Photo by Erin Nealey (via Flickr Creative Commons)
BY KELLY BALKIN — “I rise on behalf of the vast majority of the American people, who believe that money is not speech, corporations are not people, and our democracy should not be for sale to the highest bidder. Overturn Citizens United, keep the cap in McCutchenson. The people demand democracy.” These historic words were spoken by a protestor on February 26, 2014, during oral argument before the Supreme Court of the United States. These words are historic not for the message they convey, but for the medium in which they are memorialized, for these words were spoken in the first ever video recording of the courtroom proceedings of the Supreme Court of the United States.
Oral arguments at the Supreme Court are open to the public on a first-come, first-seated basis, but electronic devices such as phones, cameras, and tape recorders are not permitted while the Supreme Court is in session. It is still unclear how the video camera used in this video was ultimately smuggled in, but the activist group 99rise has claimed responsibility for both the outburst and video recording. According to its website, 99rise hopes to “reclaim our democracy from the domination of big money,” starting with the overturn of the 2010 Supreme Court decision in Citizens United v. Fed. Election Comm’n. However, it seems that 99rise’s method has overshadowed its message: the most fervent discussions spurred by this video are primarily about the Supreme Court’s tradition against filming in the courtroom, with barely a word uttered about campaign-finance reform.
Many courts, including the supreme courts of all 50 states, allow for video cameras in their courtrooms. But the United States Supreme Court remains steadfast in its ban, which is rooted in nothing more than tradition and the individual opinions of those sitting on the Court. The Justices have rationalized this ban over the years by citing concerns such as the public’s inability to understand the Court’s complex proceedings and the potential detrimental effect that cameras would have on the Court dynamics. For example, Justice Kennedy previously explained that he fears cameras might ruin the “splendid” dynamic that the Court currently enjoys and that the Justices are–and should continue to be–judged only for what they write in the final opinion issued by the Court, not for what they say during oral argument. Justice Scalia expressed concern in 2012 that instead of educating the American public, cameras in the Supreme Court would allow media outlets to show misleading or “uncharacteristic” snippets from their arguments. In 1996, Justice Souter made his position on the issue crystal clear when he told a House Appropriations committee, “[T]he day you see a camera come into our courtroom, it’s going to roll over my dead body.”
Although it is clearly the minority position, not all of the Justices are vehemently against allowing cameras; Justice Elena Kagan said in 2011 that she sees the logic in allowing cameras into the courtroom and that she wouldn’t mind their presence in the courtroom “[b]ecause reading about it is not the same experience as actually seeing.”
The debate over the use of video cameras in the Supreme Court is hardly novel; it has merely been reignited with the recent flood of attention to the issue. C-SPAN, which provides live video coverage of the House and the Senate in session, first requested access to oral arguments in 1988 through a letter to Chief Justice Rehnquist. The request, like all of the network’s subsequent requests since, was refused. Legislation to allow for cameras in the Supreme Court was first introduced in 1999 and was ultimately defeated, although it did inspire a compromise: audio recordings of all oral arguments, available online at the end of each week that the Court hears them.
However, many feel that the audio recordings are an inadequate substitute and continue to demand more transparency. Most recently, the Coalition for Court Transparency has been active in petitioning the Court to allow cameras and making the public aware of its plight through television ads run in Washington, D.C. The Coalition also has an online petition that urges Chief Justice Roberts to “make the Court more accessible to every American by allowing cameras to broadcast oral arguments.” A March 9, 2014 letter from The Coalition for Court Transparency to Chief Justice Roberts asks that the Court “embrace contemporary expectations of transparency by public officials and allow the recording and broadcast of its courtroom proceedings.” The response from the Supreme Court was a dismissive two-paragraph letter from a Court spokesperson, reminding the Coalition of the availability of audio recordings and closing with a concise rejection of the Coalition’s appeal: “There are no plans to change the Court’s current practices.”
Arguments to allow cameras in to the Supreme Court are plentiful and the Justices’ concerns dismissive. The fear that decontextualized video snippets would be circulated and used to mislead the public seems unfounded given that the currently available audio recordings could easily be used to that end but are still permitted. Most poignant is the fact that the proceedings that the Court feverishly protects from the camera’s eye are supposed to be public. The understanding of what it means for something to be “public” has evolved by leaps and bounds since the dawn of the Internet. By limiting its interpretation of public access to the four walls of the courtroom, the Supreme Court effectively excludes a majority of the public to which the proceedings are supposedly available. Oral arguments are held on weekdays during normal business hours. Seating is limited and is awarded on a first-come first-seated basis. The odds that an average working American will have the opportunity to view the “public” proceedings of the Supreme Court in person are slim. Those odds would likely improve if travel, time away from work, and standing in long lines were no longer compulsory elements of the experience. The Supreme Court’s ban on cameras denies average Americans reasonable access to proceedings that shape the future of this country and its citizens’ lives. Professional video coverage should therefore be allowed so that interested Americans can access these proceedings even if they cannot travel to Washington, D.C.
