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Jewish World Review Jan. 14, 2002 / Rosh Codesh Shevat, 5762

David Limbaugh

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Consumer Reports

Say no to televised trial -- COURT TV is demanding that the trial of terrorist suspect Zacarias Moussaoui be televised. It's a bad idea and should be rejected.

Moussaoui has been in custody since August, following his arrest on immigration charges when a Minnesota aviation school reported his suspicious activities to the FBI. In addition to attending flight school, Moussaoui was receiving funding from the al Qaeda terrorist network and is suspected to have been the missing twentieth hijacker for September 11.

United States District Judge Leonie Brinkema is considering the cable channel's request and is expected to rule shortly. Court TV's lawyers claim their motives are selfless. The public, they say, has a "right to observe" criminal cases under the First Amendment, and televising the proceedings will help to ensure fairness.

Let's dispense with the bogus legal arguments up front. There is no constitutional right to broadcast court proceedings on television. The Supreme Court has made clear that while the guarantee of a public trial is a safeguard against our courts becoming instruments of persecution, it confers no special benefit on the press. The Sixth Amendment right to a public trial is satisfied by the opportunity of members of the public and press to attend the trial and to report what they have observed.

So, if the media (ostensibly on behalf of the public) have no right to demand their cameras be in the courtroom, what about the rights of criminal defendants? Interestingly, criminal defendants historically have argued against publicly televised trials, saying that the great notoriety of trials would deny them due process of law.

In today's postmodern climate, certain defendants think they can benefit from a televised proceeding -- and they're right. Just ask O.J.

Defendant Moussaoui supports Court TV's request, so long as the pretrial hearings are not televised and the jury is sequestered. Why wouldn't a defendant want to avail himself of the theatrics that only live television provides?

Court TV's CEO, Henry Schleiff, is advancing a host of spurious arguments to get his cameras inside the courtroom. On a recent television interview he gave "four quick reasons" that this trial should be televised.

First, since the United States is bringing the case against Moussaoui, all citizens, in effect, are named plaintiffs and therefore have a right to view the trial. But that is true of all federal criminal cases. They are brought on behalf of the United States government because the alleged crime is against federal law.

But this case is different, insists Schleiff, because all Americans are also victims, which is his second reason. I'll concede that we all have a special interest in this case (because the alleged crime was also an act of war against America), but that interest is ensuring that justice be administered, not that we be permitted to witness another televised spectacle.

Third, Schleiff argues that the First Amendment mandates a televised trial, which, as we have shown, it does not. Fourth, says Schlieff -- and this is the most bogus reason -- "what a great opportunity to show our system of justice ... to show that anyone can get a fair trial in the United States."

I don't know about you, but I'm not particularly worried what other countries think about American justice and civil liberties. The burden of proof is not on this country to prove its fairness. We are the freest, most egalitarian, justice and rights-oriented nation in the history of the world.

Besides, a publicized trial would not showcase the best side of our judicial system. It would give the defendant and his lawyers the opportunity to make a circus out of the proceedings and thereby discredit our system.

It is axiomatic that people act differently in front of a camera. The O.J. Simpson criminal case shows that trial lawyers (and judges) are no exception. To the extent that the participants are playing to a camera (even unwittingly or unintentionally) the interests of justice are compromised.

There are additional compelling reasons not to televise this trial. It would be much more difficult to protect sensitive intelligence-gathering information with a televised trial. And, those involved -- lawyers, judges, witnesses and jurors -- would become potential targets of terrorist networks. (Judges from the 1993 World Trade Center bombing trial are still under federal protection.)

To quote that paragon of law enforcement, Barney Fife, "Let's nip this (bad idea) in the bud."

David Limbaugh, a columnist and attorney a practicing in Cape Girardeau, Mo., is the author of the just-released exposť about corruption in the Clinton-Reno Justice Department, "Absolute Power." Send your comments to him by clicking here.