Top 9th Circ. Judge Urges Courts To Allow Cameras

Fordham Law School in Law360, April 27, 2010

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By Abigail Rubenstein

Law360, New York (April 27, 2010) -- If federal judges do not find a way to allow cameras into their courtrooms, Congress will impose legislation to put them there, the chief judge of the U.S. Court of Appeals for the Ninth Circuit warned the legal community.

The issue of cameras in the courtroom should be reconsidered in light of current technology, the Ninth Circuit's Chief Judge Alex Kozinski maintained Monday in a speech at Fordham Law School in New York.

Opponents of allowing cameras in the courtroom “must do more than blindly oppose the new and different,” Judge Kozinski said. He noted that cameras are accepted in state courthouses in 47 states and that it is only federal courts that bar them through a blanket prohibition.

Critics tend to argue that cameras will both change the behavior of the actors inside the courts and distort the public's perception of the judicial process, the judge said.

Judge Kozinski conceded that cameras will change how judges, lawyers and witnesses behave, but he contended that the change might not be bad. Perhaps judges will exercise better courtroom management, lawyers will behave more professionally and witnesses will be too nervous to lie, he said.

As for the charge that recorded proceedings might mislead the public, he argued that relying on third parties, which today often means the fastest and most persistent blogger, could be more misleading.

Rather, recording entire proceedings and allowing the courts themselves to disseminate unedited broadcasts bolsters transparency and accountability by giving the public an accurate and impartial record, Judge Kozinski said.

Trials can become spectacles even without cameras, said Judge Kozinski, who likened blaming cameras for the atmosphere of a courtroom to shooting the messenger.

“If we don't like the way courtrooms look on camera, we need to change what's going on inside the courtrooms,” Judge Kozinski said.

The judge was thrust into the center of the debate on cameras in the courtroom in January, when the U.S. Supreme Court intervened just as the Ninth Circuit was about to launch a pilot program to allow district courts to experiment with the dissemination of video recordings in civil nonjury matters.

The high court stepped in to halt the program minutes before a California district court planned to broadcast streaming audio and video to a number of federal courthouses around the country of the proceedings in Hollingsworth v. Perry, a civil bench trial over a constitutional challenge to California's controversial Proposition 8, which amended the state constitution to restrict the definition of marriage.

In a per curiam opinion the Supreme Court ruled that the courts had not provided a sufficient comment period before changing court rules to allow cameras.

The majority opinion was joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito. Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor joined a dissent filed by Justice Stephen Breyer.

On Thursday, Judge Kozinski expressed puzzlement with the Supreme Court's decision in the matter, calling the case, which he characterized as mostly a question of law and involving intense public interest, “ideal” for broadcasting.

But whatever the current rulings on the question are, Judge Kozinski stressed that given the state of technology, and the gavel-to-gavel coverage of congressional proceedings, cameras in the courtroom are inevitable.

He urged the judiciary to work to shape how the introduction of cameras into the federal courts happens rather than leaving the matter to Congress to decide.