Although legislation to allow video coverage of proceedings has been circulating since at least the 105th Congress, none of the bills has been enacted, according to a new report.
The verdict is still out on whether to allow televising and/or webcasting of Supreme Court and other federal court proceedings, according to a Nov. 8 Congressional Research Service (CRS) report obtained by the Federation of American Scientists.
The Supreme Court has never allowed live electronic media coverage of its proceedings. Federal rules bar photographing or broadcasting judicial proceedings in criminal cases at federal courts. And the U.S. Judicial Conference prohibits televising, recording and broadcasting district trial court proceedings in both civil and criminal cases.
Although legislation to allow video coverage of such proceedings has been circulating since at least the 105th Congress, none of the bills has been enacted, according to the CRS report.
“Some advocates of electronic media coverage of federal court proceedings have said that advanced technology can give Americans a virtual front-row seat in a courtroom, via television and other electronic formats such as the Internet,” the report states. “Opponents of such coverage, however, are concerned that it could have a detrimental effect on court proceedings and could raise security and privacy concerns.”
At the April 4 House hearing on the Supreme Court’s budget request for fiscal 2007, Justice Clarence Thomas expressed concerns that televising the court’s proceedings would risk undermining the manner in which it considers cases, the report adds.
“He noted that while some justices felt more strongly than others, the ‘general consensus’ was ‘not one of glee,’” the report states.
Of the five bills that would allow electronic media coverage, three would grant discretionary authority to presiding judges to permit photographing, electronic recording, broadcasting or televising of district and appellate court proceedings, including Supreme Court proceedings. The other two bills, S. 1768 and H.R. 4380, would require televising all open sessions of the Supreme Court only.
H.R. 4380 is pending in the House Judiciary Committee’s Courts, the Internet and Intellectual Property Subcommittee. The Senate Judiciary Committee reported out S. 1768 in March. It now waits on the Senate Legislative Calendar.
The bills are not on Congress’ radar right now, said Jack King, a spokesman for the National Association of Criminal Defense Lawyers (NACDL). The group supports cameras in the courtrooms, as long as both the prosecution and the defense consent to them.
At a time when e-surveillance and several judicial nominations are on the table, “it’s not a hot-burning issue either politically or domestically,” King said.
King predicts Congress will pass some form of legislation on the matter in the next two years, but he doubts the new Congress will get to the issue next year.
“No doubt Congress will be consulting with Chief Justice [John] Roberts before revising or drafting the bills,” King said.
During the next Congress, Sen. Patrick Leahy (D-Vt.) – the incoming Senate Judiciary Committee chairman – will likely introduce legislation similar to the Senate’s current two bills, both of which he co-sponsored, Leahy spokeswoman Tracy Schmaler said.
Broadcasting federal court proceedings fits into Leahy’s broader agenda of creating a more open government, partly by using technology to allow more access to government information.
“Leahy will continue his efforts in the 110th Congress to encourage sunshine in government and that includes broadening the public’s access to proceedings before the Supreme Court,” Schmaler added.
There is also bipartisan opposition. The CRS report cites the view of Sen. Jeff Sessions (R-Ala.) that political pressure should not be placed on the courts. It quotes Sen. Tom Coburn (R-Okla.) as saying that televising proceedings “will ruin the third branch of government.” Rep. Steny Hoyer (D-Md.) is reportedly opposed to publicly televising court proceedings because it would change their character, the report adds.
Opponents say permitting cameras in the courts could adversely affect judicial proceedings.
Security is a serious concern in civil and criminal trial courts, especially in light of recent violent attacks on judges and court employees, according to the report. In addition, some observers fear that broadcast proceedings could reveal private information about witnesses, which might intimidate or discredit them, or hinder their willingness to testify, the report states.
Justice Anthony Kennedy and others have said that oral arguments do not give the complete picture of the Supreme Court’s work, according to the CRS report. Justices do most of their decision-making alone before deliberating in private with the other justices. Justice Antonin Scalia added that the resultant sound bites that are broadcast would misinform, rather than inform, the public.
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