Bulletin: Fall 2011, Volume 17, Number 1

Battles to Gain Camera/Audio Access to State and Federal Courtrooms Continue

For years, First Amendment advocates have fought for camera and audio recorder access to judicial proceedings. State and federal courts have been slow to embrace rules allowing the use of cameras in their courtrooms, although all 50 states allow electronic access to some degree. At the federal level, a pilot program has been launched in some federal district courts. However, the Supreme Court of the United States still does not allow the use of cameras during its proceedings. But both the U.S. House of Representatives and the U.S. Senate are considering versions of the Cameras in the Courtroom Act of 2011, which would require the Supreme Court to allow television coverage of all open sessions of the court.

Even with access rules in place, the procedures sometimes make it extremely difficult for news organizations or other citizens to actually gain what is often called “extended access” to courtrooms. Nevertheless, the camera and audio access issue is becoming more important to media organizations of all types, who increasingly utilize video and audio reporting to some extent. Coupled with important issues being decided by the courts, such as the constitutionality of the federal health care law, politicians and media groups have called for more workable rules to guarantee access to all judicial proceedings.

Congress and Media Advocate for Cameras Access to Supreme Court Health Care Law Hearings

In March 2012, the Supreme Court of the United States is slated to hear oral arguments in three cases addressing the Patient Protection and Affordable Care Act (PPACA), 42 U.S.C.A. § 18001. The Act, more commonly known as the “health care reform law,” was signed by President Barack Obama on March 23, 2010, significantly changing parts of the private health insurance industry and public health insurance programs. The legislation expands insurance coverage of pre-existing medical conditions and increases national medical spending. The law passed the House of Representatives by a vote of 219-212, with 34 Democrats and all 178 Republicans serving in the House at the time voting against the bill. It passed the Senate by a vote of 60-39 with all serving Democrats and Independents voting for it and all serving Republicans voting against it. Since it was signed into law, a majority of states, numerous organizations, and individual citizens have filed lawsuits challenging the constitutionality of PPACA. After a number of federal district courts and courts of appeals ruled on the issue, the Supreme Court agreed to hear oral arguments in three cases: Nat’l Fed’n of Indep. Bus. v. Sebelius, No. 11-393, Florida v. Dep’t of Health & Human Servs., No. 11-400, and Dep’t of Health & Human Servs. v. Florida, No. 11-398.

C-SPAN chairman and CEO Brian Lamb and Sen. Charles Grassley (R-Iowa) have asked the court to allow camera access to record the proceedings for broadcast to the public. “It is a case which will affect every American’s life, our economy, and will certainly be an issue in the upcoming presidential campaign,” Lamb wrote in a November 15, 2011 letter to Chief Justice John Roberts. Grassley called the case “momentous” and urged the court in his separate letter to let the American people have the opportunity to witness the arguments presented before the court. House Democratic Leader Nancy Pelosi (D-Calif.) said she backed Grassley’s request, according to a November 16 CBS News report. “Openness and transparency are essential to the success of our democracy, and in this historic debate, we must ensure the ability of our citizens to take part,” she said in a statement. Copies of the letters can be found at http://www.grassley.senate.gov/judiciary/upload/Cameras-11-15-11-signed-letter-to-SCOTUS-on-live-coverage-Healthcare.pdf and http://www.rcfp.org/news/documents/20111118-lettertoussupremecourtonaccesstoargumentsinhealthc.pdf.

The court has set aside 5 ½ hours for arguments, substantially longer than the half hour generally allotted for each side to present its case. “Interested citizens would be understandably challenged to adequately follow audio-only coverage of an event of this length with all the justices and various counsel participating,” Lamb wrote. Audio recordings of oral arguments are released on the Friday of the week in which they occurred. Because oral arguments are only heard Mondays, Tuesdays, and Wednesdays, the audio of the health care oral arguments would not be available for same-day coverage or broadcast unless an exception was made.

In a November 18 letter to Chief Justice Roberts, the Reporters Committee for Freedom of the Press (RCFP), on behalf of several media corporations and press advocacy organizations, also asked the court to allow audio and video access to the health care proceedings. “[T]he Court’s current policy of releasing audio recordings of arguments at the end of the week will not adequately satisfy this strong public interest in being timely informed of important developments in a matter of such overwhelming impact on such a widespread scale,” RCFP Executive Director Lucy Dalglish wrote. She also argued the current procedure will “impede journalists’ ability to provide same-day coverage of the arguments to readers, viewers, and listeners” who rely on the media for information about critical public issues. In a November 25 editorial, The Washington Post called for an end to the ban on cameras in the Supreme Court and rejected the court’s arguments that televised proceedings would compromise decorum of the proceedings, encourage outbursts from audience members, and exacerbate security and privacy concerns. “These are not arguments for banning cameras; they are arguments for banning virtually all coverage of the court and the justices. No reasonable person would accept that,” the editorial said.

On Dec. 5, 2011, Grassley and Sen. Richard Durbin (D-Ill.) introduced the Cameras in the Courtroom Act of 2011, S. 1945, which would require the Supreme Court to permit television coverage in the courtroom “unless the Court decides, by a vote of the majority of justices, that doing so would constitute a violation of the due process rights of one or more of the parties before the Court.” A similar bill was approved by a bipartisan majority of the Judiciary Committee during the last congressional session. A companion bill, H.R. 3572, was introduced in the House of Representatives on December 6 by Rep. Gerry Connolly (D-Va.). The House of Representatives bill can be viewed online at http://thomas.loc.gov/cgi-bin/bdquery/z?d112:h.r.3572:, and the Senate bill can be viewed at http://thomas.loc.gov/cgi-bin/bdquery/z?d112:SN01945:.

The Senate Judiciary Committee’s Subcommittee on Administrative Oversight and the Courts held a hearing, “Access to Court: Televising the Supreme Court,” on December 6. Sen. Amy Klobuchar (D-Minn.), who co-sponsored the bill, presided. According to a December 7 story on MinnPost.com, Klobuchar believes the court’s decisions have such a significant impact on the public that the deliberation that leads up to them should be accessible to all Americans. “Although the Supreme Court is open to all Americans in theory, the reality is that access is extremely restricted,” she said at the hearing. “The public has a right to see how the court functions and how it reaches its rulings. … Democracy must be open.” But Congress may not have the power to force the court to allow cameras. Maureen Mahoney, a member of a Washington-based Supreme Court and appellate legal practice, told the committee the legislation could face serious constitutional challenges before taking effect, the MinnPost story said. “It would, after all, be an effort to strip the court of its historic authority to decide how to control proceedings in its own chamber,” she said during hearing testimony, the story said. Thomas Goldstein, an attorney who runs SCOTUS Blog, said during his testimony that forcing a constitutional challenge on the matter is probably not necessary. “They are headed in this direction on their own. … They have asked for some deference in the process of reaching this conclusion,” he said at the hearing. “The trajectory is that it is inevitable that television will be in the Supreme Court, and I would not provoke the constitutional controversy of requiring them to do it.” In an interview with MinnPost, Silha Professor of Media Ethics and Law and Silha Center Director Jane Kirtley said, “I believe that time is on the side of getting cameras in there.” But, “will this force the Supreme Court to put cameras there? No, it will not.” MinnPost’s full story about the hearing can be viewed at http://www.minnpost.com/devinhenry/2011/12/07/33633/klobuchar_looks_to_put_cameras_in_the_supreme_court.

If cameras are allowed, it will be a first in Supreme Court history. Some justices are leery of the idea of audio and video coverage of the court’s proceedings. According to an October 6 Associated Press (AP) story, Justices Antonin Scalia and Stephen Breyer expressed their concerns about cameras in the courtroom during a Senate Judiciary Committee hearing on October 5. Scalia said during the hearing that people would only see short clips of the proceedings, which he said would likely be taken out of context. However, Breyer said that although he is still hesitant to allow cameras, he is more open to them than he has been in the past. In an October 2 column in The New York Times, former appellate judge and solicitor general and current Baylor University President Kenneth Starr, wrote that Justice Anthony Kennedy’s fear that televising oral arguments would motivate justices to work in TV sound bites seems groundless. “The idea that cameras would transform the court into ‘Judge Judy’ is ludicrous,” Starr wrote.

Justice Elena Kagan has been the most supportive of allowing broadcast coverage of the Supreme Court. “[I]f cameras were in the courtroom, the American public would see an amazing and extraordinary event,” she said during the 2009 9th Circuit Judicial Conference. In a November 14 article in The National Law Journal (NLJ) titled “Let the cameras roll,” NLJ Supreme Court correspondent Tony Mauro wrote that Justice Sonia Sotomayor, who was exposed to cameras in the courtroom as a judge on the U.S. Court of Appeals for the 2nd Circuit, “appears to be a fan” of the idea. But even with some justices warming up to the idea, Adam Liptak, a columnist and Supreme Court correspondent of The New York Times, wrote that the request for broadcast coverage is “doomed,” though “it is hard to say why.” Liptak points to the Supreme Courts of Canada and the United Kingdom, which both allow cameras. “What the public sees in those countries, and what it would see here, is something not always prominent in the elected branches of our government: able public servants with a complete mastery of difficult materials grappling seriously with matters surpassing consequence. It probably inspires confidence. It certainly dispels ignorance,” he wrote. Liptak argued the reasons for the ban on cameras are rooted in paternalism or self-interest, with some justices fearing the American public will not understand the proceedings, while other justices worry that “additional public scrutiny would alter the behavior of lawyers and justices for the worst.”

At a minimum, Liptak urged the court to consider compromising by considering accommodating more than the roughly 50 public spectators that the courtroom holds by arranging for a closed-circuit transmission to an overflow room or sending similar transmissions to other courthouses. Justice Breyer discussed this idea in his dissent last year in Hollingsworth v. Perry, 130 S.Ct. 705 (2010), on application for stay of the broadcast of a federal trial. The lawsuit involved an action challenging the constitutionality of Proposition 8, a California ballot initiative that amended the constitution by adding a section defining marriages as only between a man and a woman. According to the Supreme Court’s opinion, the U.S. District Court for the Northern District of California “issued an order permitting the trial to broadcast live via streaming audio and video to a number of federal courthouses around the country.” The Supreme Court held in a per curiam opinion that the district court’s amendment of its local rules to broadcast this trial did not comply with federal law and stayed the order. Justice Breyer disagreed with the court’s decision. “I can find no basis for the Court’s conclusion that, were the transmissions to other courtrooms to take place, the applicants would suffer irreparable harm. Certainly there is no evidence that such harm could arise in this nonjury civil case from the simple fact of transmission itself,” he wrote. (For more on the court’s decision in Hollingsworth v. Perry, see “Federal and State Courts Consider Proposals to Permit Cameras in Trial Proceedings” in the Fall 2010 issue of the Silha Bulletin.)

If full camera and audio access is denied for the health care oral arguments, the RCFP and its Media Coalition have asked that the court make live simultaneous audio available or, at the very least, make the audio of the proceedings available immediately after the hearing. The court released the audio of certain high-profile oral arguments to the media shortly after they occurred in Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000) and Bush v. Gore, 531 U.S. 98 (2000), the cases that arose after the 2000 presidential elections, according to Mauro’s NLJ story. The court turned down requests to have those proceedings broadcast live.

Federal Cameras in the Courtroom Pilot Sees Slow Start

On Sept. 14, 2010, the Judicial Conference of the United States, the national policy-making body for U.S. federal courts, approved a pilot project to permit cameras in federal district courtrooms and to evaluate the impact of the public release of footage from some civil proceedings. According to a press release issued the same day, the pilot will be national in scope and will last up to three years. Fourteen federal trial courts were selected to take part in the pilot, which launched on July 18, 2011. According to a June 8 Administrative Office of the U.S. Courts press release, the participating courts are: Middle District of Alabama, Northern District of California, Southern District of Florida, District of Guam, Northern District of Illinois, Southern District of Iowa, District of Kansas, District of Massachusetts, Eastern District of Missouri, District of Nebraska, Northern District of Ohio, Southern District of Ohio, Western District of Tennessee, and Western District of Washington. Participation in the pilot is left to the judge’s discretion. Under the pilot program, courts may amend their local rules if necessary to provide exceptions for judges participating in the program.

More than 100 U.S. District Court judges, who hold mixed opinions about the use of cameras in the courtroom, will be participating, the press release said. In order for a proceeding to be recorded, approval must be given by the presiding judge and the parties must also consent. Judges have the discretion to halt recording at any time and have the right to review the recording before making it available to the public. Any recordings the court decides to make available after review will be posted on www.uscourts.gov and on local participating websites.

This newest experiment is the second such test in federal courts. The first pilot project occurred in the early 1990s. The U.S. Court of Appeals for the 2nd and 9th Circuits also allow broadcast coverage. (For more on the pilot program, see “Federal and State Courts Consider Proposals to Permit Cameras in Trial Proceedings” in the Fall 2010 issue of the Silha Bulletin and for information on legislative efforts to allow cameras in U.S. courts, see “Court Access: Federal Law would Allow Cameras in U.S. Courts” in the Fall 2007 issue of the Silha Bulletin.)

The three-year experiment was treated skeptically from the outset. In a June 13 First Amendment Center article, journalist Tony Mauro wrote that the main hurdle to overcome is the rule that both parties must consent to recording. C-SPAN general counsel Bruce Collins also criticized the rules. “The judges are showing no courage in this, compared to the states,” Collins told Mauro. “We ought to be able to cover court proceedings the way we cover congressional hearings. What are they afraid of?” But Thomas Burke, a partner and co-chair of the Media Law Practice at Seattle-based law firm Davis Wright Tremaine, said in an interview with Mauro that he was not surprised by the “cautious approach” reflected in the guidelines. “The federal courts are never going to go from a crawl to a flat-out run” on this issue, said Burke, who has also represented media clients in disputes over camera access to trials.

According to an October 17 Citizen Media Law Project report, the first recording of a proceeding produced under the pilot program, a preliminary injunction hearing in Gauck v. Karamian, Civil No. 11-2346 (W.D. Tenn. filed May 4, 2011), was posted in July. As of December, five of the 14 courts authorized to record civil proceedings have posted recordings online. Although the Citizen Media Law Project report touted postings of the first six released recordings as a sign the experiment was “on a roll,” it added, “[O]nly time will tell if this experiment finally leads to federal courts being open to regular camera coverage, or if it will be just another short period of openness before cameras are once again left outside the courtroom doors.”

The U.S. District Court for the District of Massachusetts began its participation in the pilot study on October 17. Chief U.S. District Court Judge Mark Wolf told the AP for an October 6 story that cameras will turn court proceedings into a “media circus” like the 1995 O.J. Simpson trial. Nevertheless, Wolf told the AP he favors camera access. “It’s a way that a public holds government officials and attorneys accountable,” he said. In an October 28 opinion piece in The Boston Globe, Hiller B. Zobel, a retired Associate Justice of the Superior Court of Massachusetts, called the federal pilot study a “severely hobbled baby step. Because they are rigorously restricting the process, the judges are hardly opening their daily work to outside scrutiny. This is not a victory for public-access advocates, still less a First Amendment coup. Indeed, the federal courts are so limiting the cameras’ presence that the happy announcement seems more like what the witches did to Macbeth: Keeps the word of promise to the ear, and breaks it to the hope,” he wrote. The most disturbing part of the pilot, Zobel said, is the provision that allows the court to review the recordings before they are broadcast. “The federal plan … is fundamentally flawed by the excessive control parties and judges retain, even in cases involving significant public attention,” he wrote. Zobel conceded that news media often use courtroom video in ways that annoy and distress the parties involved with cases, but argued it is not a judge’s duty to “dictate, restrict, or even improve reports of the proceedings,” and that judges should only be concerned with ensuring a fair trial. “Because courtroom cameras do not obstruct justice, the federal courts would do well to loosen their experimental guidelines, follow the state example, and leave the news business to its proper practitioners,” he wrote.

In Tony Mauro’s NLJ article about cameras in the courtroom, he predicted the Supreme Court will probably wait for results from the federal pilot program before making any decisions about cameras in the high court. “We wait, yet again, for the results of another three-year experiment with broadcast of a limited category of civil proceedings in the lower federal courts,” he wrote. Mauro also cited Justice Roberts’ June remarks, “I’ll be very interested to see what the results of the pilot program look like. I’m sure we’ll take that into account.” Justice Roberts then reminded the audience of the court’s deliberate nature, Mauro wrote. But, he concluded, “Even a tortoise crosses the finish line eventually.”

Court Orders Closed-Circuit TV Broadcasts of Guantanamo Proceedings

After years of Pentagon secrecy, The Miami Herald reported on November 6 that Pentagon prosecutors had filed a sealed motion with the Military Commissions Trial Judiciary in Guantanamo Bay, Cuba that “apparently proposes” allowing the public for the first time to watch military proceedings against an accused al Qaida terrorist, Abd al-Rahim al-Nashiri. Nashiri is accused of leading the 2000 bombing of the U.S.S. Cole, which killed 17 Navy sailors and injured hundreds more. The filing was secret because intelligence experts from the Defense Department and other U.S. agencies had 15 business days to remove classified information.

The November 7 order, made public on November 8, said the Military Commissions Tribunal Judiciary found that “spectator access, including access by the media, family members of victims, surviving victims, and the general public is limited by the small size of the gallery” and is further limited by logistical problems and security limitations. Citing a public interest in the Commission proceedings, it ordered that the open Commission proceedings be contemporaneously transmitted to closed circuit television at two locations. The order, released late in the day, gave potential viewers little opportunity to make arrangements to watch the November 9 arraignment hearing for Nashiri, who is accused of murder in violation of laws of war and conspiracy to commit acts of terrorism. The U.S. government is seeking the death penalty. According to the order, a broadcast for the media, the Office of the Chief Defense Counsel, Office of the Chief Prosecutor, Office of Convening Authority and general public would stream to Fort Meade, Md.; and one for surviving victims and victims’ family members would stream to Naval Station Norfolk. The order applied only to the November 9 hearing. The remote telecasts were delayed by 40 seconds to allow a courtroom censor to use a white noise machine to block sensitive information disclosed during the hearing, The Miami Herald report said.

The broadcast of the November 9 hearings is the first time military proceedings were transmitted in the United States. The media viewing center was established at the request of news organizations, The Miami Herald story said. According to a November 8 Reuters report, “the Guantanamo tribunals for suspected terrorists have been widely criticized as secretive and rigged to convict.” Brig. Gen. Mark Martins, Guantanamo’s new chief prosecutor, said the military was addressing some of those concerns by making Guantanamo documents and transcripts more readily available and through these types of broadcasts. “The Supreme Court has said that the people of an open society do not demand infallibility of their institutions, but it is difficult for them to accept what they cannot observe,” Martins told journalists at Guantanamo. “Transparency is good, democracy requires it.” Media organizations sought greater access by proposing that C-SPAN or other organizations be allowed to broadcast the proceedings. But Dave Oten, a Pentagon spokesman, told The Miami Herald that “broadcast beyond closed-circuit viewing is forbidden under ‘federal court rules’ that ban recording of criminal proceedings.” If the proceedings were broadcast, Oten said there is the potential someone could record them.

According to a September 30 Reporters Committee for Freedom of the Press (RCFP) report, the Pentagon launched a new website that aims to provide the public with information about the military proceedings. The report said the most important feature of the website for journalists is “a page that allows visitors to download copies of the court filings from each military commission’s cases against suspected terrorists.” The story characterized the Nashiri case as “the first critical test for the [Obama] administration’s continued pledges to increase transparency in the controversial offshore commissions after a rocky past with reporters.”

Until now, the Pentagon restricted access to Guantanamo trials to three types of observers: journalists under military escort who had approval to travel to Guantanamo, legal observers under escort by the prison camps’ Distinguished Visitors unit, and five citizens with guests invited by the prosecution’s victims’ right advocate that are chosen by lottery, The Miami Herald report said. The citizens in attendance are generally victims or family members of victims.

A trial date for Nashiri has not yet been set.

Minnesota Supreme Court Advisory Committee Releases Rules Recommendations for Camera Pilot Project

By a March 11, 2011 order, the Minnesota Supreme Court established a two-year pilot project on video and audio recording in civil cases that began July 1, 2011. The order directed the pilot’s advisory committee to work with the media organizations who had petitioned for the pilot program to identify media coordinators who will facilitate interactions between the courts and the media and to report to the court on any needed rule changes. On Sept. 28, 2011, the advisory committee released its recommendations for the implementation and its proposed rule changes.

The seeds of the pilot program date back to February 2009, when the Minnesota Supreme Court adopted the General Rules of Practice Committee’s recommendation to retain the current rule governing cameras at the trial level. That rule, Minnesota General Rule of Practice 4, imposes a presumptive ban on cameras which can be overcome by an order of the trial judge and consent of all parties in the case. However, the Supreme Court instructed the committee to “design a pilot program that will include a study of the impact of televised proceedings on victims and witnesses.” (For more on the development of the pilot project see and “Federal and State Courts Consider Proposals to Permit Cameras in Trial Proceedings” in the Fall 2010 issue of the Silha Bulletin and “Minnesota High Court Approves Cameras-in-Court Pilot Program” in the Winter 2009 Silha Bulletin.)

The committee recommended that Minnesota General Rule of Practice 4.03 be amended to include the procedures the media must follow to gain camera access to the courtroom under the pilot program. The rule will now require the media to provide written notice of their intent to cover district court proceedings by audio or video to the judge, all attorneys involved, and any parties appearing without attorney representation as far in advance as possible, and at least 10 days before the hearing or trial begins. A judge is free to waive this requirement. The rule will also require the media to notify their media coordinator of their request. Media coordinators will be responsible for collecting basic information about the case and the camera usage, which will be used to evaluate the pilot program upon its completion.

The rule also provides guidelines for parties to object. According to the amended rule, “the party shall provide written notice of the party’s objections to the presiding judge” at least three days before the trial or hearing begins where the media has given at least 10 days’ notice. The judge will have “discretion to limit, terminate, or temporarily suspend audio or video coverage of an entire case or portions of a case at any time.” Witnesses may also object to the audio or video coverage at or before the hearing or trial. The amended rule states that no ruling of a trial judge related to audio or video coverage of proceedings will be appealable by a party until the trial has been completed.

The committee also added a section to Rule 4.03 that establishes the responsibilities of the media coordinators. Requirements include compiling basic information about the cases involved in the pilot; notifying the state Court’s Information Office of all requests for audio or video coverage; explaining to persons requesting access the local practices, procedures, and logistical details of the court they will be covering; resolving all issues related to pooling of cameras and microphones; and making available surveys to the participants of the pilot project. Minnesota media attorney Mark Anfinson, who is in charge of recruiting media coordinators, will serve as the media coordinator for the 1st, 2nd, 4th, 9th, and 10th Minnesota Judicial Districts until other permanent coordinators can be secured. Jay Furst, managing editor of the Rochester (Minn.) Post-Bulletin, will serve in the 3rd District; Joe Spear, editor of the Mankato (Minn.) Free Press, will serve in the 5th District; Steve Goodspeed, news director of broadcast stations WDIO-Duluth and WIRT-Hibbing, will serve in the 6th District; and David Unze, a St. Cloud (Minn.) Times reporter, will serve in the 7th District.

The committee recommended that participants be asked to complete a confidential survey about the pilot program no later than 18 months into the project. According to the recommendations, the amended rule went into immediate effect, subject to review by the Minnesota Supreme Court. The committee offered a comment period for interested parties to provide statements in support or in opposition from October 14 to November 14. The court will consider the amendments along with reviewing comments on the proposal.

– Holly Miller
Silha Bulletin Editor