*1 v. TEXAS. ESTES 7, June 1965. Argued April 1965. Decided No. 256. *2 cause argued Hume D. John Cofer Cofer petitioner. a brief filed Leon Texas, Carr, General Attorney

Waggoner argued General, Attorney Jaworski, Assistant Special were the brief them With respondent. cause for Fender Stone, Howard M. Stanton Phillips, Hawthorne General, and Attorneys Pena, J. Assistant Gilbert Attorney General. Assistant Curry, Special Alton F. filed curiae, were urging reversal, of amici Briefs and John Coburn Richmond C. *3 Seymour, Whitney North by Nor- Association, and Bar the American H. for Yauch Civil the American for Melvin L. Dorsen and man Wulf al. et Liberties Union by curiae, affirmance, were filed urging of amici

Briefs Duke Texas, by joined Bar of for the State Davis Grant Colorado; and Dunbar, Attorney General of W. Anello, W. Theodore Pierson and Harold Douglas A. of Broad- Association Cohen for the National David casters et al. opinion of the Court.* delivered the Clark

Mr. Justice petitioner, presented here is whether question for the Seventh who the District stands convicted Court Tyler swindling,1 of Texas at Judicial District subject opinion * Mr. Justice Harlan concurs in this the reser concurring post, opinion, extent indicated in his vations to the p. 587. pretenses through petitioner, false

1 The evidence indicated that purchase representations, and fraudulent induced certain farmers accompanying equipment, in fact did not fertilizer tanks and which exist, sign mortgages on fictitious and to and deliver to him chattel property. Amendment Fourteenth right under the of his

deprived his broadcasting televising and by the process to due of Crimi- Texas Court and the trial court Both the trial. to the We hold petitioner. against found Appeals nal conviction. reverse his contrary and

I. framework his claim recites petitioner While Bar American Canons Judicial 35 of the Canon enshrine we should not contend he does Association only but Amendment, in the Fourteenth Canon 35 not fol- of a fair were principles time-honored without convicted he was thus case and lowed in his has of itself no course, Canon of law. process due the view merely expresses on the courts but binding effect tele- broadcasting, to the opposition of the Association Like- proceedings. vising photographing court Bar of Integrated 28 of the State wise, Judicial Canon which leaves to Texas, (1964), Tex. B. J. 102 telecasting photo- sound discretion the judge’s law. In is of itself not graphing proceedings, of court validity of either short, question here is Canon 35 of the American Bar Association Canon petitioner of the State Bar of whether Texas, but due comports in a with the was tried manner process requirement Amendment. of the Fourteenth *4 Sep- for trial on originally case was called

Petitioner’s 24, County change after a of venue 1962, tember Smith pre- Massive County, from Reeves some 500 miles west. press clippings, 11 publicity totaling volumes given which are on file with the had it national Clerk, notoriety. All available seats in the courtroom were taken However, at persons and some 30 stood in aisles. prevent telecasting, that time defense motion to broad- casting by a defense photography radio and news and motion for continuance were and after a two- presented, day hearing granted. the former was the latter denied and

536 radio both carried live hearings were initial

These permitted was photography news television, clearly hearings of these videotapes throughout. of that one was not presented picture illustrate was entitled. petitioner serenity and calm judicial v. Turner 375, (1962); 383 S. Georgia, 370 U. v.Wood Cf. Louisiana, Cox v. 466, (1965); Louisiana, S. 379 U. least camera- Indeed, at (1965). S.U. throughout in the courtroom engaged men were televising the pictures and still taking motion hearing across the snaked wires were Cables proceedings. judge’s on the were microphones floor, three courtroom and the jury at the box were beamed and others bench the activities It conceded table. counsel to consider- led photographers and news television crews veniremen hearings. Moreover, disruption able in the courtroom present and were summoned had been after released hearing but were later during entire granted. had been motion for continuance petitioner’s called; of the witnesses also had the names The court of others led to a con- answered the absence some but 22, 1962. It is con- case October tinuance until pretrial hearing cannot be two-day this tended determining question before us. We considered in agree. major problem Pretrial can create a cannot may in a criminal it be more Indeed, the defendant case. may publicity during harmful than the trial for well set community guilt Though as opinion innocence. September hearings with motions to prohibit dealt coverage postpone trial, and to are relevant All unquestionably to the issue before us. two-day affair highly publicized and could impressed have those present, community and also the at large, with the notorious petitioner character of well as the proceeding. present The trial witnesses the hearing, as well as original jury panel, were un- *5 public importance peculiar aware of the doubtedly made being coverage pro- and television by press case of the televised were fact that themselves vided, show. evening on the rebroadcast pictures live and their 22 the was called for trial October the case When had been constructed had altered. A booth scene been blend painted which was of the courtroom at the back room. It had structure of the permanent with the an unrestricted of the cameras to allow the lens aperture news- All cameras and view of courtroom. to the area of booth photographers reel were restricted telecasting. shooting when film or governing live Because of continual the rules objection, changed telecasting, photos, as well as radio still were As require. exigencies of the situation seemed great telecasting prohibited during por- result, live Only opening closing tion of the actual trial. arguments State, jury’s the return of the verdict receipt by and its the trial were carried live with judge Although videotapes sound. the order allowed entire proceeding sound, operated without the cameras only intermittently, recording various portions of the trial for broadcast on regularly scheduled newscasts later in day evening. request At the of the petitioner, judge prohibited the trial coverage of any kind, still or television, the defense during counsel their summations to the jury.'

Because of the varying placed restrictions on sound and live telecasting the telecasts of the trial were confined largely to film clips shown on the stations’ regularly scheduled news programs. The news commentators film use the of a particular part day’s of activities as a backdrop for reports. their Their commen- 2Due to difficulty mechanical picture there during was no opening argument.

538 re- usual the testimony excerpts

tary included of videotapes the one occasion On remarks. portorial the place rebroadcast hearings were September the movie.” “late

II. this Court (1963), Louisiana, S.U. v. In Rideau in the of a defendant televising the a that rule constructed invalid under inherently was confessing to crime act Amendment the Fourteenth Clause Due Process the or a demonstration showing prejudice without even trial. the confession and televised nexus between Here, J.). opinion of id., (dissenting at 729 See Clark, home-viewed as a nothing so dramatic was although there of the com- had been bombardment there confession, two-day hearing aof sights and sounds munity with the original panel, petitioner, jury which the during peti- The judge highly publicized. were lawyers and minute elec- characterization and subjected was tioner point at one to such an extent that scrutiny tronic attempting picture page photographers were found reading sitting at from which he was while paper hearing two-day table. The and the order the counsel permitting widely the actual trial were throughout community. emphasized known This and, notorious character that the trial would take there- fore, ap.art extraordinary set it as mind say, something case “not or, conventionally Shaw would unconventional.” When the new jury empaneled at jurors four of the selected had seen and heard all part of the of the proceedings. broadcasts earlier

III. We proposition start with the “public is a trial” guarantees the Sixth Amendment to the “accused.” purpose of a requirement public trial was to guarantee that the fairly accused would be with and dealt secret proven had History condemned. unjustly As oppression. instruments effective were tribunals Oliver, S. 333 U. In re said well Brother our so Black (1948): for secret distrust Anglo-American “The traditional notorious to the variously ascribed has been trials Inquisition, Spanish by the practice of this use Chamber, of Star Court English excesses de *7 lettre of the monarchy’s abuse French and to the guaran- other benefits Whatever . . . cachet. pub- in conducted his trial be accused that tee to an has guarantee society, our may upon lic confer against any safeguard recognized as always been as instruments our courts attempt employ omitted.) persecution.” (Footnotes At 268-270. granted in the First however, that the freedoms said, It media to televise right extend a to the news Amendment priv- honor this courtroom, from the and that to refuse to and tele- ilege newspapers is to discriminate between the a misconception rights press. vision. This is of the mighty catalyst awakening The free been a press has governmental affairs, exposing corrup- interest among public tion employees generally officers and informing citizenry of public events and occurrences, including proceedings. court While maximum freedom must be press allowed the in carrying on this important function in a society democratic its exercise must neces- sarily subject be to the maintenance absolute fairness in the judicial process. While the state and federal courts have differed over spectators may what be excluded from a criminal trial, 6 Wigmore, (3d § Evidence ed. 1940), the amici curiae brief of the National Association of Broadcasters and the Radio Television News Directors Association, says, as indeed it must, that “neither of these two amendments speaks of an [First unlim- Sixth] part on the courtroom access right

ited recog- they Moreover, 7. .” At . . . media broadcasting proper all of must concern “primary nize liberty any “the life or of justice”; administration be- jeopardy put not be should this land individual due that “the media”; and news any actions cause of Fifth and Fourteenth in both process requirements Amendment the Sixth provisions Amendments . . . .” fair will assure procedure require At 3-4. where said to discriminate the courts be can

Nor courtroom. access newspaper reporter permit privilege. the same reporter has television and radio general public. rights same as the All are to the entitled bring typewriter his permitted is not reporter The news per- in these arts When the advances printing press. or without press by television reporting printing mit another present their to a fair trial we will hazards have case.

IV. purpose are held for the solemn Court *8 qua truth which is the sine endeavoring to ascertain the Anglo-American non of a fair centuries trial. Over the safeguards by rule and other- courts have devised careful high of this protect performance wise to and facilitate the safeguards at do result, As a this time those function. a televising not the of criminal permit photographing in under restrictions. trial, save two States and there This prohibit by specific The federal courts it rule. is concepts that our a fair trial weighty evidence do not an indulgence. always tolerate such We have held that the atmosphere preservation essential to the a fair trial —the most fundamental of all freedoms —must be maintained all approach through costs. Our has been rules, contempt proceedings and reversal convictions obtained under unfair remedy conditions. Here the is duty to con- is it our application certain clear and immemorial from time that principles the enforce tinue to trial. necessary to a fair efficacious have proven y. of a televising portions that the contends

The State process. due a denial of not constitute criminal does shown has been prejudice because no position is that Its televising, it is resulting as petitioner during the trial of “distractions” that claims permissible; wholly are of television presence physical due to the are for considerations psychological and that unfounded; hypo- purely are psychologists, courts, because right to public has argues It further that the thetical. has no goes courts; know the court what on trans- power edit, or censor events which “suppress, Harney, pire citing Craig v. it,” before televising of crim- (1947); S. U. and that public inal to the and would enlightening trials be promote greater respect the courts. dispelled

At the outset the notion should be tele- casting dangerous is It is true that because it is new. our empirical knowledge of on public, its full effect jury or the participants trial, including judge, witnesses and nub lawyers, However, limited. Doug- question not its but, newness Mr. Justice says, “the puts insidious influences work las justice.” The Public Douglas, administration Press, Rocky Trial Mt. 1 (1960). Free L. Rev. below, turning These influences will be detailed but before argument right them the State’s has goes know what courtroom should dealt with.

It public right is true that has the be informed as to what occurs in reporters media, its but of all courts, including if television, always are wish to present be

542 open in- occurs whatever report free plainly are settled This media. respective their through

court Penne (1941), S. 314 U. California, Bridges v. in we reaffirm. which (1946), Florida, S. 328 U. v. kamp years were stated press privileges reportorial These ago: legal pro- in publicity favors however, law,

“The without attained be can object as that far ceedings, so The concerned. immediately persons to the injustice in- judicial all nearly to attend permitted are reason be no sufficient appears and there quiries, print to see allowed not also should why they pre- them have they can thus trials, if reports ator court, exhibited they are fully as sented as im- portion the material least all means of not, by that one shall stated, so partially he would impressions, them, derive erroneous hearing the likely been to receive not have 931- Limitations Cooley’s itself.” Constitutional 1927). ed. (Carrington of television however, says that use State, The im- person to the injustice the instant case was “without fact that basing position its on the mediately concerned,” petitioner prejudice has established no isolatable a convic- that this must be shown in order to invalidate broadly tion in too paints these circumstances. State instances for this itself has found contention, Court in which not a showing prejudice prerequi- of actual site to This a case. It is true that in reversal. is such most cases involving process deprivations claims of due we require showing of identifiable to the prejudice accused. employed Nevertheless, procedure times by the State involves a probability prejudice such will result inherently lacking is deemed in due

543 133 Murchison, S. 349 U. In re a case was process. Such pointed the Court (1955), where Black Mr. Justice force: clarity up his usual requirement is a basic in a fair tribunal “A fair trial an ab- requires of course Fairness process. due of our cases. But in the trial of bias sence actual even prevent always has endeavored of law system its . perform of unfairness. . . probability [T]o satisfy the way ‘justice must high function best States, 348 v. United appearance justice.’ Offutt supplied.) At 11, (Emphasis S. 14.” 136. U. Ohio, Tumey 273 v. as Chief Justice Taft said And, years U. S. almost 30 before: law requirement process judicial “the due men argument not procedure is satisfied highest greatest honor and self-sacrifice Every danger carry injustice. could it without procedure temptation offer a possible average forget to the man ... burden proof required to or which defendant, convict might him not hold the balance clear nice, lead true between the State and the denies the accused, latter process (Emphasis due of law.” At 532. supplied.) Rideau,

This rule in Turner was followed in supra, Louisiana, v. (1965). 379 S. In cases U. each these departed approach the Court from the it Stro charted California, ble v. (1952), v. U. S. 181 and in Irvin Dowd, 366 U. S. 717 a careful (1961), where we made examination of the in order to determine whether facts In did prejudice and Turner resulted. Rideau the Court stop practice consider actual effect of the but struck down on the ground prejudice the conviction Wainwright, was inherent in it. Likewise Gideon v. 373 U. S. Maryland, v. White (1963), S. 335 372 U. although in different rule, applied the same we (1963), contexts. must such a rule even clearer

In case Stroble, *11 pretrial the Rideau, In Irvin applied. be could courtroom and the occurred outside publicity than only recourse other The curtailed. effectively In Turner the contempt by proceedings. was reversal through the use of present was prejudice probability case, in as the also witnesses sheriffs, who were deputy the was shown but jury. prejudice the No shepherds inherently suspect, and, to be were held circumstances a requisite to be to showing held therefore, such was not the of this application in this case Likewise reversal. pres- in its Television appropriate. principle especially is variety into a by very nature, reaches ent state and its an accused. Still may prejudice in which it cause to areas prove mischief and put finger specific cannot his its one prejudiced. he This particularity wherein was with Murchison, Tumey, Rideau and true in found found in Turner. untoward circumstances as were Such inherently prejudice those cases are bad and Forty-eight of our presumed. accused was States and im- the Federal Rules have deemed the use of television proper telling the courtroom. This fact most buttressing any change our conclusion that in procedure permit its use would be inconsistent with our concepts process due in this field.

VI. As has said, been the chief judicial function our machinery is to ascertain the truth. use of tele- vision, however, materially cannot be said to contribute objective. its injection Rather use amounts of an proceedings. irrelevant factor into In court addi- experience tion teaches there are numerous situations subtle so unfairness —some might cause actual which it judge. by accused or control defy as detection in summary: We some enumerate jurors impact of on the potential 1. The nerve They are perhaps greatest significance. in States fact-finding It is true process. center required sequestered to be like Texas where are any not see will jurors probably this nature trials of But courtroom. televised end there. From the moment inquiry cannot it be- a case will be televised announces that júdge including community, a came célebre. The whole comes in all morbid prospective jurors, becomes interested immedi- surrounding approaching it. The details public press ately important assumes an status in the offense highly publicized along the accused is *12 him with charged. Every which juror with he is carries increases facts and thus jury into box these solemn the criminal present every is prejudice the chance only realistically And must case. we remember that it because of the broadcast, the trial which will be notorious or uncon- necessity paid sponsorship. The conscious may juror’s judgment effect that this have on the scious it is not evaluated, experience be but indicates that cannot it will only possible highly probable that have direct but pre- or innocence. Where bearing guilt on his vote feel- all has intense publicity kinds created ing telecasting the aggravated by picturing which jurors pres- the trial the help the televised cannot but feel their knowing neighbors sures of that friends have and eyes upon If community them. the be hostile to realizing accused a televised he juror, that must return neighbors may who saw the trial be themselves, well led “not to hold the clear nice, balance and true between the State and the accused . . . .” assess impossible practically

Moreover, while it is of-television, of us attentiveness, those jury the effect “distraction.” problem jury the know realize juries who minimis de physical since argues this is The State know But we eliminated. disturbances have been presence solely by physical are caused distractions not lights. It is the aware- red and its the camera telltale by juror telecasting that is felt the fact ness of un- are all self-conscious the trial. We throughout what being Human nature being televised. easy when but camera, eyes be fixed on the will a only juror’s is, telecasting will with preoccupied his mind also testimony. rather than serving jurors Furthermore, many States proceedings. of the trial see broadcasts may prevent Admittedly, sequestration Texas rule no such occurring following In other States there.3 home on the TV practice jurors would return and turn upon They would they appeared if to see how it. subjected emphasis also be to re-enactment and parts requirements selected broadcasters determined would be telecast subconsciously would be influenced that tes- the more timony. Moreover, they would be ected broad- subj to the commentary est and criticism and well-meant perhaps the friends, inquiring strangers advice of who relatives recognized them on streets. new

Finally, plainly trials would be in that jeopardized potential jurors will orig- often have seen heard the *13 inal trial when it may was telecast. later Yet viewers

3Only States, Texas, require sequestration six to addition jury prior non-capital felony great to its deliberations in a trial. The majority jurisdictions judge’s leave the matter to discre tion, jury kept together while one State the will in such least only upon showing by circumstances of cause the defendant. trial. the new during box jury to sit upon be called case where in this illustrated dangers are very These permitted objections, defendant’s to the court, due to be broad- arguments closing and opening the State’s the public. cast with sound trials will testimony in criminal 2. The quality a witness impact upon impaired. often be a vast audience being he is viewed knowledge that and demoralized may be Some simply incalculable. overstatement; given to and cocky frightened, some anyone speaking publicly, falter, as with may memories severely may be undermined. accuracy of statement truth, may the search for the impede Embarrassment may tendency a natural toward overdramatization. strangers might “cranks” Furthermore, inquisitive de- approach jibes, advice or witnesses street mands for There little explanation testimony. “prove” wonder that the cannot the existence defendant experience Yet all know of such factors. we they exist. against

In addition the invocation of the rule witnesses In most able is frustrated. instances witnesses would be go day’s homes broadcasts of the their and view notwithstanding proceedings, fact that had been They not to do admonished so. could view hear the testimony preceding witnesses, shape and so their own testimony impact as to make its crucial. And even absence of sound, the viewing influences such on the attitude of the witness toward his testifying, frame of upon taking mind the stand or his apprehension of wither- ing defy cross-examination objective assessment. In- deed, the mere fact trial is might to be televised render witnesses appear thereby reluctant impede the trial as well as the discovery of truth. *14 present are above dangers mentioned some

While trial, the important any coverage of newspaper as inwell intruding upon influences and extraneous circumstances in the televised procedure of court decorum the solemn involving cases than far more serious trial are coverage. newspaper is additional problem aspect of the major

3. A on places of television presence responsibilities accused make certain is to job His trial judge. his requires difficult task This most a fair trial. receives comes into when television Still undivided attention.. In trial, also it. supervise courtroom he must several different occasions—aside example, the on judge days pretrial obliged have from the two —was necessary solely made because hearing or enter order Thus, re- telecasting where is presence of television. the State concedes it here, as it was and as even stricted exacting. his much more difficult be, must task is made may unfortunately rulings such happened here, And, as addition, trial. In against the fairness of militate there is the ever- interruptions aside, laying physical the mere awareness of television’s distraction that present Judges beings are human also and presence prompts. subject psychological laymen. are the same reactions Telecasting judge elected, particularly bad where all as is case in save half dozen of our States. The telecasting political weapon, which, of a trial becomes along in broadcasting, with other distractions inherent diverts his attention from the task at hand —the fair accused. this is not

But all. There is the initial decision that must be made as to whether the use of television will be permitted. This is perhaps an even more crucial consid- eration. Our judges high-minded are men and women. But it is difficult to remain pressures oblivious to the the news media can bring directly to bear both them *15 Moreover, opinion. public shaping through the and permits ain State or even in a district judge one where do the same others the requirement that telecasting, the the true where Especially is this mandatory. is almost box. ballot selected is judge courtroom impact of ignore the cannot Finally, we 4. a form of presence Its defendant. television resembling a police physical harassment, mental —if — close-ups The inevitable degree. third line-up or1the during the ordeal his expressions gestures his his dignity, sensibilities, personal his might transgress well before on the to concentrate ability and his and death— between life the difference him-—sometimes of wide the distraction freely and without dispassionately, a specific for on trial A defendant surveillance. public or stadium, in a day court, not to his in crime is entitled heightened public city a or arena. The nationwide coverage will radio resulting clamor and television is, television Trial inevitably prejudice. result telecast- system. Furthermore, therefore, foreign to our The accused of effective counsel. ing may deprive also an attorney-client into distractions, intrusions confidential by television to relationships temptation offered public might have direct play to the audience often jury upon lawyers, judge, effect not but The Lessons of Dallas— Pye, the witnesses. See Press, Threats to Fair Trial and Civil Free National Clearing House, Liberties 16th Annual Conference. The powerful television camera is a Inten- weapon. or tionally inadvertently destroy it can accused his eyes public. case telecasters While our are men, they necessity honorable too are human. weighs sponsorship televising heavily favor of the of only notorious cases, such as this and invari- one, ably focuses upon the lens unpopular infamous to ob- in order necessary a selection Such accused. cover fee a sufficient willing pay sponsor tain already examined have We profit. return costs and affect the can sentiment in which ways shapes To extent participants. trial. a fair the accused strip can sentiment, observations of all these dispose The State psychologists are for they statement simple we cannot But hypothetical. purely are because are factors these that, because luxury saying afford the they must cases, particular of ascertainment difficult They hypothetical.” they “purely ignored. Nor are *16 the considerations than were hypothetical are no more Murchison, and Rideau Tumey, controlling in deemed the convinced enough to have They are real Turner. and this Court States, Judicial Conference United in federal television should be barred Congress the in Procedure; the Federal Rules of Criminal by trials all but two of our States persuaded addition have They are effects in the courtroom. prohibit television certainly will, combination some almost may, into any injected the case which television is exist process. VII. necessity clearly the

The facts in this case demonstrate The rule announced Rideau. application for the days hearing pretrial sole the court for two issue before hearing was tele- was the now before us. The question evening, in the same reach- repeated tape vised live and ing addition, viewers. In approximately 100,000 micro- cameras, courtroom was a mass of wires, phones photographers. petitioner, panel prospective day, who were sworn the second jurors, lawyers exposed witnesses and the were all untoward situation. The decided that the trial judge no restric- He announced be telecast. proceedings nature the notorious emphasized This at the time. tions pub- intensity of coming trial, increased the subsequent together licity petitioner on the inherently later beginning days televising of the trial This is under- prevented a for the truth. sober search took jury selection of the scored the fact amount expected, a substantial might entire week. As be impact ascertaining the of that time was devoted to weAs jurors. pretrial televising prospective on the part all or had seen noted, jurors have four of the selected hand, lasted on the other trial, of those broadcasts. The days. three harassed. After himself Moreover, judge the trial telecasting apparently he permit initial decision to broadcasters’ be built at decided that booth should limit operations; he then decided to expense to confine its might live; then parts of the trial that televised witnesses without testimony to film the he decided rule; under the attempt protect in an those sound argument their that defense counsel and finally he ordered Plagued light objection. of their televised, not be day of the trial— original recurring each by his error — confusing to day-to-day orders made the more his *17 Indeed, and to the viewers. participants jury, side the State’s public presentation resulted in a of the case. Colorado, in Patterson v. Holmes said

As Mr. Justice (1907): 205 U. S. that conclusions to theory system

“The of our only by be be evidence reached a case will induced argument by any and outside open court, and not public print.” talk or influence, private whether of It is ever-advancing public said that the techniques communication adjustment to its of tele- a in the effect may bring change

presence about we But are trials. of criminal the fairness casting upon field of developments dealing with future here not hy- on cannot judgment rested electronics. Our they are must take the facts but pothesis of tomorrow presented today. is therefore judgment

Reversed. Warren, Justice whom MR. Chief Justice Mr. Goldberg Douglas concurring. join, and Mr. Justice opinion agree I Court’s join While inherently a due televising of trials is denial criminal why this express I additional views on process, desire to our con- this, emphasize In I doing so. wish gen- criminal trials is based demnation televised presents case The record eralities abstract fears. prejudice a inherent of televised vivid illustration that this is supports our conclusion criminal trials appraisal a definitive tele- appropriate time make in the courtroom. vision

I. Petitioner, much-publicized financier, was indicted obtaining grand jury prop- County, Texas, Reeves erty through pretenses. false The case was transferred City County, Texas, and was Tyler, Smith set September 24, for trial on Prior to that date 1962. petitioner’s judge counsel informed the trial he September make a motion on exclude all during cameras the courtroom the trial. September 24, hearing peti- held to On consider tioner’s to prohibit television, pictures, motion motion photography and still the trial. The courtroom was filled with newspaper reporters and cameramen, cameramen, spectators. At least cameramen with *18 were there and observer, by one seen were equipment their article An aisles. the standing people more 30 or day stated: next Times the York the New appearing big an intercontinental van, “A motor the courthouse parked outside bus, was equipment. a forest courtroom second-floor bar up set inside had been cameras Two television out- aligned just were cameras marked more and four snaked wires . . gates. . [C]ables side over the floor.” court- through the at will roaming photographers With cam- all motion that his counsel made room, petitioner’s a cameraman wandered spoke, As he eras be excluded. his Coun- snapped picture. bench judge’s behind the make it of cameras would argued presence sel that make his client client, his him to consult with difficult for trial a fair impossible make to obtain ill ease, witnesses and jury, the cameras distract since televising the view that lawyers. expressed He also impression give jury selected cases tends ordinary from criminal particular trial different taking pic- court, however, trials. The ruled that the televising as the long tures and would be allowed so railing separates cameramen stood outside participants spectators. The court also ruled that if a complaint any was made that camera was too noisy, the taking pic- cameramen to stop would have tures; that no pictures be taken could corridors outside the and that courtroom; microphones those with were not pick up conversations between petitioner and lawyers. his Subsequent ruling petitioner the court’s arrived the courtroom,2 and the defense introduced tes- Times, Sept. 25, N. Y. 1962, p. 46, Appendix, col. 4. See Photo graphs 1, 2, 3. explained Counsel protect court he desired to petitioner from the ruling. cameras until the court had made its *19 on that court in the atmosphere concerning the timony judge hearing day’s of the the conclusion day. At a roll call then ordered ruling. He his earlier reasserted whom had of least some witnesses, prosecution of the proceedings. during the courtroom in the been live televised 24 was September hearing on The entire WFAA- and station Texas, Tyler, of KLTV station when inserted were Commercials Dallas, Texas. TV of evening On the proceedings. in the pause there was tape an ran edited both stations September 24, Monday, to tape play interrupted day’s proceedings of the time ordinarily particular seen the commercials coverage there to the live television In addition slot. by at least proceedings pickup a live was also radio one station. 25. There September on proceedings

The continued taking number of cameramen again significant pictures. pictures and television pictures, motion still on stay to The once more ordered cameramen judge railing that this order was to other side stated during panel observed even recesses. The court petit was to sworn in jury be selected was then presence the cameramen. The was ex- panel permit to prohibit cused counsel renew his motion photography the courtroom. The court denied the motion, granted but a continuance of trial until October panel. jury suggestion and dismissed the At the petitioner’s counsel the trial judge prosecu- warned the tion witnesses present who were not to discuss the case during the continuance. The were televised live portions of the tape television were shown regularly evening scheduled programs. news Live radio transmission apparently occurred as on day before.

On October 1962, the trial judge issued order ex- plaining what coverage he permit would during the trial. The judge delivered the order in his chambers for the film they could so that cameramen television benefit permit would he although ruled judge him. trial, during present to be cameras coverage live present permitted not be testimony jurors prospective interrogation of tele- major three each ruled that He witnesses. local television CBS, ABC, and NBC, networks, vision not equipped camera one could install KLTY station *20 other available to film would be and the pick up sound he addition, In basis. pooled on a television stations cam- photographers news respect to ruled that Press, and United press, the local Associated eramen for Photographs in the courtroom. permitted Press would be on pooled others taken also to be made available to were explain did not how he decided basis. The judge were photographers and which still cameramen be permitted to which were to the courtroom and excluded.

For station proceedings beginning the on October KLTV, permission at its own and with of the expense, the court, had constructed a booth the rear the court- painted room the or near same as the same the color running courtroom. An opening lengthwise the across permitted booth the four photo- television cameras to graph the proceedings. The courtroom was small cameras clearly were all in visible to the courtroom.3 The cameras were equipped with “electronic sound on camera” which permitted them to take both film and sound. Upon entering the courtroom judge told all those with television cameras to go back to booth; asked the press photographers not to move any around more than necessary; ordered that no flashbulbs or floodlights be used; again told cameramen go could not inside railing. Defense counsel renewed his motion

3See Appendix, Photograph 6. movie cameras, still . . . equipment “sound all ban from facilities” all radio television; cameras issue, on this called again were Witnesses courtroom. reaf- judge hearing the conclusion at the but court- cameramen ruling permit prior his firmed his argument petitioner’s response In room. were States United Constitution under the rights the “case [was] remarked violated, judge being Constitution.” the Federal under being tried 22 was televised on October proceedings None day’s however, recorded cameras, live. Television showings. Appar- later proceedings with sound entire carried live was ently none of the October tape. recorded on proceedings were although radio, were free the court photographers The still admitted railing. photographs take outside began. Over- jury October 23 the selection of On strip placed had across the tele- night an additional been opening cameras vision booth so that for the television reduced, operators the cameras and their were but *21 panel jurors still A of quite prospective visible.4 86 was ready voir jurors for the dire. The excused the judge ruling from the courtroom and made still another on news coverage at trial. He ordered the television record- ing to from proceed point on without an audio pickup, and, addition, tapes any forbade radio fur- ther until all the evidence had been intro- duced. During the course of the trial the television cameras recorded without sound whatever ap- matters peared interesting them for use on later newscasts; radio broadcasts spot reports form of were made from a room next to the courtroom. There was no live television or radio coverage until November when the trial judge permitted live coverage of the prosecution’s

4 See Appendix, Photograph 7. and verdict jury’s arguments jury, to the return objected the defense acceptance the court. Since by its judge being summation, photographed during photographers or still prohibited cameramen during argu- taking from of the defense its any pictures was while But went the defense on, ment. the show judge were speaking the cameras directed equipment audio arguments by monitored were On by an announcer. relayed to audience the television news time, directed November 7 the the first judge, desiring to take them photographers pictures to take the trial until this time Up from the back of the room. merely photographers news orders judge’s limited spectator section.

II. conviction affirming petitioner’s below decision criminal Anglo-American runs counter to the evolution time procedure period During over centuries. a ritual practically the criminal has developed fact-finding process, to a justification devoid of rational a fair provide acknowledged purpose guilt.6 and reliable determination guilt- rationality An introduced into the element of determining England years ago when process over “the insti- rudimentary jury principal became 7 Initially tution for criminal cases.” members jury were expected to make their own examinations cases try already were to to court familiar come 5Jenks, (6th A History 1949); English Short Law 46-47 ed. Stephen, History (1883). I A England of the Criminal Law of 51-74 *22 6 See, g., Craig Harney, Dowd, e. 367, 378; v. 331 U. S. Irvin v. 717, Brady 728; Maryland, 83, 366 87; U. S. v. v. 373 U. S. Jackson Denno, 368, 378 U. S. 391. 7 Singer States, See 24, v. United 27. 380 U. S.

558 limit the to impossible it made which facts,8 Grad- evidence. relevant legally to determination jury’s panel from a was transformed jury however, ually, given evidence passing 'of triers panel to a witnesses insure to step was The next courtroom.9 by others accomplished this was jury, independence Bushell, 6 How.. Edward in the case of by the decision practice to the put an end (1670), 999 St. Tr. who failed members punishing jury or otherwise fining pur- As the by the court. directed to the decision reach discovering the truth became as a vehicle pose of trial should have recognized that the defendant clearer, was place oath,10 to them under right call witnesses and against him charges informed of before be him have counsel assist with his defense12 trial,11 All protections, cited, these and others which could part development by were which “the administration upon dignified criminal was set firm justice basis.” gov

When the colonists undertook the responsibility erning themselves, prime one of their concerns procedures establishment which would be consist ent with purpose of trial. Congress The Continental passed measures designed safeguard right to a fair trial14 and the adopted various States pro constitutional History 8 II Maitland, English Pollock and Law 621-622 (2d 1909). ed. supra, Stephen, 9 I 5, note at 260. (1695). 3, See 7 Will. c. 3 11Ibid.

12 Ibid.; (1836). 7 Will. 4, & c. 114 supra, Stephen, 13 I note 427. 14 I Congress Journals of the 1774-1789, (Ford Continental ed.

1904). *23 the Sixth Eventually same end.15 to the directed visions certain the Constitution into incorporated Amendment of trials: with the conduct dealing provisions shall the accused prosecutions, “In all criminal trial, speedy a right to enjoy the wherein and district of the State impartial jury shall which district committed, been have crime shall and to by law, ascertained previously been have accusation; of the cause the nature and informed of him; against with witnesses to be confronted obtaining witnesses process for compulsory have have Assistance Counsel favor, his and to his defence.” “speedy Sixth Amendment words

Significantly, public” the term rest qualify specific protections Amendment defines accused its Thus, Amendment, by have at his trial. the Sixth terms, own cer- only requires the accused have tain specific rights but also them a trial— enjoy that he at meaning word with a Cali- own, Bridges its see v. fornia, 314 252, U. S. 271.

The Fourteenth places Amendment which limitations on the States’ administration of their also criminal laws gives content to the term trial. Whether Sixth Amendment applies as whole through the States Fourteenth,16 or the Fourteenth Amendment embraces portions those of the Sixth are Amendment “fundamental,” or the Fourteenth Amendment incor- porates a standard of liberty” apart “ordered

15Radin, Right Temple Q. to Public Trial, 6 L. 381,383, n. 5a (1932). 16Adamson California, 46, v. (dissenting U. 71-72 opinion S. Mr. Justice Black). 17Gideon Wainwright, v. 372 U. S. 342. been it has Rights,18 Bill of guarantees

specific least, must, prosecutions that state recognized a fair conception” fundamental “the comport *24 trial.19 that theories of these another on one has held

It been many includes trial a fair conception the fundamental such Amendment, Sixth the provisions specific public, the open to to have the right as the specific right to notice 257; Oliver, S. the In re 333 U. right the Arkansas, 196; S. 333 U. Cole v. charges, Douglas 400; Texas, U. S. v. 380 confrontation, Pointer counsel, right and the Alabama, 415; 380 U. S. v. has also 335. But Wainwright, 372 S. Gideon U. v. the Fourteenth nor agreed neither the Sixth been that clear the formalistically, is to be read Amendment rights be specific is that these intent of the amendments Justice trial. In the words of enjoyed at a constitutional the “every Holmes, though preserved,” form even [be] shell” empty may forms amount to no “more than they in which setting when context or considered the actually applied.20 were has arising

In cases from state prosecutions Court acted to trial from prevent right to constitutional being formality reduced to of factors intrusion process into tend to its purpose. subvert recognized Florida, The Court v. Pennekamp 328 U. S. 18 Pointer Texas, v. 400, (opinion 380 S. 408 U. of Mr. Justice Harlan, result). concurring in the 19 Louisiana, Cox v. Mangum, Frank v. 559, 562; 379 U. S. 237 U. S. 309, (dissenting opinion Holmes). 347 See Adamson v. of Justice California, Murchison, In 46, re 53; 133, 136; 332 U. S. 349 U. S. Dowd, Irvin Denno, Jackson 722; v. 366 717, U. S. 368, v. 378 S.U. (Court 377 opinion), (dissenting opinion Clark), of Mr. Justice opinion 428 (dissenting Harlan). of Mr. Justice Mangum, 20 Frank 309, (dissenting opinion). v. S. U. “the courts” “orderly operation 331, 334, administration requirement and dominant primary 90- 86, S. 261 U. Dempsey, Moore v. And, justice.” around in and atmosphere held that it was 91, to interfere so hostile might be courtroom the record though an examination even process, re- to the trial conformed all forms of disclosed counsel, jury had the defendant of law: quirements cor- was jury impartial, were stated members sufficient legally the evidence rectly charged, and Dowd, S. in Irvin 366 U. v. Moreover, convict. pretrial pub- extensive was reversed where conviction despite the observance unlikely a fair trial licity rendered trial. commented legal of a We requisites formal in that case: *25 that he said juror each was sincere when

“No doubt petitioner, impartial be fair and to but he would a impact such declaration psychological requiring Id., one’s is its at 728. before fellows often father.” a recognize To that disorder can a trial into convert meaning ritual is to pay homage without not to order as an in itself. Rather, recognizes end that the courtroom in Anglo-American is than a jurisprudence more location with for a judge, jury, witnesses, defendant, prose- seats cutor, setting defense counsel and observers; the courtroom provides important is itself ele- ment in the constitutional conception trial, contrib- uting dignity a essential to integrity “the trial” Craig process. Harney, v. 331 367, U. S. 377. As in Mr. said, very another context: “The Justice Black purpose of a system court to adjudicate controversies, both criminal civil, calmness solemnity 21 the courtroom according to legal procedures.” light In of this conception fundamental of what the term trial

21 Louisiana, Cox v. 559, 379 U. S. (dissenting opinion). wide- despite often, recognized has Court this means, con- case, possible it. a about publicity hostile spread, Signifi- standards. meeting constitutional duct behind premise basic cases, of these each cantly, judicial notion has been conclusion Court’s integrity dignity can be conducted irrelevant, itself these process the trial shield so as to here. them as aggravate rather than factors, external for out-of-court contempt convictions reversing Thus, courts power of to “the referred Court statements, this disorder from disturbances protect themselves 252, 266 S. room,” Bridges California, U. v. court fair necessity adjudication, for added); “the (emphasis Pennekamp v. processes,” of its interruption free from trial,” Florida, 336; integrity “the 331, 328 U. S. And, upholding 367, 377. Craig Harney, 331 U. S. v. publicity, against a claim of unfavorable conviction was conducted petitioner’s “that Court commented Handy, Darcy 351 IT. S. manner,” in a calm v. judicial 454, 463. have been found to

Similarly, procedures when state thwart of trial this has those purpose Court declared Ohio, procedures Turney In v. be unconstitutional. U. S. procedure Court considered state judges paid presiding under which were over a case only if the guilty defendant was found and costs assessed against argument him. An practice was made that *26 should not be condemned since some un- broadly, judges doubtedly would not judgment let their be affected such an arrangement. However, Court found procedure so conception inconsistent with the of what a trial should be and likely produce so prejudice declared practice though unconstitutional no even specific prejudice was shown.

In Lyons Oklahoma, v. 322 U. S. 596, this Court stated if an involuntary confession is evi- introduced into reversed, must conviction a state at dence jus- record in the evidence other though there even rationale explained We guilty. a verdict tify Arkansas, S. 356 U. v. Payne judgment behind this 560, 568: constitutes confession a coerced ...

“[W]here general jury evidence before part credit what say can no one returned, verdict confession.” to the gave weight jury in Jackson Term last reasoning led to the decision Similar that when Denno, held there 368. We v. 378 U. S. abe issue there must of a confession is at voluntariness and clear- “a reliable procedure adopted provides Id., 391. at of . . . voluntariness.” cut determination heard jury procedure whereby We found insufficient a it if the disregard the confession but was instructed involuntary: jury found the confession substantial procedure poses New York “[T]he to have rights threats to a defendant’s constitutional an involuntary entirely disregarded confession to have the coercion fairly reliably issue deter- Id., mined. ignore.” These hazards we cannot 389.

Earlier Term, Louisiana, in Turner v. S. 379 U. 466, we considered a deputy case which who sheriffs, prosecution’s were the principal witnesses, charge were in of a sequestered jury during the trial. The Supreme Court of Louisiana practice criticized the but said that absence a showing prejudice there was no ground for reversal. We reversed because “extreme prejudice inherent” practice required its condem- nation on constitutional grounds.

Finally, the Court has on numerous other occasions reversed convictions, where the formalities of trial were

564 funda- negate the practices observed, because trial.22 conception mental for the disregard not indicate cases does This line Rather, it system. federal in our States position under the criminal proposition for the stands provide purpose, clearly defined has a our Constitution pro- no guilt, reliable determination a fair and it seriously to divert threatens or occurrence cedure be tolerated. can purpose from that

III. must vitality, Court have For Constitution may to situations principles its apply be able were principles foreseen at the time those have been States, v. was said Weems United adopted. As in Brown v. 373, and Board S. reaffirmed U. Education, 483, 492-493: 347 U. S. statutory constitutional,

“Legislation, both experience evils, true, it is from an but enacted, general language not, its be neces- therefore, should sarily confined to the form that evil had theretofore into changes, brings taken. Time works existence new purposes. prin- conditions and Therefore a ciple vital capable to be must be of wider application than gave the mischief which In birth. ... application constitution, therefore, of a our contem- plation cannot be of what has been but of what may any be. Under other rule a constitution would easy indeed be as of application as it be defi- cient in efficacy power. general principles Its would have value little and be prece- converted 22 Mooney Holohan, See Texas, v. 103; Alcorta U. S. v. 28; Napue U. Illinois, S. 264; Brady Maryland, v. 360 U. S. v. 373 U. S. 83. *28 Rights formulas. lifeless and impotent into

dent reality.” be lost might in words declared for Amendment violates the Sixth it that I believe for Amendment Fourteenth the and courts federal to to be televised trials criminal allow courts to state three on this conclusion large. I base the at the trial diverts televising of trials (1) the grounds: that im- an inevitable has in that it proper purpose from its the gives that it (2) participants; pact on all the trial trials, purpose wrong impression about public the court dignity from thereby detracting that it trials; (3) reliability of lessening the to trials them subjects out certain defendants and singles by others. experienced not prejudicial conditions under our attempted I to common-law have show apply- experience our and our heritage, Constitution, irrevocably ing us to have committed Constitution one the criminal trial has well-defined position that determination of purpose provide fair and reliable —to guilt. Ohio, con- Tumey supra, 532, In v. this Court demned the procedure employed compensating there judges “possible temptation” to judges because it offered “not to hold clear true nice, the balance between accused.” How more harmful is a State much procedure not only temptation judges offers the as a use bench vehicle for their own but offers ends, to every same temptation participant trial, in the he defense counsel, prosecutor, It juror! witness necessary not speak point. abstract on this In the present on case, 1, October the trial judge invited the television cameras into his chambers so could take reading films of him pretrial his one of orders. On this occasion, at least, the judge clearly took the initiative in placing himself before the television audience and in giving his order, and himself, pub- maximum possible licity. Moreover, on October when trial counsel re- court- motion to exclude his newed rights petitioner’s violated ground room Constitution, made trial judge the Federal under following speech: the Federal tried being under

“This case brought been This has Constitution. Defendant the State laws, under into under the state this Court Constitution. Constitution; not uphold

“I took oath *29 Constitution; the the Federal Constitution but State long as to my I am to do best do as going and fol- it in Court, I and if distasteful preside on this it my upholding constitution, and the oath lowing will just have to be distasteful.” be if a statement would to wonder such One entitled except by judge any in a state trial justice made court viewing gain of his appeal an to the favor- as calculated trial find this I it difficult believe audience. bench, was experience on the years’ with over 20 judge, duty him imposed the fundamental unfamiliar with United States: Article VI of Constitution Constitution, and the Laws the United “This thereof; be made in Pursuance which shall States made, made, shall be under all Treaties the su- Authority States, of the United shall be Judges every Land; Law of the preme any Thing in Con- thereby, State shall bound Contrary to the any or Laws of State stitution ” notwithstanding. say participants is not that all This by deliberately to the playing would distort The more audience, undoubtedly some would. even but de- danger judge, prosecutor, is that serious neither go counsel, jurors fense or witnesses would be able

567 con- of their considering the effect without through trial dissent It is admitted viewing public. duct on the hearing repeated been had September “if the scene is difficult to trial, it during jury in the courtroom could constitutional sense how a fair conceive Post, p. 612. But afforded the defendant.” been have hear- September on at the that what went it is contended I can- before us. With this to the issue ing is irrelevant whether certiorari to consider agree. granted We process required when he petitioner was denied due In in other cases this, trial. to submit to a televised Clause, Due Process have involving rights under the we independent make an examination of obligation an Indiana, record, g., 49, 51; e. Watts v. S. Norris v. U. Alabama, 587, 590; grant S. limited U. considering all the prohibit certiorari does not us from question facts in this record relevant to the before us. parties case, to this who briefs as those filed curiae, recognize this, amici since the tele- treat vising of September proceedings as a factor relevant to our Mary- consideration. Our decisions in White v. land, Alabama, 59, U. S. and Hamilton v. S.U. clearly procedural hold that accused is entitled to pro- *30 pretrial hearings tections at as well as at actual trial and his conviction will if be reversed he is not accorded these protections. In addition, Texas, in Pointer v. 380 U. S. 400, we pretrial held that a hearing can a profound have effect on trial itself effectively prevent an accused from having a fair trial. Petitioner clearly not have a did fair determination of his motion to exclude cameras from the courtroom. The very presence of the cameras at the September hearing tended to impress upon the trial judge the power of the communications media and the criticism to which he would have been subjected if he had ruled presence that of thé cameras was inconsistent with petitioner’s right ato fair trial. prejudice The peti- to participants trial Most of here. not end

tioner did de- hearing judge, September at the present were —the witnesses prosecution prosecutor, counsel, fense for themselves they saw himself —and defendant this undergoing After courtroom. of the desecration they would suppose to unrealistic it is experience procedures that court unaware come to the October convenience for the case this being sacrificed were proceed- October manner television. It awareness. intensified only ings were conducted ever to participants any of the for impossible in court cameras of television presence unaware the four The snouts trial.23 the actual booth, through opening protruded cameras readily were not operators their cameras and by all who were sur- impossible ignore to visible but were one courtroom. No this small veying the activities constantly in the focus forget that he was could purportedly of Texas “all-seeing eye.” Although the law being it is ludi- permits object televised, to to witnesses They on them. would natu- place crous to this burden judge of the courtroom as the rally accept conditions presump- feel that be as them, establishes it would to tele- object permitting tuous for them to the court’s object reporter’s recording vision as to the court their to testimony. argued objected to Yet, no witnesses being rely on, This is televised. indeed a slender reed particularly in judge’s failure, view of the trial course of his self-exculpating justifying statements his decision to television, allow the witnesses or the advise jurors right had the object being televised. Defense counsel, however, forcefully stated that he could not concentrate on the case because of the distraction caused the cameras. judge’s And the trial atten- *31 23 Appendix, See Photograph 7.

569 compelled tion was distracted from the trial since he was rulings concerning to make seven extensive television cov- erage during proceedings alone, when he October should, instead, concentrating have on the trial itself. been

It is knowledge common . . that “television . can . . . work profound changes of the people behavior 24 it focuses on.” present provides ample sup- record port for scholars who have claimed that awareness that a being a vast, televised to but audience, unseen bound to increase nervousness tension,25 cause in- 24Keating, ‘Peyton “Not Not But the U. S. Sen ‘Bonanza/ Place/ ate,” g., Magazine, April N. Y. e. N. Y. 25, 1965, 67, Times See, 72. April Times, 22, 1965, p. (in 43, describing 2 col. a televised stock- meeting reported, holders’ the Times “Some stockholders seemed very they camera”); much aware Tinkham, were on Should Canon Question 35 Be A Proper Amended? Administration, Judicial 843, (1956) (in 42 A. B. giving examples A. J. people of how they react when know television, are on the author describes the reactions of a television audience when the camera was turned- on “contorted, it as grimacing”); Gould, Times, 11, N. Y. March 1956, p.2, X11, (“The experienced performers col. 2 most § in show business know the stage fright they go horrors of before on TV. This psychological and placed layman emotional burden must not be on a testimony may whose bearing whether, trial, have a in a murder being die.”). another human is to live or g., See, e. Douglas, The Public Trial and the Press, Free 46 A. B. (1960). A. J. Kleinman, United States v. In Supp. 107 F. (D. 1952), C. D. contempt C. the court refused to hold in wit congressional nesses in a hearing questions who refused to answer while television cameras were focused on them. The court stated: having

“The reason for stand, a witness on the either before Congress court, get committee of thoughtful, before a is to calm, and, hoped, considered it is to be truthful disclosure of facts. always accomplished, That is not even under the best of circumstances. atmosphere But at least the of the forum should lend itself to that end.

“In decided, stipulation the cases now to be of facts discloses were, proximity there witness, close to the television cam- eras, cameras, photographers newsreel news with their concomitant flashbulbs, microphones, large hearing radio and crowded room with

570 sur- bring to the and appearances,26 about concern

creased dignity traditional that opportunism latent face con- do so they discourage. Whether courtroom dif- act participants trial subconsciously, all or sciously And, cameras. of television presence in the ferently and studied conscientious make a participants even if all television, presence by the be unaffected effort to full atten- their giving them prevents in itself effort the evil Thus, trial. functions at proper their tion to case, lies not by this as demonstrated trials, of televised cameras, but appearance and the noise in televised. being are awareness participants’ trial an inevitable has such To the extent process. reliability of the impact undercuts country’s development, In of this early days might tended to provide a trial often entertainment proper obfuscate its role. thought one of people holding

“The court expe- greatest range of their performances country . . The folks would rience. . crowd ‘great lawyers’ ten hear and it plead; miles these secondary matter with client whether he and case, ‘pleading’ won lost his so the was loud 27 long.” pic- “In no early frontier when motion America, provided no tures, television, no and radio entertain- spectators standing along walls, etc. The obdurate stand taken by these two defendants must be of all these viewed the context ,of conditions. The concentration all these elements seems to me point necessarily any so to disturb and distract witness to might say today something he that next week he realize was will get again.” erroneous. And mistake could him in trouble all over Id., at 408. 26 g., Douglas, supra, e. See, 25, 842; Yesawich, Televising note Q. (1952). Broadcasting Trials, L. Cornell 27Wigmore, Kaleidoscope (1941). A Justice day, fair county was like day

ment, converged and old young far citizens from near trial was the The criminal county seat. on the Ap- rural America. of old and spectaculum theater All too infrequent. were not and cat calls plause actors at part-time became lawyers judges easily *33 . . . .”28 the bar were justice of frontier days thought

I that these had would return courts below us, but long behind the courtroom. theater to equate cause televising of trials would

The regularly forms of entertainment the trial with the process objectives and with the commercial seen on television tapes of the industry. present case, In the the television “Tonight hearing place were run September place night and in of the late movie by Show” station one eye- by drinks, soups, another. Commercials for soft drops pause and seatcovers were inserted when was a there In proceedings. addition, if trials were televised tendency part there would be a natural on the of broad- develop personalities casters to trial partici- pants, give proceedings so as to more of an element tendency of drama. This was present noticeable gave case. Television commentators viewing audi- flattering ence homey, sketch about the trial judge, obviously to add an extra appeal element of viewer the trial:

“Tomorrow morning at 9:55 the WFAA T. V. cameras will in Tyler to telecast live trial [the judge’s] decision whether or not he permit will live coverage of the Billie Sol Estes trial. If so, this will be the first such famous national criminal proceeding to be televised in entirety its live. judge] trial [The 28Mueller, by Publicity Problems Posed to Crime and Criminal Proceedings, 110 1, (1961). U. Pa. L. Rev. in 1942 Tyler here the bench appointed

was’ two every served has judge The Governor]. [the County Smith very beautiful This then. since years but dedicated built Courthouse reputation amade had judge] trial that before [the Texas, throughout reached himself said It is well. States United throughout but has old, years is now 53 who trial judge], that [the time his during any judge other than cases more tried in office.” bare- industry might also decide

The television to sus- drama contain sufficient does not boned trial itself commentary expert might provide It tain audience. legal back- persons and hire on the strategy, as the foot- grounds to anticipate possible anticipates for his audience. expert plays ball if he hearing September judge himself stated at the *34 turn on his television game a he would wanted see ball set, why for a trial. so not same part

Moreover, accepted television become should greater sacrifices for the courtroom, would be made present of broadcasters. In the case construction benefit necessary of a in made it television booth the courtroom layout physical to alter the of the courtroom and to move their, accustomed two position benches reserved spectators.29 If can in this be done order better to accom- modate I why the television see no industry, reason another might theater, court not move trial to if such a move provide improved coverage. Our memories are already short if forgotten indeed we have the wave of horror swept country this over when Premier Fidel prosecutions Castro conducted his before 18,000 people Havana Stadium.30 But the decision 29Compare Appendix, Photograph 5, Appendix, Photograph with 6. Times, N. 23, p. Y. 1959, 1, Jan. col. 1. importance ignores completely below, beginnings we have the trial process, courtroom This “justice.” criminal toward approach a similar very this because expressing I am fear an abstract Court Supreme the Nebraska confronted situation 930,W. 931- 203, N. State, 100 Neb. Roberts v. (1916): trial from the court-room removed “The court ‘By therefor: reason theater, and stated to the seat insufficiency of the court-room reason of the for admis- applying people and accommodate the further by it is the court ordered sion ... Theater, and had at Keith trial of cause be Theater, to Keith adjourned court was thereupon the occupied The was proceeded.’ stage trial where connected counsel, witnesses, and officers court, jury, with proper trial. theater was crowded The completed Before the trial was curious spectators. returned to the court-room and concluded on one adjournment there. At the coúrt occasion stage: regular the bailiff from the ‘The announced show will tomorrow; matinee in the afternoon performance and another now Court 8:30. ” adjourned until 7:30.’ There would be a real integrity threat the trial if process industry the television were judges allowed to partners become in the staging pro- of criminal ceedings.. judge had case before us several “conferences representatives of the news [with] Post, media.” p. 606. He then entered into a joint enter- *35 prise with a television station for of construction booth in his courtroom. logical step The next in this partnership might be to schedule the trial for a time that permit would the maximum number of viewers to watch and to schedule recesses to coincide for with need station breaks. Should the television industry become an would justice, it of criminal system of our

integral part the short- attribute public for unnatural not be itself. process industry of the comings consuming industry’s television of the aware public steps of the aware is also ratings, interest in- viewer to maintain past taken been that have viv- recall Memories still programs. in television terest pro- quiz disclosure caused idly the scandal heighten their order to corrupted in had been grams efforts similar we be sure that Can appeal. dramatic of heighten appeal the dramatic made to not be would would public be sure trials? Can we televised system justice because our inherently not distrust enterprise? a commercial intimate association with its tele Broadcasting give would the courtroom power an condition industry awesome vision By showing only an against for or accused. mind either depict the defendant tapes of its films or parts those position, or unattractive his awkward or witnesses give community, directors state could man impression on country false and unfavorable Moreover, mistrial, if the in a trial. case should end showing portions trial, selected or even trial, whole would make impossible it almost to select an impartial jury a second trial. Rideau Loui Cf. v. siana, To permit powerful 373 U. S. 723. medium to process use the trial itself to opinions influence the vast numbers of people, guilt before verdict of or innocence has rendered, been entirely foreign system to our justice.

The sense fairness, dignity integrity that all associate the courtroom would lost become with its commercialization. Thus, televising of trials would have an effect on participating those the trials that are being televised, but also those who observe the trials and later become trial participants. *36 also but only entertains not that argued

It is not to is aof trial function But public. educates serious ais there experience; an educational provide an educational use attempt to any that danger and lead purpose proper its it from divert tool both will process. integrity concerning the suspicions to provides Gary Powers trial of Francis The Soviet Union’s sus- was the trial integrity of The in point. an example determining concerned pect because it provid- also with trial but of the individual guilt effort This divided public. to the lesson ing object aspect of guilt-determining undercut confidence educational doing rendered the so procedure self-defeating. aspect trial took it prejudicial

“Was [Powers] spectators, that in a hall with place special 2,000 over representatives of televised, prominent it was organizations in were invited many various countries translations of attend, simultaneous oral . . . provided, were and that de- . reports tailed . . languages of the case in various were distributed to press before, during and after the trial?”

“. . . legal Soviet . . system consciously . [T]he and explicitly uses trial, very indeed safe- guards justice themselves, as instruments of the social political objectives . . state. .

A Soviet trial supposed is correct, be im- partial, just, reasonable, and at the same time supposed to serve as an object-lesson to society, means of teaching the participants, the spectators and the public generally to loyal, be obedient, dis- ciplined fighters for Communist ideals. . . .

“. . . tension between the of jus- [T]he demands tice and the politics demands of can entirely never be bound accused fate

eliminated. *37 the trial when or another way one influenced deliberately facts and its individual above lifted public.” to the object-lesson an made of a a trial as means use deliberate “. . . [T]he the integrity threatens education political process.” judicial were televising of criminal if the Finally, coverage for television trials would be approved, selected purpose to do with the having nothing for reasons particular a televised because might trial. A trial be unorthodox fancy public by his gained the judge has attorney has decided approach; or because the district appearance his it is believed for another office and run par- audience; simply because large would attract layout accommodates has a that best ticular courtroom however, coverage.32 part, television For most most factor that draw important would television al- courtroom would be the nature of the case. The leged perpetrator murder, sensational the fallen idol, or at- person petitioner, some other like has who, into tracted the interest would his trial turned find 31Berman, xiii, xii-xiii, xxix Introduction to the Trial of the U 2 (1960). revealing dialogue place present A took in the between case present defense counsel and one the television executives during September hearing. courtroom The camera on the over other side of the room has to look "Q. jury jurors past a comer of the box and aimed the witness box, does it not? pretty clear, jurors

“A. I think that sir. I would don’t think the way be in there. way get your jurors You don’t think the

“Q. operations?

"A. I exactly, don’t mean that sir.” very persons are the these Yet, for television. vehicle securing impar- difficulty greatest who encounter the This of television. presence trial, tial even without dignity point to longer be able to no Court would from outside protection as a the courtroom calmness of pro- penetrates camera For the television influences. tangible evidence the courtroom brings into tection interest which in a case—an widespread interest in the news- reports by exhaustive fanned often been has trial. before for weeks and radio papers, In danger. example of this a clear presents case present counsel: petitioner’s words Digest, The Readers Evening Post, Saturday “The *38 upon [petitioner’s] stories all had feature Time, Life history and the details in his life story giving detail .... transactions alleged fraudulent of . . . , throughout country the metropolitan papers “The day for weeks story daily. Each featured the story.” of the carried some features broadcasts glare weeks, peti- of this living publicity After legal adjudication charges for a of the tioner came to court he was against approached him. As courthouse he an by army photographers, reporters confronted shoving microphones in his television commentators finally face.34 he way When made his into courthouse it was reasonable for him have a expect that he could respite badgering from this have his case merciless adjudicated in a atmosphere. Instead, calm the carnival atmosphere September hearing in- only to served publicity surrounding petitioner crease the and to condi- tion public’s against further the Then, upon mind him. his entrance into the courtroom for his actual trial he was certiorari, Petition for writ of 35a. 34 Appendix, Photograph See 4. zeroed camera sight

confronted snap- photographers still ever-present him in on newspaper opened As he of interest. ping pictures lens close-up begin, the waiting for in effort his shoulder over zoomed camera a television did In no sense reading. was what he to find out peti- this shield process integrity of the dignity and been to which he had publicity prejudicial from the tioner right through publicity marched that because exposed, heretofore itself home made door and courtroom Gideon v. Wain- surroundings. We stated unfamiliar our very beginning, wright, 335, “From S.U. great laid and laws have state and national constitutions safeguards de- emphasis procedural and substantive signed impartial fair trials before tribunals assure law.” every equal defendant stands before the This principle applied by was below. courts

I petitioner believe has case shown he actually prejudiced proceedings, these conduct but I agree say cannot with those who televised trial deprives a of a fair if “actual defendant prejudice” be prejudice can shown. The of television may ordinary it escapes be so subtle methods gradually proof,35 but erode our fundamental conception may of trial.36 A defendant unable *39 prove actually prejudiced trial, that he was aby televised just may prove as he to unable that the introduction of a coerced confession his trial jury the to influenced convict him when sup- there was substantial to evidence port Payne his conviction aside from confession, the v. Arkansas, that from supra; jury making the refrained a

35 g., supra, See, e. Douglas, 25, note at 844. Fay York, v. New Cf. (dissenting opinion S.U. Mr. Murphy). Justice question, the voluntariness on

clear-cut determination was a Denno, particular judge swpra; v. that Jackson conviction, in his interest swayed by direct financial gave additional Ohio, jury or that the Tumey supra; v. testimony prosecution witnesses the of certain weight to wit- with those contacts jury’s repeated because of the Louisiana, How supra. v. during trial, the Turner nesses dif- acted prosecutor that prove defendant coun- defense ferently ordinarily have, than he clients impressing prospective sel was more concerned with that a defendant, juror than with the interests of the on appeared so with how television concerned he proceedings, from the continually mind wandered his impression a bad important defense witness made audi- he was the television “playing” because jury more or little or that was a little lenient ence, judge might how usually then, than he be? And more strict changed combination of to show that petitioner sufficiently purpose its attitudes diverted say a fair is no answer him of trial? It deprive court itself or films appellate tapes that an can review for place, In first it is not clear that proceedings. or films tapes court would be able to obtain unedited cooperation of counsel on both to review. Even films this trial sides, this Court was unable to obtain any complete. addition, which were in In time sense might companies limitations to tak- restrict the ing pictures portions those of the trial that are newsworthy likely most and most to attract the attention of the viewing tapes audience. More importantly, give even if films, impression could unedited, wrong proceedings. pictures The camera which takes cannot take a In picture addition, itself. camera possibly cannot cover the actions of all trial participants during the trial. While the camera is on the focused

580 be may juror acting properly, apparently is

judge who and coun- pointing the camera where glancing up to see he can confer whether around see may looking sel be the camera close-up lens of the client without with his cannot camera say, the them. Needless focusing on and show participants minds of penetrate the the the may that moment their awareness can The most camera focus. the the camera’s subject of our but place, took formally correct trial show that than form. more requires Constitution in has shown industry the television recognize I informing and enlightening be an it can past the respect it must like other institutions but institution, alter that we funda- and cannot demand rights of others benefit. We conceptions its constitutional mental. of television take notice of the inherent unfairness must is inconsistent presence and rule that its in the courtroom conception” of what trial should with the “fundamental proper holding be. that this is the in My conviction condemnation by case is almost unanimous buttressed of in this proceedings by judiciary televised court by country strong opposition practice and organized 35 country. bar in this Canon American Bar Ethics Association’s Canons Judicial prohibits televising only two, court trials.37 With or possibly highest exceptions,38 three court of each provides pertinent part: The Canon

“Proceedings fitting dignity court with should be conducted during decorum. taking photographs room, in the court broadcasting sessions, sessions of the court or recesses between televising dignity of court detract the essential proceedings, participants giving distract testi- witnesses mony, misconceptions respect create mind thereto permitted.” and should not be Hearings Concerning In re Canon 85 Colorado, the Canons Ethics, Judicial (Colo. Sup. 1956), P. 2d and Texas Ct.

581 declared has question has considered State inconsistent are criminal trials televised 39 Rule Similarly, of “trial.” conception Anglo-American prohibits Procedure of Criminal 53 of the Federal Rules judge. The of the trial televising in the discretion permit of trials State, Lyles P. 330 v. unclear. In current situation Oklahoma stated Appeals of Oklahoma (1958), the Criminal Court 2d 734 in the discretion televising of pro- adopted a rule Supreme however, Court judge. 1959, In Ann., Tit. during proceedings. Okla. Stat. hibiting actual again court (1963 Supp.). Nevertheless, in 1961 the 5, 65-66 at judge’s for the trial televising is a matter of trials stated that 1961). (Ct. App. Okla. Cody State, 2d Crim. 361 P. 307 discretion. v. 39 supra, affirma 38, no State exceptions stated in note With the is35 that Canon tively permits It has been stated trials. televised for Peti (1964); Brief 80 48 J. Am. Jud. Soc. in effect in 30 States. of the lack verify figure because tioner, p. 39. It is difficult How reporting court rules. uniformity among their the States in adopted 35, or its clearly following Canon ever, the States have Sup. 48; Arizona, Ariz. equivalent: Alaska, Crim. Proc. Alaska Rules Connecticut, Ann., 40; Conn. 45, 17 Ariz. Rev. Stat.' at Ct. Rule Del. Sup. 33, 13 (1963); Delaware, Del. Ct. Rule 27 Practice Book pre-1952 (1964 Supp.) (adopted 35 in its Ann., at Canon Code 23 prohibit prohibit television, but does form, explicitly which does not proceed “broadcasting photographs” of court taking “the Ann., 285 A35, Fla. ings”) ; Florida, Ethics, Rule 31 Stat. Code Sup. State, (Fla. Ct. (1964 Supp.), 2d 33 see v. 108 So. Brumfield Illinois, 450; 1964 16, 1958); Hawaii, Sup. 43 Haw. Hawaii Ct. Rule Ulrich, People 168-169, v. Rep. see of the Ill. Judicial Conference Ann. Munday, 32, People 280 Ill. (1941), v. 461, 376 Ill. 34 N. E. 2d 393 Sup. Iowa Code (1917); Iowa, 119, 40 117 E. Iowa Ct. Rule N. 286 Sup. 117, 191 (1964 Supp.); Kansas, Ct. Rule Ann., c. 610 Kansas television); Kentucky, (1963) (does specifically to Kan. xxiv not refer Kentucky 21 Ky. App. 3.170, Practice and Service Ct. Rule Russell’s XXIII, La. LI (1964); Louisiana, Ethics 242 Canon of Judicial 35, Callaghan’s Michi (1960); Michigan, Ethics Canon of Judicial (2d 1962); gan Pleading New Practice, Rules at 422-423 ed. Jersey Waltzinger, Prac Jersey, 35, 1 New Canon of Judicial Ethics 27, Sup. (Rev. 1954); Mexico, Ct. Rule tice 299 ed. New N. M. (1963 Supp.); York, Y. Rules Ann., 4 New N. N. M. Stat. at 95 582 Confer- Judicial “broadcasting” trials,40 unanimously condemned has States

ence of the United than on more rests This condemnation trials.41 televised understanding of the arises from policy; notions Y. Conference, N. Rule of the Judicial Administrative Board (1964), Supp.); Ohio, Ohio St. lxiv Judiciary (1964 Law, at 320 (1954), 2d 8 cert. Clifford, 370, 123 N. E. v. Ohio St. see State Sup. 38, 209 Tenn. 929; Tennessee, Rule Tenn. Ct. denied, S. 349 U. photo- (prohibits taking of (1960) (1961); Virginia, Va. cvii *42 specifically to although refer broadcasting, it does not graphs and (1963); Virginia, television); Washington, 2d xxviii West 61 Wash. (1955). 141 Va.W. viii (1956 Attorneys Judges Brand, Associations, addition, In Bar adopted reports Supreme Supp.) Idaho Court and 1959 the Oregon, Supreme present Courts of 35 in its form and the Canon merely prohibited adopted when it the Canon South Dakota and Utah mentioning specifically “photographing” “broadcasting” without Supreme reported of the Court It has also been television. (1960). 120 adopted 44 Am. Jud. Arkansas Canon 35. J. Soc. Moreover, Supreme it was "im- California assumed the Court of Stroble, proceedings People Cal. proper” in v. 36 to televise criminal 181, rehearing (1951), denied 615, 226 affirmed 343 U. 2d P. 2d 330 S. adopted by 952; the of California 343 S. see rule Conference U. (1949); Appeals Judges, of of 24 State Bar J. 299 the Court Cal. 312, Maryland parte Sturm, 114, 122, Ex 136 A. 315 152 Md. Maryland (1927), language indicating probably bar used problem; if with the and the television from the courtroom faced approval 35 in Supreme Pennsylvania with Court of cited Canon 679, 681-682, Appeal, 251, 257, n.5, 2d n.4 Mack Pa. 126 A. 386 (1956), denied, 1002, S. see J. Am. Jud. Soc. 200 cert. 352 U. 48 (1965). provides:

40 Rule during progress taking photographs in “The the court room broadcasting judicial proceedings of judicial or radio permitted by from the court room not be the court.” shall 41“Resolved, That of the States the Judicial Conference United taking photographs condemns or its environs courtroom any broadcasting judicial proceedings, connection with and the judicial proceedings by radio, television, means, con or other practices judicial procedure such to with siders be inconsistent fair Such “trial.” term conception constitutional Court’s to this relevant certainly consensus general Ohio, v. Mapp See question. determination 643, 651. S.U.

IV. consti- inconsistent opinion Nothing in freedoms and the public of a guarantees tutional press. speech 266, Oliver, S. In re U. explained

This Court Amend- of the Sixth provision public 270, that “safe- to designed to an accused” “guarantee ment is our courts instru- employ any attempt guard against Clearly openness persecution.” ments of arguably it as well: other benefits proceedings provides it unknown testimony, may induce improves quality may testimony, it forward with relevant witnesses to come con- their duties participants perform move all trial gives opportunity scientiously, and of their duties and performance observe the courts performing adequately.42 are determine whether *43 a no guarantee public special But trial confers press, industry benefit on the the radio industry. public necessary component A trial is a public to a fair right concept accused’s trial and the trial cannot prevent be used defend conditions which the trial from process providing a fair and reliable deter- guilt. mination of

To satisfy constitutional trials requirement be public necessary it is not to provide large enough facilities they ought permitted any not to be federal court.” Report Annual Proceedings of the of the Judicial of the Conference States, 8-9, p. United March 10. 42See, g., Blackstone, e. England Commentaries the Laws of (15th 1809); (3d 372-373 Wigmore, ed. Evidence 332-335 ed. 1940). since trial, particular a to attend like might all who for of the trial integrity with the interfere so would to do an end of trial publicity make the process public trials be requirement does Nor itself. they please act are free observers mean that act cannot trials attend who persons for courtroom, see process, the trial as to interfere way such of the representatives supra. When Dempsey, Moore v. greater no have they trials attend media communications as an Just public. members than other rights using field ordinary might prohibited citizen in the courthouse camera picture glasses or motion the conduct he interfere with doing so because broadcasting press representatives the trial, they when similar limitations subject are industries trials di- televising of criminal attend court. Since the pro- it must be process proper end, the trial from its verts conflict with the con- prohibition hibited. This does not trial is guarantee public of a because a trial, stitutional has public, sense, constitutional when courtroom public facilities for a number of the to observe reasonable proceedings, facilities are not so small as openness negligible large render the so as to and not dis- participants tract proper function, from their when free facilities, to use those and when all those who report attend the are free to what proceedings. observed Nor does the exclusion of television cameras from the any courtroom in way impinge upon the freedoms of speech and the press. Court proceedings, as well as other public matters, proper are subjects press coverage.

“A trial is a public event. transpires What in *44 court room is public If property. transcript court proceedings had been we published, suppose

585 punish could judge claim that none no difference can see And we contempt. publisher jury, of the attorneys, the conduct though reflected may have himself, judge even can transpired what and hear who see court. Those per- special is no There impunity. it with report it, distin- which enables judiciary quisite of gov- institutions of democratic from other guished which or censor events edit, ernment, suppress, to 43 it.” before transpire proceedings other com- like the industry, as the television long So to representatives free send trials media, is munications no there is viewers, to its on those trials report and to right press. abridgment of the freedom on court media to comment communications into themselves bring right inject with it the does not of that purpose alter process the fabric of the trial process. great

In inventions summary, television is one of the large of all time and can and useful role perform society. But like other techno- camera, the television the lives logical innovations, pervade entitled constitutionally everyone disregard protected institutions, other rights.44 industry, The television like a proper beyond has area of activities and limitations go with its cameras. area does not it cannot That entering extend into an American courtroom. On 43 Craig Bridges California, Harney, 367, v. 331 U. S. 374. See v. Pennekamp Florida, 252; 314 U. S. v. 328 U. S. 331. 44Compare States, Olmstead v. United 438, (dis 277 U. S. 471 States, United senting opinion On Lee v. Brandeis); of Mr. Justice Silver 747, (dissenting opinion Douglas) ; U. S. of MR. Justice Lopez States, States, man v. United v. United 505; 365 U. S. (opinion concurring (dissent- result), U. S. 445-446 ing opinion Brennan). Mr. Justice *45 liberty property lives, sanctuary, hallowed where representatives have jeopardy, are in people namely, present, rights general public, they choose, if thereafter, proceedings, to observe the report them. post, p. J., concurring, see opinion Harlan, [For 587.] *57 Harlan, concurring.

Mr. Justice however, Court, subject, in the of opinion I concur this indicated to the extent the reservations opinion. far- is this case presented by issue

The constitutional jus- of administration implications for the reaching its whether question is country. precise The in this tice objec- State, a over prohibits Fourteenth Amendment in the employing a from television defendant, tion of subsequently or contemporaneously, courtroom televise of a proceedings courtroom videotape, by means is The issue interest. widespread criminal trial asserted petitioner than has narrower this because no resulting presence prejudice any isolatable or from within the courtroom apparatus television the trial broadcasting of subsequent or contemporaneous broader, hand, the is no On other issue proceedings. only with a criminal trial are concerned here for we criminal not with great notoriety, and routine more less nature. Per- fraught with unusual difficulties. question mis- undeniably has

mitting television in the courtroom intruding the detached potentialities upon chievous always judicial atmosphere should surround process. innovation, would Forbidding however, this impinge doubtless one of the attributes upon valued pur federalism preventing pursuing the States from procedural novel course of experimentation. My con- clusion is that requirement there is no constitutional courtroom, television be and, allowed at least a notorious criminal such as this one, the considera- against tions allowing television in the far courtroom so outweigh the countervailing sup- factors advanced its port as require holding what was done in case infringed right to the fundamental a fair trial assured by the Due Process Clause Fourteenth Amendment. All are order: observations preliminary

Some capable worst, that at its sure, I am agree, deprive it of funda- as to distorting process the trial so with the Cables, kleig lights, interviews mental fairness. commentary performances, on their participants, principal wearing special ap- intervals, frequent “commercials” at *58 participants certainly for the trial parel makeup — administra- not conduce the sound things such to But that is any acceptable standard. justice by tion of as we judge not us. We must television the case before the with cam- relatively unobtrusive, in find it this trial — of the courtroom. in a booth at the back contained eras I. a to tele- guarantees right provision constitutional

No guarantee of the Sixth “public trial” vise trials. The which, fundamental the Amendment, concept reflects Oliver, In Country, re justice administration require does television 257, certainly not U. S. Assns. v. to the courtroom. United Press admitted See Essentially, Valente, N. Y. E. 2d 777. N. nature, human public-trial guarantee a view of embodies lawyers, witnesses, and general rule, judges, as a true more functions re- jurors perform respective will their proceedings. sponsibly court than secret open Oliver, objec- A fair trial is the su-pra, In re at 266-273. safeguard for is an institutional “public trial” tive, attaining it. belonging is one right “public trial” not

Thus the belonging accused, to the and inher- but one public, admin- process by justice ing in the institutional guarantee is not public-trial Obviously, istered. public gain cannot if an member of the violated individual no there are avail- admittance to a courtroom because already met, been guarantee will have able seats. per- form “public”, present for will be of those presence actual Even admission. gain did sons who implies public A guaranteed. is not public wish to who to those open must be the court themselves seats, conduct in the available come, sit give not It does process. the trial and observe decorum, broad- record, photograph, right anyone a concomitant to those transmit cast, or otherwise sure, although to be present, not members prohibit of itself public trial does guarantee activity. such First press guarantees speech and

The free embodying also are Fourteenth Amendments asserted argument right trials, but positive to televise has be- Unquestionably, greatly overdrawn. transmitting news. very effective medium come televising might them Many newsworthy, trials are means comprehensive most accurate and well provide Furthermore, the public. content conveying their *59 func- educational of an performing capable television is process judicial the the by acquainting tion policy arguments are credible Albeit these action. arguments of con- they are not television, favor rights print speak, and The to proportions. stitutional embody inde- elsewhere, as do not over television of the right bring mechanical facilities pendent the into the court- broadcasting printing and industries a beyond courthouse, room. Once confines the news-gathering agency may limits, within wide publicize, apd representatives what heard seen in the court- its have door; at and room. But the line drawn the courthouse reporter’s greater no within, rights constitutional are of any public. than those other member of Within the courthouse the relevant constitutional considera- tion accused fair If be accorded a trial. presence of substantially television from that detracts process requires that its goal, due use be forbidden. television exclude that to argument in' the force no I see time same at the while courtroom, apparatus pencils in their bring reporters newspaper permitting press in favor discriminate notebooks, would The distinctions broadcasting services. against press accouterments drawn between to be of size not on differences turn media the television The presence and effect. of function but shape it is distorting effect, but may trials have press were, If it and notebooks. pencils their by not caused physical parapher- such say I would not hesitate be barred. nalia should

II. television on the impact of courtroom probable vary according particular to the may fairness of a trial impact kind of television on a trial case involved. The im- may thing; exciting popular wide interest be one another. pact may quite on a run-of-the-mill case be Furthermore, propriety of closed circuit television recording or for limited use purpose making court markedly obviously presents in educational institutions heavily The Estes trial was a different considerations. put affair. I publicized highly sensational therefore I wish types cases; doing, however, aside all other so I prepared it clear that am no means perfectly to make ultimately turn constitutional issue should say upon particular the nature of the case involved. When presented in a non-notorious trial is the issue can drawn may that no workable distinction appear *60 possibilities or that the type involved, based on of case of con- though severe, for less are nonetheless prejudice, Alabama, Powell proportions. Compare v. stitutional Gideon v. Brady, 455; 316 U. S. 45; 287 U. S. Betts v. fur- Wainwright, 372 The resolution of those U. S. 335. case; an questions appropriate ther should await unplowed by step this only step proceed should Court no far- goes necessarily the Court opinion of The field. who majority members only the four ther, for those would resolve opinion unreservedly the Court’s join now. questions case inquiry constitutional

I not do deem petitioner’s by conceded effect finding, by ended by the was occasioned prejudice no that isolatable counsel, this case.1 employed in was television in which manner a conduct of into the introduces television Courtroom “showmanship,” of professional the element criminal trial serious capacities for whose subtle influence an extraneous not be underestimated will a of this sort mischief in case imponderables in the elusive lawyer experienced any a intense In the context arena. strong certainly possibility a interest, there is appear- whom a court witness, for the timid reluctant harrowing affair, a will at its ance traditional best even he he will reluctant when finds that become more timid or a audience” unknown appearing also be before “hidden certainly strong possi- large but dimensions. There is having bility a thirst “cocky” witness limelight “cocky” will become more under the influ- say ence who who juror of television. And can that the gratified by case, having been chosen for front-line prosecutor, ambitious publicity-minded defense counsel, and even a judge stray, conscientious will not albeit unconsciously, doing naturally” what “comes into pluming a satisfactory themselves for “performance”? judge The trial ordered that was to be there no audio transmis

sion testimony. witnesses, witnesses’ however, pres were September ent hearing at the everything broadcast, when the record does not affirmatively show were aware that microphone during which confronted them the actual trial was being purpose. used for the same

592 grave potential- carry kind of this possibilities

Surely process judicial of integrity distorting the for ities of or innocence guilt on the determination bearing casting doubt particularly, more accused, and, on under carried fact-finding process reliability of and the Trial The Public Douglas, See conditions. such sure, To such be (1960). B. A. J. 840 Press, 46 A.. Free highly ain signs, but no telltale produce may distortions is substam presence of their danger publicized trial pervasive be far more may effects tial, and their which all disruptions physical than the deleterious lively public A a conviction. concede would vitiate viewing audience size of the increase the interest could the trial to whom spectators of immensely, and the masses emotionally with have involved would become telecast pretrial publicity, of through the case dissemination presence case. The concomitant of such the usual emphasize partici- to the trial certainly pants something Particularly “special.” that the case pre- where presented treacherous are cases situations posi- has been massive2 when publicity jurors even tively they state will be see Rideau it; influenced Dowd, Louisiana, v. Irvin S. S. 717. 723; 373 U. v. U. danger possibility To increase and the influence a “popular by subjecting jurors to the verdict” view approach a mass to the has audience whose case been by pretrial conditioned make a publicity can bad situation worse. entire thrust rules evidence protections upon and the other attendant the modern trial is to keep extraneous influences out the courtroom. Louisiana, Turner v. S. As we U. 472-473. re- cently Turner, observed “Mr. Justice Holmes stated no more than a 'Any truism when he judge observed that who has sat juries spite knows that in of forms 2Petitioner pretrial press this case amassed volumes of clippings. environ- by the impregnated likely to extremely are 309, at S. Mangum, 237 U. v. Frank ing atmosphere.’ *62 knowledge The Id., at 472.3 opinion).” (dissenting 349 participants trial other jury of the part on the involved emotionally to televised being are that by atmosphere created the aggravate can audience pretrial publicity. be shown must prejudice argues specific that

The State I not believe do apply. to Process Clause Due the when the impotent is so Amendment that Fourteenth to con- dangers are in instinct question trial practices how I am at a loss understand guarantees. stitutional thought not to encom- can be Fourteenth Amendment dangers pass a state criminal protection of by wholly of collateral and irrelevant created intrusion into The Court has hesi- influences the courtroom. past practices, without tated to condemn such even any showing prejudice. In Turner positive isolatable Louisiana, supra, v. that Term, decided held just we for distortion of trial created “potentialities” by as a key serving jury a witness bailiff to sequestered were sufficient to violate Due Process Clause Denno, Fourteenth Amendment. In Jackson v. 378 U. S. 368, the judgment Court made the that trial judge’s de- termination of likely a coerced-confession issue is more prejudice jury avoid than a determination, judgment which indeed overrode a long-standing contrary state practice. Dowd, And in Irvin v. 366 U. S. we held flamboyant pretrial publicity cast sufficient doubt on the impartiality of the jury vitiate a conviction, even the face of by statements all jurors that they were not subject to its influence. S., See 366 U. 729 (Frankfurter, J., concurring). examples Other 3 The Court had Louisiana, recognize occasion to in Cox v. U. 559, 565, S. “judges even human” are and not immune from outside environmental influences. judgment its has exercised Court which the

instances behavior human another on thing of one the effects S.U. California, v. g., e. See, plentiful. are Griffin Ohio, 367 19; v. Woolls, Mapp 379 U. S. 609; Tancil v. 13,Y. Defore, 242 N. v. People (compare S. 643 U. v. Brown 559; Georgia, 345 U. S. Avery v. 585); E.N. Ohio, 273 483; Tumey v. Education, S. 347 U. Board of S. 510. U. of television presence judgment process danger to the represents a serious

courtroom country, of the Bar of this by segment vast supported Ethics of Judicial as evidenced Canon 35 Canons Association, such counseling against American Bar *63 of the the the Judicial practices,4 views of Conference (infra, 53 of Federal Rules p. 601), United States Rule the “personal and even the views” Procedure, Criminal dissenting side (post, pp. 601-602) of the Justices the present of the case. arguments against advanced the constitutional

banning peculiarly unper- trials seem to televised me It is pictorial broadcasting suasive. said that trials will serve to to the nature educate process. judicial arguments of the Whatever force such might they carry have little cases, run-of-the-mill weight in us, public’s cases of sort before where the in viewing likely engendered interest the trial is to be by more curiosity about well- personality of the the. known figure (as who is the or about here), defendant famous witnesses lawyers who will appear on the tele- screen, vision or about the details of crime particular by curiosity than innate involved, to learn about workings judicial of the process itself. Indeed it would be naive not to suppose largely that it would fac- such tors that would qualify commercial television position The consistent of the American Bar Association is set out Appendix. of case where “billing,” precisely and it is kind coverage of the permitting risks of greatest. are at their wit will

It is asserted that trials cause also televised lawyers truthful, jurors, judges, nesses to be more diligent. say argument sophistic, more least To reliability of a trial impossible for it is to believe that the or in finding determining guilt as a facts and method of crowd which nocence in relation to the increases size watching by spectators it. interested Attendance fully satisfy safeguards “public the courtroom will trial.” openness assured, Once is thus the addition say, I detract spectators would, masses venture reliability process. rather than See add Louisiana, Cox v. S. 562. A trial in Yankee U. if Stadium, stony silence, even the crowd sat would be a from a in a substantially different affair tradi tional courtroom and the conditions, under traditional I not, think, witnesses, difference would be that lawyers, jurors in the stadium would be more judges, truthful, diligent, capable reliably finding facts and determining guilt or innocence.5 There will be no disa I am greement, sure, among those competent judge precisely the opposite likely be the case.

Finally, making we should not be deterred from judgment constitutional which this case demands *64 prospect that day may the come when television will have become so commonplace daily an affair in the of the life average person dissipate as all reasonable likelihood may use in disparage judicial proc- its courtrooms the ess. If day and when that arrives the constitutional may, course, impact upon There of be a difference in the atmos phere participants physical presence and trial between the of masses people presence of permits and the of a camera lens which masses of people process remotely. However, observe the the critical element knowledge participants they the subject are to such observation, visual is, course, present an element which of in this case. subject of course called for now judgment work- with the traditional in accordance re-examination juncture At present Due the the Process Clause. ings of in cases at least trials, that televised only conclude I can with interfering capabilities for one, possess such like this are con- process of judicial course the even the I concur the premises these stitutionally On banned. of the Court. opinion OF MR. JUSTICE

APPENDIX TO OPINION HARLAN, CONCURRING. length development 35 out at of Canon set Association, Bar amicus curiae brief of the American

pp. follows: 3-8, September originally

“It adopted [Canon 35] Delegates1 following House of form:

“ with in court conducted ‘Proceedings should be fitting taking photo- and decorum. The dignity graphs room, during of the court court sessions broadcasting sessions, recesses between and the court are calculated to detract degrade essential court dignity proceedings, with misconceptions respect and create thereto in permitted.’ not be mind should Rep. B. A. 62 A. (1937). 113^35 Cooperation “A Special Press, Committee on Between Fair Trial Bar, Publicity Interfering Radio as to with Quasi-Judicial reported had Proceedings of Judicial and dangers concern with attend- grave Association its trials, par- the use radio in connection upon ant body governing Delegates is not "The House presence representatives Association; Bar because of the American Associations, largest important local Bar of all State and most associations, important professional groups, bar of other national broadly representative policy profession for the it is fact a forum as a whole.”

597 broad- and publicity light spectacular of the ticularly The Committee Hauptmann.2 trial of Bruno cast 62 air’.3 of 'trial in the referred to the evil specifically Rep. (1937). A. B. A. 860 direct 35, adoption of Judicial Canon

“After the disapproved was broadcasting proceedings of court radio Ethics and on Professional by the Association’s Committee 1941, as 212, 15, March Opinion Grievances its No. quoted The being specifically Committee condemned. Michigan approval following statement and Bar Detroit Associations:

“ and 'Such are unfair defendant broadcasts to the The natural embarrassment witnesses. not be increased confusion of citizen on trial should are and his difficulties by realization his voice for radio audi- being used as a vast entertainment when expressed by persons most ence. fear com- facing microphone is a matter of audience or or witnesses mon and but few defendants knowledge, testify fully on properly can concentrate facts fairly handicapped.... when Such broadcasts so permitted who should be Judge, are unfair case, his attention to unmindful devote undivided may of the effect which his comments or decision 412, (Ct. Err. Hauptmann, State “See v. 115 N.J.L. 180 Atl. 809 denied, (1935).” App.), cert. & S. 649 U. adoption impropriety of 35, “Prior to the of Judicial Canon recognized permitting radio of court broadcasts the Committee on Ethics and Professional Grievances Opinion 21, in its Association No. March 1932. The Committee provides judge had recourse to 34 which that a Judicial Canon purpose advancing his should not administer 'for the his office personal increasing popularity.’ or ambitions his The Committee broadcasting changes found that radio 'what should be of a enterprise the most serious human institutions either into an publicity promoting entertainment of of one for op Opinions judge.’ for the Association, American Bar (1957).” Committee Ethics Professional Grievances *66 598 Bar American audience.’ radio the upon

have Opinions Pro- on the Committee Association, (1957). 426 Grievances and Ethics fessional aas of television prominence growing the "In a re- with was dealt communication of mass medium and Broad- Televising Committee Special of the port by Proceedings [headed and Judicial Legislative casting Rep. (1952). 607 B. A. Davis], A. John W. the late proceed- televising judicial practice of condemning the In that: fact to the attention called ings, the Committee “ lawyers court, jury, attention ‘The trial itself upon concentrated be should witnesses or divided with ought not have part the most who for audience broadcast proceedings. curiosity interest merely the participants all that to conceive It is not difficult their impression over-concerned may become on the absent testimony will make rulings or actions, Id. at 610. multitude.’ of this and the recommendation report, “As result Grievances, Judi- Ethics and Committee on Professional inserting a ban on cial Canon 35 was amended inserting descrip- ‘televising’ of court testimony’ his phrase giving tive ‘distract the witness In phrase ‘degrade addition, before the court.’ televising paragraph providing second was for the added broadcasting Id. proceedings. of certain ceremonial at 110-11.

“In October, 1954, the Board of Governors authorized appointment of a Special Bar-Media Conference Com- mittee on Fair representa- Trial-Free Press to meet with tives of the press, radio, and television. The views both sides thoroughly explored were and were presented in detail in September, 1956 issue the American Bar Association Journal.4 joint debate, After extensive

4 “42 834, 838, (1956).” A.B.A.J. A.B.A. reached. were agreements or solutions no report did The Committee Rep. (1958). 790-91 convinced “ or both broadcasting photographing ‘courtroom upon duties police impose undue photo- and the broadcasting . . . judge [J adverse might have courtroom graphing judges, participants, upon effect psychological *67 . . . juries[,] and [and] witnesses lawyers, television, trials, particularly on of broadcasts partial might in turn opinion which might influence .’ Id. . . at 645. results. influence Confer- presentation of the Bar-Media “Following con- with the and in connection report ference Committee Special report of a and recommendation of sideration Bar created Committee of American Foundation Rep. (83 (1958)), A. A. 643-45 the House July, 1955 B. Delegates hearing as a conducted ‘Committee during February, pro- Whole’ its 1958 session at ponents opponents fully and of Judicial Canon 35 were Rep. heard. 83 A. B. (1958). Thereafter, A. 648-69 August, 1958 meeting Delegates, House of was decided to a Special have 35 study Committee Canon and

“ ‘conduct further studies of the problem, including the obtaining body of a of reliable factual data on the experience of judges lawyers and in those courts where either photography, televising or broadcasting, or all of them, permitted. are . . . The fundamental objective of the Committee and of all others inter- ested must be to consider and make recommenda- tions which will preserve right of fair trial.’ Rep. A. B. A. (1958). Special

“The Committee filed an Interim Report and Recommendations with the House of Delegates in August, survey itsof Perspective’ and ‘Area setting forth testimony portions included report The

and studies. Chi- held in hearing aat taken representatives media by summary of as a as well February 18, cago on representa- with certain conference informal Committee’s report addition, In Texas. and Colorado tives Asso- Bar of State officers comments written included certain and survey, a Committee responding ciations re- by the Committee received correspondence general signifi- also listed report Canon 35. garding Judicial or retention revision favoring either publications cant Rep.] Int. . . cited . the Canon. [Hereinafter final its thereafter submitted Special “The Committee sub- concluding that recommendations, report 35 remain valid Canon Judicial provisions stantive safeguards of the indi- as essential ‘should be retained . .. The right of fair trial.’ personal vidual’s inviolate . . minor . recommend certain deletions did Committee adopted by the House changes . . . which were debate, February 5, 1963: Delegates, after full “ dur- taking photographs room, ‘The the court *68 ing sessions, or sessions of the court recesses between televising and broadcasting proceed- or of court ings detract from the essential calculated [are to] dignity proceedings, participants distract [the] giving testimony, [degrade and witnesses in [his] and misconceptions respect create with court] in mind thereto of the not be public should permitted.’5 amended, “The full text of Judicial Canon is as follows:

“'IMPROPER PUBLICIZING OF COURT PROCEEDINGS “ ‘Proceedings fitting dignity in court should be conducted with taking photographs decorum. The room, during in the court sessions the court or sessions, recesses between and the broadcast ing or televising dig court detract from the essential nity proceedings, of the participants giving distract witnesses voluntarily adopted have of the states majority “A vast has been and it another, form or one Canon Judicial Rules of the Federal in Rule 53 in principle embodied of the Judi- Resolution In a recent Procedure. Criminal philosophy States, cial of the United Conference unanimously Canon reaffirmed: “ of the That Conference 'Resolved, Judicial taking photographs United States condemns in connection with the courtroom or its environs broadcasting of any judicial proceeding, and the other judicial proceedings by radio, television, or means, practices and considers such inconsist- ent fair judicial procedure they ought with and that permitted any Rep. to be federal coürt.’ Int. p. 97.”

(Footnotes partially omitted.) numbered and Stewart, Justice whom Justice Black,

Mr. Mr. Brennan, Justice and Mr. join, Justice White Mr. dissenting.

I agree cannot with the Court’s decision that the cir- cumstances of led to a petitioner’s denial of Fourteenth rights. Amendment I think the intro- duction of television into a courtroom is, at least in the present state of art, an extremely policy. unwise It many invites constitutional risks, detracts dignity inherent of a courtroom. But I am unable personal escalate this view into a per se constitutional testimony, misconceptions respect and create thereto in the mind permitted. and should not be “ ‘Provided apply this restriction shall not to the broadcast- ing televising, supervision portions under the court, of such *69 (other of naturalization interrogation than appli- the of cants) designed as are exclusively and ceremony carried out as a purpose the publicly of demonstrating impressive in an manner the ” dignity essential and the serious nature of naturalization.’ of specific record to on the find, And unable rule. I am limited the attending the circumstances case, in denial resulted the televising petitioner’s of the trial States by him United right any guaranteed of Constitution. went to trial 1962, petitioner

On October Texas, County, District Court of Smith Seventh Judicial him with offenses charging upon indictment (3) theft pretenses, false and (1) (2) theft swindling, selecting spent jury, a week by a bailee. After days. At its con- three a half trial itself some and lasted offense guilty of the petitioner found jury clusion of the indictment. the first count swindling under proceed- of the trial judge permitted portions The described below. ings televised, under the limitations permission to still gave photographers He also take news specified conditions. pictures courtroom under peti- Appeals of Criminal affirmed The Texas Court we limited to conviction, granted certiorari, tioner’s question, phrased by The single question. petitioner, is this: peti- action over court,

“Whether the of the him objection, process tioner’s continued denied due law protection laws under equal Fourteenth Amendment to the Constitution States, requiring petitioner to submit United in refusing adopt live of his trial, pro- as a rule publicity case, this all out of trial cedure, 35 of Ethics Canon the Canons Judicial Association, adopt- Bar and instead American over ing following, objection, Canon defendant’s Ethics, approved 28 of since the Canons Judicial integrated (State by the Section of the Judicial Bar of agency) Texas.” State two of Judicial Ethics to in the Canons referred petitioner’s presented statement are set question *70 rightly says, margin.1 But, as the Court out in the the con- choosing one of between problem before us is not of flicting guidelines reflected in these Canons Judicial Process problem Ethics. It is a rooted in the Due Clause of mat- the Fourteenth Amendment. deal here with We subject change ters continuous and unforeseeable —the 1 Canons of Bar Association: Judicial Judicial Ethics. American Improper publicizing proceedings. Canon 35. of Court “Proceedings fitting dignity in and court should be conducted with taking photographs room, during decorum. The of in the court sessions, sessions of the court or recesses between and broad- casting televising proceedings or of court essential detract dignity giv- proceedings, participants distract and witnesses ing testimony, misconceptions respect and create with thereto public permitted. mind of the and should not be apply broadcasting “Provided that this restriction shall to the televising, supervision portions or court, under the of of such (other proceedings interrogation appli- naturalization than the cants) designed exclusively ceremony as are out carried as a purpose publicly demonstrating impressive in an manner the dignity essential and the serious nature of naturalization.” Ethics, Integrated Canons of Judicial State Bar of Texas: Judicial Improper Publicizing Proceedings. Canon 28. of Court “Proceedings dignity fitting in court be should conducted with taking photographs room, during decorum. The in the court sessions, sessions of the court or recesses between and the broadcast- ing televising properly supervised or of court unless controlled, may dignity proceedings, detract from the essential participants giving testimony, distract and witnesses in create misconceptions respect public. thereto the mind of the The supervision coverage and control of such shall be left to judge power coverage who has the inherent or control exclude proper justice. case in the interest of following

“In coverage connection with the control of such principles adopted: declaration of “(1) There should be no use flash bulbs or other artificial lighting.

“(2) witness, expressed objection, photo- No over his be should graphed, his voice broadcast or be televised.

“(3) representatives permission of news media must obtain judge by photograph, broadcasting the trial to cover televising, In an area where communication. techniques I tomorrow, may modified cannot all the variables hypothetical possibil- my this time rest determination no case. There is of this present the record ities not First guaranteed any right upon claim here based *71 we to remember important But it is Amendment. communica- of touching the realm free move in an area wary other, for I would be if no reason, for tion, which, light of future any se rule imposing per abridge First to stifle or true might serve technology, rights. Amendment

I. by grand jury a originally was returned indictment engendered widespread and it County, Texas, in Reeves there, the proceedings publicity. preliminary After some County, to more than for trial case was transferred Smith 24, September for The trial was set away. 500 miles Instead, on that date. 1962, not commence but did hearings on two day spent and the were next a to bar tele- by motions filed defense counsel: motion to a motion trial, vision cameras from the and news Those were the trial to a later date. continue were photographers telecast and news “live,” themselves permitted to courtroom. The activ- pictures take photographers led ities of television crews and news At disruption to the con- hearings.2 considerable comply prescribed by judge for the exercise shall with the rules privilege. "(4) Any punished shall be violation the Court's Rules contempt.

“(5) judge coverage regulated has to or has Where refused allow it, any attempt, representatives argument by other than of the news directly Court, pressure any bring media with on the kind judge, pending disposition trial, punished final of the cause shall be contempt.” as a 2 contemporary newspaper A account described the scene as follows: “A van, big bus, parked television motor as an intercontinental was outside the courthouse and the second-floor courtroom was a forest continuance hearings the motion elusion 22. The on October reset for trial granted, and the case from photographers news television and motion bar the trial was denied.3 up set equipment. had been inside Two television cameras just aligned outside four were

bar and more marked cameras gates. jury box, microphone inside the now

“A stuck its 12-inch snout reporters press table, occupied and three an overflow of from the microphones Judge Dunagan bench. on his [C]ables confronted Times, September York wires snaked over the floor.” The New 1962, p. 46, col. 4. ruling motion, judge In on the the trial stated: policy permit tele- past,

“In the of this Court it has been supervision vising in of the Court. the court room under the rules and Heretofore, any difficulty I I was it. have not encountered attorneys any witnesses unable observe detraction from the course, grow up television, in those have watched We cases. *72 infancy So maturity; it is a news media. its and now into its and permitted really any why I not justified it should do not see reason family However, proper to it will be under take its seat in the circle. pro supervision there has been and the strict of the Court. I know say that it televising con about in court I have heard some the room. privilege yesterday makes a out of the Court. I had the circus morning by sitting my viewing the First in home and a sermon Baptist certainly any in Church it wasn’t circus over Dallas and church; proper that if it in the house and I feel that is a instrument room, Lord, place properly of the not out of court if it is in the supervised.

“Now, going televising the is here. television is to be whatever scene they you you televise, game If want to watch a ball and that is what going you preacher game. are to If hear see a ball want to see and sermon, you you get. going tune in on that and what are to that is televised, permits room, If the Court a circus in it will be this court true, they creating that is but will not be a circus.

“Now, important point the inter- most whether or not it would is impartial fere with a the fair and trial of this Defendant. That is important point, primary purpose, most and that is or will be the the purpose Court, gets fair to insure that he that trial. anything “There is not the Court can do about the in this interest case, your your I here; but can control activities and conduct delineating an order issued judge the trial October

On aAs during trial.4 permit he coverage what would ensuing between conferences of that order and result media, envi- news judge representatives 22, was began on October trial, which ronment hearings. The September contrast to that of sharp photography of television and news actual extent you going be turned into I that can assure now this Court is necessary for the is action circus with TV or without it. Whatever it. that, will take Court to take to insure the Court given the Court has has one “There been consideration hundreds of room and there will be a small court is I trying get to witness this trial. people into this court room they stay if at home and less we would have confusion believe trial. all of those room look in on the With stay of the court out room, push trying this court people crowd in and into given I have it.” another consideration 4 my 24, 1962, admitting September television and “In statement of Estes, during of Billie Sol the court room the trial other cameras in I under control and direction cameras would be allowed said rights legal long so did not violate the Court or of Texas. Defendant the State September my 24, 1962, I am line with at this “In statement informing broadcasting television and radio that live or time both by permitted telecasting news will not be either media cannot and .jurors qualifications, during interrogation testing their testimony given witnesses, do so would be viola- as to Texas, tion of Art. 644 of the of Criminal Procedure of Code provides request party, ‘At as follows: of either the witnesses *73 may placed custody on both sides be sworn in the of an officer and they place and removed out of the court room to some where can not testimony by any hear the other in the as delivered witness case. placing is termed This witnesses under rule.’ “. . . and local television station will network [E]ach be one camera allowed film without sound in the court room and the pool film will be made available to other television stations basis. manager Pengra, KLTV, Tyler, Marshall of Television Station will be charge independent may in pool independent of the and stations had after judge, by described was courtroom exceptions. bill petitioner’s certifying ended, understanding by my confirmed description This by defense accepted and agreed record and entire counsel: awas there 1962, trial of October to the

“Prior court- in the rear placed constructed booth color the same or near the same painted room for top across the opening awith small courtroom .... cameras the use of not were broadcasting and radio telecasting

“Live film with- was on telecasting and the permitted broadcasting of any not there was sound, out NBC, ABC, network, Each permitted. radio Tyler was Television and KRLD CBS [KLTV] The .... courtroom a camera allowed a continuous film this case was not telecasting on being taken only pictures operation camera regular on their day to used during the intervals days day. were some later in the There news casts only one or two cameras of trial that the during the being not the others operation, stations were every day. each and upon the attendance Court other than permit any cameras The Court did lights nor were flood those that were noiseless in the courtroom. flash bulbs allowed to be used permitted photographer one news Court press, contact him. The same will be true of cameras for the press, will be limited to the local Associated Press and United Press. making “I news am this statement at this time in order that the two may media affected have sufficient notice before the case is called 22nd. on October concerning

“The I have set of cameras rules forth above the use change subject are if I find that are too restrictive or not workable, any reason.” *74 and International Press United Press,

Associated How- Times. Courier and Telegraph Morning Tyler Bar; and inside permitted not they were ever, photo- or telecasting any permit not did Court the courtroom into leading hallways graphing where courthouse floor second on the or Defendant order situated, courtroom molested hindered, not would attorneys his courtroom. leaving the or approaching harassed or argu- telecasting of live permit did The Court returning and the counsel of State’s ments by the Court. acceptance Jury and its by verdict Attorney the District argument of opening The and because by sound County was carried Smith any picture. not was difficulty, there transmission District argument for the State closing by both Attorney County was carried live of Reeves attorneys picture arguments sound. The Cofer, and Hume were Defendant, John D. Cofer not granted telecast or broadcast as the Court their Motion permitted. that same not be any

“There was not televising any during time except the trial from the booth in the rear of the courtroom, during argument of counsel to jury, news photography required operate from the booth they so that not interfere detract from the attention of jurors either the or the attorneys.

“During the trial began 22nd, October there any was never at any broadcasting time radio equip- ment in the courtroom. There equipment was some in a room off of the courtroom where there were periodic reports given; throughout news the trial began any October 22nd, requested witness not to be televised or photographed while were testifying. any being Neither did while inter- juror, *75 any make time, any other or at on voir dire rogated televised.” not to be Court of the request prosecu- the for closing arguments except for the Thus, was no there verdict, jury’s of the the return tion and of purposes even for And, trial. telecasting the “live” or no words programs, later news delayed telecasting the while to be recorded permitted were other sounds any or while being selected the were jury members no were jurors and testifying. No witnesses was witness objection.5 over their photographed televised and saw no telecasts jury members the Finally, the In the trial. anything during that went on pictures no day sequestered, the were law, jurors accord with Texas beginning of the trial until ended.6 night, and from the provided for lodged night quarters each jurors The were evening the courthouse itself. On the purpose permis- 6, agreement special counsel and November court, jury permitted sion of the the members of were a short the election returns on television for watch period. television was purpose portable For a brought officer, quarters by into court jury’s operated by jurors per- him. were not Otherwise the any during mitted to watch television at time the trial. only newspapers permitted jury were ones from which all of the coverage physically trial had been removed.

II. It important precise to bear mind the limits of the question before petition us in this case. The for writ of certiorari asked us four separate to review constitu- tional claims. declined to review of them, We three among which was claim that the of the jury members “had through received damaging prej- the news media prosecution nine There were witnesses for no witnesses for the defense. 668, 745, Arts. Tex. Code Crim. Proc. left undisturbed

udicial evidence . We thus Appeals determination of Texas Court Criminal by jury prejudiced that the members were trial. widespread publicity preceded petitioner’s ingredient pretrial publicity One of this telecast confusion September hearings. Despite the during juror courtroom all hearings, potential those watching could on tele- possibly have learned them petitioner’s vision was that case had been called trial, upon and that motions had been made and acted for a continuance, and to exclude cameras and television. hearings, At those there was no discussion whatever of *76 bearing anything petitioner’s guilt on the or innocence. by petitioner’s This was conceded counsel at the trial.8 petitioner’s Because of our to review the claim refusal pretrial publicity prejudicial upon a had effect jurors in insofar case, because, September this and as the an hearings publicity, were element of that claim is patently merit, simply without issue is not here. Louisiana, Our decision in 373 Rideau v. U. S. there- fore, bearing has no at all in case. There the record showed parish that the inhabitants of small Louisiana had repeatedly exposed where the trial held been to a showing “Rideau, television film in jail, flanked troopers, admitting sheriff and two state in detail the com- robbery, kidnapping, mission of the and murder, re- sponse leading questions by S., to the sheriff.” 373 U.

7 Certiorari, Question 3, p. Petition for Writ of 3. petitioner] pub Cofer, “A. Hume for .... counsel [Mr. licity given that was this trial on the last occasion and the number here, spread of cameras I think was to the news of this sufficient my throughout county, every juror; case available it is opinion many occasion, that on were so cameras and so there every paraphernalia gave opportunity much here that prospective juror County to know about this case. Smith

“Q. Not about the facts of the case? No, sir; any

“A. facts, nor not about evidence.” subsequent proceed- court “[a]ny 725. found that at We spec- a to such exposed community pervasively a so ings in Id., at 726. See formality.” a hollow could be but tacle Dowd, 366 S. 717. also Irvin v. U. contemporary than a no more case was

The Rideau due enduring principles procedural application Moore cases in such earlier process, principles reflected S. 297 U. 86; Mississippi, Brown v. Dempsey, v. 261 U. S. 227, 235-241. Florida, 309 U. S. v. 278; Chambers we process,” guarantee due our Constitution’s “Under committing a crime vouch- person “a said, accused right Among are the rights. minimal these basic safed right not right plead guilty, counsel, aby judge.” over presided in a courtroom be tried the same apply at had 726-727. We occasion to S.,U. Term earlier this procedural process due concepts basic Louisiana, 466. “In the constitu- in Turner U. S. v. necessarily case in a criminal sense, by jury tional developed’ very the 'evidence least that implies at stand come from the witness against defendant shall protection full judicial courtroom where there is of cross-exami- right confrontation, of the defendant’s nation, S., of counsel.” 379 472-473. U. mob

But here with domination we do deal *77 a kangaroo trial, prejudiced judge with a courtroom, jury grant inflamed with bias. the limited Under case, certiorari in this the sole before us is question entirely It only regulated different one. concerns presence of television and still at the trial photography itself, began Any discussion October 1962. pretrial events can do no more than obscure important question actually which is us. before

III. It is obvious that the introduction of television and news cameras into a many criminal trial invites serious constitutional The very presence hazards. of photog- ain trade their plying cameramen television

raphers disrup- thoroughly completely so might be courtroom impossible. fair trial make a as to distracting tive and had been hearing September if the scene Thus, it is dif- trial, jury during courtroom in the repeated constitutional in the a fair trial how to conceive ficult And even the defendant.9 afforded have been sense could so con- are cameras here, the television as was true if, hardly perceptible as be concealed trolled and of constitutional dimen- are risks itself, there courtroom court televising very process lurk in the sions proceedings at all. curiae in the amicus catalogued of those risks are

Some Bar American Association: brief filed in this case “ in the absence of enforceable jurors, otential or actual [P] miscon- may arrive at certain safeguards, and effective by viewing ceptions regarding the defendant and his hearings motions from which pre-trial televised inadmis- jury ordinarily Evidence otherwise excluded. the trial may sible leave an indelible mark. . . . Once nightly por- of selected begins, exposure to rebroadcasts guard day’s proceedings tions of the will be difficult the tele- against, jurors spend frequent evenings before witnessing repeated vision impact set. The obvious trial episodes hearing accompanying commentary, episodes and not admittedly chosen for their news value evidentiary purposes, can serve to distort jurors’ perspective. Despite injunction . . . court’s case, not to discuss the it seems undeniable that jurors television-watching will subject pressure to the ... It family, and, indeed, strangers. friends imagine being too much to confronted with his juror Additionally, . viewpoint. wife’s television-oriented . . jurors’ daily appearances may make them recognizable likely stopped by passing to be celebrities,

9See note 2. *78 intruding telephone harried perhaps strangers, or kind another problems Constitutional . . .” calls. being subjected were juror or aif witness arise might objection. his televised over none however, is matter, the fact of

The plain happened have or could things happened these seeing from prevented were themselves jurors case. The from insulated completely trial, of the any telecasts see who did the any members of association remotely therefore, does case, This such telecasts. during where, Louisiana, 379 U. S. Turner v. resemble courtroom were outside jurors subjected trial, by key influences to unmeasured and unmeasurable prosecution. for the witnesses show that nothing In itself, the courtroom there have any way other than it would proceeded present. proceeded if not been cameras television had In unaltered. appearance, practically the courtroom was There no distraction, was no obtrusiveness no noise anywhere special lighting. and no There no indication judicial any record disturbance whatever proceedings. is no claim that conduct of the There any or or of wit- judge, counsel, any or that deed word ness, any juror, any way by or of was influenced presence photographers or by television.

Furthermore, crystal a it is reading of the record clear that this was not a trial was harassed judge where or lacking confused command before jury. once, Not after first witness called, was there any at all interruption proper ruling secure concerning presence of cameramen in the courtroom. There was no occasion, during the entire after the jury adjourned trial —until to reach its any verdict —for cautionary word to press members in the courtroom. The only time was made, motion the jury was not in the courtroom. The trial itself was *79 com- and lacking in the lurid totally affair, mundane most the solely to related The evidence emotionless. pletely had been documents in which various circumstances if not technical, highly It negotiated. and signed witnesses, no called petitioner The downright dull. argument closing a brief made petitioner counsel the issues indicate that nothing jury. the There sway. hold kind where emotion could were of the involved frequent notion any the trial belies that transcript rulings interruptions and inconsistent communicated any the was unable to concen- jury judge the sense that the trial protecting conducting trate on the defendant in a fair Federal manner, in accordance with the State and Constitutions.

IV. therefore, ultimately emerges What record, from this bald question is one Amend- the Fourteenth —whether prohibits ment of the all States Constitution tele- United vision cameras from a state a crimi- courtroom whenever nal trial is in In progress. light this record what we now about on a impact know criminal I trial, prohibition can find no such in the Four- any provision teenth Amendment or Con- other deprive stitution. If what occurred petitioner did right of his trial, constitutional to a fair the fact then that proceeding could view the on television significance. has no constitutional The Constitution does not make image us arbiters of the state televised criminal trial projects public. to the no First made case,

While Amendment claim is in this are intimations in' the opinions my there filed Brethren majority disturbingly strike me as alien guarantees against the First and Fourteenth Amendments’ federal or state interference free communication suggestion information and ideas. The there are limits on in upon public’s right goes to know what of imposing The idea deep concern. causes me the courts justi- burden of upon any medium of communications always I had contrary to where its fying presence area First lie in must thought presumption Randall, S. v. 357 U. Speiser See Amendment freedoms. nonparticipants proposition And 513, 525. from unfettered “wrong get impression” might a trial cen- invitation to commentary contains an reporting *80 no dis- there is accept. I cannot Where sorship which and fair of the requirement the “essential ruption of of discus- orderly justice,” administration “[f]reedom v. range.” Pennekamp given widest should be sion California, 314 Florida, Bridges 347; S. v. 331, U. Louisiana, 563. S. 252. Cf. Cox v. U. U. S. to the State the Constitution denies I do not think that crim- to conduct all discretion judges or to individual how no matter present, cameras inal trials with television say I at this may be. cannot the cameras unobtrusive a constitutional impossible to have time that or re- is televised any part whenever hold film. I cannot now corded on television absolutely television cameras Constitution bars impact every courtroom, criminal even if have no no upon upon any witness, no effect influence jury, upon judge. conduct of the For I affirm judgment. these reasons would White, with Justice whom Justice Brennan Mr. Mr. joins, dissenting. agree finding

I Mr. a with Justice Stewart erecting a prejudice constitutional on this record entails flat ban be- use of cameras the courtroom and lieve premature promulgate that it is a con- such broad stitutional principle present This the first time. case in dealing this Court subject

CO CO T—i analo- dealing with our cases trials; of criminal coverage v. Loui- cf. Rideau controlling, really are not gous subjects very is, whole, on the there siana, 723; S. 373 U. country with televi- in this experience amount of limited currently availa- my view, the In trials. coverage of sion court- in the of cameras effect assessing the materials ble to constitute fragmentary sparse too room are barring permanently judgment for a constitutional basis coverage. said As was of television all forms any im- actual little context, “we know too another bones on the bare a conclusion reach pact ... Co. v. United Motor White us.” . before . . evidence however, that may be, It well States, 253, 261. S.U. become judgment do and informed experience as further courtroom, of cameras available, the use ato defend- hazard pose such serious trial, prove will Amendment of the Fourteenth rights that a violation ant’s specific showing on the record found without will be Compare to the defendant. prejudice demonstrable Wolf Ohio, Colorado, S. 25, with v. 367 U. Mapp v. 338 U. S. *81 Wain- Brady, 455, S. with Gideon v. 643; Betts v. 316 U. York, 156, New 346 S. wright, 335; S. Stein v. U. U. Denno, 368, Jackson v. 378 U. S. 389-390. of further opinion precludes The the Court effect intelligent probable for opportunity assessment imposed by hazards the use of cameras at criminal trials. Serious rights threats to constitutional in some instances justify prophylactic dispensing necessity rule with the showing specific prejudice particular case. Rideau Louisiana, Denno, v. 723, 727; U. S. Jackson v. U. S. 389. But these are instances which there has been ample experience on which to an base informed judgment. although experience our Here, inadequate and our judgment correspondingly infirm, Court dis- courages meaningful further study of the use of television at criminal trials. I Accordingly, dissent.

Mr. Brennan. Justice five only four of the merely emphasize

I write proposition rest on voting Justices to reverse what- constitutionally infirm, televised criminal trials are opinion announced Although ever circumstances. “opinion of be an my purports to Brother Clark to a significantly Court,” my subscribes Brother Harlan sweeping He states: proposition. less highly heavily publicized was a

“The Estes I aside all other put affair. sensational therefore of those further types cases .... The resolution case; await questions appropriate should un- by step in this proceed only step Court should necessarily Court plowed opinion field. goes members farther, no four unreservedly join opinion the Court’s majority who Ante, 590- questions pp. those now.” resolve (Emphasis supplied.) 591.

Thus today’s decision blanket constitutional trials. prohibition against the of state criminal televising I my the dissents of Brothers Stewart join While I understanding so on their use do White, expressions opinion or “the opinion” “the Court’s only to of our four Brethren the Court” refers those views my explicitly Brother states he shares. Harlan