Irony Alert: Supreme Court Refuses to Allow Public to Hear Free Speech Case Live

by on October 27, 2008 · 12 comments

Like many others, I have long been troubled by the fact that the Supreme Court does not allow TV cameras or live audio coverage of the cases it hears.  I know all the arguments against live video or audio coverage and I find them all quite unconvincing when weighed against the public’s right to hear the oral arguments and decisions that will have such a direct bearing on their lives and liberty. We should be allowed to see, or at least hear, these arguments and decisions as they happen.

Anyway, as I was reading through an article today in Broadcasting & Cable about how “C-SPAN Seeks Oral Argument Tapes in Fox Swearing Case,” I couldn’t help but think about how particularly ironic it was that our nation’s highest court would be considering one of the most important free speech cases in decades — FCC v. Fox — and it yet wouldn’t be allowing any of us to listen in live when it takes place on November 4th! If we are lucky, the Court might grant C-SPAN expedited access to the tapes of the arguments, but it may be that we have to wait many weeks to hear what was said.

Seems silly to me. Worse yet, it means I will have to camp out in front of the Supreme Court the night before and freeze my butt off in the hope of getting a seat in the courtroom to hear the live argument! Which brings up the final bit of irony I always like to point out about restricting cameras and microphones from courtrooms: Why are they letting anyone in the courtroom at all if they so fear instantaneous public access to the arguments?

  • http://jerrybrito.com Jerry Brito

    Hey Adam- You're always giving me crap about my obsession with transparency, so here's some of your own medicine.

    While you may be right that the people have a “right to hear the oral arguments and decisions that will have such a direct bearing on their lives and liberty,” I'd love to hear why you think they have a right to a live broadcast of said arguments. It's not as if what happened in the courtroom isn't going to get reported on wire services and blogs within minutes of the hearing ending. The Court also publishes a full transcript on their website on the same day of an oral argument.

    Second, you ask rhetorically, “Why are they letting anyone in the courtroom at all if they so fear instantaneous public access to the arguments?” You assume that what the court fears is “instantaneous public access.” Where did you get this? When I've heard justices speak on this matter they always seem to say that they don't want is the sort of preening from lawyers and justices that we would see if they knew there were millions watching. (Remember the O.J. trial?) So why are they letting anyone in? Because letting in a hundred people (and then releasing the transcript and tapes) is not the same thing as letting in several million viewers.

    I do agree with you that we shouldn't “have to wait weeks to hear what was said.” The FAQ at Oyez.org says, “Since the Court is now recording its sessions digitally, it is likely that the time from accessing the files to releasing the files for duplication should take a few weeks rather than a few months.” That's still pretty crazy. Why should it take more than a day or two?

  • http://www.techliberation.com Adam Thierer

    Touche, Brito! You are certainly justified in calling me out on this considering the endless grief I have given you over the years about transparency. However, as you know from our past arguments, I am all for radical transparency; what I give you grief about is making it a priority over making the case for a repeal of the rules and regulations in question. Of course, as you fairly point out in response, sometimes the best way to make the case against certain rules is to first get as much info out in the open as possible. But I just can't personally justify a huge investment of my own time in calling for more transparency of a system when I find the systems in question completely unjust, unwarranted, or unconstitutional.

    Second, why do I stress the importance of “live” broadcasts as opposed to taped delays or transcripts? Because people deserve access the unfiltered and immediate truth when it comes to how their government does business. Transcripts are great, but sometimes you need to see and hear how things are done to appreciate the nuances of policy (especially when we are talking about oral arguments and questioning in court).

    Finally, the argument that judges can't be trusted to be seen on television or heard on radio is rubbish. The OJ case and Judge Judy are anomalies; those are circus-like environments. The vast majority of judges wouldn't play ball that way. Moreover, if you really believe this argument, then we should also get C-Span cameras out of the House and Senate.

  • http://jerrybrito.com Jerry Brito

    Hey Adam- You're always giving me crap about my obsession with transparency, so here's some of your own medicine.

    While you may be right that the people have a “right to hear the oral arguments and decisions that will have such a direct bearing on their lives and liberty,” I'd love to hear why you think they have a right to a live broadcast of said arguments. It's not as if what happened in the courtroom isn't going to get reported on wire services and blogs within minutes of the hearing ending. The Court also publishes a full transcript on their website on the same day of an oral argument.

    Second, you ask rhetorically, “Why are they letting anyone in the courtroom at all if they so fear instantaneous public access to the arguments?” You assume that what the court fears is “instantaneous public access.” Where did you get this? When I've heard justices speak on this matter they always seem to say that they don't want is the sort of preening from lawyers and justices that we would see if they knew there were millions watching. (Remember the O.J. trial?) So why are they letting anyone in? Because letting in a hundred people (and then releasing the transcript and tapes) is not the same thing as letting in several million viewers.

    I do agree with you that we shouldn't “have to wait weeks to hear what was said.” The FAQ at Oyez.org says, “Since the Court is now recording its sessions digitally, it is likely that the time from accessing the files to releasing the files for duplication should take a few weeks rather than a few months.” That's still pretty crazy. Why should it take more than a day or two?

  • http://www.techliberation.com Adam Thierer

    Touche, Brito! You are certainly justified in calling me out on this considering the endless grief I have given you over the years about transparency. However, as you know from our past arguments, I am all for radical transparency; what I give you grief about is making it a priority over making the case for a repeal of the rules and regulations in question. Of course, as you fairly point out in response, sometimes the best way to make the case against certain rules is to first get as much info out in the open as possible. But I just can't personally justify a huge investment of my own time in calling for more transparency of a system when I find the systems in question completely unjust, unwarranted, or unconstitutional.

    Second, why do I stress the importance of “live” broadcasts as opposed to taped delays or transcripts? Because people deserve access the unfiltered and immediate truth when it comes to how their government does business. Transcripts are great, but sometimes you need to see and hear how things are done to appreciate the nuances of policy (especially when we are talking about oral arguments and questioning in court).

    Finally, the argument that judges can't be trusted to be seen on television or heard on radio is rubbish. The OJ case and Judge Judy are anomalies; those are circus-like environments. The vast majority of judges wouldn't play ball that way. Moreover, if you really believe this argument, then we should also get C-Span cameras out of the House and Senate.

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