Some of the most significant news stories of the past few weeks have played out in federal court. A federal jury in Massachusetts found Dzhokhar Tsarnaev guilty of all counts in the Boson Marathon bombing trial. A federal appeals court in New Orleans weighed President Obama’s recent executive actions on immigration. And the U.S. Supreme Court held oral argument in cases that may derail the Affordable Care Act and extend same-sex marriage across the country.
Despite the profound impact of those cases on policy and politics – not to mention the parties themselves – not a single hearing was photographed or recorded on video. Indeed, with some notable exceptions, federal courts bar the press from recording or broadcasting their proceedings. Consequently, the American public has few ways to judge for themselves what actually happens in their federal courtrooms.
To shed some light on the Third Branch, Congress is considering legislation to permit cameras in the courtroom. The Sunshine in the Courtroom Act, introduced as H.R. 917 in the House and S. 783 in the Senate, would authorize the presiding judge of each appellate panel (including the Chief Justice of the Supreme Court) to "permit the photographing, electronic recording, broadcasting, or televising to the public of any court proceeding over which that judge presides." District court judges would be given the same discretion, with provisions to obscure non-party witnesses and to forbid coverage of jurors and voir dire. In addition, the separate Cameras in the Courtroom Act, introduced as H.R. 94 in the House and S. 780 in the Senate, would require the Supreme Court to "permit television coverage of all open sessions of the Court." Each bill would allow judges to bar cameras when they would constitute a violation of a party's due process rights.
Last year, Congress debated similar bills that failed to advance from committee. Although the legislation had bipartisan support, it was opposed by the Judicial Conference of the United States, which sets policy with regard to the administration of federal courts. Representing the Judicial Conference before a House subcommittee, U.S. District Judge Julie Robinson testified that cameras in the courtroom would "impair substantially the fundamental right of citizens to a fair trial." She also feared that cameras could be used as a trial tactic and create security concerns. She accurately reminded the subcommittee that there is no constitutional right to have cameras in the courtroom. See Estes v. Texas, 381 U.S. 532 (1965).
Following Estes, however, the U.S. Supreme Court clarified that state courts may experiment with cameras because they do not inherently violate due process. Chandler v. Florida, 449 U.S. 560, 574 (1981). With that blessing, all 50 state supreme courts allow television cameras to some degree. Here at home, the Supreme Court of Ohio even live-steams its oral arguments and archives those videos for public digest. Moreover, the Rules of Superintendence for the Courts of Ohio create a presumption of allowing cameras in the courtroom. Under Sup.R. 12, "[t]he judge assigned to the trial or hearing shall permit the broadcasting or recording by electronic means and the taking of photographs in court proceedings that are open to the public as provided by Ohio law." (Emphasis added).
Congress should examine the impact that cameras have had on state courts when weighing their potential effects on the federal judiciary. Cameras have great potential to inform the public about federal courts and build confidence in that system by giving people the opportunity to see and judge for themselves how their government is working.