Constitution Check: Does the First Amendment require live broadcasts of the Supreme Court?

Lyle Denniston looks at the debate over televising Supreme Court proceedings and how a recent incident at the Court may have highlighted a potential problem with live broadcasts.

350px-Supreme_Court_US_2010THE STATEMENT AT ISSUE:

“The Supreme Court has long supported the First Amendment presumption that court proceedings should be open to the public….While [past decisions] involve the right to attend court proceedings, the rationales hold true for live broadcasts of oral arguments.  Video would provide an important civic benefit, as it would be an incredible platform for legal education and future students of history, rhetoric and political science.”

 – Excerpt from a letter to Chief Justice John G. Roberts, Jr., on March 9, from a group of media, court reform and open government advocacy organizations, urging the Supreme Court to allow the recording and broadcast of its courtroom proceedings.

WE CHECKED THE CONSTITUTION, AND…

A Supreme Court Justice once smilingly told a gathering of journalists that their right to attend and report on court proceedings “wasn’t brought by the stork; the court gave you that right.”  And the Court itself, in a famous passage in a 1947 decision (Craig v. Harney), said: “A trial is a public event.  What transpires in the courtroom is public property.”

In 1980, in the case of Richmond Newspapers v. Virginia, the Justices declared for the first time that the First Amendment did guarantee at least a qualified right of the public and the press to attend and comment on criminal trials.  And, a year later, in the case of Chandler v. Florida, the Court ruled that states could experiment with television coverage of criminal trials.  Those developments, and later rulings expanding the right of access to court proceedings, have long encouraged journalists to believe that, some day, that right would extend to cameras and microphones.

But, notably, the Supreme Court did not say in 1981 – and has not said since then – that the First Amendment right of access to courtrooms includes a right to bring in cameras and other recording devices for live or delayed broadcast.  That remains the state of First Amendment law as it applies to cameras in the courtroom.

While organizations allied in a group called “the Coalition for Court Transparency” have now made a First Amendment pitch to the Supreme Court (in a letter, not a lawsuit) to open that tribunal’s proceedings to electronic coverage, they basically were making an appeal to what they hoped would be the court’s sympathetic response to a polite call for openness.  Within the current Supreme Court, as far as the public knows, it is a matter of a policy choice, not a matter of what the Constitution requires or does not require, that cameras and audio equipment are not allowed in the courtroom for hearings or announcement of decisions.

From time to time, there has been talk in Congress about passing a law to require the Court to let in electronic devices, but that idea stirs up a very serious question about separation-of-powers doctrine, and, even if it were passed, might not really be enforceable.

There is always the possibility, of course, of filing a First Amendment lawsuit against the Court, hoping, perhaps, that some lower courts would be bold enough to declare that there is  First Amendment right of electronic access and thus to rule that the Court has been violating that right by its policy

But the problem with following the legal route is that the Supreme Court is where the constitutional doctrine of access to the courts is developed, and the Court has laid down a two-part test – and a plea to open the court to cameras and microphones might well fail at least one of those two parts.

Since its 1980 decision finding a right of public access to courts under the First Amendment, the Court has issued a series of rulings applying the two-part approach, asking these questions: Have the proceedings to which access is sought been traditionally open to the public (and the press)?  And, would providing public access contribute to the functioning of that kind of court proceeding?

On the first part, one might try to argue that the Court for decades has had a tradition of openness, so that should satisfy that requirement.  But the Court has not allowed electronic access to its official proceedings, and that policy of exclusion has never been interrupted and it still prevails.  It may be, as a fact, that all 50 state supreme courts do allow some broadcasting of their formal proceedings, but the Supreme Court itself never has.  Thus, a challenge to the current policy might never get past that first barrier.

If asked, the Justices now on the Supreme Court would probably concede, readily, that there could be educational value in televising live or delayed broadcasts of their proceedings.  But there does not appear at this time to be a majority that would agree that such broadcasting would, in reality, contribute to the functioning of the court as an institution that sees itself carrying on a detached, non-political process of deciding legal controversies.  So there is a risk that the second part of the test might also work against electronic access.

Outsiders do not know exactly what the nine current members of the court are thinking about the electronic access question.  But they have recently had what at least some of them considered to be an unfortunate experience with that, and it probably made an impression.  A protester stood up in the back of the courtroom during a hearing and made a brief speech about the supposed vices of the Court’s ruling four years ago allowing corporations to spend freely in federal elections, and a companion of the protester had sneaked in a tiny camera to make a recording of the incident – and then blasted it all over the Internet, claiming a cultural breakthrough.

In asking the Chief Justice to change the current policy, the letter from the Coalition for Court Transparency mentioned that episode, and stressed that the members of their group “do not endorse or encourage such behavior at the High Court or in any courtroom.”   It seemed clear that they included a mention of the incident in their letter in order to suggest subtly to the Court that technology may be outrunning the policy, so it may well be time to consider allowing cameras to come in, under some limiting conditions to make the result more respectable.

Even  if that was the intent of mentioning the episode, however, the mention might have had the opposite effect: It could have shown how camera coverage might sensationalize what the public actually sees of the proceedings.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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