YouTube Uncovers The Supreme Court

YouTube is the place to go if you want to see a cover by an independent musician, a witty viral advertising campaign or a home video of adorable kittens. It is not the first place you would think of if you want to watch the Supreme Court in action.

At least it wasn’t until last week, when the first known camera footage of the Supreme Court in session surfaced on YouTube.

The video, just over two minutes long, is very low quality. Audio of the arguments is hard to make out, and the bench is far away. But because of the High Court’s longstanding ban on any form of video recording, it is still a history-making clip despite its technical shortcomings.

The cameraman (or woman; the person or people filming have not been identified) apparently coordinated with a protester, who disturbed the court by rising and loudly denouncing the decision in Citizens United v. Federal Election Commission. The protester, later identified as 33-year-old Los Angeles resident Noah Kai Newkirk, only spoke a few sentences before being escorted from the chamber. (The YouTube clip also appears to include some material from oral arguments in a case heard last October.)

Outbursts such as Newkirk’s are rare. The Wall Street Journal noted that the most recent prior incident happened in 2006, during an abortion-related case. But video, before now, has been not just rare, but unheard of. For the first time, the wider American public had a chance to see the High Court in session.

Richard Davis, a political scientist at Brigham Young University who studies coverage of the Supreme Court, commented to The Wall Street Journal, “The technology is now present for a minute camera to be brought into the courtroom. It is surprising to me this hasn’t happened before.” Despite the screening measures meant to enforce the Supreme Court’s camera ban, the video clip that made it to YouTube is proof that someone determined enough now has the tools to break through.

The Supreme Court has no business keeping the public out in the first place. While it is unfortunate that access had to happen in such a rude and inappropriate way, this does not change that basic fact. Regular readers will know I am not sympathetic to the politics behind Newkirk’s gesture, nor do I defend the disruptive manner in which he made it. But the Supreme Court belongs to the public, not to its justices. Seeing the workings of the judiciary ought not to require what, in other contexts, we would call investigative journalism.

The question of broadcasting Supreme Court proceedings has come up several times in recent years. It was widely discussed last year, when the Court heard arguments over two prominent cases affecting same-sex marriage, and in 2010, when the Court heard arguments in Perry v. Schwarzenegger, determining the fate of California’s Proposition 8. The matter was broached again when the Court prepared to hear oral arguments regarding the Affordable Care Act. Time and again, critics of the camera ban – including me – have argued that the ban is antiquated, pointless and wrong-headed. In 2014, the only still photographs that exist of the Supreme Court in session were taken clandestinely – in the 1930s.

Unfortunately, instead of accepting the fact that advances in technology will continue to make cameras both increasingly powerful and increasingly hard to detect, it seems that the Court’s first instinct is to double down on the ban. Kathleen Arberg, a spokeswoman for the Court, said “Court officials are in the process of reviewing the video and our courtroom screening procedures.” In other words, instead of allowing cameras in under controlled conditions, the Supreme Court likely plans to give the Transportation Security Administration a run for its money in elaborate screening procedures.

Doing so is about as sensible as trying to drown out someone’s Spotify playlist by increasing the volume on your wax cylinder player. Even if you temporarily succeed, progress left you behind long ago.

There is no principled defense of the camera ban. The United Kingdom and Canada both allow live coverage, to no evident detriment to their judicial processes; Canada even streams its sessions online, with a webcast archive available for older hearings. Moreover, this incident has proved that there is no practical way to enforce the ban going forward. The person who recorded the video could have secretly captured an entire argument just as easily as the disruption that this clip featured.

It is time for the justices to climb down from their pedestal. If they don’t, either they will have to retreat to a secure room, more appropriate for the National Security Council, or else YouTube users are likely to knock them off of it instead.

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