The recent federal appeals court decision not to reinstate President Trump’s controversial travel ban came after a contentious hearing during which three Ninth Circuit judges listened to arguments on whether to stay the ban. Hot-button issues aside, the Ninth Circuit emergency hearing and the review leading up to it were also historic breakthroughs for courtroom technology.
On February 7, listeners across the country—and across the world—were able to take advantage of the rare opportunity to tune into a federal court oral argument thanks to a live audio stream from the tech-savvy Ninth Circuit Court of Appeals.
The deliberations of federal courts are rarely heard outside the courtroom, much less in in real-time. This time, however, at least 136,000 people were able to tune in from as far away as France, Japan, and Germany to listen in for the audio stream of the proceedings on the court’s YouTube channel.
To put that into perspective, fifty people tuned in for the last proceeding the Ninth Circuit court live streamed. Court spokesperson David Madden said this was by far the largest audience for an oral argument since the court began live streaming two years ago.
In addition to the court’s YouTube page, CNN, MSNBC, Fox News, CSPAN and other news outlets also picked up the live stream. Although figures for those sources have not yet been released, the number of listeners has been projected at well past a million.
Broadcasting only the audio of the oral argument may seem like the Ninth Circuit has quite a ways to go in using technology to stream arguments. However, that is just part of what made the proceedings so innovative. Lawyers representing the Department of Justice and the state of Washington made their arguments in front of three federal judges entirely by telephone—arguments that were streamed live across the globe.
Because the hearing was scheduled on an emergency basis, in front of judges located in different locations, the court conducted the hearing through a conference call without any lawyers or judges even appearing in a public courtroom. Many considered the ability to call into a courtroom proceeding cutting edge on its own not too long ago—and it still is in many jurisdictions—but a growing number of courts now allow attorneys to appear by phone so long the judge grants the request in advance.
Earlier in the process of litigating the travel ban, viewers were able to tune in for both streamed video and audio live feeds of U.S. District Judge James Robart of the Western District of Washington announcing his decision to issue a temporary restraining order blocking the travel ban’s implementation on a nationwide basis.
The Western District of Washington, where one of the travel ban cases was filed, is one of only three federal district courts in the United States that the Judicial Conference allowed to keep its cameras running after the cameras-in-the-court pilot program that expired in 2015. Following an assessment of the data from the four-year experiment, the Judicial Conference decided to continue the sweeping ban on cameras but permitted three courts in the Ninth Circuit to keep rolling to provide longer-term data about the advantages and disadvantages of camera access.
The tech-friendly Ninth Circuit is known for being on the cutting edge of courtroom technology, relatively speaking. The court posts video of oral arguments after each hearing on the court’s own YouTube channel and provides recordings of all oral arguments on the court’s website by noon the following day. The court also posts all of the documents relating to a case.
Although live streaming has become common practice for the Ninth Circuit, it is unheard of for federal courts in most other parts of the United States. Since the Judicial Conference decided to allow each circuit to make their own rules on recording and broadcasting devices in 1996, only the Ninth Circuit and Second Circuit have allowed audio and video coverage of oral arguments. In January 2017, the Third Circuit also announced that it would join in posting video recordings of select cases “deemed to be of significant interest to the public.”
Supreme Court Unplugged
Most of the circuit courts that handle appeals from lower federal courts now at least post audio recordings of their proceedings, but those are generally posted hours or even days later. According to the Administrative Office of the U.S. Courts, no other federal appeals courts stream live audio of oral arguments—including the United States Supreme Court.
The Supreme Court has never permitted video coverage of proceedings and does not generally release the audio files of such hearings to the public until the end of each week. There are roughly fifty seats in the Supreme Court’s gallery are available to the public, on a first-come, first-served basis, a small number compared to the 137,000 people who tuned into the audio live stream of the Ninth Circuit oral arguments. The Supreme Court has only even allowed the same-day release of audio recordings around couple dozen times in its entire history, most recently for the landmark same-sex marriage case in April 2015.
Nevertheless, several members of the Supreme Court have expressed either a desire to allow recording devices in the proceedings or at least some interest in exploring the concept. Supreme Court Justice Alito jokingly suggested that the Supreme Court could use dogs to act out the arguments instead of cameras in the courtroom.
The attention paid to Ninth Circuit proceedings this week serves as a high-profile example the importance of live access to the federal judiciary. This increased awareness of the role of the federal judiciary and the weight of these proceedings presents an unparalleled opportunity to for courts to weigh the advantages and drawbacks of courtroom technology, especially if the courts continue to catch the eye of the general public.