CHANDLER ET AL. v. FLORIDA
No. 79-1260
Supreme Court of the United States
Argued November 12, 1980—Decided January 26, 1981
449 U.S. 560
Joel Hirschhorn argued the cause and filed briefs for appellants.
Jim Smith, Attorney General of Florida, and Calvin L. Fox, Assistant Attorney General, argued the cause and filed a brief for appellee.*
*Whitney North Seymour filed a brief for the American College of Trial Lawyers as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by J. Roger Wollenberg, Timothy B. Dyk, Floyd Abrams, Patricia Pickrel, and Ralph E. Goldberg for CBS Inc.; by Parker D. Thomson and Sanford L. Bohrer for the Community Television Foundation of South Florida, Inc., et al.; by Talbot D‘Alemberte and Donald M. Middlebrooks for Florida News Inter-
Briefs of amici curiae were filed for the Attorney General of Alabama et al. by Bronson C. La Follette, Attorney General of Wisconsin, Kirbie Knutson, Assistant Attorney General, Charles A. Graddick, Attorney General of Alabama, Wilson L. Condon, Attorney General of Alaska, Robert K. Corbin, Attorney General of Arizona, Thomas J. Miller, Attorney General of Iowa, Steven L. Beshear, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, Stephen H. Sachs, Attorney General of Maryland, Mike Greely, Attorney General of Montana, Richard H. Bryan, Attorney General of Nevada, Jeff Bingaman, Attorney General of New Mexico, Robert Abrams, Attorney General of New York, William J. Brown, Attorney General of Ohio, Dennis J. Roberts II, Attorney General of Rhode Island, William M. Leech, Jr., Attorney General of Tennessee, M. Jerome Diamond, Attorney General of Vermont, and Chauncey H. Browning, Jr., Attorney General of West Virginia; for the Conference of Chief Justices by Griffin B. Bell, James D. Miller, and James D. Whisenand; and for the California State Public Defenders Association et al. by Herbert M. Barish and Wilbur F. Littlefield.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
The question presented on this appeal is whether, consistent with constitutional guarantees, a state may provide for radio, television, and still photographic coverage of a criminal trial for public broadcast, notwithstanding the objection of the accused.
I
A
Background. Over the past 50 years, some criminal cases characterized as “sensational” have been subjected to extensive coverage by news media, sometimes seriously interfering with the conduct of the proceedings and creating a setting wholly inappropriate for the administration of justice. Judges, lawyers, and others soon became concerned, and in 1937, after study, the American Bar Association House of Delegates
In February 1978, the American Bar Association Committee on Fair Trial-Free Press proposed revised standards. These
In 1978, based upon its own study of the matter, the Conference of State Chief Justices, by a vote of 44 to 1, approved a resolution to allow the highest court of each state to promulgate standards and guidelines regulating radio, television, and other photographic coverage of court proceedings.4
The Florida Program. In January 1975, while these developments were unfolding, the Post-Newsweek Stations of Florida petitioned the Supreme Court of Florida urging a change in Florida‘s Canon 3A (7). In April 1975, the court invited presentations in the nature of a rulemaking proceeding, and, in January 1976, announced an experimental program for televising one civil and one criminal trial under specific guidelines. Petition of Post-Newsweek Stations, Florida, Inc., 327 So. 2d 1. These initial guidelines required the consent of all parties. It developed, however, that in practice such consent could not be obtained. The Florida Supreme Court then supplemented its order and established a new 1-year pilot pro-
When the pilot program ended, the Florida Supreme Court received and reviewed briefs, reports, letters of comment, and studies. It conducted its own survey of attorneys, witnesses, jurors, and court personnel through the Office of the State Court Coordinator. A separate survey was taken of judges by the Florida Conference of Circuit Judges. The court also studied the experience of 6 States5 that had, by 1979, adopted rules relating to electronic coverage of trials, as well as that of the 10 other States that, like Florida, were experimenting with such coverage.6
Following its review of this material, the Florida Supreme Court concluded “that on balance there [was] more to be gained than lost by permitting electronic media coverage of judicial proceedings subject to standards for such coverage.” In re Petition of Post-Newsweek Stations, Florida, Inc., 370 So. 2d 764, 780 (1979). The Florida court was of the view that because of the significant effect of the courts on the day-to-day lives of the citizenry, it was essential that the people have confidence in the process. It felt that broadcast cover-
“Subject at all times to the authority of the presiding judge to (i) control the conduct of proceedings before the court, (ii) ensure decorum and prevent distractions, and (iii) ensure the fair administration of justice in the pending cause, electronic media and still photography coverage of public judicial proceedings in the appellate and trial courts of this state shall be allowed in accordance with standards of conduct and technology promulgated by the Supreme Court of Florida.” Ibid.
The implementing guidelines specify in detail the kind of electronic equipment to be used and the manner of its use. Id., at 778-779, 783-784. For example, no more than one television camera and only one camera technician are allowed. Existing recording systems used by court reporters are used by broadcasters for audio pickup. Where more than one broadcast news organization seeks to cover a trial, the media must pool coverage. No artificial lighting is allowed. The equipment is positioned in a fixed location, and it may not be moved during trial. Videotaping equipment must be remote from the courtroom. Film, videotape, and lenses may not be changed while the court is in session. No audio recording of conferences between lawyers, between parties and counsel, or at the bench is permitted. The judge has sole and plenary discretion to exclude coverage of certain witnesses, and the jury may not be filmed. The judge has discretionary power to forbid coverage whenever satisfied that coverage may have a deleterious effect on the paramount right of the defendant to a fair trial. The Florida Supreme Court has the right to revise these rules as experience dictates, or indeed to bar all broadcast coverage or photography in courtrooms.
In July 1977, appellants were charged with conspiracy to commit burglary, grand larceny; and possession of burglary tools. The counts covered breaking and entering a well-known Miami Beach restaurant.
The details of the alleged criminal conduct are not relevant to the issue before us, but several aspects of the case distinguish it from a routine burglary. At the time of their arrest, appellants were Miami Beach policemen. The State‘s principal witness was John Sion, an amateur radio operator who, by sheer chance, had overheard and recorded conversations between the appellants over their police walkie-talkie radios during the burglary. Not surprisingly, these novel factors attracted the attention of the media.
By pretrial motion, counsel for the appellants sought to have experimental Canon 3A (7) declared unconstitutional on its face and as applied. The trial court denied relief but certified the issue to the Florida Supreme Court. However, the Supreme Court declined to rule on the question, on the ground that it was not directly relevant to the criminal charges against the appellants. State v. Granger, 352 So. 2d 175 (1977).
After several additional fruitless attempts by the appellants to prevent electronic coverage of the trial, the jury was selected. At voir dire, the appellants’ counsel asked each prospective juror whether he or she would be able to be “fair and impartial” despite the presence of a television camera during some, or all, of the trial. Each juror selected responded that such coverage would not affect his or her consideration in any way. A television camera recorded the voir dire.
A defense motion to sequester the jury because of the television coverage was denied by the trial judge. However, the court instructed the jury not to watch or read anything about the case in the media and suggested that jurors “avoid the local news and watch only the national news on televi-
A television camera was in place for one entire afternoon, during which the State presented the testimony of Sion, its chief witness.7 No camera was present for the presentation of any part of the case for the defense. The camera returned to cover closing arguments. Only 2 minutes and 55 seconds of the trial below were broadcast—and those depicted only the prosecution‘s side of the case.
The jury returned a guilty verdict on all counts. Appellants moved for a new trial, claiming that because of the television coverage, they had been denied a fair and impartial trial. No evidence of specific prejudice was tendered.
The Florida District Court of Appeal affirmed the convictions. It declined to discuss the facial validity of Canon 3A (7); it reasoned that the Florida Supreme Court, having decided to permit television coverage of criminal trials on an experimental basis, had implicitly determined that such coverage did not violate the Federal or State Constitutions. Nonetheless, the District Court of Appeal did agree to certify the question of the facial constitutionality of Canon 3A (7) to the Florida Supreme Court. The District Court of Appeal found no evidence in the trial record to indicate that the presence of a television camera had hampered appellants in presenting their case or had deprived them of an impartial jury.
The Florida Supreme Court denied review, holding that the appeal, which was limited to a challenge to Canon 3A (7),
II
At the outset, it is important to note that in promulgating the revised Canon 3A (7), the Florida Supreme Court pointedly rejected any state or federal constitutional right of access on the part of photographers or the broadcast media to televise or electronically record and thereafter disseminate court proceedings. It carefully framed its holding as follows:
“While we have concluded that the due process clause does not prohibit electronic media coverage of judicial proceedings per se, by the same token we reject the argument of the [Post-Newsweek stations] that the first and sixth amendments to the United States Constitution mandate entry of the electronic media into judicial proceedings.” Id., at 774.
The Florida court relied on our holding in Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), where we said:
“In the first place, . . . there is no constitutional right to have [live witness] testimony recorded and broadcast. Second, while the guarantee of a public trial, in the words of Mr. Justice Black, is ‘a safeguard against any attempt to employ our courts as instruments of persecution,’ it confers no special benefit on the press. Nor does the
Sixth Amendment require that the trial—or any part of it—be broadcast live or on tape to the public. The requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed.” Id., at 610 (citations omitted).
The Florida Supreme Court predicated the revised Canon 3A (7) upon its supervisory authority over the Florida courts,
This Court has no supervisory jurisdiction over state courts, and, in reviewing a state-court judgment, we are confined to evaluating it in relation to the Federal Constitution.
III
Appellants rely chiefly on Estes v. Texas, 381 U.S. 532 (1965), and Chief Justice Warren‘s separate concurring opinion in that case. They argue that the televising of criminal trials is inherently a denial of due process, and they read Estes as announcing a per se constitutional rule to that effect.
Chief Justice Warren‘s concurring opinion, in which he was joined by Justices Douglas and Goldberg, indeed provides some support for the appellants’ position:
“While I join the Court‘s opinion and agree that the televising of criminal trials is inherently a denial of due process, I desire to express additional views on why this is so. In doing this, I wish to emphasize that our condemnation of televised criminal trials is not based on generalities or abstract fears. The record in this case presents a vivid illustration of the inherent prejudice of televised criminal trials and supports our conclusion that this is the appropriate time to make a definitive appraisal of television in the courtroom.” Id., at 552.
If appellants’ reading of Estes were correct, we would be obliged to apply that holding and reverse the judgment under review.
The six separate opinions in Estes must be examined carefully to evaluate the claim that it represents a per se constitutional rule forbidding all electronic coverage. Chief Justice Warren and Justices Douglas and Goldberg joined Justice Clark‘s opinion announcing the judgment, thereby creating
“I concur in the opinion of the Court, subject, however, to the reservations and only to the extent indicated in this opinion.” Id., at 587.
A careful analysis of Justice Harlan‘s opinion is therefore fundamental to an understanding of the ultimate holding of Estes.
Justice Harlan began by observing that the question of the constitutional permissibility of televised trials was one fraught with unusual difficulty:
“Permitting television in the courtroom undeniably has mischievous potentialities for intruding upon the detached atmosphere which should always surround the judicial process. Forbidding this innovation, however; would doubtless impinge upon one of the valued attributes of our federalism by preventing the states from pursuing a novel course of procedural experimentation. My conclusion is that there is no constitutional requirement that television be allowed in the courtroom, and, at least as to a notorious criminal trial such as this one, the considerations against allowing television in the courtroom so far outweigh the countervailing factors advanced in its support as to require a holding that what was done in this case infringed the fundamental right to a fair trial assured by the Due Process Clause of the
Fourteenth Amendment .” Ibid. (emphasis added).
He then proceeded to catalog what he perceived as the inherent dangers of televised trials.
“In the context of a trial of intense public interest, there is certainly a strong possibility that the timid or reluctant witness, for whom a court appearance even at its traditional best is a harrowing affair, will become more timid or reluctant when he finds that he will also be
appearing before a ‘hidden audience’ of unknown but large dimensions. There is certainly a strong possibility that the ‘cocky’ witness having a thirst for the limelight will become more ‘cocky’ under the influence of television. And who can say that the juror who is gratified by having been chosen for a front-line case, an ambitious prosecutor, a publicity-minded defense attorney, and even a conscientious judge will not stray, albeit unconsciously, from doing what ‘comes naturally’ into pluming themselves for a satisfactory television ‘performance‘?” Id., at 591.
Justice Harlan faced squarely the reality that these possibilities carry “grave potentialities for distorting the integrity of the judicial process,” and that, although such distortions may produce no telltale signs, “their effects may be far more pervasive and deleterious than the physical disruptions which all would concede would vitiate a conviction.” Id., at 592. The “countervailing factors” alluded to by Justice Harlan were, as here, the educational and informational value to the public.
JUSTICE STEWART, joined by JUSTICES Black, BRENNAN, and WHITE in dissent, concluded that no prejudice had been shown and that Estes’
Parsing the six opinions in Estes, one is left with a sense of doubt as to precisely how much of Justice Clark‘s opinion was joined in, and supported by, Justice Harlan. In an area
“At the present juncture I can only conclude that televised trials, at least in cases like this one, possess such capabilities for interfering with the even course of the judicial process that they are constitutionally banned.” Id., at 596 (emphasis added).
Justice Harlan‘s opinion, upon which analysis of the constitutional holding of Estes turns, must be read as defining the scope of that holding; we conclude that Estes is not to be read as announcing a constitutional rule barring still photographic, radio, and television coverage in all cases and under all circumstances.8 It does not stand as an absolute ban on
IV
Since we are satisfied that Estes did not announce a constitutional rule that all photographic or broadcast coverage of criminal trials is inherently a denial of due process, we turn to consideration, as a matter of first impression, of the appellants’ suggestion that we now promulgate such a per se rule.
A
Any criminal case that generates a great deal of publicity presents some risks that the publicity may compromise the right of the defendant to a fair trial. Trial courts must be especially vigilant to guard against any impairment of the defendant‘s right to a verdict based solely upon the evidence and the relevant law. Over the years, courts have developed a range of curative devices to prevent publicity about a trial from infecting jury deliberations. See, e. g., Nebraska Press Assn. v. Stuart, 427 U.S. 539, 563-565 (1976).
An absolute constitutional ban on broadcast coverage of
B
As we noted earlier, the concurring opinions in Estes expressed concern that the very presence of media cameras and recording devices at a trial inescapably gives rise to an adverse psychological impact on the participants in the trial. This kind of general psychological prejudice, allegedly present whenever there is broadcast coverage of a trial, is different from the more particularized problem of prejudicial impact discussed earlier. If it could be demonstrated that the mere presence of photographic and recording equipment and the knowledge that the event would be broadcast invariably and uniformly affected the conduct of participants so as to impair fundamental fairness, our task would be simple; prohibition of broadcast coverage of trials would be required.
In confronting the difficult and sensitive question of the potential psychological prejudice associated with broadcast coverage of trials, we have been aided by amici briefs submitted by various state officers involved in law enforcement, the Conference of Chief Justices, and the Attorneys General
Not unimportant to the position asserted by Florida and other states is the change in television technology since 1962, when Estes was tried. It is urged, and some empirical data are presented,11 that many of the negative factors found in Estes—cumbersome equipment, cables, distracting lighting, numerous camera technicians—are less substantial factors today than they were at that time.
It is also significant that safeguards have been built into the
The Florida guidelines place on trial judges positive obligations to be on guard to protect the fundamental right of the accused to a fair trial. The Florida Canon, being one of the few permitting broadcast coverage of criminal trials over the objection of the accused, raises problems not present in the rules of other states. Inherent in electronic coverage of a trial is the risk that the very awareness by the accused of the coverage and the contemplated broadcast may adversely affect the conduct of the participants and the fairness of the trial, yet leave no evidence of how the conduct or the trial‘s fairness was affected. Given this danger, it is significant that Florida requires that objections of the accused to coverage be heard and considered on the record by the trial court. See, e. g., Green v. State, 377 So. 2d 193, 201 (Fla. App. 1979). In addition to providing a record for appellate review, a pretrial hearing enables a defendant to advance the basis of his objection to broadcast coverage and allows the trial court to define the steps necessary to minimize or eliminate the risks of prejudice to the accused. Experiments such as the one presented here may well increase the number of appeals by adding a new basis for claims to reverse, but this is a risk Florida has chosen to take after preliminary experimentation. Here, the record does not indicate that appellants requested an evidentiary hearing to show adverse impact or injury. Nor does the record reveal anything more than generalized allegations of prejudice.
“The defendant‘s interests in not being harassed and in being able to concentrate on the proceedings and confer effectively with his attorney are crucial aspects of a fair trial. There is not much data on defendant‘s reactions to televised trials available now, but what there is indicates that it is possible to regulate the media so that their presence does not weigh heavily on the defendant. Particular attention should be paid to this area of concern as study of televised trials continues.” Brief for the Attorney General of Alabama et al. as Amici Curiae 40 (emphasis added).
The experimental status of electronic coverage of trials is also emphasized by the amicus brief of the Conference of Chief Justices:
“Examination and reexamination, by state courts, of the in-court presence of the electronic news media, vel non, is an exercise of authority reserved to the states under our federalism.” Brief for Conference of Chief Justices as Amicus Curiae 2.
Whatever may be the “mischievous potentialities [of broadcast coverage] for intruding upon the detached atmosphere which should always surround the judicial process,” Estes v. Texas, 381 U.S., at 587, at present no one has been able to present empirical data sufficient to establish that the mere
Where, as here, we cannot say that a denial of due process automatically results from activity authorized by a state, the admonition of Justice Brandeis, dissenting in New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932), is relevant:
“To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious, or unreasonable. . . . But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold.” (Footnote omitted.)
C
Amici members of the defense bar, see n. 10, supra, vigorously contend that displaying the accused on television is in itself a denial of due process. Brief for the California State Public Defenders Association et al. as Amici Curiae 5-10. This was a source of concern to Chief Justice Warren and Justice Harlan in Estes: that coverage of select cases “singles out certain defendants and subjects them to trials under prejudicial conditions not experienced by others.” 381 U.S., at 565 (Warren, C. J., concurring). Selection of which trials, or parts of trials, to broadcast will inevitably be made not by judges but by the media, and will be governed by such factors as the nature of the crime and the status and position of the accused—or of the victim; the effect may be to titillate rather than to educate and inform. The unanswered question is whether electronic coverage will bring public humiliation upon the accused with such randomness that it will evoke due process concerns by being “unusual in the same way that being struck by lighting” is “unusual.” Furman v. Georgia, 408 U.S. 238, 309 (1972) (STEWART, J., concurring). Societies and political systems, that, from time to time, have put on “Yankee Stadium” “show trials” tell more about the power of the state than about its concern for the decent administration of justice—with every citizen receiving the same kind of justice.
The concurring opinion of Chief Justice Warren joined by Justices Douglas and Goldberg in Estes can fairly be read as viewing the very broadcast of some trials as potentially a form of punishment in itself—a punishment before guilt. This concern is far from trivial. But, whether coverage of a few trials will, in practice, be the equivalent of a “Yankee Stadium” setting—which Justice Harlan likened to the public
D
To say that the appellants have not demonstrated that broadcast coverage is inherently a denial of due process is not to say that the appellants were in fact accorded all of the protections of due process in their trial. As noted earlier, a defendant has the right on review to show that the media‘s coverage of his case—printed or broadcast—compromised the ability of the jury to judge him fairly. Alternatively, a defendant might show that broadcast coverage of his particular case had an adverse impact on the trial participants sufficient to constitute a denial of due process. Neither showing was made in this case.
To demonstrate prejudice in a specific case a defendant must show something more than juror awareness that the trial is such as to attract the attention of broadcasters. Murphy v. Florida, 421 U.S. 794, 800 (1975). No doubt the very presence of a camera in the courtroom made the jurors aware that the trial was thought to be of sufficient interest to the public to warrant coverage. Jurors, forbidden to watch all broadcasts, would have had no way of knowing that only fleeting seconds of the proceeding would be reproduced. But the appellants have not attempted to show with any specificity that the presence of cameras impaired the ability of the jurors to decide the case on only the evidence before them or that their trial was affected adversely by the impact on any of the participants of the presence of cameras and the prospect of broadcast.
Although not essential to our holding, we note that at voir dire, the jurors were asked if the presence of the camera would in any way compromise their ability to consider the case. Each answered that the camera would not prevent him or her from considering the case solely on the merits. App.
V
It is not necessary either to ignore or to discount the potential danger to the fairness of a trial in a particular case in order to conclude that Florida may permit the electronic media to cover trials in its state courts. Dangers lurk in this, as in most experiments, but unless we were to conclude that television coverage under all conditions is prohibited by the Constitution, the states must be free to experiment. We are not empowered by the Constitution to oversee or harness state procedural experimentation; only when the state action infringes fundamental guarantees are we authorized to intervene. We must assume state courts will be alert to any factors that impair the fundamental rights of the accused.
The Florida program is inherently evolutional in nature; the initial project has provided guidance for the new canons which can be changed at will, and application of which is subject to control by the trial judge. The risk of prejudice to particular defendants is ever present and must be examined carefully as cases arise. Nothing of the “Roman circus” or “Yankee Stadium” atmosphere, as in Estes, prevailed here, however, nor have appellants attempted to show that the unsequestered jury was exposed to “sensational” coverage, in the sense of Estes or of Sheppard v. Maxwell, 384 U.S. 333 (1966). Absent a showing of prejudice of constitutional dimensions to these defendants, there is no reason for this Court either to endorse or to invalidate Florida‘s experiment.
In this setting, because this Court has no supervisory authority over state courts, our review is confined to whether
Affirmed.
JUSTICE STEVENS took no part in the decision of this case.
JUSTICE STEWART, concurring in the result.
Although concurring in the judgment, I cannot join the opinion of the Court because I do not think the convictions in this case can be affirmed without overruling Estes v. Texas, 381 U.S. 532.
I believe now, as I believed in dissent then, that Estes announced a per se rule that the
While much was made in the various opinions in Estes of the technological improvements that might some day render television coverage of criminal trials less obtrusive, the restrictions on television in the Estes trial were not significantly different from those in the trial of these appellants. The opinion of the Court in Estes set out the limitations placed on cameras during that trial:
“A booth had been constructed at the back of the courtroom which was painted to blend with the permanent structure of the room. It had an aperture to allow the lens of the cameras an unrestricted view of the courtroom. All television cameras and newsreel photographers were restricted to the area of the booth when shooting film or telecasting.
“[L]ive telecasting was prohibited during a great portion of the actual trial. Only the opening and closing arguments of the State, the return of the jury‘s verdict
and its receipt by the trial judge were carried live with sound. Although the order allowed videotapes of the entire proceeding without sound, the cameras operated only intermittently, recording various portions of the trial for broadcast on regularly scheduled newscasts later in the day and evening. At the request of the petitioner, the trial judge prohibited coverage of any kind, still or television, of the defense counsel during their summations to the jury.” Id., at 537 (footnote omitted).
In his concurring opinion, Justice Harlan also remarked upon the physical setting:
“Some preliminary observations are in order: All would agree, I am sure, that at its worst, television is capable of distorting the trial process so as to deprive it of fundamental fairness. Cables, kleig lights, interviews with the principal participants, commentary on their performances, ‘commercials’ at frequent intervals, special wearing apparel and makeup for the trial participants—certainly such things would not conduce to the sound administration of justice by any acceptable standard. But that is not the case before us. We must judge television as we find it in this trial—relatively unobtrusive, with the cameras contained in a booth at the back of the courtroom.” Id., at 588 (emphasis added).
The constitutional violation perceived by the Estes Court did not, therefore, stem from physical disruption that might one day disappear with technological advances in television equipment. The violation inhered, rather, in the hypothesis that the mere presence of cameras and recording devices might have an effect on the trial participants prejudicial to the accused.1 See id., at 542-550 (opinion of the Court).
It can accurately be asserted that television technology has advanced in the past 15 years, and that Americans are now much more familiar with that medium of communication. It does not follow, however, that the “subtle capacities for serious mischief” are today diminished, or that the “imponderables of the trial arena” are now less elusive.
The Court necessarily2 relies on the concurring opinion of Justice Harlan in its attempt to distinguish this case from Estes. It begins by noting that Justice Harlan limited his opinion “to a notorious criminal trial such as the one in Estes]. . . .” Ante, at 571 (emphasis of the Court). But the Court disregards Justice Harlan‘s concession that such a limitation may not be meaningful.3 Justice Harlan admitted
The Court in Estes found the admittedly unobtrusive presence of television cameras in a criminal trial to be inherently prejudicial, and thus violative of due process of law. Today the Court reaches precisely the opposite conclusion. I have no great trouble in agreeing with the Court today, but I would acknowledge our square departure from precedent.
JUSTICE WHITE, concurring in the judgment.
The Florida rule, which permits the televising of criminal trials under controlled conditions, is challenged here on its face and as applied. Appellants contend that the rule is facially invalid because the televising of any criminal trial over the objection of the defendant inherently results in a constitutionally unfair trial; they contend that the rule is unconstitutional as applied to them because their case attracted substantial publicity and, therefore, falls within the rule established in Estes v. Texas, 381 U.S. 532 (1965).* The Florida court rejected both of these claims.
It is arguable, however, that Estes should be read more narrowly, in light of Justice Harlan‘s concurring opinion, as forbidding the televising of only widely publicized and sensational criminal trials. Justice Harlan, the fifth vote in Estes, characterized Estes as such a case and concurred in the opinion of the Court only to the extent that it applied to a “criminal trial of great notoriety.” Id., at 587. He recognized that there had been no showing of specific prejudice to the defense, id., at 591, but argued that no such showing was required “in cases like this one.”
Whether the decision in Estes is read broadly or narrowly, I agree with JUSTICE STEWART that it should be overruled. I was in dissent in that case, and I remain unwilling to assume or conclude without more proof than has been marshaled to date that televising criminal trials is inherently prejudicial even when carried out under properly controlled conditions. A defendant should, of course, have ample opportunity to convince a judge that televising his trial would be unfair to him, and the judge should have the authority to exclude cameras from all or part of the criminal trial. But absent some showing of prejudice to the defense, I remain convinced that a conviction obtained in a state court should not be overturned simply because a trial judge refused to exclude television cameras and all or part of the trial was
Although the Court‘s opinion today contends that it is consistent with Estes, I believe that it effectively eviscerates Estes. The Florida rule has no exception for the sensational or widely publicized case. Absent a showing of specific prejudice, any kind of case may be televised as long as the rule is otherwise complied with. In re Petition of Post-Newsweek Stations, Florida, Inc., 370 So. 2d 764, 774 (Fla. 1979). Thus, even if the present case is precisely the kind of case referred to in Justice Harlan‘s concurrence in Estes, the Florida rule overrides the defendant‘s objections. The majority opinion does not find it necessary to deal with appellants’ contention that because their case attracted substantial publicity, specific prejudice need not be shown. By affirming the judgment below, which sustained the rule, the majority indicates that not even the narrower reading of Estes will any longer be authoritative.
Moreover, the Court now reads Estes as merely announcing that on the facts of that case there had been an unfair trial—i. e., it established no per se rule at all. Justice Clark‘s plurality opinion, however, expressly recognized that no “isolatable” or “actual” prejudice had been or need be shown, 381 U. S., at 542-543, and Justice Harlan expressly rejected the necessity of showing “specific” prejudice in cases “like this one.” Id., at 593. It is thus with telling effect that the Court now rules that “[a]bsent a showing of prejudice of constitutional dimensions to these defendants,” there is no reason to overturn the Florida rule, to reverse the judgment of the Florida Supreme Court, or to set aside the conviction of the appellants. Ante, at 582.
By reducing Estes to an admonition to proceed with some caution, the majority does not underestimate or minimize the
Accordingly, I concur in the judgment.