Fix the Court looks to Congress to act on free access to court documents, expanded broadcast access

Washington – Fix the Court is applauding House Judiciary’s Courts Subcommittee for considering reforms to broaden access to federal courts, as members of both parties at a hearing yesterday criticized the third branch for restricting argument audio and for charging fees to view court records. Yet FTC is concerned that its own organizational successes, as well as the mischaracterization of the costs to run a basic website (i.e., PACER), may be used to stem the tide of reform.

Rep. Doug Collins, the ranking member of the full committee and lead sponsor of a bill that would make PACER free, criticized the U.S. Courts’ failure to keep up with modern technology. “State courts and law firms are in sports cars,” he said,” while the federal courts are riding bicycles.” Rep. Jerry Nadler, chair of the full committee, blasted the judiciary’s reluctance to improve access. “It is surprising and disappointing that our own courts have been so willing to keep their doors closed, and have so grudgingly allowed them to be opened, even a crack, to the public,” he said.

Prior to the hearing, FTC obtained the statements from Judges Audrey Fleissig (E.D. Mo.) and Richard Story (N.D. Ga.), who represented the Judicial Conference. Most egregious among their many claims as to why courts couldn’t modernize was that the annual cost to run PACER and other public access points amounted to more than $159 million. FTC’s response to their claims can be found here.

Elsewhere in her testimony, Judge Fleissig said that courts were in fact opening up, noting that several circuit courts permit live argument audio and others permit video. Yet she failed to account for why those courts have done so – years of pressure from FTC and other groups, not on account of civic duty or a presumption of access.

“In an odd turn, the courts are now using our successes against us,” FTC’s Gabe Roth said. “It was us who convinced the D.C. Circuit to livestream argument audio, who’s pushed the Fourth Circuit to do the same and who’s worked with members of Congress to write to the Supreme Court on same-day audio. But we shouldn’t have to beg for the easiest of fixes to be implemented. Broadcast should be a given and should be uniform. It makes no sense that a litigant in Seattle can watch her case live online while one in Atlanta must wait a day to obtain merely an audio recording.”

Witness Jeff Toobin, legal analyst at CNN, argued that public access to the courts required audio and video streaming. “In the 21st century, the only meaningful definition of ‘public’ is one with audio and visual access.”

Another witness, Sunny Hostin from ABC News, focused on the impact of lack of transparency on the African American community. After discussing the disproportionately high rates of incarceration among that community, and the mistrust it fosters, she said, “There exists no better cure for fundamental mistrust and perceived illegitimacy of the system than transparency of the courts that define it, in particular the highest court in the land.”

Seamus Hughes of George Washington University said that PACER is “maddening,” and that congressional action is needed to fix it. “Not only is PACER expensive, it is also difficult to traverse. It is only by learning and working around the idiosyncrasies of PACER that I have been able to inform the public of matters that would otherwise remain buried.”

“Now that the Committee has heard from experts, it’s time for action,” Roth said. “Congress should pass legislation to expand broadcast access by requiring live audio in circuit courts and same-day audio in the Supreme Court. In addition, PACER should be streamlined and should be made free. After all, public records belong to the public.”

Several prominent state court judges submitted written testimony ahead of today’s hearing, including Chief Justice Maureen O’Connor of the Ohio Supreme Court, Chief Justice Beth Walker of the West Virginia Supreme Court of Appeals, Chief Justice Bridget Mary McCormack of the Michigan Supreme Court and Judge Steve Leben of the Kansas Court of Appeals.

The judges’ statements all supported expanding broadcast access in federal courts. “The transparency made possible by modern technology makes our courts accessible to citizens no matter where they are,” Chief Justice Walker wrote. “Live streaming also enables the public to see our proceedings in real time and demonstrates our commitment to accountability to the rule of law.”

For information on the state of broadcast in federal judiciary, click here. For a more detailed, circuit-by-circuit account, click here.

For information on the history of PACER, click here. For a discussion of how a free version of PACER could be paid for, click here.