George W. Liebmann//May 25, 2023
//George W. Liebmann
//May 25, 2023
To the Editor:
I view with some annoyance the statement by the non-dissenting members of your Editorial Advisory Board (“On broadcasting criminal trials,” May 12, 2023) that I have provided ”misinformation” about two Supreme Court decisions in my letter upholding the restrictions on the televising of criminal trials that have been recently defended on policy grounds by both the Federal Judicial Conference and the Maryland Judicial Conference.
The case of Estes v. Texas, 381 U.S. 532(1965), which all interested persons should read, dealt with constitutionality, not policy. The four dissenting justices were united with their brethren in stating that “the introduction of television into a courtroom is, at least in the present state of the art, an extremely unwise policy. It invites many constitutional risks, and it detracts from the inherent dignity of a courtroom …”
The opinion in Bortnicki v. Vopper commanded the full agreement of only four justices; two concurring justices stressed the narrowness of its reach and the opinion was an exercise in intermediate, not strict, scrutiny.
I do not favor or foresee a “constructive competition to reconcile sometimes conflicting rights” between the institutional press and the judiciary. As stated by Justice Robert Jackson: “Procedural due process is more elemental and less flexible than substantive due process. It yields less to the times, varies less with conditions, and defers much less to legislative judgment. Insofar as it is technical law, it must be a specialized responsibility within the competence of the judiciary on which they do not bend before political branches of the government, as they should on matters of policy which comprise substantive law…it is here that the charge of the Constitution to the judiciary is the clearest.” (Shaughnessy v. U.S. ex rel Mezei, 345 U.S.206, 224-25 (dissenting opinion).
Practicing lawyers may want to be everybody’s friend, but if society is to withstand ‘Red Scares’ and their equivalents, the judiciary must know when not to yield.
The national televising, with selection and commentary, of excerpts from sensational Maryland trials, many of them involving racial conflicts, by such as Fox TV and MSNBC can even threaten public order, as well as fairness to defendants.
George W. Liebmann
Library Company of The Baltimore Bar