AOL File Library: 9,300 to 9,399/9300.zip/AOLDLs/Legal Documents/Victoria's Secret Class Action/VIC.txt

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[Editor's Note: Court TV won permission to
broadcast oral arguments in a class action brought against the
Victoria's Secret Catalogue for discriminatory pricing practices
based on gender. Here is the April 29, 1996 ruling.]


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DENISE KATZMAN, et al.,

Plaintiffs,

- against -

VICTORIA'S SECRET CATALOGUE, et al.,

Defendants


IN RE:

COURTROOM TELEVISION NETWORK,

Applicant/Proposed Intervenor.

APPEARANCES:

HOWARD GOTBETTER, ESQ.
Attorney for Plaintiffs
100 Central Park South
New York, NY 10019

PARKER CHAPIN FLATTAU & KLIMPL, LLP
Attorney for Defendants
1211 Avenue of the Americas
New York, NY 10036
By; STEPHEN F. HARMON, ESQ.
Of Counsel

FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
Attorney for Defendants
One New York Plaza
New York, NY 10004
By: GREGORY P. JOSEPH, ESQ.
Of Counsel

CAHILL GORDON & REINDEL
Attorney for Proposed Intervenor
80 Pine Street
New York, NY 10005
By: FLOYD ABRAMS, ESQ.
Of Counsel

OPINION

96 Civ. 0003 (RWS)

Sweet/ I).J.

     Courtroom Television Network ("Court TV") has moved to
be heard, either pursuant to General Local Rule 7 o£ this
Court ("Rule 7") or through a motion to intervene pursuant
to Rule 24, Fed. R, Civ. P., to seek permission to televise
an oral argument to be held on May 1, 1996, on the motion
of defendants, Victoria's Secret Catalogue, Leslie H.
Wexner, Edward G. Pazek, Cynthia Fedus, and Betsy
Hendrickson (collectively, "Victoria's Secret" or
"Defendants"), to dismiss the Amended Complaint and on the
motion of Plaintiff Denise Katzman ("Katzman") to dismiss
the Amended Ccomplaint (the "May 1 Argument"). For the
reasons set forth below, Court TV's motions to intervene
and to televise the May 1 Argument will be granted.

Background

Prior Proceedings

     The Complaint was filed on January 2, 1996, as a class
action, and an Amended Complaint was filed on January 4,
1996. The filings were reported in a number of news
publications and on television.

     The Amended Complaint alleges that Victoria's Secret
Catalogue, a manufacturer and distributor of women's apparel,
which sells large volumes of merchandise via mail order
catalogue, has discriminated in its pricing structures with
respect to catalogues mailed to different catalogue
recipients. The Amended Complaint alleges violations of the
Racketeer Influenced and Corrupt Organizations Act, 18
U.S.C.  1961, et seq. ("RICO"). A proposed second amended
and supplemental complaint alleges violations of the Lanham
Act, adds an additional named plaintiff, and provides
additional detail on the alleged discriminatory scheme.
Two pretrial motions are pending: Defendants' motion to
dismiss the Amended Complaint, which challenges the legal
sufficiency of the discriminatory pricing claims, and
Katzman's motion to serve and file the second amended and
supplemental complaint. The motions are scheduled to he
heard on May 1, 1996.

The Nature of the Application

     The instant application to be heard and to televise
the May 1 Argument was heard on its return date, April 17
1996, and was opposed by Defendants. It was considered
fully submitted on that date.

     Court TV is a news television network, which reports
on legal and judicial systems within the United States and
abroad. Since its creation, Court TV has specialized in
extended, complete coverage of civil and criminal trials
and has televised over four hundred such trials, as well as
numerous oral arguments, both on motions before trial courts and
in appellate proceedings. Court TV has televised fifty-one cases
in federal court, both before district courts (including this
Court) and courts of appeals.

     Court TV uses one small, stationary camera, which
makes no noise and requires only existing courtroom
lighting. The camera is placed away from the proceedings
and can be operated by remote control by a Court TV
technician. Small microphones record only the public record.
The equipment is no more distracting in appearance than
reporters with notebooks or artists with sketch
pads.

     Court TV seeks to televise the May 1 Argument
gavel-to-gavel. Court TV will not state whether it will
carry the May 1 Argument live or when or if it will be
broadcast.

Discussion

The Motion to Intervene Will be Granted

     Generally, "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 for Norfolk Cty., 457 U.S. 596, 609 n.24
(1982) (quoting Gannet Co. v. De Pasquale, 443 U.S. 368,
401 (1979) (Powell,J., concurring)).  Rule 24(a) (2) of the
Federal Rules of Civil Procedure 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 has articulated an interest relating to this
action: its interest in broadcasting to its viewers an
event it deems newsworthy -- the May 1 Argument.

     With respect to the second criterion of Rule 24
(a)(2), neither Katzman nor Defendants adequately represent
the interest of Court TV. Defendants have vigorously
opposed Court TV's motion and, thus, plainly do not
represent Court TV's interests. Katzman supports the
application but possesses an entirely different interest.
Important interests are best championed by those most
directly affected by their impairment. See, e.g., In re
NASDAQ Market-Makers Antitrust Litig., 164 F.R.D. 346, 351
(S.D.N.Y. 1996) (granting newspaper's motion to intervene
to be heard on issue of access to sealed court materials);
In re Akron Beacon Journal, 1995 WL 234710, at *2-5
(S.D.N.Y. Apr. 20, 1995) (granting newspaper's motion to
intervene to seek  modification of protective order);
United States v. Yonkers Bd. of Educ., 587 F. Supp. 51, 52
(S.D.N.Y.) (granting reporter's motion to intervene to seek to
tape court proceedings), aff'd, 747 F.2d 111 (2d Cir. 1984).
Accordingly, Court TV meets the second criterion for
intervention, and its motion to intervene pursuant to Rule
24 will be granted.

Local Rule 7 i4 Controlling

     Rule 7, entitled "Photographs, Radio, Recordings,
Television," reads, in pertinent part, as follows:

  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.

     This rule was promulgated by the Board of Judges of
this District as a result of Congress' determination 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.  2071 (a) (1988). Pursuant to that statute, the
Federal Rules of Civil Procedure provide:

Each district court, acting by a majority of its district
judges, may, after giving appropriate public notice and an
opportunity for comment, make and amend rules governing its
practice, . . . A local rule takes effect on the date
specified by the district court and remains in effect
unless amended by the court or abrogated by the judicial
council of the circuit.


Rule 83(a)(1).  Fed. R. Civ. P. Rule 7, which was enacted
by a majority of this Court's judges, took effect on June
30, 1988, see Marisol A. v. Giuliani, 95 Civ. 10533 (RJW),
1996 WL 91638 at *1 (S.D.N.Y. Mar. 1, 1996), and is the
only local rule at present that addresses the topic of
television, cameras, and related matters.1

     On September 20, 1994, the Judicial Conference of the
United States "declined to approve" the recommendation of
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." That decision followed a two-year-long
"Pilot Program" on television in federal trial courts, in
which this Court participated.

     On March 12, 1996, the Judicial Conference resolved
that "each Court of Appeals may decide for itself whether
to permit the taking of photographs and radio and
television coverage of appellate arguments. " At the same
time, the Judicial Conference approved a resolution
"strongly urging each Judicial council to
adopt pursuant to 28 U.S.C. Section 332(d) (1) an order
reflecting the conference's September 1994 decision not to
permit the taking of photographs and radio and television
coverage of proceedings in U.S. district courts." In
addition, "the Conference also voted to strongly urge
circuit judicial councils to abrogate any local rules of
court that conflict with this decision, pursuant to, 28 U.
S. C, Section 2071(c) (1)."

     However, Section 331 of the Judicial Code, which
established the Conference, excludes from its authority the
changing or overruling of district court rules. This Court
evaluated the authority of the Judicial Conference in its
recent decision in Marisol A., 1996 WL 91638, at *1. There,
the Honorable Robert J. Ward ruled that "the policy of the
Conference does not overrule or supplant the Local Rules
adopted by the Board of Judges of this District Court." See
28 U.S.C. Sections 331, 2071(c) (1988), Marisol A., 1996 WL
91638, at *1. Judge Ward held, "the Court should consider
the Conference policy only as a persuasive factor in the
exercise" of its discretionary powers under Rule 7.  Id.;
accord United States v. Cacciatore, 487 F.2d 240, 243 n.2
(2d Cir. 1973) (rejecting reliance on Judicial Conference
report that provided shorter time period for disposing of
criminal cases than did the rules of this court, noting:
"[w]hatover 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....")


     There is, then, no binding authority other than Local
General Rule 7 that addresses the topic of television.
While the recent action of the Judicial Conference is
persuasive, this Court is not required to, defer to it. See
Marisol A., 1996 WL 91638, at *1.

Rule 7 Provides Discretion to Grant the Relief Requested

Although Rule 7 does not state in the affirmative that
court proceeding. may be televised, it plainly permits
cameras in the courtroom with a judge's written permission.
"Television", though not mentioned in the text of the rule,
appears in its title.  Indeed, the title of a statutory
provision can easily resolve "any possible ambiguity" in
interpreting the meaning of that provision.  Mead Corp. v.
Tilley, 490 U.S. 714, 723 (1989); accord F.T.C, v. Mandel
Bros., Inc., 359 U.S. 385, 388-89 (1959).  On its face,
then, Rule 7, as Judge Ward found in Marisol A., 1996 WL
91638, at *1, grants a judge of this Court discretion to
authorize television of proceedings in his or her
courtroom.

     In the face of plain language such as that in Rule 7,
a venture into a rule or statute's etiology for the
purposes of finding another less permissive and
discretionary meaning is generally inappropriate. As our
Court of Appeals has noted:

[T]he first canon of statutory construction is that "a
Legislature says in a statute what it means and means in
a statute what it says there." Connecticut Nat'l Bank v.
Germain, 112 S. Ct. 1146, 1149 (collecting cases). Indeed,
"[w]hen the words of a statute are unambiguous, . . . this
first canon is also the last: 'Judicial inquiry is
complete.' Id. (quoting Rubin v. United States, 449 U.S.
424, 430 (1981)). Finally, "unless otherwise defined,
[statutory] words will be interpreted as taking their
ordinary, contemporary, common meaning."

United States v. Piervinanzi, 23 F.3d 670, 677 (2d Cir.),
cert. denied, 115 S. Ct. 259 (1994): accord, e.g., Wetzler
v. FDIC, 38 F.3d 69, 73 (2d Cir. 1994).[2] The same rules
of construction apply particularly to rules promulgated by
the court itself pursuant to congressional authority, such
as Rule 7 .

     The carefully constructed legislative history argument
of Victoria's Secret to bestow another meaning on Rule 7
is, in any event, ultimately no more solid than the plain
language interpretation. The former Rule 7, McKinney's New
York Rules of Court, S.D.N.Y. Gen. R. 7 (West 1988)
("Former Rule 7") read as follows:


  The taking of photographs and the use of recording
devices in the courtroom of 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, including proceedings
before a United States Magistrate, whether or not the court
is actually in session, is prohibited.

     It is argued that the added reference to a
"transmitter, receiver [or] portable telephone" and the
omission of any reference to "radio", "television",
"broadcasting", or "judicial proceedings" suggest that Rule
7 was adopted to address security concerns about the
presence and use of electronic devices in the Courthouse
and to bring within the prohibitory ambit of Rule 7
technology not already mentioned.

     However, clear wording of a blanket prohibition in
Former Rule 7 was abandoned in the formulation of the
current rule. In fact, Former Rule 7 was changed to grant
judges discretion to permit the use of such technology ln
their courtrooms.

     By order dated May 16, 1991, the Southern District
Board of Judges adopted guidelines, stating in relevant
part:


At its meeting of May 2, 1991, the Board of Judges of the
Southern District of New York adopted guidelines for a
pilot program known as "Cameras in the Courtroom," which
would allow the limited use of certain recording and
transmitting devices in the courtroom. This subject is
covered by Joint Local General Rule 7 which generally
prohibits the use of such equipment.

ORDERED that affective July 1, 1991, the Guidelines for
Cameras in the Courtroom adopted May 2, 1991 shall preempt
Local General Rule 7 but only to the extent inconsistent
therewith.

Defendants argue that this language clearly demonstrates
that Rule 7 prohibits televising proceedings. Yet the
adoption of court-wide guidelines can instead be seen as
nothing more than a measure to ensure consistent and, thus,
meaningful results, from the Pilot Program, which was, in
essence, a study.

     In sum, the plain language of Rule 7 vests discretion
to permit televised proceedings in each individual judge of
this Court, and reference to the context of its revision is
thus unnecessary. Even if the history is considered, the
questions raised fail to present convincing evidence that
Rule 7 was meant to continue the blanket prohibition
against televised proceedings contained in Former Rule 7.


Discretion Will Be Exercised to Grant the First Amendment
Requested Relief

     During the last thirty years, studies conducted by
state and federal jurisdictions to evaluate the effect on
the judicial process of the presence of cameras in
courtrooms have demonstrated that televised coverage of
trial court proceedings does not impede the fair
administration of justice, does not compromise the dignity
of the court, and does not impair the orderly conduct of
proceedings. Increased media access to and knowledge of the
workings of the judiciary have compelled a sea change from
the middle of this century, when nearly every state, as
well as the federal criminal courts, barred any in-court
audio-visual coverage. Beginning in the 1970's and 1980's,
rapid advances in technology and the incorporation of
television into America's daily information diet convinced
states to begin to experiment with cameras in the courtroom
and to study their effects on the proceedings. Led by
Florida, and with the subsequent imprimatur of the United
States Supreme court, see Chandler v. Florida, 449 U.S. 560
(1991), forty-seven states, according to Court TV, have
permitted television in their courtrooms with proper
procedural protections for all participants, first on an
experimental basis and then on a permanent one.


     The results of studies of these experiments, conducted
between 1979 and 1994, establish that a silent, unobtrusive
in-court camera can increase public access to the courtroom
without interfering with the fair administration of
justice. New York, for instance, has conducted three
different studies evaluating successive experiments.  In
each case cameras not only were determined not to have
impaired the conduct of fairness of any proceeding, but
were determined to have enhanced public education. The most
recent of these evaluations reported, among other things,
that because "[r]elatively few people ever attend court
proceedings . . . [t]elevision coverage . . . exposes
greater numbers of citizens to our justice system," Report
of the Committee on Audio-Visual Coverage of Court
proceedings at 86, televised coverage of proceedings
"engenders a deeper understanding of legal principles and
processes," id., cameras have enabled the public, to
greater effect than previously possible, to monitor whether
"justice is handed out fairly and impartially," id. at 90,
and "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, that
witnesses, jurors and attorneys remained unaffected, id. at
93, and that cameras ensured greater fairness toward
parties by judges. Id. at 91-93.


     As noted above, the Judicial Conference Pilot Program,
in effect from January 1, 1993, through December 31, 1994,
suggested similar results. 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. Electronic Media
coverage of Federal Civil Proceedings, Federal Judicial
Canter, 1994. ("Federal Report".). Based on a review of
numerous prior state studies, judge and attorney
evaluations submitted in connection with the Pilot Program,
and interviews with participants, the Federal Study
concluded, among other things:

1) Overall, attitudes of judges toward electronic media
coverage of civil proceedings were initially neutral and
became more favorable after experience under the pilot
program. Federal Report at 7.

2) 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.

3) Judges, media representatives, and court staff found the
guidelines governing the program to be generally workable"
and "judges and court 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
charged with overseeing the Pilot Program submitted to the
Judicial Conference a report and recommendation that camera
coverage of
civil proceedings, bath trial and appellate, be made
permanent and be extended to all federal courts.

     The concerns raised by Defendants are countered by
these studies and by the circumstances of the matter at
bar.  No witnesses or jurors will be present at the May 1
Argument, see Marisol A., 1996 WL 91638, at *2, and the
proceeding cannot be distinguished from an appellate oral
argument, which may now be televised in our Court of
Appeals and in the Ninth circuit.

     Fears of attorney grandstanding and that the court's
dignity will be compromised in the context of an oral
argument are unfounded. A comparison to the recent trial of
O.J. Simpson is unwarranted. On this topic, 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 contempt much more than
it would enhance respect.

314 U.S. at 270-71.


     Concern has also been expressed arising from
editorialization and the selective use of "soundbites" from
the footage of courtroom broadcasts. Here, the May 1
Argument will be televised gavel-to-gavel on Court TV. But
even if it were not to be, as the Florida Supreme Court has
stated, "newsworthy 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 the informational value of a reporter's
summary of events.  Report of the Committee on Audio-Visual
coverage of Court Proceedings, 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, courts cannot
control editorial judgments by journalists, whether
electronic or print, for to do so would be plainly at odds
with the First Amendment. See Craig v. Harney, 331 U.S.
367, 375 (1947) (reporter could not constitutionally be
held in contempt of court for his unfair summary of trial
proceedings],

     Should this action reach a jury, as customary, all
potential jurors with any knowledge of the case will be
excused, thus disposing of Defendants' concerns in this
regard.

     Victoria's Secret also claims a risk of prejudice from
the accusation of conduct alleged to violate the RICO
statute allegations in the pleadings and in media
interviews of Katzman and her attorney. Marisol A.
explicitly disposed of this argument, noting that "this
Court is unwilling to deny access to information because of
the perceived inability of the public to grasp such
information."  Marisol A., 1996 WL 91638, at *2.

     Finally, Victoria's Secret contends that this action
lacks the compelling policy concerns that led Judge Ward to
permit televising of the proceedings in Marisol A. It
contends that in stark contrast to Marisol A., the May 1
Argument involves purely private parties in a commercial
dispute. There are no profound social, political, or legal
issues to be addressed at the May 1 Argument, they note,
and they contend that to the extent that this litigation is
"newsworthy," the predominant interest is prurient.

     It in worth noting in passing that at least some
important issues are raised in this case, regardless of its
merits, including consumer fraud. Further, in any class
action there are some benefits that arise from widespread
public information regarding the suit, particularly where
notice will be received by potential class members,
enabling them to contact counsel or to opt out of the
class.

     In Marisol A., Judge Ward stated that he would allow
broadcast of the proceedings, because "the public interest
would be served" by televising the case. Marisol A., 1996
WL 91638, at *2.  However, that ruling did not purport to
set a rigid "public interest" test for all cases. Indeed,
it is particularly inappropriate for any court to exercise
its discretionary powers so as to restrict access to
information for the sole reason that the subject matter of
a proceeding is deemed by the court not to be newsworthy.
As the First Circuit observed in a related context:


A court may not selectively exclude news media from access
to information otherwise made available for public
dissemination.... [I]t allows the government to influence
the type of substantive media coverage that public events
will receive. Such a practice is unquestionably at odds
with the first amendment. Neither the courts nor any branch
of government can be allowed to affect the content or tenor
of the news by choreographing which news organizations have
access to relevant information.

Anderson v. Cryovac, Inc.,  805 F.2d 1, 9 (1st Cir. 1986)
(declaring unconstitutional order exempting from protective
order particular media organization); cf. Police Dept. v.
Mosley, 408 U.S. 92, 96 (1972) (government "may not select
which issues are worth discussing and debating in public
facilities").

     In addition to the particulars of the present
application as set forth above, the concerns, rights, and
privileges of the parties, the intervenor, and the public
must be assessed, including the possible constitutional
impropriety of excluding cameras from civil court
proceedings, an issue neither raised nor briefed by the
parties .


     This Court's persuasion on this issue is another
factor compelling the exercise of discretion in favor of
Court TV, although not necessary to the decision in light
of the considerations already set forth.

     The First Amendment requires that court proceedings be
open to the public, and by extension the news media, absent
the most clearly articulated and compelling reasons for
closing them in a particular circumstance. It has long been
recognized that "[w]hat transpires in the court room is
public property" Craig v. Harney, 331 U.S. 367, 374 (1947),
particularly in light of the unquestioned proposition,
articulated by Justice Frankfurter, 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) (denying cert. to
67 A.2d 497 (Md. 1949)),

     Our Court of Appeals has recognized that "there is an
abundance of support in the cases for a constitutionally
grounded public right of access to the courtroom."
Westmoreland v. Columbia Broadcasting Sys., Inc., 752 F.2d
16, 22 (2d Cir. 1985). In Richmond Newspapers,  Inc. v.
Virginia, 448 U.S. 555 (1980), the Supreme Court for the
first time "unequivocally h[e]ld[] that an arbitrary
interference with access to [court proceedings] is an
abridgement ot the freedoms of speech and of the press
protected by the first amendment." Id. at 583 (Stevens, J.,
concurring). The Supreme Court later held that the guarantee of
public proceedings in criminal trials includes the voir dire
process, Press-Enterprise Co. v. Superior Court of
California, Riverside Cty., 464 U.S. 501 (1984) and access
to transcripts of proceedings. Press-Enterprise v. Superior
Court of California, Riverside Cty., 478 U.S. 1 (1985). As
the Richmond Newspapers Court noted, "throughout its
evolution, the trial has been open to all who cared to
observe," and such openness is essential to the perception
of fairness in the administration of justice. Id. at
564-71. Openness carries with it the right to speak or
print court proceedings or portions of them.

     Moreover, in the context of the right of press access
to the courtroom, there can no longer be a meaningful
distinction between the print press and the electronic
media. As Justice Stewart has observed:


That the First Amendment speaks separately of freedom of
speech and freedom of the press is no constitutional
accident, but an acknowledgment of the critical role played
by the press in American society. The Constitution requires
sensitivity to that role, and to the special needs of the
press in performing it effectively. A person touring [a]
jail can grasp its reality with his own eyes and ears. But
if a television reporter is to convey the jail's sights and
sounds to those who cannot personally visit the place, he
must use cameras and sound equipment. In short, terms of
access that are reasonably imposed on individual members of
the public may, if they impede effective reporting without
sufficient justification, be unreasonable as applied to
journalists who are there to convey to the general public
what the visitors see.


Houchins v. KOED. Inc., 438 U.S. 1, 17 (1977) (Stewart, J.,
concurring ),

     The Court of Appeals ruled in Westmoreland that it was
"not yet prepared" to recognize a constitutional right to
televise court proceedings. Westmoreland confronted a
challenge to a denial by this district's Board of Judges of
a waiver to the Former Rule 7 sought by the Cable News
Network ("CNN"). Both parties to the action had consented
to having the proceedings broadcast. The Westmoreland court
reaffirmed the public's right to attend trials and the
inclusion of the news media within the public. Id, at 22.
The Court noted CNN's argument that:


because a courtroom is so small that not every person who
wishes to attend can be accommodated or can even arrange to
be physically present, the public's rights are wholly
diluted. The public may read about the trial from the
printed transcript or a newspaper account only after some
delay, or it may receive radio or television reports
similarly filtered through a reporter, with no opportunity
to hear and observe directly the trial in process. The
public, CNN argues, is relegated by the operation of the
rule to "qualitatively inferior, stale and wooden
interpretations of what occurred."

Id . at 23 . But, the Court held,

There is a long leap, however, between a public right under
the First Amendment to attend trials and a public right
under the First Amendment to see a given trial televised.
It is a leap that is not supported by history. It is a leap
that we are not yet prepared to take. It is a leap that
many federal judges and, indeed, apparently the judges of
Southern District of New York... oppose.

Id.  The Court then articulated more specifically the
concerns that, aside from history, kept it from making that
leap, noting that:

There may indeed come a time when the experimentation with
television coverage establishes that the concerns with the
expenditure of judicial time on administration and
oversight of broadcasting; the necessity of sequestering
juries so that they will not look at the television program
of the trial itself; the difficulty of empaneling an
impartial jury in the case of retrial; the necessity of
larger jury panels or increased use of marshalls the
psychological effect on witnesses, jurors, lawyers and
judges; and related considerations of "solemnity," and
"dignity," and the like are considered secondary or
basically irrelevant as impediments to the search for truth
when a given case is televised. At such a time the
presumption may well be that all trials should be
televised, or televisable. . . .

Id.

     Westmoreland relied in part on the Supreme Court's
holding in Estes v. Texas, 381 U.S. 532 (1965), that the
press' First Amendment right to access to a criminal trial
did not include the right to televise that trial. The Estes
Court explicitly recognized that its holding ultimately
relied on the then-state of technology, and its statement
that "when the advances in [technology] permit reporting by...
television without [the] present hazards to a fair
trial, we will have another case." 381 U.S. at 540,

     Twelve years after the Westmoreland decision and
twenty-two years after the Estes holding, the advances in
technology and the above-described experiments have
demonstrated that the stated objections can readily be
addressed and should no longer stand as a bar to a
presumptive First Amendment right of the press to televise
as well as publish court proceedings, and of the public to
view those proceedings on television,

Conclusion

     The balance o£ factors considered above, even
excluding the constitutional concerns, weigh heavily in
favor of granting the application of Court TV.  Permission
is therefore granted to film the May 1 Argument and to
televise it.

     In order to insure an appropriate procedure for the
will be held in courtroom 18C at argument, a pre-motion
conference twelve o'clock noon on April 3D, 1996, to be
attended by counsel for the parties and Court TV.

It is so ordered

New York, N.
April 29, 1996

Robert W. Sweet U.S.D.J.


END NOTES


1.   Rule 53, Fed. A. Crim. P., bans broadcasts from the
courtroom, but the Federal Rules of Civil Procedure are
silent on this topic. The Federal Rule 7 cannot apply in
criminal cases in the face of Rule 53 does not invalidate
its application in civil proceedings .

     Canon 3 (A) (7) of the Code of Judicial Conduct for
the United States Judges, promulgated by the Judicial
Conference, formerly provided that a judge should prohibit
televising of court proceedings except for the presentation
of evidence, for the perpetuation or a record, or in the
case of investitive, ceremonial, or naturalization
proceedings. That rule was removed from the Canon, however,
in 1988.

2.   Sale v. Haitian Center Council, Inc., 133 S.Ct. 2549
(1993) did not stand for the proposition, as Victoria's
Secret contends, that in determining the meaning of a
statute, a court should consider "all available evidence."
Id. at 2562. The Court in Sale noted that it had sought its
conclusion from "all available evidence" in the course of
construing a highly ambiguous statute. Id. It did not reach
any holdings regarding statutory construction, and it did
not confront an unambiguous statute like the rule at hand.