Donald Trump’s fourth indictment out of Georgia distinguishes itself from the federal felony indictments in certain ways: its scope is broader, with 19 people indicted. Trump can’t just pardon himself if he’s reelected.
And, the subsequent trial will likely be televised.
Georgia has relatively lax courtroom rules around media, allowing cameras and recording in criminal trials in all but the most extreme situations (common exceptions include cases involving sexual assault victims or minors).
If the Georgia trial is ultimately televised, we can expect wall-to-wall coverage, a colossal media event.
“It would surpass O.J. as the most watched television event like this,” Eric Segall, who specializes in federal courts and constitutional law at Georgia State University’s law school, told TPM, referring to the famous O.J. Simpson murder trial of 1995.
It would be a milestone in the lengthy, fraught history of cameras in the courtroom.
The Lindbergh Baby and a Splashy Murder Trial
Back in 1935, conditions were perfect for a media frenzy. Bruno Hauptmann, accused of kidnapping and killing aviators Charles Lindbergh and Anne Morrow Lindbergh’s son, was headed to trial.
About 700 members of the media attended, reportedly scrambling onto tables to get better pictures, blinding witnesses with their flashbulbs.
After he was convicted, Hauptmann appealed, arguing that the conditions inside the courtroom were one of the factors that robbed him of a fair trial. His appeal was unsuccessful, but it seeped into the bloodstream of the legal world. There was a widespread sense that Hauptmann had lost in the courts of the media and public opinion before his trial even began.
Consequently, in 1937, the American Bar Association added Canon 35 to its Canons of Judicial Ethics, forbidding photographic and broadcast coverage of trials. In 1946, on the federal level, photographing and broadcasting criminal proceedings were banned under the newly amended Federal Rules of Criminal Procedure.
Most states adopted the ABA Canon and banned televised trials. Texas did not.
In 1963, Billie Sol Estes went to trial in Texas state court on charges of elaborate financial fraud. He also claimed to have extensive connections to major Democrats, including Lyndon B. Johnson.
The trial judge allowed television and photographic coverage of his pretrial hearing and limited live coverage of the trial itself.
When Estes was convicted, he argued on appeal that the presence of cameras in the courtroom made it impossible for him to get a fair trial. A 5-4 Supreme Court majority ultimately sided with Estes in 1965, overturning his conviction.
“Television, in its present state and by its very nature, reaches into a variety of areas in which it may cause prejudice to an accused,” Justice Tom Clark wrote. “Still one cannot put his finger on its specific mischief and prove with particularity wherein he was prejudiced.”
Around the same time, Dr. Samuel H. Sheppard’s trial over the accused bludgeoning murder of his pregnant wife became a media sensation. The Cleveland press ran rampant with the story in and out of the courtroom. In 1966, by an 8-1 margin, the Supreme Court found that he did not receive a fair trial due to the media’s presence and behavior.
Clark again wrote for the majority, frequently citing the Estes decision the Court had handed down “only last term.”
“Unlike Estes, Sheppard was not granted a change of venue to a locale away from where the publicity originated; nor was his jury sequestered,” Clark wrote. “The Estes jury saw none of the television broadcasts from the courtroom. On the contrary, the Sheppard jurors were subjected to newspaper, radio, and television coverage of the trial while not taking part in the proceedings.”
“The press coverage of the Estes trial was not nearly as massive and pervasive as the attention given by the Cleveland newspapers and broadcasting stations to Sheppard’s prosecution,” he wrote, adding later: “As we stressed in Estes, the presence of the press at judicial proceedings must be limited when it is apparent that the accused might otherwise be prejudiced or disadvantaged.”
Both cases were massive setbacks for those advocating for transparent courtrooms.
A Major Decision and a White Bronco
The next red-letter case in the fight over televised trials came in 1977, when Miami police officers Noel Chandler and Robert Granger were charged with robbing a restaurant. The Florida Supreme Court had approved a pilot program that allowed for all trials in the state to be televised, as long as it didn’t infringe on the rights of the person accused.
After their conviction, the two argued that the cameras had robbed them of a fair trial, and sought to have Florida’s pilot program declared unconstitutional. In a unanimous opinion in 1981, the Supreme Court found that allowing radio, television and photographic coverage of a criminal trial does not violate the constitutional right to a fair trial.
In the early ‘90s, there were a couple consequential developments on the issue.
One came on the state level. The country obsessively followed the 1995 O.J. Simpson trial, one of the major media events of the decade. Many concluded, even before the trial ended, that the admittance of cameras had turned the proceeding into an unseemly, salacious mess (though others countered that the Simpson trial would have been a big deal no matter if cameras were permitted or not).
The other development came on the federal level. The Judicial Conference launched a pilot program to test televising civil proceedings in six district courts and two appellate ones. The Federal Judicial Center released a report at the end of the program, in 1994, and found that the experiment had gone well.
“Overall, attitudes of judges toward electronic media coverage of civil proceedings were initially neutral and became more favorable after experience under the pilot program,” it read. “Judges and attorneys who had experience with electronic media coverage under the program generally reported observing small or no effects of camera presence on participants in the proceedings, courtroom decorum, or the administration of justice.”
A Judicial Conference committee accordingly recommended that the photographing and broadcasting of all federal trial and appellate courts should be permitted. But the full committee voted the recommendation down anyway, still clinging to fears that participants would be intimidated, despite the Federal Judicial Center’s findings.
The Conference would do another pilot program in 2010, partly prompted by the House of Representatives reintroducing the Sunshine in the Courtroom Act, but again voted down allowing cameras despite another Federal Judicial Center report showing most participating judges and attorneys to be in favor of the change.
Now, it’s a patchwork. Many states allow television coverage of some kind — some in trial court, some in appellate court, some in both. Most federal courts do not, with notable exceptions, including the Ninth Circuit Court of Appeals.
Some, like the Supreme Court and Fifth Circuit Court of Appeals, allow audio-only livestreams (for the Supreme Court, nine of the 13 federal appeals courts and several federal district courts, the change was precipitated by the COVID-19 pandemic).
Georgia has permitted televised trials since at least 1982. That year, the state Supreme Court sided with news outlets after reporters were tossed out of a high-profile murder trial. In that decision, the majority pointed to the right to a “public and speedy trial by an impartial jury,” dating the citation to 1976.
“Although the sixth amendment to our federal constitution affords the accused a right to a public trial, our state constitution point-blankly states that criminal trials shall be public,” wrote Chief Justice Robert Henry Jordan.
Debate still rages over allowing cameras in the courtroom — though, as Segall told TPM, there is significant consensus among those in the law profession that the arguments against televising appellate cases are much flimsier than those against televising criminal trials.
“I sent a letter in 2012 to 50 constitutional law professors on all sides politically to write an op-ed in the New York Times that the Obamacare hearings should be televised,” he said, referring to the National Federation of Independent Business v. Sebelius case that reached the Supreme Court that year. “Virtually every progressive professor was willing to sign it, and almost no conservative professor was willing to. Now, that’s completely changed.”
As seen in the history of cameras in the courtroom, criminal trials pose potential problems that appellate proceedings don’t: the involvement of witnesses, some testifying unwillingly under a subpoena, and a jury that can be swayed by coverage of the case at hand.
The same arguments play out now that did 80 years ago: transparency versus protection, democratic interest versus a fair trial.
If the whole country gets to watch Trump and his lawyers fight his Georgia indictment, some will feel strongly that the American people should get to bear witness to an event of such historic import, that there is no other case as deserving of public scrutiny. But even those who feel that way may also harbor qualms.
“There’s no way to discuss the issue of televising Trump’s criminal trial without talking about the potential it has to lead to violence,” Segall said. “I would err on the side of transparency — but if massive violence occurs because of it, I would feel really guilty.”