Some reflections on cameras in the appellate courtroom.

• Date: 22 September 2007
• Author: O'Scannlain, Diarmuid F.

1. INTRODUCTION

   In the last issue of the Journal of Appellate Practice and Process, Justice Robert Brown of the Supreme Court of Arkansas discussed the various ways in which state high courts around the country are beginning to embrace technology to record and to broadcast their oral arguments. (1) I plan to pick up where Justice Brown left off, by discussing my personal experience with cameras in the appellate courtroom as an active Circuit Judge on the United States Court of Appeals for the Ninth Circuit. In the course of this article, I hope to articulate what I will call a cautious approach to the recording and broadcasting of appellate arguments. In adopting and articulating such an approach, I hope to explore not only the positive consequences that such broadcasting efforts can have, but also the extent to which the oft-expressed concerns raised about such broadcasting efforts ought to be considered in any given case. And, although my experience with the videotaping of oral arguments has generally been positive, I hope to show that such a cautious approach is preferable in that it recognizes the integrity and independence of each court to move forward with technological experimentation on a case-by-case basis as its own members see fit.

2. MY EXPERIENCE AT THE NINTH CIRCUIT

   The United States Court of Appeals for the Ninth Circuit has been at the forefront of a movement expanding technological access to federal appellate courtrooms. Our court currently provides live streaming audio on our internal website and additionally makes audio playback of all oral arguments available to the public through our external website the day after the hearing. Further, as I noted in my testimony before the Senate Judiciary Committee, all oral arguments (except in Anchorage, Alaska and Honolulu, Hawaii) are recorded on the court's internal videotaping system for the court's own records. (2) In most of our courtrooms, the cameras are so tiny and unobtrusive as not to be noticeable. In Portland, Oregon, where I have chambers in the Pioneer Courthouse, the camera is hidden behind a grate in the courtroom. This allows, among other things, a live feed to be broadcast into our attorney waiting room.

   In addition to the audio recording and internal video recording, the Ninth Circuit allows media organizations to request camera access to our appellate arguments. To gain such access, a member of the media need only fill out a simple form requesting very basic information, including the name of the requesting organization, the case in which the request is being made, and the intent of the media organization (i.e., whether it will be broadcast live or taped for later broadcast). (3) The Clerk of the Court will then transmit the request to the panel, which can grant or deny the request by majority vote of the judges assigned to the case. If the request is granted, the Ninth Circuit requires media representatives to obey modest guidelines which request proper attire, ban the use of flash photography or other potentially distracting filming, prohibit the broadcast of any audio conversations between clients and attorneys, and limit the total number of cameras that can be present for any single oral argument. (4)

   In my own experience, requests for camera access are more often than not granted. For instance, as I noted in my testimony before the Senate Judiciary Committee, from the time my service began on the Ninth Circuit in 1986 until the end of 2005, I personally ruled, with fellow panel members, on forty-four requests for camera access. Of those forty-four instances, the panel voted to grant access in thirty-five cases, or roughly eighty percent of the time. (5) These numbers are not anomalous across our circuit. Since June of 1991, the Ninth Circuit has received 225 requests for camera access to our courtrooms. In eight of those cases, either because the case was removed from the oral argument calendar or because the request was withdrawn, we were absolved from making a determination on...