May 13, 2014

Is the Day of the Courtroom Sketch Artist Coming To An End?

From the New York Times' Opinion pages, discussion of a documentary on a courtroom sketch artist and the impact of cameras in the courtroom on his career.

Below, a short bibliography on courtroom sketch artists and the law:

Burnett, M. Dallas, The Utah Federal Court's Ban on Sketching of Courtroom Scenes, 1975 BYU L. Rev. 21.

Caffrey, Denise, United States v. CBS: When Sketch Artists Are Allowed In the Courtroom, Can 
Photographers Be Far Behind? 1975 Duke L.J. 188.

Cohen, Mark C., United States v. Columbia Broadcasting System, Inc.: Courtroom Sketching and the Right To Fair Trial, 10 New Eng. L. Rev. 541 (1974/1975).

Krien, Anna, Drawn Faces, The Monthly, May, 2012.

Moran, Leslie J., Every Picture Speaks a Thousand Words: Visualizing Judicial Authority in the Press, in Intersections of Law and Culture 31 (P. Gisler, S. Steinert Borella, and C. Wiedmer, eds.; Palgrave Macmillan, 2012) (Palgrave Macmillan Socio-Legal Studies).

Stecker, Naseem, The Case of the Disappearing Courtroom Sketch Artist, Michigan Bar Journal, July 2002, at 16. 

Taylor, Karen T. Forensic Art and Illustration (CRC Press, 2001).

See U.S. v. CBS, 497 F. 2d 102 (5th Circ., (1974)) (vacating orders by the lower court that prohibited a artist employed by the network from sketching courtroom scenes and prohibited the network from publishing the artwork.

An examination of the position of the various courts on sketching suggests precisely the opposite conclusion from that reached by the Estes Court. To our knowledge, no state or federal court has prohibited the publication of sketches. Of the eighty federal district courts which have written rules, only three have provided, pursuant to a suggestion in the Kaufman Committee Report, that in certain widely publicized cases the court may direct "that the names and addresses of jurors or prospective jurors not be publicly released except as required by statute,   and that no photograph be taken or sketch made of any juror within the environs of the court." ...We express no views, of course, on the wisdom or validity of such rules, but mention them only to demonstrate that virtually no courts have found it necessary to restrict the publication of sketches. It is also significant that those jurisdictions which have regulated sketching have done so in very narrowly drawn circumstances. Even if we were to determine that sketching presented a danger sufficient to warrant a prior restraint, it is basic constitutional law that the limitation can be no broader than necessary to accomplish the desired goal. ...In the matter sub judice, even though the district court was legitimately concerned with preventing prejudicial publicity from poisoning the impartial atmosphere essential to a fair trial, we conclude that the total ban on the publication of sketches is to remotely related to the danger sought to be avoided, and is, moreover, too broadly drawn to withstand constitutional scrutiny. We hold, therefore, that the portions of the district court's orders which ban the publication of sketches are unconstitutional.
Turning now to the second issue in this appeal, we further hold that in the circumstances of this case the rule which forbids in-court sketching is also invalid. In so doing, we do not question the power of the district court to issue orders regulating conduct in the courtroom. Ordinarily the trial judge has extremely broad discretion to control courtroom activity, even when the restriction touches on matters protected by the First Amendment. ...We are unwilling, however, to condone a sweeping prohibition of in-court sketching when there has been no showing whatsoever that sketching is in any way obtrusive or disruptive. As noted earlier, some districts have adopted narrowly drawn rules applicable only to highly publicized cases. Though this is not the appropriate occasion to pass on the constitutionality of more limited restrictions, we are firmly of the view that the restraint imposed by the court below is overly broad and thus invalid. 

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