Getting Cameras in Federal Courts Will Take More Than Logic

Reprinted with permission from the National Law Journal © 2024 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

On Nov. 6, a day most Americans were preoccupied by election news, a committee of the Judicial Conference of the United States rejected a proposal to permit cameras in our country’s federal courtrooms. They rejected the proposal even though 49 states and the District of Columbia have, for years, permitted at least some audio-visual coverage of state court proceedings. Here is how it happened:

A little over a year ago, anticipating the numerous, upcoming criminal trials of Donald Trump, our law firm submitted a “suggestion” to the Administrative Office of the U.S. Courts on behalf of a large coalition of news media organizations, asking that it begin the process of amending Criminal Rule of Procedure 53. That rule currently prohibits “the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” Our suggestion is available here.

The Judicial Conference responded by sending our suggestion to the Standing Advisory Committee on Criminal Rules, which in turn created a “Rule 53 Subcommittee” comprised of federal judges, a representative from the Department of Justice, and a federal public defender—all of whom work for the federal government and, consequently, none of whom have any recent, significant experience with cameras in courts.

Over the next 12 months, that Subcommittee met twice at undisclosed times and locations. No member of the media or any lawyer for the media was invited to attend or even received notice of the meetings. Also not invited: any judge or lawyer who has experience with cameras in courts as a result of living in one of the many states that have permitted cameras in courts for decades. No academics who study the issue were invited, either.

Then, in late October, the Standing Committee published online its agenda for its upcoming meeting on Nov. 6, which included a four-page memorandum from the Subcommittee recommending no change to Rule 53. It is available here. The memorandum was lackluster, to say the least. Frustrated that we were not part of any discussions, we submitted a second suggestion, responding to it, on Nov. 1. You can read it here.

Along with some members of the coalition, we then sought to monitor the Nov. 6 meeting, held on the campus of New York University, at which the Subcommittee’s recommendation on Rule 53 would be discussed. A link to listen remotely came with a warning about “the general prohibition against photographing, recording, and rebroadcasting.” We inquired what “general prohibition” prevented us from recording a meeting taking place on a college campus from the privacy of our homes and offices. After all, Rule 53 only refers to events taking place in “the courtroom.” We never received an answer. A couple of our journalist clients attended the meeting in person, but not without meeting initial resistance for failure to “register” in time—staff relented only after we pointed out that the time and place of the meeting had never been publicly announced, nor had the need to register or a registration deadline.

At the meeting itself, which began with an announcement that it was being recorded, Judge Michael Mosman from the U.S. District Court for the District of Oregon summarized the Subcommittee’s views and recommendations. No member of the press or public was permitted to speak at the meeting, and neither Judge Mosman nor anyone else gave a meaningful summary of the arguments we made in our two suggestions (though they were included in the 489-page meeting packet). Generally, because so few had experience with cameras in the courtroom, the Committee spoke of speculative safety concerns for trial participants, mostly failing to recognize that those concerns are present in any public proceeding.

The only member who offered firsthand experience with a televised trial was Justice Carlos Samour of the Colorado Supreme Court, who presided over the Aurora movie theater shooting trial when he was a trial court judge. Justice Samour said that, ahead of the Aurora shooting trial, some victims contacted him to say they were upset that he permitted broadcast of the trial, but all ultimately thanked him and were grateful that they could observe the proceedings without going to the courthouse every day. He noted Colorado gives judges wide discretion to decide whether to permit cameras in the courtroom and encouraged the Committee to speak to more state court systems and participants. This idea was shut down.

At the end of its meeting, the Standing Committee decided to vote: Either send the issue to the “study agenda,” which would keep the possibility of amending Rule 53 open and create an opportunity for members of the press and public to have further input, or accept the Subcommittee’s recommendation to make no change to Rule 53 and close the issue. Judge Mosman said that, in his opinion, no study in the near term could possibly change his mind or that of the Subcommittee. The Standing Committee then voted nearly unanimously to accept the Subcommittee’s recommendation. The federal prosecutor abstained from the vote, and the only person who voted against the recommendation was Justice Samour.

After the meeting, we contacted administrative staff to ask for a copy of the recording of the meeting—in part so we could accurately summarize the discussion for this article. Staff refused to provide it, stating, “We record the meetings for internal use to assist with preparation of meeting minutes. Public records of meetings are the meeting minutes.” Draft minutes will apparently be available sometime in December here.

Let us be clear: For the reasons set forth in our two suggestions, which we encourage you to read, we think the Standing Committee got it really, really wrong in accepting the Subcommittee’s recommendation. But we’re not going to rehash those arguments here. This, instead, is an article about process—and what comes next.

On process: The U.S. Supreme Court has time and again recognized that the press and the public have a right to be meaningfully heard on issues of court access. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 25 (1982). The Standing Committee’s failure to include members of the media and lawyers who represent the media in the discussion about Rule 53 ignores the spirit, if not the letter, of this long line of precedent. Moreover, the lack of transparency surrounding a discussion literally about transparency is more than ironic. Subcommittee meetings, at which meaningful discussions and decisions appear to be made, should be announced and open to the public. Likewise, the Standing Committee should not make people email staff to learn when and where its meetings will take place, and if in-person attendance requires advance registration, this should be publicized well in advance. Recordings of meetings—or at the very least, written transcripts—should be made publicly available. And vague threats about “general prohibitions” on recording—which do not appear to have any basis in law—are completely inappropriate. In short, we expect and demand better.

On what’s next: Our experience with the Judicial Conference over the past year has left us, as the saying goes, blue in the face. It has taught us that, although many stakeholders, including many federal judges, support cameras in courtrooms, appeals to rulemaking bodies—even when those appeals are based on logic and decades of experience with cameras in state courts—are unlikely to move the needle. Too many federal judges irrationally fear cameras, too many of those judges are the gatekeepers tasked with “studying” the issue, and too few of their more open-minded colleagues are willing to rally support and stand up for transparency. In some ways, this is no surprise. Our firm has also been involved in efforts to expand camera access in Minnesota state courts, and it took a convergence of truly horrible events to finally convince the Minnesota Supreme Court to do so, some 40 years after neighboring Wisconsin started allowing cameras as a matter of course. Specifically, it took the trial of Derek Chauvin for the murder of George Floyd, which Judge Peter Cahill agreed to televise only because a deadly pandemic made in-person observation of the proceedings impossible.

No one wants a repeat of Minneapolis in 2020. But it has become clear that change will not come by politely asking those in power to cede the status quo. The Judicial Conference’s rule change procedure is, by design, quite slow and tedious, and any change through this procedure will not happen in our lifetimes if the gatekeepers will not even consider the experiences of state courts, federal appellate courts, or even Congress, all of which broadcast proceedings. Maybe President-elect Trump, who repeatedly said he wanted cameras at his criminal trials, will simply work with Congress to pass a law that makes cameras in federal courts mandatory and that limits judicial discretion to ban them. Lobbying efforts to make this happen are already taking shape, and when Trump or Congress decide to do something, they act a lot quicker than the Judicial Conference.

But short of this, given the ubiquity of cameras and legitimate public concern that audiovisual records of significant criminal trials will be otherwise lost in history, resistance is likely to be an inevitable consequence. This might come in the form of a nervy federal judge, of the same mold as Judge Cahill, who simply decides that Rule 53’s prohibition on cameras is not tenable in 2024, that no one is going to strip a judge of discretion over how he runs his courtroom, and that the constitutional requirement that court proceedings be open to the public now requires remote accessibility. Incidentally, not only Judge Cahill’s decision on camera access, available here, but also briefs that our firm submitted to Judge Tanya Chutkan of the U.S. District Court for the District of Columbia, available here, provide the groundwork for just that.

Or maybe the resistance will come in the form of civil disobedience. For example, a courageous court staffer, of the same mold as Daniel Ellsberg, may simply decide that a court recording made and maintained for administrative purposes is simply too important—too historic—to sit on the electronic equivalent of a dusty shelf while democracy falls apart.

Or maybe it will be something more sinister that prompts federal courts to finally see the merit in releasing to the public an official, audiovisual recording of proceedings—or in trusting bona fide journalists to do so. Perhaps, for example, it will be an enterprising “nobody” who walks into court with an eyeglass or button camera turned on, and walks out and hands the recording to the highest bidder. Or a foreign hacker, far from the court’s jurisdiction, may realize there’s a market for information of public interest and concern and simply begin stealing things from the court. Or a tech geek who knows how to monetize social media content may grasp that, with artificial intelligence, a transcript, and a few publicly available photographs, he can quickly and cheaply create a convincing video of an entire day in court. Let’s hope and pray it’s the truth that sells best, because conspiracy theories may proliferate without an official video to serve as a check on disinformation.

Lawyers like us follow the law and court rules. We’ll keep beating our heads against the wall, making legal arguments in long letters that get buried in meeting agendas. But others? They may soon decide that the times call for more than writing letters that go unheeded, if not completely unread. They may decide, like the lunch-counter sitters of another era, that unjust and silly rules are meant to be broken. That it’s time, in the words of John Lewis, to get in “good trouble, necessary trouble.” We can’t bring ourselves to disagree.

Leita Walker and Lauren Russell are First Amendment attorneys in the Minneapolis and Washington, D.C. offices of Ballard Spahr LLP. The opinions expressed in this article are solely their own and not their clients’.