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Could the Pandemic Prompt Federal Judiciary to Allow the Public and Press to View Conferenced Proceedings?

It was no surprise Friday that the Supreme Court postponed its April oral arguments because of the COVID-19 pandemic. It had done so for March arguments as well.

But the court added an intriguing sentence to its press release: “The court will consider a range of scheduling options and other alternatives if arguments cannot be held in the courtroom before the end of the term.”

The court did not spell out what “other alternatives” the justices had in mind. But if arguments can’t be held in the court’s vaulted marble chamber, at least one alternative could be videoconferencing, allowing the justices and lawyers arguing cases to conduct proceedings from multiple locations. And if that occurs, it is hard to imagine that the court would keep the press and public from watching.

This alternative is a long shot. As discussed last month, the high court is deeply leery of broadcasting its proceedings in any shape or form. And with a hot bench — eight of the nine justices engage in rapid-fire questioning — videoconferencing might devolve into an unintelligible mishmash of interruptions.

But the justices don’t have to look far to view a test run of how it might work in another setting; namely, the lower federal courts.

Last week the Judicial Conference of the United States, the policy arm of the federal judiciary, approved the use, at least until the pandemic ends, of multi-location videoconferencing and teleconferencing in lower court proceedings, both civil and criminal. And after some hesitation, it also said that the press and public should be allowed to view the proceedings.

It should be noted right away that the Judicial Conference does not make policy for the Supreme Court at all, so its actions don’t mean that the Supreme Court would follow suit. But Chief Justice John Roberts Jr. is its presiding officer and justices pay attention to what lower court judges do.

On March 29, the Judicial Conference gave the green light to public access to conferenced civil proceedings. In a separate memorandum to all federal judges, James Duff, director of the Administrative Office of the U.S. Court, encouraged judges to use “teleconference technology” to provide the public and media audio access to civil proceedings.

On Friday the conference announced that the media and public will be allowed to view or listen to conferenced criminal proceedings as well. The announcement said the actions were taken because “many courts have taken emergency steps to protect the health and safety of judges, court staff, the parties to cases, attorneys and the public by closing or severely restricting entry to courthouses and courtrooms.”

The conference hesitated at first because the longstanding Rule 53 of the Federal Rules of Criminal Procedure states that federal courts “must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”

But the judiciary on Friday said it was allowing access to “the usual participants and observers of such proceedings,” including “not only defendants, lawyers, probation and pretrial services officers and court personnel, but also others who normally participate in or observe such criminal proceedings, including victims, family members, the public and the press.”

The concept of allowing the public to observe trials is well-established. In two major freedom of press cases, the U.S. Supreme Court has ruled that the public and news media have a First Amendment right to view criminal proceedings.

“We are bound to conclude that a presumption of openness inheres in the very nature of a criminal trial under our system of justice,” Chief Justice Warren Burger wrote in the 1980 Richmond Newspapers, Inc. et al v. Virginia et al decision. “Closed trials breed suspicion of prejudice and arbitrariness, which in turn spawn disrespect for law,” Justice William Brennan Jr. wrote in a concurrence.

In a follow-up decision two years later titled Globe Newspaper Co. v. Superior Court for the County of Norfolk, Brennan again stressed the value of open trials. “Public access to criminal trials permits the public to participate in and serve as a check upon the judicial process — an essential component in our structure of self-government. In sum, the institutional value of the open criminal trial is recognized in both logic and experience.”

Katie Townsend, legal director of the Reporters Committee for Freedom of the Press, said in a Washington Post article that the judiciary should allow access. “While courts can and should utilize new technology to continue to hold necessary criminal hearings while courtrooms are physically closed, that same new technology also can and should be used to ensure that those hearings continue to be open to the public, as they normally would be.”

The Supreme Court has not ruled specifically that the public has a First Amendment right to attend civil trials and hearings. But numerous federal appeals courts have cited the Richmond Newspapers case to expand the right to civil proceedings. In the 2020 decision titled Courthouse News Service v. Planet, the U.S. Court of Appeals for the Ninth Circuit stated, “Both our common experience and the logical extension of First Amendment principles lead to the conclusion that the press’s right of access to civil proceedings and documents fits squarely within the First Amendment’s protections.”

Tony Mauro is contributing U.S. Supreme Court correspondent for the National Law Journal and ALM Media, and a special correspondent for the Freedom Forum.

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