Live! Broadcasting high-profile appeals reignites cameras in the courtroom debate

From the Winter 2011 issue of The News Media & The Law, page 37.

Efforts to broadcast from the notoriously camera-unfriendly federal courts got a boost last fall when the U.S. Court of Appeals in San Francisco (9th Cir.) broadcast live high-profile appeals challenging controversial state laws on immigration and gay marriage.

In November, the Ninth Circuit broadcast the oral arguments in United States v. Arizona, an appeal concerning the constitutionality of an Arizona immigration enforcement law.

The following month, the court broadcast the oral arguments in another appeal, Perry v. Schwarzenegger, a case involving a challenge to the constitutionality of California’s voter-passed Proposition 8, which limits marriages recognized by the state to those between a man and a woman.

The arguments in both cases garnered significant public and media attention. C-SPAN broadcast the arguments live, and the pooled audio and video feeds were also streamed on the Web and recorded for later use by other outlets. Law schools across the country also showed the arguments live.

Shortly after the Perry hearing, court personnel estimated that millions of people watched or heard all or some of the argument. One of the judges who heard the Perry case wrote in a court filing that the argument “was viewed on television and the Internet by more people than have ever watched an appellate court proceeding in the history of the Nation.”

The broadcasts received some favorable media coverage as well. Following the Perry argument, Tim Rutten wrote in a Los Angeles Times column that the broadcast of the hearing “was a powerfully compelling argument for the camera’s indispensability when the issues at stake are as broadly consequential and as deeply divisive as they are in the struggle over marriage equality.”

Rutten’s column acknowledged “ample reasons to be skeptical about the desirability of cameras in the courtroom,” but concluded that the broadcast of such cases strengthened the public’s confidence in a judiciary that was not beholden to politics. “It is one of the glories of our court system that it continues to permit a principled and civil debate over just such contentious issues, and the American people deserve to see that, as they did” in the Perry argument, Rutten wrote.

That’s a key reason for broadcasting the arguments, said Ninth Circuit Chief Judge Alex Kozinski. “I think that people find [the court arguments] to be a great learning experience,” Kozinski said.

A prominent supporter of more camera access to court proceedings, Kozinski said that the court broadcasts allow the public to gain more insight into how a court operates and help to legitimize the court’s decisions to the public.

Kozinski noted that the Ninth Circuit has broadcast several high-profile cases, with Perry and Arizona being two of the most recent. The response has been positive.

“I don’t think anybody who watched the oral arguments in . . . any of these high-visibility cases has come off thinking that the judges weren’t doing their job. Most people have said they were very impressed with how much thought was being put into the decision,” Kozinski said.

This perception is important, in Kozinski’s opinion. “A great deal rides on the decisions,” he noted. He acknowledged that the public may sometimes question the judicial process and whether it, in practice, is consistent with U.S. democratic values. Kozinski said he believes that opening the arguments to the public helps to answer those questions.

Ted Olson, one of the attorneys who argued on behalf of the plaintiffs in the Perry case, agreed. “The American public generally has a high regard for the judiciary,” Olson said. “The more people see judges in operation and interacting with the people whose rights they are adjudicating, the more people respect the process, and realize how well prepared judges typically are, how engaged they are, and how hard they are working to get it right.”

Olson said the reactions he heard about the Perry broadcast were “universally, uniformly favorable.” He said he had talked to people with differing opinions on the legal dispute, attorneys and non-attorneys, and they all appreciated the ability to see the court in session. “People that I heard from were thrilled to be able to see the argument, to hear how it went on,” Olson said.

John Bouma, who argued for the state in the United States v. Arizona appeal, conveyed a similar view. “I’ve heard from a lot of people who took the time to watch [the Arizona argument] or have since watched the clips,” he said. He recalled a recent conversation with someone who had watched the clips and been “surprised by how civil everything was and how the judges seemed interested in the merits.” If the broadcasts lead to a better understanding of the court process, that’s a benefit, Bouma said. “To the extent we’ve favorably educated the public some, that’s good.”

The broadcast in the Perry case received more mixed reviews from some of the other attorneys involved in the appeal, including James Campbell, an attorney for the proponents of Proposition 8. The general reaction that Campbell heard from most non-lawyers was that they “had a little more difficulty following the appellate arguments than they originally anticipated.”

Campbell attributed these reactions partially to the specifics of the case, including that half the argument “focused on a highly technical legal issue like standing.”

He also noted that appellate arguments in general can be difficult to follow for those who do not have the background in the case. “No matter who’s listening, if you are an outsider to a case and you haven’t read or written the briefs, you are going to miss and have a hard time following many aspects of an appellate argument,” Campbell said.

Robert Tyler, who argued some of the procedural matters on behalf of the Imperial County parties in the Perry appeal, said he heard that the procedural issues were hard to follow and doubts that having them broadcast nationally was “incredibly enlightening” to the public. “Unless you’ve reviewed and researched those particular fine points of law, it is kind of difficult” to follow the arguments, he said.

Nonetheless, Campbell and Tyler saw potential value to the public in broadcasting appellate arguments.

Drawing a sharp line between appellate arguments by attorneys and trial court proceedings, Campbell said he agrees that the appellate broadcasts “can be helpful, to the extent that the public is interested in hearing the appellate argument.”

Tyler thought the broadcast of the merits argument in the Perry case was important and made for better public viewing than the procedural arguments. “I don’t think that having a broadcast of the issue is necessarily beneficial to the legal resolution, but I think it is beneficial for open and public access,” he said. Tyler also said broadcasting the proceedings can make judges “more accountable” to the public. “More often than not you get into an oral argument and you can see which way the judges are leaning by their questions. I think that is helpful for the public” to observe, Tyler said.

Cameras in the District Court

The disagreement over camera use remains more pronounced at the trial court level. Last year, after U.S. District Court Chief Judge Vaughn R. Walker signaled that he intended to broadcast the Perry bench trial to other courtrooms and, potentially, make them available online, Campbell and the other attorneys for the Proposition 8 proponents objected.

In appealing the broadcast to the U.S. Supreme Court, the attorneys asserted that broadcasting the trial would infringe on their clients’ rights to a fair trial and would likely lead to “harassment of witnesses, threats to the safety and security of trial participants, [and] unnecessary public exposure and ridicule of trial participants.”

“‘[D]ecades of experience and study,’ including the [Federal Judicial Center] study of a multi-year, multi-district pilot program, have demonstrated a variety of harms that arise from public broadcast of district court proceedings, leading the Judicial Conference of the United States to ‘consistently’ conclude ‘that camera coverage can do irreparable harm to a citizen’s right to a fair and impartial trial,’” the proponents wrote, quoting former testimony of Ninth Circuit Judge Diarmuid O’Scannlain.

The Supreme Court, in a 5-4 decision, sided with the Proposition 8 proponents and stopped the broadcast. The court’s order in Hollingsworth v. Perry made it clear that the ruling was on procedural grounds and that the court was not “expressing any view on whether [federal] trials should be broadcast.” But the court noted the potential concern that witness testimony “may be chilled” if the trial proceedings were broadcast. The court also commended courts and legislatures proceeding with “appropriate caution” in addressing an issue that they earlier characterized as having “prompted considerable national debate.”

Campbell thinks the court’s decision was the right one.

“We think there are some very grave due process concerns with broadcasting a trial, especially of a high profile, highly contentious issue such as same-sex marriage,” he said.

Ted Boutrous Jr., one of the plaintiffs’ attorneys who advocated for camera access in the Perry trial, disagreed, calling the inability to broadcast the Perry trial “very unfortunate.”

He said that he reviewed video from the Perry trial in preparation for the closing argument — the proceedings were recorded, but were not broadcast — and was amazed by how much the recordings improved the record. He said the public would have benefited from seeing those tapes as well.

“For purposes of the public being able to understand judicial proceedings and to participate and make decisions and govern themselves, which is one of the reasons for public access to courts, it seemed to me invaluable,” Boutrous said regarding the video. “It would have been fabulous for everyone who is interested in these issues . . . on both sides of the issue” to see the proceedings, he said.

Tyler said he is generally open to allowing camera coverage of court proceedings, but that cameras in trial courts carry greater risks that courts need to weigh on a case-by-case basis. “When you just throw a camera in a courtroom, it is easy for the public to fail to get an accurate understanding of the law,” he said. In contrast to jurors, who receive instructions on the law and watch the entire trial, the public may be more swayed by emotional arguments that are not legally sound, he said.

Bouma expressed a related concern, arguing there is a greater potential for cameras to distort trial proceedings. For example, someone may see a direct examination, but not the cross-examination, or may only watch a small portion of a long trial.

Appellate arguments are different, he said. “I don’t see that as a big issue in the appellate [setting]. Obviously somebody can take a clip and only show a clip, but that’s the same for almost anything we do in this world.”

Boutrous acknowledged that broadcasting trial proceedings presented different issues than appellate arguments, although he said courts could take steps to address the concerns. “On balance, courts can deal with issues on a case-by-case basis to protect the integrity of the proceedings, to protect witnesses, to protect participants, and to allow cameras to the extent it is appropriate and workable.”

Kozinski and his former law clerk, Robert Johnson, recently addressed many of these and other arguments in an article for the Fordham Intellectual Property, Media & Entertainment Law Journal. Agreeing that cameras can affect trial court proceedings, they argued that some of the changes may be positive. For the public, full broadcasts can serve as an “impartial and authoritative account of proceedings,” they said. And inside the courtroom, broadcasting of trials may lead some judges to be more attentive, some attorneys to act with more decorum, some jurors to take the proceedings more seriously and some witnesses to be more truthful, they added.

“Conscience, after all, is that little voice in your head that tells you someone may be listening after all,” they said. “And that someone might be the guy who was walking his dog on the golf course and knows for certain that you, the witness, couldn’t possibly have been across town at eleven o’clock Wednesday morning.”

Olson suggested a similar effect on participants in appellate arguments: “Even if there was some conscious awareness of the cameras in the courtroom, and the fact that a lawyer’s or a judge’s behavior was going out over the air might affect some participants at first, after awhile, that would disappear,” Olson said.

“And if you are being watched, I would think in most cases that would cause most people to be more careful about how they were perceived,” he said.

The Judicial Conference’s pilot program

As the events in the Perry case illustrate, cameras in federal trial courts continue to be a source of significant debate. Last fall, the Judicial Conference for the United States approved a pilot project to allow video camera recording in some federal district court proceedings. According to the proposal, the pilot project will be limited to civil cases.

The project, known as the Digital Video Pilot Program, is close to being up and running, according to U.S. District Judge Julie Robinson of Kansas, the chair of the Judicial Conference committee charged with implementing the program. “The committee is now in the process of finalizing the guidelines and preparing for the solicitation for participation of the courts in the pilot,” she said through a Judicial Conference spokesman.

Boutrous said he hopes that courts generally can build off of the recent Ninth Circuit broadcasts.

“The Ninth Circuit argument [in Perry] being televised is a breakthrough, both because of . . . the high profile nature of the case and because of how well it went, and I’m hoping that will lead the way to more of that in the federal courts and the state courts,” he said.