Follow-Up re Letter to Chief Judge Briscoe About Argument Audio

The Tenth Circuit announced today that it will bypass normal procedure and post audio online from the historic argument on Utah's same-sex marriage ban, to be held April 10 in Denver. Presumably, the same will be allowed for the April 17 argument on the Oklahoma ban.

As noted in my recent letter to Chief Judge Briscoe requesting that change, persons wanting to hear argument audio must, under court rules, file a motion (stating reasons).

Thank you to Chief Judge Briscoe and the entire Tenth Circuit for opening the proceedings to all interested persons, including the public, as well as national and international press.

My guess is that the Tenth Circuit cases have the best shot of getting Supreme Court review because they present the clearest "case or controversy." Unlike other states, Utah and Oklahoma are defending their laws with no mixed messages from high state officials.

Tenth Circuit Same-Sex Marriage Arguments: Letter Requesting Online Audio

This letter was sent to Chief Judge Mary Beck Briscoe of the U.S. Court of Appeals for the Tenth Circuit.

February 22, 2014

Dear Chief Judge Briscoe:

This letter is a request for the Tenth Circuit to consider posting argument audio online, as a routine matter, and for the same-sex marriage arguments in April, specifically. My interest is as a lawyer, freelance journalist, and citizen.

The U.S. Supreme Court and ten federal appellate circuits post argument audio to their websites. Only three circuits, including the Tenth Circuit, do not. The Tenth Circuit is the only one of the three that requires a motion to be filed to obtain audio.

The April arguments about the constitutionality of same-sex marriage bans will be part of American legal history, as the country and the courts weigh this important issue. There will be national and even international interest in the arguments. The Tenth Circuit courtroom cannot accommodate that level of interest, nor can any courtroom. Since the proceedings are public, this presents a meaningful gap in public access.

Posting audio of the arguments online would help fill this gap. It would also reduce the administrative burden on Tenth Circuit judges, staff, and persons requesting audio, as motions would not need to be filed or processed.

The Supreme Court, famously cautious on access, has been posting its audio to the Internet since 2010. The Ninth Circuit recently began live streaming audio of all arguments and video of en banc arguments.

It would be greatly appreciated if the Tenth Circuit would review its current policy and join the Supreme Court and most of its sister circuits in offering access to argument audio online, particularly for the April marriage arguments.

Thank you for your consideration.

Court Hearing Utah's Same-Sex Marriage Appeal Lags in Public Access

The U.S. Supreme Court today stayed the federal district court's ruling in Kitchen, "pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit." The district court ruling had allowed same-sex marriage in Utah.

An argument in the potentially landmark case is coming to the Denver federal appeals court in the next several months.

The Tenth Circuit is one of only three holdout circuits that do not post argument audio online. The others are the Second and Eleventh Circuits, which make audio available via CD purchase. To get Tenth Circuit audio, you need to file a motion stating reasons for seeking access. If granted (which I have been told happens routinely), the court emails an mp3.

Perhaps the Tenth Circuit will make an exception with Kitchen or, perhaps, see this as an opportunity to join most of its sister circuits and post audio online.

Today, the access-leading Ninth Circuit began live streaming audio of all arguments and recently began live streaming video of all en banc arguments.

Links to audio from the ten circuits that post online and the Supreme Court are here.

Appellate Daily has done a series of posts advocating for greater public access to oral argument audio, including Before Supreme Court TV, How About This?, back in 2010. Several circuits have increased access since that time.

RBG's Greatest Hits (on the Majority)

"And though she be but little, she is fierce."
William Shakespeare, A Midsummer Night's Dream

As the Supreme Court issued some of its last decisions of the 2012-2013 term, Justice Ruth Bader Ginsburg took the unusual step of reading three dissents from the bench, showing her strong feelings about them. The number is actually four, because one of her statements covered two separate cases.

Here, as she sounded live in the courtroom during the last week of June, are Justice Ginsburg's Greatest Hits (on the majority). Hearty thanks to Oyez for making them available online last night.


Shelby County v. Holder (Voting Rights Act)
"What has become of the Court's usual restraint...?"




Vance v. Ball State University & University of Texas Southwestern Medical Center v. Nassar (Title VII)
"The Court's disregard for the realities of the workplace means that many victims of workplace harassment will have no effective remedy."




Fisher v. University of Texas (affirmative action, a solo dissent)
"I have several times explained why government actors, including state universities, need not blind themselves to the still lingering, everyday evident effects of centuries of law-sanctioned inequality."



Could the Supreme Court's next step to greater public access be live broadcast or same-day audio release of opinion announcements or arguments? I think that is a realistic target.

Sixth Circuit Posts Argument Audio Online

I noticed some argument audio on the U.S. Court of Appeals for the Sixth Circuit's website and called the Clerk's Office this morning for details.

Per that call, the Sixth Circuit began posting audio at the end of July and plans to continue, going forward. The court is still deciding how long it will keep the audio up. There was no formal announcement, the Clerk's Office said. A link was simply added to the website.

That leaves only the Second, Tenth, and Eleventh Circuits that do not make argument audio available online. A friendly hint, hint, to those courts.

Find links to the now ten federal appellate courts that post audio here.

Argument Audio: The Four Holdout Circuits

Most federal appellate decisions are final, and arguments are an important part of that process. See "Before Supreme Court TV, How About This?" More and more, courts are opening these public proceedings to the public, via the Internet.

On Wednesday, Appellate Daily was able to announce that the D.C. Circuit will post argument audio online, starting in September. The D.C. Circuit joins the U.S. Supreme Court and eight federal appellate courts that post audio online.

That leaves only four holdout circuits.

The Second, Sixth, and Eleventh Circuits offer audio CDs for purchase. The Tenth Circuit requires a motion to obtain audio; if granted, a copy is emailed. In a phone call this week, the Tenth Circuit clerk's office said those motions are routinely granted.

A few notes on the future:

*The Tenth Circuit seems close to posting online. It already offers free e-audio, just not on its website. It's like the moment when a child is deciding whether to approach or back away from an unfamiliar animal. The Tenth Circuit is curious, but wants to make sure this animal doesn't bite. I think the court will find it doesn't and make the change.

*Perhaps a year ago, I phoned the Second Circuit to inquire about the status of its audio policy. At the time, the clerk's office said that the idea of online access had been floated, but that the court was in the process of a renovation. Once that work was done, the clerk's office said, the court would be in a better position to take up the question. With the renovation now complete, will the Second Circuit increase access?

*The Eleventh Circuit has already made significant progress. Its previous policy was even worse than the D.C. Circuit's: no public access (even for parties and even for closed cases). In 2010, I wrote letters to several circuits, asking for online access to argument audio. Eleventh Circuit Chief Judge Joel Dubina kindly responded that the court would consider the idea, though it did not make immediate change. In 2012, the Eleventh Circuit began offering audio CDs for purchase. With the big leap to public audio already made, perhaps the court will be open to posting online, now just an incremental change? [fn1]

*Posting online would save court staff time in these four circuits. Staff in "CD" circuits would not have to produce CD copies and mail them. The Tenth Circuit could avoid reviewing motions and sending emails. All four circuits could field fewer calls and process fewer forms. Interested parties could just point and click online.

Stay tuned.
____
1) The Fourth Circuit also kindly responded to the 2010 letter and took action within months to put audio on the Internet. As with all courts, the Fourth Circuit undoubtedly had been thinking about changes, independent of outside voices. But it is heartening that the courts do consider citizen viewpoints.

D.C. Circuit Will Post Audio to the Internet

Chief Judge Merrick B. Garland kindly responded today to my letter of yesterday.

The D.C. Circuit has voted unanimously to begin posting audio to its website. The court actually voted last week to make the change, so I can't take any credit. But I do get to announce it!

Here are some of the details:

     *The new policy goes into effect on September 9, the start of the D.C. Circuit's 2013-2014 Term.

     *Audio will be available by 3:00pm on the same day as the oral argument, on the D.C. Circuit website.

     *An archive going back to the 2007-2008 Term will also be available.

This is a great development for public access to one of the nation's most important courts.

Letter to D.C. Circuit Re: Audio Access Policy

This letter was sent today to Chief Judge Merrick B. Garland of the U.S. Court of Appeals for the District of Columbia Circuit.

Dear Chief Judge Garland:

After reading the D.C. Circuit’s new media policy, which welcomes media coverage of cases to inform the public, I am writing to ask for your consideration of a related matter: access to argument audio.  My interest is as a lawyer, freelance journalist, and citizen.

The U.S. Supreme Court and eight federal appellate circuits make argument audio available in pending cases, via their websites, free of charge.  Five circuits, including the D.C. Circuit, do not.

Of those five circuits, the D.C. Circuit’s policy is the most restrictive, granting no public access until a case is closed.  The Second, Sixth, and Eleventh Circuits make audio available in pending cases, via CD purchase.  The Tenth Circuit requires a motion to obtain audio; if granted, a copy is emailed.  Per a call to the Tenth Circuit clerk’s office this morning, those motions are routinely granted.

The D.C. Circuit hears cases that affect citizens throughout the country; as a current example, the recess-appointments matter.  Members of the media who do not happen to be in D.C. are not able to listen to and report on D.C. Circuit arguments.  There are also interested members of the public and the legal community in other parts of the country who would like to listen to and inform themselves directly of these crucial, public proceedings, but are unable to do so.  The courtroom cannot always accommodate all interested persons in D.C., either.

This gap of public access is particularly notable since the Supreme Court, famously cautious on access, has been posting its audio to the web since 2010.  The nearby Federal and Fourth Circuits both post audio to the web.

It would be a meaningful step forward for public information, if the D.C. Circuit would review its current policy and join the Supreme Court and most of its sister circuits in offering free access to argument audio online.

Thank you for your consideration.

D.C. Circuit: Belated Observation about the Health Care Argument

Writing about the Eleventh Circuit and oral argument audio earlier today reminded me of an observation I had related to the D.C. Circuit's health care oral argument back in September.

The D.C. Circuit allows public access to audio only after a case is closed, meaning after all appeals, remands, etc., are completed. Only the Eleventh Circuit's to-be-changed policy, discussed earlier today, is more restrictive (no public access). The D.C. Circuit has shown interest in improving its electronic offerings, including possible audio access, but so far, the strict audio policy remains.

Unlike the Eleventh Circuit, the D.C. Circuit did not make an exception to allow public access to audio from its health care argument. The fact that only those in the courtroom could hear the argument may be one reason why it was "under-reported" or got "very little press attention," as prominent blogs wrote at the time.

11th Circuit: Some Progress on Argument Audio

Eight federal appellate circuits post oral argument audio to their websites, while five do not. See audio links here (available permanently under "Resources" on the Appellate Daily sidebar).

Of the holdout courts, the Eleventh Circuit has the most restrictive audio policy: no public access. According to its Local Rule 34-4(g): "Oral argument is recorded for exclusive use of the court." Earlier this year, though, the court made an exception for the health care argument, offering audio CDs for sale to the public.

Looks like the experiment went well.

The Eleventh Circuit judges have voted to make the CD option the norm, based on an article yesterday in the Atlanta Journal-Constitution and a follow-up call I made to the clerk's office about details. While confirming the judges' vote, the clerk's office emphasized that the restrictive local rule will need to be revised before the change becomes official.

Yes, "CD-for-a-fee" still seems somewhat "Model T" compared to the eight circuits' (and the Supreme Court's) free online audio, but it definitely beats no access. I'll keep my eye out for the official change and blog about it.

More Appellate Daily coverage about oral argument audio is here (importance of access) and here (Fourth Circuit's addition of free online audio).

D.C. Circuit: Increased Access to Oral Arguments?

As previously mentioned on this blog, the Supreme Court and seven federal appellate circuits post argument audio on the Internet, free of charge (links here; Appellate Daily sidebar). Six circuits, including the D.C. Circuit, do not.

Perhaps things are changing?

Today, the D.C. Circuit posted a listing on its website, requesting proposals from vendors "to redesign [the court's] entire web presence" (proposal deadline December 30, 2010).

Along with many other requirements, the chosen vendor needs to "support multiple file types for documents," as well as, wait for it, "audio, and video." The listing also states the D.C. Circuit's interest in "explor[ing] options to alert visitors using RSS feeds, [as well as] Twitter updates."

While this listing is preliminary and does not announce or commit to anything, it does show that the D.C. Circuit is looking to the future and putting itself in a position to offer more information to the public through available technologies.

Who knows? In the coming years, we might be listening to, or even watching, arguments from our computers about the detention of suspected terrorists, stem cell research, and climate change, just a few of the nationally and internationally significant issues the D.C. Circuit hears.

The Eleventh and Fourth Circuits have also indicated a willingness to consider increased access to oral arguments. Among other important issues, these two circuits almost certainly will be involved in the health care debate, deciding appeals from district court cases in Florida and Virginia.

Stay tuned.

Before Supreme Court TV, How About This?

As requests intensify for the Supreme Court to televise its arguments, see here, here, here, and a list here, some food for thought on access at the circuit court level.

"[M]ost determinative legal interpretations occur [not in the Supreme Court, but] instead in the federal courts of appeals, in the state supreme courts, and in state appellate courts."  Stephen G. Breyer, Reflections on the Role of Appellate Courts: A View from the Supreme Court, 8 J. App. Prac. & Process 91, 93 (2006).  Since the Supreme Court's docket is discretionary, less than 100 cases per Term in recent years, most federal courts of appeals decisions are final.

And yet, only seven of the thirteen federal appellate courts post oral argument audio to their websites, let alone video.  The Ninth Circuit leads the way, posting audio, as well as select video.  Permanent links are here (Appellate Daily's right sidebar: Resources, Oral Argument Audio).

Of the courts not posting audio to their websites, the Second, Fourth, Sixth, Tenth, Eleventh, and D.C. Circuits, perhaps the most surprising is the last.  The D.C. Circuit hears cases originating from all states, via its jurisdiction over administrative agency appeals, creating effects and interest nationwide.  Why, then, no nationwide web access to its arguments?  In addition, the Supreme Court and Federal Circuit, also in D.C., post audio to their websites (a new development this Term for the Court).

The other holdout circuits also issue crucial, final decisions.  For instance, the Second Circuit frequently decides securities cases with national implications.  And when the Supreme Court does grant certiorari in cases from these circuits, readily accessible argument audio would be a helpful tool for the public and media to understand the dispositions below.

But, beyond the internet, can't a person obtain audio from these circuits?  In many cases, yes, but not without paperwork, conditions, and/or cost, as shown, for example, in the D.C. and Tenth Circuits' procedures.  The Eleventh Circuit is the least open, restricting audio to internal court use only, per a telephone call to the Clerk's Office.

So, as efforts go forward to move the Supreme Court to TV, with some federal circuit courts (the source of "most determinative [federal] legal interpretations"), even huddling around the radio, so to speak, is not a given.

Seventh Circuit on iTunes

As an update to a previous post about appellate oral arguments available online, linked on Appellate Daily's sidebar, Seventh Circuit arguments are also available at no charge on iTunes (search "Seventh Circuit" from the iTunes Store).