752 F.2d 16 (2nd Cir. 1984), 471, Westmoreland v. Columbia Broadcasting System, Inc.

Docket Nº:471, Docket 84-7809.
Citation:752 F.2d 16
Party Name:General William C. WESTMORELAND, Plaintiff, v. COLUMBIA BROADCASTING SYSTEM, INC.; Sauter, Van G.; Crile, George: Wallace, Michael: Adams, Samuel A., Defendants. Appeal of CABLE NEWS NETWORK, INC. In re WAIVER OF LOCAL RULE 7 TO PERMIT AUDIO-VISUAL COVERAGE OF THE TRIAL IN GENERAL WILLIAM C. WESTMORELAND V. CBS, INC., 82 Civ. 7913 (PNL).
Case Date:November 02, 1984
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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752 F.2d 16 (2nd Cir. 1984)

General William C. WESTMORELAND, Plaintiff,



George: Wallace, Michael: Adams, Samuel A., Defendants.




CBS, INC., 82 Civ. 7913 (PNL).

No. 471, Docket 84-7809.

United States Court of Appeals, Second Circuit

November 2, 1984

Argued Oct. 19, 1984.

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Laurence H. Tribe, Cambridge, Mass. (Robert G. Morvillo, Obermaier, Morvillo & Abramowitz, P.C., New York City, Stuart F. Pierson, Ann K.H. Simon, William E. Kennard, Andrew D. Koblenz, Mark E. Martin, Verner, Liipfert, Bernhard, McPherson & Hand, Chartered, Washington, D.C., of counsel), for Cable News Network, Inc.

Steven E. Obus, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., for the Southern District of New York, Thomas D. Warren, Asst. U.S. Atty., New York City, of counsel), for the Bd. of Judges of the U.S. Dist. Ct. for S.D.N.Y. [*]

Before OAKES and WINTER, Circuit Judges, and CLARIE, District Judge. [**]

OAKES, Circuit Judge:

This case presents the novel question whether a cable news network has a right to televise a federal trial and the public a right to view that trial--where the court is adjudicating a civil action, where both parties have consented to the presence of television cameras in the courtroom under the close supervision of a willing court, but where a facially applicable court rule prohibits the presence of such cameras. The rule is backed by a canon of the Code of Judicial Conduct for United States Judges and supported by resolutions, recommendations, and reports of the Judicial Conference of the United States. It was adopted by the federal district court in which the trial in question is taking place, pursuant to the statutory and rulemaking power the district court holds to determine the conduct of trial procedure within its courtrooms.

The challenge we address, however, is directed to the rule as applied to a particular trial, Westmoreland v. CBS, Inc., 82 Civ. 7913 (S.D.N.Y. filed Nov. 30, 1982) (Leval, J.). The appellants argue that, given the extraordinary nature of the Westmoreland trial, the application of a general rule prohibiting television coverage of that trial is both beyond the court's powers and in violation of the First Amendment rights of the television network and the public. Moreover, the facts that frame the Westmoreland trial are asserted to be of particular importance, because the substantive issues in Westmoreland implicitly mirror the institutional tensions raised before this court--in Westmoreland, one party seeks redress of injury flowing from statements asserting that the Government withheld information from the public in order to insulate the Government from public scrutiny; while the other party, seeking to defend the integrity of those statements, implicitly defends the integrity of the medium through which those statements were made. Be this as it may, assuming arguendo that Westmoreland presents the paradigm case for televising a federal trial, we

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nevertheless affirm, for the reasons we state below.


The trial of Westmoreland v. CBS, Inc. commenced before the United States District Court for the Southern District of New York, Pierre N. Leval, Judge, on October 9, 1984, in a courtroom that, we assume on judicial notice, accommodates no more than 150 seats, 80 of which have been set aside for the news media. We assume that the appellant, Cable News Network, Inc., 1 correctly describes the case in noting "the pervasive and historical import of its issues, the prevalence of television in its facts and law, and the unanimous desire of the participants to disseminate the entire trial to all who would observe." We also assume, as put forth by the district court, that among the questions at issue in the trial will be whether the high United States military command in Vietnam willfully distorted intelligence data to substantiate optimistic reports on the progress of the war and whether one of the nation's most important sources of news and commentary subsequently engaged in defamation of a public figure. These issues are no doubt of considerable, if not, as the district court believes, the "highest" national importance.

We further assume the truth of CNN's assertion that the guidelines it proposed to the district court on a one-case experimental basis follow the guidelines of some forty-one states that now permit, in one form or another, audiovisual coverage of court proceedings, trial, appellate, or both. We may therefore assume that those guidelines have been reasonably tested in the state courts and are narrowly tailored to achieve unobtrusive distribution of audiovisual coverage. 2 Thus, CNN's initial petition to the district court for permission to distribute comprehensive coverage of the Westmoreland trial reflects a conscientious broadcaster taking appropriate steps to join an important issue in the courts.

In a carefully reasoned opinion and order, Judge Leval felt that, for various reasons summarized in the margin, 3 CNN's petition "should be granted." Nevertheless, he denied the application on September 19, 1984, because "the rules of the Judicial Conference and of this court are to the contrary," and because he believed that the rule was not subject to waiver. 596 F.Supp. 1166. On September 27, 1984, CNN filed a motion for reconsideration, based on the argument that the reasoning underlying the court's previous denial of CNN's petition constituted an authoritative

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finding that the general factual premises underlying Canon 3 A(7) 4 of the Canons of Judicial Conduct for United States Courts (hereinafter Canon 3 A(7)) and Local General Rule 7 5 of the Southern District of New York do not apply to the circumstances of this case. The motion for reconsideration was denied by Judge Leval on September 28, 1984.

Meanwhile, on September 19, 1984, CNN had petitioned the Board of Judges of the Southern District for a waiver of General Rule 7. We will treat, as the parties have treated, a letter of October 1, 1984, signed by Chief Judge Constance Baker Motley, stating that "it was the view of the Board of Judges that Local Rule 7 should not be waived," as a denial of that petition.

This appeal is by CNN from the opinion and order of Judge Leval dated September 19, 1984, denying the initial petition to distribute coverage, from the denial of CNN's motion for reconsideration dated September 28, 1984, and from the determination of the Board of Judges denying CNN's petition for waiver of General Rule 7 on October 1, 1984. CNN initially filed a petition for a writ of mandamus with this court; but on the basis that such a writ may not be used in lieu of an appeal, the petition was denied by a panel consisting of Judges Kaufman, Pierce, and Winter.



The circuits have expressed some disagreement concerning the proper avenue for appellate review of district court orders limiting media access to judicial proceedings. See United States v. Chagra, 701 F.2d 354, 359-60 (5th Cir.1983). Recently, this court followed the Third Circuit's approach of allowing media intervenors to appeal orders limiting courtroom access under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), because such an order is a final disposition by the district court collateral to the rights asserted in the main action and posing a risk of irreparable harm while involving a serious and unsettled question of law. See In re Herald Co., 734 F.2d 93, 96 (2d Cir.1984). Like the Herald panel, we find that the district court "in effect permitted [the press] to intervene in the pending ... case, at least for the purpose of objecting to closure of the courtroom." Id.; see Chagra, 701 F.2d at 358-59 (relying on the collateral order doctrine regardless of whether the media appellant intervened); Newman v. Graddick, 696 F.2d 796, 800 (11th Cir.1983) (same); cf. Martin-Trigona v. Schiff, 702 F.2d 380, 385-86 (2d Cir.1983) (holding that "there are situations where a nonparty is allowed to appeal if the trial court's judgment has affected the nonparty's interest"). See also United States v. Mitchell, 386 F.Supp. 639, 640 (D.D.C.1975) (motion filed by press objecting to closure order treated as separate miscellaneous civil proceeding). We thus treat the orders of the

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district court and the determination of the Board of Judges 5a as appealable.

CNN's Ultra Vires Argument

CNN argues that General Rule 7 is unauthorized as applied to this case, because 28 U.S.C. Sec. 2072, the ultimate statutory authority for the provision, 6 prohibits the adoption of rules that "abridge, enlarge or modify substantive rights," 7 and the application of General Rule 7 violates that prohibition in this particular case by abridging the First Amendment rights of CNN and the public.

The salient feature of this ultra vires argument is its dependence upon the existence of a substantive right under the First Amendment to television camera access to a federal trial. 8 CNN does not argue

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against the authority of the judiciary to adopt general rules prescribing the conduct of courtroom proceedings. It instead argues that in this particular case, the First Amendment abridgement resulting from the implementation of General Rule 7 renders its application here ultra vires. The constitutional issues emerge as determinative of CNN's claims in this case, and to those issues we now proceed.

The Constitutional Right to Obtain Waiver of General Rule 7

in the Westmoreland Trial

As an initial matter, we...

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