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Government Accountability Office addresses cameras in the Courtroom

It’s a question the Justices seem to receive anytime they speak in public: When (only sometimes “if”) there will be cameras at the Court. Even as the Justices consistently demur, the Government Accountability Office (GAO) recently published the results of its yearlong study addressing the Supreme Court’s policies pertaining to media coverage of oral arguments and provided perspectives on the potential benefits and costs to the Court of providing video coverage or making audio coverage available live, rather than releasing it (as it is now) after a delay. Even as the report mostly strikes a neutral tone, the tenor of its findings, which indicate that appellate courts offering forms of video or audio coverage have generally not encountered drawbacks, nonetheless seems to suggest that the Court could benefit from doing so.

In its report, the GAO provides information from visits to and correspondence with various appellate courts: the Second, Ninth, and D.C. Circuits, the Supreme Court of California, the Florida Supreme Court, the High Court of Australia, the Supreme Court of Canada, and the U.K. Supreme Court. The report includes the media policies from a much wider swath of appellate courts. For instance, it notes that of the thirteen federal courts of appeals, two allow video coverage of oral arguments and ten make audio coverage available online; forty-nine state courts of last resort also allow at least some video and audio coverage.

All the opinions expressed in the report come from “selected stakeholders” – judges, lawyers, and administrative officials of the appellate courts surveyed in the report. On the basis of these comments, the GAO did not make definitive recommendations but contrasted four potential advantages from adding video or expanding audio coverage of oral arguments with three possible negative consequences.

Among the potential benefits, the GAO first cited increased public access to the work of the Court for those who cannot attend oral arguments; as the report indicates, the Courtroom offers approximately 240 seats to the general public. Increased access could also further educate citizens about the Court, the report notes. For instance, an official of the Florida Supreme Court believes that broadcasting the 2000 presidential election cases in that court benefitted citizens by allowing them “to see the arguments and draw their own conclusions.” And in particular, the report suggests, law students and lawyers may be better able to prepare and serve the Court as advocates.

The report also presents greater public confidence in the Court as a possible benefit of providing video and broadening audio coverage. For instance, the report cites one attorney who believes coverage would show the public “the quality and quantity of the work the court puts into each case.” Higher judicial accountability is the final potential benefit cited, although the report also acknowledges that some judges believe that accountability is already high because judicial mistakes are publicly documented in opinions.

Based on the experiences of other appellate courts, the report largely dismisses concerns that video or increased audio coverage would have negative effects on argument behavior by Justices and advocates or on their personal privacy and security, yet it still includes these as potential concerns because the Court’s higher profile could magnify these effects beyond what has been observed in other appellate courts. Among possible negative consequences, the report emphasizes concerns that the media will use such coverage irresponsibly. However, what could mitigate concerns about distorted media coverage, the report notes, is coverage by the Court itself – for instance, if the Court were to record and broadcast oral arguments using its own equipment.

The GAO acknowledges that there are diverse views on these issues. For instance, on the question of public education – listed as a potential benefit of video and audio coverage – the Court’s public information officer (PIO), Kathleen Arberg, expressed concerns that such coverage could limit rather than enhance public education about the Court by over-emphasizing a small piece of the Court’s overall work on a case.

Arberg’s statements generally strike a cautious tone. For instance, the report summarizes her comments as indicating that, “above all, the Justices are trustees of an institution that has functioned well and earned the public’s confidence. The Justices have expressed caution about introducing changes that could diminish the public’s respect for and create misconceptions about the Court.”

The report’s appendices include findings from two academic studies that investigate the effects of video coverage in appellate courts. Both studies suggest that providing video coverage would not have a detrimental effect on the Court, although the researchers also conceded that there is still a dearth of research on the actual effects of video coverage.

Change can come slowly at the Court. Until just a few years ago, the Court had not released oral argument audio until the start of the next Term, but it now regularly releases the audio on the Friday after the arguments. And it will sometimes release the audio sooner than that: since the oral argument in Bush v. Palm Beach County Canvassing Board on December 1, 2000, the Court has granted twenty-six requests (but denied thirty-two requests) from the media to release the audio on the same day as the oral arguments.

When and if the Court adds video or expands current audio coverage – it declined to provide any written comments on a draft version of the report – may also take time, especially as the report makes no definitive recommendations and gives voice to various concerns about expanding the Court’s current coverage.

Recommended Citation: Andrew Hamm, Government Accountability Office addresses cameras in the Courtroom, SCOTUSblog (Jun. 8, 2016, 3:40 PM),