Interest in the “historic” 3-day oral arguments in the recent Supreme Court case addressing the constitutionality of the Individual Mandate of the 2010 health care legislation was immense. Yet, except for the few persons lucky or connected enough to have secured a seat inside the court room, anyone who wished to watch the oral arguments was out of luck—forever. The First Amendment does not guarantee a right to film court proceedings. Even if Congress were to enact a law requiring broadcast of Supreme Court proceedings (several bills touching on this subject have been introduced in Congress over the years, but none has made it to a vote), Constitutional separation of powers concerns might nullify that law. So, across the nation, courtroom film rules vary by jurisdiction, type of court, and type of proceeding, and are usually determined on a case-by-case basis. Typical reasons for disallowing filmed coverage of trial court proceedings include privacy or safety concerns of jurors and witnesses (particularly if children are involved), and (in criminal trials) due process rights. Although these are either less of or not at all a concern in appellate court proceedings, broadcast of appellate oral arguments are rarely allowed at the state or the federal level. Some Supreme Court justices have previously noted their opposition to broadcasting the Court’s proceedings, expressing concern that it would turn the proceedings into entertainment, and (because most of the justices’ work takes place outside of oral arguments) would give the public a misleading impression of the Court’s work.
Although the Supreme Court’s decision to make available an audio recording and transcript of the health care arguments later each day is a step in the right direction, it did not go far enough. The general public has been able to view live Congressional debates and committee hearings for many years. Although these broadcasts may provide “entertainment” to some, their real value is in the “education” they provide to those who care to watch them. At least as much can be learned by watching these broadcasts, than by reviewing the Congressional Record transcripts. Audiovisual broadcasts also promote transparency and accountability in government. The same would apply to the Supreme Court’s oral arguments. Some states' highest courts, including Alaska and Massachusetts, have been broadcasting their oral arguments and archiving them on Internet websites for years, without apparent harm to the integrity of the courts. // Michael Racette
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