WALB-TV, INC. v. Gibson

Hunstein, Justice,

concurring in judgment only in part and dissenting in part.

In this case the trial court denied WALE-TV’S request for electronic-media coverage of the Eckman and Lematty trials without making any specific findings of fact4 and based solely on a mere pos*567sibility that the defendants’ due process rights could be infringed. The failure to make specific findings of fact is violative of Uniform Superior Court Rule 22 and this Court’s decision in Multimedia WMAZ v. State, 256 Ga. 698, 699 (353 SE2d 173) (1987), which continue to require trial courts to make specific factual findings that electronic-media coverage is either not “within the requirements of due process of law” or cannot be “done without detracting from the dignity and decorum of the court” before denying a request for electronic-media coverage. In addition, the trial court’s denial of coverage of these trials, based on a mere possibility of an infringement of defendants’ due process rights, is violative of the “open courthouse door” policy in Georgia. See R.W. Page Corp. v. Lumpkin, 249 Ga. 576, fn. 1 (292 SE2d 815) (1982). Accordingly, I respectfully dissent to the majority’s affirmance of the trial court’s order denying electronic-media coverage of the Eckman trial and concur in judgment only with the majority’s reversal of the trial court’s order denying electronic-media coverage of the Lematty trial.

The requirement that trial courts make specific factual findings was not altered by the passage of OCGA § 15-1-10.1 or the subsequent addition of subsection (P) to Uniform Superior Court Rule 22 directing courts to evaluate a request for electronic-media coverage pursuant to the standards set forth in OCGA § 15-1-10.1. The provisions of OCGA § 15-1-10.1 do not address or contradict the longstanding requirement that trial courts make specific findings and such findings continue to be necessary to enable appellate courts to determine that the trial court properly weighed the conflicting constitutional concerns and had sufficient evidence before the court to justify an infringement on First Amendment rights.

Moreover, OCGA § 15-1-10.1 cannot be constitutionally interpreted to effectuate a reduction in the public’s First Amendment rights by changing the standard to be applied by trial courts when weighing those First Amendment concerns against the due process concerns that arise when there are requests for electronic-media coverage of a criminal trial. The law is clear that the public’s First Amendment rights are paramount and the burden is on the party seeking to exclude coverage to establish evidence of the prejudicial effect of such coverage on a defendant’s due process rights or to show that coverage will detract from the dignity and decorum of the courtroom. See Multimedia, supra. Speculation by either the parties or the trial court cannot justify the infringement of First Amendment rights caused by the exclusion of electronic-media from the courtroom. Where, as here, the trial court based its order denying electronic-media coverage on mere speculation that electronic-media coverage might have an adverse effect on the defendants’ right to a fair trial, that burden has not been met.

*568Therefore, because I would reverse the trial court as to both the Eckman and Lematty trials based on the trial court’s failure to make the specific factual findings required by USCR 22 and Multimedia, I concur in judgment only as to that part of the majority opinion reversing the trial court’s order excluding electronic-media coverage from the Lematty trial and dissent to the affirmance of the trial court’s ruling as to the Eckman trial.

I am authorized to state that Justice Sears joins in this dissent.

The trial court’s order consists solely of the statement that it was denying the request for electronic-media coverage

on the grounds that electronic coverage of the trials in this case could have an adverse [e]ffect upon the ability of Defendants to receive a fair trial in violation of their rights of due process and that the presence of a camera in the courtroom would be a distraction.