Another Look at Cameras in the Court

THE OPEN MIND
Host: Richard D. Heffner
Guest: Steven Brill
Title: Another Look at Cameras in the Courts
VTR: 12/3/97

I’m Richard Heffner, your host on The Open Mind. And I’m going to begin this program just as I had originally planned to, by saying my guest and I just recorded a program on Content, his brand new magazine venture that follows on the heels of his American Lawyer publications, whose truly well-achieved goal was “To shine a spotlight on one of the nation’s most important, but least covered industries: the legal profession.”

Well, now Steve Brill writes Content will train its sights, quote, “On an even more significant industry, and, remarkably, one that’s even less covered by the media. Because the media is the industry itself.”

Well, just as last time we talked about Content and the media, today I’d like to revisit still another vastly successful Steve Brill venture: his longtime romance with cameras in the courts, which I once characterized in The New York Law Review as “A bad idea whose time has come,” but today would hopefully label “A bad idea whose time has come, and gone.” He won’t agree, I know. But having put up front my own negative vibes concerning making the courtroom, as well as just about everything else in American life, into a commercial entertainment, let me talk with Mr. Brill about his undoubted success in that enterprise.

Though first what I want to do is sort of continue our previous program about Content. There are a lot of things, Steve, that I want to talk about Content before you and I do battle about cameras in the courts, because I know you think I’m so wrong…

BRILL: If I’m smart, I’ll stick with Content.

HEFFNER: [Laughter] Notes.

BRILL: And run the clock out.

HEFFNER: You have the capacity to do that, Steve. But so does the concept that you’ve incorporated in this new magazine, Content. We were talking last time about the O.J. Simpson trial, and you were talking about the Court TV people standing there on line with everyone else to get credentialed for covering the trial. You said something then (maybe I misunderstood you) about wanting Content, your new magazine, to take the place of any effort ever to credential people by government’s picking and choosing those who do right and who do wrong.

BRILL: I was using that image to make the point that today there’s all kinds of stuff out there that claims to be journalism, or semi-journalism. Whether it’s an Oliver Stone movie or infotainment or a tabloid TV show or a tabloid newspaper or a novelization or a docudrama of something. There’s all this stuff out there, and people don’t know what’s real and what’s not real, what’s journalism that has standards, and what’s quite the opposite. And the point I made about everybody standing in line, you know, The National Enquirer on line with The Washington Post, and, you know, The Jerry Springer Show on line with the CBS Evening News to get credentials for something like the O.J. Simpson case was simply that the government should give all those people credentials. The government can’t be in the business of — although sometimes they try, and they shouldn’t try — of saying, you know, “That’s a good reporter; that’s a bad reporter. You deserve a seat in the courtroom; you don’t.” The government can’t do that and shouldn’t do that. I’m the last person in the world that wants the government ever to be in the business of doing that.

HEFFNER: But Steve Brill should?

BRILL: Well, Steve Brill and 20 other competitors to Steve Brill that want to. The way to explain and to enhance the standards of journalism and to lift those standards up is through journalism. It’s not through the government. It’s not through some quasi-governmental body, as some of the countries in the Western world have or try to have. It’s through journalism. And if we can say to people, through the series of stories we’re going to do every month, and maybe through some kind of scoring or reading system that we may have the audacity to try, that, “On a professionalism scale this entity ranks here, and this entity ranks here,” there’ll be dozens of people who say, “How dare we do that? Where do we get the right to do that? Where do we get the nerve to do that?” But we’ll be trying to do something that, in this country, only private people should be doing. Because we sure don’t want the government to do that.

HEFFNER: Well, now, how did you feel about the National News Council? Private people. Some foundation dollars. Private people though.

BRILL: I think that was a long time ago that they tried that.

HEFFNER: Right.

BRILL: I think that was a terrific effort. There are similar efforts… There’s one, I think, in Minnesota that goes on now. And I think those are very good ideas. I think there should be local versions of Content magazine, there should be all kinds of efforts to hold the media accountable. But they have to be, in essence, private efforts. We know, if we can agree on one thing, I’m sure we can agree that libel law doesn’t work. It doesn’t work for the journalists who are doing a good job, because the problem with libel law is that the cost of defending yourself from a lawsuit that’s brought by someone who’s just angry that you wrote about him, even though what you wrote is right, the cost of defending against that suit is prohibitive and sometimes ruins little publications. So it doesn’t work for journalists. And it never works for plaintiffs because they never really win. They win a jury verdict, and then it gets overturned on appeal. So it doesn’t work for anybody, except maybe the lawyers. And libel law’s a bad way to deal with this.

And the truth is, most of the famous libel cases that we know about are actually the result of bad journalism. And most of the famous libel cases we know about, the journalist won.

HEFFNER: Is this going to be a for-profit effort, Content?

BRILL: Oh, yeah. Yeah. I believe strongly in the idea that the best kind of journalism is journalism that is not out there trying to be nonprofit and taking money from charities and asking for money from charities, but that exists on a business basis, but that exists as a professional publication with professional ideals, which is that we will do, our first goal is to fulfill the mission of this magazine, and we want to figure out how to do that in a way that makes it profitable, as opposed to vice versa, which is our first goal is to make money and we’ll just put anything in the magazine we have to to do it. And I think, both at Court TV and at The American Lawyer, I established that, when it comes to those priorities, I do what I say I’m going to do.

HEFFNER: Would you say — larger question, Steve — would you say that the criticism is accurate that has been frequently leveled that in American journalism today, print and electronic, though professionalism is sought, profit at times gets in the way of being as professional as…

BRILL: More than at times. Very often. And one of the dilemmas is that, once you have a publicly held company that has to be responsive to shareholders, and responsive to shareholders on a quarterly basis, or even on a daily basis in terms of producing results, it’s very hard to say what I just said, which is, “Yes, I want it to be a good business, but I’m not going to make it a good business at any cost.”

If you read any report, any annual report of any publicly held corporation on any stock exchange, the first sentence from the CEO always is, “Our goal is to maximize profits for the shareholder.” And you know what? That’s how it should be. Because when you or I, or our pension funds, invest in stocks on Wall Street, we don’t want to hear about the CEO’s goals for society or his goals for his personal fulfillment; we’re investing in that stock or investing in a mutual fund that invests in that stock because we want the stock to go up. And if you invest in a mutual fund and you look in the paper one day and see that it’s not doing as well as some other mutual fund, you fire the mutual fund. You don’t want to hear that, “Well, you don’t understand. I invested in this really good publication that’s doing all these good things.”

So once you separate the ownership from the proprietorship, if you will, there’s a danger that what a lot of what I’m talking about gets sacrificed. Except where you have, ironically, the kind of public ownership that people who are the good government gurus of corporate ownership hate, which is the public ownership where you have certain classes of stock. The best newspapers in this country are publicly held corporations that have special classes of stock for the family owners. And that protects them from exactly the pressures I’m talking about.

So there’s a dilemma here. Do you want The New York Times and The Washington Post Company to be anti-democratic, by Wall Street standards, but preserve their fabulous values as journalism enterprises? Or do you want them to be fully responsive corporate leaders, responsive to shareholders? Can’t be both.

HEFFNER: Which way did it go with Court TV?

BRILL: What do you mean?

HEFFNER: You started Court TV.

BRILL: Uh huh.

HEFFNER: Did you own it?

BRILL: I owned a piece of it.

HEFFNER: Well, I ask that question again. There was involvement with a publicly held company, right?

BRILL: That’s right. But my partnership and my contract to my partnership gave me complete and total editorial control. And I had it, and the whole time I was there I kept it. And there was never an instance… If you want to fault any editorial decision of Court TV while I was there, you’re faulting me; you’re not faulting Time-Warner or NBC or any of the other partners.

HEFFNER: I have no problem in faulting you, Steve Brill. You know that.

BRILL: But that would be my fault, if we…

HEFFNER: And today?

BRILL: Today the partners have been left to their own good devices to run Court TV.

HEFFNER: “Good devices.” You have no problems with what’s happening to Court TV.

BRILL: I don’t watch it very much.

HEFFNER: Steve, come on.

BRILL: I don’t. I’m doing other things. I have a tendency, when I get very involved in something, and then when I leave it I have a tendency, because I know if I do a little of it I’ll still stay emotionally involved, to sort of try to look away from it for awhile. By the same vein, lately the Teamster’s Union has been in the news a lot. As you know, in 1978 I wrote a book about the Teamster’s Union. And there was a time in my life, 1978, 1977, 1979, when I knew everything about the Teamster’s Union, and I was the world’s leading expert on the Teamster’s Union. And now I don’t know anything about the Teamster’s Union except what I read in the newspaper. And reporters and television people call me and ask me to comment about what’s going on, and I say, “You know, I really haven’t been following it.” And they say, “How come?”

HEFFNER: One thing is true, and I don’t say that…

BRILL: But I have watched some… I mean, I don’t want to be glib. I have watched some Court TV. There are some things there that I wouldn’t do, and there are some things there that I would do. But I think that’s natural. Everybody would do things differently.

HEFFNER: Are there things that are done differently now because there is public ownership, so to speak? You’re talking about a corporation…

BRILL: Well, there always was public ownership. The question was, there was a difference in control.

HEFFNER: Okay.

BRILL: I guess so. But I really don’t want to get into the details of that because, first of all, I don’t know the details because I don’t watch enough of it, and I just, given what I’m now trying to do, I don’t think it makes sense for me to, you know, carry on a, you know, a one-way battle with Time-Warner, NBC, or anything else over that particular partnership.

HEFFNER: Some of my best friends are at Time-Warner, so I wouldn’t even ask you to do it. But, will Time-Warner be, and I look at the dummy, the mockup of Content, “We’re Never Sorry” is the cover story, again saying that the networks news departments, and I’m sure you’re talking about the big newspapers too…

BRILL: Less so, but to a certain degree.

HEFFNER: Okay. I’ve been impressed in the last few days, depressed in the last few weeks, I should say, by the kinds of corrections that I’ve been looking at in The New York Times. I’m puzzled by the nature of the changes; they’re so tiny.

Now, you’re not looking for the networks, let’s say, to indulge in revealing their tiny errors, are you?

BRILL: I don’t know. You’d have to give me a specific of a tiny error…

HEFFNER: Something that’s misspelled.

BRILL: No, because you’re usually not spelling on a network anyway; you’re talking. So you don’t have the opportunity…

HEFFNER: Well, you have the running…

BRILL: No.

HEFFNER: Mispronounced.

BRILL: No.

HEFFNER: Okay, what sort of things are you going to be looking for in Content that you’re going to talk about here? Here, what you’ve got in your dummy issue, “Just trying to get the networks to make a correction is so difficult…”

BRILL: I think much more substantive stuff. I mean, there are times when people, either inadvertently or deliberately, are unfair, and they make mistakes. I mean, I can tell you from experience at Court TV, we broadcast a plea for people to tell us when we’ve made mistakes. And a lot of people took us up on it. And I can remember one instance where we had mischaracterized the testimony of someone as having said that some person was at a crime that this other person was being charged for, was there, and had done nothing about it, or something like that. And the person who, in sort of recapping the testimony we said that, and we got a call, and they said, “Well, there’s no proof of that, and, you know, when you recapped it you should have said that person alleged that that other person had been there.” Is that a big mistake, or a small mistake? I thought it was a big mistake. I certainly thought it was as big a mistake as it was, it deserved the same time that our recap had deserved, so we made that correction.

HEFFNER: Now…

BRILL: It’s not a big deal. I think that the biggest problem the press has, probably anybody has, is admitting mistakes. And when you don’t, they just sort of fester there. And it’s a truly healthy thing for the press to try as hard as they can to be really candid and say, “God, did we screw this one up. You know, you’re not going to believe how we made this mistake.”

HEFFNER: Now…

BRILL: That just shows they care, and they’re human.

HEFFNER: Big or small, error, misstatement, mistake, whatever you want to call it, when we used to argue about cameras in the courts, until you won hands-down… You made a considerable point. You made it frequently in Albany when you were trying to get the state legislature to pass those enabling acts, if I may call them that, to let you and others bring your cameras into the courtroom. You talk about gavel-to-gavel coverage. one of the questions that was raised… I raised it many times. I was made uneasy. So were a lot of better people than I am. About the thought that there might just be snippets or excerpts…

BRILL: You always made a big deal of the gavel-to-gavel thing.

HEFFNER: Yeah.

BRILL: And I, while I — and I’ll come back to my answer to that — while I always joined you in that argument, I never thought it was…

HEFFNER: You used to shut me up by saying you were going to do it.

BRILL: Yeah, but I also would say that, while we were going to do it, it was irrelevant. I mean, unless you were going to say that The New York Times should print a transcript of every trial proceeding in order to have the privilege of doing its version of sound bites, which is, reporter goes there, takes out his notebook, maybe gets the sound bite, eight-word quote right, in his story about the trial, unless you were going to say that along side that The Times should publish the transcript of the trial, otherwise don’t let that reporter in, I always thought that was just absurd. But the fact is it was easy to answer your point because what Court TV did was a primary, the primary thrust of its programming was to do gavel-to-gavel trials. And that’s what we did.

HEFFNER: Now, do you want to tell me what you mean by gavel-to-gavel trials? Would I see them…

BRILL: I mean the trial starting and the trial ending.

HEFFNER: You’re covering that?

BRILL: And if you have, you know, if you lack enough of a life so that you’re going to sit there for two weeks from nine to five, you can watch the whole trial.

HEFFNER: Now, you’re talking about certain, specific, major trials, right?

BRILL: No, I’m talking about whenever Court TV does a live trial (at least when I was there), that is what we would do. We would cover the trial live.

HEFFNER: Now, you’re talking about a live trial.

BRILL: Yeah.

HEFFNER: But there is a lot on Court TV…

BRILL: I would say there are… Well, I can’t speak to Court TV today because I haven’t been there in a year.

HEFFNER: Right. You don’t watch. Et cetera.

BRILL: Well, I haven’t been responsible for it.

HEFFNER: Okay.

BRILL: I’m happy to take responsibility for anything I’m responsible for. And when I was there and responsible for it, I would say a third of the trials we did we would do on tape and we would boil them down, which is an absurd thing to say when you hear my next sentence. We would boil them down to where they were only eight hours long. So a trial that might have run, you know, 72 hours, you know, stem to stern, was eight hours on Court TV, or ten hours on Court TV.

HEFFNER: So it wasn’t gavel-to-gavel.

BRILL: Those trials were not gavel-to… But I always said that. I always said that.

HEFFNER: Steve, I’m sure our audience isn’t interested in my saying, “No, you didn’t,” your saying, “Yes, I did.” We differ on the subject of what was claimed.

BRILL: But let’s look at what we’re differing about. Again, that has nothing to do with the argument for cameras in the courts. Because I also always said — and I’m sure even you must remember this — that…

HEFFNER: At my age.

BRILL: At your age. [Laughter] That the right to have cameras in the courts has nothing to do with Court TV. That news shows should have them. I mean, I always thought the sound-bite argument, which was your argument, which was, “If you let cameras in, they’ll just take the five or six or eight seconds, the sexiest seconds of the trial, and that’s all they’ll do.” My argument to that always was that that is better — that’s not my taste, that’s not what I would do — but that is better than having some blow-dried anchorman standing on the courthouse steps giving his five- to eight-second, you know, rendition of what that was in the courtroom. And the fact is that I think I’ve proven to be right. I think that people know much more about the justice system today than they knew in 1991. What makes people in the legal community uncomfortable about that is, in fact, that they do know much more about the justice system today than they did know in 1991.

HEFFNER: You know, it’s funny, The New York Times, great supporter of cameras in the courts, would editorialize time and again. We know now, we have proof positive…

BRILL: Right.

HEFFNER: …that the citizenry is educated about the court system. And I used to write Max Frankel when he was the editor of The Times, very politely, and say, “Dear Max: Could you give me the citation? How do we know? What is the research that’s been done?” Never got an answer from him. Some years later, I was pleased to have Max sitting where you’re sitting now…

BRILL: Yeah, he wrote one of the all-time dumb columns about the subject of cameras in the… It was just…

HEFFNER: You say…

BRILL: It was an embarrassment…

HEFFNER: …”dumb” because now he was no longer editor of The Times, and he wrote what he thought, that it was an abomination.

BRILL: No, he had never been responsible for those editorials. He was the executive editor, as I recall; not then the editor of the editorial page, which was doing the editorials.

But the fact is that his complaint, like your complaint, really is that people saw too much. I mean, you started by talking about cameras as entertainment. And you’re a lot smarter than I am, because you know the difference between, you know, entertainment, which I take it is unworthy, and something else which is worthy. It may shock you to know that there are people who are entertained by this television show.

HEFFNER: It would shock me.

BRILL: And maybe that’s a bad thing.

HEFFNER: Pleased is something else.

BRILL: [Laughter] You know, maybe that’s a bad thing. I don’t think that because people are intrigued by something when they watch it that’s a bad thing. What you’re really bothered by is what I’m bothered by — and this is what we agree on — what you’re bothered by is the motives of most of the people who use courtroom camera footage. And they just want to use it to titillate people and exploit a horrible situation, whether it’s a murder or a divorce, or who knows what, and they’re just making money off of this, what used to be a pristine or relatively private process of justice. That’s what really bothers you. That you don’t like the people who are doing it.

I don’t like the people, most of them, who are doing it either. But, you know, this country is in very bad shape when the government gets to decide that it’s going to inhibit speech or reporting of any kind because it doesn’t like the motives and the goals of the people who are doing it.

HEFFNER: Well, we have a few other sources of difference here. But I’d be happy to take the snippet (I used to be concerned about snippets), the snippet of Steve Brill saying just what he said about the motives of most of the people involved, and take it up to Albany when it becomes appropriate next time.

BRILL: Oh, I used to say that, I mean, there’s nothing I have just said to you that I didn’t say there. It may be why they don’t have cameras in the courts there anymore, because I was singularly unpersuasive.

HEFFNER: Tell me about that, Steve. What do you think’s going to happen with the whole matter of cameras in the courts?

BRILL: I think it’s, you know, across the country there’s been, from the standpoint of those who think that people should be able to see trials, there’ve been all kinds of advances. It’s typically two steps forward, one step back. The Simpson case obviously set it back a little bit. Then there have been things that have pushed it forward. You know, now that I’ve been away from Court TV for awhile, I’ve had a lot of time to think about this, and I no longer have any self-interest in it. I don’t get richer or poorer whether there’s a camera anywhere in any courtroom in the country.

And I think the real issue is, and I think the real divide is something that Richard Reeves, the journalist, who is a friend of mine, said to me awhile back. And he was very upset that television has ruined the presidential-election process. And he said to me when we were having drinks, he said, “You know, cameras have ruined the executive branch, and television has ruined the legislative branch, and now you’re going to ruin the judicial branch.” And what was really at the heart of what he was saying is that the camera being there sort of takes a representative democracy and makes it much more of a democracy. And that often can be a bad thing. And the state we’re in now with people’s knowledge of the justice system because of cameras is: they have a little bit of knowledge. In other words, they think they know the criminal justice system because they’ve seen the O.J. Simpson case, or they’ve seen this nanny case or something. And a little bit of knowledge is very often a very destructive thing. Because you speak with more passion, more authority, but you really don’t know much, because you only know a little bit.

I think, as the process continues, as people see more trials and get to understand the system better, I think that even you will come to appreciate that the democratic process is actually a good thing, that representative democracy in the form of letting a few select reporters go down and watch a trial is not a good thing.

HEFFNER: Steve…

BRILL: And the reason you’ll ultimately see it… Let me just complete the point.

HEFFNER: Sure.

BRILL: The reason you’ll ultimately see it is that what we’re really doing with cameras in the courts is going back to the very beginning of the country. If you think you’ve got a problem now with trials as entertainment, with the process looking rowdy and unseemly because of the horrible television shows you see, think back to the middle 1800′s when courtrooms were these huge amphitheaters with second-row balconies. And in small-town America, whenever there was an interesting trial, everyone in town trooped down to the courthouse and watched the trial. And they waved to their friends in the jury, and they waved to the defendant, and they waived to the judge, and everybody waved back. And if the prosecutor said something funny, everybody laughed in the balcony. People cheered and hooted.

HEFFNER: Steve…

BRILL: This was a show. And the founding fathers meant it to be that show.

HEFFNER: You’ve achieved…

BRILL: Now the people are watching in their living rooms.

HEFFNER: You’ve achieved your objective. You have the last word.

BRILL: I did it.

HEFFNER: I knew that you could filibuster that way.

Thanks, Steve Brill, for joining me again on The Open Mind.

BRILL: Glad to do it.

HEFFNER: And thanks too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send $4 in check or money order to: The Open Mind, P.O. Box 7977, FDR Station, New York, NY 10150.

Meanwhile, as another old friend used to say, “Good night, and good luck.” And Steve Brill is wrong.

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

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