The Volokh Conspiracy
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A Step Backwards for Cameras in the Courtroom
Supreme Court protesters may get their moment of fame, but they may make it less likely the justices will allow live video broadcast of oral arguments.
The Supreme Court has continued its Covid-era practice of live-streaming oral argument audio. This allows people to listen and comment on the arguments in real time. It also creates an incentive to disrupt the proceedings as a way of generating media attention.
Yesterday, during oral argument in Bittner v. United States, several protestors interrupted the oral argument to scream their objections to the Supreme Court's Dobbs decision and subsequent state laws limiting or prohibiting abortions. Each of the protestors was swiftly apprehended and removed from the courtroom. SCOTUSBlog reports on the details here,
While the protestors received a decent amount of media attention (which was no doubt their aim), it does not appear they were ultiamtely able to hijack the audio stream. SCOTUSBlog reports "some of Wednesday's protest was apparently redacted from the stream in real time on Wednesday: The stream started late, after the argument had already begun, and the audio briefly went silent during the protest in the first several minutes."
Television broadcasters routinely delay live broadcasts for a few seconds so as to allow real time editing or censoring of inappropriate conduct. (This development was one of the factors that precipitated a tightening of the FCC's rules on the broadcast of "fleeting expletives" noted in the Court's first FCC v. Fox decision upholding the policy.) If the Supreme Court is using a similar technology, that would certainly help protect against efforts to hijack livestreamed arguments for political purposes.
One likely consequence of yesterday's protests is that live video streaming of oral arguments is ever-more unlikely. The justices have long been wary of how live broadcast could alter the incentives of advocates and judges at oral argument in ways that encourage style over substance. (Are we already seeing this? Perhaps.) The risk of additional protests is only likely to stiffen their resolve.