O\u27Scannlain, Diarmuid F.

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The Journal of Appellate Practice and Process Volume 9 Issue 2 Article 7 2007 Some Reflections on Cameras in the Appellate Courtroom Diarmuid F. O'Scannlain Follow this and additional works at: https://lawrepository.ualr.edu/appellatepracticeprocess  Part of the Law and Society Commons Recommended Citation Diarmuid F. O'Scannlain, Some Reflections on Cameras in the Appellate Courtroom, 9 J. APP. PRAC. & PROCESS 323 (2007). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol9/iss2/7 This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact mmserfass@ualr.edu. SOME REFLECTIONS ON CAMERAS IN THEAPPELLATE COURTROOMDiarmuid F. O'Scannlain*I. INTRODUCTIONIn the last issue of the Journal of Appellate Practice andProcess, Justice Robert Brown of the Supreme Court ofArkansas discussed the various ways in which state high courtsaround the country are beginning to embrace technology torecord and to broadcast their oral arguments.' I plan to pick upwhere Justice Brown left off, by discussing my personalexperience with cameras in the appellate courtroom as an activeCircuit Judge on the United States Court of Appeals for theNinth Circuit. In the course of this article, I hope to articulatewhat I will call a cautious approach to the recording andbroadcasting of appellate arguments. In adopting andarticulating such an approach, I hope to explore not only thepositive consequences that such broadcasting efforts can have,but also the extent to which the oft-expressed concerns raisedabout such broadcasting efforts ought to be considered in anygiven case. And, although my experience with the videotapingof oral arguments has generally been positive, I hope to showthat such a cautious approach is preferable in that it recognizesthe integrity and independence of each court to move forward*United States Circuit Judge for the United States Court of Appeals for the Ninth Circuit.The genesis of this article lies in my testimony before the Senate Judiciary Committee inNovember 2005. See Sen. Jud. Comm., Cameras in the Courtroom, 109th Cong. (Nov. 9,2005) (testimony of Diarmuid F. O'Scannlain, J., U.S. Ct. of App. for the 9th Cir.)[hereinafter Senate Testimony]. As I noted there, the views expressed herein are mypersonal thoughts and do not necessarily reflect the views of other members of my Court orof the Court itself.1. Robert L. Brown, Just a Matter of Time? Video Cameras at the United StatesSupreme Court and the State Supreme Courts, 9 J. App. Prac. & Process 1 (2007).THE JOURNAL OF APPELLATE PRACTICE AND PROCESS Vol. 9, No. 2 (Fall 2007)THE JOURNAL OF APPELLATE PRACTICE AND PROCESSwith technological experimentation on a case-by-case basis as itsown members see fit.II. MY EXPERIENCE AT THE NINTH CIRCUITThe United States Court of Appeals for the Ninth Circuithas been at the forefront of a movement expandingtechnological access to federal appellate courtrooms. Our courtcurrently provides live streaming audio on our internal websiteand additionally makes audio playback of all oral argumentsavailable to the public through our external website the day afterthe hearing. Further, as I noted in my testimony before theSenate Judiciary Committee, all oral arguments (except inAnchorage, Alaska and Honolulu, Hawaii) are recorded on thecourt's internal videotaping system for the court's own records.2In most of our courtrooms, the cameras are so tiny andunobtrusive as not to be noticeable. In Portland, Oregon, where Ihave chambers in the Pioneer Courthouse, the camera is hiddenbehind a grate in the courtroom. This allows, among otherthings, a live feed to be broadcast into our attorney waitingroom.In addition to the audio recording and internal videorecording, the Ninth Circuit allows media organizations torequest camera access to our appellate arguments. To gain suchaccess, a member of the media need only fill out a simple formrequesting very basic information, including the name of therequesting organization, the case in which the request is beingmade, and the intent of the media organization (i.e., whether itwill be broadcast live or taped for later broadcast). The Clerk ofthe Court will then transmit the request to the panel, which cangrant or deny the request by majority vote of the judges assignedto the case. If the request is granted, the Ninth Circuit requiresmedia representatives to obey modest guidelines which requestproper attire, ban the use of flash photography or other2. Senate Testimony, supra n. *, at 112.3. See U.S. Ct. of App. for the 9th Cir., Guidelines for Photographing, Recording,and Broadcasting in the Courtroom, http://www.ce9.uscourts.gov/media/photography-rules.html?OpenDocument (providing access, in section (1)(b), to required form anddescribing acceptable practices) (accessed Feb. 4, 2008; copy on file with Journal ofAppellate Practice and Process).CAMERAS IN THE APPELLATE COURTROOMpotentially distracting filming, prohibit the broadcast of anyaudio conversations between clients and attorneys, and limit thetotal number of cameras that can be present for any single oralargument.4In my own experience, requests for camera access are moreoften than not granted. For instance, as I noted in my testimonybefore the Senate Judiciary Committee, from the time myservice began on the Ninth Circuit in 1986 until the end of 2005,I personally ruled, with fellow panel members, on forty-fourrequests for camera access. Of those forty-four instances, thepanel voted to grant access in thirty-five cases, or roughly eightypercent of the time.5 These numbers are not anomalous acrossour circuit. Since June of 1991, the Ninth Circuit has received225 requests for camera access to our courtrooms. In eight ofthose cases, either because the case was removed from the oralargument calendar or because the request was withdrawn, wewere absolved from making a determination on whether to grantor deny access. In the remaining 217 cases, however, the requestfor access was granted by the panel members in 144 cases. Thatmeans that across our circuit, since 1991, we granted access intwo thirds of the cases in which such access was requested!6And lest you think that camera requests are limited to high-profile cases, let me discuss just a few of the cases in which Ihave personally dealt with such requests. An en banc panel ofour court on which I sat granted a request for camera access byC-SPAN in Bins v. Exxon,7 which considered whether anemployee benefits plan administrator has a duty to informparticipants that it is considering a mere proposal for moregenerous retirement benefits under the Employee RetirementIncome Security Act. Another case, Keshishian v. Gonzales,8 is4. Id. at § (3)(a)-(f).5. Senate Testimony, supra n. *, at 113.6. A recent concrete example of our circuit's practice may have been beamed intoyour home on C-SPAN, which was granted camera access to one of our San Franciscocourtrooms in August 2007 to broadcast oral arguments in two high-profile cases, Heptingv. AT&T, 508 F.3d 898 (9th Cir. 2007) (severing cases), and Al-Haramain Islamic Found.,Inc. v. Bush, 507 F.3d. 1190 (9th Cir. 2007), both of which involved the federalgovernment's assertion of the state secrets privilege in litigation involving claims allegingwidespread domestic surveillance.7. 220 F.3d 1042 (9th Cir. 2000).8. 201 Fed. Appx. 445 (9th Cir. 2006).THE JOURNAL OF APPELLATE PRACTICE AND PROCESSillustrative of many of the cases that increasingly make up oureveryday workload on the Ninth Circuit. It presented thequestion of whether an Immigration Judge's adverse credibilityfinding in an asylum proceeding was supported by substantialevidence. Hardly an unimportant legal issue, but also not thetype of television likely to overtake CSI in the weekly ratings.Nonetheless, the three-judge Keshishian panel granted therequest of C-SPAN to videotape the proceedings.Of course, I have also served on panels that granted cameraaccess in high-profile cases. Perhaps the most well knownrevolved around the en banc rehearing in Southwest VoterRegistration Education Project v. Shelley,9 a case presenting thequestion of whether the California recall election of GovernorGray Davis should be enjoined as a violation of the FourteenthAmendment because of the use of punch-card ballotingmachines. In other high-profile cases, however, my fellow panelmembers and I have not allowed camera access in thecourtroom. One such example is Compassion in Dying v. Stateof Washington, where the panel grappled with the question ofwhether a state statute criminalizing the promotion of suicideviolated the Fourteenth Amendment.10 This broad range ofexperience provides me with some context in which to evaluatethe arguments in favor of, and against, cameras in the appellatecourtroom.III. CONSIDERING THE QUESTIONS RAISED BY CAMERASIN THE APPELLATE COURTROOMA. Potential DrawbacksI begin by pointing out the obvious: The willingness ofmany members of my circuit to allow camera access to theappellate courtroom, as documented in our overall statistics,does not mean that we are indifferent to the concerns raised by9. 344 F.3d 914 (9th Cir. 2003).10. The original three-judge panel opinion in Compassion in Dying is published at 49F.3d 586 (9th Cir. 1995). That opinion was vacated and the case reheard en banc. Theopinion on rehearing en banc is published at 79 F.3d 790 (9th Cir. 1996). That opinion wassubsequently reversed by the Supreme Court in the case reported as Wash. v. Glucksberg,521 U.S. 702 (1997).CAMERAS IN THE APPELLATE COURTROOMthe presence of cameras in the courtroom. In particular, I ammindful of the concern that television cameras may increase thepossibility of grandstanding by appellate lawyers or (dare I sayit) judges themselves. My personal experience, fortunately, hasbeen that as a general rule my colleagues and practitioners haveacted with the civility and decorum appropriate to a federalappellate courtroom, by and large resisting the temptation toplay to the television audience. That observation does not mean,however, that this is a concern which should not be part of thecalculus in deciding whether to grant media access in aparticular case.Another possible criticism leveled against allowing cameraaccess to appellate courtrooms is that such access mightencourage politicization of the decision process. My intuition, aswell as my experience, suggests that this concern may beoverstated. First and foremost, my colleagues and I on thefederal bench, as Article III judges, have the benefit of lifetenure-subject of course to a good behavior requirement-which serves to insulate us from political pressures and publicdisapproval.1'1 Add to that the fact that a normal day in theappellate courtroom rarely includes cases on the order ofHepting or Al-Haramain, and it becomes clear that our docket ishardly the stuff that provides the storylines for Law & Order.While every case is interesting and important in its own right,especially to the parties, most cases are unlikely to engender agreat deal of emotion from spectators or from the public at large.In addition to the rather mundane content of our dailydocket, we on the appellate bench have the benefit of time andreflection. Whereas trial courts are often fast paced, thusrequiring immediate decisions and rulings from thoughtfuldistrict judges, an appellate argument is typically followed byseveral months of deliberation and opinion-writing before anyfinal disposition is reached. Even if the public is riveted by oralarguments, unlikely in itself, the measured pace of the appellatedecisionmaking process may help alleviate public pressure evenfurther. This is especially true in the so-called controversial or11. This fact may distinguish in part the federal appellate courts from some stateappellate courts, on which the judges are elected and thus in theory are not as isolated frompolitical pressures and public disapproval.THE JOURNAL OF APPELLATE PRACTICE AND PROCESSdifficult cases, which one can safely presume will take a longertime from argument to decision.Finally, another possible criticism is that the broadcastingof oral arguments in controversial cases (however one definessuch cases) may present an additional security risk to appellatejudges. Although I recognize that there is such a potential,appellate judges, no less than district judges or legislators, arepublic officials who must stand behind their decisions. I think abetter overall response to security concerns than banning mediaaccess to appellate courtrooms is to provide a morecomprehensive approach to judicial security, an issue that hasreceived considerable public attention following a number oftragic incidents. 12B. Potential BenefitsThese potential drawbacks must be weighed in anyindividual case against the overall positive benefits that might begained by the recording and broadcasting of appellatearguments. In particular, I think the broadcasting of oralarguments may help educate the public about the work that wedo as appellate judges. I suspect that many Americans may notunderstand the multi-tiered review that is provided by ourjudicial system, and I believe that it would improve confidencein the judiciary as a whole if ordinary citizens were able to seeappellate judges performing their daily job. My sense is that bywatching oral arguments, Americans, by and large, will comeaway with a more positive outlook on our court system and onthe great protections that they are afforded.In addition, the televising of oral arguments may increasethe accuracy of reporting on the cases that we hear, therebyhelping-I hope-to de-politicize the perception of the federaljudiciary. As I noted in my testimony before the SenateJudiciary Committee,[w]hen barred from the courtroom, the news media is ableonly to report on court holdings, rather than process. Thispropagates the unfortunate view that appellate courts are12. See e.g. Court Security Improvement Act of 2007, Sen. 378, 110th Cong. (Jan. 24,2007) & H.R. 660, 110th Cong. (Jan. 24, 2007).CAMERAS IN THE APPELLATE COURTROOMresults-oriented bodies, rather than thoughtful, deliberativeerror-correcting panels engaged in technical analysis andthe application of legal reasoning.13For instance, in the case involving the California gubernatorialrecall election, our limited en banc court of eleven judges,appointed by various Presidents over the years, was ultimatelyunanimous in deciding that the election should not be enjoinedThe televising of oral arguments in that case may have helped toinform the public and the news media that these eleven judgeswere not partisan advocates, but were non-political actorsattempting to reach the proper legal resolution to a difficult casein a very brief period of time. In short, putting the entire processout may have actually de-politicized the proceedings byallowing the public to make its own informed judgments, ratherthan having its experience of the case filtered through someother medium.Finally, I think there is a general benefit to showingAmerica that our courts are open and our proceedings are notsecretive. The appearance of impropriety or bias is often bestcounter-acted by allowing the public to witness proceedingsfirst-hand. And while for obvious reasons there will be much ofour deliberative process that the average citizen will never see,the broadcasting of oral arguments might go a long way towardsconvincing parties and bystanders alike that appellate judges arecompetent, careful, and well-intentioned protectors of the idealsof an independent judiciary.IV. CONCLUSIONOf course, every court is unique and I would not presumeto decide for any other appellate court (most of all, the SupremeCourt of the United States) whether broadcast organizationsshould be allowed camera access to the courtroom. Moreover, Ibelieve strongly that such decisions must be made not on thebasis of any blanket rule, but instead should be considered on a13. Senate Testimony, supra n. *, at 117 (emphasis in original).14. See Shelley, 344 F.3d 914, 920 (holding that "the district court did not abuse itsdiscretion in concluding that plaintiffs will suffer no hardship that outweighs the stake ofthe State of California and its citizens in having this election go forward as planned and asrequired by the California Constitution").330 THE JOURNAL OF APPELLATE PRACTICE AND PROCESScase-by-case basis, with a thoughtful and complete inquiry intothe particular circumstances presented. It may be in some casesthat security concerns are more prevalent, or that the potentialfor grandstanding is more real. A case-by-case inquiry providesdue allowance for such variations.Notwithstanding these preliminary cautions, my ownexperience on the appellate bench with cameras in thecourtroom has been overwhelmingly positive. In my view, atleast at the intermediate federal appellate level, the concernsover the broadcasting of oral arguments are minor, while thecorresponding potential benefits are compelling. And while it isimportant to recognize that not all courts are alike, and that eachcourt must decide for itself how much access to allow and atwhat pace, I am greatly pleased by the increased willingness onthe part of other courts, as documented by Justice Brown, tomove in a more open direction.

Some Reflections on Cameras in the Appellate Courtroom

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Some Reflections on Cameras in the Appellate Courtroom

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