Monday, June 19, 2017

Taking the Gloves off for Cameras in the Court

By Eric Segall

Last week in the L.A. Times (with support from Judge Posner and Justice Willett) and in Judicature (writing with Erwin Chemerinsky), I discussed the Supreme Court’s continued refusal to allow any video coverage of its proceedings. My tone in both pieces was reasonably measured (at least by my standards), and I had to leave out a few arguments because of space requirements. For this piece, the gloves come off, and I can be a bit more comprehensive. I also want to respond to the concern that we should ask the Justices to move slowly, maybe by starting with live audio, before they approve cameras. 

There is not a single good reason justifying the Court’s blackout of its already public oral arguments and decision announcements, while there are compelling reasons the Court should enter the 21st century. The benefits of allowing cameras include the following: 1) the generalized interest in more governmental transparency; 2) the democratic interest in allowing everyone to witness what a privileged few in the courtroom get to see; 3) the citizenship interest in providing moments when we can gather together and see historic governmental decisions being made (almost 20,000,000 people watched James Comey’s recent testimony); 4) the modern interest in engaging younger generations in the work of the Court in a way that is impossible through after-the-fact audio; 5) the historical interest in allowing museums to capture and display landmark arguments and decisions; 6) the educational interest in providing students and teachers of the law, and Americans in general, the opportunity to see heated disagreements over fundamental legal questions carried out with civility and respect; 7) the professional interest in allowing Supreme Court litigators to witness the Justices in action to better prepare them for their arguments; and 8) the societal interest in demystifying the role of the Justices and the nature of the Court’s proceedings.

I have previously explained all of these benefits in much more detail and won’t repeat those arguments here.

The arguments against cameras or live-streaming are based almost entirely on fear and speculation. Before I list those, however, it is important to note that all fifty states, other countries, and the U.S. Court of Appeals for the Ninth Circuit regularly show their arguments with no complaints. The Supreme Court of Texas has been webcasting for a decade. Forget the arguments about the O.J. Simpson trial and cameras. I am not arguing for trials to be on television. I am advocating for cameras at appellate arguments where there is no jury.

There are a few academics who continue to argue against cameras based on the fear that television or live streaming will change oral arguments for the worse. There is no evidence, however, this has been true at the fifty state supreme courts, the Ninth Circuit, or other countries but, of course, those arguments aren’t on C-Span or national television here in America. Nevertheless, the notion that either Supreme Court litigators or the Justices themselves will play to the cameras in a way that is injurious to the American people or the Court is wildly speculative if not fanciful.

Unlike members of Congress who obviously play to the cameras because they need to be re-elected, or they want their political party to look better, the Justices don’t have the worry of elections, and they are unlikely to appear overly partisan on national television. 

          Any attorney who is seen by the Justices as performing for a television audience will feel the Justices' wrath quickly and sternly. In any event, should any of this come to pass and the arguments deteriorate significantly, the Justices can change their minds and prohibit cameras in the future . Shouldn’t we find out?

To the extent there is a worry about lawyer misbehavior specifically, none of these fears are relevant to the Court’s decision announcements after the end of April when there are no oral arguments and the Justices have complete control of the proceedings. This period is also when the Court’s most important decisions are handed down, and the American people would have the most interest in seeing the decisions announced.

The Justices and others opposed to cameras have also made the following arguments: 

1)   The public might place undue importance on the oral arguments as opposed to the briefs and final written opinions;
2)   Cameras might make it more likely that the Justices will be the victims of violence;
3)   Snippets and sound bites of the arguments might be taken out of context by the media; and
4)   The Justices might be ridiculed by late night comedians or mock news shows.

I have documented these objections and responded to them at length in numerous places before. My most academic treatment is here, and Erwin and I also examined them in our Judicature essay. In brief:

1)   The possibility that the public might not understand the role of oral arguments is no reason to deny them the chance to view them, and the Justices could easily explain the role of the arguments in many different fora.
2)   There is no evidence that cameras present a security risk to the Justices. In this day and age, when information on all the Justices as well as their images, are publicly available on the internet, and many of them go on television either to sell books or simply discuss their jobs, it is most unlikely that cameras in the courtroom will lead to a substantial increased risk of violence.
3)   All government officials--indeed, all people--when they speak in public, risk having their statements taken out of context through misleading soundbites. Those concerns do not justify a media blackout in other contexts or in this one. Moreover, the Justices run this risk now and, if there is a dispute about something that is said or happens in the courtroom, visual evidence could only help get to the truth.
4)   Being mocked by comedians or late night mock news shows is simply part of the job.

The benefits set forth above easily outweigh the hypothetical fears. Moreover, if cameras do end up having pernicious effects that outweigh the educational, democratic, and historical benefits of cameras, the Justices are free to change their minds.

I want to end by responding to an argument that Jerry Goldman, Emeritus Director of OYEZ, made to me in a series of emails. Jerry is ultimately in favor of cameras in the Court but feels it will only happen “brick by brick.” He wrote that courts “like to take small steps and follow well-worn paths.” The “easier case” Jerry argued, is to argue for live audio feed which “would move the ball closer to the goal of video in the courtroom.” Jerry finished his admonition to me not to “clobber” the Court by noting that the slow approach was adopted by Justice Ginsburg for gender equality, the NAACP for Jim Crow, and Justice Kennedy for gay rights. He didn’t think we should push for “one giant leap.”

I understand and sympathize with these arguments, especially as I made similar ones publicly in the same-sex marriage cases--urging the Court to decide Windsor but wait a few years before deciding the validity of state same-sex marriage laws--and I have argued that Roe v. Wade was too much too fast. But the issue of cameras in Court is different. There will be no backlash, except maybe from the Justices, to allowing cameras in the Court, and unlike the examples provide by Jerry, we have years and years of experience with cameras in courtrooms, including the highest courts of the land in Canada, Brazil, and the UK, We don’t need to take baby steps to figure out if this is a good idea because it has already been done. The fights for same-sex marriage, gender equality, and desegregation in the South are not remotely similar.

In 2017, with a showdown between the President and the Court brewing, and abundant evidence that the American people want to watch their government on television, allowing cameras in the Court should be an easy decision for the Justices to make. There is no reason to wait any longer. The Court should permit cameras in their already open proceedings as fast as C-Span can put them there.