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All U.S. Appeals Courts Embrace Argument Streaming Due to Covid

Aug. 4, 2020, 8:47 AM

All 13 federal appeals courts now are livestreaming oral arguments compared to four prior to the pandemic, the latest sign of how Covid-19 has made U.S. courts more transparent.

The embrace of live audio or video by federal and state courts that’s attracting audiences in cases from Washington to Hawaii has advocates hopeful that increased public access will remain even after the pandemic ends.

“People’s sense of what actually happens in a court setting is fairly elementary,” said Jeremy Fogel, executive director of the Berkeley Judicial Institute. “I think it’s good for the public to see what courts do,” Fogel said.

And there’s no better way to keep the public informed on how the government works than offering it “on a platform that meets people where they are,” said Gabe Roth, executive director of watchdog Fix the Court.

The Supreme Court got the most attention in May when it conducted 10 arguments via telephone and livestreamed the proceedings to the public for the first time ever.

The public has also shown interest in live audio or video offered by the federal appeals courts, of which the U.S. Court of Appeals for the Sixth Circuit, based in Cincinnati, became the last adoptee on July 28.

Appeals Courts

June arguments in cases involving Hillary Clinton and former Trump National Security Adviser Michael Flynn attracted 89,000 and 92,000 listeners, respectively, according to Elizabeth Paret, circuit executive for the U.S. Court of Appeals for the District of Columbia Circuit.

That’s up from audiences of about 2,000 to 3,000 that listened to big cases before the pandemic. The D.C. Circuit is one of the two appeals courts that regularly offered live audio for years before the pandemic. The other is the California-based Ninth Circuit, which also provides live video.

Paret said the spike in engagement could hold after the virus is gone now that the public knows these resources are out there.

“There’s an expectation now that if you can do it, why not do it?” Paret said of offering live streaming. “There’s no downside.”

Not every federal appeals court that adopted livestreaming is certain to keep it once the pandemic is over, according to Bloomberg Law interviews with court administrators in eight of the 13 appellate branches.

Chris Wolpert, clerk of court for the Denver-based Tenth Circuit, said the court is including live audio access now “purely as a response to the pandemic and to facilitate public access to the proceedings.”

The decision to keep using the technology will be something the full court will want to address when the pandemic is over, Wolpert said.

State Court Streaming

Several state courts also are live streaming their arguments, and that’s also driving up engagement.

Hundreds of viewers logged onto the Hawaii Supreme Court’s first-ever remote oral arguments over a water rights case affecting residents in Maui.

Live streaming “made us more accessible to people who might not have come into the courthouse,” said Mark Recktenwald, chief justice of the Hawaii Supreme Court. Inner-island travel restrictions due to the virus would’ve prevented residents from flying to Honolulu.

“So proud to see the Hawaii Judiciary always working to increase public #accesstocourts,” Twitter user Andres Y. Gonzalez said May 5.

Jonathan Hurtarte/Bloomberg Law

Similarly, a Michigan Court of Claims hearing regarding the governor’s emergency powers has garnered almost 50,000 views, according to John Nevin, communications director at the state’s Supreme Court.

Former East Lansing, Mich. Mayor Nathan Triplett advertised the livestream to his Twitter followers the day before the argument.

Jonathan Hurtarte/Bloomberg Law

Supreme Court

Despite one major gaffe during the Supreme Court’s live streamed oral arguments—a toilet could be heard being flushed during one session—court watchers say that experiment went remarkably well.

The justices heard 10 arguments in six days. The change in format, in which the justices took turns asking questions as opposed to the normal free-for-all in the courtroom, enticed the usually reticent Justice Clarence Thomas to ask questions.

Although the court hasn’t announced plans for the fall term, the justices likely are to continue live, remote hearings as long as the pandemic continues to require social distancing. Six of the nine justices are over 65, and one, Ruth Bader Ginsburg, is undergoing cancer treatment.

One change unlikely at the Supreme Court: live video. The justices are opposed to cameras in the courtroom and have even opposed same-day audio for high-profile cases in recent terms.

Future Use

When it comes to live audio, at least, there’s no downside, Fogel said. He and Roth expect the practice to stick around after the pandemic. But court staffers said they’re reluctant to make predictions.

“The court has not yet made a decision about any future post-pandemic plans,” said Jarrett B. Perlow, chief deputy clerk for the Federal Circuit in Washington.

Other courts said the remote access they provided before the pandemic was sufficient.

Michael Gans, clerk of court for the St. Louis-based Eighth Circuit, said audio recordings of oral arguments have been posted on the court’s website for more than 20 years. “The audio is generally posted within an hour of the close of the day’s sessions and most listeners have found that satisfactory,” he said.

Collins T. Fitzpatrick, circuit executive for the Chicago-based Seventh Circuit, said he wasn’t sure if the court would keep the live audio access but noted that pace of change has quickened during the pandemic.

“The rate of change in the judiciary and the legal process has been amazing during this process,” Fitzpatrick said.

—With assistance from Kimberly Robinson

To contact the reporters on this story: Madison Alder in Washington at malder@bloomberglaw.com; Allie Reed in Washington at areed@bloombergindustry.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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