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Tuesday, Jan. 22, 2002

From a civil liberties perspective, it seemed a hopeful sign when the Bush Administration did not insist on employing a military tribunal to try Zacarias Moussaoui, the man suspected of preparing to be the fifth terrorist aboard United Airlines Flight 93, the hijacked plane that crashed in Pennsylvania on September 11. But recently, we learned that the government is seeking a closed proceeding nonetheless - having argued successfully against televising Moussaoui's trial.

The government's taking this position, and the district judge's accepting it, are blows to the First Amendment.

The First Amendment Argument

Currently, the Federal Rules of Criminal Procedure ban the broadcast of courtroom proceedings in the federal courts. (States, in contrast, typically allow some state court proceedings to be televised, barring special circumstances.) However, there is a strong argument that the federal ban on camera access violates the First Amendment, for not only rights to speak but also rights of access - especially for purposes of media coverage - can come within the First Amendment. Accordingly, Court TV, as well as several other media entities and the Reporters Committee for Freedom of the Press, went to court seeking to have Moussaoui's trial televised.

Moussaoui himself supports this request but on two conditions. First, he supports televising the trial only if jury members are sequestered so that they will not be exposed to television coverage and commentary. Second, he does not support televising the pretrial proceedings, for they may air damaging evidence that, although inadmissible at trial, could still become known to jurors if pretrial proceedings are televised.

Some of the First Amendment arguments that Court TV and the other media entities are presenting depends on history; public access to certain types of court proceedings was traditionally considered to be a right. However, as the government has pointed out, there is obviously no historical right to television cameras, in particular, in the courtroom - since such cameras did not, of course, exist at the founding of the Republic. Furthermore, the government contends that the traditional rule allowing anyone who arrives at a courthouse to enter is a far cry from a rule allowing a broadcast to every television in the U.S.

In the end - because television did not exist at the founding and because the Constitution must adapt to modern technology - the argument comes down to a debate about how the traditional right to courtroom access should be interpreted in a modern context. Court TV attorney and well-known First Amendment lawyer Lee Levine cleverly argued that "If a reporter may take notes and a sketch artist may draw a portrait, there simply is no principled basis on which to exclude cameras."

One could, of course, sketch in a courtroom at any time in history, and Levine persuasively argued that cameras are the modern equivalent of the sketchpad, an improved and more accurate, but essentially similar, method of conveying information.

Rarely has it been so important for information to be conveyed. It is important for us - and the world - to see this trial, in particular, because the September 11 attacks have so affected our national consciousness, making this case an exceptional one in our history.

It seems ironic, and even somewhat sad, that the O.J. Simpson trial was televised, yet this one will not be. What is at stake is so much more grave. In Levine's oral argument, he referred to original Supreme Court Justice John Marshall's decision to move the 1807 Aaron Burr treason trial to a larger venue to accommodate spectators. Now, as then, a larger venue is necessary - and this type, all the world should be able to see.

The Decision to Reject the Argument, and Not To Allow A Televised Trial

Despite the force of Court TV's argument, last week District Judge Leonie Brinkema agreed with the Justice Department and denied the request to televise. She was in a difficult position, since precedent went the government's way, and a federal judge is never completely comfortable striking down a well-established federal procedure rule like the camera ban. Still, Brinkema should have dared to do so, for the First Amendment argument is a good one.

Whether it is overly cautious or not, Judge Brinkema's ruling is likely to stand. Although an appeal will probably be taken, the highly conservative Fourth Circuit Court of Appeals will likely uphold Judge Brinkema's decision.

Furthermore, the chance of Supreme Court review is limited in a case such as this. A number of appellate courts have upheld the camera ban despite First Amendment challenges. And Chief Justice Rehnquist himself was an architect of the ban, with the Supreme Court consistently resistant to having its own proceedings televised.

The Government's Reasons For Why Should The Trial Not Be Televised

The Justice Department cites "significant risks to the administration of justice." Specifically, the government contends that being televised could intimidate witnesses, and impair their testimony. Moreover, it says cameras could reveal juror identities, causing possible acts of revenge against them if a verdict of guilty is delivered.

These concerns are very serious, but they can be addressed. For one thing, juror identities need not be disclosed. Granted, Court TV has a bad record on this issue - having inadvertently filmed O.J. Simpson trial jurors at one point - but shielding jurors is just a matter of architecture and sufficient precautions.

What about the effect on witness testimony? I doubt that any witness would change his or her testimony in a case directly connected to the September 11 terrorism attacks, because he or she was being televised. Americans are made of sterner stuff, as the citizens who revolted and took Flight 93 down have shown.

And what about witness security? As with any case, unless witnesses have taken precautions to ensure their numbers are unlisted and their addresses do not appear on the Internet, they can already easily be found and there is no way to change that now. The government therefore should provide witnesses with appropriate security against potential acts of al Qaeda revenge, rather than pretending that television will be the culprit if revenge occurs..

Also, the cameras simply just could not show the witnesses' faces. A televised trial with a roving dot obscuring witnesses' faces - which could be made foolproof as a result of a time delay - would be better than not televising at all. Voice and body language alone can tell a convincing story and make events much more real for observers.

At any rate, we should at least give witnesses, and Moussaoui, a chance to take the stand and tell their story to the country if they so choose. A witnesses' own veto of his or her testimony's being televised is one thing; a blanket government ban is another.

Why The Trial Should Be Televised

In order to see the trial, one must see it in person, travel to Alexandria, Virginia, and then qualify as one of the limited number of people who can fit in the courtroom. One wonders how much space there may be - after all the major media representatives have been seated - for anyone else, including the family members and friends of the victims who died so tragically on September 11th.

As with the trial of Oklahoma City Bomber Timothy McVeigh, many of these family member and friends may want - even need - to see this trial to gain some closure. Now they will not be able to see the trial unless they not only can spare the time away from work, children, and other family commitments, but also pay for the expense of travel. (Closed-circuit television might - and should - be provided for the families, but this will be more difficult logistically than it was for the Timothy McVeigh trial, since the survivors are more geographically dispersed.) Nor will millions of other Americans have be able to see the trial. Nor will foreign observers looking to see how we administer justice in this country.

If Moussaoui is guilty, any answers the trial might provide as to why he and other al Qaeda members hate America so much will appear only in cold print. Moreover, if the death penalty were imposed on Moussaoui - for four of the six charges against him allow it - the country will neither have seen nor heard the basis for the sentence of death, but merely read about it secondhand.

And if Moussaoui is innocent, even an acquittal likely will not clear his name. The effect of damning and widespread reports that he wanted to learn to fly, but not to take off or land, probably can, at this point, only be superseded by televised evidence to the contrary.

The world also needs to hear our side of this story. The government's opening and closing statements in the Moussaoui trial can tell that story - and televising opening and closing arguments for both prosecution and defense poses no risk to witnesses at all.

Unlike broadcasting an Osama bin Laden video, a televised trial setting ensures that both sides are aired. In the end, it is closed proceedings and secrecy that inspire distrust. Let the people, and the world, judge who is right and who is wrong, who is guilty and who innocent.

Julie Hilden, a FindLaw columnist and a graduate of Yale Law School, is a freelance writer and the author of the memoir "The Bad Daughter." She practiced First Amendment law as an associate at the Washington, D.C. firm of Williams & Connolly from 1996-99.

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