Opinion
3964.
Decided June 22, 2004.
Order and judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered July 25, 2003, which denied plaintiff's motion for partial summary judgment to declare § 52 of the Civil Rights Law unconstitutional, granted summary judgment to the state defendants on their cross motion and to the county defendant upon search of the record, and upheld the constitutionality of the statute, on its face, unanimously affirmed, without costs.
Boies, Schiller Flexner LLP, New York (Jonathan Sherman of counsel), for appellant.
Eliot Spitzer, Attorney General, New York (Sachin S. Pandya of counsel), for state respondents.
Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for municipal respondent.
Covington Burling, Washington, DC (Timothy L. Jucovy of counsel), for National Press Photographers Association, amicus curiae.
Patterson, Belknap, Webb Tyler, LLP, New York (Saul B. Shapiro of counsel), for Cable News Network, Time Inc. and NY1 News, amici curiae.
Chadbourne Parke LLP, New York (Thomas E. Riley of counsel), for New York State Association of Criminal Defense Lawyers, amicus curiae.
Before: Nardelli, J.P., Mazzarelli, Andrias, Gonzalez, Sweeny, JJ.
There is no federal constitutional right to televise court proceedings ( Matter of Santiago v. Bristol, 273 A.D.2d 813, 814, appeals dismissed 95 N.Y.2d 847, and lv denied 95 N.Y.2d 848; United States v. Moussaoui, 205 F.R.D. 183, 186 [ED Va]). Relying on Richmond Newspapers v. Virginia ( 448 U.S. 555), plaintiff suggests that the public has a First Amendment right to "observe"trials on television without physically attending those proceedings. However, Richmond merely held that "the right to attend criminal trials is implicit in the guarantees of the First Amendment" (at 580; emphasis added). In Westmoreland v. Columbia Broadcasting Sys. ( 752 F.2d 16, 23, cert denied sub nom. Cable News Network v. U.S. Dist. Ct. for Southern Dist., 472 U.S. 1017), the Second Circuit noted that Richmond and its progeny "articulate a right to attend trials, not a right to view them on a television screen."
It is true that "[o]penness . . . enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system" ( Press-Enter. Co. v. Superior Ct. of Cal., 464 U.S. 501, 508). But the value of openness lies not in how many people actually attend (or watch a broadcast of) a trial, but "in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known" ( id.).
Assuming that § 52's prohibition of televised trials restricts "speech" within the meaning of the First Amendment — i.e., restricts the dissemination of conduct undertaken with an "intent to convey a particularized message" where "the likelihood was great that the message would be understood by those who viewed it" ( Spence v. Washington, 418 U.S. 405, 410-411) — it survives the judicial scrutiny that applies to content-neutral statutes. Under the Free Speech Clause, a content-neutral statute that burdens speech must further "an important or substantial governmental interest" that is "unrelated to the suppression of free expression," and the statute's "incidental restriction" on expression must be "no greater than is essential to the furtherance of that interest" ( Turner Broadcasting Sys. v. Federal Communications Commn., 512 U.S. 622, 662). Section 52 is sufficiently tailored to further an important state interest, namely, the preservation of the value and integrity of live witness testimony in state tribunals. As the IAS court concluded, "[t]he record contains evidence upon which the New York Legislature could reasonably conclude that its legitimate interest in fair trials outweighs the benefits of permitting camera coverage, even on a discretionary basis."
Plaintiff suggests that less restrictive measures, such as existed under former § 218 of the Judiciary Law, may satisfy requirements of narrow tailoring. However, content-neutral statutes are not invalid simply because the government's interest "could be adequately served by some less-speech-restrictive alternative" ( Ward v. Rock Against Racism, 491 U.S. 781, 800). Section 52 does not "unwarrantedly abridge . . . the opportunities for the communication of thought" in public places ( Cox v. New Hampshire, 312 U.S. 569, 574) because reporters are "free to attend the entire trial, and to report whatever they observe" ( United States v. Hastings, 695 F.2d 1278, 1282 [11th Cir], cert denied sub nom. Post-Newsweek Stations, Fla. v. United States 461 U.S. 971).
We reject the contention that a right to televise court proceedings exists under N.Y. Constitution article I, § 8. There is no precedent in New York recognizing such a right ( Matter of Santiago v. Bristol, supra). Although the Court of Appeals has occasionally found our State Constitution more protective of expressional freedoms than the Federal Constitution, there is no such precedent with respect to access to proceedings ( Matter of Johnson Newspaper Corp. v. Melino, 77 N.Y.2d 1, 8), and that Court has never interpreted article I, § 8 as granting any greater access rights than those provided under Richmond Newspapers v. Virginia ( supra) and its progeny. We also appreciate that this is a matter that can be reviewed by the State Legislature should it decide to do so.
M-2132 — Courtroom Television Network LLC v. State of New York, et al.
Motion seeking leave to file amicus curiae brief granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.