A New Perspective on Cameras in the Courts

THE OPEN MIND
Host: Richard D. Heffner
Guest: Max Frankel
Title: Max Frankel: A New Perspective on Cameras in the Courts
VTR: 12/9/94

I’m Richard Heffner, your host on The Open Mind. And several times over the years I’ve talked here at this table with distinguished electronic and print journalists, even lawyers and jurists about cameras in the courts. And almost always I’ve ended up profoundly distressed by these learned professionals’ avid support for what I consider an abomination. Even my favorite newspaper has editorialized again and again in favor of cameras in the courts, in criminal as well as civil trials, even at arraignments, and never has replied to my questioning just where The New York Times finds its supposed evidence that cameras in the courts do clearly enhance public understanding of our justice system, are educational, and, as certainly, do no damage. But I guess wonders will never cease. For now, Pulitzer Prize-winning Times man Max Frankel, the longtime editor of The Times’ editorial page, and later executive director of the paper itself, has retired, writes a weekly column in The Times Sunday Magazine, and clearly has been O.J. Simpsoned into a new, and quite negative perspective on cameras in our courts.

Listen carefully to what Mr. Frankel now writes: “All my working life, my pencil, pen, typewriter, or laptop has shared my protection under the First Amendment: Congress shall make no law abridging the freedom of the press. Where I went, my tools went. As a matter of right and law. So I came to believe that the rights enjoyed by my writing implements logically belonged also to television cameras. They also serve reporters, and, sad to say, they bring news to more people than all newspapers combined. Although the Founding Fathers failed to anticipate Jennings, Brokaw, and Rather, the TV cameras, like my pencils, seem to qualify as evolutionary descendants of Ben Franklin’s quill. But,” writes Mr. Frankel, “no longer. After watching the Simpson hearings with morbid fascination, I have a new sense of relationships. My pencil is to a television camera as Judge Ito’s courtroom is to Titus’s coliseum. I don’t say ban cameras from all trials,” wrote my friend, “nor do I blame the camera inside the Simpson courtroom for all the scandalous coverage, tawdry gossip, and misinformation swirling about this case. But I am certain now that the camera is not just another incarnation of the press entitled to the unabridged freedom thereof. It’s a different beast that should enter a court by a different door under different rules.”

And, boy, that is a very, very different point of view. So much so that I must now ask my guest just how his former colleagues are taking it. What are they buzzing about at The Times, Max, in these terms?

FRANKEL: They disagree with me profoundly. They have always made common cause with the television camera for reasons that I no longer fully understand. I think the reason is that we fought so hard to get our still cameras near the court, into the court, we so resented having to use pencil artists to cover a trial uniquely of all human events. And then one time somebody we found was moving the figures around and lying with the pencil. So that we were always busy going in and out of courtrooms saying, “Let the cameras in.” And we, I think, rather mindlessly included the television cameras in that. And I think most of my colleagues have never had the luxury that I have now of just stopping in their tracks and thinking hard about it, nor have they had the horrible experience of the O.J. trial, so …

HEFFNER: So I wasn’t wrong in saying you are O.J. Simpsoned into …

FRANKEL: Absolutely. Absolutely. And, mind you, when Court TV started, my wife made fun of me because I was up half the night watching it. I’m a court junkie, like the rest of us. I know that trial narratives are the most popular in all literature. All the great artists have tried their hand at it. And I think the clash that goes on in the courtroom is one of the most exciting experiences anyone can have, and therefore it is magnificent entertainment. And I daresay it’s also, it can be instructive, in the C-Span sense, if you have the patience to sit for hours and watch lawyers unfold a case or attack a case. It can be most uplifting. And so I’m a Court TV addict. And I will therefore not come out and say flatly that they should never be there. But I do think the defendant has a right not to be dragged before 250 million people, I daresay a billion people, probably, because this trial is probably drawing worldwide attention. And I think prosecutors have a right not to inspire so much heat around the case that a fair trial becomes impossible and that normal human instincts become totally distorted.

HEFFNER: Of course, the answer is going to be given that prosecutors will still create just as much heat around a trial by what they do on the courtroom steps.

FRANKEL: Of course they will. But the fact that every TV news show can show clips from the trial and then justify a magnification of the most tawdry and sordid interests in it, and then it reverberates our society. Newsmagazine shows need to interview this relative and that relative and Judge Ito’s wife and the policeman at the door, and we haven’t seen the end of this. I mean, butlers and drivers will be dragged into it. Neighbors of O.J. have been made public celebrities. The lawyers on all sides, for all I know, Judge Ito is running for the California Supreme Court, and Robert Shapiro is running for a starring role in the movie that will come of all this, and Miss Clark is going to be the next attorney general of California. They’ve all got fish to fry, and they’re all frying on the backs of innocent people until proven guilty.

HEFFNER: The court of public opinion, that aspect of it, does that bother you too?

FRANKEL: Well, the court of public opinion, meaning 250 million people …

HEFFNER: Yeah.

FRANKEL: … have a right to decide moment to moment whether this man is guilty or not?

HEFFNER: That’s what they’re doing, of course.

FRANKEL: That’s what they’re doing. That’s what I found myself doing. I wasn’t just watching; I was using the camera to look into the charged man’s eyes. I was looking into Shapiro’s demeanor. I was looking into the judge’s handling of the case and deciding much too fast, long before there was any, still hadn’t had any evidence on the table, long before there was any cross-examination that made any sense, long before the DNA business had been settled, I was deciding guilt or innocence. And so was most of the country. And then we were being polled. And as I said jocularly at the end of the piece from which you were so kind to quote, before you know it, we could all not just vote by phoning in whether we thought he was guilty or not, but the logic of all this is that presumably that in some other trial, if a fellow is convicted, we could all sit there and decide whether he should be killed. And the next thing you know, we could have the thrill of pushing the button that electrocutes him.

HEFFNER: True. You’re becoming such an expert on-line that we can all sit there.

FRANKEL: (Laughter) That’s right.

HEFFNER: And, indeed, there was that kind of polling that you’re …

FRANKEL: There was that kind of polling, and there was restagings of the trials. And, of course, even the lawyers in this case, actually, literally recreated the case in mock trials to learn a few tips. It’s horrible. And it all starts with the camera, and obviously, the celebrity of this case. I don’t think we should generalize. This does not mean that every trial would have the same consequences, nor that a more modest, a more moderate televising of trials doesn’t have much to teach. I think that the nature and quality of justice in this society is an important thing. Everyone who serves on a jury comes back, usually, uplifted by the experience, and with a renewed faith in what goes on, what is otherwise behind the mysterious doors of the criminal justice system.

So I think exposing the public in some ways. I’d love to see the basic cases before the Supreme Court somehow provided on television. I don’t know whether, with those justices, or with the lawyers recreating the debate. I think those are great philosophical issues that are being debated, and the country could benefit. So …

HEFFNER: The irony, of course, is that we can’t go into the appeals court, where no one is going to be damaged the way individuals can be damaged with cameras in the trial courts.

FRANKEL: That is right. And that is, I think, the false elitism of a lot of our judges that’s at work there.

HEFFNER: Yes, but … Well, somebody was saying that the Supreme Court justices are still so opposed to it because they really don’t want to be recognized, they don’t want that public persona that goes with being on television. But be that as it may, we had the right in New York State for years and years and years to show the trials in the court of appeals, and no broadcaster did that. And it always seemed to me to be so ironic, demanding that we be in trials, in civil trials, in criminal trials in particular in the lower courts, but never having availed themselves of the ability to show justice taking place at the higher level.

FRANKEL: I think that’s right, because a sad fact intrudes. Even Steve Brill, with Court TV, who, I think, had a good idea and many good intentions. But the only thing that put that cable channel on the map, the only thing that allowed him to dream of making it commercially successful in the end was the Kennedy case, the Menendez case, the most sensational, the most tawdry, the most sex-driven cases. And those are the ones that people will watch for more than a few minutes. And those are the only ones that the major networks can afford to devote any time to. The ratings game will defeat any slow, deliberate consideration of any appeals case.

HEFFNER: It struck me as so peculiar always that the judges have never understood that once the camera pokes its nose under the judicial tent, they will not have the kind of control over the courtroom that they have traditionally maintained. So eager to be on camera that I think they don’t understand the way in which television changes things, as it changed our politics, as it changed our sports, as it changed our language.

FRANKEL: Of course, of course.

HEFFNER: They think they’ll be immune from that. But you mention Steve Brill’s Court TV. There is the assumption that trials in their entirety are on the air. And that happens only rarely. Only rarely. And it seems to me – I don’t know how you feel about this – that Court TV, in a sense, is like MTV. It’s court television, music television, both for a profit.

FRANKEL: It’s heading that way. And they’re finding that there is no natural audience that’s willing to do what I was willing to do in the beginning: sit up half the night and watch a particular case. But they’re also, for law students, for the legally-minded, for insomniacs, they’re not only showing significant snippets of trials, but they do have interesting commentary from rather learned lawyers on the cases that are passing before them. So it is an instructive medium. And if it could be viable, the way C-Span has become viable, and it could afford to be boring, which is C-Span’s glory – I don’t know whether you’ve watched much of it now …

HEFFNER: I’m too bored. (Laughter)

FRANKEL: … I’ve switched my allegiance somewhat at the moment from Court TV to C-Span, because I’m seeing the new class of Republican members of the house holding forth endlessly as to what they think government ought to do and how it works. And it’s a wonderfully refreshing experience to examine them close up in ways that our political campaigns never allowed them to be revealed. And here is this dumb camera just sitting there at these forums and Democratic policy meetings and Republican caucuses and this and that, and Mr. Gingrich can’t get enough of this particular tube. And you can really stare inside his soul in ways that unfortunately should not be happening in a courtroom.

HEFFNER: But you know, doesn’t that remind you a little bit of the days when your paper was the paper of record, almost the C-Span of print?

FRANKEL: That’s right.

HEFFNER: And what happened?

FRANKEL: The kind of information that The Times used to feel obligated, as a matter of record, to provide so that there would be a reference available, so that you could look up who in 1963 was the American Ambassador to Bulgaria, and when he was appointed, or she – no, it wasn’t a she in those days – that’s no, we’re not needed for that function anymore. There are plenty of both electronic and printed records that exist. We’re even coming into a period where the full text of presidential news conferences and major speeches. It’s doubtful that we will long continue to be the medium that needs to carry that. We could carry the crucial excerpts that enable you, the morning after, to understand what it is the presidential said about Bosnia, or exactly how he phrased it, or the question at the news conference that trapped him in a contradiction of some kind. We can quote that textually, but the person who needs a full text, just like the person that needs a videotape of this program, there are plenty of ways now in this society to get it, and pretty soon computers will make it possible to distribute.

HEFFNER: Max, does that mean that the computer, in a sense, is going to impact upon the daily press in a way that will make it less and less, not the newspaper of record, necessarily, but more and more an interpretive, editorial entity?

FRANKEL: Oh, oh, profoundly …

HEFFNER: And if you want the facts, you go on line.

FRANKEL: Profoundly. No, no, not the facts; but if you want …

HEFFNER: The text.

FRANKEL: … the text, the unexpurgated version of the most boring rendering of what happened. But no, you don’t have … Yes, the computer will have a profound impact in ways that lots of people are trying to figure out, both for commercial and philosophical reasons. But you don’t have to wait for the computer; television’s done that. Television has become a headline service. And for even the most educated people. All but ostriches with their heads in the sand who never turn on the TV set know the news, the top of the news, before the newspaper arrives. Therefore, the newspaper has a totally different function from what it used to have when you and I were young and we had young boys standing in the streets shouting, “Extra” and pasting up big headlines in two-inch type. It doesn’t mean that there is less need for newspapers, or less need for the newspapers to be honest and unopinionated and fair in their approach to the issues. But they have to be more analytical, they have to explain those headlines. And in many ways, television has given us a new audience, because it has ignited curiosity about things that we have to them come along, if we’re serious journalists, and explain in greater detail than ever before.

HEFFNER: Among whom has it ignited curiosity?

FRANKEL: The public at large. Depending on the nature of the event. Everything from a war in Iraq – what on earth are those airplanes, and how do they work, and what is this war all about, and what about the price of oil, and where is Kuwait anyway? – people are watching, and at least a reasonable percentage of the people who are watching are not going to be satisfied with the mere flashing-by of images and explosions on camera; they’re going to want to know what does it mean, and am I at risk somehow in my life, and what is this all going to be for me, or is it just an entertainment, and now they’ve taken my son out of school in the reserves and they’re sending him over there, I’d better get interested. Our circulation went up as that show was going on. So, far from satisfying and ending the search for information, the television can arouse. Similarly, in the days after an election … We’re helpless now, in a newspaper, on election night. We’re watching television to see who’s ahead and who’s winning. And the next morning, we are barely catching up. We have to go to press at midnight with something that you’re going to read at six or seven or eight a.m. And by that time the television has passed us by. But the day after, when you want to know what on earth happened here, how come the South is going Republican, and Ollie North, despite all those millions, got defeated. You want to know, if you’re a thinking person at all. And more and more people are thinking people. We forget that the population is, as it grows, the proportion of people reading newspapers may be less, but the gross numbers is growing, and …

HEFFNER: But, wait a minute, wait a minute, Max. Because you’re saying two things, it seems to me. You’re saying the proportion or the percentage is getting smaller.

FRANKEL: Yes.

HEFFNER: But the gross numbers are getting larger, by definition. Which is the more significant figure?

FRANKEL: I don’t know. When I was young, The New York Times was confined largely to Manhattan and a few adjacent counties. The Wall Street Journal was nothing but a specialty sheet for a few people in Wall Street. USA Today did not exist.

HEFFNER: Because television didn’t.

FRANKEL: But today, in the television era, USA Today, in the realm of sports analysis and commentary, and the realms of business news, it’s a very poor paper as far as world affairs go, and it’s only very modest as far as national affairs, but in certain special areas it is a good newspaper. And that’s the least of it. The Wall Street Journal is a superb newspaper in its coverage of social issues, and not just business issues. And it has two million readers across the country. The New York Times has 1,200,000 readers across the country. A third of The New York Times’ readers now live outside the New York Metropolitan region. And only technology and distribution systems prevent us from … There’s much more demand than we can satisfy. So it’s a rapidly evolving business, the news business. And who knows where it will wind up. But the thought that the country is going mindless and that the television is ruining our intellects is too simple.

HEFFNER: Well, it’s a good thing I asked you if you’d do two programs with me, because I want to pursue that in our second program, if I may. But I want to get back, since we started talking about cameras in the courts, ask you a question, because we only have a couple of minutes left to this program. Harold Rothwax, Judge Rothwax, presided over the Steinberg trial, which was so prominent in focusing attention on cameras in the courts, although that trial was on the air just a tiny, tiny, tiny percentage of it …

FRANKEL: That’s right.

HEFFNER: … but that was passed over in The New York Times reporting and everyone else’s commentary. Judge Rothwax asks a question – maybe you can help me answer it – he says, “Try to give me,” because he knows my opposition to cameras in the court, “a principled basis on which to distinguish between the scribblers and the camera.”

FRANKEL: All right. I think, I thought I was doing it in that nice line that you quoted about Titus’s coliseum.

HEFFNER: Yeah, now …

FRANKEL: The principle is that the American people have a right to open trials. Open in the sense that someone must watch who is outside the criminal justice system, just to make sure that this isn’t turning into some kind of a star chamber, and that the conduct of all the people in the court can be appraised beyond the dry, written record. That does not mean a right to trial in Yankee Stadium. For one, two, five, ten reporters who have the heft and the zitzfleisch, as my mother would call it, to sit through a dull and long trial and keep an eye on things is one thing; a howling mob chewing peanuts and slugging beer by the millions and watching the trial, and forever changing the lives of all the participants in that trial, guilty or not, professional or not, are two different things.

HEFFNER: Isn’t the emphasis, mustn’t the emphasis be on changing the lives of the observed forever?

FRANKEL: That’s one thing. The other is the perception of justice. Television of that kind of intensity creates a sub-industry all around the trial. So that all television stations, even if they’re not interested normally in trials, suddenly have to cover this story, and the spinoffs and the newsmagazines and the movies and the docudramas.

HEFFNER: But that’s subscribing to the notion – and maybe you do now – that what is done with, what comes as a result of, reporting, reporting by the scribblers, reporting by the cameramen, is what counts.

FRANKEL: No. Camera is not in reporting. That’s the philosophical distinction. I have a right, under the First Amendment, to free speech. So does the camera. Dan Rather has the right to go on and comment on the O.J. trial in any way he wants to. That is different from the right of this camera to turn that trial into a Yankee-Stadium kind of performance.

HEFFNER: But that’s what the, that’s what happens afterwards. It’s not what the camera itself does. And that’s where Harold sticks me when he says, “Give me a principled …” – Principled.

FRANKEL: No, no. That is what the … The camera turns the number of seats in the courtroom from 50 … Look at the way we have built our courtrooms: 50, 75 people. We haven’t even built them as auditoria. There’s not even room for 2,000 in there. And suddenly the camera says, “I am the proxy for 200 million to watch this trial?” That is nowhere written philosophically as the right of anyone involved in the court system.

HEFFNER: Of course, the whole matter of “Where is it written?” is an important one. I have a suspicion that I couldn’t justifiably say what you said just now, as much as I agree with your new position on cameras in the court, to the satisfaction of a judge such as Harold Rothwax.

FRANKEL: Well, mind you, I’m not saying keep them out. I’m saying that judge, prosecutor, and defendant all ought to have a voice in whether they get in.

HEFFNER: I agree.

Let’s cut now, come back to a program number two in just a moment. Thank you for joining me today, Max Frankel.

FRANKEL: It’s a pleasure.

HEFFNER: And thanks too, to you in the audience. I hope you join us again next time. And if you’d like to share your thoughts about our program today, please write: The Open Mind, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts, send $2 in check or money order.

Meanwhile, as an old friend used to say, “Good night, and good luck.”