Will federal appeals courts continue to livestream their arguments after the pandemic?

In 2020, amid fears that any in-person meeting would spread the coronavirus, many federal courts began meeting online, streaming audio of oral arguments for the first time. These included the Supreme Court, nine of the 13 federal appeals courts, and more than a dozen district courts.

At least some members of Congress have taken notice. Two House members sent letters to circuit courts asking if they would continue to livestream when the pandemic ends. In response, the U.S. Courts Administrative Office wrote that “all but one of the appellate courts have indicated that they will consider continuing to stream oral argument live after the pandemic ends or have already decided to do so.”

This suggests that, for some federal appeals courts, live streaming has brought benefits. Circuit judges, however, have embraced technological innovations for decades, including live streaming and videotaping of oral arguments: United States Court of Appeals for the 9th Circuit. Its trajectory could offer lessons for other courts as they decide what to do this fall, potentially offering citizens insight into how these intermediate appellate courts – whose decisions are final in nearly all federal cases – work. of a call.

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The 9th Circuit’s Path to Live Video

In a recent press release, the 9th Circuit, which covers most of the western United States, explained its status as a technological innovator. He began offering previously recorded oral arguments via a YouTube channel from 2010; broadcast live some important cases from 2012; and live video of all normal pleadings beginning in January 2015. As early as 1991, the 9th Circuit allowed media to request the ability to bring still or video cameras into the courtroom for civil cases.

Research reveals that state courts are learning from each other’s experiences with technological innovations. In the federal court system, the willingness to cite the opinions of other appellate courts—which are not precedents that other appellate courts are required to follow—suggests that they also learn from each other.

In a forthcoming article, my co-author and I find that 9th Circuit appellate judges were previously selective about the public image they presented. In the courts of appeal, colleges of three judges hear the oral arguments presented by the lawyers. From 1991 to 2005, when a media outlet requested the ability to cover a case with video cameras, judges were more likely to deny such requests when panel members disagreed with each other on the law and politics.

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The 9th Circuit is notable for its size and the high rate at which the Supreme Court overturns its decisions. Nevertheless, other courts that attempt greater transparency may, like the 9th, be willing to dive deeper into time.

Even before the pandemic, different appellate courts took different paths. Three had already experimented with live audio streaming: the 2nd, 4th and DC circuits. As the pandemic subsided, an appeals court, the 11th, has already stopped the live broadcast.

Several appeals courts have turned to YouTube during the pandemic. According to data compiled by Fix the Court, nearly all appeals courts have hosted live audio streams on YouTube, and five – the 4th, 5th, 7th, 9th and DC Circuits – still keep recordings on YouTube for viewing. later. This is a major change from only a few appeal courts having YouTube pages in March 2020.

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Research shows benefits and risks of transparency

A basic argument in favor of transparency is that live streaming of the pleadings gives Americans a better understanding of what is happening in a courtroom. Live streaming should increase the amount of information people have about the courts. Citizens’ knowledge of facts about federal courts is low, although researchers disagree on the precise level. Even if citizens did not follow oral arguments themselves, journalists could on their behalf, providing better reporting on the legal content of cases. This would be particularly useful for television journalists, who report less legal content than print journalists. Being able to use audio or video hosted online – and therefore allow the public to hear from judges or lawyers, rather than journalists summarizing their discussions – could allow TV reporters to better inform their viewers.

Informed citizens are important for several reasons. More aware citizens should be more likely to notice if a court strays too far from public opinion. Federal judges are not running for re-election, but research shows that federal judges are susceptible to pressure from Congress. Well-informed citizens can send a signal, through Congress, to a court that it is irrelevant.

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Research also shows that citizens’ knowledge of the federal courts and their attitudes are linked. High-profile cases, such as those involving Hillary Clinton and Michael Flynn, can attract tens of thousands of streamers. This audience hears the facts of these cases and, more broadly, learns about the role and function of the appellate court. A study of 18 national courts showed that the more a person knows about a court, the more they consider that court to be legitimate. Knowledge and legitimacy become linked because when people pay attention to the courts, they also see or hear things that portray judges as different from politicians. When audio is broadcast live, this effect can occur when a listener hears judges repeatedly calling “your honor”.

Some argue that listening to or watching judges at work could damage their reputation for being above politics. When citizens view the courts as political, they begin to view them as less legitimate.

Perhaps that’s why, in our research, we found that 9th Circuit appellate panels are less likely to allow cameras in the courtroom when their views on the law and politics are far apart. The judges may have initially worried that their differences would be interpreted as political – a fear that appears to have dissipated.

It is too early to say for sure how the views of appellate judges on transparency have changed. Based on how several appeals courts are now embracing YouTube, it seems likely that some will maintain their current transparent practices even after the national emergency ends. For those who continue, and perhaps even embrace new innovations like live video, the downstream benefits of live streaming could be important to understanding federal courts.

Christopher D. KromphardtPhD, (@cdkromp) is Head of Education Support Services at the University of Iowa Center for Public Policy, whose research focuses on judicial behavior, public opinion, and blended learning.

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