Pandemic or No, SCOTUS Remains Camera-phobic

by Michael C. Dorf

On Monday, the Supreme Court announced that it would hear ten "oral arguments by telephone conference" during a one-week period in early May. The order further states that the Court will "provid[e] a live audio feed of these arguments to news media," which, in turn, will make them available to the public more or less in real time. Although the Court has previously released same-day audio recordings, real-time transmissions are new. Thus, with this announcement, the Supreme Court boldly adopts the equivalent of a revolutionary new technology of the 1890s: live radio. Who knows what will come next? When the public health emergency ends, will the justices ride about town in horseless carriages? Will their robes be cleaned by electric-powered washing machines? Will they drink hot beverages steeped from teabags? One can scarcely imagine the futuristic experiments these visionary jurists will conduct when they reconvene in their marble palace.

One technology the justices are unlikely to embrace is live or even recorded video. Why not? The short answer is camera-phobia.

During the current crisis, businesses, educational institutions at every level, government workers, and many others have been coping via remote videoconferencing technology. There are security and privacy risks, like Zoombombing, although, as those risks have become apparent, workarounds like password protection and greater use of "waiting rooms" have become more common. Other platforms, like Google Hangouts and Skype, may offer better security. In any event, it is very very clear that the justices' decision to hold oral arguments using audio-only calls rather than via videoconferencing was not rooted in security concerns.

Nor does it seem likely that the worry was luddism. True, just about everyone working online has by now had the experience of encountering a less-than-tech-savvy co-worker (or being that person) who is flummoxed by the technology, but it is hard to believe that a few short training sessions plus a phone line as a backup would not enable the nine people we entrust to construe the Constitution and laws of the United States to figure out how to look at and talk into a screen. Yes, Ruth Bader Ginsburg is 87, but she did graduate first in her law school class and, based on her questions from the bench, clearly remains more than smart enough to . . . I don't know . . . figure out how to unmute her microphone.

Last, we can rule out the possibility that any of the Justices lacks a working Internet connection or computer. They are, after all, continuing to do their written work, communicate with law clerks, and in the case of Stephen Breyer, record a PSA urging NYC residents to fill out their census forms. Sure, the video quality isn't great, but who cares? And if anyone does care, there's a fix for that too. Yesterday, eCornell dropped off a (duly sanitized) special purpose laptop in my driveway to enable me to record high-quality video for an online course I'm creating. (This is a course on which I began work before the outbreak. The timing to the need for more online content is coincidental.) If any of the justices is working with a slow connection or an old computer, surely the Supreme Court of the United States can figure out how to remedy that problem without imposing any health risk on the justices or staff. 

So, why not SCOTUS via Zoom, Google Hangouts, Skype, or some other videoconferencing platform? The short and obvious answer is that holding argument that way would create the possibility of a video recording of an oral argument, and the justices have long resisted cameras in their courtroom.
Meanwhile, longtime readers of Dorf on Law will know that while my co-bloggers and I don't agree on everything, we agree that there is no good justification for forbidding video live-streaming Supreme Court oral arguments and then making the recordings available online. Prof. Segall has made the case on the blog (e.g., here and here) and elsewhere, as have I (e.g., here and here).

In some of those earlier treatments, we have argued that the Court's own First Amendment jurisprudence, if applied, would require cameras. Why? Because the justifications offered for keeping cameras out--that lawyers and perhaps even the justices themselves would "play" to the cameras or that news programs would broadcast sound bites out of context--do not come close to a sufficient justification for censorship.

However, one might ask, why should the decision to keep cameras out trigger any sort of heightened scrutiny? How can the First Amendment require the use of a technology that did not exist in 1791?

As an initial matter, the Supreme Court's modern First Amendment doctrine is pervasively nonoriginalist, so that 1791 technology seems irrelevant. Moreover, even originalists recognize that rights are not bound to the technology available at the time of their codification.

For example, none of the justices who think that the Second Amendment protects an individual right to possess firearms (a group co-extensive with the justices most inclined towards originalism) think that it protects only muskets and pistols of the sort that were available in 1791 (or weapons of the sort available in 1868 with respect to the states). Likewise, as the Court held in an opinion by Justice Scalia and joined by Justice Thomas, the Fourth Amendment protects against a warrantless thermal imaging search, even though its framers did not have any such technology in mind.

In 2020, the way in which people observe their public institutions is via audiovisual technology. That was true for most people even before the pandemic, and thus I do not want to be understood to be saying that during the pandemic the Court should allow video but not once the public health emergency is over. There is simply no good reason why any government institution that is open to those members of the public who happen to show up should not also be open to the broader public via live-streaming audio-video. If there are compelling privacy or security concerns that justify closing the hearing to the public in a particular case, those would apply to both physically present observers and the remote audience, but absent such concerns, there is nothing that makes the First Amendment but not the Second and Fourth Amendments exempt from the implications of changing technology. How else to explain free speech rights on the Internet?

Just over forty years ago, Mary Grace was threatened with arrest if she did not desist from displaying the verbatim text of the First Amendment on the sidewalk outside the Supreme Court building. She sued; her case went up to the Supreme Court itself; and in an opinion by Justice White, the Court held that the law forbidding public displays on the Court's grounds was unconstitutional, at least as applied to the sidewalk, which is a traditional public forum. In the Grace case, the Court quite appropriately did not think itself exempt from the First Amendment. It still isn't.