Legislation would permit presiding judges in the Supreme Court, U.S. Courts of Appeals and U.S. District Courts to “permit the photographing, electronic recording, broadcasting, or televising to the public of any court proceeding over which that judge presides,” subject to certain limitations, in S. 410, 112th Cong., 1st Sess. (2011); the Ninth Circuit has recently permitted some appeals to be video recorded
Congressional interest in legislation which promotes television cameras and radio broadcasts continues. Last week, on February 17, 2011, Senator Charles E. Grassley reintroduced the Sunshine in the Courtroom Act of 2011, S. 410, 112th Cong., 1st Sess. (2011). In introducing S. 410, Senator Grassley noted the importance of open proceedings and the recent practice in state courts:
Openness in our courts improves the public's understanding of what goes on there. Our judicial system is a secret to many people across the country. Letting the sun shine in on federal courtrooms will give Americans an opportunity to better understand the judicial process. Courts are the bedrock of the American justice system. Allowing greater access to our courts will inspire faith in and restore appreciation for our judges who pledge equal and impartial justice for all.See 157 Cong. Rec. S908-09 (Feb. 17, 2011) (remarks of Sen. Grassley). Senator Grassley emphasized the bipartisan support in introducing the legislation, which included co-sponsorship from Senators Charles E. Schumer (D - NY), Patrick J. Leahy (D - VT), who is also Senate Judiciary Committee Chairman, Lindsey Graham (R - SC), John Cornyn (R - TX), Richard J. Durbin (D - IL), and Amy Klobuchar (D - MN).
For decades, states such as my home state of Iowa have allowed cameras in their courtrooms with great results. As a matter of fact, only the District of Columbia prohibits trial and appellate court coverage entirely. Nineteen States allow news coverage in most courts; 16 allow coverage with slight restrictions; and the remaining 15 allow coverage with stricter rules.
We need to open the doors and let the light shine in on the Federal Judiciary. This bill improves public access to and therefore understanding of our federal courts. It has safety provisions to ensure that the cameras won't interfere with the proceedings or with the safety or due process of anyone involved in the cases. Our states have allowed news coverage of their courtrooms for decades. It is time we join them."
Senator Grassley explained the measure:
The Sunshine in the Courtroom Act is full of provisions that ensure that the introduction of cameras and other broadcasting devices into the courtrooms goes as smoothly as it has at the state level. First, the presence of the cameras in Federal trial and appellate courts is at the sole discretion of the judges--it is not mandatory. The bill also provides a mechanism for Congress to study the effects of this legislation on our judiciary before making this change permanent through a 3 year sunset provision. The bill also protects the privacy and safety of non-party witnesses by giving them the right to have their faces and voices obscured. Finally, it includes a provision to protect the due process rights of any party, and prohibits the televising of jurors.See 157 Cong. Rec. S908-09 (Feb. 17, 2011) (remarks of Sen. Grassley). The decision of the presiding judge to allow or deny televised proceedings may not be challenged through an interlocutory appeal.
In the district court, any trial witness may request that their face and voice “be disguised or otherwise obscured in such manner as to render the witness unrecognizable to the broadcast audience of the trial proceeding,” unless the due process rights of a party would be violated. Additionally, the presiding judge has “the discretion to obscure the face and voice of an individual” upon a good cause showing that the electronic recording “would threaten -- (i) the safety of the individual; (ii) the security of the court; (iii) the integrity of future or ongoing law enforcement operations; or (iv) the interest of justice.”
There are a few situations in which no electronic recording is permitted. For example, no broadcast is permitted of “any juror in a trial proceeding, or of the jury selection process” nor of conferences between attorneys and clients and adverse counsel.
Prior Congressional Action
During the past few Congresses, the Senate Judiciary Committee has favorably reported out legislation that would authorize cameras in federal courts. In the last Congress, on March 19, 2009, the Senate Judiciary Committee reported out the “Sunshine in the Courtroom Act of 2009,” S. 657, 111th Cong., 1st Sess. (2009), originally introduced by Senator Grassley (R-IA). See Senate Judiciary Committee Approves Measures Authorizing Cameras In The Supreme Court And Other Federal Courts.
In the 110th Congress, on January 22, 2007, Senator Grassley introduced the Sunshine in the Courtroom Act, S. 352, 110th Cong., 1st Sess. (2007); see also 152 Cong. Rec. S837 (daily ed. Jan. 22, 2007) (remarks of Sen. Grassley on introduction of S. 352), which the Senate Judiciary Committee reported out on March 13, 2008. No further action occurred on the measure.
In the 109th Congress, on April 18, 2005, the Sunshine in the Courtroom Act of 2005, S. 829, 109th Cong., 1st Sess. (Nov. 9, 2005) was introduced, which the Senate Judiciary Committee reported out on March 30, 2006 without amendment and without written report. See also 150 Cong. Rec. S3822-23 (daily ed. April 18, 2005) (remarks of Sen. Grassley on introduction of S. 829).
Similar legislation has been introduced in the House of Representatives without further committee action. See, e.g., Sunshine in the Courtroom Act of 2009, H.R. 3054, 111th Cong., 1st Sess. (2009) (sponsored by Rep. Bill Delahunt); Sunshine in the Courtroom Act of 2007, H. R. 2128, 110th Cong., 1st Sess. (May 3, 2007) (sponsored by Rep. Steven Chabot); H.R. 2422, 109th Cong., 1st Sess. (May 18, 2005) (sponsored by Rep. Steven Chabot).
Judicial Conference Action
The courts have also begun taking steps to test and provide for televised judicial proceedings in limited circumstances. On September 14, 2010, the Judicial Conference announced that it approved a pilot project “to evaluate the effect of cameras in federal district courtrooms and the public release of digital video recordings of some civil proceedings.” See Judicial Conference Approves Pilot Project To Evaluate Cameras In The Federal District Courts.
Ninth Circuit Recent Practice
The Ninth Circuit has recently permitted video recordings of some of the appeals it has considered. For some recent examples:
- The Facebook, Inc. v. ConnectU, Inc., CNET Networks Inc. v. U.S. District Court for the Northern District of California, (No. 08-16745, 08-74104, 08-16849, 08-16873, 09-15021, 09-15133) (panel: Kozinski, Wallace, Silverman)
- Kristin Perry v. Arnold Schwarzenegger, (Nos. 10-16696EB, 10-16751EB) (panel: Reinhardt, Hawkins, Smith N. R.) Part I (standing argument); Part II (merits); see also Ninth Circuit To Televise Upcoming Oral Argument On Proposition 8 Appeal
- Norse v. City of Santa Cruz (No. 07-15814) (En Banc Panel: KOZINSKI, REINHARDT, RYMER, THOMAS, McKEOWN, FLETCHER W. , FISHER, GOULD, BERZON, TALLMAN, CLIFTON, BEA) (June 22, 2010); see also Ninth Circuit Court of Appeals to Offer Remote Viewing of En Banc Proceedings.