By Mike Dorf
Justice Sotomayor's change of heart regarding the wisdom of televising Supreme Court hearings provided the opportunity for the latest news coverage of the fact that the SCOTUS does not currently permit cameras in the courtroom. This very good NY Times article by Adam Liptak notes a number of themes that have been noted by others as well, including: 1) That nominees to the Court say they favor cameras but then have a change of heart once they have been Justices for a few years; 2) that other countries (including Canada) follow the opposite pattern from ours, permitting televising of their high court appellate proceedings, but not of trials, where witnesses might be intimidated; and 3) that the usual reasons given for keeping cameras out of the courtroom include the fear that the public wouldn't understand what they are watching and that lawyers and Justices alike would play to the cameras. Here I'll focus briefly on point 3).
Let me begin by stating the obvious. The two worries cited would not come close to justifying a ban on video coverage of any other official government proceeding if the burden of persuasion were placed on those who wanted to prevent such coverage rather than, as the Justices seem to assume, placed on those who want to permit such coverage.
Here's an example. I went over to CSPAN.com and randomly clicked on a House Subcommittee hearing on regulating the domestic use of surveillance drones. That sounds like it should be interesting, right? I was bored to tears in seconds. Okay, not quite tears but I was bored enough to stop watching and click on something else. This seems to me to be just about all the harm that would be done from having more generally uninformed people watch proceedings in the Supreme Court: More people would discover that they generally find the work of the Court boring. (To be clear, I don't find the Supreme Court's work boring, but I have honed my interest in the work of the Court over the years.)
What about the worry that lawyers and judges would grandstand? Here again, I think there is a one-word answer: CSPAN. If those people are grandstanding, their ordinary state must be hibernation. And really, would it be so bad for the Court if occasionally a lawyer or Justice injected a bit more drama into the proceedings? On the evidence, it won't happen anyway. The Justices know that same-day audio of oral arguments is now generally available and that people actually listen to it in very high-profile cases. It doesn't appear to have made any difference.
But again, in light of the First Amendment, shouldn't the burden be on those who would close the courtroom to cameras? In the Richmond Newspapers case, the Court held that criminal trials are presumptively open to the public. Admittedly, however, there are a couple of important distinctions.
First, the majority opinion relied on the history of trials. If one is a certain kind of originalist about such things, that history may not be fully relevant to appellate proceedings. But the First Amendment doctrine is not narrowly originalist in this way, at least not consistently so. And surely there are good reasons for opening appellate hearings to the public, no less than trials. Appellate rulings make law for all of us; they don't just resolve disputes between the parties. Thus, the public interest in open appellate hearings is arguably greater than in trials.
Second, Richmond Newspapers itself did not involve cameras. The public already have some access to Supreme Court hearings: Individuals who stand in line can attend in person; the Court makes audio and transcripts available pretty quickly; and the press have access that they use to report on the Court proceedings more broadly.
Although the Court's time, place and manner (TPM) doctrine does not directly apply to restrictions on public access to government proceedings, perhaps it ought to. It is at least suggestive and it would require that restrictions be content-neutral and reasonable. Keeping out cameras is content-neutral but is it reasonable? Partly the answer depends on whether one thinks the alternatives left open are adequate. It's tempting to say that they are reasonable because, for most of our history, the public had less access to Supreme Court hearings than they do today. Same-day audio and transcripts are a pretty new development.
But I don't think it makes sense to gauge the reasonableness of a putative TPM regulation by comparing the alternatives to their historical counterparts. Just as (even content-neutral) censorship on the internet is unconstitutional today even though there was no internet fifty years ago, so too what is reasonable depends in part on what is feasible. Accordingly, here as in other circumstances, I think the burden should be on the censors. And I don't see how they can sustain that burden.
I say all of the foregoing knowing that none of it would likely be implemented. The Court is not about to find itself in violation of the First Amendment and, in fairness, it's not as though the Court is giving itself an advantage that it denies to other government institutions. Sunshine laws are a great idea but they're statutes; except for special cases like Richmond Newspapers, the First Amendment has not generally been interpreted to require open government. I think it should be interpreted that way, but until the Justices understand that cameras in their own courtroom would be largely harmless, they will not see the angle in prying open government more generally.