TOO MUCH ORDER IN THE COURT: How The Justices Betray Their Own Free Speech Principles

The Supreme Court bars television cameras and radio microphones from its public oral arguments. Transcripts of the dialogue between attorneys and the Justices are not posted on the Court's website until weeks have passed and the public's interest has waned. Members of the public may not even take notes in the gallery about what is being said in open court.

Meanwhile, in its opinions, the Court trumpets the importance of free speech and press access.

On the topic of free expression, why doesn't the Supreme Court practice what it preaches? That was the question Steve Calabresi and I recently posed in an Op Ed in The New York Times marking the opening of the Supreme Court's Term earlier this month. In this column, I will expand on the Court's reluctance to welcome the First Amendment into its own courtroom.

A Court That Grew to Love the First Amendment, After a Very Rocky Start

The First Amendment is the darling of the current Court. Though sharply divided on many other issues, Justices across the spectrum agree that free expression rights should be construed broadly. In the last eight years alone, the Court has invoked the First Amendment to invalidate state or federal laws in twenty-five cases.

But the Court's love affair with the First Amendment is a relatively modern development. Less than a decade after the adoption of the Bill of Rights, circuit-riding Justices enthusiastically enforced a 1798 sedition law that made it federal offense to criticize the President.

And early in the twentieth century, the Court upheld punishment of a newspaper publisher for editorializing against state judges. During World War I, the Justices sent Eugene Debs, a leading presidential politician, to prison for peacefully criticizing the government.

Indeed, before 1925, the Court had never-not once!-used free expression principles to invalidate government censorship, even as it routinely construed property rights broadly to invalidate economic regulation.

Free Speech, But Not In Our Backyard

Today's Justices have repudiated this repressive legacy, but the residue of the early Court's indifference to free expression remains visible in one corner of current Court practice, dealing with the Court building itself - as the rules and practices noted above indicate.

Perhaps these Court rules and practices do not literally abridge freedom of speech or of the press-but if not, they sure come close. After all, the apparent purpose of these rules is precisely to limit free expression and free thought.

Consider the rule against note-taking. A person in the courtroom can clean his wallet or twiddle his thumbs or tug his earlobe, or engage in countless other mindless activities, but is prohibited from engaging in the cognitive and expressive activity of writing down what he hears the Justices saying, along with his own comments or questions or criticisms.

Consider also the rule against the media's cameras. The Court's rules do not bar security cameras in the courtroom and such cameras may well be in the room for all we know. What the Justices are banning is thus not cameras per se, but television cameras, cameras that might broadcast information about the Court to the American public.

The "harms" that these rules seek to prevent are harms that pivot on the acts of thought and expression themselves. And these are the very sorts of "harms" that government typically may not seek to prevent under the Supreme Court's standard First Amendment caselaw.

To put the point another way: no Supreme Court rule bars carrying a pencil into the courtroom, or wearing a chopstick in one's hairdo. The ban is not based on security concerns, but is rather directly aimed at expressive activity per se: using one's pencil to take notes.

More generally, one of the core purposes of the First Amendment is to protect a robust and timely public discourse about government officials and government decisionmaking-including, of course, judicial officials and judicial decisionmaking. But that discourse is precisely what is dampened by the Court's own rules about its own building.

This is especially so because the day of oral argument is one of the two days-the other being the day a final Supreme Court decision is announced-that the American public and the American media are most likely to focus on a given legal issue. If discourse that day is dampened, the public has lost a unique and irreplaceable occasion for democratic discussion and deliberation.

When it comes to other government arenas-post offices, airports, school quadrangles, and so on-the Court has typically insisted that such forums allow as much speech as is functionally compatible with the basic purpose of the arena. Yet in its own building, the Court represses expressive activity without any strong showing of incompatibility or disruption. There is a word for this, and it is spelled "hypocrisy."

The court's transcript policies are also "unfree" in another sense. In the days after oral argument, the transcripts are anything but free. Rather, the Court gives a temporary monopoly to a private company, which in turn charges high fees for transcripts. The Court would never (nowadays, at least) give a private company a monopoly over its written opinions. Why should its oral arguments be treated any differently?

After all, there is nothing secret or confidential about oral argument. Unlike judicial conferences where Justices deliberate privately among themselves, oral arguments take place in open court. They are public events conducted by public servants with public money. The public deserves full access.

Official Media Representatives and Area Residents Currently Enjoy Special Access

The lawyers inside the bar of the Court may take notes, as may those with official press credentials. Ordinary members of the public deserve the same right.

Similarly, Americans outside the beltway deserve electronic access comparable to the ability of Washington insiders to attend arguments in person. If television cameras are not acceptable, at a minimum the arguments should be carried live on public radio-as happened in December 2000 for Bush v. Gore-and transcripts should be freely available immediately.

Without these rules of equal access, only those with official press passes or those who live near the Court could write a timely Op Ed about the oral argument that reliably quoted what the Justices actually said in open Court. Why shouldn't a law professor in New Haven have the same access as a journalist in Washington?

The Supreme Court of Canada likewise allows notetaking. The Canadian Supreme Court also allows its oral arguments to be televised on CPAC, the Canadian counterpart of CSPAN. Similarly, many appellate courts and state supreme courts allow electronic broadcasting in some form.

If the Justices Themselves Won't Change, Can Anyone Else Pressure Them To Do So?

If the nine Justices don't clean up their act and open up the Court, is there anything anyone can do?

For starters, Congress should legislate rules of open access as part of the regular appropriations bills for the Court building, or as part of Congress's general power to structure the Court and its procedures.

Also, Senators in all future confirmation hearings should publicly ask each Supreme Court nominee to state his or her view of the access issue, and should hesitate to confirm any new Justice who refuses to pledge to open up the Court. (Such a pledge would of course be quite different than a pledge to rule a certain way on a future case before the Court - which would be patently improper. The permissible pledge would concern Court administration, not Court doctrine.)

If all else fails, perhaps members of the press and the public should consider suing Court officials for carrying out Court policies that run afoul of general First Amendment doctrine and basic First Amendment principles.

After all, when other branches of government are involved, the modern Court has read the First Amendment very broadly indeed-perhaps too broadly. Founders like James Madison aimed to shield political expression (especially anti-government speech), religious expression, and literature. In contrast, modern cases have protected commercial advertising (of liquor, cigarettes, and casinos), nude dancing, and the Playboy channel.

In reading the First Amendment so broadly, the Justices risk losing sight of the Amendment's core concern-protecting a system of free expression whereby the people can monitor and criticize our public servants.

Those public servants include the Justices themselves, and the spirit of the First Amendment argues for the broadest rights of democratic access to the Court consistent with safety and decorum. Measured by that standard-the standard the Court preaches elsewhere-the Court's own practices fall embarrassingly short.