Jury selection in the trial of former Minneapolis police officer Derek Chauvin, charged with the murder of George Floyd, is complete, opening statements have been made, and the trial is underway. Yet despite the international interest in this prosecution, the courtroom is all but empty of spectators.
Due to the Covid-19 pandemic, the general public is not allowed to attend in person and press access is severely limited. Instead, in a state where televised trials are the exception, not the rule—and over the objection of the prosecution—Chauvin’s trial is being broadcast and streamed live.
The court’s near-total prohibition on in-person attendance is unheard of in the history of criminal trials in America—the First and Sixth Amendments guarantee open trials on the belief that public access safeguards the integrity of the legal process and allows the public to see that criminal defendants are fairly dealt with.
Thus, the proposal that this extremely high-profile and important trial should occur largely behind closed doors was not an idea our media clients were eager to accept.
As trial planning coalesced, however, it became clear the media could challenge the restrictions on in-person access but be left with an “open” courtroom much too small to accommodate the dozens of journalists hoping to attend the trial, to say nothing of the demand for seats by the public at large. Or, they could acknowledge the exigencies of the pandemic and ensure that people the world over could watch justice unfold in real time. Our clients chose the latter.
Audio-Visual Coverage Not Presumptively Allowed
A bit of context: Audio-visual coverage is not presumptively allowed in Minnesota courtrooms during the guilt/innocence phase of criminal trials. Rather, under Minnesota’s court rules, all parties must consent. So although Chauvin consented to cameras, when the state filed notice that it did not consent, that would have been the last word under ordinary circumstances.
But in a surprising move, the court ordered that, given the pandemic, the only way to comply with the First and Sixth Amendments was to allow the trial to be “recorded, broadcast and livestreamed in audio and video.”
In a subsequent order, the court specified that the only spectators allowed inside the courtroom would be two media representatives, one technician from Court TV (to provide the live audio and video feed), one member of the Floyd family, and one member of the Chauvin family.
It is an imperfect solution to an extraordinary challenge, but we hope it illustrates the important role cameras play in building, and maintaining, trust and confidence in the judiciary—and in the ultimate verdict, which many fear may unleash the sort of unrest we saw after Floyd died.
Rethinking Cameras in Courtrooms
With any luck, this trial will encourage Minnesota, and jurisdictions that also do not allow cameras in courtrooms, to rethink their rules once they realize that cameras do not conflict with the goals of an orderly court proceeding.
If, however, these jurisdictions continue to rely on speculative, debunked theories that cameras are disruptive, the court’s decision provides useful fodder for future challenges to limits on cameras in courtrooms.
Specifically, in an age of unobtrusive audio and video technology, can limiting the access to only those able to physically sit in a courtroom ever again constitute “reasonable” access—which is what the First Amendment demands, even if there is no per se “right” to bring a camera to court?
As the court opined when denying the state’s motion to reconsider its order allowing audio-visual coverage and to instead provide only overflow courtrooms: “it begs the question of how many overflow courtrooms would suffice. . . Two? Three? Twenty? Should the [court] pause all courtroom activity for the months of March and April 2021 to allow every courtroom . . . to be used as overflow courtrooms for this trial?”
As the court continued, “[t]he State merely wants a limited audience. The Court, on the other hand, is concerned that the more the audience is limited, especially in a trial with international interest, the more likely that the constitutional rights associated with a public trial are violated.”
Lodging a First Amendment challenge against camera restrictions would, no doubt, be an uphill climb. No court has recognized a First Amendment right to cameras in the courtroom, and many courts have found no such right exists.
Public Access Requires Audio-Visual Access
But with non-invasive cameras that are virtually invisible to trial participants, is it really “reasonable” to say that the public has access if a trial is only visible by the 20, 40 or even 100 people sitting in the courtroom?
Perhaps not. As an appellate court of appeals held in 1917, allowing only 25 members of the public to attend a trial when the courtroom could hold 100 people constituted a reversible error. Similarly, perhaps it is not reasonable to allow only 100 people—or even 500 people—to observe the administration of justice when we can reasonably allow anyone with a television, internet connection, or data plan to do so.
Given the opportunity, we know that people will tune in: As of September 2020, almost 2 million people had listened to recordings of the Supreme Court’s Spring oral arguments. Similarly, the Minneapolis Star Tribune’s YouTube channel—one of several places to watch the Chauvin trial live—garnered nearly 300,000 views in the first week of jury selection and the number of people watching at the same time hovered consistently at around 2,000. The newspaper expects many more to tune in for the trial.
Although courts should not move to audio-visual access in lieu of in-person access, perhaps it is time to decide that the digital “courtroom” of the 21st century is akin the 100-person courtroom of the 20th century. We should embrace today’s technology, not reject it, and let the world watch. A commitment to transparency—and perhaps even the U.S. Constitution—demand it.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Leita Walker is a partner in Ballard Spahr’s Minneapolis office and Emmy Parsons is an associate in the firm’s Washington, D.C., office. Both are members of the firm’s Media & Entertainment Group and together represented a coalition of media and open-government organizations that intervened on several occasions in the prosecutions arising from the death of George Floyd. On behalf of the coalition, they also filed a brief supporting the court’s access plan.