The Public Trial and the Free Press
![handle is hein.journals/abaj46 and id is 842 raw text is: The Public Trial and the Free Press
Canon 35 of the Canons of Judicial Ethics forbids the broadcasting
or televising of courtroom proceedings and bans the use of cameras in
court. Members of the press and representatives of the radio and tele-
vision industries argue that these restrictions are a violation of freedom
of the press. Mr. Justice Douglas answers these critics of the Canon in
a lecture delivered under the auspices of the Law School of the Uni-
versity of Colorado on May 10, as the fourth annual address in The
John R. Coen Lecture Series.
by William 0. Douglas * Associate Justice of the Supreme Court of the United States
THERE IS PRESSURE these days on
courts all over the land to put trials
and hearings on radio and television.
In one state, the radio and T.V. indus-
try leveled its guns at a court which
had banned those broadcasts. At fifteen
minute intervals there were spot an-
nouncements over the air reminding
the people that the courts do not be-
long to the lawyers and urging the
listeners to get busy and write the
members of the court to change the
rule.
Others have maintained that the
right to know is basic in our liberties
and therefore the courtrooms, investi-
gative hearings and all like sessions
should be photographed and broadcast.
Trials and investigations, it is said,
have educational values to the general
public; and, it is contended, the gen-
eral public should be admitted so that
they better understand the operations
of their government. The Sixth Amend-
ment guarantees the accused a public
trial. And so, the argument goes,
everyone who can be reached by pic-
tures or by radio or television is in-
cluded in the public about which the
Constitution speaks.
The Supreme Court of Colorado in
1956 adopted a report of a referee rec-
ommending that trials may be televised
or broadcast in the discretion of the
trial judge, provided it would not in
his judgment detract from the dignity
thereof, distract the witness in giving
his testimony, degrade the court, or
otherwise materially interfere with the
achievement of a fair trial. In re
Hearings Concerning Canon 35, 296 P.
2d 465, 472.1
Photographing or broadcasting of
trials in my view imperils the fair trial
of which we boast. It is not dangerous
because it is new. It is dangerous be-
cause of the insidious influences which
it puts to work in the administration
of justice.
Newspapers, radio and television are
in the hands of men who have their
own political philosophy and their own
ideas as to what justice is and how it
should be administered. Some news-
papers dominate a community. When
ownership of the paper is combined
with ownership of the radio and tele-
vision station, the community may be-
come saturated with one point of view.
We have had publishers who were
tyrants and sought to impose their will
on the courts as well as on the people.
This pressure can be serious when
judges are elected as they are in about
three-quarters of our states. Even fed-
eral judges, who have life tenure, may
feel the lash of editorials demanding
that cases be decided this way or that.
In Great Britain and in countries like
Pakistan, India and Australia that fol-
low British legal procedures, an editor
will be hauled up before the court for
contempt if he attempts to indicate how
a case should be decided, if he drama-
tizes the trial, or if, pending appeal,
he editorializes the case. See Rex v.
Boiam, 93 Sol. J. 220; King v. Parke,
[1903] 2 K. B. 432; Rex. v. Davies,
[1945] K. B. 435. Sparse comment is
indeed all that is tolerated.
Freedom of Speech-
The Fourteenth Amendment
That kind of issue has consumed
many pages in American law reports.
We, too, have advocates of the view
that the editor who comments on pend-
ing litigation risks contempt. We have,
however, resolved the question differ-
ently from England. After all, we have
a written Constitution which includes,
in terms that are absolute, a guarantee
of freedom of speech and of press. The
First Amendment was once applicable
only to the Federal Government. But
the Fourteenth Amendment made it
applicable to the states as well. As the
Fourteenth Amendment provides that
no state shall deprive a person of
liberty without due process of law,
the Court eventually held that it incor-
porates the conception of the freedoms
embraced in the First Amendment.
If, as in India, our written Constitu-
tion permitted reasonable regulation
of the press,2 we might well say that
the judicial power includes the punish-
ment of editors who through their
papers tried to influence decisions. But
1. Cf. Oklahoma's rule, 30 OKLA. B. A. J.
1623-1624. And see Lyles v. State, 330 P. 2d 734.
2. Section 19 (2) of the Indian Constitution
permits reasonable restrictions on freedom
of expression. In several situations including
contempt of court.
840 American Bar Association Journal](ViewImageLocal?handle=hein.journals/abaj46&div=227&collection=&method=preview&ext=.png&size=3)
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