Streaming Video of Oral Arguments: Now Live in California… and Then Everywhere Else?

DWT Media Law August 17, 2016 Comments Off on Streaming Video of Oral Arguments: Now Live in California… and Then Everywhere Else?
Streaming Video of Oral Arguments: Now Live in California… and Then Everywhere Else?

By Jason Harrow

I love watching appellate arguments. When I worked for the office of the New York attorney general and my colleagues argued before the New York Court of Appeals, my entire office was able to gather around and watch the argument because that court streamed every argument live. And when I was lucky enough to make my own appearances in the Court of Appeals, my parents, grandparents and friends could see me in action without making the trip to Albany. When I moved to California this past fall, though, I was disappointed to find out that the California Supreme Court did not broadcast most of its proceedings.

Happily, that has recently changed. In March’s State of the Judiciary address, Chief Justice Tani Cantil-Sakauye announced that the California Supreme Court would begin live-streaming all of its oral arguments. The streaming cameras were turned on this past May in the San Francisco courthouses, with the other courthouses to follow later this year.

This is a welcome development that will put the California judiciary back at the forefront of the effort to increase public access to judicial proceedings. The California Channel actually began broadcasting certain Supreme Court arguments all the way back in 1991—but in the ensuing decades, there has been only sporadic coverage of the Supreme Court’s proceedings. Meanwhile, without much fanfare, many other state high courts from around the country began recording and streaming their proceedings.

Indeed, the California Supreme Court has become the newest member of a surprisingly large group of appellate courts that have begun to film, broadcast and archive all of their proceedings. With its new live-streaming video, California became the 35th state court of last resort to provide live or near-live online video access to its proceedings. Courts of all sizes, budgets and regions have begun to live-stream, either on their own or in connection with public broadcasting partners; other relatively recent new entrants include the high courts of Alaska, Michigan, South Carolina and Delaware. Intermediate appellate courts, too, have begun getting in on the action, as one of New York’s four appellate divisions began live-streaming just at the start of the year. More are sure to follow.

Perhaps the lack of coverage of this important emerging trend is due to federal appellate courts’ overall reluctance to embrace live-streaming. On this front, California is an outlier: While the Ninth Circuit has a remarkable system that allows anyone to live-stream arguments from any of its courtrooms—finally making possible the true addict’s dream of trying to watch simultaneous “split screen” arguments from the same court—it remains the only federal appellate court to regularly post live or archived video of its arguments. Instead, most other circuits have made available delayed audio-only recordings of proceedings. Posting delayed audio is also the current practice of the U.S. Supreme Court, which makes available audio from a given week’s arguments on the Friday after the arguments occur.

Given the progress state courts have made on this front, the reticence of federal appellate courts to embrace video-streaming is disappointing. The successful use of video by the appellate courts that do live-stream has proved that broadcasting appellate arguments has important benefits and virtually no downsides. For instance, in the benefits column, having available live video allows litigants and attorneys who worked on a case to easily view arguments they are interested in; it permits students and lawyers to learn oral advocacy skills and dig deeply into particular legal issues; it lets the public witness the careful, high-quality work done by appellate judges and advocates; and it even allows friends and family members of the judges or attorneys to follow along with their favorite cases.

Moreover, the limited evidence from currently available broadcasts from California shows that the California Supreme Court is likely to find that its regular live-stream will become quite a hit. While there are not yet archives of the recent arguments, the California Channel’s recording of In re Garcia, regarding whether an undocumented immigrant could become a licensed attorney, has more than 11,000 views on YouTube, and a broadcast of the argument in an earlier case called Brinker Restaurant Corp. v. Superior Court of San Diego has more than 9,500 views. Sure, these numbers aren’t exactly comparable to the hundreds of millions of views that Adele’s new music video might receive, but they are significant—and they surpass by orders of magnitude the number of people who could ever fit inside the courtroom or who would spend time hunting down a hard-to-find transcript.

Just as important, there have been essentially no negative consequences from online streaming: It costs very little to stream even high-definition video, with costs continuing to fall; neither lawyers nor judges have shown any appetite for grandstanding to the viewers following along with the live-stream; and there are no reports yet of any judge or lawyer becoming an unwanted target of the paparazzi as a result of streaming oral arguments. Plus, with no jury or witnesses in sight in appellate proceedings, privacy concerns are virtually nonexistent. With the Ninth Circuit, California, and a diverse collection of other state courts leading the way, perhaps the remaining state and federal courts that do not provide video access to proceedings—including the U.S. Supreme Court—will come to realize that whatever concerns they have about negative consequences of streaming are unlikely to occur.

And just consider what is lost to history by not allowing cameras in the courtroom. Thanks to the Florida Supreme Court’s excellent archive, for instance, I was able to go back and watch parts of the historic presidential election cases in 2000, as well as the proceedings in Jardines v. Florida, which later led to an important U.S. Supreme Court ruling regarding whether the use of a trained police dog on the porch of a home is a search under the Fourth Amendment. But because video cameras are still not allowed in the U.S. Supreme Court, a video record of what occurred in Washington, D.C., in each of those cases will never be available.

It is thus encouraging to know that future lawyers, students and citizens interested in the impactful California cases of our day will, from now on, be able to go back and watch what occurred in the courtroom. Maybe one day, with the help of evidence from California and elsewhere around the country, the remaining hold-out courts will change their minds, too.

Jason Harrow is an associate in DWT’s Los Angeles office. He has argued 14 appeals in state and federal courts, and he focuses his practice on litigation and counseling on copyright, defamation, and First Amendment-related matters.

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