A Proposal for Media Access to Audiotapes and Videotapes Presented during Trials

By Wilson, Sherrie L. | Communications and the Law, March 1999 | Go to article overview

A Proposal for Media Access to Audiotapes and Videotapes Presented during Trials


Wilson, Sherrie L., Communications and the Law


On a Sunday afternoon in April 1996, President Clinton spent several hours before a video camera answering questions from a flock of lawyers. His videotaped testimony later was played before a jury as part of the fraud and conspiracy trial of Susan McDougal and James McDougal, his former partners in the Whitewater land deal, and of Jim Guy Tucker, then governor of Arkansas.(1) Media representatives watched the testimony in court and received written transcripts, but two courts turned down the media's requests for access to the videotape itself.(2)

A similar issue arose in 1998 when the media sought access to Clinton's videotaped deposition in the Paula Jones sexual harassment suit against the president. Portions of those tapes eventually were played as part of the impeachment proceedings against Clinton in December 1998, but courts had not previously released the tapes to media organizations.

These are high-profile examples of legal barriers that often confront journalists when they seek permission to copy and broadcast audiotapes and videotapes that are played, or scheduled to be played, during trials. Should the media have access to these tapes?(3) The courts have not provided consistent answers to this question, but in general, the courts have not recognized a First Amendment right of access to them. A commentary in The News Media and the Law (a publication of the Reporters Committee for Freedom of the Press) summarized the situation this way:

   The common law right of the media to gain access to trial exhibits,
   including video- and audiotapes, is well established. But the federal
   courts haven't universally recognized a right to copy them, and those that
   have vest the presiding judge with discretion to decide on a case-by-case
   basis whether duplication will be allowed.(4)

The question of media access to tapes often becomes framed as part of the more general free press-fair trial debate. Courts must balance the First Amendment right to a free press(5) with the Sixth Amendment right "to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed."(6) Some courts have denied access to tapes because of concern that publicity may influence potential jurors in upcoming trials. Privacy concerns for people who appear or are mentioned in tapes also have led some judges to prohibit media access. In cases featuring videotaped testimony by presidents, including President Clinton in 1996, courts have rejected access out of concern for the dignity of the presidency and fears that the tapes could be misused by political opponents of the president.

Journalists and legal scholars often argue that the right of access to criminal trial exhibits--including audiotapes or videotapes--should coincide with the right of access to criminal trials. Allowing the media to copy and broadcast tapes presented at trials provides the right of access for the majority of the public who cannot attend the trial in person.(7) The U.S. Supreme Court has found a constitutional right for media and public access to trials and other court proceedings in Richmond Newspapers v. Virginia(8) and other cases decided during the 1980s. A journalism professor who analyzed the impact of Richmond Newspapers four years after it was decided said that the decision "had a positive impact on the media's right to inspect, copy, and broadcast or publish evidentiary documents, but courts have declined to directly recognize a constitutional right [of access] to these documents."(9) Most courts have not accepted the argument that Richmond constitutionalized the common law right to inspect court documents and records, which the Supreme Court recognized in Nixon v. Warner Communications, Inc., a 1978 case involving access to Watergate tapes.(10)

This article first examines Supreme Court rulings that have found a constitutional basis for opening court proceedings to the public and the media. …

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