Let me see if I have this right: The government can monitor our e-mail and phone calls, scan our license plates, and track our every move on camera, though we’ve done nothing wrong. But we can’t watch the government prosecute men like Dzhokhar Tsarnaev and Whitey Bulger who are accused of doing almost everything wrong?
The Supreme Court has ruled that the press and the public have a First Amendment-created right to view trials in federal courtrooms, but only if we can make it to the courthouse. If we have to work or can’t wait in line on the eve of some expected Perry Mason moment, we’re out of luck. The media’s cameras and microphones — our eyes and ears in absentia — are not welcome.
Virtually all state courts are at least partially open to electronic media. So we can televise a drug-addled actress explaining away probation violations, a Patriot making his first appearance in a murder case, and a neighborhood watchman accused of fatally shooting an unarmed teen. But a big-time pol about to become yet another felonious speaker of the House, a South Boston mob boss and accused serial killer, and a 20-year-old alleged bomber are blacked out. Lindsay Lohan, Aaron Hernandez, and George Zimmerman — yes. Sal DiMasi, Bulger, and Tsarnaev — no.
There’s no rationale for this distinction between the state and federal rules. And yet most Supreme Court justices embrace the same tired, outdated arguments. Justice Clarence Thomas, of the no-camera caucus, said, “It runs the risk of undermining the manner in which we consider the cases.” Meaning what? Silently? Thomas spoke those words in 2006, around the time he stopped speaking altogether during oral arguments for nearly seven years — another reason he’d probably rather not have the bench broadcast.
Anti-camera forces assert lawyers will showboat, witnesses will be even more nervous. But maybe the extra attention will cause lawyers to be more prepared, witnesses to be more honest. Regardless, as with many Supreme Court positions, these concerns ignore two realities: first, that unlike when this debate began, cameras are no longer large clunky boxes with a human attached. Now they’re small, unobtrusive, and remotely controlled — people forget they’re there. And second, no radio or TV means little or no accountability. As a former, and wiser, justice once said, sunlight is the best disinfectant.
I don’t know anyone who didn’t want to see the face and demeanor of the younger Tsarnaev when he said “not guilty” seven times in early July (we weren’t permitted to hear that, either). We want to judge for ourselves, but instead of getting real images we get smudgy artists’ sketches and dueling tweets from well-intended reporters: He smirked; he was indifferent; there were no signs of injury on his face; his mouth appeared swollen, possibly from gunshot wounds. Unless they could make it to the Moakley Courthouse in South Boston, even some of the victims, many of whom are now amputees, were shut out. (Maybe, had cameras been allowed to bring us real-time images, we would have been spared the angst over that old self-portrait on the cover of Rolling Stone.)
Why don’t we do anything about it? Most one-size-explains-all excuses don’t fit: heat wave, election fatigue, bad economy. I’m guessing it’s instead one part apathy, one part ignorance. Most people probably don’t know that we have a right to sit in these courtrooms, so they don’t question why we are denied broadcast access. In one legendary survey, only 1 in 1,000 Americans could list all five freedoms guaranteed by the First Amendment (to “petition the government for a redress of grievances” stumps almost everyone). More than 1 in 5 could name all five members of the animated Simpson family. Oy!
The good news is we don’t have to stand by the rules proposed by the Supreme Court, which only 4 in 10 Americans have faith in anyway. The bad news is that to change its rules we may have to depend on Congress, which is viewed favorably by only 1 in 10. In June, an odd bipartisan Senate couple, Republican Chuck Grassley of Iowa and Democrat Dick Durbin of Illinois, refiled their bill to bring cameras into the Supreme Court. That’s a start.
On the other hand, two days after her boss was sworn in, a spokeswoman for America’s newest senator sent me this statement: “Ed Markey believes in transparency and respects First Amendment guarantees of the freedom of speech and the press. At the same time, we have to ensure public safety and, in particular, protect the safety of witnesses, who might hesitate to testify if the proceeding was filmed.” There’s clearly more work to be done.
Contact your representatives in D.C. Tell them we at least expect a robust congressional debate on this issue. Urge them to surprise us and open up federal trials to cameras and microphones. But maybe it’s best not to remind them that, when they do, we’ll be watching.