Last week, the Pennsylvania Supreme Court live-streamed oral arguments for the first time in history, to limit the spread of COVID-19. Videos of the court sessions now reside on YouTube, but the media is prohibited from using any of the footage in news broadcasts.
A drop-down field beneath each day’s post notes that under court rules, “recording during … oral argument by videoconference is prohibited,” and that “violation of this directive may result in the imposition of sanctions.”
A Pennsylvania statute outlaws the unauthorized recording of proceedings within judicial facilities and in the immediate vicinity, but courts can make exceptions upon request. Violators can be convicted of a first- or second-degree misdemeanor, meaning the maximum penalty could be a $10,000 fine and five years in prison.
Court administrators did not provide details on how the state’s justices would go about imposing sanctions, or whether they encountered any problems last week. But in a statement, a spokesperson said, “The court, in conducting these unprecedented videoconference arguments, is endeavoring to adapt to the current environment while conforming, to the greatest extent possible, to well-established policies and statewide rules.”
The court has long banned audio and video recording of its proceedings, although in rare circumstances, it has permitted arguments to be televised.
Duquesne University law professor Bruce Ledewitz noted the policy might seem impractical now, when arguments can be accessed anytime on YouTube. But he said the justices likely are wary of changing the rule due to a temporary disruption like the coronavirus crisis.
“They can’t go back,” Ledewitz said. “Once they say you can record [court sessions], then the question will be, ‘Well, why can’t we record them now?’ when we’re back in person.”
Ledewitz said courts worry that televised arguments will lead jurists to play to the public outside the courtroom, instead of focusing on the law. But he added, “You see this already, with Justice [Ruth Bader] Ginsburg [and her U.S. Supreme Court colleague] Justice [Clarence] Thomas becoming cult figures, politically.” Before the pandemic, the nation's high court also prohibited its sittings from being broadcast in real-time.
In Pennsylvania, Ledewitz said, the justices have little choice but to stream oral arguments amid COVID-19, because the state constitution likely requires the sessions to be open to the public.
The professor cited a provision that states in part, “All courts shall be open.” His review of relevant case law only pertained to recording of trials, not appellate proceedings, however.
Ledewitz said the state Supreme Court might one day reconsider its policy on broadcasting arguments. Some states already allow the proceedings to be filmed. Ledewitz thinks the pandemic could lead to a broader shift in that direction, with televised court proceedings as common as broadcasts of city council meetings, for instance. The professor welcomed that outcome, though he said jury trials shouldn’t be on TV, to avoid influencing jurors.
Before, he said, first-hand access to arguments at the Pennsylvania Supreme Court was generally limited by courtroom capacity, although he noted that all the sessions are transcribed.
“But now, literally, everybody can see,” Ledewitz said. “What else could ‘courts shall be open’ mean when you can televise the proceedings?” And he added, “The more people see our government in action, the better it is for democracy.”
Ledewitz said while “there’s a lot of relatively new blood on the Pennsylvania Supreme Court,” the justices are not likely to rewrite the rules on recording anytime soon.
“They’re going to reconsider a whole new policy, not catch-as-catch-can because we happen to be online,” he said.
