RONALD L. OLSON (State Bar No. 044597) MARK B. HELM (State Bar No. 115711) STUART N. SENATOR (State Bar No. 148009) MUNGER, TOLLES & OLSON 355 South Grand Avenue Los Angeles, California 90071-1560 (213) 683-9100 FLOYD ABRAMS SUSAN BUCKLEY JONATHAN SHERMAN CAHILL GORDON & REINDEL (a partnership including a professional corporation) 80 Pine Street New York, New York 10005 (212) 701-3000 Attorneys for Non-Party COURTROOM TELEVISION NETWORK SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiffs, v. ORENTHAL JAMES SIMPSON, Defendant. CASE NO. BA097211 MEMORANDUM OF POINTS AND AUTHORITIES OF COURT TV IN OPPOSITION TO TERMINATION OF FILM AND ELECTRONIC COVERAGE [C.R.C. 980] [DECLARATION OF STEVEN BRILL SUBMITTED CONCURRENTLY] Date: November 7, 1994 Time: 9:00 a.m. Dept.: 103 TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . 6 Court TV. . . . . . . . . . . . . . . . . . . . . . 6 The Events That Gave Rise to the Court's September 30 Order. . . . . . . . . . . . . . . . . 8 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 11 I. TERMINATING THE IN-COURT CAMERA WOULD BE AN ABUSE OF DISCRETION UNDER RULE 980. . . . . . . . . 11 1. The Parties' Rights To A Fair Trial Will Not Be Compromised By Continued Broadcast Of Courtroom Proceedings. . . . . . . 14 2. Televising The Trial Will Not Interfere With Court Proceedings. . . . . . . . . . . . . 18 3. The Dignity of the Court Will Not Be Compromised But Rather Will Be Enhanced By Televising The Trial . . . . . . . . . . . . 20 II. BECAUSE THE REASONS SET FORTH IN THE SEPTEMBER 30 ORDER ARE BASED UPON THE CONTENT OF OUT-OF-COURT SPEECH, TERMINATING COVERAGE WOULD BE CONSTITUTIONALLY IMPERMISSIBLE. . . . . . . . . . . . . . . . . . . . 22 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 27 TABLE OF AUTHORITIES Page Cases Bridges v. California, 314 U.S. 252 (1941) . . . . . 5, 23 Cable News Network, Inc. v. American Broadcasting Cos., 518 F. Supp. 1238 (N.D. Ga. 1981). . . . . . . . . . . . . . . . . . 13 Carbo v. United States, 82 S. Ct. 662 (Douglas, Circuit Justice), review denied, 369 U.S. 868 (1962) . . . . . . . . . . . . . . . . . . . . . . 27 Chandler v. Florida, 449 U.S. 560 (1981) . . . . . . 24n Craig v. Harney, 331 U.S. 367 (1947) . . . . . . . . 5-6, 23 Cuban Musuem of Arts & Culture, Inc. v. City of Miami, 766 F. Supp. 1121 (S.D. Fla. 1991). . . . . 27 Estes v. Texas, 381 U.S. 532 (1965). . . . . . . . . 18-19, 24n Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) . . . . . . . . . . . . . . . . . . . . 12, 24n KCST-TV Channel 39 v. Municipal Court, 201 Cal. App. 3d 143, 246 Cal. Rptr. 869 (1988) . . . . . . 6, 14 KFMB-TV Channel 8 v. Municipal Court, 221 Cal. App. 3d 1362, 271 Cal. Rptr. 109 (1990). . . . . . 3, 12, 13-14 Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) . . . . . . . . . . . . . . . . . . . . . . 3, 6, 16, 17, 23, 24, 28 North Mississippi Communications, Inc. v. Jones, 792 F.2d 1330 (5th Cir. 1986). . . . . . . . . . . 26 Oliver v. Postel, 282 N.E.2d 306 (N.Y. 1972) . . . . 16, 16n Pennekamp v. Florida, 328 U.S. 331 (1946). . . . . . 5 People v. Spring, 153 Cal. App. 3d 1199, 200 Cal. Rptr. 849 (1984). . . . . . . . . . . . . 17 Perry v. Sinderman, 408 U.S. 593 (1972). . . . . . . 25-26 Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984). . . . . . . . . . . . . . . . 12, 24n Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). . . . . . . . . . . . . . . . . 12, 24n Review Publications, Inc. v. Navarro, No. 89-1187-CIV-KEHOE (N.D. Fla. Feb. 28, 1990), aff'd without opinion, 943 F.2d 1318 (11th Cir. 1991), cert. denied, 112 S. Ct. 1479 (1992) . . . . . . . . . . . . . . . . . . . . . . 26-27 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) . . . . . . . . . . . . . . . . . . . . 2-3, 6, 12, 20, 22- 23, 24n Sheppard v. Maxwell, 384 U.S. 333 (1966) . . . . . . 4, 16, 17, 23 Sherbert v. Verner, 374 U.S. 398 (1963). . . . . . . 26 Speiser v. Randall, 357 U.S. 513 (1958). . . . . . . 26 State ex rel. Cosmos Broadcasting Corp. v. Brown, 471 N.E.2d 874 (Ct. App. 1984). . . . . . . 24n Stroble v. California, 343 U.S. 181 (1952) . . . . . 17 Thomas v. Review Board, 450 U.S. 707 (1981). . . . . 26 United States v. Criden, 648 F.2d 814 (3d Cir. 1981) . . . . . . . . . . . . . . . . . . 12-13 Williamson v. United States, 184 F.2d 280 (2d Cir. 1950) . . . . . . . . . . . . . . . . . . 27 Wilson v. Superior Court, 13 Cal. 3d 652, 119 Cal. Rptr. 468 (1975). . . . . . . . . . . . . 24n Wood v. Georgia, 370 U.S. 375 (1962) . . . . . . . . 5, 23 Constitutional Provisions U.S. Const. Amend. I . . . . . . . . . . . . . . . . 6, 22-23, 24n, 26 Law Reviews J. Epstein & P. Fogel, California's Experience with Cameras in the Courtroom Suggests the Need for Changes to New Federal Rule, 9 Comm. Law. 9 (Winter 1991). . . . . . . . . . . . . . . . . . . 13 D. Harris, The Appearance of Justice: Court TV, Conventional Television, and the Public Understanding of the Criminal Justice System, 35 Ariz. L. Rev. 785 (1993). . . . . . . . . . . . 20-21 Rules Cal. Rules of Court Rule 980 . . . . . . . . . . . . . . . . . . . . . . passim Rule 980(b)(2) . . . . . . . . . . . . . . . . . . . 10 Rule 980(b)(3) . . . . . . . . . . . . . . . . . . . 9-10 Courtroom Television Network ("Court TV") respectfully submits this memorandum of points and authorities in response to this Court's Order of September 30, 1994 ("September 30 Order") proposing to terminate film and electronic media coverage in this case. INTRODUCTION Since the night of the brutal slayings of Nicole Simpson and Ronald Goldman, this case has captured the attention of the American public as few cases have before it. When the trial of O.J. Simpson begins in this courtroom later this year, it will focus the American public on our system of criminal justice with unprecedented intensity. The parties and this Court -- indeed, the American justice system itself -- have a strong interest in the quality and integrity of the information that the public receives concerning this trial. The issue now before this Court is nothing less than how the American public will receive information about the trial. They can do so second-hand through the eyes and ears of the members of the press, both responsible and irresponsible. Or they can be given, as well, the opportunity to view the trial themselves and make their own judgments about the manner in which our legal system determines whether one of its most celebrated citizens shall be convicted or go free. As this Court is all too painfully aware, these pro- ceedings have received relentless world-wide media attention. Much of that coverage has been responsible. Some of it, unfortunately, has been sensationalistic. In a few instances, regrettably, the coverage has simply been reckless. This Court's understandable anger at such coverage is well known -- by the media and the American public alike. But Court TV believes it is part of the solution, not part of the problem. As a result of the camera in the courtroom, the Court's comments denouncing news reports that it concluded were false and potentially prejudicial were carried live and in full by Court TV and reported by every national television news organization in the country in a way that written words simply could not have so powerfully conveyed. As this Court has recognized, the result has been a healthy discrediting of those reports. By having an opportunity to see the actual proceedings in this case, the public was better able to learn the truth about them. Without doubt, there will continue to be exhaustive, sometimes even hysterical, reporting outside the courtroom about the trial of O.J. Simpson. But that coverage will continue whether or not there is a camera inside the courtroom. What will happen if there is no camera in the courtroom is, quite simply, that the most accurate means of reporting to the public what actually occurs at the trial will be lost and the most powerful means of combatting media irresponsibility will be eliminated. In short, the "circus" will proceed and be shown around the world; the dignity of the courtroom proceedings -- and the sober reality of those proceedings -- will not be there to counteract it. As the Supreme Court has reiterated time and again, the Constitution requires that the press and the public be permitted to attend and observe criminal trials absent the most compelling of circumstances not present here. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). In recognition of this important right -- and the importance of television as a means of communicating information to the public -- Rule 980 of the California Rules of Court encourages television coverage of court proceedings in this State except where to do so would prejudice the rights of the parties, diminish the dignity of the Court or interfere with the orderly conduct of proceedings. KFMB-TV Channel 8 v. Municipal Court, 221 Cal. App. 3d 1362, 1368-69, 271 Cal. Rptr. 109, 113 (1990). Indeed, as the California Court of Appeal has noted, in enacting current Rule 980 the Judicial Council of California was well aware of the wisdom contained in Justice Brennan's observation that "[s]ecrecy of judicial action can only breed ignorance and distrust of courts and suspicion concerning the competence and impartiality of judges; free and robust reporting, criticism, and debate can contribute to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system as well as improve the quality of that system by subjecting it to the cleansing effects of exposure and public accountability." KFMB-TV Channel 8 v. Municipal Court, supra, 221 Cal. App. 3d at 1366, 271 Cal. Rptr. at 111 (quoting Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 587 (1976) (Brennan, J., concurring)). Pursuant to Rule 980, at the very outset of this case, Court TV and other media entities requested and were granted permission to televise the Court's proceedings. The presence of the single camera in the courtroom has not in any way compromised the rights of the parties, the dignity of the court or the orderly conduct of the proceedings. There has been no objection by the defense; there has been no objection by the prosecution. Indeed as discussed more fully below, the parties to this case agree that television coverage of this trial is entirely appropriate. See pp. 14-15, infra. Nonetheless, two broadcasts by a television station have led the Court to consider terminating television coverage of the trial: (1) the broadcast by a Los Angeles television station of a report that a laboratory had confirmed that DNA allegedly found on socks of the defendant matched that of Nicole Simpson, "after having been placed on notice said reports were false"; and (2) a broadcast of "close-up views of jurors" in another proceeding. The Court's articulated reasons reflect a concern not with the camera in the courtroom -- neither report came about as a result of anything that took place during court proceedings -- but, rather, a concern about the coverage of the trial outside the courtroom. But concerns about coverage outside the courtroom are not among the reasons that Rule 980 authorizes a court to terminate television coverage of the proceedings themselves. Court TV respectfully submits that to do so on either basis articulated by the Court would not only be unwise but would constitute an abuse of discretion under Rule 980. This issue is addressed in Point I below. This Court's evident frustration with what it has referred to as the "prurient sensationalism" (Brill Dec'l, Ex. E at 2)[1] outside the courtroom is, to be sure, understandable. The Court has the extraordinarily difficult task of ensuring that this trial is conducted in a fair, orderly and dignified manner. But it has many powerful tools at its disposal to serve those interests. See Sheppard v. Maxwell, 384 U.S. 333, 358-62 (1966). The Court may limit the freedom of cameras to roam the halls of the courthouse, as it did in response to the broadcast of potential jurors in another case, and may punish those persons who violate any court orders to that effect. The Court may seek to balance what it perceives to be untrue news reports and irresponsible press coverage by speaking out vigorously against them, as it did effectively in response to the broadcast of the report concerning the DNA of one of the victims. The Court may admonish the jury, as often as is necessary, not to read, watch or listen to any press reports about the case or may sequester, or partially sequester, the jury during the trial. It may, within constitutional bounds, place reasonable limits on out-of-court statements made to the press by court personnel, the parties and their attorneys. And it may, without encountering any constitutional limitations at all, request counsel in the case to refrain from commenting on the case publicly, and to enter and leave the courthouse in a manner most likely to avoid being surrounded by the press and the like. At the same time, as the Supreme Court has made clear, there are certain things this Court may not do. The Constitution precludes this Court from invoking its contempt powers to punish the press for the content of what is said outside the court-room -- even if what is said is egregious and even if it is false -- absent specific findings (which could not be appropriate here) that such statements would "immediately imperil" the administration of justice. Wood v. Georgia, 370 U.S. 375, 385 (1962); Bridges v. California, 314 U.S. 252, 263 (1941); Pennekamp v. Florida, 328 U.S. 331, 334 (1946); Craig v. Harney, 331 U.S. 367, 376 (1947). The Court may not enjoin news reports about these proceedings. Nebraska Press Ass'n v. Stuart, supra, 427 U.S. at 565; KCST TV Channel 39 v. Municipal Court, 201 Cal. App. 3d 143, 146-47, 246 Cal. Rptr. 869, 871 (1988). Nor may the Court, consistent with the First Amendment, close the trial in these proceedings to the press and public. See, e.g., Richmond Newspapers Inc. v. Virginia, supra, 448 U.S. at 573. The Court may also not do indirectly what it may not do directly. As the authorities cited above demonstrate, the First Amendment precludes the Court from punishing the press for what is said about a trial outside the courtroom itself. But to ban the camera from the courtroom because the Court disapproves of the content of the coverage outside the courtroom would be nothing less than penalizing the press for the exercise -- however misguided the Court views that exercise -- of its First Amendment rights. Imposing such a penalty, we respectfully submit, would be constitutionally impermissible. This point is addressed in Point II below. STATEMENT OF FACTS Court TV Court TV is a 24-hour-a-day, 7-day-a-week cable legal news network dedicated to reporting on the legal and judicial systems in the United States, and, at times, around the world. Since its creation in 1991, Court TV has specialized in extended, gavel-to-gavel coverage of trials supplemented by attorney commentators, who explain the proceedings to a lay audience from Court TV's studio in New York. Court TV covers both civil and criminal trials, as well as parole hearings, death penalty hearings, and municipal and night courts across the United States. The network has televised proceedings in thirty-seven states in this country, and has covered trials from the former Soviet Union, from El Salvador, from the former Republic of Yugoslavia, and from the International Court of Justice at The Hague. (Brill Dec'l SectionSection 1-5) Court TV's programming covers the judicial process not with "sound bites," but rather with gavel to gavel, objective reports of the proceedings. By broadcasting extended coverage of a range of proceedings -- with comment by experts specifically instructed to explain but not to opine in any way on the merits of one side or the other or on the credibility of witnesses (Brill Dec'l Section 3 & Ex. A) -- Court TV seeks to educate its audience about how trials are conducted and to assist them in appreciating the broad impact of legal issues and the legal process on public and private life. By stationing a camera inside the courtroom, Court TV provides viewers with an opportunity to observe trials as courtroom spectators would, rather than hearing second-hand reports from other observers including other media. (Brill Dec'l SectionSection 6-7) Court TV has televised approximately 272 trials, including 28 in the state of California. Prior to and during every trial it covers, Court TV makes every effort -- working with the presiding judge and court personnel -- to ensure a dignified, non- disruptive presence. Court TV has never photographed jurors in any state other than in those states that permit such photography and only when the presiding judge grants permission to do so. Although not required to do so by any state, it edits out the names of jurors and the addresses of witnesses through the use of a ten-second time delay device.[2] (Brill Dec'l SectionSection 8-10) Court TV has been widely praised as an innovative form of public service television. Judges who have presided over cases covered by Court TV overwhelmingly believe that the presence of the camera and Court TV's reporting helped convey events of their trials in a way that contributed to public understanding of the legal system. Indeed, of 174 judges who responded to a questionnaire sent to judges who have presided over trials covered by Court TV, 173 reported that the presence of the camera in the courtroom did not impede the fairness of the proceeding. (Brill Dec'l Section 12 & Ex. B)[3] No verdict has ever been overturned or charges dropped against a defendant because of a Court TV broadcast. (Brill Dec'l Section 13) The Events That Gave Rise to the Court's September 30 Order Throughout the summer of 1994, Court TV operated the courtroom camera in this case, as part of a Radio and Television News Association pool, for all but two days without incident or disruption of any kind. On August 25, at the request of the Court, Court TV submitted a formal written application, pursuant to California Rule of Court 980, to televise the remaining proceedings. (Brill Dec'l, Ex. C) That application was granted by the Court and is reflected in a "Media Plan" distributed by the Court. (Brill Dec'l SectionSection 14-16 & Ex. D) The Media Plan, which sets forth the detailed procedures governing press coverage for this case, specifically provides that "[o]ne television organization will provide courtroom pool coverage for all broadcast media. Court[room] Television Network is the designated television pool camera for the courtroom." (Brill Dec'l Section 16 & Ex. D at 15) Additionally, because only 27 seats have been reserved inside the courtroom for the press (Brill Dec'l Section 12 & Ex. D at 14) -- a small fraction of those organizations covering this case -- the pool camera has also facilitated an unimpeded flow of information to those reporters not able to attend court proceedings on any given day, who have watched the proceedings from the media center on the twelfth floor of the courthouse. (Brill Dec'l Section 19) The pool camera and its operation comply fully with the requirements of Rule 980 and with the Media Plan. Only one stationary camera is employed, and it is affixed to the wall above the jury. (Rule 980(b)(3)(i), (iv); Brill Dec'l, Ex. D at 15) The camera is controlled remotely by a Court TV technician seated in the spectator seats. (Brill Dec'l, Ex. D at 15) The camera is silent and requires no additional lighting. (Brill Dec'l Section 17; Rule 980(b)(3)(ii)) Microphones and wiring are located on the witness stand, the outside of the jury box (facing the well), the lawyers' podium and the bench. (Brill Dec'l Section 17; see Rule 980(b)(3)(iii)) Neither the equipment nor the clothing of any Court TV personnel bear any Court TV insignia or marking. (Brill Dec'l Section 17; Rule 980(b)(3)(v)) The pool camera has not photographed -- nor has Court TV sought to photograph -- jury selection, proceedings closed to the public or proceedings held in chambers. (Brill Dec'l Section 17; see Rule 980(b)(2)) For the duration of these proceedings, Court TV has also installed its ten-second delay device on-site in Los Angeles (rather than at its studio in New York), to be controlled during the trial by a full-time Court TV editorial employee who is a member of the California bar, to ensure that the name of any juror, the address of any witness and any off-the-record comments will not be transmitted from the courtroom. Pool members receiving the Court TV feed will receive only this time-delayed version. (Brill Dec'l Section 18) After having permitted televised coverage of the pro- ceedings in this case for more than three months, on September 30, 1994 the Court issued its Order proposing to terminate such coverage. The Order was triggered by two events. The first stemmed from a broadcast by KNBC-TV Channel 4 on September 21, 1994, which reported that DNA tests had concluded that socks retrieved from defendant's bedroom were spotted with the blood of his slain ex-wife. The following morning, the Court -- joined by attorneys from both sides -- vigorously denied on live television the accuracy of the KNBC-TV report. (Brill Dec'l Section 20 & Ex. F at 1494-96) The proceeding was covered -- live and in full -- by Court TV and was widely reported by the media. (Brill Dec'l Section 20) That evening, KNBC-TV broadcast a second story reporting on the Court's statements, and amplifying on its original report. The following morning, again in open court and on live television, the Court denounced KNBC-TV's actions as fundamentally unfair and wrong, particularly in light of the Court's prior admonishment as to the original report's inaccuracy. (Brill Dec'l Section 21 & Ex. G at 1743-44) The Court then warned that it would consider cutting off both KNBC-TV's access to the Criminal Courts Building as well as all in-court television coverage even though the courtroom camera had literally nothing to do with the report. (Brill Dec'l, Ex. G at 1745) On September 23, 1994 and September 26, 1994, a local broadcast contained video footage of potential jurors in other pending cases that had been recorded by a pool camera -- not operated by Court TV -- located outside the courtroom. As a result, on September 27 the Court barred cameras from the hallway for the duration of the trial. (Brill Dec'l, Ex. M) Following these two events, the Court issued its September 30 Order and set a hearing date for November 7, 1994 on the proposed termination of film and electronic media coverage. ARGUMENT I. TERMINATING THE IN-COURT CAMERA WOULD BE AN ABUSE OF DISCRETION UNDER RULE 980 The Supreme Court has long since made clear the pub- lic's right to attend criminal trials and has noted that open trials serve not only to educate the public in the administration of justice, but to secure confidence in our court systems. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605-06 (1981); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984); Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13 (1986). As Chief Justice Burger observed in Richmond Newspapers, supra: Civilized societies withdraw both from the victim and the vigilante the enforcement of crimi- nal laws, but they cannot erase from people's con- sciousness the fundamental, natural yearning to see justice done -- or even the urge for retribu- tion. The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is "done in a corner [or] in any covert manner." . . . It is not enough to say that results alone will satiate the natural community desire for "satisfaction." A result considered untoward may undermine public confidence, and where the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted. To work effectively, it is important that soci- ety's criminal process "satisfy the appearance of justice," . . . and the appearance of justice can best be provided by allowing people to observe it. Richmond Newspapers, supra, 448 U.S. at 571 (citations omitted). Rule 980 reflects the Judicial Council's recognition of the important role the electronic media can play in the dissemination of events at public criminal proceedings to serve the same ends identified by the Supreme Court in Richmond News- papers. See KFMB-TV Channel 8 v. Municipal Court, 221 Cal. App. 3d 1362, 1368-69, 271 Cal. Rptr. 109, 113 (1990). Indeed, the values described in Richmond Newspapers "can be fully vindicated only if the opportunity for personal observation is extended to persons other than those few who can manage to attend the trial in person." United States v. Criden, 648 F.2d 814, 822 (3d Cir. 1981); accord Cable News Network, Inc. v. American Broadcasting Cos., 518 F. Supp. 1238, 1245 (N.D. Ga. 1981) ("[I]t cannot be denied that television news coverage plays an increasingly prominent part in informing the public at large of the workings of government."). In accordance with all of the above, California Rule of Court 980 "recognizes that [electronic] media access should be granted except where to do so will interfere with the rights of the parties, diminish the dignity of the court, or impede the orderly conduct of the proceedings." KFMB-TV Channel 8 v. Municipal Court, supra, 221 Cal. App. 3d at 1368-69, 271 Cal. Rptr. at 113 (emphasis added). As such, Rule 980 creates a presumption of electronic media coverage of in-court proceed- ings. See J. Epstein & P. Fogel, California's Experience with Cameras in the Courtroom Suggests the Need for Changes to the New Federal Rule, 9 Comm. Law. 9 (Winter 1991) ("Rule 980 thus embodies a presumption that courts should permit camera cover- age . . . .") (a copy is annexed to the Brill Declaration as Exhibit Q). Although Rule 980 grants discretion to the trial court to bar such access, that power is constrained by the Rule's requirement that the Court do so only where necessary to fulfill the Rule's limiting conditions. KFMB-TV, supra, 221 Cal. App. 3d at 1369, 271 Cal. Rptr. at 113 ("[I]n exercising its discretion whether to grant access, the court must consider the rule's criteria.") (emphasis added). Indeed, for the Rule to have any meaning at all, there must be some nexus between the events giving rise to a decision to terminate coverage, and the three criteria set forth in the Rule. Accordingly, because of "the important role the electronic media play in disseminat- ing public information," a reviewing court will scrutinize carefully the reasons for any termination of coverage pursuant to the discretion granted by Rule 980. Id. at 1368, 271 Cal. Rptr. at 113; cf. KCST-TV Channel 39 v. Municipal Court, 201 Cal. App. 3d 143, 146, 246 Cal. Rptr. 869, 870 (1988) (noting that the trial court had erroneously failed to explain why identification of potential victims by publication of courtroom sketch would compromise defendant's right to a fair trial). As we demonstrate below, consideration of all three of the criteria set forth in the Rule offers no justification for banning cameras in the courtroom. Moreover, because the rea- sons offered by the Court for terminating television coverage have literally no bearing on the three criteria, we respect- fully submit that terminating coverage for the reasons set forth in the September 30 Order would constitute an abuse of discretion. A. The Parties' Rights To A Fair Trial Will Not Be Compromised By Continued Broadcast Of Courtroom Proceedings. Whatever else may be said about the press coverage in this case, there really can be no dispute that the courtroom camera has not compromised the parties' rights to a fair trial. In fact, counsel for both parties have publicly declared their support for cameras in the courtroom. Johnnie L. Cochran, Jr., one of Mr. Simpson's lawyers, has recently observed that "everything is more contemplative and introspective when the cameras are there. . . ." (Brill Dec'l, Ex. N at 3) Just last week, lead prosecutor Marcia Clark remarked in open court that "cameras in the courtroom . . . see the truth, they see the evidence as it's being presented at trial. As opposed to tabloid news that we see outside the courtroom and things that are not controlled by the rules of evidence and witnesses who are not sworn to tell the truth under oath. So there is value that one can see from the camera in the courtroom that does not apply to the outside influences . . . ." (Brill Dec'l, Ex. I at 3817)[4] Of course, the story at the heart of these proceed- ings was world-wide news before any official proceeding began. It will be news until (and probably after) the jury delivers its verdict. The proceedings inside the courtroom, regardless of whether they are open for the world to see, are and will be widely reported and speculated upon. The media, their satel- lite trucks and their miles of cable will continue to surround the courthouse (Brill Dec'l, Ex. O), whether or not cameras record the proceedings inside. Salacious interviews with old "friends" of the defendant or of the victims will continue with or without televised coverage.[5] But "[e]ven if the [out-of-court] reporting in this case [is] improper and tend[s] to prejudice the defendant, it is manifest that closing the trial [is] not the means to be employed to cure the prejudice or prevent a continuation of the impropriety." Oliver v. Postel, 282 N.E.2d 306, 311 (N.Y. 1972).[6] If a threat does exist that pre-trial publicity and the behavior of the press outside the courtroom will prejudice the parties' rights, there are, as the Supreme Court has indi- cated, appropriate remedial steps short of total exclusion that this Court may take. Sheppard v. Maxwell 384 U.S. 333, 363 (1966); accord Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 552-55 (1975). The Court may conduct -- and is already con- ducting -- the most probing voir dire of prospective jurors to ensure that they are able to discharge their responsibilities free from the effects of prejudicial publicity. See Stroble v. California, 343 U.S. 181, 194-95 (1952) (refusing to overturn conviction on ground that pre-trial news accounts were inflam- matory because, inter alia, trial court had carefully screened jurors); People v. Spring, 153 Cal. App. 3d 1199, 1207, 200 Cal. Rptr. 849, 854 (1984) (noting that jurors can be apprised on voir dire of possibility that highly publicized trial will be televised). The Court may sequester or partially sequester the jury. See Nebraska Press Ass'n v. Stuart, supra, 427 U.S. at 564. If necessary, the Court may issue an appropriately tailored order restricting the parties, the police and witnesses from disseminating "leads, information, and gossip." Sheppard v. Maxwell, supra, 384 U.S. at 359. Perhaps most effective of all is the considerable power of this Court to balance through its own statements from the bench whatever out-of-court coverage it deems prejudicial or undignified. See Sheppard v. Maxwell, supra, 384 U.S. at 362. And it has done so. When the report about the victim's DNA was broadcast, this Court stated from the bench that the information upon which the report was based was "incorrect" and "prejudicial" and that the broadcast had been "irresponsible." (Brill Dec'l, Ex. F at 1494-96) When the report was rebroadcast, the Court further chastised the station that had broadcast it, calling the report "fundamentally unfair" and "fundamentally wrong." (Brill Dec'l, Ex. G at 1743-45) Those statements -- made in open court and broadcast immediately and repeatedly -- reached tens of millions of people. (Brill Dec'l SectionSection 20-21) Indeed, three weeks later, on denying a defense request for a hearing to seek to learn the source of the report concerning the victim's DNA, the Court stated that "it is to [defendant's] benefit that erroneous reports in the press have been exposed . . .," and it explicitly found that the report had not prejudiced defendant's right to a fair trial. (Brill Dec'l Section 22 & Ex. H at 3373-74) As this episode demonstrates, this case is unique: It is of such public interest and the media coverage outside the court has been, and will continue to be, so intensive and often overwrought that the presence of the camera inside the court -- focusing the public on the real events within -- will not only not threaten the parties' rights or the dignity of the Court but will actually ensure their interests. A four-minute videotape annexed as Exhibit S to the Brill Declaration makes this point graphically. The tape compares one minute each of recent broadcasts of "A Current Affair" and "Eye to Eye with Connie Chung" with two minutes of Court TV coverage of these proceedings. (Brill Dec'l, Ex. S) We think it self-evident that fair trial rights and the dignity of the Court are substantially advanced by permitting actual in-court coverage. B. Televising The Trial Will Not Interfere With Court Proceedings. The pool camera operated by Court TV located inside the courtroom has done nothing to disrupt the orderly conduct of the proceedings. Its placement fully complies with Rule 980, and with the written order of this Court. No one -- not this Court, witnesses or either party -- has complained about its presence. Compare Estes v. Texas, 381 U.S. 532, 536 (1965) (circus-like atmosphere caused by cameras in the court- room denied defendant right to fair trial) with id. at 540 ("When the advances in these arts permit reporting by printing press or by television without their present hazards to a fair trial we will have another case."). As the opinion of those judges who have presided over proceedings televised by Court TV reflects (Brill Dec'l Section 12), the presence of a single camera will not interfere with the Court's proceedings. Nor will the in-court camera compromise the jury's integrity in any way. Under Rule 980, Court TV cannot and will not videotape the jurors; given the placement of the pool cam- era it is quite literally impossible to do so. Indeed, it is Court TV's policy to delete, via the use of a 10-second time-delay device,[7] the names of jurors (if those names are mentioned in public proceedings) and the addresses of witnesses as well. (Brill Dec'l Section 10) Neither policy is required under Rule 980. As for the understandable concern expressed by some potential jurors about the high profile of this case, televising the proceedings may well serve to ease one kind of apprehension they have: If they are aware that the case is televised, they will also know that the members of their community have the opportunity to see and better understand the evidence upon which they render their verdict. C. The Dignity Of The Court Will Not Be Compromised But Rather Will Be Enhanced By Televising The Trial. Not only will in-court coverage of the trial not com- promise the dignity of the Court, it will enhance it. The televised gavel-to-gavel coverage of these proceedings surely has stood in stark contrast to the events that have transpired outside. Some in the media have speculated endlessly about alleged police misdeeds, damning evidence (some of it non-exis- tent) and the like. Pundits have publicly predicted that the defendant will be denied a fair trial because he is an African- American (or be acquitted for the same reason); others have insisted that he will be easily acquitted because he is a well-liked celebrity (or be more likely condemned for the same reason). The pool camera inside the courtroom has acted as an antidote to all of this, unobtrusively and accurately recording the dignified proceedings for broadcast to the public and as an historical record for the future. Court TV coverage thus serves precisely the interests articulated by the Supreme Court in Richmond Newspapers, supra, and the cases that followed it. As a recent scholarly article put it: Even the most accurate part of conventional television, news broadcasts, can offer only an incomplete version of any important trial. The whole event will be summarized in two minutes by a reporter with little or no knowledge of the legal process. Thus the person interested in a case depends on a highly derivative, filtered source of information. By contrast, those who see Court TV can make up their own minds about the case and the evidence. Court TV's virtually uncut live coverage of trial testimony allows anyone to see the trial as if present. The viewer sees an almost unmediated version of the proceedings, rather than interpretations of the event. * * * Court TV offers citizens the chance to actually see their system of justice at work, along with expert analysis and commentary. . . . For example, it is one thing to be aware of the presumption of innocence; it is quite another to watch the system do the best that human institutions can to be fair to an individual accused of the most horrible acts imaginable. D. Harris, The Appearance of Justice: Court TV, Conventional Television, and the Public Understanding of the Criminal Jus- tice System, 35 Arizona L. Rev. 785, 818-20 (1993) (footnotes omitted) (a copy is annexed to the Brill Declaration as Exhibit P).[8] Precisely because this case has generated so much public interest, the proceedings that have been televised so far have been a textbook example of public education-in-action. They have not simply informed the public about the criminal justice system. They have focused the public's attention on and demystified -- as perhaps no criminal proceeding ever has - - complex questions of substantive criminal law, procedure and constitutional rights more typically the domain of lawyers and judges. As former U.S. Attorney General Richard Thornburgh recently explained, in announcing that he had "changed his views" and now supports the televising of criminal proceedings in general and these proceedings in particular: "I'm amazed at the number of people, not lawyers, picking up on the intrica- cies of our system and realizing that this Bill of Rights is for everybody." (Brill Dec'l, Ex. J at 5) * * * As the foregoing demonstrates, an analysis of the three factors articulated in Rule 980 argues in favor of tele- vision coverage of these proceedings rather than against it. What it also demonstrates, we believe, is that Rule 980 itself provides no basis for this Court to terminate television cover- age out of concern with out-of-court coverage. If the stan- dards set forth in the Rule are to have any application at all, they cannot provide support for the banning of the in-court camera as a result of unrelated out-of-court events. As such, Court TV respectfully submits that to terminate television coverage of this important trial on the basis of either of the events articulated by the Court would constitute an abuse of discretion under Rule 980. II. BECAUSE THE REASONS SET FORTH IN THE SEPTEMBER 30 ORDER ARE BASED UPON THE CONTENT OF OUT-OF-COURT SPEECH, TERMINATING COVERAGE WOULD BE CONSTITUTIONALLY IMPERMISSIBLE Whatever the power granted this Court under Rule 980, several propositions cannot be disputed: First, the public and the press have a First Amendment right to attend this trial. "[A] presumption of openness inheres in the very nature of a criminal trial under our system of justice. . . . [T]he First Amendment can be read as protecting the right of everyone to attend trials . . . ." Richmond Newspapers, Inc. v. Virginia, supra, 448 U.S. at 573, 575. Indeed, openness "has long been recognized as an indispensable attribute of an Anglo-American trial." Id. at 569; accord Craig v. Harney, 331 U.S. 367, 374 (1947) ("A trial is a public event. What transpires in the court room is public property."). The First Amendment right to attend trials serves to reinforce public acceptance of "both the process and its results," Richmond Newspapers, Inc. v. Vir- ginia, supra, 498 U.S. at 571, and what Justice Brennan referred to as a broader "structural" role in ensuring full and informed participation in the democratic process. Id. at 587- 88 (Brennan, J., concurring). As the Supreme Court has stated: "A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559-60 (1976) (quoting Sheppard v. Maxwell, 384 U.S. 333, 350 (1966)). Second, the First Amendment guarantees the press the right to report and comment upon these proceedings, even in a manner that this Court may conclude is irresponsible. This Court cannot punish or prevent the press from reporting on the trial or any of these proceedings through the use of its con- tempt powers, absent circumstances so egregious that they could not possibly be found to be present here. Wood v. Georgia, 370 U.S. 375 (1962); Bridges v. California, 314 U.S. 252 (1941). Even the defendant's right to a fair trial could not justify a ban on the reporting condemned by the Court. Nebraska Press Ass'n v. Stuart, supra. Third, the pre-trial proceedings in this case have already been televised, without incident. Despite the media frenzy outside, all witnesses have calmly testified at the pre- liminary hearing, which was televised. The parties' attorneys have argued countless motions before this Court without bravado on television. Nothing has happened during any of this that suggests that future proceedings would be any different. The only basis cited by the Court for possibly bar- ring in-court television coverage has been the airing of two broadcasts, neither of which contained in-court material at all. The law is plain that what this Court cannot achieve directly -- control over what the press publishes -- it cer- tainly cannot achieve indirectly. Whatever the status of the media's constitutional right to film court proceedings,[9] once having granted access to film and photographic equipment, this Court cannot ban such equipment as a penalty for the media's exercise of its constitutional rights. The Supreme Court has long held that even though individuals may not be entitled to one or another form of government benefit, those benefits may not be terminated in retaliation for the exercise of First Amendment rights. Perry v. Sinderman, 408 U.S. 593, 597 (1972). In Perry, the Supreme Court held unconstitutional the decision by a state university to refuse to renew the employ- ment contract of a professor -- even though the professor had no right to the renewal -- because the university disapproved of the professor's public criticism of it: For at least a quarter-century, this Court has made clear that even though a person has no "right" to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests -- especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized or inhibited. This would allow the government to "produce a result which [it] could not command directly." Speiser v. Randall, 357 U.S. 513, 526. Such interference with constitutional rights is impermissible. 408 U.S. at 597 (emphasis added); accord e.g., Speiser v. Randall, 357 U.S. 513 (1958) (veterans cannot be denied state tax exemptions on the basis of their refusal to take a loyalty oath); Sherbert v. Verner, 374 U.S. 398 (1963) (government may not penalize welfare applicant by withholding benefits on the basis of her religion-based refusal to work on Saturdays); Thomas v. Review Board, 450 U.S. 707 (1981) (state cannot deny unemployment benefits to applicant on the ground that he refused, for religious reasons, to work in the arms production industry). The principles set forth in Perry and the cases cited above apply fully to cases in which government officials termi- nated public benefits provided to the press and other groups in retaliation for the their exercise of First Amendment rights. For example, in North Mississippi Communications, Inc. v. Jones, 792 F.2d 1330 (5th Cir. 1986), a county board of super- visors withdrew advertising from a local newspaper because it disliked the content of editorials the paper had written. The Court held that the withdrawal was unconstitutional: Although the Times may have had no "right" to receive certain legal advertising from the County Board of Supervisors, it would violate the Constitution for the Board to withhold public patronage, in the form of advertising, from the Times in retaliation for that newspaper's exercise of its first amendment rights . . . . Id. at 1337; accord Review Publications, Inc. v. Navarro, No. 89-1187-CIV-KEHOE (N.D. Fla. Feb. 28, 1990) (finding that sher- iff had unconstitutionally retaliated against local newspaper by withdrawing advertising) (a copy is annexed to the Brill Declaration as Exhibit R), aff'd without opinion, 943 F.2d 1318 (11th Cir. 1991), cert. denied, 112 S. Ct. 1479 (1992); Cuban Museum of Arts & Culture, Inc. v. City of Miami, 766 F. Supp. 1121, 1124-28 (S.D. Fla. 1991) (enjoining city from terminating plaintiffs' access to city-owned property where city disliked art exhibited by plaintiffs, and where art engendered community protests). As Justice Douglas observed in an analogous context: "If the Government cannot get at these utterances by direct prosecution, it is hard to see how courts can justifiably reach and stop them by indirection. I think courts should not utilize their discretionary powers to coerce men to forego conduct as to which the Bill of Rights leaves them free. Indirect punishment of free press or free speech is as evil as direct punishment of it." Carbo v. United States, 82 S. Ct. 662, 667 (Douglas, J., Cir- cuit Justice) (quoting Williamson v. United States, 184 F.2d 280, 283 (2d Cir. 1950) (Jackson, J.)), review denied, 369 U.S. 868 (1962). That proposition, as well as any, makes plain the unconstitutionality of banning in-court cameras in this case. CONCLUSION As the exhaustive coverage of this case outside the courtroom continues -- and it surely will -- the camera acts as a reality check unobtrusively reporting the entire proceedings before the Court for anyone to see. Without any disruption at all, millions of viewers will have a unique opportunity to watch (as they already have) as this Court administers justice in an open and fair fashion. Far from being sensationalistic, the gavel-to-gavel coverage of these proceedings has contributed and will "contribute to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system . . . ." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 587 (1976) (Brennan, J., concurring). Accordingly, for the reasons set forth above, Court TV respectfully requests that this Court not terminate film and electronic coverage of these proceedings. Dated: October 28, 1994 Respectfully submitted, RONALD L. OLSON MARK B. HELM STUART N. SENATOR MUNGER, TOLLES & OLSON 355 South Grand Street Thirty Fifth Floor Los Angeles, California 90071 (213) 683-9100 Attorneys for Courtroom Television Network Of Counsel: FLOYD ABRAMS SUSAN BUCKLEY JONATHAN SHERMAN CAHILL GORDON & REINDEL (a partnership including a professional corporation) 80 Pine Street New York, New York 10005 (212) 701-3000 PROOF OF PERSONAL SERVICE I, the undersigned, declare that I am over the age of eighteen years and not a party to the within entitled action; my business address is 1950 South Santa Fe Avenue, Suite 101, Los Angeles, California 90021. On October __, 1994, I personally delivered to the addressees true copies of the foregoing document entitled MEMORANDUM OF POINTS AND AUTHORITIES OF COURT TV IN OPPOSITION TO TERMINATION OF FILM AND ELECTRONIC COVERAGE [C.R.C. 980] in sealed envelopes addressed as follows: Rex S. Heinke Gibson, Dunn & Crutcher 333 South Grand Avenue Los Angeles, CA 90071-3197 Royal Oakes Barger & Wolen 530 West Sixth Street, 9th Floor Los Angeles, CA 90014-1276 Kelli L. Sager Davis Wright Tremaine 1000 Wilshire Boulevard, Suite 600 Los Angeles, CA 90017 Marcia Clark District Attorney's Office 18000 Criminal Courts Building 210 West Temple Street Los Angeles, CA 90012 Robert L. Shapiro 2121 Avenue of the Stars, 19th Floor Los Angeles, CA 90067 Johnnie L. Cochran, Jr. 4929 Wilshire Boulevard, Suite 1010 Los Angeles, CA 90010 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October__, 1994, at Los Angeles, California. __________________________ ___________________________ [Print Name] [Signature] --------------------------------------------------------------- 1. References to the "Brill Dec'l" are to the Declaration of Steven Brill, President of Courtroom Television Network, executed on October 27, 1994, and submitted herewith. 2. In those instances in which Court TV has interviewed jurors after the completion of a trial, it has done so only after jurors have come forward themselves and made statements to the news media. (Brill Dec'l Section 11) 3. The 174th judge nevertheless qualified his response by stating that "[t]he value of Court TV's presence greatly outweighs the negative." (Brill Dec'l Section 12) 4. The fact that the parties support coverage puts in per- spective the letters from a few members of the general public that this Court received in response to a column by a Chicago columnist. Press reports suggest that many of those letters urged the Court to shut down all media coverage, not simply cameras in the courtroom, because (in the words of one writer) the coverage has become a "cir- cus" and people are "sick of it." (Brill Dec'l, Ex. K) As we make clear in Section II below, such a response would certainly violate the Constitution. In any event, even if a significant majority of the public thoroughly disapproved of in-court television coverage of this trial, their preference should manifest itself by changing the station -- not by depriving others of the chance to watch. 5. For example, the fact that cameras are not allowed to film jury selection has not reduced the intensity of the out-of-court coverage. Indeed, with no in-court proceedings to watch or listen to, the stage has been dominated by out-of-court rumors surrounding the publication of a recent memoir about Nicole Simpson. 6. In Oliver, a New York state trial judge closed the trial of a reputed mobster to the press and public after the media had published articles detailing the defendant's criminal record and his underworld associations. The New York Court of Appeals held the action improper: [S]ince the articles complained of dealt with Persico's alleged criminal record and underworld connections, and in no way related to any events which had transpired in the courtroom, their publication obvi- ously would not, indeed could not, have been prevented by refusing to allow the press to attend the trial. 282 N.E.2d at 311. 7. For this trial, the delay device will be in continuous operation on site so that all other media participating in the pool will receive the time-delayed feed. (Brill Dec'l Section 18) 8. Former California Superior Court Judge Jack Tenner recently made just this point in discussing these proceedings: "If you bar the film, then everybody in the community finds out what happened in court that day, based on the interpretation of the print media. And the reporter will give you seven paragraphs about what happened in the entire day's proceeding." (Brill Dec'l, Ex. J at 6) 9. It is by no means clear that no such right exists. The Supreme Court has noted that the "'day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process.'" Chandler v. Florida, 449 U.S. 560, 573-74 n.8 (1981) (emphasis omitted) (quoting Estes v. Texas, 381 U.S. 532, 585 (1965) (Harlan, J., concurring)); accord Estes v. Texas, supra, 381 U.S. at 540 (noting that "another case" would be presented when technological advances permit reporting by television "without their present hazards to a fair trial"). Since those cases, the Supreme Court has on numerous occasions held unconstitutional attempts to bar the press from criminal proceedings. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 535 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). We believe that the time has come for the rule of these cases to be extended to include the type of unobtrusive coverage made possible by the use of a single, stationary television camera. State ex. rel. Cosmos Broadcasting Corp. v. Brown, 471 N.E.2d 874 (Ohio Ct. App. 1984) (holding that absent "overriding considerations to the contrary," First Amendment requires that "representatives of the electronic news media must be allowed to bring their technology with them into the courtroom, even if only to a small degree (e.g., a single camera)."). That First Amendment rule applies with even greater force under the California Constitution. Here in California "[a] protective provision more definitive and inclusive than the First Amendment is contained in our state constitutional guarantee of the right of free speech and press." Wilson v. Superior Court, 13 Cal. 3d, 652, 658, 119 Cal. Rptr. 468, 472 (1975). However, because of the strength of Points I and II set forth in the text above, the Court need not reach these separate questions.