Federal and State Courts Consider Proposals to Permit Cameras in Trial Proceedings

Judges from the U.S. Supreme Court to Minnesota remain divided over issue of access

Parts of both the federal and state judicial branches are considering expanding video access to courtrooms, but lawyers and jurists are split on the merits of the trend. One recent case--Perry v. Schwarzenegger--brought the issue to the U.S. Supreme Court, which stayed a district court judge's order to allow video of the trial to be posted on the Internet. For the time being, a majority of Supreme Court justices who have spoken publicly on the issue oppose allowing cameras in its own courtroom and others.

Federal Judicial Conference Pilot Program

The Judicial Conference of the United States announced Sept. 14, 2010 that it would introduce a limited pilot program in which video cameras would be allowed to record proceedings in some civil lawsuits.

How many federal courts will be involved in the program, whether the program will be permissive or mandatory for courts, and when the program will begin are still unclear. The Judicial Conference said those details will be determined by the Conference's Committee on Court Administration and Case Management, according to a September 14 press release. The program will be "national in scope," and "will last up to three years" once it begins, the release said.

David Sentelle, Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit and Chairman of the Conference's executive committee, told The Associated Press (AP) on September 15 that certain parameters had already been agreed upon. Recording the faces of witnesses and jurors will be prohibited, and all parties to the case must consent to the recording, Sentelle said. Recording of criminal cases would remain prohibited; Federal Rule of Criminal Procedure 53 already bans any electronic media coverage of criminal proceedings. In a departure from previous experiments with cameras in courtrooms, under the proposal the courts will furnish and operate the cameras, as opposed to news media organizations.

The Judicial Conference of the United States was established by Congress in 1922 to serve as the "principal policymaking body concerned with the administration of U.S. Courts," according to the U.S. Courts website. Under 28 U.S.C. § 2701 et seq., its determinations and recommendations with respect to administration are binding on all federal courts except the Supreme Court, which sets its own administrative procedures.

The pilot program is not the federal courts' first foray into video coverage of judicial proceedings. In 1990, the Judicial Conference instituted a program which allowed cameras into selected federal district and appellate courtrooms on an experimental basis. Unlike the 2010 proposal, the court did not operate the cameras itself, but allowed media outlets to bring their own cameras into the courtroom. In 1994, the Conference reinstituted its ban on cameras, largely due to reaction to coverage of the O.J. Simpson murder trial in California State Court.

Under new rules in 1996, the Conference allowed cameras to record proceedings only in U.S. circuit courts of appeal, leaving the decision to individual circuits whether to allow cameras or not. According to the Judicial Conference, only the 2nd and 9th U.S. Circuit Courts of Appeal currently allow news media cameras to cover oral arguments in their courtrooms. According to a September 15 post on the Politico blog Under the Radar, media outlets rarely do so.

Minnesota Pilot Program

On Oct. 12, 2010, an advisory panel of judges and lawyers approved a pilot program to allow cameras into Minnesota state trial courts on a limited basis, pending approval by the Minnesota Supreme Court.

The seeds of the proposed 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 2009 order see "Minnesota High Court Approves Cameras-in-Court Pilot Program" in the Winter 2009 Silha Bulletin.

A majority of the committee recommended implementing the pilot program along guidelines recommended by scholars at the University of Minnesota, including Jane Kirtley, Silha Professor of Media Ethics and Law and Director of the Silha Center. The proposed pilot program would consist of an 18-month study of 500 randomly selected trial court cases, divided into "camera" and "no camera" cases. In order to address concerns that the Supreme Court expressed about there being "no empirical evidence addressing whether the prospect of televised proceedings has a chilling impact on victims and witnesses," the two groups of cases would be analyzed to assess whether victims' or witnesses' testimony was "chilled" as a result of the cameras' presence. According to the majority, the plan was proposed because members of the majority "believe this extensive study is necessary to make scientifically valid conclusions about the impacts cameras may have on participants and users of the judicial system."

The decision to adopt the University of Minnesota-recommended program was narrowly adopted by a 7 to 6 vote. A minority of the committee recommended a "substantially scaled-down research study." The minority's approach would involve "informal surveys of participants in proceedings where the media asked for camera coverage." The surveys would include "anecdotal information from interested groups during the study period," and the committee would elicit comprehensive reports on the program after the study was completed. The minority plan proposed a 12-month timeframe for the first phase of the program. Although the minority of the committee acknowledged that this study would lack the scientific validity of the majority's approach, it believed its approach would "be inexpensive, could be set up more rapidly, and would still address the Court's concerns about the impacts of cameras." The committee did not provide specific figures as to the cost of the minority's proposed program.

In its 2009 order, the Court cautioned that because of economic hard times, the pilot program would have to be revenue-neutral for the Minnesota Judicial Branch. The committee's recommendation predicted that the majority's proposed pilot program would cost "at least" $750,000. Whichever approach the Supreme Court opts to implement, the committee noted that although some cost for the program would probably have to be borne by the Judicial Branch, "direct costs may be covered by independent funds." The committee recommended that the Court "permit a group of citizens to raise the available funds from outside the courts" and that no matter which approach is implemented, funding should be completely secured before the program goes into effect.

The Court invited public comment on the proposal. Comments were due December 17.

California Proposal

The California Judicial Conference released its proposals for media access to state courtrooms in September 2010. The proposal, called "A Balancing Act: Accommodating the Needs of the Bench, Bar, and Media in the Pursuit of Justice," is an attempt to reconcile judicial interests in due process and confidentiality with the public's interest in transparency and openness.

The proposal recommends amending California Rule of Court 1.150, "to set forth an explicit presumption that cameras and other recording devices are allowed in the courtroom unless sufficient reasons exist to prohibit or limit their use." The current version of Rule 1.150, in place since 1997, establishes a presumption against "photographing, recording, or broadcasting of court proceedings by the media using television, radio, photographic, or recording equipment," allowing such devices only "on written order of the judge." The rule currently does not create a presumption against a judge granting such an order, however.

The California proposal was not limited to photographing or recording proceedings. It also recommends, among other things, adoption of uniform statewide rules for gag orders and orders sealing records, and education of judges on how to clearly communicate the substance of courtroom proceedings to the media.

The committee that drafted the proposal was appointed by California Supreme Court Chief Justice Ronald George, and is comprised of judges from the trial and appellate levels, journalists, First Amendment attorneys and academics. A final version of the plan will be presented to the full Judicial Council in Spring 2011.

Cameras Question Reaches U.S. Supreme Court in Perry v. Schwarzenegger

The controversial case that declared California's gay marriage referendum, Proposition 8, unconstitutional, Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010), is also significant because of a dispute among the presiding judge, an appellate court, and the U.S. Supreme Court over whether cameras should be allowed to cover the trial in real time. Although the trial judge and a U.S. circuit judge agreed shortly before the trial to allow live video transmission of the proceedings, as well as daily uploads of video to the website YouTube, the U.S. Supreme Court reversed that plan, citing how quickly it was drawn up and a possibility that witnesses might refuse to testify.

In October 2009, a month after the challenge to Proposition 8 was filed, 9th Circuit U.S. Court of Appeals Chief Judge Alex Kozinski appointed a three-judge committee to evaluate the possibility of modifying the 9th Circuit Local Rule 77-3. Local Rule 77-3 permits video recordings of appellate proceedings in the circuit court, but not in district courts where trials are held. The committee recommended modifying the rule to create a pilot program which would allow video cameras in trial courts. Judge Vaughn Walker, who presided over Perry, was a member of the committee. According to the U.S. Supreme Court, Walker had the then-impending Perry case "very much in mind at the time [the committee recommended the pilot program] because it had come to prominence then and was thought to be an ideal candidate." Hollingsworth v. Perry, 130 S. Ct. 705 (2010)

Ultimately the committee's recommendation was adopted by the 9th Circuit Judicial Council, which issued a press release announcing the pilot program on Dec. 17, 2009. Under the program, participating cases would be chosen by the chief judge of the district court in consultation with the chief circuit judge. In the case of Perry v. Schwarzenegger, the chief judge of the district was Walker.

On Jan. 6, 2010, Walker issued an order under which Perry would be transmitted live on closed-circuit televisions in federal courthouses in other cities around the United States, and posted on YouTube at the end of each day of the trial. Kozinski approved Walker's order on January 8. Five locations were selected for courthouse broadcasts: Portland, Ore.; San Francisco; Seattle; Pasadena; and Brooklyn, New York. Opponents of cameras covering Perry filed an application for a stay of the order to the U.S. Supreme Court on January 9.

On January 13, the Supreme Court voted 5 to 4 to reverse the order. In the per curiam majority opinion, the Court first noted that the comment period on the change of Rule 77-3 was, at most, five days, and under 28 U.S.C. § 2071(b), any changes to judicial rules of the federal courts must be accompanied by a 30-day comment period. Judges Walker and Kozinski, the Court noted, invoked the "immediate need" exception. Under § 2701(e), "if the prescribing court determines that there is an immediate need for a rule, such court may proceed ... without public notice and opportunity for comment," as long as the judge opens the rule for comment after the need passes. The Supreme Court observed that when the pilot program was announced and implemented, no reason for its implementation was given by the district or appeals court.

The majority also found that "irreparable" harm would occur if transmission of Perry occurred. Specifically, the Court expressed concern that witnesses would be less forthcoming. "The trial will involve various witnesses, including members of same-sex couples; academics ... and those who participated in the campaign leading to the adoption of Proposition 8. This Court has recognized that witness testimony may be chilled if broadcast [and] [s]ome ... witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment."

The Supreme Court admonished Walker for "attempting to change [the] rules at the eleventh hour" to broadcast a high profile case, and stayed the order allowing the trial to be broadcast.

Justice Stephen Breyer dissented from the stay of Walker's order. Justices Stevens, Ginsburg, and Sotomayor joined his dissent. Breyer wrote that five days was more than enough time for the parties in Perry to object to the rule change, and that "there is no evidence that [irreparable] harm could arise in this nonjury civil case from the simple fact of transmission itself," noting that 42 states currently allow recording and broadcast of nonjury civil trials. Breyer also argued that, on balance, the interest of the public in transparency in the courtroom outweighs any harm or chilling effect with respect to witnesses, observing that no specific witnesses in Perry came forward to say their speech would be chilled.

On November 15, the 9th Circuit U.S. Circuit Court of Appeals issued an order allowing the December 6 oral arguments on Proposition 8's constitutionality to be broadcast by C-SPAN. The 9th Circuit currently allows cameras in courtrooms. Because the oral argument is an appeal of Walker's August ruling that the measure was unconstitutional, the proceedings will include presentations by lawyers, but not witness testimony.

Public Statements of Supreme Court Justices on the Cameras Issue

The Supreme Court is not immune from the cameras in the courtroom debate. Some justices on the high court stand firmly behind broadcasting the Court's proceedings, while others oppose the idea.

Justices Samuel Alito and Antonin Scalia have both publicly expressed views consistent with their ruling in Perry. Scalia has said that the issue of cameras in courtrooms is one issue on which he has changed his mind over the course of his 24-year tenure on the Court. Speaking to an audience at Hastings Law School in September 2010, Scalia said that when he joined the court he was in favor of cameras, but now thinks they should be excluded. According to the San Francisco Chronicle on September 18, Scalia said "If I really thought it would educate the American people, I would remain in favor of it," But instead of educational gavel-to-gavel coverage, he said, most people would see "30-second snippets" on the news that would "distort the public perception of the court."

Alito expressed similar sentiments in a talk at Drake University, telling a group of law students on October 1 that he is concerned about the public's potential reaction to oral arguments, which are generally heated, and during which judges interrupt attorneys frequently. "What would ordinary viewers think?" he asked, according to The Associated Press (AP). Alito added that because most cases are extensively briefed in advance of oral arguments, most viewers would have difficulty following the proceedings. He predicted that, were Supreme Court proceedings televised, "viewership would reach historic lows." Alito also speculated that attorneys' arguments would be affected. "Whenever an event is televised and the participants think any sort of substantial audience is watching, their behavior is changed," he said.

Justice Anthony Kennedy, recognized as the current swing vote on the Court, told the Senate Judiciary Committee in 2007 that cameras should not be introduced because the justices themselves would act differently in their presence. "Please don't introduce into the dynamic that I have with my colleagues, the insidious temptation to think that one of my colleagues is trying to get a soundbite for the television," Kennedy said.

Justice Breyer's views differ from those of Alito, Kennedy, and Scalia. Testifying before the House Appropriations Subcommittee on Financial Services and General Services in April 2010, Breyer said that maintaining transparency in the federal courts was sufficiently important to justify cameras. "If you bring cameras into the oral arguments, there's a big plus for the court and for the public. I think they'll see that we take our job seriously, the lawyers are well-prepared, the judges are well-prepared, and are trying to think out difficult problems. And for the public to see that, I think, would be a plus. So why not do it?" Breyer added that the discussion over cameras is not one that occurs in a vacuum. "The Canadians [have cameras in their Supreme Court]," Breyer said, "And it's worked out all right for them."

The two newest Justices--Elena Kagan and Sonia Sotomayor--have expressed support for allowing cameras in the Supreme Court. In 2009, prior to her confirmation hearing, at which she also said she supported televising Supreme Court proceedings, Kagan told the 9th Circuit Judicial Conference she was in favor of the practice. "I think if you put cameras in the courtroom, people would say, 'wow,'" Kagan said. "They would see their government working at a really high level."

Sotomayor also expressed support in her confirmation hearing in 2009. "I have had positive experiences with cameras," Sotomayor said. "When I have been asked to join experiments of using cameras in the courtroom, I have participated. I have volunteered." For more Bulletin coverage of Kagan and Sotomayor's views on cameras, see "Kagan Confirmed; Provides Few Hints on Media Law Views" in the Summer 2010 issue and "Critics, Commentators, and Cases Offer Few Glimpses at How Sotomayor can be Expected to Rule on Media Law" in the Summer 2009 issue.

Justice Ruth Bader Ginsburg once expressed strong support for recording Supreme Court proceedings, but her support may have eroded over the years. During her 1993 confirmation hearing, Ginsburg told the Senate Judiciary Committee that she thought cameras in the courtroom would be "good for the public." However, in 2005, speaking before the American Bar Association's Rule of Law Symposium panel, Ginsburg expressed trepidation about the practice, suggesting that cameras at the appellate level could have negative repercussions at the trial level. "I think what bothers many people, at least me, on the other side, is that if [cameras] were in the Supreme Court, I think it would become a symbol for every court," she said, "and therefore it would be in every criminal trial in the country. And when I start thinking about witnesses, I don't want them thinking how they look to their neighbors."

In August 2010, while speaking to the Colorado Judicial Conference, Ginsburg declined to answer a question about her current position on cameras in the Supreme Court; instead, Ginsburg "talked about former justices who opposed cameras," according to an August 28 report from the AP.

- GEOFF PIPOLY
SILHA RESEARCH ASSISTANT

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