In assessing whether or not trials should be televised or broadcast on the internet (as a general rule, since of course many cases will call for exception for various reasons), the first step is to determine what the right to a public trial is all about.
Herman clarified the issue quite well, since one will arrive at drastically different conclusions about the issue of televising (which from here on out will also be used to refer to online video streaming) trials based on why one thinks public trials exist in the first place.
Is the point that a trial must be public because the fact that it’s public leads to it being more open, fair, and just? According to this interpretation, which relies mainly on the 6th amendment, all that matters is that a trial is open and that some people show up to it. After you have, let’s say, 20 people observing, there is no reason to allow in another 100.
Another view, however, would say that each individual has a right to attend a public trial. According to this view, which was affirmed in Richmond Newspapers Inc v. Virginia states, every citizen has a right to see the trial because of the First Amendment. According to this interpretation, even if the court already has a lot of observers, getting one more person in who wants to see the trial is important, because he has an individual right to do so.
It seems that while the first reason—ensuring a fair and open trial—is part of the reasoning for having public trials, there are also legal concerns that every individual have the right to see a trial. This distinction is critical for determining how to broadcast trials, if at all.
If it were the case that an open trial was only important so that a few people could be there to make it fair (the first rationale), there would be no reason to broadcast the trial to the many others who might be interested in seeing it.
However, since the second rationale is also valid, there is also motivation to ensure that every person have the right to see the trial. While not broadcasting the trials does not constitute banning the public from them, in many cases it will have that effect. If someone wants to observe a trial happening across the country, it is unrealistic to expect them to travel there unless they are directly involved in the case. By prohibiting the broadcasting of the case, the government is denying them the right to see the case, in essence.
But how can we go about broadcasting trials in a responsible manner?
Again, we are dealing here with creating a general rule for trials, which of course is subject to case by case exception.
The issue of scope—the fact that it could reach many more people—should not be an issue in these discussions. If 5 people are allowed the right to see the trial when they walk into the courtroom, then theoretically so are 5,000 people. What matter is not the new scope of the new way of watching the trials, but the new nature and substantive differences in how the trials will be observed.
As was pointed out in the readings, there is an important substantive difference between how one sees a trial in court and how one would see it on TV or online. While in court one sees the entire proceedings, on TV and online people would likely end up watching clips of the trials, which would take things out of context and distort them. People would see one dramatic moment of the trial and not understand the actual situation. With this, of course, snippets of trials would make great hits on Stephen Colbert’s show or on youtube. The court system would become more of a show than anything, and our justice system would clearly suffer.
So what should be done? There are reasons to open up the courts to everyone, but the reality of how this would unfold would pose serious problems. I do not know the right way to balance this, but I have one idea to propose. Watching a trial has been, and should remain, something for those who are seriously interested in watching the proceedings – not a way someone can entertain himself on youtube for a few minutes. So if we want to prevent trials from being edited into small clips and turned into entertainment, but allow people to watch a trial from their homes, what do we do? Perhaps, the government could find a way to have the trials streamed online in a way that prevents people from recording, taping, or re-watching it. This would allow people who want to watch a trial watch it, but would prevent it from being turned into a show. I know this idea is sort of out there, but I’d be curious to hear how people think we can address the competing issues of access and the dangers that can come with streaming trials.