Estes v. Texas

MR. Chief Justice Warren, whom Mr. Justice Douglas and Mr. Justice Goldberg join,

concurring.

While I join the Court’s opinion and agree that the televising of criminal trials is inherently a denial of due process, I desire to express additional views on why this is so. In doing this, I wish to emphasize that our condemnation of televised criminal trials is not based on generalities or abstract fears. The record in this case presents a vivid illustration of the inherent prejudice of televised criminal trials and supports our conclusion that this is the appropriate time to make a definitive appraisal of television in the courtroom.

I.

Petitioner, a much-publicized financier, was indicted by a Reeves County, Texas, grand jury for obtaining property through false pretenses. The case was transferred to the City of Tyler, in Smith County, Texas, and was set for trial on September 24, 1962. Prior to that date petitioner’s counsel informed the trial judge that he would make a motion on September 24 to exclude all cameras from the courtroom during the trial.

On September 24, a hearing was held to consider petitioner’s motion to prohibit television, motion pictures, and still photography at the trial. The courtroom was filled with newspaper reporters and cameramen, television cameramen, and spectators. At least 12 cameramen with *553their equipment were seen by one observer, and there were 30 or more people standing in the aisles. An article appearing in the New York Times the next day stated:

“A television motor van, big as an intercontinental bus, was parked outside the courthouse and the second-floor courtroom was a forest of equipment. Two television cameras had been set up inside the bar and four more marked cameras were aligned just outside the gates. . . . [C]ables and wires snaked over the floor.” 1

With photographers roaming at will through the courtroom, petitioner’s counsel made his motion that all cameras be excluded. As he spoke, a cameraman wandered behind the judge’s bench and snapped his picture. Counsel argued that the presence of cameras would make it difficult for him to consult with his client, make his client ill at ease, and make it impossible to obtain a fair trial since the cameras would distract the jury, witnesses and lawyers. He also expressed the view that televising selected cases tends to give the jury an impression that the particular trial is different from ordinary criminal trials. The court, however, ruled that the taking of pictures and televising would be allowed so long as the cameramen stood outside the railing that separates the trial participants from the spectators. The court also ruled that if a complaint was made that any camera was too noisy, the cameramen would have to stop taking pictures; that no pictures could be taken in the corridors outside the courtroom; and that those with microphones were not to pick up conversations between petitioner and his lawyers. Subsequent to the court’s ruling petitioner arrived in the courtroom,2 and the defense introduced tes*554timony concerning the atmosphere in the court on that day. At the conclusion of the day’s hearing the judge reasserted his earlier ruling. He then ordered a roll call of the prosecution witnesses, at least some of whom had been in the courtroom during the proceedings.

The entire hearing on September 24 was televised live by station KLTV of Tyler, Texas, and station WFAA-TV of Dallas, Texas. Commercials were inserted when there was a pause in the proceedings. On the evening of Monday, September 24, both stations ran an edited tape of the day’s proceedings and interrupted the tape to play the commercials ordinarily seen in the particular time slot. In addition to the live television coverage there was also a live radio pickup of the proceedings by at least one station.

The proceedings continued on September 25. There was again a significant number of cameramen taking motion pictures, still pictures and television pictures. The judge once more ordered cameramen to stay on the other side of the railing and stated that this order was to be observed even during court recesses. The panel from which the petit jury was to be selected was then sworn in the presence of the cameramen. The panel was excused to permit counsel to renew his motion to prohibit photography in the courtroom. The court denied the motion, but granted a continuance of trial until October 22 and dismissed the jury panel. At the suggestion of petitioner’s counsel the trial judge warned the prosecution witnesses who were present not to discuss the case during the continuance. The proceedings were televised live and portions of the television tape were shown on the regularly scheduled evening news programs. Live radio transmission apparently occurred as on the day before.

On October 1, 1962, the trial judge issued an order explaining what coverage he would permit during the trial. The judge delivered the order in his chambers for the *555benefit of television cameramen so that they could film him. The judge ruled that although he would permit television cameras to be present during the trial, they would not be permitted to present live coverage of the interrogation of prospective jurors or the testimony of witnesses. He ruled that each of the three major television networks, NBC, CBS, ABC, and the local television station KLTY could install one camera not equipped to pick up sound and the film would be available to other television stations on a pooled basis. In addition, he ruled that with respect to news photographers only cameramen for the local press, Associated Press, and United Press would be permitted in the courtroom. Photographs taken were also to be made available to others on a pooled basis. The judge did not explain how he decided which television cameramen and which still photographers were to be permitted in the courtroom and which were to be excluded.

For the proceedings beginning on October 22, station KLTV, at its own expense, and with the permission of the court, had constructed a booth in the rear of the courtroom painted the same or near the same color as the courtroom. An opening running lengthwise across the booth permitted the four television cameras to photograph the proceedings. The courtroom was small and the cameras were clearly visible to all in the courtroom.3 The cameras were equipped with “electronic sound on camera” which permitted them to take both film and sound. Upon entering the courtroom the judge told all those with television cameras to go back to the booth; asked the press photographers not to move around any more than necessary; ordered that no flashbulbs or floodlights be used; and again told cameramen that they could not go inside the railing. Defense counsel renewed his motion *556to ban all “sound equipment . . . still cameras, movie cameras and television; and all radio facilities” from the courtroom. Witnesses were again called on this issue, but at the conclusion of the hearing the trial judge reaffirmed his prior ruling to permit cameramen in the courtroom. In response to petitioner’s argument that his rights under the Constitution of the United States were being violated, the judge remarked that the “case [was] not being tried under the Federal Constitution.”

None of the proceedings on October 22 was televised live. Television cameras, however, recorded the day’s entire proceedings with sound for later showings. Apparently none of the October 22 proceedings was carried live on radio, although the proceedings were recorded on tape. The still photographers admitted by the court were free to take photographs from outside the railing.

On October 23 the selection of the jury began. Overnight an additional strip had been placed across the television booth so that the opening for the television cameras was reduced, but the cameras and their operators were still quite visible.4 A panel of 86 prospective jurors was ready for the voir dire. The judge excused the jurors from the courtroom and made still another ruling on news coverage at the trial. He ordered the television recording to proceed from that point on without an audio pickup, and, in addition, forbade radio tapes of any further proceedings until all the evidence had been introduced. During the course of the trial the television cameras recorded without sound whatever matters appeared interesting to them for use on later newscasts; radio broadcasts in the form of spot reports were made from a room next to the courtroom. There was no live television or radio coverage until November 7 when the trial judge permitted live coverage of the prosecution’s *557arguments to the jury, the return of the jury’s verdict and its acceptance by the court. Since the defense objected to being photographed during the summation, the judge prohibited television cameramen or still photographers from taking any pictures of the defense during its argument. But the show went on, and while the defense was speaking the cameras were directed at the judge and the arguments were monitored by audio equipment and relayed to the television audience by an announcer. On November 7 the judge, for the first time, directed news photographers desiring to take pictures to take them only from the back of the room. Up until this time the trial judge’s orders merely limited news photographers to the spectator section.

II.

The decision below affirming petitioner’s conviction runs counter to the evolution of Anglo-American criminal procedure over a period of centuries. During that time the criminal trial has developed from a ritual practically devoid of rational justification 5 to a fact-finding process, the acknowledged purpose of which is to provide a fair and reliable determination of guilt.6

An element of rationality was introduced into the guilt-determining process in England over 600 years ago when a rudimentary trial by jury became “the principal institution for criminal cases.” 7 Initially members of the jury were expected to make their own examinations of the cases they were to try and come to court already familiar *558with the facts,8 which made it impossible to limit the jury’s determination to legally relevant evidence. Gradually, however, the jury was transformed from a panel of witnesses to a panel 'of triers passing on evidence given by others in the courtroom.9 The next step was to insure the independence of the jury, and this was accomplished by the decision in the case of Edward Bushell, 6 How.. St. Tr. 999 (1670), which put an end to the practice of fining or otherwise punishing jury members who failed to reach the decision directed by the court. As the purpose of trial as a vehicle for discovering the truth became clearer, it was recognized that the defendant should have the right to call witnesses and to place them under oath,10 to be informed of the charges against him before the trial,11 and to have counsel assist him with his defense12 All these protections, and others which could be cited, were part of a development by which “the administration of criminal justice was set upon a firm and dignified basis.” 13

When the colonists undertook the responsibility of governing themselves, one of their prime concerns was the establishment of trial procedures which would be consistent with the purpose of trial. The Continental Congress passed measures designed to safeguard the right to a fair trial14 and the various States adopted constitutional pro*559visions directed to the same end.15 Eventually the Sixth Amendment incorporated into the Constitution certain provisions dealing with the conduct of trials:

“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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

Significantly, in the Sixth Amendment the words “speedy and public” qualify the term trial and the rest of the Amendment defines specific protections the accused is to have at his trial. Thus, the Sixth Amendment, by its own terms, not only requires that the accused have certain specific rights but also that he enjoy them at a trial— a word with a meaning of its own, see Bridges v. California, 314 U. S. 252, 271.

The Fourteenth Amendment which places limitations on the States’ administration of their criminal laws also gives content to the term trial. Whether the Sixth Amendment as a whole applies to the States through the Fourteenth,16 or the Fourteenth Amendment embraces only those portions of the Sixth Amendment that are “fundamental,” 17 or the Fourteenth Amendment incorporates a standard of “ordered liberty” apart from the *560specific guarantees of the Bill of Rights,18 it has been recognized that state prosecutions must, at the least, comport with “the fundamental conception” of a fair trial.19

It has been held on one or another of these theories that the fundamental conception of a fair trial includes many of the specific provisions of the Sixth Amendment, such as the right to have the proceedings open to the public, In re Oliver, 333 U. S. 257; the right to notice of specific charges, Cole v. Arkansas, 333 U. S. 196; the right to confrontation, Pointer v. Texas, 380 U. S. 400; Douglas v. Alabama, 380 U. S. 415; and the right to counsel, Gideon v. Wainwright, 372 U. S. 335. But it also has been agreed that neither the Sixth nor the Fourteenth Amendment is to be read formalistically, for the clear intent of the amendments is that these specific rights be enjoyed at a constitutional trial. In the words of Justice Holmes, even though “every form [be] preserved,” the forms may amount to no “more than an empty shell” when considered in the context or setting in which they were actually applied.20

In cases arising from state prosecutions this Court has acted to prevent the right to a constitutional trial from being reduced to a formality by the intrusion of factors into the trial process that tend to subvert its purpose. The Court recognized in Pennekamp v. Florida, 328 U. S. *561331, 334, that the “orderly operation of courts” is “the primary and dominant requirement in the administration of justice.” And, in Moore v. Dempsey, 261 U. S. 86, 90-91, it was held that the atmosphere in and around the courtroom might be so hostile as to interfere with the trial process, even though an examination of the record disclosed that all the forms of trial conformed to the requirements of law: the defendant had counsel, the jury members stated they were impartial, the jury was correctly charged, and the evidence was legally sufficient to convict. Moreover, in Irvin v. Dowd, 366 U. S. 717, a conviction was reversed where extensive pretrial publicity rendered a fair trial unlikely despite the observance of the formal requisites of a legal trial. We commented in that case:

“No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one’s fellows is often its father.” Id., at 728.

To recognize that disorder can convert a trial into a ritual without meaning is not to pay homage to order as an end in itself. Rather, it recognizes that the courtroom in Anglo-American jurisprudence is more than a location with seats for a judge, jury, witnesses, defendant, prosecutor, defense counsel and public observers; the setting that the courtroom provides is itself an important element in the constitutional conception of trial, contributing a dignity essential to “the integrity of the trial” process. Craig v. Harney, 331 U. S. 367, 377. As Mr. Justice Black said, in another context: “The very purpose of a court system is to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures.” 21 In light of this fundamental conception of what the term trial *562means, this Court has recognized that often, despite widespread, hostile publicity about a case, it. is possible to conduct a trial meeting constitutional standards. Significantly, in each of these cases, the basic premise behind the Court’s conclusion has been the notion that judicial proceedings can be conducted with dignity and integrity so as to shield the trial process itself from these irrelevant, external factors, rather than to aggravate them as here. Thus, in reversing contempt convictions for out-of-court statements, this Court referred to “the power of courts to protect themselves from disturbances and disorder in the court room,” Bridges v. California, 314 U. S. 252, 266 (emphasis added); “the necessity for fair adjudication, free from interruption of its processes,” Pennekamp v. Florida, 328 U. S. 331, 336; “the integrity of the trial,” Craig v. Harney, 331 U. S. 367, 377. And, in upholding a conviction against a claim of unfavorable publicity, this Court commented “that petitioner’s trial was conducted in a calm judicial manner,” Darcy v. Handy, 351 IT. S. 454, 463.

Similarly, when state procedures have been found to thwart the purpose of trial this Court has declared those procedures to be unconstitutional. In Turney v. Ohio, 273 U. S. 510, the Court considered a state procedure under which judges were paid for presiding over a case only if the defendant was found guilty and costs assessed against him. An argument was made that the practice should not be condemned broadly, since some judges undoubtedly would not let their judgment be affected by such an arrangement. However, the Court found the procedure so inconsistent with the conception of what a trial should be and so likely to produce prejudice that it declared the practice unconstitutional even though no specific prejudice was shown.

In Lyons v. Oklahoma, 322 U. S. 596, this Court stated that if an involuntary confession is introduced into evi*563dence at a state trial the conviction must be reversed, even though there is other evidence in the record to justify a verdict of guilty. We explained the rationale behind this judgment in Payne v. Arkansas, 356 U. S. 560, 568:

“[W]here ... a coerced confession constitutes a part of the evidence before the jury and a general verdict is returned, no one can say what credit and weight the jury gave to the confession.”

Similar reasoning led to the decision last Term in Jackson v. Denno, 378 U. S. 368. We held there that when the voluntariness of a confession is at issue there must be a procedure adopted which provides “a reliable and clear-cut determination of . . . voluntariness.” Id., at 391. We found insufficient a procedure whereby the jury heard the confession but was instructed to disregard it if the jury found the confession involuntary:

“[T]he New York procedure poses substantial threats to a defendant’s constitutional rights to have an involuntary confession entirely disregarded and to have the coercion issue fairly and reliably determined. These hazards we cannot ignore.” Id., at 389.

Earlier this Term, in Turner v. Louisiana, 379 U. S. 466, we considered a case in which deputy sheriffs, who were the prosecution’s principal witnesses, were in charge of a sequestered jury during the trial. The Supreme Court of Louisiana criticized the practice but said that in the absence of a showing of prejudice there was no ground for reversal. We reversed because the “extreme prejudice inherent” in the practice required its condemnation on constitutional grounds.

Finally, the Court has on numerous other occasions reversed convictions, where the formalities of trial were *564observed, because of practices that negate the fundamental conception of trial.22

This line of cases does not indicate a disregard for the position of the States in our federal system. Rather, it stands for the proposition that the criminal trial under our Constitution has a clearly defined purpose, to provide a fair and reliable determination of guilt, and no procedure or occurrence which seriously threatens to divert it from that purpose can be tolerated.

III.

For the Constitution to have vitality, this Court must be able to apply its principles to situations that may not have been foreseen at the time those principles were adopted. As was said in Weems v. United States, 217 U. S. 349, 373, and reaffirmed in Brown v. Board of Education, 347 U. S. 483, 492-493:

“Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. ... In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by prece*565dent into impotent and lifeless formulas. Rights declared in words might be lost in reality.”

I believe that it violates the Sixth Amendment for federal courts and the Fourteenth Amendment for state courts to allow criminal trials to be televised to the public at large. I base this conclusion on three grounds: (1) that the televising of trials diverts the trial from its proper purpose in that it has an inevitable impact on all the trial participants; (2) that it gives the public the wrong impression about the purpose of trials, thereby detracting from the dignity of court proceedings and lessening the reliability of trials; and (3) that it singles out certain defendants and subjects them to trials under prejudicial conditions not experienced by others.

I have attempted to show that our common-law heritage, our Constitution, and our experience in applying that Constitution have committed us irrevocably to the position that the criminal trial has one well-defined purpose — to provide a fair and reliable determination of guilt. In Tumey v. Ohio, supra, at 532, this Court condemned the procedure there employed for compensating judges because it offered a “possible temptation” to judges “not to hold the balance nice, clear and true between the State and the accused.” How much more harmful is a procedure which not only offers the temptation to judges to use the bench as a vehicle for their own ends, but offers the same temptation to every participant in the trial, be he defense counsel, prosecutor, witness or juror! It is not necessary to speak in the abstract on this point. In the present case, on October 1, the trial judge invited the television cameras into his chambers so they could take films of him reading one of his pretrial orders. On this occasion, at least, the trial judge clearly took the initiative in placing himself before the television audience and in giving his order, and himself, the maximum possible publicity. Moreover, on October 22, when trial counsel re*566newed his motion to exclude television from the courtroom on the ground that it violated petitioner’s rights under the Federal Constitution, the trial judge made the following speech:

“This case is not being tried under the Federal Constitution. This Defendant has been brought into this Court under the state laws, under the State Constitution.
“I took an oath to uphold this Constitution; not the Federal Constitution but the State Constitution; and I am going to do my best to do that as long as I preside on this Court, and if it is distasteful in following my oath and upholding the constitution, it will just have to be distasteful.”

One is entitled to wonder if such a statement would be made in a court of justice by any state trial judge except as an appeal calculated to gain the favor- of his viewing audience. I find it difficult to believe that this trial judge, with over 20 years’ experience on the bench, was unfamiliar with the fundamental duty imposed on him by Article VI of the Constitution of the United States:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. ”

This is not to say that all participants in the trial would distort it by deliberately playing to the television audience, but some undoubtedly would. The even more serious danger is that neither the judge, prosecutor, defense counsel, jurors or witnesses would be able to go *567through trial without considering the effect of their conduct on the viewing public. It is admitted in dissent that “if the scene at the September hearing had been repeated in the courtroom during this jury trial, it is difficult to conceive how a fair trial in the constitutional sense could have been afforded the defendant.” Post, p. 612. But it is contended that what went on at the September hearing is irrelevant to the issue before us. With this I cannot agree. We granted certiorari to consider whether petitioner was denied due process when he was required to submit to a televised trial. In this, as in other cases involving rights under the Due Process Clause, we have an obligation to make an independent examination of the record, e. g., Watts v. Indiana, 338 U. S. 49, 51; Norris v. Alabama, 294 U. S. 587, 590; and the limited grant of certiorari does not prohibit us from considering all the facts in this record relevant to the question before us. The parties to this case, and those who filed briefs as amici curiae, recognize this, since they treat the televising of the September proceedings as a factor relevant to our consideration. Our decisions in White v. Maryland, 373 U. S. 59, and Hamilton v. Alabama, 368 U. S. 52, clearly hold that an accused is entitled to procedural protections at pretrial hearings as well as at actual trial and his conviction will be reversed if he is not accorded these protections. In addition, in Pointer v. Texas, 380 U. S. 400, we held that a pretrial hearing can have a profound effect on the trial itself and effectively prevent an accused from having a fair trial. Petitioner clearly did not have a fair determination of his motion to exclude cameras from the courtroom. The very presence of the cameras at the September hearing tended to impress upon the trial judge the power of the communications media and the criticism to which he would have been subjected if he had ruled that the presence of thé cameras was inconsistent with petitioner’s right to a fair trial. The prejudice to peti*568tioner did not end here. Most of the trial participants were present at the September hearing — the judge, defense counsel, prosecutor, prosecution witnesses and defendant himself — and they saw for themselves the desecration of the courtroom. After undergoing this experience it is unrealistic to suppose that they would come to the October trial unaware that court procedures were being sacrificed in this case for the convenience of television. The manner in which the October proceedings were conducted only intensified this awareness. It was impossible for any of the trial participants ever to be unaware of the presence of television cameras in court for the actual trial.23 The snouts of the four television cameras protruded through the opening in the booth, and the cameras and their operators were not only readily visible but were impossible to ignore by all who were surveying the activities in this small courtroom. No one could forget that he was constantly in the focus of the “all-seeing eye.” Although the law of Texas purportedly permits witnesses to object to being televised, it is ludicrous to place this burden on them. They would naturally accept the conditions of the courtroom as the judge establishes them, and feel that it would be as presumptuous for them to object to the court’s permitting television as to object to the court reporter’s recording their testimony. Yet, it is argued that no witnesses objected to being televised. This is indeed a slender reed to rely on, particularly in view of the trial judge’s failure, in the course of his self-exculpating statements justifying his decision to allow television, to advise the witnesses or the jurors that they had the right to object to being televised. Defense counsel, however, stated forcefully that he could not concentrate on the case because of the distraction caused by the cameras. And the trial judge’s atten*569tion was distracted from the trial since he was compelled to make seven extensive rulings concerning television coverage during the October proceedings alone, when he should, instead, have been concentrating on the trial itself.

It is common knowledge that “television . . . can . . . work profound changes in the behavior of the people it focuses on.” 24 The present record provides ample support for scholars who have claimed that awareness that a trial is being televised to a vast, but unseen audience, is bound to increase nervousness and tension,25 cause an in*570creased concern about appearances,26 and bring to the surface latent opportunism that the traditional dignity of the courtroom would discourage. Whether they do so consciously or subconsciously, all trial participants act differently in the presence of television cameras. And, even if all participants make a conscientious and studied effort to be unaffected by the presence of television, this effort in itself prevents them from giving their full attention to their proper functions at trial. Thus, the evil of televised trials, as demonstrated by this case, lies not in the noise and appearance of the cameras, but in the trial participants’ awareness that they are being televised. To the extent that television has such an inevitable impact it undercuts the reliability of the trial process.

In the early days of this country’s development, the entertainment a trial might provide often tended to obfuscate its proper role.

“The people thought holding court one of the greatest performances in the range of their experience. . . . The country folks would crowd in for ten miles to hear these ‘great lawyers’ plead; and it was a secondary matter with the client whether he won or lost his case, so the ‘pleading’ was loud and long.” 27
“In early frontier America, when no motion pictures, no television, and no radio provided entertain*571ment, trial day in the county was like fair day, and from near and far citizens young and old converged on the county seat. The criminal trial was the theater and spectaculum of old rural America. Applause and cat calls were not infrequent. All too easily lawyers and judges became part-time actors at the bar . . . .”28

I had thought that these days of frontier justice were long behind us, but the courts below would return the theater to the courtroom.

The televising of trials would cause the public to equate the trial process with the forms of entertainment regularly seen on television and with the commercial objectives of the television industry. In the present case, tapes of the September 24 hearing were run in place of the “Tonight Show” by one station and in place of the late night movie by another. Commercials for soft drinks, soups, eye-drops and seatcovers were inserted when there was a pause in the proceedings. In addition, if trials were televised there would be a natural tendency on the part of broadcasters to develop the personalities of the trial participants, so as to give the proceedings more of an element of drama. This tendency was noticeable in the present case. Television commentators gave the viewing audience a homey, flattering sketch about the trial judge, obviously to add an extra element of viewer appeal to the trial:

“Tomorrow morning at 9:55 the WFAA T. V. cameras will be in Tyler to telecast live [the trial judge’s] decision whether or not he will permit live coverage of the Billie Sol Estes trial. If so, this will be the first such famous national criminal proceeding to be televised in its entirety live. [The trial judge] *572was’ appointed to the bench here in Tyler in 1942 by [the Governor]. The judge has served every two years since then. This very beautiful Smith County Courthouse was built and dedicated in 1954, but before that [the trial judge] had made a reputation for himself that reached not only throughout Texas, but throughout the United States as well. It is said that [the trial judge], who is now 53 years old, has tried more cases than any other judge during his time in office.”

The television industry might also decide that the bare-boned trial itself does not contain sufficient drama to sustain an audience. It might provide expert commentary on the proceedings and hire persons with legal backgrounds to anticipate possible trial strategy, as the football expert anticipates plays for his audience. The trial judge himself stated at the September hearing that if he wanted to see a ball game he would turn on his television set, so why not the same for a trial.

Moreover, should television become an accepted part of the courtroom, greater sacrifices would be made for the benefit of broadcasters. In the present case construction of a television booth in the courtroom made it necessary to alter the physical layout of the courtroom and to move from their, accustomed position two benches reserved for spectators.29 If this can be done in order better to accommodate the television industry, I see no reason why another court might not move a trial to a theater, if such a move would provide improved television coverage. Our memories are short indeed if we have already forgotten the wave of horror that swept over this country when Premier Fidel Castro conducted his prosecutions before 18,000 people in Havana Stadium.30 But in the decision *573below, which completely ignores the importance of the courtroom in the trial process, we have the beginnings of a similar approach toward criminal “justice.” This is not an abstract fear I am expressing because this very situation confronted the Nebraska Supreme Court in Roberts v. State, 100 Neb. 199, 203, 158 N. W. 930, 931-932 (1916):

“The court removed the trial from the court-room to the theater, and stated as a reason therefor: ‘By reason of the insufficiency of the court-room to seat and accommodate the people applying for admission ... it is by the court ordered that the further trial of this cause be had at the Keith Theater, and thereupon the court was adjourned to Keith Theater, where trial proceeded.’ The stage was occupied by court, counsel, jury, witnesses, and officers connected with the trial. The theater proper was crowded with curious spectators. Before the trial was completed it was returned to the court-room and concluded there. At the adjournment of coúrt on one occasion the bailiff announced from the stage: ‘The regular show will be tomorrow; matinee in the afternoon and another performance at 8:30. Court is now adjourned until 7:30.’ ”

There would be a real threat to the integrity of the trial process if the television industry and trial judges were allowed to become partners in the staging of criminal proceedings.. The trial judge in the case before us had several “conferences [with] representatives of the news media.” Post, p. 606. He then entered into a joint enterprise with a television station for the construction of a booth in his courtroom. The next logical step in this partnership might be to schedule the trial for a time that would permit the maximum number of viewers to watch and to schedule recesses to coincide with the need for station breaks. Should the television industry become an *574integral part of our system of criminal justice, it would not be unnatural for the public to attribute the shortcomings of the industry to the trial process itself. The public is aware of the television industry’s consuming interest in ratings, and it is also aware of the steps that have been taken in the past to maintain viewer interest in television programs. Memories still recall vividly the scandal caused by the disclosure that quiz programs had been corrupted in order to heighten their dramatic appeal. Can we be sure that similar efforts would not be made to heighten the dramatic appeal of televised trials? Can we be sure that the public would not inherently distrust our system of justice because of its intimate association with a commercial enterprise?

Broadcasting in the courtroom would give the television industry an awesome power to condition the public mind either for or against an accused. By showing only those parts of its films or tapes which depict the defendant or his witnesses in an awkward or unattractive position, television directors could give the community, state or country a false and unfavorable impression of the man on trial. Moreover, if the case should end in a mistrial, the showing of selected portions of the trial, or even of the whole trial, would make it almost impossible to select an impartial jury for a second trial. Cf. Rideau v. Louisiana, 373 U. S. 723. To permit this powerful medium to use the trial process itself to influence the opinions of vast numbers of people, before a verdict of guilt or innocence has been rendered, would be entirely foreign to our system of justice.

The sense of fairness, dignity and integrity that all associate with the courtroom would become lost with its commercialization. Thus, the televising of trials would not only have an effect on those participating in the trials that are being televised, but also on those who observe the trials and later become trial participants.

*575It is argued that television not only entertains but also educates the public. But the function of a trial is not to provide an educational experience; and there is a serious danger that any attempt to use a trial as an educational tool will both divert it from its proper purpose and lead to suspicions concerning the integrity of the trial process. The Soviet Union’s trial of Francis Gary Powers provides an example in point. The integrity of the trial was suspect because it was concerned not only with determining the guilt of the individual on trial but also with providing an object lesson to the public. This divided effort undercut confidence in the guilt-determining aspect of the procedure and by so doing rendered the educational aspect self-defeating.

“Was it prejudicial to [Powers] that the trial took place in a special hall with over 2,000 spectators, that it was televised, that prominent representatives of many organizations in various countries were invited to attend, that simultaneous oral translations of the proceedings . . . were provided, and that detailed . . . reports of the case in various languages were distributed to the press before, during and after the trial?”
“. . . [T]he Soviet legal system . . . consciously and explicitly uses the trial, and indeed the very safeguards of justice themselves, as instruments of the social and political objectives of the state. . . .
A Soviet trial is supposed to be correct, impartial, just, reasonable, and at the same time it is supposed to serve as an object-lesson to society, a means of teaching the participants, the spectators and the public generally to be loyal, obedient, disciplined fighters for Communist ideals. . . .
“. . . [T]he tension between the demands of justice and the demands of politics can never be entirely *576eliminated. The fate of the accused is bound to be influenced in one way or another when the trial is lifted above its individual facts and deliberately made an object-lesson to the public.”
“. . . [T]he deliberate use of a trial as a means of political education threatens the integrity of the judicial process.” 31

Finally, if the televising of criminal proceedings were approved, trials would be selected for television coverage for reasons having nothing to do with the purpose of trial. A trial might be televised because a particular judge has gained the fancy of the public by his unorthodox approach; or because the district attorney has decided to run for another office and it is believed his appearance would attract a large audience; or simply because a particular courtroom has a layout that best accommodates television coverage.32 For the most part, however, the most important factor that would draw television to the courtroom would be the nature of the case. The alleged perpetrator of the sensational murder, the fallen idol, or some other person who, like petitioner, has attracted the public interest would find his trial turned into *577a vehicle for television. Yet, these are the very persons who encounter the greatest difficulty in securing an impartial trial, even without the presence of television. This Court would no longer be able to point to the dignity and calmness of the courtroom as a protection from outside influences. For the television camera penetrates this protection and brings into the courtroom tangible evidence of the widespread interest in a case — an interest which has often been fanned by exhaustive reports in the newspapers, television and radio for weeks before trial. The present case presents a clear example of this danger. In the words of petitioner’s counsel:

“The Saturday Evening Post, The Readers Digest, Time, Life all had feature stories upon [petitioner’s] story giving in detail his life history and the details of . . . alleged fraudulent transactions .... ,
“The metropolitan papers throughout the country featured the story daily. Each day for weeks the broadcasts carried some features of the story.” 33

After living in the glare of this publicity for weeks, petitioner came to court for a legal adjudication of the charges against him. As he approached the courthouse he was confronted by an army of photographers, reporters and television commentators shoving microphones in his face.34 When he finally made his way into the courthouse it was reasonable for him to expect that he could have a respite from this merciless badgering and have his case adjudicated in a calm atmosphere. Instead, the carnival atmosphere of the September hearing served only to increase the publicity surrounding petitioner and to condition further the public’s mind against him. Then, upon his entrance into the courtroom for his actual trial he was *578confronted with the sight of the television camera zeroed in on him and the ever-present still photographers snapping pictures of interest. As he opened a newspaper waiting for the proceedings to begin, the close-up lens of a television camera zoomed over his shoulder in an effort to find out what he was reading. In no sense did the dignity and integrity of the trial process shield this petitioner from the prejudicial publicity to which he had been exposed, because that publicity marched right through the courtroom door and made itself at home in heretofore unfamiliar surroundings. We stated in Gideon v. Wainwright, 372 U. S. 335, 344, “From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.” This principle was not applied by the courts below.

I believe petitioner in this case has shown that he was actually prejudiced by the conduct of these proceedings, but I cannot agree with those who say that a televised trial deprives a defendant of a fair trial only if “actual prejudice” can be shown. The prejudice of television may be so subtle that it escapes the ordinary methods of proof,35 but it would gradually erode our fundamental conception of trial.36 A defendant may be unable to prove that he was actually prejudiced by a televised trial, just as he may be unable to prove that the introduction of a coerced confession at his trial influenced the jury to convict him when there was substantial evidence to support his conviction aside from the confession, Payne v. Arkansas, supra; that the jury refrained from making a *579clear-cut determination on the voluntariness question, Jackson v. Denno, swpra; that a particular judge was swayed by a direct financial interest in his conviction, Tumey v. Ohio, supra; or that the jury gave additional weight to the testimony of certain prosecution witnesses because of the jury’s repeated contacts with those witnesses during the trial, Turner v. Louisiana, supra. How is the defendant to prove that the prosecutor acted differently than he ordinarily would have, that defense counsel was more concerned with impressing prospective clients than with the interests of the defendant, that a juror was so concerned with how he appeared on television that his mind continually wandered from the proceedings, that an important defense witness made a bad impression on the jury because he was “playing” to the television audience, or that the judge was a little more lenient or a little more strict than he usually might be? And then, how is petitioner to show that this combination of changed attitudes diverted the trial sufficiently from its purpose to deprive him of a fair trial? It is no answer to say that an appellate court can review for itself tapes or films of the proceedings. In the first place, it is not clear that the court would be able to obtain unedited tapes or films to review. Even with the cooperation of counsel on both sides, this Court was unable to obtain films of this trial which were in any sense complete. In addition, time limitations might restrict the television companies to taking pictures only of those portions of the trial that are most newsworthy and most likely to attract the attention of the viewing audience. More importantly, the tapes or films, even if unedited, could give a wrong impression of the proceedings. The camera which takes pictures cannot take a picture of itself. In addition, the camera cannot possibly cover the actions of all trial participants during the trial. While the camera is focused on the *580judge who is apparently acting properly, a juror may be glancing up to see where the camera is pointing and counsel may be looking around to see whether he can confer with his client without the close-up lens of the camera focusing on them. Needless to say, the camera cannot penetrate the minds of the trial participants and show their awareness that they may at that moment be the subject of the camera’s focus. The most the camera can show is that a formally correct trial took place, but our Constitution requires more than form.

I recognize that the television industry has shown in the past that it can be an enlightening and informing institution, but like other institutions it must respect the rights of others and cannot demand that we alter fundamental. constitutional conceptions for its benefit. We must take notice of the inherent unfairness of television in the courtroom and rule that its presence is inconsistent with the “fundamental conception” of what a trial should be. My conviction that this is the proper holding in this case is buttressed by the almost unanimous condemnation of televised court proceedings by the judiciary in this country and by the strong opposition to the practice by the organized bar in this country. Canon 35 of the American Bar Association’s Canons of Judicial Ethics prohibits the televising of court trials.37 With only two, or possibly three exceptions,38 the highest court of each *581State which has considered the question has declared that televised criminal trials are inconsistent with the Anglo-American conception of “trial.” 39 Similarly, Rule 53 of the Federal Rules of Criminal Procedure prohibits *582the “broadcasting” of trials,40 and the Judicial Conference of the United States has unanimously condemned televised trials.41 This condemnation rests on more than notions of policy; it arises from an understanding of the *583constitutional conception of the term “trial.” Such a general consensus is certainly relevant to this Court’s determination of the question. See Mapp v. Ohio, 367 U. S. 643, 651.

IV.

Nothing in this opinion is inconsistent with the constitutional guarantees of a public trial and the freedoms of speech and the press.

This Court explained in In re Oliver, 333 U. S. 257, 266, 270, that the public trial provision of the Sixth Amendment is a “guarantee to an accused” designed to “safeguard against any attempt to employ our courts as instruments of persecution.” Clearly the openness of the proceedings provides other benefits as well: it arguably improves the quality of testimony, it may induce unknown witnesses to come forward with relevant testimony, it may move all trial participants to perform their duties conscientiously, and it gives the public the opportunity to observe the courts in the performance of their duties and to determine whether they are performing adequately.42 But the guarantee of a public trial confers no special benefit on the press, the radio industry or the television industry. A public trial is a necessary component of an accused’s right to a fair trial and the concept of public trial cannot be used to defend conditions which prevent the trial process from providing a fair and reliable determination of guilt.

To satisfy the constitutional requirement that trials be public it is not necessary to provide facilities large enough *584for all who might like to attend a particular trial, since to do so would interfere with the integrity of the trial process and make the publicity of trial proceedings an end in itself. Nor does the requirement that trials be public mean that observers are free to act as they please in the courtroom, for persons who attend trials cannot act in such a way as to interfere with the trial process, see Moore v. Dempsey, supra. When representatives of the communications media attend trials they have no greater rights than other members of the public. Just as an ordinary citizen might be prohibited from using field glasses or a motion picture camera in the courthouse because by so doing he would interfere with the conduct of the trial, representatives of the press and broadcasting industries are subject to similar limitations when they attend court. Since the televising of criminal trials diverts the trial process from its proper end, it must be prohibited. This prohibition does not conflict with the constitutional guarantee of a public trial, because a trial is public, in the constitutional sense, when a courtroom has facilities for a reasonable number of the public to observe the proceedings, which facilities are not so small as to render the openness negligible and not so large as to distract the trial participants from their proper function, when the public is free to use those facilities, and when all those who attend the trial are free to report what they observed at the proceedings.

Nor does the exclusion of television cameras from the courtroom in any way impinge upon the freedoms of speech and the press. Court proceedings, as well as other public matters, are proper subjects for press coverage.

“A trial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose *585none would claim that the judge could punish the publisher for contempt. And we can see no difference though the conduct of the attorneys, of the jury, or even of the judge himself, may have reflected on the court. Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.” 43

So long as the television industry, like the other communications media, is free to send representatives to trials and to report on those trials to its viewers, there is no abridgment of the freedom of press. The right of the communications media to comment on court proceedings does not bring with it the right to inject themselves into the fabric of the trial process to alter the purpose of that process.

In summary, television is one of the great inventions of all time and can perform a large and useful role in society. But the television camera, like other technological innovations, is not entitled to pervade the lives of everyone in disregard of constitutionally protected rights.44 The television industry, like other institutions, has a proper area of activities and limitations beyond which it cannot go with its cameras. That area does not extend into an American courtroom. On entering that *586hallowed sanctuary, where the lives, liberty and property of people are in jeopardy, television representatives have only the rights of the general public, namely, to be present, to observe the proceedings, and thereafter, if they choose, to report them.

[For opinion of Harlan, J., concurring, see post, p. 587.]

*587

*589

*591

*593

*595

*597

*599

Counsel explained to the trial court that he desired to protect petitioner from the cameras until the court had made its ruling.

See Appendix, Photograph 6.

See Appendix, Photograph 7.

Jenks, A Short History of English Law 46-47 (6th ed. 1949); I Stephen, A History of the Criminal Law of England 51-74 (1883).

See, e. g., Craig v. Harney, 331 U. S. 367, 378; Irvin v. Dowd, 366 U. S. 717, 728; Brady v. Maryland, 373 U. S. 83, 87; Jackson v. Denno, 378 U. S. 368, 391.

See Singer v. United States, 380 U. S. 24, 27.

II Pollock and Maitland, The History of English Law 621-622 (2d ed. 1909).

I Stephen, supra, note 5, at 260.

See 7 Will. 3, c. 3 (1695).

Ibid.

Ibid.; 6 & 7 Will. 4, c. 114 (1836).

I Stephen, supra, note 5, at 427.

I Journals of the Continental Congress 1774-1789, 69 (Ford ed. 1904).

Radin, The Right to a Public Trial, 6 Temple L. Q. 381,383, n. 5a (1932).

Adamson v. California, 332 U. S. 46, 71-72 (dissenting opinion of Mr. Justice Black).

Gideon v. Wainwright, 372 U. S. 335, 342.

Pointer v. Texas, 380 U. S. 400, 408 (opinion of Mr. Justice Harlan, concurring in the result).

Cox v. Louisiana, 379 U. S. 559, 562; Frank v. Mangum, 237 U. S. 309, 347 (dissenting opinion of Justice Holmes). See Adamson v. California, 332 U. S. 46, 53; In re Murchison, 349 U. S. 133, 136; Irvin v. Dowd, 366 U. S. 717, 722; Jackson v. Denno, 378 U. S. 368, 377 (Court opinion), 424 (dissenting opinion of Mr. Justice Clark), 428 (dissenting opinion of Mr. Justice Harlan).

Frank v. Mangum, 237 U. S. 309, 346 (dissenting opinion).

Cox v. Louisiana, 379 U. S. 559, 583 (dissenting opinion).

See Mooney v. Holohan, 294 U. S. 103; Alcorta v. Texas, 355 U. S. 28; Napue v. Illinois, 360 U. S. 264; and Brady v. Maryland, 373 U. S. 83.

See Appendix, Photograph 7.

Keating, “Not ‘Bonanza/ Not ‘Peyton Place/ But the U. S. Senate,” N. Y. Times Magazine, April 25, 1965, 67, 72. See, e. g., N. Y. Times, April 22, 1965, p. 43, col. 2 (in describing a televised stockholders’ meeting the Times reported, “Some stockholders seemed very much aware they were on camera”); Tinkham, Should Canon 35 Be Amended? A Question of Proper Judicial Administration, 42 A. B. A. J. 843, 845 (1956) (in giving examples of how people react when they know they are on television, the author describes the reactions of a television audience when the camera was turned-on it as “contorted, grimacing”); Gould, N. Y. Times, March 11, 1956, § 2, p. X11, col. 2 (“The most experienced performers in show business know the horrors of stage fright before they go on TV. This psychological and emotional burden must not be placed on a layman whose testimony may have a bearing on whether, in a murder trial, another human being is to live or die.”).

See, e. g., Douglas, The Public Trial and the Free Press, 46 A. B. A. J. 840, 842 (1960). In United States v. Kleinman, 107 F. Supp. 407 (D. C. D. C. 1952), the court refused to hold in contempt witnesses in a congressional hearing who refused to answer questions while television cameras were focused on them. The court stated:

“The only reason for having a witness on the stand, either before a committee of Congress or before a court, is to get a thoughtful, calm, considered and, it is to be hoped, truthful disclosure of facts. That is not always accomplished, even under the best of circumstances. But at least the atmosphere of the forum should lend itself to that end.
“In the cases now to be decided, the stipulation of facts discloses that there were, in close proximity to the witness, television cameras, newsreel cameras, news photographers with their concomitant flashbulbs, radio microphones, a large and crowded hearing room with *570spectators standing along the walls, etc. The obdurate stand taken by these two defendants must be viewed in the context of all these conditions. The concentration of all ,of these elements seems to me necessarily so to disturb and distract any witness to the point that he might say today something that next week he will realize was erroneous. And the mistake could get him in trouble all over again.” Id., at 408.

See, e. g., Douglas, supra, note 25, at 842; Yesawich, Televising and Broadcasting Trials, 37 Cornell L. Q. 701, 717 (1952).

Wigmore, A Kaleidoscope of Justice 487 (1941).

Mueller, Problems Posed by Publicity to Crime and Criminal Proceedings, 110 U. Pa. L. Rev. 1, 6 (1961).

Compare Appendix, Photograph 5, with Appendix, Photograph 6.

N. Y. Times, Jan. 23, 1959, p. 1, col. 1.

Berman, Introduction to the Trial of the U 2 xiii, xii-xiii, xxix (1960).

A revealing dialogue took place in the present case between defense counsel and one of the television executives present in the courtroom during the September 24 hearing.

"Q. The camera on the other side of the room has to look over a comer of the jury box and past the jurors to be aimed at the witness box, does it not?
“A. I think that is pretty clear, sir. I don’t think the jurors would be in the way there.
“Q. You don’t think the jurors would get in the way of your operations?
"A. I don’t mean that exactly, sir.”

Petition for writ of certiorari, 35a.

See Appendix, Photograph 4.

See, e. g., Douglas, supra, note 25, at 844.

Cf. Fay v. New York, 332 U. S. 261, 300 (dissenting opinion of Mr. Justice Murphy).

The Canon provides in pertinent part:

“Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting or televising of court proceedings detract from the essential dignity of the proceedings, distract participants and witnesses in giving testimony, and create misconceptions with respect thereto in the mind of the public and should not be permitted.”

Colorado, In re Hearings Concerning Canon 85 of the Canons of Judicial Ethics, 296 P. 2d 465 (Colo. Sup. Ct. 1956), and Texas *581permit televising of trials in the discretion of the trial judge. The current situation in Oklahoma is unclear. In Lyles v. State, 330 P. 2d 734 (1958), the Criminal Court of Appeals of Oklahoma stated that the televising of proceedings was in the discretion of the trial judge. In 1959, however, the Supreme Court adopted a rule prohibiting television during actual proceedings. Okla. Stat. Ann., Tit. 5, at 65-66 (1963 Supp.). Nevertheless, in 1961 the court again stated that the televising of trials is a matter for the trial judge’s discretion. Cody v. State, 361 P. 2d 307 (Ct. Crim. App. Okla. 1961).

With the exceptions stated in note 38, supra, no State affirmatively permits televised trials. It has been stated that Canon 35 is in effect in 30 States. 48 J. Am. Jud. Soc. 80 (1964); Brief for Petitioner, p. 39. It is difficult to verify this figure because of the lack of uniformity among the States in reporting their court rules. However, the following States have clearly adopted Canon 35, or its equivalent: Alaska, Alaska Rules Crim. Proc. 48; Arizona, Ariz. Sup. Ct. Rule 45, 17 Ariz. Rev. Stat.' Ann., at 40; Connecticut, Conn. Practice Book 27 (1963); Delaware, Del. Sup. Ct. Rule 33, 13 Del. Code Ann., at 23 (1964 Supp.) (adopted Canon 35 in its pre-1952 form, which does not explicitly prohibit television, but does prohibit “the taking of photographs” and “broadcasting of court proceedings”) ; Florida, Code of Ethics, Rule A35, 31 Fla. Stat. Ann., at 285 (1964 Supp.), see Brumfield v. State, 108 So. 2d 33 (Fla. Sup. Ct. 1958); Hawaii, Hawaii Sup. Ct. Rule 16, 43 Haw. 450; Illinois, 1964 Ann. Rep. of the Ill. Judicial Conference 168-169, see People v. Ulrich, 376 Ill. 461, 34 N. E. 2d 393 (1941), People v. Munday, 280 Ill. 32, 117 N. E. 286 (1917); Iowa, Iowa Sup. Ct. Rule 119, 40 Iowa Code Ann., c. 610 (1964 Supp.); Kansas, Kansas Sup. Ct. Rule 117, 191 Kan. xxiv (1963) (does not refer specifically to television); Kentucky, Ky. Ct. App. Rule 3.170, Russell’s Kentucky Practice and Service 21 (1964); Louisiana, Canon of Judicial Ethics XXIII, 242 La. LI (1960); Michigan, Canon of Judicial Ethics 35, Callaghan’s Michigan Pleading and Practice, Rules at 422-423 (2d ed. 1962); New Jersey, Canon of Judicial Ethics 35, 1 Waltzinger, New Jersey Practice 299 (Rev. ed. 1954); New Mexico, N. M. Sup. Ct. Rule 27, 4 N. M. Stat. Ann., at 95 (1963 Supp.); New York, N. Y. Rules of *582the Administrative Board of the Judicial Conference, Rule 5, N. Y. Judiciary Law, at 320 (1964 Supp.); Ohio, 176 Ohio St. lxiv (1964), see State v. Clifford, 162 Ohio St. 370, 123 N. E. 2d 8 (1954), cert. denied, 349 U. S. 929; Tennessee, Tenn. Sup. Ct. Rule 38, 209 Tenn. 818 (1961); Virginia, 201 Va. cvii (1960) (prohibits taking of photographs and broadcasting, although it does not refer specifically to television); Washington, 61 Wash. 2d xxviii (1963); West Virginia, 141 W. Va. viii (1955).

In addition, Brand, Bar Associations, Attorneys and Judges (1956 and 1959 Supp.) reports that the Idaho Supreme Court adopted Canon 35 in its present form and the Supreme Courts of Oregon, South Dakota and Utah adopted the Canon when it merely prohibited “photographing” and “broadcasting” without specifically mentioning television. It has also been reported that the Supreme Court of Arkansas adopted Canon 35. 44 J. Am. Jud. Soc. 120 (1960).

Moreover, the Supreme Court of California assumed it was "improper” to televise criminal proceedings in People v. Stroble, 36 Cal. 2d 615, 226 P. 2d 330 (1951), affirmed 343 U. S. 181, rehearing denied 343 U. S. 952; see the rule adopted by the Conference of California Judges, 24 Cal. State Bar J. 299 (1949); the Court of Appeals of Maryland in Ex parte Sturm, 152 Md. 114, 122, 136 A. 312, 315 (1927), used language indicating that Maryland would probably bar television from the courtroom if faced with the problem; and the Supreme Court of Pennsylvania cited with approval Canon 35 in Mack Appeal, 386 Pa. 251, 257, n.5, 126 A. 2d 679, 681-682, n.4 (1956), cert. denied, 352 U. S. 1002, see 48 J. Am. Jud. Soc. 200 (1965).

Rule 53 provides:

“The taking of photographs in the court room during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the court room shall not be permitted by the court.”

“Resolved, That the Judicial Conference of the United States condemns the taking of photographs in the courtroom or its environs in connection with any judicial proceedings, and the broadcasting of judicial proceedings by radio, television, or other means, and considers such practices to be inconsistent with fair judicial procedure *583and that they ought not to be permitted in any federal court.” Annual Report of the Proceedings of the Judicial Conference of the United States, March 8-9, 1962, p. 10.

See, e. g., 3 Blackstone, Commentaries on the Laws of England 372-373 (15th ed. 1809); 6 Wigmore, Evidence 332-335 (3d ed. 1940).

Craig v. Harney, 331 U. S. 367, 374. See Bridges v. California, 314 U. S. 252; Pennekamp v. Florida, 328 U. S. 331.

Compare Olmstead v. United States, 277 U. S. 438, 471 (dissenting opinion of Mr. Justice Brandeis); On Lee v. United States, 343 U. S. 747, 762 (dissenting opinion of MR. Justice Douglas) ; Silverman v. United States, 365 U. S. 505; Lopez v. United States, 373 U. S. 427, 445-446 (opinion concurring in the result), 465 (dissenting opinion of Mr. Justice Brennan).