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<html><head><title>CourtTV Law Library</title></head> <BODY BGCOLOR="#FFFFFF" TEXT="#000000" LINK="#0000FF" VLINK="#FF0005"><IMG SRC="/graphics/ctv/hotdocs.gif" BORDER=0></A> [EDITOR'S NOTE: In this Feb. 23, 1996 legal memo, Court TV asks a U.S. District Court in New York for permission to televise Marisol A. v. Giuliani, a civil class action on behalf of the clients of NYC's Child Welfare Administration. The parties in the case did not oppose the network's motion and Judge Robert J. Ward ruled that March 4, 1996 oral arguments could be televised. ] <PRE> Floyd Abrams (FA-0902) Jonathan Sherman (JS-6633) Barbara Swann (BS-2242) 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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MARISOL A., et al., Plaintiffs, -against- RUDOLPH W. GIULIANI, et al., Defendants. APPLICATION OF COURTROOM TELEVISION NETWORK, Proposed Intervenor. No. 95 Civ. 10533 (RJW) MEMORANDUM OF LAW OF NON-PARTY COURTROOM TELEVISION NETWORK IN SUPPORT OF ITS MOTION TO INTERVENE PURSUANT TO FED. R. CIV. P. 24 AND IN SUPPORT OF APPLICATION TO TELEVISE ARGUMENT TABLE OF CONTENTS Page INTRODUCTION....................................2 STATEMENT OF FACTS..............................7 COURT TV........................................7 THIS ACTION AND THE MARCH 4 ARGUMENT...........11 THE CURRENT STATE OF EMPIRICAL EVIDENCE AND EVALUATION.....................................14 THE EXPERIENCE IN FEDERAL COURTS...............17 ARGUMENT.......................................23 I. INTERVENTION IS PROPER PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 24...............................23 II. THIS COURT SHOULD PERMIT COURT TV TO TELEVISE THE MARCH 4 ARGUMENT PURSUANT TO GENERAL RULE 7 OF THE LOCAL RULES OF THIS COURT.......................26 A. As A Matter Of Law, Rule 7 Governs The Instant Application...................................27 1. The Force of Local Court Rules...........27 2. The Absence Of Authority Of The Judicial Conference To Modify Or Abrogate District Court Local Rules.................................29 B. On Its Face, Rule 7 Plainly Confers Upon This Court Discretion To Allow The March 4 Argument To Be Televised.....................................33 C. As A Matter Of Its Discretion Under Rule 7, This Court Should Grant The Instant Application....36 1. Concerns With The Effects Of Cameras On The Proceedings Themselves.......................36 2. Content-Based Concerns....................39 CONCLUSION.........................................44 TABLE OF AUTHORITIES Cases Page In re Akron Beacon Journal, No. 94 Civ. 1402, 1995 WL 234710 (S.D.N.Y. Apr. 20, 1995).............23n-24n, 25 Armster v. United States District Court, 806 F.2d 1347 (9th Cir. 1986)...............................32, 32n Bridges v. California, 314 U.S. 252 (1941).....41-42 41-42 Carbo v. United States, 82 S. Ct. 662, review denied, 369 U.S. 886 (1962)..................................43n Chandler v. Florida, 449 U.S. 560 (1981).........6, 15 Craig v. Harney, 331 U.S. 367 (1947)...........5, 40-41 Cowley v. Pulsifer, 137 Mass. 392 (1884)...........6-7 Dolan v. City of Tigard, 114 S. Ct. 2309 (1994)....43n Gagliardi v. Village of Pawling, 18 F.3d 188 (2d Cir. 1994)..............................................43n Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)..............................................24 Hearst Corp. v. Justices of the Superior Court, No. SJ- 96-0047 (Mass. Feb. 1, 1996).......................38n Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912 (1950)..............................................41 In re NASDAQ Market-Makers Antitrust Litigation, No. 94 Civ. 3996, 1996 WL 15655 (S.D.N.Y. Jan. 16, 1996)....24, 25 Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976)...41 Perry v. Sindermann, 408 U.S. 593 (1972)..............43n In re Petition of Post-Newsweek Stations, 370 So. 2d 764 (Fla. 1979)........................................39-40 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)......................................5, 8, 25, 40 Speiser v. Randall, 357 U.S. 513 (1958)............43n United States v. Cacciatore, 487 F.2d 240 (2d Cir. 1973).................................31-32, 32n United States v. Yonkers Board of Education, 587 F. Supp. 51 (S.D.N.Y.), aff'd, 747 F.2d 111 (2d Cir. 1984)...26 Westmoreland v. Columbia Broadcasting Sys., Inc., 752 F.2d 16 (2d Cir. 1984), cert. denied, 472 U.S. 1017 (1985).......................................25, 40, 40n Williamson v. United States, 184 F.2d 280 (2d Cir. 1950)............................................43n Wood v. Georgia, 370 U.S. 375 (1962)..............41 Rules National Rules Fed. R. Crim. P. 53..................................29 Fed. R. Civ. P. 24(a).............................23-26 Fed. R. Civ. P. 24(b)........................23n, 25, 26 Fed. R. Civ. P. 83...................................27 Local Rules D. Del. R. 83.2......................................33 D. Colo. R. 83.3.....................................33 M.D. Fla. R. 4.11....................................34 S.D. Fla. Gen. R. 77.1...........................29, 33 N.D. Ill. Gen. R. 1.52...........................29, 33 E.D. Mich. L. R. 113.1...............................34 E.D.N.Y. Gen. R. 7..................................35n S.D.N.Y. Gen. R. 7...............................passim S.D.N.Y. Gen. R. 7 (1988)............28, 33-34, 35n, 40n E.D. Okla. R. 28.....................................35n N.D. Okla. Civ. R. 83.1...............................34 E.D. Pa. Civ. R. 83.3.............................33, 34 S.D. W. Va. L. R. Gen. P. 5.01........................34 E.D. Wis. R. 16.01...................................35n Statutes United States Statutes 28 U.S.C. Section 331 (1988)........................29-31,36n 28 U.S.C. Section 372(c) (1988 & Supp. V 1993)..............30 28 U.S.C. Section 2071(a) (1988)............................27 New York Statutes N.Y. Jud. Law Section 218(5) (McKinney 1996).....................................37 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MARISOL A., et al., Plaintiffs, -against- RUDOLPH W. GIULIANI, et al., Defendants. APPLICATION OF COURTROOM TELEVISION NETWORK, Proposed Intervenor. No. 95 Civ. 10533 (RJW) MEMORANDUM OF LAW OF NON-PARTY COURTROOM TELEVISION NETWORK IN SUPPORT OF ITS MOTION TO INTERVENE PURSUANT TO FED. R. CIV. P. 24 AND IN SUPPORT OF APPLICATION TO TELEVISE ARGUMENT Courtroom Television Network ("Court TV") respect- fully submits this memorandum of law in support of its motion pursuant to Fed. R. Civ. P. 24, brought on by order to show cause, to intervene in this case for the limited purpose of obtaining leave of this Court to televise the oral argument to be held before this Court on March 4, 1996, on plaintiffs' motion for class certification and defendants' partial motions to dismiss (the "March 4 Argument"). This memorandum also sets forth the basis for Court TV's application to televise the argument. INTRODUCTION By this motion, Court TV, a cable legal news network, seeks to intervene in this action to urge this Court to permit Court TV to televise, "gavel to gavel," the proceedings to be held in this Court on March 4, 1996 in this civil case. In the courtrooms of forty- seven states -- and for two and a half years in the early 1990s in this very federal court -- such a request would have hardly merited particular notice. The proceeding to be held is oral argument on two motions dealing with law alone. No witnesses will testify; no jurors will sit or potential jurors be questioned. There will be attorney argument only in a case that raises profound social, political and legal questions. For many years, General Rule 7 of the Local Rules of this Court barred all cameras from Southern District courtrooms. It no longer does so. Now it unambiguously permits cameras, transmitters, receivers, to be brought into Southern District courthouses upon written permission of any judge of this Court. As we demonstrate below, the plain meaning of Rule 7 permits such permission to be granted here; as we further demonstrate below, such permission should be granted here. There is one potential impediment to this Court's granting Court TV permission to televise the March 4 Argument, which we address directly below. That is the policy position taken by the Judicial Conference of the United States, which, on September 20, 1994, urged that television be barred from adversarial civil proceedings in federal courts. In so doing, the Judicial Conference rejected an unambiguous recommendation in favor of televised proceedings made by its Committee on Court Administration and Case Management. Although that Committee had overseen a pilot program in several federal courts, including this one, although an evaluation of that program performed by the Federal Judicial Center demonstrated that the program had been an unqualified success, and although states, including New York, have permitted cameras for over two decades, the recommendation of the Judicial Conference was to the contrary. Court TV respectfully submits that Rule 7 of this Court governs and that the view of the Judicial Conference should not -- and, indeed, may not -- bar television cameras from the March 4 Argument. In making its decision, this Court may, of course, be guided by all manner of concerns -- and those expressed by the Judicial Conference are among them. But in exercising its discretion under Rule 7, the breadth and scope of the plain meaning of Rule 7 may not be ignored. Any modification or amendment of Rule 7 may only occur by action of the entire court or the judicial council of the Second Circuit. That has not happened. This memorandum proceeds in the following order: We first describe Court TV and set forth why it seeks to televise the March 4 Argument. See pages 7-13 infra. After that, we set forth a brief description of the enormous expansion of televised court proceedings over the last quarter century -- as well as the many studies that have validated that expansion. See pages 13-22 infra. While we urge throughout the memorandum that the policy positions of the Judicial Conference do not have the force of law -- and certainly not the force of a duly-enacted local rule -- we next show that the application should be granted, even taking account of Judicial Conference concerns. First, while the Judicial Conference in 1994 expressed the view that the effect of an in-court camera on some witnesses and jurors might be "cause for concern," there will be no witnesses or jurors at the March 4 Argument. Only attorneys will appear, arguing about purely legal matters. No study ever conducted in any jurisdiction has ever suggested that those circumstances alone mandate the banning of television from the courtroom. See pages 36-39 infra. Second, we deal with the only other asserted Judicial Conference concern: the fact that some television news programs have broadcast only excerpts or "soundbites" in reporting to the public. See pages 39-43 infra. Since Court TV will televise the March 4 Argument "gavel to gavel," this asserted concern is also irrelevant. At the same time, concerns about the manner in which the media report on the judiciary may not alone be the basis for denying any application under Rule 7. Under the First Amendment the press and public may not be excluded from court proceedings absent a compelling and clearly articulated reason. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980). That is true because, as the Supreme Court long ago stated, "[w]hat transpires in the court room is public property." Craig v. Harney, 331 U.S. 367, 374 (1947). Given such principles, generalized concerns about "soundbites" or "snippets of coverage" may not control, absent some demonstration of their likelihood of harming the judicial process inside the courtroom. Yet neither the Judicial Conference, nor the study conducted under the federal pilot program, nor any other study has shown that to be the case. To be sure, such coverage may be less desirable than the "gavel-to-gavel" coverage to which Court TV is dedicated and with which it will televise the March 4 Argument. But it is equally true that shorter newspaper articles are often less desirable than in-depth narratives of court proceedings. No one, however, claims that print reporters should or may be excluded from courtrooms on that basis. There is no need for this Court to determine in this action whether Court TV should be deemed to have a presumptive First Amendment right to televise the March 4 Argument. That case is for another day. See Chandler v. Florida, 449 U.S. 560, 573 n.8 (1981). For now, we respectfully seek the far more modest result that the Court grant the instant application under General Rule 7. Doing so can only vindicate Justice Holmes's ancient admonition: "It is desirable that the trial of causes should take place under the public eye . . . that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed." Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Abrams Aff't, Ex. H). STATEMENT OF FACTS COURT TV Court TV is a 24-hour-a-day, 7-day-a-week cable legal news television network, which reports on the legal and judicial systems within the United States and abroad -- including, among others, those of the International Court of Justice and the International Criminal Tribunal for the Former Yugoslavia. Since its creation in 1991, Court TV has specialized in extended, gavel-to-gavel coverage of civil and criminal trials, and has televised over 400 such trials. Court TV has also televised numerous oral arguments, both on motions before trial courts and in appellate proceedings. Court TV has televised 49 cases in federal court, both before district courts (including this Court) and courts of appeals. (Brill Aff't Paragraphs 3, 7-9, 11-12)1 By stationing silent, unobtrusive cameras inside courtrooms, Court TV seeks to vindicate the ancient public right to "hear, see, and communicate observations concerning" judicial proceedings. Richmond Newspapers, Inc. v. Virginia, 488 U.S. 555, 576 (1980). It does this by treating its viewers as though they themselves were in the courtroom. Because space and time constraints prevent the vast majority of citizens from physically attending court proceedings, Court TV acts as a surrogate, actually showing citizens how the judiciary operates. Because citizens "now acquire [information about trials] chiefly through the print and electronic media," Richmond Newspapers, supra, 488 U.S. at 573, Court TV seeks to improve the accuracy of that information. The result, in Court TV's experience, is to clarify and broaden the public's understanding of the judiciary, the judicial process and their effect on public and private life. (Brill Aff't Paragraphs 4, 10); see generally Abrams Aff't, Ex. D) Court TV's coverage has received wide praise. Professor John Langbein of Yale Law School has observed that "cameras are an absolute godsend because the public has been educated to think that criminal trials are what they saw on Perry Mason, and it ain't true. What's showing is the way the system really works" (Brill Aff't Paragraph 4 accord Abrams Aff't, Ex. D at 807-15). Court TV's own survey of judges who have presided over trials covered by Court TV reflects overwhelming support of such coverage and agreement that coverage of trials does not impede the fairness or dignity of the proceedings (id. Paragraph 6). The public's reaction is to the same effect; an independent survey conducted in 1994 by the Times Mirror Center for People and the Press found that Court TV viewers "said they have a better understanding of the legal system" as a result of watching televised trial court proceedings (id. Paragraph 4). Court TV's Coverage Methods and Guidelines. Court TV's presence in the courtroom strives to be non-disruptive. Before any proceeding, Court TV works with court personnel and the presiding judge or judges to ensure that all requirements concerning equipment placement and camera coverage are satisfied. Court TV routinely uses one very small, stationary camera, which makes no noise and requires no additional lighting other than existing courtroom lighting. The camera is placed away from the proceedings, and, if necessary, it can be operated by remote control by a Court TV technician placed far away from the proceedings. Wiring is unobtrusive. Microphones are small and are never operated in such a way as to record conversations between attorneys and their clients; they are turned off during off- the-record bench conferences and during other parts of the proceedings that are not part of the public record. (Brill Aff't Paragraph 13) Court TV provides the trial judge or judges with the maximum control over the manner in which a proceeding is transmitted or taped. If it is televised live, Court TV can employ a ten-second time delay device to prevent transmission of certain material (Brill Aff't Paragraph 14).2 Court TV frequently supplements its on-air coverage with an anchorperson (himself an attorney of significant experience) and with guest attorney and judge commentators (who are experts in their fields). These persons are instructed never to opine on whether a party is right or wrong, or good or bad; they are there only to assist the viewers in understanding the basic procedural reasons for certain in-court events, to explain the possible range of reasons for particular substantive events, and to place the proceedings in their social and political context. (Brill Aff't Paragraph 15) THIS ACTION AND THE MARCH 4 ARGUMENT On March 4, 1996, this Court has scheduled oral argument on plaintiffs' motion for class certification and defendants' partial motions to dismiss (the "March 4 Argument"). Court TV seeks permission to televise that proceeding; and, if granted permission to do so, Court TV will televise the entirety of the proceeding, "gavel to gavel," and probably live.3 This civil rights action raises one of the most significant issues in American social and political life today: the means by which government cares for and protects children who have been, or are in danger of being, abused and neglected. The Complaint charges that the New York City Child Welfare Administration ("CWA"), alleged to be obligated to maintain "legal custody and legal responsibility" for the City's foster children (Cplt. Paragraph 48) (i.e., those who have been found by a state court to be "in danger of abuse or neglect if left with his/her family" (Cplt. Paragraph 49)), has violated or is likely to violate the constitutional and statutory rights of eleven named plaintiffs, suing on behalf of over 100,000 children (Cplt. Paragraphs 1, 14-15, 22-41, 57-72). The five defendants are those persons, including the Governor of the State of New York and the Mayor of New York City, who are alleged to be legally responsible for administering the CWA, and ensuring that it complies with applicable federal and state law (Cplt. Paragraphs 42-46). The Complaint seeks unprecedented relief: that this Court remove the CWA from the control of current authorities and place it into receivership (Cplt. Paragraph 354(e)), and that this Court monitor the receivership on an ongoing basis (Cplt. Paragraph 354(f)). Policy questions do not alone make this an important case from Court TV's perspective, however. In addition, this case raises significant questions concerning how the judiciary fashions relief for allegedly broad and continuing civil rights violations. Indeed, this case is a paradigmatic example of what Professor Abram Chayes characterized as "public law litigation." See A. Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1284 (1976) (describing then-emerging model of federal court litigation, exemplified by school desegregation cases, in which "object of litigation" is "vindication of constitutional or statutory policies" in which judge "become[s] the creator and manager of complex forms of ongoing relief"). The legal issues to be argued on March 4 themselves, moreover, are of intrinsic public importance: Defendants' partial motions to dismiss involve, among others, the scope of any constitutional rights children in foster care may have, including their constitutional entitlement to associate with biological family members; as well as whether similar rights may be extended to children not in custody of the CWA. Plaintiffs seek to certify a class that defendants maintain is broader than any ever certified, and that by definition involves thousands of individual and different wrongs committed against children who are alleged to happen to suffer a similar social fate. This case, plainly, is of profound public importance and the public would be well served by being better informed about it. THE CURRENT STATE OF EMPIRICAL EVIDENCE AND EVALUATION_______ Over the last thirty years, cameras have become a fixture in the courtrooms of 47 states (Brill Aff't Paragraph 25). During that period, numerous studies have been conducted by those jurisdictions (as well as by the federal courts) to evaluate the effect on the judicial process of the presence of cameras in courtrooms. The results have been consistent and unambiguous: televised coverage of trial court proceedings - - not merely oral argument on questions of law (such as the March 4 Argument) but proceedings involving witnesses and jurors, both at the pre-trial and trial stage - - does not impede the fair administration of justice, does not compromise dignity of the court, and does not impair the orderly conduct of proceedings. Indeed, just the opposite is true: public education about the judiciary - - and how it resolves disputes -- has been greatly enhanced. (Brill Aff't Paragraphs 4, 10, 22-23) The Mid-Century Ban on Cameras in Courtrooms and the Subsequent Rejection of That Ban. Things, of course, were not always that way. Several decades ago, in response to what one observer called "the Roman holiday" surrounding the 1935 trial of Bruno Richard Hauptman, convicted and executed for the kidnapping and murder of the 18-month-old son of Charles Lindbergh, nearly every state, as well as the federal criminal courts, enacted rules barring any in-court audio-visual coverage. Federal civil proceedings were covered by adherence to Canon 35 (subsequently renumbered 3A(7)) of the Code of Judicial Conduct, modeled on the same provision of the American Bar Association ("ABA") Code of Judicial Conduct. Both admonished that a judge "should" prohibit the televising of courtroom proceedings. (Brill Aff't Paragraphs 18-19) Barely a decade later, however, enormous changes had occurred. Advances in technology and the unassailable fact that television had become a part of the American public's daily information diet convinced states to begin to experiment with cameras in the courtroom and to study their effects on the proceedings (Brill Aff't Paragraphs 20-22). Led by Florida, and with the subsequent imprimatur of the Supreme Court, see Chandler v. Florida, 449 U.S. 560 (1981), many states permitted television in their courtrooms -- with proper procedural protections for all participants -- first on an experimental basis and then on a permanent one (Brill Aff't Paragraphs 22-25). The results of numerous state studies of these experiments, conducted as early as 1979 and as late as 1994, have been unambiguous: a silent, unobtrusive in-court camera can provide the public with more and better information about and insight into the functioning of the courts without interfering with the fair administration of justice. A full list of the studies, and fuller description of them, is set forth in the Brill Aff't at paragraphs 20-25. In this memorandum, we refer only to two: those in New York and in the federal courts. New York has conducted three different studies evaluating successive experiments; in each case not only were cameras determined not to have impaired the conduct of fairness of any proceeding, but to have greatly enhanced public education. The most recent of these evaluations reported, among other things, the following: because "[r]elatively few people ever attend court proceedings... [t]elevision coverage . . . exposes greater numbers of citizens to our justice system" (Abrams Aff't, Ex. G at 86); televised proceedings "engender a deeper understanding of legal principles and processes" (id. at vi); cameras have enabled the public, to greater effect than previously possible, to monitor whether "justice is handed out fairly and impartially" (id. at 90); "reporting on court proceedings, both by newspaper and broadcast reporters, frequently is more accurate and comprehensive when cameras are present" (id. at 91). The New York study was in accord with the many that had preceded it determining that technology made it possible for cameras to enter courtrooms without disturbing proceedings in the slightest,4 that witnesses, jurors and attorneys remained unaffected (id. at 93), and that cameras ensured greater fairness toward parties by judges (id. at 92). THE EXPERIENCE IN FEDERAL COURTS Although they entered the process relatively late in the game -- at a time when over forty states permitted cameras in court proceedings, and after dozens of studies (all favorable to coverage) had been conducted -- the federal courts, too, successfully experimented with cameras in trial court proceedings. Until 1990, the federal judiciary had adhered to Canon 3A(7) of the Code of Judicial Conduct, which stated that "[a] judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom" except for purposes of preserving evidence and to record and broadcast investitive, ceremonial or naturalization proceedings (Brill Aff't Paragraph 26).5 In 1990, however, the Judicial Conference adopted the recommendation of its Ad Hoc Committee on Cameras in the Courtroom (the "Ad Hoc Committee") to strike Canon 3A(7) from the Code of Judicial Conduct (id. Paragraph 29).6 In issuing its recommendation, the Ad Hoc Committee had been influenced not only by the experience of the many state studies, but by former Congressman Robert W. Kastenmeier, the longtime Chair of the House Judiciary subcommittee overseeing federal courts. Representative Kastenmeier urged that "the time has come for the Federal Judicial branch to allow cameras in the courtroom" and that the "need" existed to "permit radio and television coverage of the Federal courts at work" (Brill Aff't Paragraph 28). Congressman Kastenmeier emphasized that "[o]f greatest importance, perhaps, is the unchanged and still unmet need to provide the public with more information that will lead to a better understanding of the Federal courts" (id.). At the same time that it struck Canon 3A(7), the Judicial Conference adopted a "Policy Statement" which read, in pertinent part: "A judge may authorize broadcasting, televising, recording, or taking photographs in the courtroom and in adjacent areas during investitive, naturalization or other ceremonial proceedings. A judge may authorize such activities in the courtroom or adjacent areas during other proceedings, or recesses between such other proceedings, only: "(a) for the presentation of evidence, "(b) for the perpetuation of the record of the proceedings, "(c) for security purposes, "(d) for other purposes of judicial administration; or "(e) in accordance with pilot programs approved by the Judicial Conference of the United States" (Brill Aff't Paragraph 29). Although the Policy Statement constituted an expansion of camera access beyond the confines of Canon 3A(7), the Conference did not "authorize the contemporaneous broadcasting of proceedings from the courtroom to the public beyond the courthouse walls" other than in ceremonial proceedings or under a Judicial Conference-approved pilot program (Abrams Aff't, Ex. K at Appendix B at 3-4). The Judicial Conference also instituted a "Pilot Program on Photographing, Recording, and Broadcasting in the Courtroom" -- what the Ad Hoc Committee referred to as "controlled experimentation on a voluntary basis" (Abrams Aff't, Ex. K at 6, Ex. J at 104). It did this in part because of the success of the experience of the states, the complete abolition by the ABA of any rule barring cameras and the recommendation of Congressman Kastenmeier (Abrams Aff't, Ex. L at 104, Ex. K at 5). The Committee on Court Administration and Case Management (the "Case Management Committee") was assigned the task of overseeing the Pilot Program and the Judicial Conference authorized the Federal Judicial Center to "monitor and evaluate the pilot" (Abrams Aff't, Ex. J at 104). The Pilot Program remained in effect until December 31, 1994 (Brill Aff't Paragraph 8). The Pilot Program was successful. As had every other jurisdiction that had monitored the effects of cameras on court proceedings, the study of the Pilot Program produced by the Federal Judicial Center (the "Federal Study") revealed an overwhelmingly positive impact as a result of the presence of cameras (Abrams Aff't, Ex. L).7 Based upon a review of numerous prior state studies, on judge and attorney evaluations submitted in connection with the Pilot Program, on interviews with participants, the Federal Study, whatever its limits as social science, concluded, among other things: * "Overall, attitudes of judges toward electronic media coverage of civil proceedings were initially neutral and became more favorable after experience under the pilot program" (Abrams Aff't, Ex. L at 7). * "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" (id.). * "Judges, media representatives, and court staff found the guidelines governing the program to be generally workable" and "judges and staff report[ed] that members of the media were very cooperative and complied with the program guidelines and any other restrictions imposed" (id.). Based upon these findings, the Case Management Committee -- the very committee charged with overseeing the Pilot Program -- submitted to the Judicial Conference a report and recommendation that camera coverage of civil proceedings, both trial and appellate, be made permanent and be extended to all federal courts (Abrams Aff't, Ex. M). On September 20, 1994, however, the majority of the Judicial Conference "declined to approve" the recommendation (Abrams Aff't, Ex. N at 47) and "[n]o action was taken with regard to the ongoing pilot program" (id.), which subsequently expired on December 31.[8] The Judicial Conference explained its action by noting only that a "majority of the conference concluded that the intimidating effect of cameras on some witnesses and jurors was cause for concern" (id.). Two days later, L. Ralph Mecham, the Director of the Administrative Office of the United States Courts, sent a memorandum to all federal judges in which he also asserted concerns of the Judicial Conference about the content of out-of- court reporting (Abrams Aff't, Ex. O). According to him, the Judicial Conference disapproved of the fact "that most broadcast coverage was not gavel-to-gavel and 'conveyed little verbal information to viewers about the legal process'" (id.). Nothing in the Judicial Conference's initial resolution or the later letter of Mr. Mecham referred to the existence of Rule 7 or those other local court rules that continued to permit cameras in their courtrooms. ARGUMENT I. INTERVENTION IS PROPER PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 24 Federal Rule of Civil Procedure 24(a)(2) provides that intervention shall be granted as of right when an applicant "claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." Court TV satisfies the Rule 24(a)(2) criteria, and thus must be allowed to intervene as of right for the limited purpose of being heard on its application to televise the March 4 Argument.9 Intervention under "Rule 24 is the proper mechanism for a non- party . . . to gain access to information generated through judicial proceedings." In re NASDAQ Market-Makers Antitrust Litigation, No. 94 Civ. 3996, 1996 WL 15655, at *5 (S.D.N.Y. Jan. 16, 1996) (Sweet J.) (compiling cases) (annexed hereto at Tab 2). Moreover, "representatives of the press and general public 'must be given an opportunity to be heard on the question of their exclusion.'" Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n.25 (1982) (citation omitted). First, Court TV has an interest in televising the March 4 Argument. As a national legal news network, Court TV has been among the most active members of the press in conveying to the public information concerning such legal issues and in reporting on the proceedings and workings of the federal judicial system (see Brill Aff't Paragraphs 3-5; Abrams Aff't, Ex. L at 37). These proceedings are without question newsworthy. See pages 11-13 supra. Second, General Rule 7 of the Rules of this Court provides on its face that written permission must be obtained to bring a "camera, transmitter, receiver . . . or recording device." S.D.N.Y. Gen. R. 7. Court TV seeks such permission here. Third, as a representative of the press and general public, Court TV has a presumptive right of access to these public judicial proceedings. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 n.17 (1980); Westmoreland v. Columbia Broadcasting Systems, Inc., 752 F.2d 16, 23 (2d Cir. 1984), cert. denied, 472 U.S. 1017 (1985). Neither the plaintiffs nor the defendants in this action have represented, nor can be expected adequately to represent, these interests. Courts in the Southern District recognize that important interests are best championed by those imminently threatened with their loss. See, e.g., In re NASDAQ Market-Makers Antitrust Litig., 1996 WL 15655, at *5 (granting newspaper's motion to intervene as of right for limited purpose of allowing newspaper to be heard on issue of access to sealed court documents and tapes); In re Akron Beacon Journal, 1995 WL 234710, at **2-5 (granting newspaper's motion to intervene under Rule 24(b)(2) to seek modification of protective order); United States v. Yonkers Board of Education, 587 F. Supp. 51, 52 (S.D.N.Y.) (granting reporter's motion to intervene for limited purpose of determining whether reporter could tape court proceedings), aff'd, 747 F.2d 111 (2d Cir. 1984). Accordingly, Court TV's application to intervene as of right pursuant to Rule 24(a)(2), or alternatively, by per- mission pursuant to Rule 24(b)(2), should be granted. II. THIS COURT SHOULD PERMIT COURT TV TO TELEVISE THE MARCH 4 ARGUMENT PURSUANT TO GENERAL RULE 7 OF THE LOCAL RULES OF THIS COURT General Rule 7 of the Local Rules of this Court is entitled "Photographs, Radio, Recordings, Television." The rule prohibits any person other than "court officials engaged in the conduct of court business" from bringing into "any courthouse or its environs" any "camera, transmitter, receiver, portable telephone or recording device" except upon "written permission of a judge of that court." S.D.N.Y. Gen. R. 7. This Court should grant Court TV written permission to bring its audio-visual equipment into the courthouse in order to televise the March 4 Argument. A. As A Matter Of Law, Rule 7 Governs The Instant Application 1. The Force of District Court Rules Congress has determined that "all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business." 28 U.S.C. Section 2071(a) (1988). Pursuant thereto, the Federal Rules of Civil Procedure provide: "Each district court by action of a majority of the judges thereof may from time to time, after giving appropriate public notice and an opportunity to comment, make and amend rules governing its practice not inconsistent with these rules. A local rule so adopted shall take effect upon the date specified by the district court and shall remain in effect unless amended by the district court or abrogated by the judicial council of the circuit in which the district is located." Fed. R. Civ. P. 83. Only one rule of this Court speaks to the question of whether cameras may be permitted into Southern District courtrooms: General Rule 7 of the Local Rules of this Court. Entitled, "Photographs, Radio, Recordings, Television," Rule 7 provides, in relevant part: "No one other than court officials engaged in the conduct of court business shall bring any camera, transmitter, receiver, portable telephone or recording device into any courthouse or its environs without written permission of a judge of that court." S.D.N.Y. Gen. R. 7. As late as 1988, Rule 7, carrying the same title, sent a quite different message. It then provided, in pertinent part, that: "The taking of photographs and the use of recording devices in the courtroom or its environs, except by officials of the court in the conduct of the court's business, or radio or television broadcasting from the courtroom or its environs during the progress of or in connection with judicial proceedings or otherwise, whether or not court is actually in session, is prohibited." McKinney's New York Rules of Court S.D.N.Y. Gen. R. 7 (West 1988). The very next year, Rule 7 was amended to its current form. See McKinney's New York Rules of Court (West 1989). Rule 7 has not been changed since then. There has been no action by the district court or the judicial council of the Second Circuit to modify or abrogate it. Rule 7 is the only rule of court currently in existence that addresses whether cameras may be permitted into Southern District courtrooms in civil proceedings. Unlike the criminal context, see Fed. R. Crim. P. 53, the Federal Rules of Civil Procedure do not address the issue. Unlike the rules in effect in district courts that continue to bar cameras absolutely, e.g., N.D. Ill. Gen. R. 1.52, or which do so in all but "ceremonial" proceedings, e.g., S.D. Fla. Gen. R. 77.1., Rule 7 contains no such bar. 2. The Absence Of Authority Of The Judicial Conference To Modify Or Abrogate District Court Local Rules On September 20, 1994, the Judicial Conference of the United States rejected the recommendation by its Committee on Court Administration and Case Management to permit generally the "photographing, recording, and broadcasting of civil proceedings in federal trial and appellate courts" (Abrams Aff't, Ex. N at 46- 47). The pilot program that had been in effect continuously for more than two years' prior to that time expired. The Judicial Conference is a creature of federal statute, and Congress could hardly have been clearer as to its function, as well as to its rule-making authority. Section 331 of the Judicial Code provides that "the Chief Justice of the United States shall summon annually" the members of the Conference. 28 U.S.C. Section 331 (1988). The Conference, so convened, "shall make a comprehensive survey of the condition of business in the courts of the United States and prepare plans for assignment of judges to or from circuits or districts where necessary." Id. The Conference "shall also submit suggestions and recommendations to the various courts to promote uniformity and management procedures and the expeditious conduct of court business." Id (emphasis added). The Conference is also obligated to carry on a continuous study of the "operation and effect of the general rules of practice and procedure" as prescribed by the United States Supreme Court for other courts, and to recommend to that Court any such changes it "may deem desirable." Id. The Judicial Conference's authority to take legal action and make binding rules is clear, specific, and narrow. First, the Conference, either by itself or through a standing committee "is authorized to exercise the authority provided in section 372(c) of [the Judiciary Code] . . . ." 28 U.S.C. Section 331 (1988). Section 372(c), in turn, sets forth the procedures for disciplining judges about whom the public has complained. 28 U.S.C. Section 372(c) (1988 & Supp. V 1993). Second, the Conference is authorized to "prescribe and modify rules for the exercise of the authority provided in Section 372(c)". 28 U.S.C. Section 331 (1988). Third, the Judicial Conference "shall review rules prescribed under section 2071 of this title by the courts, other than the Supreme Court and the district courts, for consistency with Federal law. The Judicial Conference may modify or abrogate any such rule so reviewed found inconsistent in the course of such a review." 28 U.S.C. Section 331 (1988) (emphasis added). On its face, then, Section 331 does not accord the Judicial Conference the power to make changes to or to overrule any district court rule, including Rule 7; Congress explicitly has barred it from doing so. The Conference is empowered only to "modify or abrogate rules" other than those of any district court. Indeed, in 1985, Congress considered granting rule making authority over district courts to the Judicial Conference, but rejected the idea. H.R. Rep. No. 422, 99th Cong., 1st Sess. 20 (1985). The Second Circuit's decision in United States v. Cacciatore, 487 F.2d 240 (2d Cir. 1973), is instructive. There, this Court had adopted a "Plan For Achieving Prompt Disposition Of Criminal Cases", which provided that the government was required to be "ready for trial within six months . . . ." Id. at 243. The defendant -- and the trial judge -- invoked a 1971 Judicial Conference Report that had adopted the recommendation of the Case Management Committee defining "'prompt disposition' of criminal cases" to be "'ordinarily not more than sixty days'". Id. at 243 n.2. The Second Circuit rejected the reliance upon the Judicial Conference report: "Whatever the merits of this recommendation of the Judicial Conference, the fact remains that it has never been implemented by the District Court for the Southern District of New York by rule or otherwise - as likewise certain other recommendations of the same session of the Judicial Conference have never been implemented by the Southern District." Id.; accord Armster v. United States District Court, 806 F.2d 1347, 1349 n.1 (9th Cir. 1986) ("Except for judicial disciplinary proceedings, the Judicial Conference does not have binding or adjudicatory authority over the courts.").10 Accordingly, under the plain language of a federal statute, and under Cacciatore, there can be no question that Rule 7 -- which directly addresses the question of whether cameras, receivers and transmitters may be brought into Southern District courthouses -- must alone govern the instant application. The Judicial Conference is empowered only to make "suggestions and recommendations." As we demonstrate below, those that exist regarding televised proceedings should not control here. B. On Its Face, Rule 7 Plainly Confers Upon This Court Discretion To Allow The March 4 Argument To Be Televised The plain language of Rule 7 empowers this Court to grant Court TV's application to televise the March 4 Argument. The Rule is facially broad: Unlike some rules, it does not distinguish between types of proceedings. E.g., E.D. Pa. Civ. R. 83.3 ("investitive, naturalization or other ceremonial proceedings" may be "broadcast" or "filmed"); S.D. Fla. Gen. R. 77.1 (permitting "photographing in connection with naturalization hearings or other special proceedings"); D. Del. R. 83.2 (permitting "broadcasting, televising, recording or photographing" of, inter alia, "law school moot court proceedings, and activities sponsored by the bar association for continuing legal education"). Unlike others, it is not a mandatory prohibition. E.g., N.D. Ill. Gen. R. 1.52 ("[T]aking of photographs, radio and television broadcasting or taping in the court environs . . . is prohibited."); D. Colo. R. 83.3 ("The possession or use of cameras or recording devices is prohibited. . . ."); McKinney's New York Rules of Court S.D.N.Y. Gen. R. 7 (West 1988). Although it addresses "television" and "radio," it includes no limitations with respect thereto, compare E.D. Pa. Civ. R. 83.3 ("No judicial proceedings may be broadcast by radio or television. . . ."); N.D. Okla. Civ. R. 83.1 ("radio or television broadcasting" prohibited except for ceremonial proceedings); nor does it even distinguish, as many other rules do, between "the taking of photographs" and the act of "broadcasting or televising". E.g., S.D. W. Va. L.R. Gen. P. 5.01 ("[T]aking of photographs in the courtroom... and the transmitting or sound recording of proceedings for broadcast by radio or television, is not permitted."). Unlike others, it does not track current Judicial Conference policy, e.g., E.D. Mich. L.R. 113.1 (judge may authorize "the radio or television broadcasting . . . pursuant to resolution of the Judicial Conference of the United States"), or, as some still do, former Judicial Conference policy. E.g., M.D. Fla. R. 4.11 ("As approved by the Judicial Conference of the United States at its March, 1979 meeting, the taking of photographs" for ceremonial proceedings "is authorized"). Courts throughout the Federal system have chosen all manner of specific limitations for all manner of purposes, in some cases directly referring to the Judicial Conference. Rule 7 draws no such distinctions.11 Nor, as an interpretive matter, can Rule 7 be limited to the particular enumerated circumstances set forth in the Policy Statement adopted by the Judicial Conference in 1990. Rule 7 in its current form was adopted prior to the enactment of the Policy Statement. See Section II.A.1. supra. Indeed, at the time Rule 7 was adopted in its current form,12 the Judicial Conference still adhered to former Canon 3A(7). C. As A Matter Of Its Discretion Under Rule 7, This Court Should Grant The Instant Application Court TV seeks to televise the entirety of the March 4 Argument, gavel-to-gavel. The request should be granted as an exercise of this Court's discretion under Rule 7.13 1. Concerns With The Effects Of Cameras On The Proceedings Themselves The Judicial Conference voted against continued audio-visual coverage of federal civil proceedings, in part, because of its concerns about the possible "intimidating effect of cameras on some witnesses and jurors" (Abrams Aff't, Ex. N at 47). No such concern exists here; there will be no witnesses or jurors at the March 4 Argument. Indeed, virtually none of the risks exist here that are typically raised as objections to trial court proceedings where cameras have been -- and largely still are -- permitted. See, e.g., Former Guidelines for the Pilot Program on Photographing, Recording, Broadcasting in the Courtroom -- Southern District, General Rules of the Rules of this Court, Appendix D ("Pilot Program Guidelines") Section 2(c) (jury could not be photographed during federal court experiment); N.Y. Jud. Law Section 218(5)(c) (McKinney Supp. 1996) (non-party witnesses may have image obscured); N.Y. Jud. Law Section 218(5)(b) (McKinney Supp. 1996) (suppression hearings may not be televised). In one sense, the proceeding will be very much like an appellate oral argument -- with attorneys and the Court the lone participants. See, e.g., Roger J. Miner, Keeping An Eye On Justice, 67 N.Y.S. B.J. 8, 14 (Feb. 1995) (Abrams Aff't, Ex. Q). Moreover, because this is a civil case, there is no threat that a criminal defendant's Sixth Amendment rights could be compromised in any way. Finally, we address the concern that opponents of televised coverage -- though not the Judicial Conference -- have recently raised in the wake of the O.J. Simpson criminal trial in California state court: the question of "attorney grandstanding" (both in and out of the courtroom) and the related concern that the court's dignity will be compromised as a result thereof. First, whatever the behavior of the attorneys in the Simpson case, it is far from clear that the presence of the television cameras caused that behavior -- and the unquestioned affront to courtroom dignity it wrought -- to occur.14 Second, the overwhelming empirical evidence suggests that attorney grandstanding is very rarely, if ever, a problem peculiar to televised cases (e.g., Abrams Aff't, Ex. F at 775, Ex. L at 25). Finally, attorney misbehavior and melodrama both in and out of court are hardly new phenomena: For centuries -- and without in-court television - - the bombast of lawyers from Patrick Henry to William Jennings Bryan to William Kunstler have been legendary -- and, sometimes, undignified.15 2. Content-Based Concerns Nor should permission be denied because of concerns with the way the footage of the March 4 Argument may be utilized out-of-court, the other general concern expressed by the Judicial Conference. Mr. Mecham of the Administrative Office of the United States Courts stated to all federal judges two days after the Judicial Conference's vote that Judicial Conference members had expressed concern that "coverage was not gavel-to-gavel" (Abrams Aff't, Ex. O). The March 4 Argument will be televised gavel-to-gavel on Court TV (Brill Aff't Paragraph 16). But even if it were not, as the Florida Supreme Court has stated, "[n]ewsworthy trials are newsworthy trials, and . . . they will be extensively covered by the media both within and without the courtroom whether [cameras are permitted] or not." In re Petition of Post-Newsweek Stations, 370 So. 2d 764, 776 (Fla. 1979). Even small portions of televised coverage can add to -- and surely not detract from -- the informational value of a reporter's summary of events (Abrams Aff't, Ex. G at 91 ("[R]eporting on court proceedings, both by newspaper and broadcast reporters, frequently is more accurate and comprehensive when cameras are present."). More fundamentally, however, we respectfully submit that this Court should not exercise its discretion to deny the instant application solely because of anyone's discontent with the content of out-of-court reporting on other occasions. It is beyond dispute that the March 4 Hearing must be open to press and public, absent the most clearly articulated and compelling reasons for closing it. E.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Westmoreland v. Columbia Broadcasting Systems, Inc., 752 F.2d 16, 22 (2d Cir. 1984).16 "What transpires in the court room is public property," Craig v. Harney, 331 U.S. 367, 374 (1947), particularly given the unquestioned proposition, as Justice Frankfurter said long ago, that "[o]ne of the demands of a democratic society is that the public should know what goes on in courts . . . ." Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 920 (1950) (denial of certiorari). The First Amendment also guarantees the press the right to report and comment upon these proceedings, even in a manner that some may deem to be irresponsible. E.g., Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976); Wood v. Georgia, 370 U.S. 375 (1962). Amidst the current alarm over "sensationalist" reporting on the judiciary and the affront some believe such reporting to be to its dignity, the Supreme Court's admonition in Bridges v. California, 314 U.S. 252 (1941), is more than instructive: "The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and con- tempt much more than it would enhance respect." 314 U.S. at 270-71. On one level, these principles are irrelevant to the present application by which Court TV seeks leave to televise the March 4 Argument. The coverage will be complete; it will not be sensationalistic; none of the concerns about content of televised trial coverage are even implicated. On a broader level, however, the repetition of those concerns could not be more relevant because they demonstrate the ease with which those who seek to ban camera coverage assert positions that are plainly at odds with the First Amendment. To deny the application on the basis of concerns about the content of the coverage that will follow would be similar to denying print reporters entrance to a trial because some newspaper coverage is sensationalistic or incomplete. That, of course, would so plainly violate the First Amendment that it is no longer even asserted -- except, regrettably, with respect to televised trial coverage. We respectfully urge that no court should attempt, consistent with these core constitutional values, to manage the electronic media in the same fashion.17 CONCLUSION For the foregoing reasons, Courtroom Television Network respectfully requests that this Court grant its motion to intervene for the limited purpose of obtaining leave of this Court, pursuant to General Rule 7, to televise the oral argument to be held before this Court on March 4, 1996, on plaintiffs' motion for class certification and defendants' partial motions to dismiss. Dated: New York, New York Respectfully submitted, February 23, 1996 CAHILL GORDON & REINDEL (a partnership including a professional corporation) By: Floyd Abrams (FA-0902) Jonathan Sherman (JS-6633) Barbara Swann (BS-2242) 80 Pine Street New York, New York 10005 (212) 701-3000 Attorneys for Courtroom Television Network ENDNOTES 1. References to the "Brill Aff't" are to the Affidavit of Steven Brill, sworn to February 22, 1996. References to the "Abrams Aff't" are to the Affidavit of Floyd Abrams, sworn to February 22, 1996. A complete description of each federal proceeding that Court TV has covered is set forth in paragraphs 9, 11 and 12 of the Brill Aff't. 2. The device can be operated by a Court TV employee (who can also be an attorney), or it can be operated by the presiding judge himself. Moreover, the presiding judge can also be provided with an audio "kill switch," which enables the court, at its sole discretion, to stop all audio coverage at appropriate moments. (Brill Aff't Paragraph 14) 3. Because Court TV's anticipated programming frequently changes prior to each day, Court TV does not yet know whether it will carry the March 4 Argument live. If able to do so, it will do so. (Brill Aff't Paragraph 16) 4. "Improvements in technology have rendered cameras no more, and possibly less, conspicuous than the newspaper reporter with pencil and notebook and the courtroom artist with crayon and sketch pad" (Abrams Aff't, Ex. G at vii). 5. Prior to 1979, the Judicial Conference had adhered to a complete ban on all cameras in courtrooms. See Revised Report of the Judicial Conference Committee on the Operation of the Jury System on the "Free Press─Fair Trial" Issue, 87 F.R.D. 519, 536 (1980). 6. The Ad Hoc Committee itself had made its recommendation, in part, as a result of the decision, two years earlier, by the ABA to strike Canon3A(7) from its Code of Judicial Ethics, abolishing any mandatory prohibition (Brill Aff't Paragraph 27). 7. Although the Pilot Program lasted through the end of 1994, the Federal Study evaluated activity through June 30, 1993. 8. Just prior to the expiration, the Case Management Committee stated that it would "make no further recommendations regarding cameras in the federal courts" in light of the Judicial Conference's September 20 action (Abrams Aff't, Ex.P). 9. Alternatively, Court TV seeks permissive intervention pursuant to Federal Rule of Civil Procedure 24(b). As Judge Haight recently explained: "While the criteria for intervention under [Rules] 24(a) and (b) differ, the 'distinction is neither as clearcut nor as important as the usual statement would suggest.' 7C Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure Section 1902, at 231 (2d ed. 1986 & Supp. 1993). Movants will often rely alternatively on Rule 24(a) and (b) and it is not uncommon for a court to allow intervention in such cases without specifying the subdivision under which intervention has been granted. Id. Furthermore, an applicant who fails to meet the requirements of Rule 24(a) may be permitted to intervene under 24(b)(2). Id." In re Akron Beacon Journal, No. 94 Civ. 1402, 1995 WL 234710, at *5 (S.D.N.Y. Apr. 20, 1995) (granting newspaper's motion to intervene under Rule 24(b)(2)) (annexed hereto at Tab 1). 10. Cacciatore and Armster were decided prior to the Judicial Improvements Acts of 1988, in which Congress accorded to the Conference limited power to modify or abrogate rules from courts "other than the Supreme Court and the district courts." Accordingly, both cases remain good law with respect to the lack of authority of Conference policy over the rules of this district court. 11. Nor, we note, is it unique. In 1995, the Eastern District of New York amended its General Rule 7, which had been a mandatory prohibition, to make it identical with Rule 7 of this Court. E.D.N.Y. Gen. R. 7. The same is true elsewhere. E.g., E.D. Wis. R. 16.01 ("Taking of photographs or recordings and broadcasting of radio or television are prohibited ..., without first obtaining written permission...."); E.D. Okla. R. 28 ("There will be no electronic recording equipment, receiving or transmitting devices allowed in the courtroom while Court is in session except by Order of the Court."). 12. Prior to that time, Rule 7 absolutely barred cameras from Southern District courtrooms. McKinney's New York Rules of Court S.D.N.Y. Gen. R.7 (West 1988). 13. We note that on June 14, 1995, Court TV sought permission from Jon O. Newman, Chief Judge of the United States Court of Appeals for the Second Circuit, to televise an oral argument before a panel of that Court. Judge Newman, in an undocketed letter, denied the application, reasoning that "televising an ordinary civil appeal would at present be contrary to the policy of the United States Judicial Conference." Unlike this Court, however, the Second Circuit has no rule authorizing cameras to be present, and during the pendency of the Pilot Program, it had expressly adopted a rule stating that "[p]ursuant to a resolution of the Judicial Conference of the United States in September 1990 ... [f]rom July1, 1991, until December31, 1994, proceedings of the Court conducted in open court may be covered by the media using a television camera." 1994 US Order 94-31. Moreover, as we noted earlier, see Section II.A.2 supra, the Judicial Conference is empowered to review rules of the courts of appeals at the same time it lacks the power to do so with respect to the duly─enacted rules of this district court. 28 U.S.C. Section 331 (1988). 14. See, e.g., In Some Courtrooms, Check Those Cameras at the Door, The Washington Post, Oct.23, 1995 at F7 (noting that "[Judge Jon O.] Newman and others argue that cameras had nothing to do with the deficiencies of the Simpson case, such as its length, lack of judicial control and grandstanding by prosecutors and defense attorneys") (Abrams Aff't, Ex. R); Simpson's Trial and the Rush to Reform, Judicature, Sept.─Oct. 1995, at 56 ("To blame the camera for the frustrations of the Simpson trial... is to kill the messenger for the content of the message.") (Abrams Aff't, Ex. S). As Justice Herbert P. Wilkins of the Supreme Court of Massachusetts recently observed in the context of reasserting that in that Commonwealth, there is a "strong presumption" in favor of televised trial coverage, "[t]he circumstances of People v. Simpson in California should not be permitted to influence the operation of our Massachusetts rule.... It would be instructive to record electronically how an able Massachusetts judge conducts a high publicity trial...." Hearst Corp. v. Justices of the Superior Court, No. SJ-96-0047 (Mass. Feb. 1, 1996), slip. op. at 5. 15. As Stanford Law Professor Lawrence Friedman has written about the great trials of the nineteenth century: "It was in those cases that lawyers outdid themselves in oratory and in maneuvering.... The newspapers of the 1880s and 1890s, of course, reported the show for the curious millions who were not lucky enough to squeeze into the courtroom." L. Friedman, Crime and Punishment in American History, at 252-53 (1993). 16. In Westmoreland, supra, the Second Circuit determined -- long before the successful Pilot Program and at a time when Rule 7 absolutely prohibited cameras in Southern District courtrooms -- that it was "not yet prepared" to recognize a constitutional right to televise a trial. 752 F.2d at 23. Westmoreland was rooted in the Court's unwillingness to overrule the then─existing Southern District rule barring cameras, the very rule superseded by current Rule7. 17. These principles have long had force in the context of "unconstitutional conditions" caselaw. See Dolanv. City of Tigard, 114 S. Ct. 2309, 2317 (1994). The Supreme Court has repeatedly ruled that even though individuals may not be entitled to one or another form of government benefit, "there are some reasons [in doing so] upon which the government may not rely." Perryv. Sindermann, 408 U.S. 593, 597 (1972). "[I]f the government could deny a benefit to a person because of his constitutionally protected speech ..., [it] would allow the government to 'produce a result which [it] could not command directly.'" Id. (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)). This is true, as Justice Douglas observed, in the context of "discretionary" decisions: "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., Circuit Justice) (quoting Williamson v. United States, 184 F.2d 280, 283 (2d Cir. 1950) (Jackson, J.)), review denied, 369 U.S. 886 (1962); see Gagliardiv. Village of Pawling, 18 F.3d 188, 194 (2d Cir. 1994) (discretionary decision not to enforce zoning laws can be held unconstitutional where reasons for decision "substantially caused by" plaintiff's "exercise of free speech"). </PRE> <IMG SRC="/graphics/ctv/stroke.gif" HEIGHT=15 WIDTH=547> <A HREF="/map/bottom.map"><IMG SRC="/graphics/ctv/bottom.gif" ISMAP ALIGN=ABSBOTTOM BORDER=0 WIDTH=533 HEIGHT=30></A> <IMG SRC="/graphics/ctv/rights.gif" ALT="Copyright 1996 by the Courtroom Television Network. All Rights Reserved. No parts of this site may be reproduced in any form without the permission of Court TV. Disclaimer: Nothing in this site is intended to constitute legal advice."> </BODY> </HTML>