TV OR NOT TV: TELEVISION, JUSTICE, AND THE COURTS by Ronald L. Goldfarb.
New York: New York University Press, 1998. 238 pp. Cloth. $24.95. ISBN 0-8147-3112-0.

Reviewed by William Haltom, Politics and Government,University of Puget Sound. Email: haltom@ups.edu.
 

The title of this book plays on Hamlet's question but the text likely will decide matters for few wavering readers. Ronald J. Goldfarb judiciously considers arguments for and against televising trials. He assays studies and experiences so fairly and dispassionately that those who oppose television coverage will spot arguments, interpretations, and findings that bolster their inclinations. Proponents of televised trials may wish that Mr. Goldfarb had constructed more of a brief for their side and less of a compendium of views. An agnostic on the issues may be delighted that the author was so judicious and fair, yet end the book concerned that some of the issues and arguments are not yet ripe.

After a pithy and lively survey of cases dubbed the "trial of the century" (of which there are more than centuries this millennium) side by side with innovations in relaying such spectacles, Mr. Goldfarb considers constitutional questions. Neither the long train of journalistic abuses nor the pertinent constitutional provisions need be familiar to every reader, so this treatment will inform some. Readers intent on the question posed in the title and its eventual answer--unobtrusive television cameras belong in courtrooms--might prefer these opening chapters shorter and more focussed. Readers intrigued by courthouse carnivals will welcome the detail and coverage of outrages and opinions.

Mr. Goldfarb concludes persuasively that neither the Bill of Rights nor the courts have or can determine the proper role of television. As a result, he states that scrutiny "... must turn to the evolving standards of professional conduct as they struggle to adapt to the new situations raised by the explosive growth of communications technology." [55] Translation: his book now will look at how courts have handled or refused to touch television. His summary of experiments and experiences in state and federal courts is uneven. The synopsis of states' rules in Table 1 [78-80] and his appendices [189-208] is useful and clear. His prose rendering of Table 1 [64-78] does not enhance the table enough to justify the welter of words. Mr. Goldfarb's report [82-84] on coverage of state appellate proceedings over TVW--a twenty-four-hour, daily cable service covering developments in Olympia--should interest even readers who do not reside in the Evergreen State. [Easy for a native to claim!] I found Mr. Goldfarb's reporting of the practices and pronouncements of U. S. courts [84-94] interesting and informative.

Because he is level-headed and fair-minded, the author finds that research regarding the effects on participants and justice of televising hearings has been largely inconclusive. The worst fears of opponents of coverage find little support, but there are too many negatives that proponents cannot prove. Mr. Goldfarb decides that support and opposition depend on value judgments that resist scientific assessment. Having reached a Scottish verdict on alleged drawbacks and costs of television coverage, the author decides to detail some benefits from televised trials.

He looks for such benefits in the nation's experience with Court TV because "Court TV's extensive experiment with cameras in courts provides the best available evidence for measuring the success of televised trials." [125] Most readers will want to moderate this claim, for Court TV controls far too few variables to run a quasi-experiment and very little in the chapter could be called measurement. Nevertheless, Court TV does exemplify a practically unobtrusive, reasonably objective mode of televising trials that deserves attention.

Mr. Goldfarb's account of the creation and development of Court TV is fascinating. Some early experiences are also instructive. When Fred Graham used a "golf whisper" to explain the courtroom action from his studio perch, viewers called in to protest that he was detracting from they had tuned in to see. Having concluded that Court TV viewers need less assistance than Court TV producers had presumed, Mr. Graham let the cameras roll.

From the experiences of Court TV, Mr. Goldfarb gathers that "(p)redictions that Court TV would be a combination of C-SPAN and soap operas proved correct." [143] For the most part, Mr. Goldfarb sees that combination as a plus. However, he notes that NBC national legal correspondent and lawyer Carl Stern faults Court TV's tendencies to sensationalize prurient moments, to commodify courtrooms, and to invade participants' privacy. [144-145] In contrast, supporters find Court TV educational and revelatory. Viewers disposed by other media to believe myths and distortions about courts and the legal system may develop more accurate and sensible impressions by watching trials live, for example. [150]

This "best available evidence" is inconclusive in at least two respects. First, "data" from the "experiments" are equivocal, as Mr. Goldfarb acknowledges. Second, Stephen Brill's passion for getting representative adjudication before the citizenry may be yielding to market pressures as niche networks battle declining audiences by pursuing ratings. I applaud the author's candor in this chapter-ending note of uncertainty: "How much Court TV may change under different leadership and whether a new channel will emerge are questions that will be answered as the century ends." [153] If the "best available evidence" justifies no firm conclusions, however, on what does Mr. Goldfarb believe that his final chapter ["Conclusion: TV Or Not TV"] justifiably may rest?

In my reading, Mr. Goldfarb advances the following premises in service of his conclusion that courts, like other entities of government, should be open to citizen-viewers. First, critics of coverage tend to exaggerate the frequency with which freedom of press wars with public trials. Second, a free press working at its best helps to assure fair trials. When television is at less than its best, appeals courts stand ready to police problems and television may provide alternative vantage points, as when the jury of public opinion differed with the jury in the criminal trial of O. J. Simpson. Third, no evidence shows that participants in trials will be adversely affected. Mr. Goldfarb notes that the press can influence jurors--perhaps the locus of greatest concern--in few trials because so few cases result in jury trials. Fourth, "(m)uch of the current criticism of televised trials amounts to killing the messenger while ignoring the message." [164] That is, mass media and especially television are too often criticized for mirroring the perfidy, perjury, and pageantry in courtrooms. That the camera demystifies ought to be among its virtues, Mr. Goldfarb maintains. Fifth, Court TV and other live and inconspicuous television might ameliorate some of the excesses and shortcomings of ordinary press coverage of the courts. "One can bribe a reporter, but not a camera." [172] No recorder will wince, guffaw, applaud, or weep, as reporters have and will, but it can expose miscarriages of justice as well and as often.

With these premises, Mr. Goldfarb may have made a prima facie case for expanding television into courts. Because reliable evidence bearing on these issues is so scant and because the best of that scant lot is equivocal, Mr. Goldfarb's premises have not been tested, especially in the limited context of a fixed camera relaying live coverage across cable without intermediaries. Some his premises are points well made that would, I expect, meet challenges. Other premises, I further expect, deserve qualification and modification. For example, no one should even contest what television might do at its best; rather, let us understand what television will do at its norm. At least one contention--that television could not disserve many juries because so few cases have juries--seems to me recklessly dismissive. Even if television affected but one case in ten thousand or but one jury in ten dozen, modern legal systems feature so many cases and juries that injustice might be rife. I wonder how many parties and lawyers would be assuaged by the fact that they could always appeal.

In sum, Mr. Goldfarb's position is plausible but the data are not in. If we focus on his most defensible claim (that is, for passive, "unhosted" television), much of his book becomes irrelevant and the rest inconclusive.