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Court Decides Whether Civil Rights Law 52 Violates Constitution

A New York Criminal Lawyer said that, this is a declaratory judgment action. Plaintiff is a “national cable television network dedicated to reporting on legal and judicial systems of the United States, the 50 states, and the District of Columbia.” Plaintiff seeks a judgment holding New York Civil Rights Law § 52 unconstitutional under the First Amendment to the US Constitution and/or article I, § 8 of the New York Constitution, as well as an order permanently enjoining the statute’s enforcement.

A New York Assault Lawyer said that, plaintiff now moves for partial summary judgment, submitting the affidavit of its executive vice-president and general counsel, copies of pleadings and other documentary evidence. The State of New York and State defendants’ cross-move for summary judgment dismissing the action. In support of their cross motion, and in opposition to plaintiff’s motion, State defendants submit the affidavit of Assistant Attorney General and other documentary evidence. Defendant also opposes plaintiff’s motion.

A New York Criminal Lawyer said that, since 1909, the public’s right to attend trials in New York has been guaranteed by statute. Enacted the same year, Civil Rights Law § 12 codifies the Sixth Amendment to the US Constitution, protecting criminal defendants’ rights to a fair, public trial. In 1952, the New York Legislature enacted Civil Rights Law § 52, which provides, in pertinent part: “No person, firm, association or corporation shall televise, broadcast, take motion pictures or arrange for the televising, broadcasting, or taking of motion pictures within this state of proceedings, in which the testimony of witnesses by subpoena or other compulsory process is or may be taken, conducted by a court, commission, committee, administrative agency or other tribunal in this state.”

Plaintiff posits, and defendants do not dispute, that the passage of Civil Rights Law § 52 should be viewed as part of the “national backlash” engendered by photographic coverage of such notorious cases as the 1935 trial in New Jersey. Defendant in the said case was accused of the kidnapping-murder of an 18-month-old infant. Press coverage substantially disrupted the proceedings. One oft-cited commentator called the trial a “Roman Holiday” where “photographers clambered on counsel’s table and shoved their flashbulbs into the faces of witnesses.” After newsreel photographers violated strict access restrictions he had imposed, the judge barred any further photographic coverage, and the New Jersey Attorney General demanded that the newsreel companies “withdraw the trial footage from exhibition.” Although two newsreel companies complied with the Attorney General’s demand, two did not. Industry sources estimated that footage of the trial “played in 10,000 of the nation’s 14,000 movie theaters.”

A Bronx Criminal Lawyer said that, the Court in the 196 case held that conditions during the pretrial hearing and the trial itself violated the petitioner’s due process right to a fair trial. Particularly troubling to the Court was the potential, but immeasurable, prejudice on the minds of the jurors arising whenever a notorious trial, by virtue of being televised, becomes a “cause ce le bre.” The Court also was concerned that in such cases jurors would be “distracted,” not only by the physical aspects of audiovisual coverage, but also by the “awareness of the fact of telecasting that is felt by the juror throughout the trial.” Other potential risks addressed by the Court were the impairment of witness testimony, the administrative burden on the trial judge, and the mental “harassment” of the defendant caused by “inevitable close-ups of his gestures and expressions during the ordeal of his trial.” The Court rejected the State’s argument that no constitutional violation could be found because the defendant did not make a “showing of actual prejudice.” Instead, the Court held that the case was one in which “a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process” even without an actual showing of prejudice to the defendant.

The issue in this case is whether Civil Rights Law § 52 violate the First Amendment to the United States Constitution or article I, § 8 of the New York Constitution.

In the 1980 case, the Court held that “everyone” has a right to “attend criminal trials to hear, see, and communicate observations concerning them.” Consequently, the Court found that a closure of the courtroom to the public is constitutionally permitted only if it is justified by “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Plaintiff argues that Civil Rights Law § 52 effects an unconstitutional closure of the courtroom by prohibiting audiovisual coverage of trials. The court disagrees.

Plaintiff argues that strict scrutiny should apply to section 52 under the analysis developed in the 1980 line of cases. However, the right to televise court proceedings was not among the rights recognized in the 1980 case or its progeny. Instead, the court indicated that restrictions on audiovisual coverage of trials, like ordinances requiring licenses for public parades or zoning laws regulating the location of adult establishments, should be treated as time, place, and manner restrictions subject to rational basis scrutiny. This result is consistent with Chandler, decided after Richmond, where the Court held that “there is no constitutional right to have live witness testimony recorded and broadcast.” The upshot of Chandler, Estes and the Richmond cases is that audiovisual coverage of court proceedings is neither prohibited nor required under the First Amendment. Thus, it follows that a court may impose reasonable restrictions on audiovisual coverage.

Plaintiff cites no case, and the court is aware of none, where an appellate court, in any state or federal jurisdiction, has applied strict scrutiny to restrictions on audiovisual coverage of trials. On the contrary, United States Courts of Appeals in the Second, Fifth, Sixth, Seventh, Tenth and Eleventh Circuits have upheld rules prohibiting audiovisual coverage of court proceedings as reasonable time, place, and manner restrictions on speech.

Nevertheless, plaintiff advances essentially two arguments for applying strict scrutiny to Civil Rights Law § 52. Neither persuades the court. The first focuses on the 1985 court’s citation to 1978 case decision, where the Court held that “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” At oral argument, plaintiff suggested that “the stock of information certainly includes the actual proceedings of a courtroom.” In papers, plaintiff theorizes that the previous cases mentioned are examples of an “extraordinarily speech-protective law” emerging from the Supreme Court’s decision in New York Times Co. v Sullivan. According to plaintiff, the broad sweep of this jurisprudence implies a right to televise court proceedings.

In applying the rational basis test, the test the court finds applicable here, courts must “defer to the Legislature, which is presumed to know all facts that would support a statute’s constitutionality a presumption which must be rebutted beyond a reasonable doubt. The Legislature’s actual purpose need not be apparent, for a statute is constitutional if rationally related to any conceivable legitimate State purpose.” Therefore, the burden here is on plaintiff to show that there is no conceivable legitimate state purpose for Civil Rights Law § 52. Plaintiff fails to make this showing.

Plaintiff argues that technological advances and 10 years of experiments in New York have discredited the Legislature’s reasons for passing Civil Rights Law § 52. There is no dispute that plaintiff’s small, silent, remote-controlled camera utilizing only natural light does not present the physical problems of television coverage which beset a bygone era. As plaintiff correctly points out, this issue has not been in serious contention for some time. However, the physical disruption caused by audiovisual coverage has never been the sole rationale for section 52. The law was designed to protect the right of a witness compelled to testify to “have a fair opportunity to present his testimony.” This right was thought to be impaired not only by the “batteries of cameras, microphones and glaring lights,” which have since gone the way of hand-cranked film cameras, but also because the televised witness “knows he is being seen or heard by millions of people.” The Legislature in 1987 recognized that technological advances alone were not sufficient to dispel all concerns as to whether audiovisual coverage could be allowed while preserving intact the ideal of fairness embodied in Civil Rights Law § 52. For this reason, it made Judiciary Law § 218 experimental, recognizing that “there may be inherent problems in any court proceeding which could possibly be complicated by audio-visual coverage.”

More important, the vast record developed during New York s 10-year experiment contains ample evidence from which the Legislature could rationally conclude that Civil Rights Law § 52 advances the State’s interest in fair trials. As the New York experience developed, and observation of the experiments became successively more objective and comprehensive, concerns about the effect of audiovisual coverage on trial participants persisted and even increased. There was credible testimony that some witnesses had been deterred from testifying by the prospect of being filmed, while others had been negatively affected at trial. There was testimony that audiovisual coverage had meaningfully affected judges’ behavior at a core level by changing how they issued orders. There was evidence that jurors’ behavior could significantly be altered by cameras. There was the testimony of scholars who, after careful study of the issue, concluded that televised trials present fundamental challenges to fairness by allowing external social pressures to exert influence in the courtroom. And, there was resounding evidence that the public, after years of exposure to televised trials, remained skeptical of their value, were less inclined to testify in front of cameras, and had developed an aversion to having their own trials covered.

The record reveals a Legislature which repeatedly modified Judiciary Law § 218, attempting to permit audiovisual coverage while preserving fairness. Sensible limitations were imposed on coverage, and by all appearances, the media acted responsibly in observing them. Nonetheless, concerns remained that witnesses were unfairly affected. As an attempted compromise, witnesses were given the right to have their image visually obscured (causing Court TV to suspend coverage in cases where witnesses exercised that right). In the end, camera proponents could not marshal enough evidence to satisfy opponents that the benefits of permanently revoking Civil Rights Law § 52 outweighed the risks. The stalemate was evident in 1997, when Assembly Democrats fashioned a bill giving any witness, including nonparties and criminal defendants, the right to shut off the camera during his testimony. The nonstarter legislation revealed the depth and persistence of conviction in the Legislature that audiovisual coverage of trials impacts fairness.

A time, place, and manner restriction on courtroom access is constitutional if it is “reasonable, if it promotes `significant governmental interests,’ and if the restriction does not `unwarrantedly abridge the opportunities for the communication of thought.'” Plaintiff argues that even if fair trial concerns may be well founded in some cases, a per se ban on audiovisual coverage cannot be reasonable because experience has shown that trials can be fairly conducted while permitting audiovisual coverage. Plaintiff misapplies the rational basis standard. The record contains evidence upon which the New York Legislature could reasonably conclude that its legitimate interest in fair trials outweighs the benefits of permitting camera coverage, even on a discretionary basis. As the Federal Judiciary Committee concluded, when weighing the First Amendment benefits of audiovisual coverage against fair trial concerns, any negative impact may be sufficient to tip the scales against coverage. Moreover, Civil Rights Law § 52 does not “unwarrantedly abridge the opportunities for the communication of thought” because reporters are “free to attend the entire trial, and report whatever they observe.” Thus, section 52 passes muster under the First Amendment.

It is well settled that “a legislative enactment carries with it an exceedingly strong presumption of constitutionality” rebuttable only by proof beyond a reasonable doubt of the statute’s unconstitutionality. In reviewing statutes, courts must presume that “the Legislature has investigated and found facts necessary to support the legislation.” (Where, as here, a party seeks facial nullification of a statute (as opposed to nullification as applied to a given set of facts), the party is required to show that “`in any degree and in every conceivable application,’ the law suffers wholesale constitutional impairment.” These principles reflect the understanding that “s]atutes are quintessentially the product of the democratic lawmaking process.” Consequently, courts may not “substitute their judgment for that of the Legislature as to the wisdom and expediency of the legislation.”

Here, the presumption of constitutionality is particularly appropriate, given the serious attention the Legislature paid to Civil Rights Law § 52 during its 10-year experiment with audiovisual coverage. The record amassed in the experiment shows that the Legislature, as it is presumed to have done, thoroughly investigated the question of cameras in New York courts. Four reports were submitted, and a sizable record compiled. Throughout the process, Judiciary Law § 218 was revised to accommodate competing interests. Ultimately, no formulation of the law satisfied a sufficient number of legislators that fair trial concerns would adequately be protected, and section 52 remained in force. As discussed infra, the record developed in the 10-year experiment provides a rational basis for section 52 under the First Amendment.

Nevertheless, plaintiff argues that a “right of televised access” is implied by the expansive language of article I, § 8 and by New York’s tradition of heightened protection of speech and the press. Section 52, Court TV contends, runs afoul of this implied right and, therefore, is invalid. The court disagrees.

Article I, § 8 of the New York Constitution provides that “every citizen may freely speak, write and publish his or her sentiments on all subjects and no law shall be passed to restrain or abridge the liberty of speech or of the press.” Despite the bold language of article I, § 8, it is well settled that “the constitutional guarantee of freedom of speech is not an absolute right to be indiscriminately exercised under all circumstances and conditions.” Nevertheless, article I, § 8 has been held to provide broader speech protection than the First Amendment in some cases, especially those involving freedom of expression.

For all of the above reasons, plaintiff fails to make out a prima facie case supporting partial summary judgment. On the other hand, summary judgment is granted to defendants. Accordingly, it is ordered that plaintiff’s motion for partial summary judgment is denied; and it is further ordered that the summary judgment motions of defendants the State of New York, are granted; and it is further ordered that, upon a search of the record, summary judgment is granted to defendant Robert Morgenthau; and it is further adjudged and declared that New York Civil Rights Law § 52, on its face, is not unconstitutional under the First Amendment to the United States Constitution; and it is further adjudged and declared that New York Civil Rights Law § 52, on its face, is not unconstitutional under article I, § 8 of the New York Constitution.

Accordingly, the court held that, the court holds that Civil Rights Law § 52 does not violate the First Amendment to the United States Constitution or article I, § 8 of the New York Constitution.

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