U.S. v. Hastings

• Decision Date: 04 January 1983
• Docket Number: No. 82-6137,82-6137
• Citation: 695 F.2d 1278
• Parties: 8 Media L. Rep. 2617 UNITED STATES of America, Plaintiff-Appellee, v. Alcee L. HASTINGS, Defendant, Post-Newsweek Stations, Inc., et al., Intervenors-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1278

695 F.2d 1278

8 Media L. Rep. 2617

UNITED STATES of America, Plaintiff-Appellee, v. Alcee L. HASTINGS, Defendant, Post-Newsweek Stations, Inc., et al., Intervenors-Appellants.

No. 82-6137

United States Court of Appeals, Eleventh Circuit.

Jan. 4, 1983.

Steel, Hector & Davis, Talbot D'Alemberte, Donald M. Middlebrooks, Thomas R. Julin, Miami, Fla., for Post-Newsweek Stations, Inc., Wometco, Outlet Broadcasting, Miami Herald, Radio-Television News Director Ass'n, etc.

Erwin G. Krasnow, Sr. Vice President and Gen. Counsel, Nat. Ass'n of Broadcasters, Washington, D.C., Sara Rose Mullens, Corporate Counsel, Wometco Enterprises, Inc., Miami, Fla., Stephen E. Nevas, First Amend. Counsel, Nat. Ass'n of Broadcasters, Washington, D.C., for Community Television Foundation of South Florida, Inc.

Stephen T. Maher, Miami, Fla., for American Civil Liberties Union Foundation of Fla., Inc.

Walter Terry Maguire, Washington, D.C., for amicus curiae American Newspapers Publishers Ass'n.

Robert S. Catz, Cleveland, Ohio, Terence J. Anderson, Coral Gables, Fla., for Hastings.

Reid Weingarden, Robert Richter, Jo Ann Farrington, Dept. of Justice, Crim. Div., Washington, D.C., for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, VANCE and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

This expedited appeal presents the question whether federal rules which prohibit televising, broadcasting, recording, and photographing proceedings in federal criminal trials violate the First Amendment ¹ or the Sixth Amendment. ² In an order denying appellants' application to use electronic audio-visual recording devices during the upcoming trial, the district court cited four rules and authorities, including Rule 53 of the Federal Rules of Criminal Procedure ³ (referred to as Rule 53) and Rule 20 of the General Rules of the United States District Court for the Southern District of Florida (referred to as Local Rule 20). ⁴ We affirm the district court's order, as we hold that Rule 53 ⁵ and Local Rule 20 violate neither the First Amendment nor the Sixth Amendment.

This issue first came before the trial court when the defendant, Alcee L. Hastings, moved the trial court to permit his trial to be televised, primarily relying on his Sixth Amendment right to a public trial. ⁶ Shortly thereafter, appellants, representing the interests of numerous news organizations, filed a motion to intervene. In this motion, appellants, citing their First Amendment rights, applied to the trial court for an order permitting them to use electronic audio-visual equipment during the trial. After holding a hearing on the issue, the district court denied both motions on November 30, 1982. Trial was set to begin on January 10, 1983. Appellants filed a motion in this court for expedited appeal. The motion was granted, and this appeal followed. ⁷ Although defendant Hastings has not joined this appeal, he has filed an amicus brief.

I. FIRST AMENDMENT

Appellants suggest that recent Supreme Court opinions indicate that the First Amendment should be extended to give the news media the right to televise, photograph, record, and broadcast federal criminal trials. We disagree with appellants' approach. Appellants' approach reflects a tortured reading of these Supreme Court opinions. None of those decisions intimate that the Supreme Court would find First Amendment rights abridged by the exclusion of television cameras and other electronic recording devices from the courtroom. See Globe Newspaper Co. v. Superior Court, --- U.S. ----, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (invalidated on First Amendment grounds a state statute which totally excluded the press and the general public from the courtroom in trials for certain sex offenses during the testimony of victims under the age of 18); Chandler v. Florida, 449 U.S. 560, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981) (state's provision for television coverage of a criminal trial for public broadcast is constitutional); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (state trial court's order that closed the murder trial to the public and the press violated the First Amendment).

Instead, these recent Supreme Court rulings stand for two propositions, neither of which is dispositive or even genuinely at issue here. First, television coverage of a criminal trial is not inherently unconstitutional. In particular, television coverage does not violate every defendant's due process rights. Chandler v. Florida, 449 U.S. at 574-81, 101 S.Ct. at 809-13. But just because television coverage is not constitutionally prohibited does not mean that television coverage is constitutionally mandated.

Second, the press has a right of access to observe criminal trials, just as members of the public have the right to attend criminal trials. Globe Newspaper Co. v. Superior Court, --- U.S. at ---- - ----, 102 S.Ct. at 2618-19, 73 L.Ed.2d at 255-57; Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 579-80, 100 S.Ct. at 2828-29. To conclude from these cases, as appellants do, that the right of access extends to the right to televise, record, and broadcast trials, misconceives the meaning of the right of access at stake in those cases. The right of access therein was the right to attend. In the upcoming trial here, journalists will be able to attend, listen, and report on the proceedings as they always have. No part of the trial has been closed from public scrutiny.

With regard to the right of access, appellants overlook the significance of another recent Supreme Court opinion, Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). That case concerned the Watergate tapes, which had been admitted into evidence in the trial of Nixon's former advisers. At trial, the district court supplied earphones to jurors, journalists, and members of the public to enable them to listen to the tapes. The court also released transcripts prepared by the Special Prosecutor which "were widely reprinted in the press." 435 U.S. at 594, 98 S.Ct. at 1310. After the trial had begun, Warner Communications asked the district court for permission to copy, broadcast, and sell the tapes admitted in evidence. The district court denied this request. The Supreme Court, in upholding the district court's decision, rejected Warner Communications' assertion of a First Amendment right to copy and publish the tapes. 435 U.S. at 608-09, 98 S.Ct. at 1317. Justice Powell, writing for a majority of the Court, reasoned that:

The First Amendment generally grants the press no right to information about a trial superior to that of the general public. "Once beyond the confines of the courthouse, a news-gathering agency may publicize, within wide limits, what its representatives have heard and seen in the courtroom. But the line is drawn at the courthouse door; and within, a reporter's constitutional rights are no greater than those of any other member of the public."

435 U.S. at 609, 98 S.Ct. at 1317 (quoting Estes v. Texas, 381 U.S. 532, 589, 85 S.Ct. 1628, 1663, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring)). The Court explicitly rejected the broadcaster's claim that the right of access includes "the right to copy and publish.... exhibits and materials displayed in open court." 435 U.S. at 609, 98 S.Ct. at 1317. See also Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 426-27 (5th Cir.1981) (the press has no First Amendment right of physical access to audiotapes which recorded conversations between defendants and FBI agents and which were introduced into evidence). ⁸

In Warner Communications, Inc. the Supreme Court rejected a First Amendment claim of right to copy and publish particular exhibits which had been admitted into evidence. In the instant case, appellants assert a First Amendment right to record and broadcast the entire trial. Appellants' claim more nearly approximates the claim rejected in Warner Communications, Inc. than the claims which were sustained in Globe Newspaper Co. v. Superior Court, supra, and Richmond Newspapers, Inc. v. Virginia, supra.

On the other hand, this case can be distinguished factually from Nixon v. Warner Communications, Inc. and Belo Broadcasting Corp. v. Clark in two ways. First, the rules at issue here are absolute rules which prohibit televising, recording, photographing and broadcasting federal criminal trials, whereas the rules challenged in Warner Communications and Belo Broadcasting resulted from fact-sensitive determinations made by the trial judge on a case-by-case basis. Second, in the instant case, defendant Hastings has not only requested television coverage, but he has also knowingly and intelligently waived any objection he might have had. There was no such request or waiver in either Warner Communications or Belo Broadcasting.

In our judgment, neither distinction undermines the precedential value for this case of Warner Communications and Belo Broadcasting. We address first the distinction between an absolute per se rule and a case-by-case rule. In Globe Newspaper Co. v. Superior Court, --- U.S. ----, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), the Supreme Court made it clear that an absolute per se rule which excludes the public and the press from a criminal trial is prohibited by the First Amendment. However, the rule struck down in Globe Newspaper Co. was significantly different from the rules at issue here. In Globe Newspaper Co., the state statute provided that the courtroom be sealed off from public scrutiny whenever minor victims of sex offenses testified at the sex offender's trial. As a result, the alleged victim's testimony, which is likely to be the most critical evidence presented at such a trial, was obscured from the view of the press and the public. By contrast, the rules here do not foreclose public scrutiny of the trial or any segment thereof.

In evaluating the state statute ...