Video Broadcasting from the Federal Courts: Issues for Congress
Released: 2016-06-01T00:00:00

Introduction

The issue of whether or not to allow video cameras into the courtroom has been discussed and debated by Members of Congress, the legal community, journalists, and the public since the introduction of newsreel films in the early 20 th century. Technological advances have shifted some of the considerat ions in this ongoing dialogue, as newsreel cameras gave way to television cameras and Internet video. Increasingly, new technology makes video recording less disruptive, accessible to more people, and able to be distributed quickly, if not instantaneously. Most state courts, and several international supreme courts, allow video cameras to record and televise, or otherwise broadcast, their proceedings under certain circumstances.

Although the U.S. Supreme Court does not allow cameras of any sort in its chamber, a few federal circuit and district courts do allow video recording of their proceedings, and the Judicial Conference of the United States continues to consider expanding the use of cameras in the lower federal courts. Some judges who have experience with video cameras in their chambers support the use of video recording or broadcasting in the courts; other judges have reservations, typically related to the effects cameras might have on the proceedings. The public generally tends to support televising U.S. Supreme Court proceedings.

In this context, Members of Congress have introduced measures to enable, or expand, the use of video cameras in the federal courts. Typically, since the mid-1990s, a handful of bills have been introduced each session. Several bills reflecting four distinct proposals have been introduced in the 114 th Congress addressing cameras in the federal courts. Due to the assortment of considerations in this policy debate, the provisions of these cameras in the courtroom bills vary on several dimensions, balancing concerns about preserving judicial integrity and due process with other goals, like improved public education, media access, or government transparency.

This report is not intended to provide a legal analysis of court cases relevant to the use of video cameras in federal courtrooms. The following sections of this report provide

information about the current judicial policies and attitudes related to video camera use in the U.S. Supreme Court, federal circuit courts, and federal district courts; summaries of the major debates and considerations for policymakers on the subject of courtroom cameras, including the appropriateness of congressional action, standards for public and media access to the courts, and potential effects on courtroom proceedings; descriptions of the four legislative proposals currently before the 114 th Congress, including the Cameras in the Courtroom Act ( H.R. 94 and S. 780 ), the Sunshine in the Courtroom Act ( H.R. 917 and S. 783 ), the Transparency in Government Act ( H.R. 1381 ), and the Eyes on the Courts Act ( H.R. 3723 ); and complementary policy measures that might accomplish similar objectives.

Current Status of Court Media Access

This section describes the current policies that the U.S. Supreme Court and the federal circuit and district courts have adopted regarding video cameras in their courtrooms, along with the attitudes Supreme Court Justices and other federal judges have expressed toward expanding video use. Video broadcasting can be treated as one of several means by which the courts provide information about their proceedings to the public and the press. As such, the other policies the federal courts have in place related to public and media access are also briefly discussed where relevant.

U.S. Supreme Court

The U.S. Supreme Court does not allow the use of any type of camera within its courtroom. For cases involving criminal matters, the Supreme Court abides by the Federal Rules of Criminal Procedure, which are submitted to Congress by the Supreme Court after consultation with the Judicial Conference of the United States. In 1946, Rule 53 was added to the Federal Rules of Criminal Procedure, which states the following:

Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.

The Judicial Conference added further prohibitions on cameras and broadcasting from federal courtrooms in 1973 through its Code of Conduct for United States Judges. Although Supreme Court Justices are not required to abide by the Code of Conduct, they do follow its guidance on many matters and seemingly have adopted its position on the issue of cameras in the courtroom.

Even though cameras and recording devices are prohibited in the Supreme Court chambers, there is no statute that designates possession or use of them in the courtroom a criminal act. An individual's use of such equipment, however, may constitute a disruption to the Supreme Court, which is a violation of federal law. As Rule 53 indicates, the prohibition on cameras could be lifted if the Supreme Court and Judicial Conference amend the Federal Rules of Criminal Procedure, or if Congress passes a statute that allows or requires cameras in the courtroom.

Supreme Court oral arguments and opinion announcements are open to the public on a first-come, first-served basis. There are about 400 seats in the courtroom, but the number of seats available to the public varies, based on the number of guests of the Justices, journalists, and members of the Supreme Court bar who are also in attendance. During oral arguments, some public seats are reserved for those who wish to stay for the full day's session, and other public seats are available for short-term (3-5 minute) viewing.

The Supreme Court posts transcripts of its opinions, as well as transcripts and audio recordings of oral arguments, to its official website. Opinion transcripts are posted "within minutes" of their release, and argument transcripts are also posted on the same day of their release. Typically, the Supreme Court posts the audio recordings of oral arguments on Fridays, meaning that most oral arguments are not posted on the same day they were made. For some high-profile cases, the Supreme Court has released same-day audio recordings.

At the Supreme Court level, none of the present Justices have consistently advocated for cameras in their courtroom, but several have expressed a willingness to consider the idea. Although the current Justices may seem reluctant, some observers note that their ambivalence actually reflects greater receptivity toward bringing cameras into the Supreme Court, given that some of their predecessors strongly opposed cameras in the courtroom. While most of the current Justices have remarked that they would consider permitting cameras in the Supreme Court if their colleagues agreed, many of the Justices have also revealed personal apprehension toward video broadcasting of Supreme Court proceedings.

For the lower federal courts, and, in particular, the appellate circuit courts, the current Supreme Court Justices are somewhat more supportive of allowing cameras. Each Justice has made public statements recognizing potential benefits of televising judicial proceedings, but each has also made public statements that acknowledge the potential risks. Some of the Justices had experience with cameras in the courtroom while they were serving on these lower courts and have commented on their positive experiences. As a circuit court judge, for example, Justice Stephen Breyer voted in favor of the Judicial Conference's first pilot program and volunteered his court for the program, though it was not chosen.

The concerns the Justices have raised about cameras in the courtroom are often related to the effect the videos might have on the judicial process. Justice Clarence Thomas, for example, has expressed support for cameras in the courtroom as long as the proceedings are not affected. Some are concerned that cameras may cause the Justices or others in court to behave differently, or that a change may alter how arguments are made. Other Justices, however, note that oral arguments are only a small part of the overall decision-making process: as long as their deliberations still occur in private, the decision-making process will remain largely unchanged. Some Justices also express the view that judges would lose their relative anonymity, which could bring greater political pressure or security threats and affect judges' ability to be neutral arbiters of the law.

The Supreme Court is, by nature, an institution that is slow to change, according to its own members. It is often cautious in its jurisprudence related to new technology, and is similarly cautious about introducing new technology into judicial procedures. To some observers, video recording may seem like a tried and true technology, but to the Supreme Court and others, the need to maintain the integrity of the courtroom and its proceedings may outweigh the potential benefits of video cameras. In recent years, observers note that the Supreme Court has become more accessible through its own initiatives. New policies, like posting oral argument audio recordings online, help those interested in court proceedings receive information quickly and fully. Observers also note that the Justices also seem increasingly willing to speak at public engagements or on television interviews where they are often given the opportunity to better explain their judicial philosophy and reasoning behind decisions.

Federal Circuit and District Courts

Currently, two federal circuit courts and 14 federal district courts allow video recordings of their proceedings under certain, limited circumstances. Historically, federal statutes and professional guidelines have generally prohibited or discouraged use of cameras in federal circuit and district courts. Rule 53 of the Federal Rules of Criminal Procedure prohibits photography in and radio broadcasting from lower federal courtrooms during criminal cases, and, in 1948, Congress passed legislation that applied its provisions to the federal courts. This prohibition applies both during the initial criminal trials and during any subsequent appeals. The Judicial Conference continues to support Rule 53, given the heightened concerns about maintaining the right to a fair trial in criminal proceedings.

Although these policies prohibit the recording or broadcasting of criminal proceedings, cameras may be allowed for civil cases. The use of video cameras in civil proceedings has increased since the 1990s, but most of the lower federal courts still do not allow cameras to record or broadcast from the courtroom, nor have they expanded camera coverage of criminal proceedings. For most of the 20 th century, the American Bar Association (ABA) advised judges against permitting cameras in courtrooms. Although the ABA Canons of Judicial Ethics were not initially binding, many federal judges voluntarily followed them once they were adopted in 1924. In 1937, the ABA added Canon 35, which discouraged judges from allowing cameras in the courtroom, and which was amended in 1952 to include televised proceedings.

In April 1973, the Judicial Conference formally adopted its own Code of Judicial Conduct for federal judges, based upon the standards created by the ABA the preceding year. A general ban of cameras in the courtroom, similar to Canon 35, was found in Canon 3A(7), which stated, "A judge should prohibit broadcasting, televising, recording or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court, or recesses between sessions," but also noted a few exceptions of acceptable use.

Since the late 1980s, the Judicial Conference has shown more openness toward allowing cameras in the courtroom for civil proceedings, particularly at the appellate level. In 1989, the Conference's Ad Hoc Committee on Cameras in the Courtroom reported that it viewed Canon 3A(7) as "unduly restrictive," and in 1990, after consultation with federal judges, state judges, and media representatives, the Judicial Conference eliminated Canon 3A(7) from the Code of Conduct, expanded permissible camera uses in its Guide to Judicial Policies and Procedures , and authorized a three-year pilot program experiment permitting photographs, recordings, and broadcasts in up to two circuit courts and up to six district courts.

The initial Judicial Conference pilot program ran from July 1, 1991, to December 30, 1994, covered two federal circuit courts and six federal district courts, and was administered by the Federal Judicial Center (FJC). The most common type of media request in the program was for television cameras to report from the courtroom, and, generally, judges were supportive of this type of electronic media coverage for civil proceedings. In a follow-up survey, many of the participating judges indicated that they were initially neutral toward cameras at the beginning of the program and grew more supportive of cameras in the courtroom by the end of the program. Many of the federal judges affirmed that cameras were not disruptive and did not change their behavior.

Responses from judges concerning the pilot program reflected less of a consensus about whether or not the cameras affected the behavior of attorneys, violated privacy of the witnesses, or educated the public, and these concerns prevented the Judicial Conference from recommending an expanded use of courtroom cameras at that time. In September 1994, the Judicial Conference voted against a recommendation to expand camera coverage in district courts, citing that the "intimidating effect of cameras on some witnesses and jurors was cause for concern." Yet, in March 1996, the Judicial Conference did "authorize each court of appeals to decide for itself whether to permit the taking of photographs and radio and television coverage of appellate arguments."

The two circuit courts that participated in the initial pilot program continued to allow cameras, and are currently the only two federal appellate courts to do so. In 2013, one of these, the Ninth Circuit Court, began to live-stream oral argument videos on its website. In September 2010, the Judicial Conference authorized a second pilot program to study cameras in the courtroom. This pilot program began in July 2011 and concluded in July 2015, with fourteen federal district courts participating. One notable change to the second study was that video footage of district court proceedings was posted online at USCourts.gov. Even though the pilot program has concluded, the participating district courts can continue to allow cameras in their courtrooms until otherwise instructed to stop by the Judicial Conference.

Results from the second pilot program are scheduled to be released in 2016, and will be included in an update to this report when they are available. Recent statements on behalf of the Judicial Conference may indicate that its overall assessment of expanding cameras in the courts could remain similar. At a House hearing in 2014, for example, one federal judge reiterated many of the findings from the 1994 survey as reasons why the Judicial Conference opposed legislation introducing cameras in the courtroom.

Although several lower federal courts do permit video cameras, other records of their proceedings are somewhat more difficult to obtain than those of the U.S. Supreme Court. Most of the federal circuit courts post audio recordings of oral arguments on their websites, but the availability varies from court to court. Typically, transcripts of oral arguments are not posted by the circuit courts, nor are transcripts or audio recordings of oral arguments at the district court level, though policies among the district courts can vary as well. Generally, copies of district court transcripts or audio may be purchased from the court or online via the federal judiciary's PACER system. Copies of current federal circuit and district court decisions are available for free from GPO's United States Courts Opinions collection and on most of the courts' websites. Past years are also available, though coverage varies depending on the court.

There has not been a comprehensive survey of federal circuit and district court judges about their opinions toward cameras in the courtroom. As the use of cameras has expanded in local, state, and a few federal courts, some federal judges have had past or present experience with cameras in their courtrooms and others have no personal experience with cameras in their courtrooms. Although some federal judges have made public statements supporting cameras and others have made statements against cameras, many have not expressed any opinion on the subject, and thus, it is difficult to draw any representative conclusions about the overall attitudes of federal judges.

Major Debates and Considerations for Policymakers

There are many factors involved in the cameras in the courtroom debate that might be relevant to policymakers considering related legislation. In addition to the more particular arguments related to cameras in the courtroom, Members of Congress may first want to evaluate the implications of congressional action in this area, given its potential effects on interbranch relations with the judiciary. Members may also wish to consider more practical considerations relating to how these policies might be introduced and implemented. Examples from past, current, and proposed cameras-in-the-courtroom programs may help illustrate potential benefits and drawbacks of these initiatives, and they may also illustrate how different values or concerns may be balanced.

Appropriateness of Congressional Action

Under the U.S. Constitution, Congress has significant legislative powers over the operation of the federal judiciary. The expectation of judicial independence, however, has typically led to a congressional tradition of deference to the courts, allowing the federal judiciary to determine its own procedures for its daily operations. During the 20 th century, Congress somewhat formalized this practice of deference through the creation, in 1922, of the Judicial Conference as the policymaking body for the federal courts, and through the passage of the Rules Enabling Act in 1934. For a more thorough discussion on Congress's relationship with the judiciary, see CRS Report RL32926, Congressional Authority Over the Federal Courts , by [author name scrubbed], [author name scrubbed], and [author name scrubbed].

Proponents of cameras-in-the-courtroom legislation argue that Congress has the constitutional power to legislate judicial administrative matters and that authorizing cameras in federal courtrooms falls under this jurisdiction. Because there are concerns that cameras may substantively affect judicial proceedings, others argue that this decision is more than a simple administrative matter. Some may view this as an imprudent exercise of congressional authority, especially given Congress's past tendency to let the judiciary determine many of its own procedures. Some may even argue that such legislation raises constitutional concerns.

These questions regarding appropriate institutional authority also raise concerns for some that congressional action permitting cameras in federal courts could lead to greater interbranch tensions. Given the concerns related to Congress's authority in this arena, many on both sides of the issue propose that the decision to allow or prohibit cameras should be left to the federal judiciary to decide for itself. As Senator Mike Lee noted in a 2011 Senate hearing on cameras in the court, "regardless of what we can do as a matter of raw political power, there is a question of what we should do." At a House hearing in 2006, Justice Clarence Thomas warned that there may be "some conflict between the branches" if Congress mandated televising of judicial proceedings, but noted that "[t]he bills that allow for members of the court to make that determination, of course, don't have that problem. I guess if there's going to have to be a bill, the better method is probably to allow the members of the court to decide which cases."

Some of the questions surrounding Congress's authority to implement such legislation may be less consequential if congressional legislation introducing cameras to the courtroom includes particular measures to prioritize judicial autonomy or discretion. Policies that authorize, or allow, judges to introduce cameras at their discretion, rather than requiring cameras in the courtroom, may potentially avoid some of these concerns. This approach also mirrors the process for the Judicial Conference's pilot programs, wherein the chosen courts were selected from a group that volunteered to participate and allow cameras.

Even among the legislative proposals that require cameras in the courtroom, most include an opt-out measure, allowing the presiding judge or others in the judiciary to prohibit cameras if they might interfere with due process and/or safety of the participants in the case. If legislation contains an opt-out provision, policymakers may want to consider the circumstances under which participants may opt out of recordings (e.g., to ensure safety or due process), the scope of these exemptions (e.g., no filming of the proceedings at all or no filming of particular individuals/parts of the proceedings), and who can make these determinations (e.g., the presiding judge, a panel of judges, or any participant in the case).

Public and Media Access to the Judiciary

One of the policy issues that Congress has discussed related to cameras in the courts is the extent to which the public and the media are entitled to have access to courtrooms and their proceedings. Proponents argue that these are constitutionally-protected rights, yet others contend that there are limits to these rights. Some suggest that public and media access to the courts, for example, may need to be limited in the interest of preserving procedural fairness, which they believe reflects another constitutionally-protected right.

The Sixth Amendment of the U.S. Constitution, for example, includes the "right to a speedy and public trial," which some have argued implies that members of the general public have an inherent right to observe criminal trials. Others, however, argue that this provision is a protection for the accused and not a right of the public, reflecting the Framers' attempt to prevent secretive trials involving only a judge and defendant. Some also argue that the public and media have rights to access the courts under the First Amendment, and that cameras in the courtroom are a natural extension of these rights. Proponents believe that it is important to have a more expansive view of public access to the courts, particularly for the Supreme Court and its proceedings, given that Supreme Court decisions often affect a broad segment of American society but has limited seats for the public and is geographically remote for most people.

In addition to the expectation of a general media right to access the courts, many argue that journalists should be able to cover the courts using video because it is the medium through which many Americans receive their news. Television remains a major source of political information for Americans, and although younger Americans may be looking more to the Internet for news, videos are often distributed online as well. Thus, proponents argue that video, more than other media formats, would be instrumental in informing the public about the courts and their decisions. Media outlets and journalism advocacy groups often also support greater access for cameras in the courtroom.

The provision of public knowledge about the courts through television news, however, is contingent on news outlets broadcasting sufficient information to educate the public, and the public's willingness to watch it. When given a choice, many Americans typically do not choose to watch news or public affairs programming. As private companies, news outlets must compete with one another for viewers and advertisers, and news networks might not have the incentive to cover most court proceedings.

Although the public has shown great interest in watching certain trials on television, these cases may not be representative of the judicial system as a whole. Proceedings that do not involve celebrities and/or shocking crimes may not be televised at all. This raises concerns about the educational potential of cameras in the courtroom, especially if television stations may show video clips out of context or employ other editing techniques in an effort to make the courtroom proceedings appear more dramatic or controversial. The 24-hour news cycle pushes stations to try to be the first with any scoop, and this emphasis on fast turnaround can also cause serious errors in judicial reporting.

From the 1950s to the early 2000s, before high-speed Internet, the cameras-in-the-courtroom debate was largely framed as whether or not journalists should be able to film court proceedings for television broadcasts, making the arguments in the preceding section more consequential. Today, cameras-in-the-courtroom advocates often envision that cameras will be operated by the court and that the main broadcast forum will be the court's own website. This is how the Federal Judicial Center (FJC) pilot program, many state courts, and several international supreme courts utilize courtroom cameras. While the Internet and its potential for self-published media alleviate many concerns about biased or limited courtroom video coverage from selective television coverage, some of these issues still persist.

Existing programs permitting cameras in the courtroom often contain restrictions on what can be covered and how, reflecting a balance between access to the courts and procedural fairness for participants in the case. If the courts themselves control the recording and/or broadcasting of their proceedings, then many potential problems related to inappropriate or prejudicial media coverage can be potentially mitigated. Proceedings covered in their entirety may better show both sides fairly, and prevent accusations of bias for or against one party, though this approach may be more intrusive to the courtroom and require greater resources. The decision to broadcast live or to record proceedings for later release is also consequential—in trial courts especially, simultaneous broadcasts sometimes raise concerns about their effects on ongoing proceedings.

Transparency and Open Government

Institutionally, the judicial branch was designed to be relatively insulated from public and political pressure to ensure that the courts functioned as neutral arbiters of the law. As an unelected branch of government, whose members receive lifetime appointments, some intrinsic concerns about the accountability of the federal judiciary always have existed. Although many still recognize the value of the courts' role and support the institutional features that attempt to maintain its neutrality, there has been an overall tendency toward greater transparency and openness in American government over the last half century, and a perception among some that the federal courts lag behind the other branches in this respect. Thus, some view cameras in the courtroom as a way to better ensure transparency and openness in judicial proceedings.

If cameras in the courtroom provide greater judicial transparency, there are a number of parties who might benefit from this improved openness. Some proponents believe that Members of Congress will be better informed about the courts' proceedings via complete video broadcasts, enabling Congress to perform better oversight of the judiciary. Others argue that having a more complete view of court proceedings could help other courts fully understand rulings and the logic behind them. In turn, all courts may become more consistent in their interpretations of past case precedents and become more uniform in how subsequent decisions are made. Finally, it is often argued that the public would benefit from the improved openness and transparency that videos of the court would bring. By seeing inside the courtroom, observing full arguments, and seeing the norms court participants follow, the public may better understand the judicial process. The public might also learn more details of and implications from important cases heard before the courts.

Few argue against the overall value of ensuring government openness and transparency in the American political system. Many opponents of cameras-in-the-courtroom legislation, however, believe that the federal courts and their proceedings are already sufficiently open and transparent. This view stems from the constitutional right to a public trial discussed in the preceding section, and the resulting measures that are already in place to provide public and media access to the courts and their records. Some note that videos in the courtroom would duplicate the existing materials available on audio or on paper, citing that the real decision-making process would still occur behind closed doors, where judges privately deliberate. Instead of video broadcasting, some suggest that greater judicial transparency may be achieved through alternative, or supplementary, policy measures, like live-streaming audio of the court's proceedings on the Internet, releasing same-day audio recordings for all cases, or allowing journalists to bring tablets or laptops into the courtroom to file reports in real time.

Others contend that video, as a medium, is able to distribute information in a way that other formats cannot and that there is a substantial, unique benefit from seeing and hearing the proceedings via video footage. Video, for example, shows body language and visual cues that other formats cannot. Since observers can see the speakers in video, it may be easier for them to identify whether it is the judge, the attorney, the defendant, or another person in the courtroom who is speaking. Video can visually inform the audience about what is occurring during breaks or pauses in the proceedings, which could help educate the public about the judicial process. On the other hand, some argue that even the best courtroom coverage would still be an incomplete picture of the judicial process, as it would not capture the reading, deliberation, and conference meetings that may influence judges' decision-making.

Administering Trials

Discussions before Congress have also raised the argument that increasing public or media access through video broadcasting might hurt the ability of the accused to receive a fair trial. Typically, these concerns fall into three categories. First, there are concerns that cameras and/or other reporting equipment may be disruptive to the courtroom. Second, there is an expectation of privacy for various participants and processes in a courtroom that cameras may breach. Finally, there are concerns that, for better or worse, cameras may affect how cases are argued and/or decided. Video broadcasting legislation, in this view, may be problematic if the legislation does not provide sufficient procedural protections for courtroom participants and proceedings.

Disruptive Nature of Cameras and Media Equipment

Historically, video and photographic cameras were bulky, sometimes noisy, and could create an interruption and distraction in the courtroom. Technological advancements, however, have made cameras increasingly discreet. By the early 1980s, video cameras were unobtrusive enough that they were successfully used by some state courts. Now, even handheld smartphones can record and transmit high-definition videos and these types of devices have become so unobtrusive that, on a few recent occasions, they have secretly been brought into and used in the Supreme Court.

Although clunky cameras may no longer be physically disruptive to the courtroom, there are other ways video cameras may interfere with court proceedings. Today, for example, the number of people with cameras could be a problem and distraction if anyone, and not just credentialed members of the press, is allowed to film proceedings. Administering cameras in the courtrooms may create additional work for judges or court staff that detracts from their other responsibilities. Review of applications from news outlets, if cameras are only authorized on a case-by-case basis, could be time-consuming. Video policies that enable participants to object to coverage, which is a common mechanism used to help ensure procedural fairness, creates extra paperwork and meetings for the presiding judge or panel charged with adjudicating these appeals. Even if cameras are stationary in the courtroom and activate on a motion or voice sensor, someone (usually a presiding judge) must constantly monitor what is captured by the camera and prevent bench conversations, juries, or protected witnesses from being filmed.

Privacy Issues

A second category of concerns regarding the administration of trials involves ensuring proper privacy protections for courtroom participants and particular elements of the proceedings. Many of the privacy concerns are more applicable to the trial court level and especially for criminal cases. Existing policies adopted by the Judicial Conference and several states reflect these considerations by having expanded use of cameras in appellate proceedings and restricted use of cameras, or a prohibition on them altogether, in initial civil or criminal proceedings. Although privacy concerns may simply reflect personal preferences of courtroom participants to retain their anonymity, others argue there are reasons why increased public exposure of these individuals could impede procedural fairness.

Maintaining privacy protections for jurors if cameras are introduced to the courtroom is an important and long-standing consideration. Since 1956, "recording, listening to, or observing proceedings of grand or petit juries while deliberating or voting" has been prohibited by law in federal courts. In recent years, courts at all levels and state legislatures have increasingly enacted measures to keep the identities of jurors and their trial-related activities private. If jurors' identities are known in high-stakes cases, there are fears that outside pressure—financial bribes or violent threats—may prevent them from considering case facts fairly and objectively. Even less direct coercion, in the form of peer pressure or the added stress of interacting with reporters, may adversely affect jurors' impartiality. Courtrooms often use measures like gag orders or sealed records about the jurors to insulate them from outside pressure while a case is pending, and many courtrooms with video cameras prohibit any filming of jurors as an additional protection.

Similarly, there are concerns that witnesses may feel intimidated, directly or indirectly, if their testimony is broadcast outside the courtroom. Witnesses may be called upon to divulge sensitive personal information, and although their testimony is generally part of the public record, witnesses can maintain better anonymity when proceedings are not televised. The media spotlight and potential for public criticism may make witnesses reluctant to testify, or cause witnesses to focus on preserving their public image rather than focusing solely on their testimony.

There are also concerns that judges and lawyers could lose their relative anonymity. Although they are public figures, many federal judges and even Supreme Court Justices are not widely recognized. Because judges and lawyers often make controversial decisions, or are considered responsible for unpopular verdicts, there are genuine concerns for the safety of these legal professionals. This may also lead to greater expenses for courtroom security and protection from the U.S. Marshals Service. Although these threats of violence exist regardless of whether proceedings are televised, limiting the amount of public exposure these individuals receive may help protect them.

A related concern is that the broadcast of an initial trial may turn the defendant into a well-known public figure. Having been "tried in the court of public opinion," this publicity could affect the ability of the defendant to receive a fair re-trial, appeal trial, or subsequent trials for other charges. Media exposure from the first trial could lead to prejudice for or against the defendant among prospective jurors or others involved with later proceedings.

In addition to affecting the privacy and anonymity of individuals associated with the case, there are ways in which video cameras might violate elements of confidentiality typically associated with judicial proceedings. For example, attorneys will often speak with their clients, or attorneys will approach the bench to converse privately with the judge. Although it may be possible for others to surmise the content of these discussions, they are not treated as part of the formal court record. It is a common concern that cameras in the courtroom may inadvertently pick up these traditionally private conversations and share them with unintended audiences. There may be concerns that a due process violation could occur if sharing these conversations affects the outcome of a trial and/or the relationship between the accused and the defense counsel.

Generally, courts that allow cameras are mindful of these privacy concerns and have implemented measures to prevent many issues from becoming problematic. Some state courts prohibit any coverage of criminal or initial trials. Other policies require obscuring witnesses' identities, or notifying witnesses that they have the right to obscure their identities or opt out of video recording. Categorical exemptions sometimes prohibit filming of particular types of participants or cases. Others authorize the presiding judge to block filming on a case-by-case basis when privacy concerns are presented. Some courts require consent from all participants before filming of proceedings is authorized.

Effects on Courtroom Behavior: How Cases are Argued/Decided

Providing a defendant a fair trial requires adherence to objective legal and procedural standards, with the assumption that keeping this protocol will result in a fair verdict, grounded in factual evidence, and in keeping with the law. As a result of the concerns addressed above, some believe that adding cameras to the courtroom might change the way in which cases are argued and decided. Some of these changes may not seem to impact proceedings or outcomes, but any deviation from these standard judicial norms might lead to charges of procedural unfairness.

The concern that video recording may alter participants' behavior has existed since the earliest days of newsreel cameras in the courtroom. Some maintain that, even if cameras are inconspicuous and people are increasingly accustomed to being recorded, the simple knowledge of being watched or filmed may lead to behavior changes that can be difficult to pinpoint. Cameras may, for example, cause witnesses to act nervous, and judges or juries may misinterpret their behavior as a signal that they are not being truthful. At a 2014 hearing, Representative John Conyers noted that "experience teaches that there are numerous situations in which [cameras in the courtroom] might cause actual unfairness, some so subtle as to defy detection by the accused or controlled by the judge." Policies requiring notification of or consent from all parties being filmed may also lead to an observer effect, by increasing awareness of the otherwise discreet video cameras.

The traditional conceptualization of judicial decision-making assumes that individual case facts, the letter of the law, and past case precedents should be the guiding factors in a judicial decision. Scholars today typically acknowledge that a variety of other factors may influence judicial decision-making. Public opinion has always been among these other influences, yet televised judicial proceedings leads to concerns that too much weight will be placed on public opinion and the courts will lose their ability to be neutral arbiters of the law.

If the audience outside the courtroom becomes more consequential, lawyers, judges, and other courtroom actors might change how they act in court. Similar concerns were raised when television cameras were introduced in Congress, alleging that congressional behavior would be affected in a number of ways, including increased grandstanding and a tendency of Members to talk more directly to the public, rather than to their colleagues. Yet since members of the federal judiciary are not elected officials, and therefore understand their relationship to the public differently than Members of Congress, it may be less likely that marked behavior changes would occur among judges in front of the camera.

Others suggest that cameras may change behavior in court for the better, as the public exposure they bring might improve judicial accountability. If lawyers know they are being watched by a broader audience, they may come to court better prepared for their arguments. All actors may act with greater courtesy and professionalism to each other, out of the interest of maintaining judicial legitimacy and authority.

Legislation in the 114th Congress

In the modern history of Congress, there have been a number of legislative attempts to allow or require video cameras in federal courtrooms. This section provides an overview of the current bills before the 114 th Congress related to video cameras in the federal courts. Table 1 provides a side-by-side comparison of these bills, their current legislative status, and key components. Many of these current legislative initiatives are identical or substantively similar to past bills—when applicable, comparisons will be made between the current and previous versions of bills (introduced in the 110 th -113 th Congresses). This section will be updated as necessary to reflect current legislative developments.

Cameras in the Courtroom Act (H.R. 94 and S. 780)

The Cameras in the Courtroom Act was introduced in the House ( H.R. 94 ) on January 1, 2015, and in the Senate ( S. 780 ) on March 18, 2015. This bill would amend 28 U.S.C. 24, adding Section 678 titled "Televising Supreme Court Proceedings." Under the bill's provisions, the Supreme Court "shall permit television coverage of all open sessions of the Court." The Cameras in the Courtroom Act does not address cameras in the federal circuit or district courts. Television coverage could be blocked if a majority vote of the Supreme Court Justices decided that "such coverage in a particular case would constitute a violation of the due process rights of one or more of the parties before the Court."

The Cameras in the Courtroom Act has been introduced in previous sessions of Congress. Substantively identical versions of the bill have been introduced in both chambers since the 110 th Congress. During the 112 th Congress, the Senate Judiciary Committee also held a hearing related to the bill titled, "Access to the Court: Televising the Supreme Court."

Sunshine in the Courtroom Act (H.R. 917 and S. 783)

The Sunshine in the Courtroom Act was introduced in the House ( H.R. 917 ) on February 12, 2015, and in the Senate ( S. 783 ) on March 18, 2015. This bill only addresses the federal circuit and district courts, and not the Supreme Court. Under its requirements, "the presiding judge ... may, at the discretion of that judge, permit the photographing, electronic recording, broadcasting, or televising to the public of any court proceeding over which that judge presides." The Judicial Conference may issue guidelines to assist with the management and administration of these provisions, and the presiding judge may further issue rules and disciplinary actions related to media use in his or her courtroom.

Under the Sunshine in the Courtroom Act, jurors may not be subjected to media coverage during jury selection or during the trial itself. Furthermore, the judge "shall not" permit any of the designated filming or broadcasting activities if the judge (or a majority vote of the participating judges on a panel) "determines the action would constitute a violation of the due process rights of any party." District courts must disguise the face and identity of any witness, if requested by the witness, and inform all witnesses of their right to do this. The Sunshine in the Courtroom Act has been introduced in previous sessions of Congress, though earlier versions noted that it would only be in effect for three years after its enactment, and the current version does not include this timeframe provision.

Transparency in Government Act of 2015 (H.R. 1381)

The Transparency in Government Act ( H.R. 1381 ) was introduced in the House on March 16, 2015. This bill addresses televising Supreme Court proceedings and providing expanded access to its audio recordings, among other provisions related to open government. It is a broader bill in scope than the others addressing cameras in the courts in the 114 th Congress and contains additional changes for the federal judiciary as well as ethics and transparency initiatives for other parts of the federal government.

Regarding televising of the Supreme Court, Section 801 of the Transparency in Government Act includes provisions that are identical to the Cameras in the Courtroom Act, stating that the Court "shall permit television coverage of all open sessions" unless a majority vote decides against it to ensure due process for the parties before the Court. It does not mention broadcasting video on the Internet, but in Section 802, the Transparency in Government Act also requires that the Chief Justice "shall ensure that the audio of an oral argument before the Supreme Court of the United States is recorded and is made publicly available on the Internet website of the Supreme Court at the same time that it is recorded."

A similar version of the Transparency in Government Act was introduced in the 113 th Congress ( H.R. 4245 ). This previous version contained the Section 802 requirement of posting same-day oral argument audio recordings to the Court's website, but had a different provision regarding televised proceedings. Instead of introducing television directly, Section 801 in the earlier Transparency in Government Act would have directed the Government Accountability Office (GAO) conduct a study to assess the effects that cameras during oral arguments would have "on costs, and on the atmosphere of such arguments."

Eyes on the Courts Act (H.R. 3723)

The Eyes on the Courts Act ( H.R. 3723 ) was introduced in the House on October 8, 2015. Unlike previous bills, which either address the Supreme Court or the federal circuit and district courts together, the Eyes on the Courts Act addresses all federal appellate courts, meaning the Supreme Court and the circuit courts. The bill's provisions note that the Judiciary Conference would provide implementation guidelines, supplemented by rules or disciplinary actions set forth by the presiding judge.

Under the Eyes on the Courts Act, the presiding judge "shall permit the photographing, electronic recording, broadcasting, televising, or streaming in real time or near-real time on the Internet of that proceeding to or for the public." Like other bills, it allows the presiding judge to make an exception for a participant if it is believed that these activities would violate his or her due process rights. This bill also would also allow the presiding judge to opt out if these activities are "otherwise not in the interests of justice." A judge must issue any exemption in writing at least 72 hours before the start of the proceedings.

Complementary Policy Measures

Legislation intended to expand video broadcasting in the federal courts can reflect a number of legislative goals, including greater judicial transparency, public education about the courts, improved public access to proceedings, or expanded media access to the courts. As the debate surrounding cameras in the courtroom continues almost 100 years after it began, it is important to consider what underlying goals these policy measures are intended to achieve. Policymakers may want to consider whether there are complementary measures that could achieve similar goals through other means.

Historically, the issue of cameras in the courtroom has been framed as a matter of expanding media access to the courts. In the era before electronic broadcasting, the press served as an indispensable intermediary between the public and the courts. Unless citizens could personally witness trial proceedings, they had to rely upon the reports and accounts that were created by the media. If journalists are still viewed as critical intermediaries, and one of the goals of adding cameras to the courtroom is to improve journalists' ability to cover its proceedings, there may be other policy measures that might help fulfill this objective.

At the Supreme Court level, for example, other measures could improve the Court's communications with journalists. The Court could revise its press credentialing requirements to include more Internet-based news outlets, use email or social media to announce decisions, distribute email copies of opinions to members of the press corps, allow reporters to use tablets or smartphones for note-taking, or provide wireless Internet in the courthouse (if not the courtroom). These initiatives may help fulfill the goal of improved media access to the Supreme Court and other federal courts, without the possible downsides associated with introducing cameras to the chambers.

The public still learns about major events from the media, but the Internet has fostered a growing expectation that more complete information about a story or an event will be readily available online. Primary source documents and raw video footage of political proceedings or newsworthy events are commonly available on the Internet, contributing to the sense that information about today's current events does not have to be mediated by the press. Thus, the contemporary cameras-in-the-courtroom debate today may be framed in part as a means to improve direct public access to information about court proceedings. This objective could be fulfilled by improvements to existing forms of public information, like introducing same-day audio recording releases or live-streamed audio from the Supreme Court. Other suggested measures, like providing closed-circuit cameras to broadcast exclusively to a larger venue outside the courtroom, could still face some of the potential challenges that policies to televise or broadcast proceedings more broadly face.

Because records of proceedings are available and the courtrooms are not closed to the public or the press, it can be argued that the courts may already meet a sufficient standard of transparency and access, and legislative action may not be necessary. Lack of congressional action would not preclude the federal judiciary from setting its own policies that could expand the use of cameras in the courtroom. Recent actions taken by the courts, such as the Supreme Court's measures to improve the timely release of audio recordings and the Judicial Conference's 2011-2015 pilot program on cameras in the courtroom, may suggest that the courts themselves may be inclined to take measures to improve access to their proceedings.

Concluding Observations

International, state, and local courts have expanded the use of video cameras to record and/or broadcast their proceedings over the last 20 years, and the federal judiciary has experimented with video cameras in the federal circuit and district courts as well. Where cameras are permitted in courtrooms, many safeguards have been implemented to try to maintain judicial integrity and the rights of courtroom participants. In many courtrooms where cameras operate today, they typically do so without notable opposition or legal challenge. Proponents argue that these measures help improve transparency and accountability in the courts, better meet the needs of modern journalists, and improve public access to information about the courts.

During the same time period, legislative attempts to expand the use of video cameras in the federal courts have frequently been introduced but have not been enacted. Even as video technology has changed and become more commonplace, fundamental concerns persist about potentially negative effects of video cameras in the courtroom. Although many bills include provisions to help alleviate these concerns, the important role that the judiciary plays in American society leads some to approach any changes in this area with caution. Since many of the debates on cameras in the courtroom center around differing constitutional interpretations, some maintain that Congress should defer to the judiciary's position on these questions.

The results of the Judicial Conference's 2011-2015 pilot program may be released at one of its 2016 meetings. Once they are released, the Judicial Conference could decide to change its position or policies regarding cameras in the courtroom. These findings may also provide Congress with more information about the potential benefits and drawbacks of video broadcasting from the federal courts. This report will be updated as needed to reflect any subsequent developments.