House to Push for Live Video in Federal Appeals Courts

The Supreme Court is seen in Washington on June 17, 2019. (AP Photo/J. Scott Applewhite)

WASHINGTON (CN) – With the urging of activists and court watchers, the chair of the House Judiciary Committee could soon reintroduce legislation that would bring cameras into federal appeals courts.

The legislation House Judiciary Committee Chair Jerry Nadler, D-N.Y., said he plans to reintroduce legislation that would make live streaming of proceedings in federal appellate courts, including the Supreme Court, the norm, giving judges the discretion to close hearings if they determined it would be in the interest of justice.

“It is surprising and disappointing that our own courts have been so willing to keep their doors closed and they have so grudgingly allowed them to be opened even a crack to the public,” Nadler said at a hearing Thursday afternoon.

Nadler has introduced the legislation in past Congresses, but the bill has yet to become law.

He made the comments at a hearing before the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet on Thursday afternoon, where journalists and commentators urged lawmakers to make courts more accessible to the public.

“My point here today is simple: the Sixth Amendment mandates public trials,” CNN analyst Jeffrey Toobin told lawmakers Thursday. “In the 21st century, the only meaningful definition of public is one with audio and visual access.”

While state courts have experimented with broadcasting court proceedings, federal courts have been resistant to do so. State high court justices in Michigan, Ohio and West Virginia wrote to the committee ahead of Thursday’s hearing saying they have had positive experiences with streaming their arguments.

But the Supreme Court has repeatedly beat back the idea, with justices insisting cameras would disrupt oral arguments by changing how judges and attorneys behave during hearings.

Nadler also said he plans to offer legislation that would prevent courts from keeping secret information in cases related to public health and safety, addressing another concern witnesses expressed during Thursday’s hearing.

Two reporters for Thompson Reuters who testified at the hearing said courts keeping that type of information under seal has kept the public critically unaware of serious safety concerns about certain products.

Reuters reporter Lisa Girion noted that for years, protective orders judges entered in lawsuits against Purdue Pharma over the company’s efforts to convince doctors to prescribe its painkillers kept the public from learning about factors that would lead to the ongoing opioid epidemic.

“Courthouse transparency is more than a lofty ideal,” Girion said. “Secrecy has consequences.”

But Judge Richard Story, who sits on the U.S. District Court for the Northern District of Georgia, expressed concern about taking out of the hands of judges the decision about when to seal filings.

“He or she is in the best position to do so based on the facts of the case, governing case law and a district’s local rules and practices,” Story told lawmakers Thursday.

He added that because orders to seal documents can be appealed or challenged by third parties, there is already a sufficient check on judges’ discretion.

The system through which people access federal court records, known as PACER, was also a popular target at the hearing, with witnesses complaining it is cumbersome and too expensive. Representative Doug Collins, R-Ga., has introduced a bill that would make documents available on the system for free, rather than the 10 cents per page it currently costs.

Few witnesses defended PACER, though Judge Audrey Fleissig, who sits on the U.S. District Court for the Eastern District of Missouri, warned that Congress would have to make up the money elsewhere if it made the system free.

“Our case management and public access systems can never be free because they require over $100 million per year just to operate,” Fleissig said. “That money must come from somewhere.”

Fleissig noted none of the proposed changes include appropriations to make up the lost revenue. If that holds, it may fall to litigants to pay for the changes – which could actually hinder access to justice because court filing fees could go up by $750 per case to “provide revenue equal to the judiciary’s average collections” under the current PACER framework, she said.

“The judiciary has serious concerns about the removal of the current funding mechanisms with no replacement source of funds,” she said.

Toobin’s presence at the hearing drew attention from Representative Jim Jordan, an Ohio Republican who used his five minutes of questioning to attack him for saying that the Justice Department “has been corrupted” during a television appearance in which Toobin discussed the ongoing controversy over President Donald Trump’s request that the Ukrainian government investigate former Vice President Joe Biden’s son.

Jordan recounted controversies he and other Trump allies have used to discredit past investigations into Trump and his campaign and accused the whistleblower who brought Trump’s request to light of political bias.

“And yet today, based on a whistleblower that had no first-hand knowledge, wasn’t on the phone call, has a political bias against the president, you’re saying this Justice Department is somehow corrupt,” Jordan said.

Representative Hank Johnson, the Georgia Democrat who chaired the hearing, rebuked Jordan for not staying on the hearing’s topic and cut him off from asking a second round of questions, to the Ohio Republican’s outrage.

“This is truly unbelievable, the way you guys do this,” Jordan said after Johnson ended the hearing.

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