First Amendment Advocates Probe Court Access in a Post-Pandemic World

The Covid-19 pandemic forced the Wisconsin Supreme Court to hear oral arguments via Zoom videoconference. Could these types of tech innovations be the wave of the future when the health emergency is over?

(CN) — The Covid-19 pandemic has darkened courtrooms and snarled court operations throughout the country. But it’s also been a driving force for tech innovation in the courts, with virtual hearings and phone conferences preserving press and public access to proceedings.

Whether these modern methods will carry over into a post-pandemic judicial landscape remains to be seen, but retired U.S. District Judge Jeremy Fogel told a group of reporters and First Amendment advocates Tuesday that he believes the courts are in a unique position to expand electronic access. That is, if they can overcome a resistance to change.

“There’s an opportunity to use this time to rethink what the courts do in terms of access. To study it,” Fogel said. “The Great Depression was terrible, but one of the things that happened as a result of the Great Depression was we found ways to deliver power to rural areas, to dam rivers that were flooding all the time, to set up Social Security. There were all sorts of government actions that were unthinkable before the Great Depression that the Great Depression created the necessity for doing.

“This situation has a certain analogous aspect, that the courts cannot deny access. They have to find a way to permit access. So there’s an opportunity to try different things to see if the various fears and reservations people have had have merit or not.”

Fogel spoke with David Snyder, executive director of the First Amendment Coalition in a webinar on accessing the courts in a post-pandemic world. Fogel, who was a federal judge in San Jose from 1998 until his retirement in 2018, also served as a municipal and state court judge in Santa Clara County for 17 years. 

Fogel is now the executive director of the Berkeley Judicial Institute, a center at Berkeley Law School whose mission is to unite judges and academics “for the primary purpose of promoting judicial integrity and judicial independence.”

The federal court system, Fogel said, is not an institution that readily embraces change. “You really have to work hard to get anything to change fundamentally,” he said. “Changes are very incremental.”

There are many reasons why federal courts may be reluctant to move to away from proceedings that have historically been conducted in person. The Constitution requires defendants to be allowed to confront witnesses in court. The value of face-to-face hearings may be lost in video translation. And there are overarching privacy issues that have foreclosed the notion of broadcasting proceedings in sensitive cases.

Fogel also pointed to the Supreme Court of the United States’ first livestream of oral arguments, where the sound of a toilet flushing in the background captured the attention of the listening public more than the argument itself.

“I think that played right into the fears the justices have that it’s going to turn into reality TV rather than something that would be educational for the public,” he said. “These are the kinds of fears people have and if you don’t have any data, then you just have the fears and the inherent conservatism of the institution for the fact that things don’t change.”

But concerns about privacy, security, and the quality of personal in-court interactions are as yet unproven and untested, Snyder said. “I think one of the opportunities this pandemic presents is to allow for that testing and allow for the court to examine its assumptions.”

Snyder also noted the pronounced difference between federal and state courts in providing public access. “There’s a sharp distinction between the way the federal courts in the Northern District of California and the state courts around the state have handled the issue of public access,” he said. “The federal courts, with a little bit of prompting, pretty quickly put in phone lines for the public and press for civil and criminal proceedings both. That happened faster than I would have thought. Not so on the state court side.”

He said his group has had to remind courts that the public has the First Amendment right to access proceedings. 

Fogel said the fundamental difference comes down to resources. “It was not difficult for the federal courts to say we’re going to start providing various kinds of virtual access because they had the hardware and they had the technical capacity to do it,” he said. 

In contrast, the state courts have a much greater volume of different case types and are generally under more financial stress.

“In the state courts you have family law, juvenile dependency, you have domestic violence,” Fogel said. “You have stuff that’s right now and very serious stuff, and the courts don’t have the resources to be as nimble with the cases as they liked to be.”

Some courts were also left technologically flat-footed. San Diego Superior, for example, went dark on March 17, and has only recently announced a procedure for remote hearings. The court has more than 87,000 hearings waiting to be rescheduled when it reopens after Memorial Day.

Courts in Michigan and Texas, Fogel said, have led the way in making use of technology to ensure public access. For instance, Texas just held a one-day civil jury trial over Zoom. “There are courts that are really pushing out there to see what they can do, but there are others where both a lack of culture and a lack of money have really made it difficult for the state courts.”

Fogel said judges are also concerned about managing prejudice against defendants and about keeping virtual trials from devolving into spectacle.  “This is one of the things they worry about. We want to maintain procedural fairness,” he said. “We also want to maintain the idea that things don’t just become another show.”

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