TIME TO ALLOW VIDEO CAMERAS IN FEDERAL COURT

TIME TO ALLOW VIDEO CAMERAS IN FEDERAL COURT

TIME TO ALLOW VIDEO CAMERAS IN FEDERAL COURT

How is it possible that we can keep up with the Kardashians, but we cannot keep up with the Supreme Court? Although many states permit some form of video recordings of state court proceedings, video cameras and recordings are prohibited in the U.S. Supreme Court and all lower federal courts, save a very limited pilot project for some cases in three U.S. District Courts in San Francisco, Seattle and Guam. Americans should have real-time access to their courts—they should be able to actually observe justice, rather than just read about it.  After all, the vast majority of federal court proceedings are open to the public, and all one has to do is find an empty seat and take it.  As the Supreme Court brilliantly observed in 1947 in Craig v. Harney, “A trial is a public event.  What transpires in the courtroom is public property.” This observation notwithstanding, the federal courts thus far have not recognized an unqualified First Amendment right to televise court proceedings, even though most states have rules allowing cameras in the courtroom. In the Supreme Court’s decision in 1980 in Richmond Newspapers v. Virginia, the Court went so far as to state that the First Amendment did guarantee at least a qualified right of the public and the press to attend and comment on criminal trials, and the following year, in 1981, the Court allowed for states to experiment with television coverage of criminal trials in a unanimous decision in Chandler v. Florida.  What the Supreme Court did not address or recognize, however, was any right of access that included a right to audio or video recording of federal court proceedings for broadcast. The Judicial Conference of the United States establishes policy for the federal courts, and it is responsible for the existing prohibition—a position consistent with that taken by Chief Justice Roberts.  The bases for denying cameras in the courtrooms have not altered over the years.  Opponents continue to assert a belief that cameras are a distraction and that they unfairly affect the outcome of trials, diminishing the dignity of the courts.  Whatever the reason, this lack of transparency and access runs counter to the notion that court proceedings typically are, and should be, accessible to the public.  Just as we can observe White House news conferences and congressional hearings live, the Court simply ought to make its proceedings available to the public in real time.  There certainly is nothing in the Court’s jurisprudence that suggests that the First Amendment would or should restrict this right.  Indeed, the “creative dynamic” spoken of in the Court’s Citizens United decision surely is applicable to the situation that presents in an oral argument.  That “creative dynamic inherent in the concept of free expression” should be made accessible to all who want to experience it. First Amendment principles cannot realistically defend the Court’s policy on prohibition.  In a rare bipartisan moment last year, Congress introduced the aptly named Cameras in the Courtroom Act, H.R. 94.  The bill provides that “[t]he Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of one or more of the parties before the Court.”  Despite the simplicity of the proposed legislation and its bipartisan support, the bill failed to gain traction and has not become law.  So for now, until there is a bill signed into law by the President, or a policy change, there will be no live-streaming.  Most of us will have to rely on those sketch artists’ renderings and our imaginations for a visual of what transpires in the courtroom, at least such is the case in federal court.