Andrea Widburg reported recently that John Lauro, a lawyer defending Trump against the Jack Smith witch hunt, will request that cameras be allowed in the courtroom during the trial.

As Widburg notes, this argument looks like a long shot, because the Federal Rules of Criminal Procedure specifically forbid cameras.  Rule 53 says: "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 not so fast, because the Sixth Amendment to the Constitution says: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed."  In addition, the First Amendment is implicated, because the public has a right to hear information, and media and other interested parties have a right to obtain and communicate it.

The logical question is whether these constitutional guarantees trump Rule 53, if the defendant either desires this or has no objection.  Does the defendant's right to a "public" trial extend to a right to a "broadcast" trial, or only to a right to have the public admitted to the courtroom?  The same is true for the First Amendment — does the right to attend a trial encompass a right to broadcast it?

Rule 53 is defended by two sets of arguments.  The first is the fear that cameras would worsen a media circus that compromises the right of the accused to a fair trial, with famous examples being the Lindbergh kidnapping case and the Sam Sheppard murder trial.  Indeed, the Supreme Court held in Estes v. Texas that a television circus of a trial despite a defendant's objections violated his right to due process of law.

The second fear is that broadcasting might unnerve witnesses and jurors, apprise future witnesses of earlier testimony, or otherwise have a negative impact on the trial itself and on the dignity of the proceedings.

If the defendant desires cameras, then the first of these has no weight.  The second is worthy of concern, but not undue, and it must be interpreted with recognition of the fact that the ban on broadcasting is primarily to protect the defendant.

So the basic issue is whether a defendant who wants the proceedings broadcast has a Sixth Amendment right that negates Rule 53.  As an ancillary question, does the media's/public's interest in effective access outweigh concerns about a negative impact?

So far, the courts have rejected both arguments, deciding that the Sixth and First Amendments require only that public have physical access to the courtroom during the trial.  (See U.S. v Hastings, 1983.)

The reasoning underlying this conclusion is weak to nonexistent, relying mostly on the literal meaning of the term "public."  But only an autistic originalist can argue that because the Founders did not specify camera access in 1787, it cannot be required now.  For comparison, note that Fourth Amendment protections extend to electronic communications, which were equally unheard of in 1787.  Adapting the terms of the Constitution to present-day technologies is how judges earn their pay.

A better guide is provided by the underlying principles of Richmond Newspapers v. Virginia, the 1980 case in which the Supreme Court established that the media have a First Amendment right of access to criminal trials.  The case is full of exhortations concerning the importance of transparency in the administration of justice, such as the following:

In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees [of freedom of speech and press]. "[T]he First Amendment goes beyond protection of the press and the self expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw." Free speech carries with it some freedom to listen. "In a variety of contexts this Court has referred to a First Amendment right to 'receive information and ideas.'" "For the First Amendment does not speak equivocally. ... It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow."

Extending the constitutional logic of Richmond Newspapers to require broadcast access in U.S. v. Trump is not just an easy step, but a necessary one.

But there is more.  Trump himself, not just the media, should have a First Amendment right to have the proceedings broadcast as a part of his efforts to communicate politically.

As Widburg documents, a major contention in Trump is that the government is manipulating the system so as to try the case in a jurisdiction that is overwhelmingly hostile to him in front of judges whose impartiality is, to put it politely, open to question.  The whole nation should be able to judge this, not just the few who can squeeze into a D.C. courtroom, especially when another important part of the overall context is strong allegations of government censorship of the media.  "The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power" (In re Oliver, Supreme Court, 1948).

Give the last word to Justices Brennan and Marshall in Richmond Newspapers:

[O]pen trials are bulwarks of our free and democratic government: public access to court proceedings is one of the numerous "checks and balances" of our system, because "contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power," [Citation] Indeed, the Court focused with particularity upon the public trial guarantee "as a safeguard against any attempt to employ our courts as instruments of persecution," or "for the suppression of political and religious heresies." ... [O]pen trials are indispensable to First Amendment political and religious freedoms.

James V DeLong is a graduate of the Harvard Law School, where he was an editor of the Harvard Law Review.

Image: Gage Skidmore via Flickr, CC BY-SA 2.0.