There has been a lot of attention focused on the ongoing trial of former police officer Derek Chauvin in the death of George Floyd. Occurring in the context of often-heated discussions of police treatment of minorities, the trial has been shown live on TV and online, and most of the coverage by other media has relied on these live feeds.

This shows that a trial can be covered by cameras without turning into a sensation. And it provides a good example of the reasons why courts should be open to the press and other observers, and that media coverage of the courts can play an important role in showing the functioning of the courts and the basis for legal rulings and verdicts.

There is a long history of British and then American courts being open to public observation. One reason for this, famous English judge and lawyer Sir William Blackstone wrote in 1768, is keeping witnesses honest: “open examination of witnesses,” he wrote, “ … in the presence of all mankind, is much more conducive to the clearing up of truth, than private and secret examination. … [A] witness may frequently depose that in private which he will be ashamed to testify in a public and solemn tribunal.” It also assures that the courts are operating fairly, and that government prosecutors are not abusing their power. Thus the Sixth Amendment to the U.S. Constitution requires that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial …” The U.S. Supreme Court has also held that courts are generally required to be open to the public under the First Amendment right of free speech.

But the development of still, film and video cameras led to questions about whether these devices should be allowed in courts. Similar questions arose with portable audio recorders, and more recently with various digital devices.

In the 1930s the sensational coverage by print and video (newsreels) media and the intrusiveness and sheer number of cameras and equipment such as teletype machines and typewriters during the so-called “Trial of the Century” of Bruno Hauptmann for the kidnapping and murder of Charles Lindbergh’s infant son led to widespread condemnation of such invasive behavior by the press. In 1965 and 1966, the U.S. Supreme Court reversed criminal convictions in two separate cases because of intrusive media coverage of the trials. 

Other sensational trials followed, perhaps reaching a zenith with the wall-to-wall coverage of the trial of O.J. Simpson, in which he was acquitted of murdering his wife and a friend. As described by Brooke Gladstone, host of NPR’s “On the Media” program, “If you were to look up ‘feeding frenzy’ in the dictionary, a picture of the O.J. coverage would be a perfect choice to illustrate it.”

Despite this, courts in almost every state allow cameras to cover at least some of their proceedings. And while the U.S. Supreme Court and many lower federal courts strictly ban cameras, several federal courts do allow them.

Here in South Carolina, open courts have been held to be guaranteed by both the federal and state constitutions, with the latter specifically providing that “[a]ll courts shall be public.” As for cameras, they are generally permitted in all courts in the state under conditions laid out by court rules. Two of these conditions are that advance notice to the presiding judge is required (via a preferred form), and that jurors may never be photographed. The Press Association explains these and other conditions in detail here. In addition, the South Carolina Supreme Court streams all of its arguments live online, with an archive going back to 2014.

Openness of our courts continues to be an essential way of showing that judges, jurors, attorneys and others generally try to do their jobs honestly and fairly, and that the courts play an essential role in protecting both litigants and society. The open coverage of the Derek Chauvin trial, and the many other trials that cameras have documented, show the importance of such openness in ensuring faith in our courts and in our government.

Eric P. Robinson focuses on media and internet law as assistant professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 20 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.