens:

In other words it can’t apply to television.

There are a lot more people watching.

Jim Smith:

Certainly, and the presence of the media in the courtroom and your recent judgment in the Richmond case recognized the surrogate responsibility that the media has and the function that they perform in bringing to the attention of the public any kind of trial that is newsworthy.

John Paul Stevens:

Well, Mr. Attorney General, I understand the argument that the televising has an educational, public good to it.

And I understand that Florida is the Sunshine State in many ways.

But does the televising in your submission improve the quality of justice that’s administered in a courtroom?

Jim Smith:

The experience that we have had to date in Florida, and we have certainly had our share of highly sensational publicized trials, has been that the presence of cameras in the courtroom has indeed improved that process.

The fact is, in the Zamora trial, which was a very sensational, highly publicized capital case, was televised gavel-to-gavel in Florida, and portions of that trial were shown worldwide.

The experience in that proceeding was that for the most part the media was down the hall or downstairs in a room watching the proceedings on the TV monitor, rather than going back and forth in the courtroom carrying messages to each other.

The Bundy trial–

Byron R. White:

Well, Mr. Attorney General, unless Estes is overturned, wouldn’t your rule be invalid in a rather large category of cases?

Jim Smith:

–Mr. Justice White–

Byron R. White:

Such as the Zamora case?

Jim Smith:

–We don’t think that it’s necessary to overturn the Estes opinion to uphold the Florida Supreme Court rule.

Byron R. White:

Why?

Jim Smith:

The Estes opinion did not say that television cameras per se were a violation of the defendant’s constitutional rights.

Byron R. White:

I know, but I just asked you about the category of trial such as Justice Harlan described in his opinion in that case.

He thought there was a type of trial in which television would be per se prejudicial.

Jim Smith:

I would not–

Byron R. White:

Now, in that category of trial, wouldn’t your rule be invalid in at least some cases under Estes?

Jim Smith:

–Yes, Your Honor.

The case could certainly come back before this Court, where a trial judge did not exercise the proper control of the proceedings and let it–

Byron R. White:

That isn’t Justice Harlan’s holding, is it?

No, not at all.

That isn’t what he held.

That isn’t what his opinion said, and it certainly isn’t what the other four justices in the majority said.

Jim Smith:

–Justice Harlan said that obviously he was not willing to go along with the four other justices and on a per se basis deny states the right.

Byron R. White:

He said, however, in the notorious trial there was a per se rule without the necessity of demonstrating any particular prejudice.

Jim Smith:

My reading of that opinion is he said, a sensational trial in 1962 under the facts in the Estes case.

Potter Stewart:

Well, isn’t that almost self-defining?

Wouldn’t any trial which television was interested in covering be by definition a notorious or sensational trial?

Jim Smith:

No, Your Honor, the experience in Florida is that every news station in our state has a courthouse beat and it is common in the TV news programs and in the newspapers in Florida that what is going on at the courthouse is reported.

Byron R. White:

What about the Zamora case?

Jim Smith:

Excuse me, Your Honor?

Byron R. White:

Do you think Justice Harlan would have thought that the Zamora case fell within his definition of a notorious trial?

Jim Smith:

I do not, Your Honor, and I would like… Judge Baker, who was the trial judge in that case, at the request of the Florida Supreme Court made a very detailed report of that proceeding, which was conducted during the experiment period of the Florida rule, and distinguished what took place at that trial from the Estes opinion.

A full report of Judge Baker is in the appendix to our main brief, but I could point out, if I may, some of his conclusions.

Thurgood Marshall:

Mr. Attorney General, let me get back to a point.

You said that they’d be interested in covering every trial.

What would they do in Los Angeles where they have 200-and-some courts?

Jim Smith:

No, sir, I did not mean to imply that the media covers every trial.

I only… the major newspapers in our state and TV stations have reporters on the courthouse beat, and that normally in the news segment there will be a minute or so every night for what is happening at the courthouse.

It will not be every case.

Thurgood Marshall:

Well, it obviously can’t be.

Jim Smith:

Absolutely.

It would not be every case.

Warren E. Burger:

Are you telling us, Mr. Attorney General, that broadcasting two minutes and 52 seconds, was it, or 55 seconds of the prosecution’s case only, just one side of the case, has contributed something significant to the improvement of the administration of justice in Florida?

Jim Smith:

Mr. Chief Justice, in particularly a sensational type trial, the media will cover that event, it will be reported on television–

Warren E. Burger:

I’m just talking about television now, in broadcasting the live action, not the–

Jim Smith:

–I submit that it is better for the citizens of our state in those situations to see the actual image and hear those portions of the testimony as it has happened, rather that have to depend on the interpretation that a news commentator might like to give it.

Warren E. Burger:

–Is there any possibility, significant possibility, that the listening audience having watched two minutes and 55 seconds of the prosecution’s case only, and later the jury finds the defendants in a particular case not guilty, that the jurors will be subject to criticism of their neighbors and their friends and their associates for a verdict of not guilty, when they have seen evidence only of guilt?

Is that a possibility that the courts should take into account?

Jim Smith:

Mr. Chief Justice, that certainly is a possibility, but that possibility exists and does happen whether cameras are present in the courtroom or not.

Potter Stewart:

In any event, Mr. Attorney General, we don’t need to, and we mustn’t, decide whether or not this is a good idea.

But the question is whether what Florida has done is constitutionally permissible.

Jim Smith:

That’s correct.

Whether or not there is inherent prejudice would rather put in their presence–

Warren E. Burger:

But the question of whether it has a deleterious effect on the administration of justice as a rule, is part of the total question before this Court, not whether it’s a good idea for the television stations.

Jim Smith:

–That’s certainly–

William H. Rehnquist:

Is there any provision in the Constitution that forbids a state from adopting a procedure that has a deleterious effect on the administration of justice, in haec verba?

Not in haec verba, but your friend suggested one about the defendant in prison garb, didn’t he?

Jim Smith:

–He did.

And I don’t like to be referee in what may be a disagreement between the Honorable Chief Justice and Justice Rehnquist… the Constitution in the sense of the administration of justice, you know, within a state and what kind of rules a supreme court may adopt for that state, a state supreme court so long as they don’t rise to a federal constitutional violation would have discretion to adopt whatever rules they might deem proper.

The Florida rule authorizing the presence of the electronic media in the courtroom does that well within constitutional bounds and well within the encouragement this Court has given states to experiment with novel ideas.

The experiment has proved successful in Florida.

We have had literally hundreds of trials where the cameras have been present in the courtroom, reported generally very few situations where there’s been an objection.

And I submit the big reason for that is the government sunshine policies that we have in our state, the fact that in our state, when our citizens go to a county commission meeting or a city commission meeting, even our clemency meetings in capital cases, they see the television camera; the camera is present at all of those proceedings.

So it is not in any way a novel experience for the citizens of our state to be around television equipment.

It has become commonplace in Florida, as the presence of cameras and television obviously have become commonplace in our daily lives.

The most recent Roper report tells us there are more than 90 million TV sets in this country, that that television in the average household is on some 6-1/2 hours a day.

If I could comment briefly on the experience in the Zamora trial which was a highly publicized trial, as I say, in this country and worldwide.

Judge Baker took note of Justice Clark’s concern about the red light on the camera.

Obviously the state of art in cameras has changed.

We don’t have lights on the cameras in our courtrooms that indicate when they’re on or off, and there is only one camera in the courtroom.

Another concern in the Estes case was the fact that the trial judge had to hold no less than five hearings about the pre-trial coverage to referee disputes between the media.

Under the Florida rule the pooling arrangement as to who will operate the one camera that is present in the courtroom, those decisions are worked out among the media themselves.

The court is not called upon to referee any disputes.

If there are disputes in that regard, then cameras are not present in the courtroom.

Harry A. Blackmun:

Mr. Attorney General, is there anything in the record to the effect one way or the other that when television is present a larger venire is needed?

Jim Smith:

That has not… there’s nothing in the record that indicates that, Your Honor.

Jim Smith:

Some 28 states have experimented with cameras being present in their courtrooms.

In eight states those proceedings may be televised without the consent of the defendant.

In three states appellate proceedings are televised without the consent of the defendant’s lawyer in that case.

In the remaining states, some 16, television coverage is allowed with the defendant’s consent.

States have experimented in this area successfully.

We urge this Court to uphold the Florida Supreme Court rule in the conviction below.

Thank you.

Warren E. Burger:

Very well, Mr. Attorney General.

Mr. Hirschhorn, do you have anything further?

Joel Hirschhorn:

Mr. Chief Justice, and may it please the Court:

Being around television and watching television is different than being on television.

I don’t care how many television sets are in a person’s home or how many hours a day my children watch TV, when that witness sits down and that camera’s present, he sees it.

In Zamora there was no objection to the presence of cameras in the courtroom.

Zamora was a peculiar case because the defense in that case was that cameras made the defendant insane and the defendant invited cameras in the courtroom.

So Zamora doesn’t apply.

But Zamora’s co-defendant is here, Your Honors.

Agrella is here on cert which this Court has been holding, unless it did something with it this past week.

Agrella was a separate co-defendant who said, because his co-defendant didn’t object, he couldn’t get a fair trial.

That’s a collateral matter that has to be addressed.

Mr. Justice Harlan said, if every person in Yankee Stadium sat stonily silent, it’s not the same as the decorum and the atmosphere of a courtroom.

Showing two minutes and 55 seconds, showing filmed highlights, is what precipitated, I suggest, and it has been argued in the brief, the disaster in Miami in the wake of what we call the McDuffie verdict.

In haec verba, the due process clause, Mr. Justice Rehnquist, I suggest to you prohibits the State of Florida from doing this, and I suggest that the Declaration of Independence, July 4, 1776, requires the consent of the governed.

William H. Rehnquist:

Well, that’s no part of the Constitution.

Joel Hirschhorn:

Just its history.

I agree.

The hypothetical quiet title case?

If a television camera plunked its equipment… and that’s what we’re seeking to exclude, equipment in a courtroom… that quiet title case would become the most important quiet title case ever, because some TV producer had nothing else to do that night and decided to show that.

John Paul Stevens:

I don’t imagine the ratings would have been too good on that show.

Putting that to one side for a moment, one thing troubles me about your argument, Mr. Hirschhorn, on witnesses.

If the television camera does adversely affect the witness’s ability to testify in a persuasive way, effective way, here they only showed prosecution witnesses, so whatever harm was done to this trial process presumably would have been prejudicial to the prosecution.

Joel Hirschhorn:

Not necessarily.

Because of the jury’s impact.

Perhaps this witness was not affected, somehow.

But to the jury sitting back there in their jury room, they can be thinking and we can assume that they are correctly thinking about which witness’s testimony was more important or more relevant.

And I think they can say–

John Paul Stevens:

But does the jury know which part is being televised?

Joel Hirschhorn:

–Oh, yes.

They know which–

John Paul Stevens:

Because, as I understand it, there’s no red light anymore.

Joel Hirschhorn:

–The problem is… and I now understand the question… the camera wasn’t present the whole time.

I apologize, Mr. Justice Stevens.

John Paul Stevens:

Oh, I see.

So that they didn’t know whether?

I understand.

All right.

Joel Hirschhorn:

I’m sorry.

The camera was only present during jury selection, and the camera was only present during Mr. Sion’s testimony.

The camera was not present during other witness, during defense testimony, during closing argument.

Palm Beach Newspapers… I urge the Court to read Palm Beach Newspapers; that was cited by my opponent.

Because Judge Scholts said that the state attorneys who labor every day with witnesses, that state attorney filed two affidavits saying he got two witnesses who don’t want to testify.

They’re in fear, they’re in concern of their life.

Judge Scholts excluded the cameras, not from the trial, but from televising those two witnesses; not from the trial.

Because the rule does not permit blanket non-televising of the trial, just the successfully objecting participant.

And on appeal, the 4th District Court of Appeal said, Mr. trial judge, an affidavit’s not enough because the media has to be given a chance to confront, cross-examine the affidavit.

That’s an insufficient showing, just because two people claim that they believe they’re going to get murdered if they testify against the defendant.

Why the State would want to have this kind of procedure which infects its own witnesses?

It’s not easy for the State to get witnesses into court.

People don’t want to have their lives disrupted, and yet they persist.

The frailties of human nature are such that Devitt and Blackmar zeroed in in the standard jury instructions on why the jury has this sole and exclusive province to evaluate the witness’s testimony.

The First Amendment has yielded in Zurcher to the search warrant.

Joel Hirschhorn:

The First Amendment has yielded in Branzburg to the grand jury.

There is no battle here.

It is just an effort to preserve the very nerve center of the factfinding process, the life-blood of the system, the defendants’ right to a fair and impartial trial.

Both the First and the Sixth Amendment rights can be observed without violence to either.

There is no harm whatsoever if other traditional methods of gathering news, which were in effect when the Constitution was written, are used.

Harry A. Blackmun:

Is that the way you distinguish the written word from the television picture?

Joel Hirschhorn:

No, I distinguish it–

Harry A. Blackmun:

That it was in effect at the time the Constitution was written?

I distinguish it by that old Chinese proverb’s description, a picture is worth a thousand words.

One political cartoon can wreak more damage than a thousand words.

Hundreds of feet on TV can do even more.

Warren E. Burger:

Thank you, gentlemen the case is submitted.