Camera Access to Courtrooms: Canadian, U.S., and Australian Experiences

James M. Linton (University of Windsor)

Abstract: This study briefly outlines the different Canadian, U.S., and Australian experiences with the permitting of camera access to court proceedings. A number of factors are advanced to account for these differences and the main determinant is identified as a nation's relative emphasis on the values of "free press" and "fair trial."

Résumé: Cette étude décrit brièvement les différentes expériences en cours au Canada, aux Etats-Unis et en Australie, en ce qui a trait à l'accès des caméras devant les tribunaux lors des procédures judiciaires. Nombre de facteurs tendent à justifier les différences observées alors que l'élément déterminant semble être l'importance accordée dans chaque pays aux valeurs liées à la liberté de la presse et à l'équité des procédures judiciaires.

The nature of a society's institutions can tell us a great deal about that society's values. When two institutions intersect, it is often highly probable that the dominant values of those two institutions will come into conflict. The balance that is achieved among such conflicting values embodies the fundamental societal values of that polity. Such is the case when the media encounter the legal system, and this dynamic can be observed currently in the manner in which societies are dealing with the issue of allowing the audio-visual media access to record and broadcast the activities of a nation's courts.

The courtroom cameras issue reflects major differences in philosophy about the role and effect of media in society as compared to the function and operation of the justice system. On the one hand, proponents of cameras in the courtroom claim that such access will not interfere with the decorum or efficient operation of the courts, nor compromise an accused's right to a fair trial. Furthermore, they contend, such access will lead to a public better informed about their nation's legal affairs and with a consequently greater respect for the administration of justice. Camera opponents, on the other hand, see the presence of cameras as disruptive of the legal process, as having adverse impact on most or all categories of trial participants, and not improving the public's knowledge of or opinion about the legal system--perhaps even misinforming them about such matters and possibly bringing the administration of justice into disrepute. The manner in which Canada, the United States, and Australia have addressed and resolved this matter is instructive about the mechanisms that are operative in this realm and the societal values that exert prominence in such a contestation between the media and legal institutions of a society. Differences that emerge ultimately can be linked with differences in political cultures of the three nation states.

The U.S. Experience

The United States has the longest and most extensive experience in allowing cameras in the courtroom. By the early 1990s, 45 states allowed such camera access on a permanent or experimental basis (Mauro, 1991). But this situation represents a dramatic change from the 1960s and is the culmination of a long protracted struggle to lessen earlier prohibitions. In tracing the history of this controversial legal issue in the U.S., Barber (1987) notes that the earliest concerns were raised in 1917. The major influence in the introduction of restrictive conditions or outright bans, however, was the "media circus" surrounding the 1935 trial of Bruno Hauptmann, who had been accused of the kidnap-murder of the Lindbergh baby. In the wake of this media abuse, the American Bar Association unanimously adopted Canon 35 in 1937, calling for a blanket ban on courtroom photography and radio broadcasting. In 1952, this ban was extended to television cameras. This stance was reinforced by the Supreme Court's 1965 decision in Estes v. Texas, in which it ruled that the disruption caused by the presence of television cameras had denied Estes his constitutional rights to a fair and impartial trial.

The ABA made slight revisions to Canon 35 (which became Canon 3A[7]) in 1972, allowing camera access for specific, restricted purposes, but still precluded such access for general news purposes. Barber (1987) notes that around this time the news media became more militant about the issue, reflecting "the general trend promoting freedom of information and access to government proceedings" in the post-Watergate era. Proposals to liberalize Canon 3A(7) further were defeated in 1979, but media pressure had mounted in the 1970s and many state Supreme Courts acceded to proposals for media coverage of their courts (Barber, 1987). A significant development in this regard was the Supreme Court decision in Chandler v. Florida in 1981, in which it was held that cameras themselves and the act of broadcasting segments of trials inevitably did not preclude the right to a fair trial.

At that point, 29 states were allowing some form of electronic media news coverage of courts; by August 1982, the number was 36. Currently, media access to and coverage of state courts is firmly entrenched, although they are still precluded from all federal courts--pending the outcome of a three-year experiment (Mauro, 1990)--and the Supreme Court. As of 1991, only the District of Columbia, Indiana, Mississippi, Missouri, New York, South Carolina, and South Dakota did not permit any form of direct coverage of their courts. Although the existing policies are a "crazy quilt" of coverage rules, limitations and restrictions, the principle and practice of media access to courts is well established. Such practice was intensified recently when the Court TV cable channel went on the air, providing varying types of coverage of legal proceedings on a regular basis.

The Canadian Experience

The media's access to Canadian courts is much more circumscribed than it is in the U.S., and the issue as a matter of public debate is a much more recent phenomenon. Discussion and litigation on the issue in Canada seem only to have begun in the 1980s, and it may be that the patriation of the Constitution and the introduction of the Canadian Charter of Rights and Freedoms were the catalysts to this development. To this point in time, although Ontario is the only jurisdiction to limit camera access explicitly and practices among provinces vary, "generally, however, no electronic coverage of trials occurs regularly anywhere in Canada" (Law Reform Commission of Canada, 1987). On the other hand, there has been some experience with such coverage of quasi-judicial proceedings, such as Royal Commissions of Inquiry, and of actual judicial proceedings in Ontario within the limitations of the existing statute under court approved conditions (Canadian Bar Association, 1987; Zuber, 1987).

Recent pressures have emerged on a number of fronts to allow the admission of the audio-visual media to the courtrooms and general judicial facilities of Canada. The Law Reform Commission of Canada (1987), in its review of public and media access to the criminal process, recommended that electronic media coverage of criminal trial appeals be permitted, that audio recordings of criminal proceedings be allowed "as a substitute for, or in addition to, handwritten notes," and a national "experiment" that would cover "a significant period of time" be undertaken to investigate the effects of electronic media coverage of criminal trials proper. Similarly, as part of a larger review of the Ontario Court System, the Honourable T. G. Zuber (1987) recommended that the pertinent statute be modified "to permit the electronic media into the courtroom for a period of two years," to assess the long-term viability of such access. A third initiative involved the Canadian Bar Association (1987) accepting the majority recommendation of its Special Committee on Cameras in the Courts, reversing its earlier stand against such access. The resolution recommended that "television and photographic media be given access to a judicial system for a two-year period," subject to a number of strictures. In the furtherance of this plan a former CBA President advanced a proposal for such an experiment to the Attorney General of Ontario, but to this point in time no action has been taken.

The other major thrust in this area has been an attempt to utilize Section 2(b) of the Canadian Charter of Rights and Freedoms to gain access to courtrooms for electronic media. This particular section of the Charter includes "freedom of thought, belief, opinion and expression, including the freedom of the press and other media of communication." Such fundamental freedoms are to be (according to Section 1 of the Charter) "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Using these principles, the Canadian Broadcasting Corporation, in R. v. Squires, attempted to have charges under the then Judicature Act dropped against a CBC reporter and camera crew who had been charged with filming in a courthouse premises. Their arguments that the provisions of the act infringed Section 2(b) of the Charter were not accepted by the trial judge; furthermore, he ruled that even if the Ontario rule did offend the Charter, it was a reasonable limit under Section 1. On appeal, the appeal court judge did find the sections of the Ontario Act to be an infringement of 2(b), but ruled that they were a reasonable limit on the basis of the Section 1 test. The most recent development has seen the Ontario Court of Appeal narrow the issue to filming in the corridors of courthouses, not in courtrooms proper. At this point, a decision on that more limited issue is still pending. In a move reminiscent of the general U.S. situation, however, the Supreme Court of Canada recently has been considering allowing cameras to record proceedings on a "trial" basis.

The Australian Experience

The Australians would seem to have had even less experience in allowing cameras into the courtroom than Canadians have, and the issue of permitting increased media access would appear to be a less prominent item on the socio-political agenda. There have been a few instances in which portions of court proceedings have been recorded and later broadcast on television, one in which such segments were recorded for incorporation into a commercial film, and other examples of the transmission of such proceedings via closed-circuit television for use by news media representatives--the latter on a permanent basis in the High Court of Australia in Canberra (New South Wales Law Reform Commission, 1984b).

The existing law concerning the broadcasting of sound or television recordings of legal proceedings grows out of a court's or commission's "inherent power to control and regulate its own proceedings" (NSW Law Reform Commission, 1984b). Despite the fact that there is no statutory prohibition on the recording and televising of legal proceedings, such activities tend to be the exception rather than the rule. The issue of expanded media coverage has received some consideration, nonetheless. In the early 1980s, after the receipt of a submission by a newspaper publisher to the effect that reporters should be allowed to tape-record court proceedings, the Attorney General of New South Wales referred the matter to the New South Wales Law Reform Commission (NSW LRC) for study. During its deliberations, the Commission broadened its investigation to include the issue of televising court proceedings as well as tape-recording them. In the process of consultation, the Commission discovered that the media were supportive of such liberalization of media access to legal proceedings, but the members of the legal community, especially judges, were hostile toward the development (Ramsay, 1989).

Faced with this contentious issue and desiring to maintain their high success rate in having their recommendations implemented (Ramsay, 1989), the Commission confined its report to matters related to sound recording of court and commission proceedings (NSW LRC, 1984a). This document received little media attention when it was released (Ramsay, 1989). After the publication of that report, the Commission released an "Issues Paper" (NSW LRC, 1984b) that broadened discussion to include televising legal proceedings, among other matters. The research on the topics had already been done, and such publication was felt to do greater justice to the Commission's terms of reference (Ramsay, 1989). After a brief period of considerable media coverage, the Issues Paper disappeared from the public agenda without generating many public responses (Ramsay, 1989). As a consequence, the Commission put the matter on a back burner, and the author of the document predicts that it won't be resuscitated in the near future due to budgetary considerations and other priorities on the part of the Commission (Ramsay, 1989).

In a more recent, somewhat related development, the NSW Independent Commission Against Corruption (ICAC) held hearings to determine whether or not its public proceedings should be televised. It ultimately recommended that hearings not be televised "in favour of ensuring the right of ICAC witnesses to a fair trial at any future proceedings arising out of an ICAC investigation" (Committee on the ICAC, 1990). They did, however, recommend the establishment of "a working party to report on measures of improving electronic media coverage of court proceedings in N.S.W." Ramsay (1991) reports that the recommendation has not been acted upon and does not appear to be a priority of the government.

Central Factors Affecting Camera Courtroom Access

There would appear to be a number of factors that are significant in determining a society's position with regard to allowing the media to record and broadcast judicial proceedings. Some factors are more logistical in nature and constitute what might be considered necessary but not sufficient conditions in influencing decisions about camera access. Other factors are more fundamental in character and would appear almost the sine qua nons in the consideration of the access issue. The discussion below proceeds from the examination of the less significant logistical factors to the more important fundamental ones.

Experimental or Trial Periods

Of the 32 U.S. states that had permitted cameras in their courtrooms on a permanent basis by 1985, 25 had implemented permanent rules during or after a period of formal experimentation. Another 14 states were at that point permitting camera access under experimental rules, and in 1991 six states have some form of experimental coverage in place. In Canada, three different sources have called for such a period of formal experimentation with camera access (Canadian Bar Association, 1987; Law Reform Commission of Canada, 1987; Zuber, 1987). The CBA has even advanced a specific proposal for implementation of such an experiment to the Attorney General for Ontario. Australia is the only one of the three countries under study in which such experimentation neither has been carried out nor advocated. The limited camera access that has occurred has taken place on an ad hoc basis, as a result of the decisions of individual judges or commissioners who were exercising their inherent power to control and regulate their own proceedings (NSW LRC, 1984b).

The decision to allow cameras into the courtroom on a more or less regular basis for a fixed period of time, during which their impact on the judicial process is studied, would appear to be the final (and inexorable) step in allowing them into courtrooms on a permanent basis. (New York State would appear to be the only jurisdiction in which the experimental or trial period has resulted in cameras being banned; it can probably be considered the "exception that proves the rule.") Such an experimental or trial period can be viewed as the proverbial "foot-in-the-door" for camera access. Once a decision to permit such experimentation has been made, the legitimacy of camera access essentially has been accepted in principle and the experiment is basically a formal justification for such a decision and/or an opportunity to "fine-tune" the specific rules under which the media will operate. People can point to media access to such bodies as legislatures and commissions of inquiry as experiences which facilitate the introduction of cameras into courtrooms, and it is certainly true that apparently benign results of media access to such forums do provide ammunition for advocates of courtroom cameras. The truly telling development, however, is the adoption of a period of formal experimentation.

Attitude of the Legal Profession

In the United States in 1982, there was a dramatic reversal of the American Bar Association's traditional support for the banning of cameras from courtrooms (Barber, 1987). The lawyers, in this instance, actually followed the lead of the U.S. Conference of Chief Justices, who had in 1978 adopted a resolution to allow television cameras in courtrooms (Barber, 1987). Alexander's (1991) recent analysis, however, suggests that internal ABA politics actually led to the implementation of the 1930s camera ban when sentiment had been turning in favour of courtroom access.

In Canada, the lawyers have taken the lead, but the judges have been reluctant to follow. The Canadian Bar Association undertook study of the matter and in 1987, not only reversed its earlier opposition, but also came out in favour of a two-year trial period for cameras in the courtroom (Canadian Bar Association, 1987). They have continued to push the Ontario government to implement such a proposal. Canadian judges, however, have not been so enthusiastic or co-operative. One judge has proposed an experimental period of camera access, as part of a report he submitted on the overhauling of the Ontario Court system (Zuber, 1987). He notes that many of his colleagues would not seem to be of a similar mind by pointing out that the Canadian Judicial Council voted against such access in 1983, effectively "terminating the Ontario experiments and any movement towards ending the law." Recent agreement among all nine Supreme Court of Canada judges to permit the televising of an "appropriate" case may signal a change in judicial attitudes, however. In Australia, lawyers have appeared to be indifferent about the issue, and the adverse response of judges to the very idea of televising court proceedings lead to the New South Wales Law Reform Commission confining their report recommendations to sound recording and relegating the matter of camera access to the less contentious level of an "issues paper" (Ramsay, 1989).

The support, or at least the acquiescence, of the bench and the bar is an important ingredient if camera access to courtrooms is to be realized. A minimum of co-operation is required to make an experimental or trial period come to pass and function in a positive fashion. Better yet, of course (from the perspective of courtroom camera proponents), is the strong positive support or even advocacy of this position by large segments of the legal community.

Media Support

Although the U.S. media generally have been very pro-active in pursuing their rights vis-à-vis access to and relationships with the judicial system, Barber (1987) notes that it was not until the post-Watergate period of the mid-1970s that media representatives became vocal about and stepped up opposition to bans against cameras in courtrooms for news purposes. Associations such as the Radio Television News Directors Association were instrumental in pushing for increased access, and the introduction of media services such as Cable Network News and local cable systems, and now the Court TV cable channel, provided a market that was eager to provide coverage (often gavel-to-gavel) of what were deemed to be trials of interest to the public.

In Canada, a similar vigilance has surrounded the media's efforts to ensure its general rights in relation to the legal system. With respect to the cameras-in-the-courtroom issue, the Canadian RTNDA has been active in lobbying for greater media access to legal proceedings just as their U.S. counterpart has been. The Canadian Broadcasting Corporation has led the way in attempting to use the Canadian Charter of Rights and Freedoms to open the courtrooms to television cameras by testing the constitutionality of an Ontario statute limiting such access, in the R. v. Squires case. Finally, a CBC legal counsel, Daniel Henry, was active in the efforts to have the Canadian Bar Association change its policy about camera access and has generally acted as an advocate for this particular position.

The Australian experience has not witnessed such active media support for the camera access position. Although the New South Wales consideration of the issue was initiated by a request by an Australian publisher (NSW LRC, 1984a), that media organization failed to follow up on the report advocating the very sound recording of court proceedings the organization had sought (Ramsay, 1989). More generally, the author of the NSW Law Reform Commission report and issues paper notes the failure of the media to organize a response or exert pressure to have the courts opened up to the audio-visual media (Ramsay, 1989).

The active support or advocacy of a society's media is an important factor in the realization of the media's ability to cover judicial proceedings via sound and visual recording. It is in the media's own self-interest that such a right or privilege be attained, and if that institution is not eager to achieve it, there is little chance that other segments of society can be convinced that the effort is important enough to warrant support.

More General Media Laws

Some analysts contend that defamation (libel and slander) is the American mass media's most common problem and that the recent proliferation of high-profile libel lawsuits has had a "chilling effect" on their operations. On the other hand, however, the public figure doctrine, growing out of the New York Times Co. v. Sullivan case, has given the U.S. media considerable leeway to criticize individuals who are in the public eye. The failure of General Westmoreland's suit against CBS is pointed to as "a useful example of what can happen when defamation laws are less restrictive," and the general U.S. approach following Sullivan has been described as "an extended form of the qualified privilege defence in Canada" (Beckton, 1986). The U.S. media are also subject to contempt laws which can constrain their news gathering and dissemination activities as well. In comparison to the Canadian situation, however, they have never had to contend with the offence of scandalizing the court (Martin, 1986) and "[t]he law in the U.S. proscribes virtually all prior restraints on publication by the press of matters relating to judicial proceedings" (Linden, 1986).

Legal experts perceive the situation to be considerably more restrictive and confining for the media in Canada than it is in the United States. They feel the tort of defamation and the existence of criminal defamatory libel severely limit the media's freedom of expression and the situation will not be neatly solved by the Charter. The status of Canadian contempt laws sound even more foreboding for the media. Martin (1986) describes the law of contempt of court as "exceedingly vague"; Robertson (1986) makes a similar assessment of "substantial vagueness," concluding that contempt is "uncodified and difficult to define.... In short, the law of contempt is imprecise and inconsistent in its application." The contempt laws are seen as undesirable in many quarters and thought to lead to ultimately unhelpful situations. Martin (1986) notes that the crime of scandalizing the court tends to intimidate journalists, and, when combined with traditional Canadian deference to the bench, "creates a predisposition against critical reporting about the judiciary." The Honourable Mr. Justice Allen Linden (1986) makes a more general assessment of the adverse effects of such law, describing it as going "too far in restricting access to legal proceedings in the interests of protecting an accused's right to a fair trial," and characterizing the prohibitions and exclusions in the Criminal Code as "highly speculative and monolithic." As was the case with the defamation laws, however, commentators do not foresee the Charter being used as a basis for reforming the law of contempt of court, and furthermore are not hopeful about the prospects for legislative reform.

The Australian situation with regard to defamation and contempt would seem to be similar to the Canadian one, but perhaps even more restrictive in nature. In general, Michael Kirby (1983) characterizes the legal environment in which Australian media operate as a "minefield," with each state having "its own variants of the laws of obscenity, insulting words, censorship of literature and so on." This situation creates "an intellectual test... at least as challenging as the Times crossword" for the thoughtful working journalist. This general point is underscored for the situation of defamation. Despite recommendations to unify the defamation law throughout Australia, there exist eight separate defamation laws, one for each of the states and territories, which "can be grouped into three types: the common law; the codes; and the hybrid New South Wales system" (Watterson, 1988). This complexity operates in concert with the fact that, subject to limited qualifications, defamation involves strict liability, and that the "standard for reasonableness attributed to the mass media audience is not high, and has permitted identifying inferences sufficient to support a defamation action, which the courts themselves have described as `not sensible' and `nothing short of far-fetched' " (Watterson, 1988). Furthermore, analyses of defamation actions demonstrate that the vast majority are not brought by ordinary citizens but by politicians and other public figures (Kirby, 1983; Watterson, 1988). Such a situation perhaps accounts for the perception that "[c]ontemporary defamation laws are weighted more toward protecting public officials than their critics" and "exist to protect the rich and powerful" (Grabosky & Wilson, 1989).

Although there appears to be some considerable variation of opinion among journalists as to the extent which defamation laws constrained their activities (Grabosky & Wilson, 1989), Windschuttle (1988) is definitive in his assessment: "The defamation laws do inhibit freedom of the press in this country" (original emphasis). Kirby (1983) contends "the application of the current laws continues to work its daily injustice, uncertainty and timidity." Watterson (1988) quotes the Australian Law Reform Commission's Unfair Publication report at length to demonstrate that although other factors such as economics play a large role in the media's coverage of events, the law of defamation does function to constrain such coverage. Finally, Grabosky & Wilson's (1989) more detailed description of journalists' attitudes illustrates numerous instances of uncertainty, intimidation, and subconscious self-censorship as a result of journalists' reaction to potential defamatory situations. Based on journalists' attitudes in this area and the utility of the defamation laws for public officials to stifle criticism and dissent, Grabosky & Wilson (1989) see the prospect for their reform as "quite remote."

The situation surrounding the law of contempt in Australia would seem to be even more problematic than that for defamation. Although the contempt law derives from the common law and not from statute, and therefore provides one uniform law of contempt throughout the country (Armstrong, 1988), its impact on the media would seem to be even more severe. Problems are created by the ambiguity of the law and the uncertainty about the subjective assessments on the part of the prosecuting authorities or judges who apply it (Grabosky & Wilson, 1989). Such a situation has a chilling effect on the media's coverage of the criminal process and "discourages the free discussion of the administration of justice"; this effect is compounded by the pressures of deadlines and of competition with other media outlets, and the manipulations of police and defence lawyers (Grabosky & Wilson, 1989). Kirby (1983) is much more apocalyptic in his characterization. He quotes an International Press Institute report that described the Australian press as "an endangered species," noting that the Australian Press Council's 1981 report claimed that its own research supported such a view. The IPI's "lists of threats to press freedom in Australia asserted that more than 40 per cent of the threats `emanated from the judiciary.' " Kirby notes that judicial orders for the suppression of news coverage have ranged from sex-related and blackmail cases through certain committal hearings involving identity issues, to cases involving commercial secrets and those where national security is claimed to be at stake. The resultant effect of such a situation, obviously, is hesitancy on the part of the media to publish materials they suspect will attract prosecutions for contempt. Despite the recognition that reform of this area of the law is desirable, Grabosky & Wilson (1989) conclude that, similar to the case for defamation, "prospects for extensive reform of the law of contempt in Australia would appear remote."

Defamation and contempt are two areas of the law that are considered vital to the operations of the media, particularly in the field of news and public affairs. Should these areas of the law be relatively favourable to the media of a society, it is not surprising that they would have the time, energy, and inclination to expand their rights and privileges to such secondary or less essential levels as camera access to courtrooms. If, however, these more fundamental areas of the law constitute major obstacles or hindrances to the operations of the media, their attention and efforts might be concentrated on them, at the expense or exclusion of concern about more peripheral matters such as cameras in the courtroom.

Constitutional Arrangements

In the United States, freedom of the press is guaranteed in the Constitution through the First Amendment of the Bill of Rights. With respect to media coverage of judicial proceedings, this First Amendment right must be read in conjunction with the Sixth Amendment to the U.S. Constitution, which guarantees the right to a fair trial, including judgment by an impartial jury. As some commentators would contend, the recent U.S. history of the free press-fair trial controversy has entailed a less than completely successful attempt to balance two such important constitutional rights.

As noted above, the freedom of the press (and other media of communication) is among a number of fundamental rights guaranteed to Canadians through the Canadian Charter of Rights and Freedoms, enacted in 1982. Prior to that, this freedom had been given some protection by the courts through "an Implied Bill of Rights" and later through the Canadian Bill of Rights. The latter suffered, however, from being simply an act of Parliament and not enshrined in the Constitution, a defect that has been corrected with the Charter. Such freedom of the press and other media of communication is limited only by the general restriction invoked by Section 1 of the Charter ("subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society"). Similar to the U.S. situation, this Section 2(b) right must be considered in conjunction with Section 11(d), which provides for "a fair and public hearing by an independent and impartial tribunal."

The circumstances of the media are substantially different in Australia. As Kirby (l983) notes, the "legal minefield" that Australian journalists work in exists because Australia lacks the equivalent to the U.S. First Amendment; rather, free speech and press freedom rest "on tradition rather than legal guarantees upheld in the courts when the tests come." Kirby continues by quoting Australian Senator and former Australian Law Reform Commission member, Gareth Evans, who points out that, since Australian freedom of expression and of the press lack such a constitutional basis, they are simply a "residual concept," being that which remains when one takes out all the laws that affect those freedoms. In this context, the issue of allowing cameras into the courtroom in Australia is an issue which a court or commission may consider "pursuant to its inherent power to control and regulate its own proceedings" (New South Wales Law Reform Commission, 1984a, 1984b).

The existence of a constitutional guarantee to freedom of the press is an important ingredient in the attainment of the media's right to bring cameras into the courtroom. It can be the basis for achieving such access but is not necessarily a sufficient condition for its realization.

Fundamental Social Values

In the United States the Court utilizes a heavy presumption against the constitutional validity of any system of prior restraints on the freedom of the press. The paramount social values of the respective jurisdictions emerge most clearly, however, in a comparative analysis of their basic approaches to such freedom. Commentators and legal experts have compared the emphases of the U.S. and Canadian systems extensively in this regard. Adam (1986), for example, notes that the U.S. courts have turned the First Amendment's free press provisions into "a fully elaborated philosophy," while Canada's Supreme Court justices have "only hesitatingly elaborated a theory." Others point out that the Canadian approach to freedom of the press has been more restrictive than the U.S. one, and has demonstrated a clear choice for fair trial over free press, in contrast to the U.S. tendency (e.g., Beckton, 1986; Linden, 1986; Manson, 1986; Martin, 1986; Proulx, 1986). In addition to "concern for individuals, the presumption of innocence and the right to a fair trial" (Proulx, 1986) being given precedence over freedom of the press, other "superordinate" social values have been placed ahead of press freedom in Canada: Linden (1986) identifies two as "the protection and rehabilitation of young persons in the criminal justice system" and the proper administration of justice. Lederman, O'Kelly, & Grottenhaler (1986) note as well that Anglo-Canadian law has given precedence generally to the administration of justice over external social values such as the protection of confidential sources. Beckton (1986) also provides examples of matters that Canadian laws have seemed to prefer over freedom of the press or expression: "redress for attacks upon reputation," limitations on "the publication and dissemination of obscene material," prohibition of access to government information, and regulation of commercial speech. In comparison to the U.S., where free press tends to be given dominance, Beckton (1986) characterizes Canadian society as "one of compromise where no one value is given extensive protection to the detriment of others."

It is interesting to look at the attitudes of a number of Canadian journalists with respect to the issue of freedom of the press. Some have indicated that the media really seek no more rights than the public in this regard (Davey, 1986; O'Callaghan, 1986); one also has noted that journalists are not crusading for more rights in the area of confidentiality of sources, although proposals to eliminate uncertainty are welcomed (Lind, 1986). Another has even gone so far as to suggest that tradition and common law do a better job of protecting individual and press freedoms than legal statutes (Worthington, 1986). The U.S. approach is also not seen by journalists as a panacea for the media's situation with regard to freedom of the press. Davey (1986) perceives that "one of the most appalling aspects of the exercise of press freedom in the United States is the damage it has done to the concept of a fair trial," which should be given at least equal consideration with the former. Worthington (1986) goes even further by suggesting that "the First Amendment in the United States gives the press the freedom to be irresponsible." And Proulx (1986) quotes a newspaper journalist who decries the shift of the media in Canada from "a fairly good British system toward a ridiculously bad American system," in which the media "are free to publish just about any scabrous pre-trial garbage they can dig up."

Finally in this theme of Canadian-U.S. comparisons, several writers note the inadvisability of making uncritical analogies and transfers between the two societies. Glasbeek (1986) points out, for example, that there are significant political/structural differences between the two countries that should be considered in the realm of press freedom. The press in the U.S. is given great leeway since it tends to keep the government accountable while Canada has a formal opposition in Parliament to perform that function. In addition, from a historical perspective, the First Amendment emerged during a period when the state had been seen in the U.S. as a suppressor of the citizenry, whereas Canada's Section 2(b) has no such history. Manson (1986) notes in general the caution that "must be exercised in recognizing difference in legal structures that cannot be imported directly into the contemporary Canadian context," and provides some detailed, specific reasons why such caution should be used in analogizing from the U.S. First Amendment to the Canadian situation with respect to "questions of access and dissemination relating to juries, prisons and prisoners." Proulx (1986) addresses the issue of cameras in the courtroom directly and indicates that the U.S. experience has not demonstrated that such access leads to a better image of justice or a public better educated about the law. He concludes that "it would be a serious mistake to follow the American experience and moreover, that it is repugnant to our whole system of justice to import televised trials." And Beckton (1986) advises that even a revision to our approach to openness under the Charter "need not move in the direction taken by the United States courts. Rather any changes made to conform with the guarantees in the Charter must reflect Canadian values."

The Australian comparison to the U.S. situation is similar to the Canadian one, if not as detailed and extensive. Grabosky & Wilson (1989) note that Australian laws emerged from an English tradition where criticism of government was often punished as seditious libel, and transgressors were transplanted to a penal colony--circumstances that were not conducive to free and open debate. They point out, as well, the Australian tendency to opt for prior constraint of the media to safeguard fair trial in comparison to the U.S. approach. Kirby (1983) also notes that "the media in Australia and Britain are under more restraints than are their colleagues in the United States and many European countries." He has characterized the Australian conflict as one between the press's attempt to expand access to information versus lawyers' "countervailing social claim to respect for privacy, honour and reputation, a fair trial, the due administration of justice, etc." When push comes to shove, however, Kirby articulates an Australian attitude more in keeping with the Canadian than the U.S. value orientation:

It must be frankly acknowledged that the price of a fair trial for an individual accused may sometimes involve frustration of the public's desire for information. Determining where the inhibitions start and cease and what rules should govern them is a sensitive matter in which vital attributes of freedom compete.

And in line with Canadian journalists' attitudes noted above, Grabosky & Wilson (1989) discovered that few Australian journalists desired greater protections against defamation in the direction of the U.S. approach to strong qualified privilege.

Conclusion

The respective positions of the U.S., Canada, and Australia on the six critical factors affecting courtroom camera access could be conceptualized as constituting a continuum in terms of openness to such access. The profiles of the U.S. and Australia on these factors would make them the end points on such a continuum: the U.S. position would be characterized as very "open" with regard to camera access, while the Australian position would be rather "closed." The Canadian position would fall somewhere between these two end points, but probably closer to the Australian position, given the similarity between the two countries with respect to the prominence of the fundamental social value of fair trial (and other such values) over free press.

The research in this specific area is in line with more general work that has been done comparing the political cultures of Canada and the United States. Seymour Martin Lipset (1990) marshals evidence, for example, that the differences in the traditions and historical development of the two countries have made them both similar to, and different from, each other. While conceding that Americans and Canadians "are probably as alike as any other two peoples on earth," Lipset qualifies this by saying "they are also somewhat dissimilar in political and religious institutions and in culture and values." With respect to the more specifically germane realm of law and deviance, he concludes that "the gaps between the Canadian and American societies on constitutional, juridical, behavioral (crime and deviance rates), and attitudinal scales remain large." Similarly, Merelman (1991) has delineated differences among the U.S., Canada, and Britain with respect to the distinctive popular culture that shapes public opinion and stifles political debate in those three countries.

Additional comparative research on the courtroom camera access issue would be most informative in further clarifying the role and importance of the six factors outlined above. A Working Party (1989) of the Public Affairs Committee of the General Council of the Bar of England and Wales undertook a survey of the policies of 24 jurisdictions (mainly in North America and Europe) with respect to the televising or filming of court proceedings. They reported that 11 of those jurisdictions had had some experience doing so, although only one (the U.S.) permitted such activity on a regular basis. But their research into the background and dynamics of the situation was very limited, and does not permit the kind of comparisons advanced here. Canada would seem to be a fruitful jurisdiction for continued and more intensive study. As has been noted, its profile on the six critical factors locate it toward the "closed" end of the camera access spectrum. There are a number of factors, however, that are exerting pressure in the opposite direction. The positions of the media and the legal profession are becoming more strongly favourable to a more "open" approach, and experimental or trial periods have been advocated. Also, through the proximity and pervasiveness of U.S. television, the Canadian public may be becoming accustomed to the idea of televised trials through exposure to the American example. In addition, the Charter of Rights and Freedoms is still growing in its impact on Canadian society, and even Lipset (1990) concedes that "it probably goes further toward taking the country in an American direction than any other enacted structural change" and "should increase individualism and litigiousness north of the border." Another potentially fruitful area are those seven states in the U.S. that currently prohibit direct camera coverage of courts (especially New York which decided to prohibit them after an experimental period), in light of the general openness noted above. Research on the underlying dynamics of factors influencing decisions about cameras in the courtrooms has much to contribute to our understanding of the values operating in the interaction of the media and the legal systems, especially research incorporating a comparative approach.

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