The Volokh Conspiracy

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A Modest Proposal: Livestream SCOTUS Oral Arguments With 7-Second Tape Delay To Account for Disruptions

If, and when there is an outburst, the Court can put the broadcast on hold until order is restored.


More likely than not, the Justices will assemble for in-person oral arguments on Monday, October 4. It remains unclear how the Justices will release audio of the sessions. In light of past practice, there seem to be three possibilities. First, the Court will continue to livestream the arguments. Second, the Court will release some, or perhaps all arguments on the same day, several hours after the session concludes. Third, the Court will go back to the pre-2020 status quo, and release audio on the Friday after arguments.

In hindsight, the greatest fear of live-streaming never materialized. The media did not take clips out of context in  misleading ways. On balance, the real-time broadcasts worked remarkably well. Indeed, sharing the audio prevented tweeters from miscasting oral arguments. C-SPAN brought reliability to same-day punditry.

At this point, the most pressing argument against live-streaming is the possibility of disruptions. No one could disrupt the arguments held remotely. But once people are allowed back in chambers, the threat of interference returns. In 2014, protestors disrupted oral arguments by shouting in the session. Later, the protestors leaked footage from a hidden camera.

This memory is no doubt on the Court's mind. If there is a live-stream, then people will have incentives to disrupt the proceedings, and be seen. Think of Justice Kavanaugh's confirmation hearing. Every few moments, another person jumped up and started screaming. The interruptions made the proceedings very difficult to follow. The Supreme Court would not abide by frequent disruptions.

This fear may cause the Justices to simply retreat to the pre-2020 status quo, and release arguments several hours later, or on the following Friday. But there is another option that is very familiar to live broadcasts: a tape delay.

What if the Court broadcasted the audio with a 7-second tape delay? If, for whatever reason, someone makes a disruption, the Court could pause the feed. Then, when order is restored, the feed can be restored. That way, people who seek publicity by protesting will not receive publicity in real time. Of course, the media will report on the protest after the fact. But the protesters will not get the viral moment.

I don't like the idea that the Court would alter the recording of its proceedings. The entire notion of doctoring history does not sit well with me. But in 2014, the Court edited out the protest. Disappeared from history. Still, I'd rather the Court edit out the occasional protest, and keep live-streaming, than go back to the stone-age of Friday releases.

I hope this modest proposal can be considered by the Court.

NEXT: Today in Supreme Court History: July 12, 1909

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  1. There's no reason protests couldn't be edited out of broadcasts, while retained in raw recordings made available to historians and other interested researchers.

    1. The arrogance of these Ivy indoctrinated lawyers knows no bound. They are our employees, deciding matters of importance to the public. They exempt themselves from the open meeting rules that apply everywhere else.

    2. What they could also do is impose much more severe punishments on these sorts of disruptions.

      If you know you are going to get at least a couple of years in prison if you try to interrupt the Supreme Court, you aren't going to do it. I generally feel this way about people who interrupt congressional hearings too. People do this stuff because the criminal justice system doesn't treat them as serious threats.

      1. "serious threats"

        They are not serious threats so they are not treated as such.

        Two years in prison for shouting something is outrageous.

        1. Shouting something in a particular place where absolute silence is legitimately demanded. And in a scenario where the shouters are relying on society not taking what they do seriously and punishing them.

          1. "absolute silence is legitimately demanded."

            Two years is still nonsense. Its just a government space, its not Solomon's Temple.

            1. There are spaces where loud speech isn't permissible because important things are going on. Funerals. Libraries. And yes, congressional hearings and Supreme Court arguments.

              If it was just a one-off, sure, I wouldn't come down like a ton of bricks. But once it becomes "this is something I can do, and they will give me a slap on the wrist and give me 24 hours in jail", at that point you have to bring out the prison sentences to stop the shouting.

              1. Have the two of you accidentally swapped userIDs?

          2. Damn Dilan, Nazi much? Why not just go straight to the summary execution?

            1. No, he's right: Heckler's veto is bad enough in some contexts, in the context of a court hearing, it's bad on steroids. If they want to protest, they can do that outside the building.

              Warn people that the tolerance has ended, and then come down like a ton of bricks on the next offender.

              1. Right. And while the punishment might seem disproportionate, you have to consider incentives. For instance, we'd all agree in general that tickets and an occasional tow are all you need for routine parking enforcement.

                But what if, say, protesters decided that as part of protesting a business, they would start deliberately parking their cars in front of the driveway and leaving them. Over and over again. They figured "we can afford the tickets and impound fees, and can shut this place down".

                At that point, even though illegal parking in general is a minor offense, in this case people are exploiting the generally minor penalties for illegal parking and lack of sufficient deterrence as an excuse to violate the law.

                In that situation, it's perfectly OK to for the government to pass a law imposing prison time. It's not being a Nazi at all. The person has no right to illegally park there. The light penalties are not any sort of acknowledgment that he or she does have that right; they are just an acknowledgment that most of the time, a small fine and a tow will provide adequate deterrence. But if that turns out not to be true, it is perfectly OK for the government to turn up the heat until people start obeying the rules.

                Here, you have a situation where people aren't being deterred from doing something the government has every justification to stop. It's legitimate to turn up the heat.

              2. This is not a civilian trial -- these are politicians in robes -- in a hall of the people who are sovereign.

                I do not endorse a heckler’s veto, but let the punishment fit the crime. And considering the power of the media/Democrat complex, I weep for equal protection.

                1. Equal protection IS the one concern I have with Dilan's proposal: The Supreme court building is in D.C., where the local government is totally dominated by one political party. Indeed, most court buildings are in big cities, dominated by Democrats.

                  The odds of politically discriminatory enforcement approach 100%.

                  1. Anything can be selectively prosecuted. The danger of selective prosecution is no greater here than it is with anything else.

  2. Why not show those who violate court decorum being arrested and jailed immediately for contempt of court? There could be a special broadcast at the end of the term when they are released from the contempt sentence and arrested for any other legal violations such as disturbing the peace, or insurrection.

    1. Because that is what the protestors want, the publicity and the honor of being a martyr.

      1. See my comment above. It's the length of time in incarceration.

        These folks are very happy with a 24 hour stay in jail and a bunch of publicity. But if you were looking at a couple of years in federal prison, with complete certainty and no plea bargains, for anyone who did this, that would almost certainly end it.

        1. Indeed, I imagine the same could be said of all sorts of "not-really-crimes because we're so lenient."

  3. Just have no visitors and live video feed everything.

    1. apedad...It would eliminate the problem, so there is that. But I think we lose something greater by following that path. One of the greatest experiences in life is to sit and hear an argument at SCoTUS. Literally, every day, history is being made. It is an amazing feeling watching it happen. At least, to me it is. I would hate to see this disappear.

      1. Alright, then, just put up a soundproof window, one-way glass, with spectators behind it, and use a live microphone feed to transmit the audio.

        If you did it right, you could even create an auditory illusion that would have you hearing the voices from the right locations.

  4. Why is it even necessary (or acceptable) to censor the oral arguments by editing out disruptions? Is the institution that is the Supreme Court so fragile that its process must be whitewashed to protect it from the real world? Should January 6th have been censored? For an institution that is paranoid about the continued erosion of its creditability, this doesn't help.

    1. The theory is that if you make interrupting a Court hearing into a way to get heard, the interruptions will become much more common, and start interfering with the ability of the Court to operate.

      1. Anybody interrupts, drag them out by the hair, beat their ass outside. Taser them after pepper spraying their eyes. To deter.

        1. The right sort of person would be encouraged by that, they'd have a camera crew waiting to film it.

          Nor am I cool with the government torturing people, even annoying people.

      2. Haven't you heard? Democracy dies in darkness.

  5. Of course literally every other government institution that broadcasts its proceedings handles the exact same potential problem just fine.

    1. Exactly! Besides, the disruptions are the most entertaining part.

    2. Indeed. The easiest way is just to position the cameras and unidirectional mikes so that only authorized speakers (the justices, the arguing attorney, the oyez person) are picked up. When protestors in the galleries interrupt Congress's proceedings, it's ineffective because TV viewers can't hear what they're saying. That fact, combined with modest penalties, is enough to eliminate most protests and neuter those that do occur.

      In the bootleg 2014 video, you could hear the protestor because he was standing next to the videographer.

  6. Adding tape delay would require staff - and that means cost. Probably as minimum staff of 3 to monitor, freeze when necessary, patch back in, etc. Since it's government work, more likely a staff of 10. People who would have a job for a couple hours a week.

    On the other hand, a delay of hours means that pretty much anyone with even the most rudimentary video editing software can snip out the disruptions and post the edited content. No new staff or fancy technology needed.

    Major league sports teams have tape-delay implemented because there's an economic incentive. What is the economic incentive that justifies a (relatively) expensive 7 second delay over a much cheaper delay of hours or days?

    1. You might be able charge enough for the live stream to cover the costs. I imagine it would be mostly news media who would subscribe, and maybe they would pay a decent price.

      I do agree with Brett that a permanent, unedited, video should be kept for historical purposes and, not incidentally, as a check on the video editors.

    2. Just outsource the cost? Give the feed to C-Span on the condition that they impose a tape delay? (But honestly I wouldn't be terribly troubled by a delay of a few hours if it's materially cheaper.)

  7. Get rid of oral arguments, which are largely useless. No issue then. Just because we have always had oral argument, it does not mean they are worth it.

    Maybe the court can then decide more than 64 cases a term.

  8. Or just don't have spectators in the court. Most people who want to know the substance of what happened during oral arguments either read the transcripts or listen to the audio feed/recording.

  9. Until they stop raping the constitution, what difference, at this point, does it make????

  10. It will be interesting to see if Thomas will continue asking questions when, presumably, the format of oral arguments changes back to the old "outcry" protocol rather than a more orderly round robin protocol.

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