As the criminal trial of Donald Trump in federal court in Washington, D.C. gets closer, the question remains whether Judge Tanya Chutkin will allow it to be televised. NBCUniversal and a media coalition of the Associated Press, Bloomberg, Dow Jones & Company, publisher of The Wall Street Journal; the E.W. Scripps Company, which operates Court TV; the Los Angeles Times; the National Association of Broadcasters; the National Press Photographers Association; News/Media Alliance; The New York Times Company; Politico; Radio Television Digital News Association; Society of Professional Journalists; Tegna; Univision Networks & Studios and The Washington Post have each filed a motion to allow live coverage of the trial. The argument for live coverage is compelling on a micro and macro level.
On the micro level, the argument in favor of broadcasting the trial is simply that the rule that appears to prohibit live broadcasting doesn't actually prohibit it. The rule in question is Federal Criminal Rule 53. Its language is straight forward: "Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom."
But in its motion, NBC notes that the Rule only prohibits "broadcasting . . . from the courtroom." In NBC's view, the "broadcasting" occurs only when the feed is disseminated to the public at large. NBC contends that Judge Chutkin could order the feed transmitted to the NBC studios and broadcast from there. In so doing, there would be no "broadcasting" from the courtroom. And while that argument may sound like a Jedi mind trick, context matters. Rule 53 was adopted in 1946 – at the dawn of the TV age. And back then, cameras were enormous, lights were blinding, and cables were obtrusive. None of that is true today. NBC is really asking Judge Chutkin to recognize the obvious difference between today's technology and the medieval gear from 77 years ago. And a broadcast is better than a dry trial transcript. The NBC motion quotes from case where the court noted, "[o]ne cannot transcribe an anguished look or a nervous tic. The ability to see and hear a proceeding as it unfolds is a vital component of the First Amendment right of access."
On the macro level, NBC contends that if Judge Chutkin were to enforce Rule 53, she would be violating the First Amendment. As the motion notes, the prohibition on broadcasting a criminal trial makes a distinction on the content of the speech being broadcast. That is, civil ceremonies and naturalizations occur in federal courtrooms and are routinely broadcast. To prohibit the broadcasting of criminal trials is a content-based regulation that has to be justified by a compelling need, using only the least restrictive means.
Rule 53 fails this scrutiny on both fronts. Given the intense interest in the case there is no need to insist that it take place behind closed doors. It will be better that the public have the ability to see for itself, rather than rely on third-party reporting. And the total ban required by Rule 53 is in no way the least restrictive means to accomplish the non-existent interest in not broadcasting the proceedings.
It is worth noting that Donald Trump wants the trial televised. While that shouldn't be the deciding factor, it is significant. Frequently criminal defendants object to televising the proceedings for privacy reasons or for fear the coverage will taint the jury pool. Here, the absence of those concerns is just one more reason to televise the trial. Ideally, Judge Chutkin will make the right call here. We should know soon.