Does the First Amendment's "Right of Access" Require Court Proceedings to be Televised? A Constitutional and Practical Discussion

Abstract

The frenzy of political activity seen in 2005 triggered the resurgence of a familiar topic in the national legislature - televised court proceedings. Renewed interest may have come as a result of the recent Supreme Court nominations and related hearings, or it may have been because the opportunity seemed ripe for long-standing advocates to push the topic to the forefront once again. Regardless of the reason, the evidence is undeniable: the end of 2005 saw a flurry of bills introduced - three in the House' and two in the Senate—that would allow televised court proceedings in the federal court system, and both Chief Justice John Roberts and Justice Samuel Alito were asked about televised proceedings at least once during their confirmation hearings. This interest has clearly held into 2006, as the questioning of Justice Alito and the still-active bills demonstrate.

The changing composition of the Court and the continued debate have provided a fertile ground for discussion and reflection on the role the modem media plays in our system of justice. These events have provided a springboard for the dialogue that follows. The goal of this article is to provide a comprehensive overview of the current status of electronic media in both state and federal (and trial and appellate) courtrooms, and to consider the implications of various "access" programs around the nation. This article also aims to provide a thorough discussion of the pros and cons of broadcasted proceedings. In doing so, this article will include the precedential, pragmatic, and constitutional arguments promulgated by both sides of the debate. Finally, this article will look to current views in the Court, in the legislature, and within the judicial conference'0 in predicting the likelihood of change in courts' current practices.