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Where Federal Appeals Courts Stand on Live Audio

By Dylan Hosmer-Quint, FTC research associate

For the last several months, courts across the country have moved proceedings to virtual formats in an effort to comply with public health recommendations. An unexpected consequences of this change has been that many federal courts have, for the first time, allowed the public to listen, or watch, live.

Even the U.S. Supreme Court, which has resisted calls for live access for years, provided a live audio stream to the public via the news media in May.

While the COVID-19 pandemic has by no means subsided, Fix the Court has already begun to urge courts to consider making live audio standard.

Some courts, like the 10th Circuit and the Federal Circuit, told us that they have not yet considered how proceedings will be held in the future, an understandable response to the uncertainty of the current moment. But other courts, the Fifth and Seventh Circuit included, have been satisfied with the unexpected experiment with live audio and seem interested in continuing to provide live access going forward.

We’ve provided responses from a source in each circuit below, and we’ll update this once we hear back from additional circuits.

First Circuit: No response, but the audio of the court’s most recent arguments (July 27) was livestreamed from its YouTube page.

Second Circuit: “Thanks for your input” (June 24); audio of next arguments (Aug. 17) are scheduled to be livestreamed on the court’s website.

Third Circuit: No response; next arguments are scheduled for Oct. 5.

Fourth Circuit: No response, but the court on July 22 said “a live audio-stream of the remote arguments will be provided in each case” for its next sitting, scheduled for Sept. 9-11.

Fifth Circuit: “The court has not decided whether to continue live streaming arguments once the pandemic operations end, but I believe it will definitely consider this” (June 24); next arguments (Aug. 3) are expected to be call-in.

Sixth Circuit: No response, but the court became the last federal appeals court to livestream arguments on July 28, when audio was streamed on the court’s YouTube channel.

Seventh Circuit: “The court has been satisfied with the YouTube approach and plans to consider whether to continue it after the COVID-19 crisis is over” (June 25, though there’s been a switch in chief judges since then); next argument (July 31) expected to have live audio here.

Eighth Circuit: “No decision has been made on this. The court does believe that same day access to a recording of the argument is sufficient for the press and public in nearly every case. In most instances, all of the day’s arguments are available within an hour of completion of the day’s session. There is substantial overhead in providing a live video or audio feed” (June 24); next argument date is Sept. 21.

Ninth Circuit: Live video is already standard.

Tenth Circuit: “We will be doing remote arguments again in September, and the audio will be streamed to YouTube again. We don’t know yet what happens with subsequent court terms, whether they will be remote or in-person and whether the in-person arguments will be streamed or not. We just haven’t gotten that far yet” (June 24); next argument date is Aug. 25.

Eleventh Circuit: No response; the audio of the most recent arguments (July 28) were livestreamed at this link.

D.C. Circuit: Live audio is already standard.

Federal Circuit: “We have not yet decided how arguments will be conducted once we return to in-person arguments.  We continue to monitor the public health situation and will provide updates on changes to our court operations on our website” (June 24); next arguments scheduled for Aug. 3.

U.S. Supreme Court: No response to the letters from the ABA and from Sens. Grassley and Leahy urging that live audio be continued in OT20; next arguments scheduled for Oct. 5.

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