For the first time in a decade, bills that would provide greater public access to the courts via the media, including streaming, have cleared an important hurdle.

That came at a markup in the Senate Judiciary Committee Friday (June 24).

Also Read: Fix the Court Says Streaming Should Be One Video Reform

According to Fix the Court, which has been advocating for cameras in the court for years, the committee passed two access-related bills.

By a vote of 14 to nine, to approved the Cameras in the Courtroom Act, which would require the Supreme Court to allow video recording of oral arguments and the reading of opinions.

It also passed the Sunshine in the Courtroom Act, which would allow judges to authorize live or delayed video and audio of courtroom proceedings.

“Whatever the fate of these bills, today is an apt reminder that Congress has broad authority to set institutional policies in our federal courts, even in the Supreme Court, from where they meet, what kind of cases they hear and, yes, whether they’re permitted to close their hearings to 99.9% of the public despite what modern technology affords,” said FTC’s Gabe Roth said. “The Committee’s continued interest in working to open up the historically opaque third branch, under both Democratic and Republican leadership, shows that transparency is a worthy goal that has no partisan bounds.”

Also Read: Groups Ask Supremes to Keep Live Coming

"Whatever the fate" is a key phrase. Attempts have been made for decades to get courts to open up to audio and video. Progress has been made on that front in various courts, including the Supreme Court, which opened its arguments up to live audio during the pandemic given that in- person attendance was barred. That was an upgrade from the end-of-week audio releases the High Court had adopted. But video is still off limits.

One big issue is separation of powers and to what degree the Congress can tell the federal courts what to do. Another is the judges who feel video potentially distorts decision making given that it can be cherrypicked and edited.

Sen. Ted Cruz (R-Texas) was one of those opposed to cameras in the Supreme Court. He said he was concerned about politicizing the court, including lawyers and justices playing to the camera and arguments sliced and diced in the editing room.

Fix the Court points said that some two-thirds of Americans have supported live video and/or audio in the Supreme Court since it started  since FTC started polling in 2014.

As to the current state of media access, according to Fix the Court: "The Supreme Court and 91 of 94 district courts do not allow cameras. Fifteen district courts are currently participating in a two-year live audio pilot program that began this past February. Although, per Judicial Conference policy, circuit courts may offer live audio and/or video access for arguments, only two, the D.C. (live audio) and Ninth (live video) Circuits, typically offered such access for their arguments, until the pandemic hit, whereupon all 14 appeals courts live streamed their hearings. Currently, only four of the 14, the Second and Federal Circuits, plus the D.C. and Ninth Circuits, have committed to live streaming into the fall."

As the Biden Administration launches its effort to explore reforms of the Supreme Court, one of the fixes that court watchdog group Fix the Court said should be on the table is expanded media access.

The President has created a 36-member commission to study potential changes. Obviously the highest-profile issue is whether to expand the number of justices, but according to the White House, also up for discussion case selection, rules and practices.

One practice Fix the Court has long pushed for is allowing video coverage of oral arguments. The court has allowed for end-of-the week release of oral argument audio, and in some cases same day. During the pandemic, it has been allowing live audio streaming of remote arguments, but has long declined to allow video coverage of any arguments. It is unclear whether the live-streamed audio will continue once the court can meet physically, though some groups have pushed for that to become the norm.

Also Read: Groups Ask Supremes to Keep Live Broadcasts Coming

In making its pitch for various reforms, Fix the Court (FTC) pointed to the recent observation by cameras in the court fan Sen. Charles Grassley (R-Iowa), former chairman of the Judiciary Committee: “Decisions made by the Supreme Court can resonate with our nation for generations, yet most Americans will never have a chance to see the highest court in action. Opening up the Supreme Court’s public proceedings to cameras and other broadcast tools provides a window into the court for all Americans, not just those in Washington, D.C.” 

Also Read: Justice Barrett Would Consider Cameras in High Court

FTC has to advocate for commission court fixes from the outside since FTC's prime mover, executive director Gabe Roth, was not named to the commission, which was skewed toward academics rather than those in the court reform trenches.

The federal judiciary is lobbying against a proposed bill that would make the PACER court records system free to electronic and print journalists and the public, according to talking points obtained by Fix the Court.

Currently a 10-cents-per-page charge is levied for access to the database of judicial proceedings including briefs motions, orders, and transcripts, a figure that can add up for lengthy or complicated cases with multiple filings, though fees are capped for some documents.

Related: Bill Would Make PACER Records Free

Fix the Court said the Administrative Office of the U.S. Courts, which oversees the federal court system, is getting dozens of judges to lobby against the Open Courts Act (HR 8235), citing a talking points memo it says the office has issued to judges to use when contacting their members of Congress asking them to oppose the bill. 

Those include that the bill would create a new "completely unnecessary" $2 billion filing system--Fix the Court and others call that figure ludicrous), that the system would be a back-breaking cost borne by litigants, that the bill creates more problems than it fixes, and that while the system is supposed to be paid entirely by user fees, there are already so many waivers and exceptions that most people pay nothing for it already.

PACER does not charge for court opinions, for viewing case information from courthouse terminals, or until an account has more than $15 in charges in a quarter, and parties to cases get one free copy if that is required by law or the filer of the document directs that that be the case.

PACER allows courts to exempt certain classes of people, including indigents and those in bankruptcy, but says, in general, that nobody who can pay should get out of the fee, including "members of the media."

Then there is the administrative burden. The talking points memo advises the judges to say that "would require my court to inefficiently and imprecisely analyze filings to impose these fees, adding additional burdens to an already strained work force and docket."

“Federal judges should not be lending their names and reputations to an ill-advised, ethically dubious lobbying effort,” said Fix the Court Executive Director Gabe Roth. “Instead of waging a campaign of grievance and misinformation, the judiciary ought to work with lawmakers on a legislative fix," he said.

Among the fixes needed are to how PACER uses the money it already collects. Roth points out that a federal appeals court has ruled that the judiciary has used PACER revenue to pay for non-PACER programs, which, ironically, is a violation of the federal laws the judiciary system is charged with helping preserve and protect.

Roth also points out there is an ongoing lawsuit over PACER fees and there could potentially be some overlap between that case and the judges being urged to lobby against the PACER reform bill. 

Fix the Court said the issues with electronic coverage of the courts have hardly been fixed.

Following technical issues with access to the Texas court decision Nov. 2 rejecting a Trump campaign attempt to invalidate drive-in-dropbox ballots, Fix the Court and media outlets, including the Radio Television Digital News Association, had sought assurances from the Administrative Office of the U.S. Courts that such issues were being addressed.

The head of the office responded this week that they were doing just that, though pointing out that there were rules against streaming audio from district courts on YouTube or other OTT platforms.

But Fix the Court slammed the office after more issues, this time with a Pennsylvania election-related court case, Trump v. Broockvar (the Trump campaign charges that its observers were kept too far away from the mail-in and absentee ballot-counting action to monitor it sufficiently).

The campaign is trying to block the state from certifying the election. Democrat Joe Biden is currently ahead by over 70,000 votes.

Fix the Court's Gabe Roth outlined the issues with the Pennsylvania case. "They set up a conference call line that could hold 4,000 people, but more than 4,000 people 'showed up,'" he said, "so they set up a second one. At some point about an hour ago [at about 5:10 p.m. Tuesday, Nov. 17], the call dropped altogether, and it took 20-30 minutes to get the audio working again. The audio quality was terrible, and it was difficult at times to hear attorneys from both sides, as well as the judge."

"Every federal appeals court, including the U.S. Supreme Court, has figured out how to livestream its hearings without technical failures," said Roth, "yet federal district courts, both today in Pennsylvania and two weeks ago in Texas, are plagued with massive difficulties at the very time the country's attention is upon them. This is completely unacceptable.

“Just yesterday, we were told by the courts' administrative arm that ensuring public access to proceedings 'is and remains a priority.' But today’s problems demonstrate the judiciary's lack of commitment to actual solutions, including the refusal to greenlight the use of YouTube or other platforms that can handle significant traffic."

The Administrative Office of the U.S. Courts said it is trying to provide more electronic access to court proceedings, including by advising courts they may want to pause proceedings if they have technical difficulties with providing online access to those proceedings.

That came in a response from office director James Duff to a letter to news outlets and Fix the Court, which had sought a definitive answer from the office on whether and how it plans to provide access to election-related legal challenges in district and federal appeals courts.

The request came last week when there were more Trump-backed lawsuits still extant.

In his response dated Nov. 16, Duff pointed out that in March, due to COVID-19, the Judicial Conference had approved the use of teleconference technology to provide the public and media outlets with live audio of civil proceedings, and provide guidance on how to implement that temporary exception to the general prohibition on the use of that technology, including "how to establish high-volume audio connectivity in an effort to maximize remote public access to the anticipated increase in election-related proceedings."

The letter from Fix the Court and others stemmed from technical issues with access to the Texas court decision Nov. 2 rejecting a Trump campaign attempt to invalidate drive-in-dropbox ballots. The phone line set up to provide access to that hearing malfunctioned and dropped everyone, said the outlets in a letter to Duff Tuesday (Nov. 3), after which only some outlets were allowed to get back on, and even then the audio quality was so bad, compounded by the fact that the reporters' lines were not muted, that it made it "almost impossible to understand."

To that point, Duff said: "If technical difficulties arise during a proceeding that significantly interfere with public access, courts have been advised that they may wish to consider pausing the proceeding until access can be restored."

But the office has also been working to obviate the need for such delays.

Duff said it has been working with courts to identify future potential technical difficulties, expanding its outreach along those lines including by asking courts to notify the office before high-demand proceedings and discuss options and assistance.

As to streaming court proceedings, he pointed out that many federal appeals courts currently provide audio, but that "judiciary policy prohibits audio streaming broadcasting of district court proceedings."

He did note that the conference has approved a pilot program to test livestreamed audio of civil proceedings in district courts, but that won't begin until next year.

Fix the Court, the group that advocates for more transparency in legal proceedings, has yet to get a definitive answer from the Administrative Office of the U.S. Courts on whether and how it plans to provide access to election-related legal challenges, though the office signaled it remained committed to openness.

President Trump has yet to concede the election to Democrat Joe Biden, who has been proclaimed the winner by the vast majority of news outlets after ballot counts showed him securing more than enough votes to secure the requisite 270 electoral votes. Instead he promised to launch a new round of legal challenges Monday (Nov. 9).

Fix the Court joined with news outlets last week to ask  James Duff, director of the Administrative Office of the U.S. Courts, and the executives running the 13 federal circuits to ensure there is live, unfettered public access to any court hearing and judges' ruling related to the election.

That stemmed from technical issues with access to the Texas court decision Monday (Nov. 2) rejecting a Trump campaign attempt to invalidate drive-in-dropbox ballots. The phone line set up to provide access to that hearing malfunctioned and dropped everyone, said the outlets in a letter to Duff Tuesday (Nov. 3), after which only some outlets were allowed to get back on, and even then the audio quality was so bad, compounded by the fact that the reporters' lines were not muted, that it made it "almost impossible to understand."

According to Fix the Court, at press time it had only received the following e-mail (last Wednesday, Nov. 4) from the Administrative Office public affairs office: "Thank you for sharing the letter from the media groups about access to election-related hearings. We will respond shortly. This is an important matter and the AO and the courts remain firmly committed to providing public access to court hearings." The group signaled that didn't cut it.

According to a source members of the House Judiciary Committee have also reached out to the Administrative Office to express their "consternation" at the lack of broadcast access, particularly after the Texas snafu.

Electronic and print news outlets have joined with Fix the Court to ask James Duff, director of the Administrative Office of the U.S. Courts, and the executives running the 13 federal circuits to ensure there is live, unfettered public access to any court hearing and judges' ruling related to the election.

That stems from technical issues with the Texas court decision Monday (Nov. 2) rejecting a Trump campaign attempt to invalidate drive-in-dropbox ballots. The phone line set up to provide access to that hearing malfunctioned and dropped everyone, said the outlets in a letter to Duff Tuesday (Nov. 3), after which only some outlets were allowed to get back on, and even then the audio quality was so bad, compounded by the fact that the reporters' lines were not muted, that it made it "almost impossible to understand."

They offered some suggestions to avoid a repeat of those issues for the existing and expected legal challenges surrounding the election. "There are dozens of election lawsuits making their way through district and appeals courts at this very moment, and the American people have a keen interest in how these cases are being argued and how they are being decided," they told Duff.

1. Allow district courts to use YouTube channels, which most circuits have created for audio appeals during the pandemic.

2. Work with the local media outlets to create a pool feed of the arguments.

3. Tweet, send a press release, and or post on the court home page if there are delays and technical issues

Joining in the letter were the Radio Television Digital News Association, the National Press Photographers Association, the News Media Alliance, the Reporters Committee for Freedom of the Press, and the Society of Professional Journalists.

Judge Amy Coney Barrett, President Donald Trump’s pick to succeed the late Ruth Bader Ginsburg on the Supreme Court, could well help shift the Supreme Court’s view of how much deference to give decisions by agencies like the Federal Communications Commission.

The doctrine of Chevron deference, established by the Supreme Court in the 1984 case of Chevron U.S.A., Inc. vs. Natural Resources Defense Council, established the legal test for when courts should defer to the expertise of a regulatory agency. 

Andrew Jay Schwartzman, a veteran watcher and participant in federal appeals, concedes there is little track record to go on, but said, looking at her general philosophy, “I would speculate that she would likely be willing to consider modifying or overruling Chevron. Similarly, she might be disposed to revisit Supreme Court jurisprudence on nondelegation.” (Barrett’s nomination could lack the necessary votes, given the COVID-19 diagnoses of some Republican senators.)

Chevron doctrine was central to the Supreme Court’s 2005 decision in NCTA v. Brand X Internet Services, which upheld the FCC’s authority to classify broadband as an information service not subject to mandatory access common-carrier regulations. 

In Brand X,  the High Court ruled that Chevron deference trumped an appeals court decision because that appeals court had found the statute vague and, in such cases, the court should have deferred to the federal agency's subject matter expertise, in this case the FCC.  

That finding has left different FCCs to define and redefine internet access, and has prompted calls for Congress to step in and do its duty to clarify the statute.

Potential fellow conservative Justice Brett Kavanaugh is on the record as having issues with Chevron, which gives more weight to an agency’s reading of ambiguous statues given the agency’s subject matter expertise.

Kavanaugh had more reason to weigh in as a former member of the U.S. Court of Appeals for the D.C. Circuit, which oversees appeals of agency decisions. Barrett, by contrast, has been a member of the 7th U.S. Circuit Court of Appeals — comprising Illinois, Indiana and Wisconsin and where the issue of Chevron deference does not get a lot of exercise — for only three years. But Barrett is an originalist who could look at the separation of powers and decide, as other legal conservatives have, that Congress is delegating too much power to agencies, helped by courts’ excessive deference.

Justice (and Republican appointee) Neil Gorsuch, a former member of the 11th circuit, has argued that while agencies should get deference for technical expertise in their subject areas, it should be up to the courts to do the clarifying of vague statues. He argues that giving federal agencies that power runs into both equal protection and separation of powers issues. 

The legal doctrine of nondelegation means Congress is not supposed to delegate its power to agencies or private entities without sufficient principles on which to base the exercise of that power.

Conservatives argue that Chevron, combined with insufficient adherence to nondelegation, has contributed mightily to the power of regulators and the ballooning of the administrative state.

Randolph May, president of the Free State Foundation, definitely sees Barrett helping shift the court on the issues. He thinks that is a good thing, but said the shift is likely to be “more modest than melodramatic, with the array of agencies continuing to carry out their core missions.” He also said that was likely to happen whether it was Amy Coney Barrett or some other appointee “in the same mold.”

“I suspect that, in a proper case, the Court will substantially curtail Chevron’s application, if not jettison it completely, and also that it will reinvigorate the nondelegation doctrine,” May wrote for the Yale Journal on Regulation. “But the end result of these jurisprudential changes most likely will be only a modest alteration in the size and scope of the administrative state's present power.”

One thing Barrett definitely knows about is audio and video in federal courts, something C-SPAN and Fix the Court have been pushing the Supreme Court to add for years. Currently the court provides audio, in some special cases, same day, but not live and no video.

The late Justice Antonin Scalia, for whom Barrett clerked, was a big opponent of cameras in the court. Although he supported televising oral arguments when he joined the court, Scalia later said he had concluded that TV would turn court proceedings into unhelpful, uncharacteristic sound bites.

But Fix the Court executive director Gabe Roth noted that in 2018, “Barrett was on the first-ever 7th Circuit panel that allowed cameras in the courtroom.” He also pointed out she was on numerous cases that were live streamed due to the pandemic. 

Scalia was also a big fan of Chevron early on, but softened in later years, Schwartzman said.

If Fix the Court has anything to do with it, look for Judge Amy Coney Barrett to get a question about cameras in the court during her Supreme Court confirmation hearing in the Senate Judiciary Committee, which begins Oct. 12.

Two years ago, Barrett was on the first Seventh Circuit panel that allowed a camera in the court. and has sat on several cases that were livestreamed due to the pandemic, according to Fix the Court, a big advocate for judicial transparency, including allowing cameras. Fix the Court executive director Gabe Roth said the group does not know her views on cameras in the Supreme Court but hope to learn them.

Not leaving anything to chance, Fix the Court has asked senators to pose that question during the hearings.

Barrett's mentor, Justice Antonin Scalia, was famously opposed to cameras in the court and once even asserted a First Amendment right to bar cameras and microphones from his speeches.

The House Judiciary Committee is marking up a bill this week that would mitigate the PACER online legal document service to a free service to the public (it currently costs 10 cents per page) over the next several years.

The Open Courts Act is backed by Fix the Courts, which has urged consideration of various free online access to federal court bills—the Electronic Court Records Reform Acts in the House (H.R. 1164) and Senate (S. 2064) and the PACER section in the 21st Century Courts Act (H.R. 6017).

Related: BIll Would Mandate Court Streaming During Pandemic

“The third branch has been profiting off researchers, media and nonprofits via its ridiculous and outdated [PACER] paywall for too long," said Fix the Court's Gabe Roth. "That’s why Fix the Court urges the Judiciary Committee to vote this bill out of committee tomorrow and for House leadership to move it to the floor soon after.”

Fix the Court has renewed hope of revamping the system after an Aug. 6 ruling by the U.S. Court of Appeals for the Federal Circuit upholding a district court ruling that the PACER fees were excessive and implicated the First Amendment right of access to judicial proceedings. "If large swaths of the public cannot afford the fees required to access court records, it will diminish the public’s ability 'to participate in and serve as a check upon the judicial process—an essential component in our structure of self-government,'" the Federal Circuit concluded.

PACER charges because Congress never appropriated money to cover operating expenses. PACER was launched by the Judicial Conference, which relies on money from Congress to operate.

Fix the Court, the Radio Television Digital News Association and the Society of Professional Journalists have joined with more than two dozen groups to ask Supreme Court Chief Justice John Roberts to continue to provide live audio of its oral arguments. 

The May session ended last week, during which live audio was provided in light of the COVID-19 pandemic restrictions on the "public" in public trials. That pandemic will likely still be around in October, when the High Court reconvenes for argument. 

"We understand that the Court had long resisted calls to broadcast live, wary that justices or attorneys would grandstand or the American public would misunderstand the proceedings," they said, "so we were heartened to find these fears were not realized in May." 

But Fix the Court and the others argue in a letter to the Chief Justice that the May session's live audio demonstrates that such broadcasts provide "a clear sense of the gravity of the deliberations and the thoughtfulness of the justices," so even when the pandemic ends, they want the broadcasts to continue. 

"Live audio helps America understand the Supreme Court," they said. "We believe that if continued, it will benefit the institution – and the civic health of the country – immensely."

The U.S. Supreme Court’s first attempt at broadcasting oral argument audio live went swimmingly on May 4. Someone must've forgotten to cue the fire and brimstone.

Remind me — why they haven’t been doing this all along?

Concerns over technical glitches proved to be overblown. Justice Sonia Sotomayor was on mute for an extra moment during her first round of questions and Justice Stephen Breyer at one point had a few seconds of raspy audio. But that was it, as tens of thousands of Americans finally had the opportunity modern technology has afforded us for decades to listen to the country’s top jurists weigh in on a case, live and unfiltered. The days of restricting the court's proceedings to VIPs, the press and a few dozen members of the public are over.

Now that we know with certainty that live audio does not impair its functioning, there’s no reason for the court to return to its outmoded policy of week’s-end audio releases once we're past the pandemic.

Patent Office Led Off

After Chief Justice Roberts called the first case, Justice Department attorney Erica Ross, representing the U.S. Patent and Trademark Office in PTO v. Booking.com, began the historic arguments by citing a 2nd U.S. Circuit Court of Appeals patent opinion by Judge Henry Friendly — for whom Roberts clerked — with two minutes, 21 seconds of uninterrupted time before Roberts broke in with a question about the trademark statute. After all nine justices asked questions, Lisa Blatt, arguing for Booking.com and who was speaking from a lectern atop her dining room table, The Washington Post reported, kicked her turn off by discussing the situations under which generic words may be trademarked. Roberts broke in after two minutes, 18 seconds.

Ross and Blatt — skilled SCOTUS advocates both — parried the queries with a style both conversational and intellectual that made it clear why this argument was chosen to be the first one ever live-streamed. Even Justice Clarence Thomas, who’d previously only asked questions in two oral arguments since 2006, asked questions of both attorneys. During the 77-minute exercise, Justice Elana Kagan asked the most queries with six, followed by Roberts, Neil Gorsuch and Ruth Bader Ginsburg with five apiece. No justice asked fewer than two questions.

One could make the argument that the typically boisterous bench was more subdued than usual, given Roberts’s role as traffic cop. Our research indicates that the public would see that as but a small concession to make given the overwhelming support for real-time streaming.

A link to an audio file of the argument is expected to be posted on SupremeCourt.gov shortly, which makes this not only the first live argument but also the 28th for which an audio recording was provided to the public on an argument day.

To our disappointment, though, Roberts went right into argument after the marshal’s cry, whereas courts that have offered expanded broadcast access have chosen to explain to those listening live what they were about to hear.

Some appellate judges who have live-streamed arguments from their courtrooms were quick to chime in with some encouragement, albeit cheekily. Chief Justice of the West Virginia Supreme Court of Appeals Beth Walker tweeted: "Congratulations, SCOTUS, on broadcasting the audio of oral arguments live today. The Supreme Court of Appeals of West Virginia has been doing it since the late 1980s."

Fix The Court surveyed the 50 states’ top courts and the 14 U.S. Courts of Appeals and found that, as of today, 29 of the former and 13 of the latter (all but the 1st Circuit) have conducted remote arguments since the president declared a national emergency on March 13. Another 10 state supreme courts plan to go remote in the coming weeks.

The most popular argument format we found was similar to what the Supreme Court followed: attorneys uninterrupted for a certain number of minutes, followed by rounds of questions from judges in order of seniority, with the chief sometimes waiting to go last. For example, when the D.C. Circuit conducted remote en banc arguments on April 28 on whether the U.S. House may compel testimony from executive branch officials, for which a live audio feed was provided to the public via YouTube, Chief Judge Sri Srinivasan gave each attorney three minutes for opening statements followed by questioning by the eight other judges in order of seniority, though Srinivasan himself waited to ask questions until the end. Judges were then given a second round of questions before moving to the next attorney’s opening statement, and attorneys were allotted a brief time for rebuttal.

A three-judge panel in the 10th Circuit, meanwhile, was “not planning to stream [its April 30] arguments since that would just complicate our first attempt at completely remote arguments,” according to a court source. “But then we decided to follow the approach the D.C. Circuit uses,” regarding timing and questions, which worked well and will again be employed for this week’s arguments. This format was also followed by the Massachusetts Supreme Judicial Council for its remote arguments on April 6.

Different Courts, Different Formats

It remains an open question whether the format the Supreme Court has adopted for remote arguments this week will stay the same throughout the May sitting. The Chicago-based 7th Circuit, for example, decided that after a handful of telephone-only arguments in April, some of its hearings this month may take place over Zoom. The Supreme Court of Ohio also moved to Zoom last week after the initial video platform it used was so “awful” that they “only posted the audio,” according to a court source.

With live remote arguments having been successfully conducted in 11 of 14 U.S. Appeals Courts (all but the 1st, 3rd and 6th Circuits), the argument could be made, to paraphrase Justice John M. Harlan’s famous dissent in Estes v. Texas, that the day has come when live audio “will have become so commonplace an affair [...] as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process.”

Gabe Roth is executive director of Fix the Court, a nonpartisan watchdog group focused on “fixes” to make the federal courts more open and accountable.

Rep. Mike Quigley (D-Ill.) wants to make sure that the public gets a virtual seat in the gallery for the new normal of streamed court proceedings.

The Supreme Court will for the first time hear oral argument over the Internet starting May 4--C-SPAN is providing the feed of the audio-only argument--and has been joined by at least 27 state supreme courts, according to Fix the Court. In addition, 12 of 13 federal appeals courts have held remote hearings, nine of them live streamed.

Related: Majority of State Supreme Courts Stream Arguments

Quigley wants all court hearings to be streamed to the public during the pandemic.

His bill:

1. "Requires any arguments heard in a circuit court via audio or video conference to be livestreamed to the public, and

2. "Expands on the CARES Act section on audio/videoconferencing trial court proceedings to open them up to the media either by livestream on the court’s website or by coordinating with a third party to provide the livestream."

“We need to do everything we can to ensure press and public access to judicial proceedings continues during this outbreak," said Quigley. "While the Supreme Court took a step in the right direction by allowing oral arguments to be heard via telephone conference, we can do more to develop and adopt new technologies to preserve the transparency of our federal courts while practicing safe social distancing."

The bill is endorsed by Fix the Court.

“Of course the public should have access to the remote proceedings our federal courts are holding during the pandemic,” Fix the Court executive director Gabe Roth said in a statement on Quigley's web site. “Some courts have recognized this imperative and are offering live broadcasts, but this timely legislation would go a step further and codify a uniform broadcast policy in the appeals courts and a uniform broadcast policy in the trial courts." 

Rep. Mike Quigley (D-Ill.) wants to make sure that the public gets a virtual seat in the gallery for the new normal of streamed court proceedings.

The Supreme Court will for the first time hear oral argument over the Internet  starting May 4--C-SPAN is providing the feed of the audio-only argument--and has been joined by at least 27 state supreme courts, according to Fix the Court. In addition, 12 of 13 federal appeals courts have held remote hearings, nine of them live streamed.

Related: Majority of State Supreme Courts Stream Arguments

Quigley wants all court hearings to be streamed to the public during the pandemic.

His bill:

1. "Requires any arguments heard in a circuit court via audio or video conference to be livestreamed to the public, and

2. "Expands on the CARES Act section on audio/videoconferencing trial court proceedings to open them up to the media either by livestream on the court’s website or by coordinating with a third party to provide the livestream."

“We need to do everything we can to ensure press and public access to judicial proceedings continues during this outbreak," said Quigley. "While the Supreme Court took a step in the right direction by allowing oral arguments to be heard via telephone conference, we can do more to develop and adopt new technologies to preserve the transparency of our federal courts while practicing safe social distancing."

The bill is endorsed by Fix the Court.

“Of course the public should have access to the remote proceedings our federal courts are holding during the pandemic,” Fix the Court executive director Gabe Roth said in a statement on Quigley's web site. “Some courts have recognized this imperative and are offering live broadcasts, but this timely legislation would go a step further and codify a uniform broadcast policy in the appeals courts and a uniform broadcast policy in the trial courts." 

The Supreme Court has tacitly conceded that live audio of oral arguments is an important tool to reach the people who can't be in the courtroom, but it is still not making that audio available beyond the journalists who cover the arguments. 

So, in essence it will create a virtual press gallery to relay the info to the public, but not let them hear it firsthand. 

Related: Open Court Advocates Say Justice Doesn't Have to Be Delayed 

The court said Monday (April 13) that after postponing arguments the past two months due to the pandemic, it would hold arguments by teleconference on a select number of those postponed cases next month and "anticipated" that it would provide a live audio feed to news media, though it was not clear how that would be done--a pool feed, perhaps, or call-in number for the conference. The court said more details would be forthcoming, but had not forthcome at press time. 

The Supreme Court building remains open, though most staffers are teleworking. 

Fix the Court, which was pushing for virtual arguments open to the public, was not pleased that the court did not plan simply to stream the audio so all could hear. 

“All across the country, state and federal appeals courts have found a way to allow both the press and public to listen to arguments, but apparently only the press will be invited to access the Supreme Court’s remote arguments next month," said Fix the Court executive director Gabe Roth. "This type of exclusion is patronizing and unjustifiable." 

He said that if the court gives journalists the call-in number for the teleconference, they should post it anonymously online so the public can phone in as well. “While I’m certainly grateful that the Supreme Court is finally considering using late-20th century technology, it shouldn’t be done in a way that keeps its public exercises hidden from the vast majority of the public," said Roth. 

The Supreme Court has closed its building to the public effective Thursday (March 12) until further notice due to the coronavirus. The building remains open for official business and the court said case filing deadlines will not be extended. 

Related: New Bill Requires Online Audio From Supreme Court 

Given that, said Fix the Court executive director Gabe Roth, if the closure extends beyond March 23, the next time oral arguments are to be heard, the court should at minimum allow for live streamed audio. 

Roth said it was the right call to close the court to the public's physical presence, and would be the right one to make sure they have a virtual presence via streaming. 

He said that would be the smartest way to balance the public interest in both safety and access to the court. Ideally it would be a video stream too, but he concedes that would be bit tougher of an ask. "The idea here is to use technology that's easy and has been done before." 

The court audio streamed Justice Antonin Scalia's memorial service in November 2016. 

Fix the Court has long pushed for live video and audio of court proceedings. 

A federal court has granted a C-SPAN request for live audio of the court's Oct. 23 hearing on the effort to force President Donald to release his financial records (Trump V. Vance), according to Fix the Court. 

The request to the Second Circuit Court of Appeals came in a tag team effort among C-SPAN, FTC, and the Reporters Committee for Freedom of the Press (RCFP), said FTC's Gabe Roth, all of which support opening up the federal courts to audio and video coverage. 

"The clerk of the court responded to the letter by saying that I should work with C-SPAN on a live audio request since C-SPAN successfully requested live audio for an earlier Trump case back in August," said Roth. "So, I reached out to C-SPAN, asked them to make a live audio request, which they did, and I heard today from them that the request was granted." 

The August case was a previous Second Circuit hearing on Trump's financial records. 

Fix the court also said it will be pushing for live audio of November death penalty arguments in the eleventh Circuit, as well as of the Dec. 12 arguments on the emoluments clause and Trump in the Fourth. That is the constitutional clause that is supposed to prevent federal officeholders from taking gifts, payments or other things of value from foreign governments or their leaders without the express consent of Congress.

The Supreme Court has denied a request by judicial reform group Fix the Court to release same-day audio of April 19 oral argument in Trinity Lutheran Church v. Comer.

According to executive director Gabe Roth, Supreme Court Public Information Officer Kathy Arberg said that the court will follow the "usual practice" for posting oral argument audio, which is not same day.

The case, which is being argued April 19, deals with the separation of church and state and whether churches can be excluded from an otherwise secular aid program. It will be one of the first big cases heard by the full court, including the just-seated Trump-appointed Associate Justice Neil Gorsuch.

But the federal court access news was not all bad.

Fix the Court sent a letter to federal appeals courts March 27 asking for live streamed audio of important cases, and Roth says it has drawn some promising responses, including from the Eighth Circuit, where the chief judge has reportedly asked for information on the technology and signaled it could e on the agenda for the September circuit-wide meeting.

“Lower courts look to the Supreme Court for how to apply precedent and decide cases, but the justices should also be setting the tone for how the judiciary conducts itself in terms of openness and accountability – tasks at which the high court has failed miserably,” said Roth. “Thankfully, many circuits are taking the initiative to modernize on their own," he said, including by "implementing more contemporary broadcast policies."