Only 26 percent of Fix the Court’s requests for expedited audio or video access for federal court hearings since 2017 have been granted, according to a new analysis released today.
Working on its own and with partners in Congress and in the media, FTC has sought expanded access for 31 hearings over three years, covering issues like abortion, the death penalty, the travel ban and emoluments, among others, with only eight requests granted: two in CADC (live audio) and one each in SCOTUS (same-day audio), CA2 (live audio), CA3 (video), CA4 (live audio), CA5 (expedited audio) and CA10 (same-day audio). The 23 denials have spanned nearly every federal court of appeals.
The uneven response from SCOTUS and the circuits reflect the larger, irksome differences in broadcast policy among the nation’s 14 federal appeals courts.
“All federal courts follow the same Constitution, so the differences in procedure among them are baffling,” FTC executive director Gabe Roth said. “Despite some important victories on broadcast over the last few years, the judiciary’s overall posture – that courts are permitted to shield their public exercises from the vast majority of the public – should not stand. This calls out for congressional action.”
FTC played an integral role in the only instance over the past three years in which the Supreme Court allowed expedited audio of oral arguments. The organization worked with Sens. Ted Cruz (R-Tex.) and Mazie Hirono (D-Hawaii) on a letter to Chief Justice Roberts requesting same-day audio in the travel ban case, Trump v. Hawaii (17-965), argued in Apr. 2018. FTC also worked with six House members on a similar letter.
Livestreamed audio was granted in an earlier travel ban argument, this one in the Fourth Circuit, IRAP v. Trump (17-2231, argued 12/8/17). FTC’s request was joined by local NPR in Richmond and was aided by a contemporaneous C-SPAN request.
Elsewhere, the Fifth Circuit this summer assented to our request, for which we were joined by NABJ-Dallas and RTDNA, to release audio one hour after argument for In re: Rebekah Gee (19-30353), now known as the abortion case headed to SCOTUS next year. The circuit had done the hour delay for U.S. v. Texas (19-10010), an Affordable Care Act case argued in July, after the same three groups had requested a live audio stream but were denied.
Though the Second Circuit denied FTC’s request for live audio in Herrick v. Grindr (18-396), a Communications Decency Act Section 230 liability case in Jan. 2019, and denied C-SPAN’s motion for video in the Zarda v. Altitude Express (15‐3775) en banc in Sept. 2017, the court did encourage FTC to work with C-SPAN on a live audio request in Trump v. Vance (19-3204), which it did, and the request was granted for the Oct. 2019 hearing.
The Third Circuit records video for most oral arguments, but this spring FTC noticed that a few months had passed since an argument video had been posted, so the organization decided to request a recording in an April Foreign Sovereign Immunities Act case, Crystallex International v. Venezuela (18-2797). That argument was video-recorded and posted online.
After two successful requests for live audio in the D.C. Circuit in Oct. and Nov. 2017, the court changed its policy to allow live audio in any non-classified arguments in which live audio is requested. Then, in May 2018, the court changed its policy to automatically livestream all hearings on its website starting that fall.
In July 2017, FTC worked with C-SPAN to ask the Tenth Circuit, which at the time didn’t post hearing audio online without a motion, to make a request that audio be posted in a fracking case, Wyoming v. Zinke (16-8068 / 16-8069), soon after the hearing ended. Audio was posted about 24 hours later. It wasn’t until Jan. 22, 2018, that the circuit became the last federal appeals court to automatically post hearing audio online after an argument, albeit “within 48 hours.”
Most of FTC’s same-day audio requests to the Supreme Court, and most of the requests made by others with FTC in the background, have been denied. In OT16, the organization requested same-day audio in Lee v. Tam (15-1293; argued 1/18/17), Ashcroft v. Abbasi (15-1359, argued 1/18/17) and Trinity Lutheran v. Comer (15-577; argued 4/19/17) and went zero for three. FTC worked with opposing amici in Masterpiece Cakeshop v. Colorado Civil Rights Commission (16-111, argued 12/5/17) to request same-day audio, and they were denied.
Last year, citing FTC data, Senate Judiciary Chairman Chuck Grassley (R-Iowa) and former Chairman Pat Leahy (D-Vt.) wrote a letter to Chief Justice Roberts requesting same-day audio for all OT18 cases; that letter didn’t even get a public response. Relatedly, FTC didn’t submit the request for Department of Commerce v. New York (18-966, argued 4/23/19) but worked with eight members of the House on a same-day audio letter, led by Reps. Jerry Nadler (D-N.Y.) and Ben Cline (R-Va.), but their request was denied.
More recently, FTC asked the Reporters Committee for Freedom of the Press to work with other press organizations to request live or same-day audio in this term’s Title VII and DACA cases. RCFP was able to obtain signatures from 31 major media outlets, from CNN to NPR, to sign on, yet they were denied for both.
The Fourth Circuit denied two live audio requests from FTC: the first in a Mar. 2019 presidential emoluments case (18-2486, In re: Donald Trump); the second in a May 2019 death penalty case (18-0005, Barnes v. Thomas, request with the N.C. Press Association).
The Seventh Circuit has denied all three of FTC’s video requests for hearings on race-based discrimination (18-2753, Chaidez v. Ford Motor Co.), abortion access (19-1835, Planned Parenthood of Wisconsin v. Kaul; request made with former U.S. Senator Russ Feingold) and wrongful imprisonment (18-1207, Fields v. City of Chicago). After the third request, the circuit at least acknowledged that its policy is incoherent, since requests for video must be made more than a week out, yet argument calendars are not posted until – you guessed it – a week out.
Despite a co-signed request in two Nov. 2019 death penalty cases (16-10868; Pace v. Warden, and 14-14054, Johnston v. Secretary, Florida DOC) from the Atlanta Press Club and Georgia Press Association, FTC has gone zero for three on live audio in the Eleventh Circuit. (The third “no” was for a solo ask for a tobacco liability suit, Kerrivan v. R.J. Reynolds, 18-13045, argued 9/12/19.)
In Apr. 2019, FTC and the Nebraska Press Association asked the Eighth Circuit clerk for live audio in a qualified immunity case, Kelsay v. Ernst (17- 2181). FTC was told then by the clerk that “given the expense involved if we pursued” livestreaming, the court would instead would await implementation of “a nationwide system which will allow streaming of audio and video.” (FTC asked the AO about this in September, and its spokesman told us that no such system was planned.)
In July 2019, FTC asked the Tenth Circuit for live audio in USA v. Williams (18-1299), a case concerning warrantless search of digital property. The court confirmed that audio recordings would be posted on the same day, or the following morning at the latest, but denied the request – at the very least an improvement from “within 48 hours,” per the Jan. 2018 policy.
Trying another tack, FTC asked the Sixth Circuit clerk for live audio for any of the 21 arguments it was hearing between June 17 and 21, 2019, yet the “idea [of livestreaming],” the organization was told, “has not met with much enthusiasm.”
Having attended a hearing in the Federal Circuit, FTC noticed that the courtroom is equipped with closed circuit video and asked in May 2019 whether those cameras could become outward facing. The organization was told by the chief deputy clerk that “the Federal Circuit does not have plans to video record court arguments in the near future.” FTC plans to request live audio for National Veterans Legal Services Program v. U.S., the PACER fees case that will likely be argued early next year.
The First Circuit told FTC last year that it “does not presently have plans to air live broadcasts of oral argument,” and the organization hasn’t asked for any specific arguments to be livestreamed since.
The Ninth Circuit, meanwhile, has been rolling live on arguments for a decade now.