In August 1953, the corruption indictment of a prominent local probate judge was front-page news throughout the Cleveland area. Lou Clifford, the city editor of the crusading Cleveland Press, sent reporter Sam Giaimo and photographer Jim Thomas to the Cuyahoga County courthouse with orders to come back with a picture of the defrocked judge standing before the bench to face arraignment.
The trial judge cautioned the assembled press corps that, in keeping with the ABA canons of the day, no photography would be permitted in the courtroom. Not to be denied, Clifford told Giaimo and Thomas to defy the order and get the picture.
They did. At a price.
All three journalists were brought up on criminal contempt charges. All three were fined. Clifford was briefly jailed.
They challenged the sanctions as contrary to the First Amendment. A unanimous Ohio Supreme Court upheld the contempt judgment. “A court in enforcing reasonable courtroom decorum,” the Ohio justices wrote, “is preserving the constitutional and unalienable right of a litigant to a fair trial, and in preserving such right, the court does not interfere with the freedom of the press.”
Essentially, as long as there has been photojournalism, there has been tension between journalists and the judiciary over access. While pencil-and-pad reporters have been largely accepted as part of the courtroom furnishings for more than a century, the attitude of bench and bar toward photo and video coverage has ranged from grudging tolerance to outright hostility.
In the latter camp, Justice David Souter once told a Senate hearing that Supreme Court arguments would be televised “over my dead body.” David Souter may have left the building, but cameras have yet to enter.
To large segments of the American public, the legal system is a ponderous black box. Cases go in; decisions come out. What happens in between is a mystery.
The most obvious remedy—televised proceedings—remains the most elusive. While every one of the states’ highest appellate courts allows the public to watch at least some oral arguments, only two of the nation’s 12 federal geographic circuits do so, and the Supreme Court seems no closer today than it was in 2007, when Justice Anthony Kennedy told a congressional hearing forebodingly that television would “alter the way in which we hear our cases, the way in which we talk to counsel, the way in which we talk to each other, the way in which we use that precious hour.”
Roots of the Resistance
The federal judiciary’s resistance to photo and video coverage has deep roots. It goes back to sensational tabloid coverage of cases such as the 1935 trial of Bruno Hauptmann, accused of abducting and killing aviator Charles Lindbergh’s baby, and the 1963 trial of notorious Texas con artist Billy Sol Estes in a brazen bank-fraud scheme.
But the world of Charles Lindbergh and Billy Sol Estes is no longer our world. The YouTube generation expects to know, and see, events of importance in real time, not in a grainy black-and-while photo in the next day’s Cleveland Press.
More to the point, there is no more Cleveland Press. The newspaper shuttered in 1982 as afternoon dailies fell out of favor, leaving Cleveland’s Plain Dealer as the sole purveyor of news for Ohio’s second-largest city. And today there is scarcely a Plain Dealer, either. In April 2020, the remaining few reporters at the 178-year-old journalistic institution, where newsroom employment once topped 300, were laid off or quit, leaving the newspaper a hollowed-out shell.
There no longer is a daily newspaper serving the nation’s 19th-largest media market, and there may never be again. People looking for news about the legal system in Cleveland—and, increasingly, throughout the country—will not look to yesterday’s pencil-and-pad reporters. A system built around pencil-and-pad information sharing is overdue for modernization.
The COVID-19 pandemic is causing all of our institutions to revisit long-held assumptions about which functions—public schooling, civic meetings, social and religious gatherings, even wedding and funeral ceremonies—can be conducted remotely without losing what gives them value. The legal system is no different, as everything from bond hearings to real estate closings migrate to videoconference.
As necessity compels us to rethink traditional phobias about technology, and to appreciate what is gained when services are made available more conveniently, it is timely to do so with courtroom videography. Cameras have not spoiled church services, college lectures, governmental meetings, or funerals; and—where tried, both within and outside the United States—they have not spoiled justice.
The freedom to disseminate information, once it has been obtained, is so firmly established in First Amendment law that nothing short of disclosing imminent U.S. military invasion plans could be contemplated to justify a “prior restraint” on publication. But the freedom to gather information is nowhere near as deeply rooted. The Supreme Court has found no constitutionally protected right to obtain government documents, McBurney v. Young (2013); to accompany police raiding a private home, Wilson v. Layne (1999); or to enter a prison to interview an inmate, Pell v. Procunier (1974). It is doubly notable, then, that the one place where the Court has unequivocally recognized a constitutionally guaranteed right of access to news is the courtroom.
The Benefits of Public Trials
In the 40 years since the Supreme Court’s landmark Richmond Newspapers, Inc. v. Virginia decision, it has been accepted that the Constitution guarantees a public trial, both for the benefit of the accused and for the confidence of the wider citizenry. In Richmond Newspapers, Chief Justice Warren Burger traced the public character of criminal trials to the earliest days of recorded Western history, predating even the Norman Conquest of England in 1066.
Remarking on the “significant community therapeutic value” of the public trial, Burger wrote that “the means used to achieve justice must have the support derived from public acceptance of both the process and its results.” If the public doubts that criminal courts produce just results, he warned, vigilante justice might result. In words resonant with today’s media coverage debates, Burger wrote: “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”
Soon afterward, in a series of California cases known as the Press-Enterprise cases, the justices extended Richmond Newspapers to recognize a First Amendment right to attend not just criminal trials but also any critical stage in criminal proceedings, including motion hearings, jury selection, and sentencing. Under the Press-Enterprise standard, judges deciding whether a particular type of hearing should be open or closed are instructed to consider, first, whether the proceeding is the type traditionally conducted in the open and, second, whether public attendance will play a positive role in the judicial process.
That standard, in other words, recognizes that public attendance—directly or by proxy through the news media—contributes not just to greater public understanding but also to a substantively better proceeding. (Indeed, not infrequently, witnesses come forward with additional evidence after being alerted by media coverage that a suspect is in custody and facing trial.) Because a judicial decision to close court proceedings implicates the First Amendment, closure decisions are subject to rigorous appellate review, and courts are encouraged to consider narrower and less speech-restrictive alternatives, including a change of venue or curative jury instructions.
While the Supreme Court has never explicitly said so, lower federal courts largely agree that the Richmond Newspapers/Press-Enterprise principle should apply to civil proceedings as well. An equally strong consensus has developed among the lower courts that the constitutional right to attend trials necessarily implies a right to inspect trial records, including evidentiary materials shown to jurors.
The public’s right to view judicial proceedings occupies a unique place in First Amendment jurisprudence. No comparable body of constitutional precedent entitles the public to watch congressional hearings or city council meetings. For that right, citizens must look to statutes and to each body’s internal operating procedures.
The courtroom, then, is a place of exceptional openness. Yet, the same cameras that for decades have been staples of congressional hearings and city council meetings are only sporadically admitted to government’s “most open” branch—and, despite repeated efforts, not at all to the nation’s highest court.
The History of Courtroom Cameras
The history of courtroom cameras perhaps illuminates why so many jurists view photography and videography skeptically.
In 1927, the world was transfixed by radio updates as St. Louis aviator Charles Lindbergh became the first pilot to complete the 33-hour transatlantic flight from New York to Paris. The daring feat made Lindbergh an international celebrity, one of the most famous people in the world. Five years later, Lindbergh would again command the world’s attention for a tragically different reason: the abduction and murder of his 20-month-old son. The celebrated case of accused kidnapper Bruno Richard Hauptmann ended up putting cameras themselves on trial.
Widely described as “the trial of the century,” Hauptmann’s case drew so many correspondents from nationwide media outlets that hotels in the Hunterdon Township, New Jersey, community sold out. A New York tabloid even paid for Hauptmann’s defense lawyer in exchange for exclusive rights to his story.
Historians have characterized coverage of the 1935 trial, at which Hauptmann was convicted and sentenced to death, as “carnival-like” and a “media circus.” Hauptmann’s family long blamed media sensationalism for a rush to judgment that glossed over holes in the prosecution’s case.
Backlash to the indecorous tabloid coverage was swift. In 1937, the ABA enacted Canon 35 of the Canons of Professional and Judicial Ethics, declaring that courtroom photography and broadcasting “are calculated to detract from the essential dignity of the proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public. . . .” In 1946, the Federal Rules of Criminal Procedure were amended to expressly prohibit the “taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”
Notwithstanding the federal rule and the ABA’s disfavor, Texas was an early adopter of courtroom cameras. One much-watched case was the fraud trial of Texas financier Billy Sol Estes, whose elaborate cons earned him a measure of outlaw celebrity.
In 1963, Estes went on trial in El Paso on fraud charges, accused of swindling banks by using fictitious mortgage securities as collateral to obtain loans. The Estes case so transfixed the public that, after every available seat in the courtroom was taken, 30 additional spectators were crammed into the aisles. The courtroom was not so much covered by journalists as covered in journalists. A news photographer wandered behind the judge’s bench to get a better shot of counsel during arguments. Others used telephoto lenses to try to read the papers in Estes’s hand at the counsel table.
The saturation-level coverage proved too much for the Supreme Court. In 1965, the justices vacated Estes’s conviction, finding that televising the proceedings was inherently prejudicial. Justice Tom Clark’s majority opinion recounted the pervasive physical presence of broadcasters and photojournalists—12 camera operators in the courtroom at once, cables “snaked across the courtroom floor,” three microphones mounted on the judge’s bench and another pointed at the jury box—that unavoidably distracted the participants. “Trial by television,” Clark declared, “is foreign to our system.”
Just as hard cases can make bad law, “cases of the century” can make a century’s worth of bad law. The failure of the trial judges in the Hauptmann and Estes cases to impose reasonable courtroom-management measures, such as requiring news organizations to agree on a single “pool” camera, soured the federal judiciary’s taste for broadcast access for decades.
State Versus Federal Approaches
In contrast to federal courts and their hesitant pace, state courts have rapidly acculturated to the reality of photojournalism and broadcasting. As of 1959, just three states—Colorado, Oklahoma, and Texas—allowed television cameras in their trial courts. By 2012, that number was up to 44. Cameras are permitted in each of the states’ highest appellate courts and in many intermediate appellate courts as well. It is commonplace to find archived video of oral arguments on the courts’ websites.
A burst of experimentation followed the Supreme Court’s 1981 decision in Chandler v. Florida, which held that admitting television cameras to the courtroom does not, by itself, violate a criminal defendant’s right to a fair trial, even if the defendant opposes coverage. Adopting a more nuanced approach than in the Estes case, the Court allocated the burden to the defendant to justify closing trials to videography by making a particularized showing of case-specific prejudice, not just a blanket assertion that publicity is bad.
A cynic might also ascribe the states’ more permissive approach to the fact that state justices must stand for public election in 36 states. Nonetheless, it does not take a cynic to appreciate that if the public is asked to vote on the performance of judges, there should be a fair chance to evaluate them.
Yet, the Supreme Court has resolutely refused to admit cameras, even when asked to make a one-time exception for a high-interest case. The Court declined television networks’ request for a video feed of arguments in the 2012 challenge to the constitutionality of the Affordable Care Act, NFIB v. Sebelius, even though public interest was so high that people began camping on the Court’s sidewalk more than 24 hours in advance to secure the 250 seats in the spectator gallery. In a limited concession, the Court made expedited audio recordings and transcripts available on its website, and has done so since in other cases of intense public concern.
The reluctance to televise the proceedings of our highest tribunal is something of an outlier. Canada has allowed cameras in its Supreme Court since the mid-1990s and has livestreamed its own webcast online since 2009. As part of a reconfiguration of its appellate judiciary, Great Britain welcomed cameras into its Supreme Court in 2009. And Brazil has provided live webcasts of Supreme Court arguments and decisions on its own state-operated feeds since 2002, making audio and video available to news organizations. What’s more, Brazil’s justices do not retire to a private conference room to deliberate; once arguments are over, the deliberations begin right in the courtroom—live, on the air.
In none of those countries have judges reported that the quality of arguments suffered or that they found the presence of cameras distracting. Speaking at a Tenth Circuit judicial conference in Colorado in 2010, Canada’s chief justice said that, after a period of initial wariness of cameras, “we are just oblivious to them. I don’t think I ever think about them in the course of a hearing.”
Twice in recent years, the federal judiciary has experimented with admitting cameras. Twice, the experiment has proceeded uneventfully, with participants reporting no undue distractions. Yet, both times, the findings produced no change.
In September 1990, the federal Judicial Conference repealed a decades-old proscription against cameras in the judiciary’s Code of Conduct and launched a pilot in six U.S. district courts and the Second and Ninth federal circuits, allowing news outlets to apply for permission to record and broadcast civil proceedings. At the conclusion in 1994, an evaluation by the Federal Judicial Center found that participating judges and lawyers observed little to no detrimental effect on the conduct of proceedings.
Still, the Judicial Conference rejected a committee recommendation to allow broadcasting in all federal district and circuit courts, citing the concern for intimidating parties and witnesses.
Beginning in 2011, the federal judiciary dunked another toe in the water. Judges in 14 districts agreed to have cameras installed in their courtrooms for a three-year trial period that the Judicial Conference later extended to four. Over the course of the experiment, video footage from 158 proceedings was posted for public viewing, including motion hearings, settlement conferences, and trials. The experiment was a purposefully limited one, involving only civil cases in which all parties consented and using court-owned cameras that judges could switch off, rather than news organizations’ cameras.
Two independent evaluations of the pilot found minimal downside. Judges reported that any distraction or change in attorneys’ behavior was minor or nonexistent. Still, the Judicial Conference was unpersuaded. Except for the Second and Ninth Circuits, where gavel-to-gavel video of appellate arguments is available on the courts’ websites, cameras remain unwelcome in the federal courts.
Public Trust in the Judiciary
While the judiciary fancies itself above the political fray that has greatly diminished confidence in the executive and legislative branches, public opinion is not so discerning. In a 2015 survey, Gallup found that trust in the judiciary had hit record lows, with just 53 percent of Americans saying they trust the judicial branch “a great deal” or at least “a fair amount.” Although ratings have bounced back a bit since then, public confidence in all institutions—courts, elected officials, law enforcement, organized religion, higher education, the news media—has trended steeply downward over the past 25 years.
We lose trust when we perceive institutions as hidebound, elitist, and remote. We gain trust when we see for ourselves that institutions operate in an above-board way. To earn trust, our profession must be prepared to extend trust. If we build a system around our confidence that a roomful of randomly selected amateurs is capable of deciding whether a person should go to prison for life, we cannot then insist that those same people are too immature and simple-minded to be trusted with information.
Addressing the current crisis of confidence in the judiciary, Judy Perry Martinez, preparing to assume the ABA presidency in 2019, wrote:
We need to make rendering justice less about how we always have done it and more about how it makes sense to do it now. We need to think collaboratively with those within and outside the legal profession about why our courts are seen by some in the public as a place for judges and lawyers to work and earn a living rather than as a place for the public to have their life problems resolved. We need to innovate through technology and smart justice system improvements. . . . The bottom line: We need a justice system transformation in which the best building blocks of the system survive and the vestiges that no longer lend value are abandoned. That transformation will instill a renewed sense of trust and confidence.
At a moment of profound exigency for the judiciary’s legitimacy, “how we have always done it,” to borrow Martinez’s phrase, seems less a justification than a critique.
It is well documented that most Americans lack even a rudimentary understanding of how public institutions work. The latest survey of Americans’ civic knowledge by the Annenberg Public Policy Center concluded that the average person’s awareness of the workings of government is “dismally low.” Just 39 percent of those surveyed by Annenberg could name all three branches of government, and 22 percent could name none. That was the best showing in five years. While most of those surveyed correctly answered that a 5–4 vote on the Supreme Court meant that the majority opinion made binding precedent, one-fifth of respondents incorrectly answered that the case would be sent to Congress for resolution.
People who lack the basic “civic vocabulary” to engage with news are easily led astray by conspiracy theories and hoaxes. At such a time of crisis in civic literacy, “more of the same” is an inadequate response. If there is a convenient way to get better-quality information in front of people in the way that most of them prefer, it is civic malpractice not to take advantage of it. Ninth U.S. Circuit Judge Diarmuid F. O’Scannlain wrote in the Journal of Appellate Practice and Process: “My sense is that by watching oral arguments, Americans, by and large, will come away with a more positive outlook on our court system and on the great protections that they are offered.”
If nothing else brings our courts fully into the 21st century of technology, COVID-19 may force the issue. The global pandemic is causing every organization to rethink how it does business. Courts are not immune to the novel coronavirus, and they should not be immune from modernization to adapt to a “new normal.”
All institutions are reassessing how much of their business must be transacted in person. As the pandemic gripped the United States beginning in mid-March 2020, business and government institutions, including the legal system, proved remarkably adaptable to remote delivery of services, including everything from Supreme Court oral arguments via teleconference to long-distance document notarization.
The ability to exercise the fundamental right to view judicial proceedings should be no different. Enabling the public to watch court cases unfold from the safety of home will be a boon to the elderly, the immunocompromised, or those with mobility or transportation challenges. Members of the press and public should not have to gamble their health, and that of vulnerable people in their households, to watch hearings that can easily be telecast.
The concept that a critical mass of local observers will serve as the eyes, ears, and conscience of the community is rooted in antiquated notions of “community” grounded in location. Now that communities can exist even in our virtual world, we identify and congregate by varying personal and professional affinities as much as by geography. Thus, the appellate argument in a copyright case may be of intense interest to the “community” of fan-fiction authors, art collectors, or video-game designers, perhaps none of whom could attend personally.
Moreover, appellate hearings invariably take place many miles—at times, many hundreds of miles—away from the people most directly affected. The appeal of a federal case tried in Fargo is likely to be heard a 12-hour drive away in St. Louis. Almost no one is sufficiently interested in a 40-minute oral argument to allocate three days to attending it. We would not insist that the Fargo resident drive 24 hours round-trip to obtain a copy of a pleading that could be emailed. Why would we impose such a prohibitive price to see the case argued?
If we believe that most judges do their jobs capably and creditably, then watching them in action should enhance their stature. And if we do not believe that most judges do their jobs capably and creditably, then we have far worse concerns than cameras.
In a nationwide survey of judges, lawyers, editors, and criminologists as part of a 1957 article for the Journal of Criminal Law and Criminology, researchers gathered a range of opinions about how photography and videography would affect court proceedings. The comments of one Arizona judge typified the judiciary’s skepticism: “What general benefit could come from catering to the taste, however natural it may be, for members of the public for hearing the drama of how the knife or the bullet struck home and for the raw passion that caused the crime to be committed I am totally unable to see.”
For many in the bench and bar, television has been equated with entertainment, not the dissemination of information, conjuring up the distasteful image of life-and-death trials as spectator sport.
That oversimplified 1950s image of television, however, is less and less true as it has become our go-to purveyor of local news. Although reliance on web-based news sources continues to grow, television remains America’s preferred source of community news. In a fall 2018 survey, 41 percent of news consumers told the Pew Research Center that they prefer to get news from television, as compared with 15 percent from social media and 13 percent from print publications. And a 2018 survey by the Poynter Institute found that 76 percent of Americans—spanning the political spectrum—say they have “a great deal” or “a fair amount” of trust in their local television news, more than any other medium.
For a story to earn more than a fleeting mention on television news, it must be accompanied by video. Knowing that the judiciary needs to fortify its public legitimacy, it seems self-defeating to affirmatively avoid being seen in the most-watched and most credible place.
Cameras in American Culture
For many decades, opponents of cameras rested their objections on the physical intrusiveness of the devices and their operators, pointing back at the “media circus” environment created when the Estes trial in Texas was swarmed by camera crews. But even in its disapproving Estes decision in 1965, the Supreme Court left open a door to revisiting its position as technology made cameras less obtrusive: “It is said that the ever-advancing techniques of public communication and the adjustment of the public to its presence may bring about a change in the effect of telecasting upon the fairness of criminal trials. But we are not dealing here with future developments in the field of electronics.”
If the public of 1965 had not made the “adjustment” to the presence of cameras in daily life, the public of 2020 most assuredly has. Americans buy 160 million camera-enabled smartphones every year—more than one for every household—and YouTube estimates that, on average, more than 500 minutes of footage are uploaded to its platform every minute of every day.
We Americans are on camera from the moment we leave the doorstep (an estimated $1.6 billion was spent on “doorbell cameras” in 2019), when we take our children to school (the Department of Education says more than 80 percent of all public schools, including 94 percent of high schools, use security cameras), throughout our commutes to work (more than 400 municipalities across 23 states and the District of Columbia use red-light cameras), and wherever we park and shop (the Project on Government Oversight estimates that more than 30 million surveillance cameras are in use by private industry).
For better or worse, cameras pervade American culture. And technology has made the whirring, suitcase-sized television camera of 1965 fit silently into a shirt pocket. Judge O’Scannlain, reflecting on his observations serving in one of two circuits to permit video recording, said in 2007, “In most of our courtrooms, the cameras are so tiny and unobtrusive as not to be noticeable.” It is doubly ponderous, then, that one of the few activities for which there is a universally recognized constitutional right to observe should be a laggard in admitting remote viewers.
Perhaps the most compelling opposition argument is based on the countervailing constitutional rights of the accused in criminal cases. While justifications based on judges’ dignitary interests are easily discounted, the Sixth Amendment right to a fair trial cannot be. But that interest is greatly diminished in courtroom proceedings without witnesses and jurors, yet cameras remain largely absent at the federal appellate level. To the contrary, state trial courts, which handle the overwhelming majority of criminal cases, are far more amenable to visual coverage than are federal appellate courts, even when those appellate courts handle the noncriminal cases that make up three-fourths of their caseload.
State trial judges have effectively fashioned curative measures short of outright closure to accommodate the competing interests of public and parties, such as erecting screens that enable especially sensitive witnesses to testify in view of the jury but hidden from spectators. Federal judges already have discretion to close proceedings if, for instance, a terrorism case implicates sensitive national security disclosures, putting American operatives at risk. This case-by-case exclusion of cameras based on articulated findings that parties or journalists can appeal would represent a sounder approach than today’s categorical prohibition.
Concerns that pretrial publicity will deprive defendants of the benefit of an untainted jury greatly predate television. A generation before the first TV newscast, the 1913 slaying of teenage Atlanta factory worker Mary Phagan became the tawdry fascination of three warring local newspapers, which distributed hourly extra editions and published lurid photos of the dead girl’s corpse, helping inflame hysteria that led to the vigilante lynching of what history has concluded was an innocent Leo Frank.
But unlike television, traditional newspaper coverage relies on intermediation, which carries the risk of error or oversimplification. The “sound bite problem” cited by some skeptics—that broadcasters will select out-of-context snippets that leave a distorted impression—is not an artifact unique to broadcasting. To the contrary, if gavel-to-gavel video is readily findable online, either through the court’s own website or through an intermediary like C-SPAN, the ability to point to the unabridged see-it-for-yourself version is the most effective rumor control.
Chief Justice John Roberts’s long-standing categorical opposition to cameras seems rooted less in concern that videography will produce an inferior outcome for the parties than that videography will diminish the solemnity of the proceedings and expose the justices to ridicule. But as any fan of John Oliver’s Last Week Tonight or similar parodies can verify, that is happening already. Frustrated at the Court’s intransigence about cameras, Oliver “covered” the Court’s October 2014 arguments in a prison religious-speech case (Holt v. Hobbs) by dubbing actual audio of the proceedings over a lineup of “justices” portrayed by squirming, drooling dogs.
The growing ability to create convincing “deepfake” videos that authentically simulate speakers’ voices and expressions means that, if it is not already true that homemade “Supreme Court videos” will be virally making the rounds of social media, that day is close at hand. No amount of closure will protect courts from ridicule.
Moreover, the antidote to deception and manipulation is authentic information. Denying the public access to the most accurate source of information about what is going on inside the courts will hardly stop people from gossiping, speculating, and self-publishing dubious material that degrades respect for the judicial process.
When the Judicial Conference embarked on its 2011 experiment with video cameras, members expressed reservations that the threat of public disgrace could be manipulated to coerce publicity-shy litigants to settle. But that concern ignores what is happening in the real world. Even without broadcasting trials, heavy pressure already exists to divert cases from the courtroom.
According to a 2018 study by the National Association of Criminal Defense Lawyers, just 3 percent of federal criminal cases go to trial. In the civil justice system, studies of varying methodologies and populations have concluded that between 67 and 97 percent of cases end in pretrial settlement already, even in federal court, where there is no fear of a televised trial. And that figure fails to account for the increasing number of cases that never reach the courthouse because the Supreme Court has rejected every opportunity to rein in the growth of compulsory arbitration in commercial disputes.
Finally, the fact that televised trials might call public attention to unflattering information that private industry has sought to keep secret is, as they say in Silicon Valley, a feature and not a bug. The #MeToo awareness movement has dramatized the toxic toll of secrecy in civil litigation, as nondisclosure agreements enable predators to evade detection and victimize others.
Recently, a reporting team from Reuters was recognized with an ABA Silver Gavel Award for a series (Hidden Injustice) examining how judicially authorized sealing of hearings, court filings, and at times entire cases undermines public safety by concealing known hazardous products from consumers. As the evidence mounts that judicial secrecy exacerbates threats to public health and welfare, “dignitary” arguments about the decorum of proceedings, the reputations of the parties, or the grandstanding of counsel weigh feebly on the opposing side of an increasingly lopsided scale.
The heralded podcast Serial, a production of public radio’s This American Life team, spent its third season embedded within Cleveland’s Cuyahoga County courthouse. That’s the court where, 65 years earlier, Jim Thomas took the arraignment photo that landed his boss in jail.
A much-discussed segment during the series’ nine-episode arc takes place within the courtroom of Common Pleas Court Judge Daniel Gaul, whose discursive bench style rambles into dubiously constitutional territory as he threatens criminal defendants with harsher penalties if they father out-of-wedlock children. (A year after the podcast came out, an appellate court threw out an assault conviction rendered in Gaul’s courtroom and ordered the case retried before a new judge, finding that Gaul “took the stance of a biased advocate on the side of the prosecution.”)
As Serial co-host Emmanuel Dzotsi explains, neither defense attorneys nor defendants feel empowered to say anything when a judge makes intemperate remarks, knowing that he controls their fate. “[F]or defendants and their attorneys,” Dzotsi observes, “the strategy in Judge Gaul’s courtroom is, endure whatever he lobs at you, don’t challenge him, don’t trigger him, and you’ll probably come out OK.”
As America’s civic information lifeline becomes increasingly frayed, the question is how many Judge Gaul counterparts are purveying their personal brand of cowboy justice unwatched.
Between 2004 and 2019, one out of every five newspapers in America went out of business, a pace of failures that only accelerated during 2020 as the surviving publications saw advertising revenues halved by the COVID-19 pandemic. Outside of a handful of thriving national publications, America’s remaining newspapers have been hollowed out by layoffs and buyouts of the most-senior reporters.
It thus no longer is safe to assume that when high-stakes news is happening in the courts, there will be a well-trained independent monitor to help the public make sense of it. When the choice is video or nothing, it’s no longer worth debating whether a video livestream is the best form of public accountability.
Any notion that judges occupied a ministerial position removed from the political process evaporated with the January 2017 presidential inauguration of Donald Trump. The president has trained his social-media scorn at “Obama judges” who, in his telling, cannot fairly judge the many legal disputes in which he is embroiled because of their political provenance or ethnicity.
Because judges are in no position to defend themselves when attacked, the visible regularity of their job performance is its own defense. It is naïve to suggest that judges will lose their irreproachable place on the pedestal if their work is on public display. That pedestal has cracked. Restoring it means rebuilding trust with a skeptical public that is distrustful of secondhand accounts from mainstream media and easily misled by ideologically motivated disinformation.
Like so much of our nostalgia, any longing for the bygone dignity of the judiciary is a gauzy oversimplification.
How much faster might reforms have come had a nationwide audience been witnessing racist show trials in the segregated South? Even in the modern day, consider the case of Curtis Flowers, held for 20 years on Mississippi’s death row on a thinly supported murder conviction secured, after five retrials, by a prosecutor with a long-documented history of race-based jury strikes. It took a year-long investigation by American Public Media’s In the Dark podcasting team to awaken the public to systemic racial injustices in jury selection in Mississippi’s Fifth Circuit, supplying the documentation on which the U.S. Supreme Court drew in vacating Flowers’s conviction in June 2019.
It is unrealistic to expect that an experienced newspaper reporter will be on hand in Flowers’s hometown of Winona, Mississippi (population 4,100) and in towns like it across the country to independently monitor the conduct of prosecutors and judges. The disintegration of professional community journalism puts the duty of oversight on the public’s shoulders. For those who, unlike In the Dark podcast reporter Madeleine Baran, are unwilling to relocate to Winona for a year, that means televised proceedings.
Many of us have suffered through a proceeding with a judge or an opposing counsel who is arrogant, prejudiced, somnambulant, or otherwise unprofessional, and thought: “I wish the public could see this.” When a judge is found to have engaged in boorish courtroom conduct—telling female counsel to wear skirts or commenting on their appearance or using racially stereotypical tropes—invariably it comes to light that the remarks have been going on for years, unaddressed, because only the litigants were in the courtroom and none of them felt safe to complain about it.
If the critique is that cameras change people’s behavior, the retort is that sometimes behavior needs changing.
Several years ago, I found myself at the back of a courtroom in a southern state, supporting a friend who was arguing a significant constitutional matter. As he—a young black attorney—presented his case, an elderly white judge commandeered the oral argument. To the squirming discomfort of everyone in the courtroom and even others on the bench, he interrupted and berated the appellant’s counsel so stridently and injudiciously that, when it was over, I turned to the lawyer next to me and whispered, “He literally did everything but call him ‘Boy.’”
It is my lasting shame that, on that day, all I did was whisper and not shout. None of us said anything then, and I am not sure any of us has said anything since. That bombastic judge ended up writing a predictably intemperate opinion, adverse to my friend’s client—also a young black man—and to others in his situation. Our collective silence did a disservice to the law.
I would like to think that video would have changed that day. I would like to think that a country full of outraged viewers, unhampered by concern for contempt sanctions or bar suspension, would have called out an obvious wrong. Even if the judge remained in his well-insulated seat, his colleagues might have been emboldened to take the opinion from him or even advise him to retire.
I feel even more confident of that today, amid our belated national awakening to institutional racism, and I will feel yet more confident tomorrow. To Justice Kennedy’s admonition that television cameras would “alter the way in which we hear our cases, the way in which we talk to counsel, the way in which we talk to each other,” there is but one rejoinder: Let’s hope so.