Let me say at the outset: I am a big fan of online court proceedings. It allows greater participation. It reduces costs. It reduces disruption for everyone. It moves the wheels of justice. But online proceedings also offer the opportunity for greater public access to and transparency of our court system than ever before.
Remember that we have the idea in this country that court proceedings are by and large open to the public. Open online proceedings allow everyone and anyone to observe and comment on judicial proceedings. What could that mean? What could that do? And while this is good, just as we have seen with social media which has brought more openness and wide audiences for all sorts of commentary, there are dangers lurking.
In the old pre-Covid days, if a member of the public wanted to know what was happening in a court proceeding, they by and large had to rely on reports from lawyers/journalists. Or they could physically go to the courthouse and observe. That meant travel time. And once you got to the courthouse, you might sit around all day eating to see what you came to see (and hear).
With online proceedings, the disruption is gone. Tune in when you want. If there is a delay, do something else while you wait. No travel. No sitting around a courthouse. More access. More transparency. Anyone could see and hear what happens in any proceeding anywhere, anytime.
Alison Frankel wrote about the results of this open access we are already seeing in a perceptive and well-written piece in Reuters. She notes tens of thousands of people listened to audio streams of federal election proceedings in Pennsylvania and Georgia. Countless people listen to Supreme Court arguments that never could before. Class members now have the chance to listen to proceedings involving their class action. They can hear what’s happening during, for example, class action settlement proceedings.
Perhaps recognizing this phenomena, the U.S. Judicial Conference created a pilot program of live audio streams from 13 federal district courts recently. Perhaps sensing the opportunity for problems, the Conference did, however, prohibit the live streaming of jury trials and proceedings with witnesses. Also, the parties have to consent to the live-streaming.
We have a strong tradition in this country that the public has generally been allowed access to courtrooms in addition to court records
But that begs the question of how far the Conference or any court can or will go in placing limits on public access. As I said, we have a strong tradition in this country that the public has generally been allowed access to courtrooms in addition to court records. Anyone who wants to watch a trial or hearing could do so, as long as a seat was available.
The theory has been that these freedoms are incredibly valuable. That public access to records and proceedings holds the courts accountable. That it ensures any errors, oversights, and injustices are entirely transparent. We believe this access helps elevate our justice system to the highest standard of accuracy and integrity.
But everything comes with a cost. How do we appropriately balance these benefits with the risk?
All well and good and difficult with which to quarrel. But what happens when everyone and anyone can have access via the online world. The benefits are clear, and I, for one, embrace them. But everything comes with a cost. How do we appropriately balance these benefits with the risk?
We have indeed seen what happens with social media when anyone can write whatever they want and post it. We have seen how transparency and access have politicized so many elements of our lives in poisonous ways. We have seen how social media is used to promote outlandish claims and theories. Open online access to our court systems could open the door for the same type of public attacks on the judiciary and participants, politicization, conspiracy theories and just pure, mean vile commentary.
Will public online access result in the same sort of attacks and ideas being used against the judiciary? The U.S. Judicial Conference is right to be concerned about open access for proceedings involving witnesses and jury trials. But will that be universally adopted? Will it withstand challenges based on the public’s right to access? Will statements made in proceedings by the Court and witnesses be used out of context to flame fires of prejudice and hate that we see in other venues? Can open access be used to intimidate and “out” witnesses jurors?
And what about our judges and lawyers? What’s to prevent lawyers and judges from succumbing to temptation and playing to the mass audience that open access provides? While federal judges have the protections of lifetime appointments, the dangers of abuse are more significant at the state court level, where most judges are elected. Will these judges be tempted to use the courtroom as a campaign platform? Will public pressure and commentary force them to? Yes, respect the judiciary and believe most judges will do the right thing. (Although I used to think the same things about officials in other branches of the government). But how will the system handle increased commentary and pressure?
There’s real danger that open access might ultimately undermine public respect for the credibility of one of the last bastions of integrity: the judiciary
There’s real danger that open access might ultimately undermine public respect for the credibility of one of the last bastions of integrity: the judiciary. There are real risks to the rule of law that need to be recognized.
As lawyers, I don’t think we really want this to happen. We need to begin a conversation about how to balance the benefits of open online access with the dangers that access poses. We need to consider how to deal with those dangers. We need to recognize the need for our judiciary to be protected and respected. To not fall victim to the innuendo and attacks so many others in public and, for that matter, private life suffer.
As lawyers, we have a duty to do all we can to recognize and prevent these dangers. Somehow, someway, we must find that balance. The issue can’t be ignored: online court proceedings and open access are not going away.