With the Supreme Court scheduled to hold a lengthy and historic set of hearings on the constitutionality of the new federal health care law, the C-SPAN cable TV network — trying to reopen what seems to be a settled issue — asked the Court to allow it to cover those arguments live. It is a request that seems doomed, but it does raise a constitutional question: Is the Court obliged to let cameras into its proceedings? The answer is no. The Court could choose to do it, but it need not and, chances are, it will not.
The Court made it clear more than three decades ago that the Constitution’s First Amendment guarantees the right of the public — and the press — to observe public trials in courtrooms, in both the federal and state systems. It did so in the case of Richmond Newspapers v. Virginia (1980). But the Court has never extended that constitutional concept of openness to TV cameras, or even to sound tape-recorders. Its own hearings have never been opened to TV coverage of any sort.
As a matter of grace, the Court makes an audiotape of its hearings, and releases those, but not on a same-day basis. (They come out at the end of each argument week, on Fridays.)
As soon as the Court had announced that it would hear 5 1/2 hours of oral argument on the health care cases (a length unprecedented in modern times), C-SPAN’s chairman and CEO, Brian Lamb, promptly asked permission to broadcast those hearings on a live feed that his network would share with all others who wanted to carry it.
Lamb did not say anything about a constitutional right of broadcast access, because the TV industry in general accepts that there is no such right. In a 1981 decision, in the case of Chandler v. Florida, the Court said that the constitutional protection of the rights of criminal suspects does not bar states from allowing TV coverage of their trials. But it did not go on to say that states had any constitutional obligation to do so.
That ruling was designed, in part, to put aside the assumption that the Court had barred such broadcast coverage 16 years earlier, when it overturned a swindler’s conviction because of the unruly and intrusive behavior of TV and still photo crews in the courtroom during the trial (Estes v. Texas, 1965). The later Chandler decision said it was up to the states to regulate coverage of their courtrooms.
For years, when Pennsylvania’s Arlen Specter was serving in the U.S. Senate, he regularly introduced bills that, he assumed, would force the Supreme Court to allow TV coverage of its public proceedings. The bills went nowhere, and, had they been enacted, it is fair speculation that the Court would not have obeyed them, since it — like Congress — operates on the assumption that it controls its own proceedings.
The Court and its members have never explained, in an official way, why they do not want live, or even delayed, TV broadcasts of their hearings on cases. But individual Justices have said they don’t trust the technology not to be intrusive. Now-retired Justice David H. Souter used to say regularly that cameras would be allowed into the Court “over my dead body.” Some of today’s Justices, like Stephen G. Breyer, have said they wouldn’t mind. But it is generally assumed that it would take at least a majority — five votes — to open up to TV coverage. Some insiders have said it would have to be unanimous.
Five or nine votes: either way, there does not appear to be enough to do that, yet.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.