U.S. Supreme Court Justice Stephen Breyer fielded a bevy of questions this fall during a whirlwind media tour promoting his new book, “The Court and the World.”
Among the multitude of responses given by Breyer, he appeared to soften his once-fervent stance on cameras in the U.S. Supreme Court, at least forecasting that the court would one day allow electronic access.
“My prediction: We’ll have cameras in the oral proceedings eventually.” Breyer said Sept. 28 in an interview on MSNBC’s Morning Joe.
Less than two weeks after Breyer’s comment, members of Congress commenced a plan to make Breyer’s prophecy occur sooner than expected by introducing the Eyes on the Court Act, a bipartisan bill requiring cameras to be permitted in the U.S. Supreme Court and all federal appellate courts. On the morning the bill was officially introduced, lawmakers and court transparency proponents rallied on the steps of the U.S. Supreme Court in support of the bill.
Rep. Jerrold Nadler (D-NY), along with co-sponsors Rep. Gerald E. Connolly (D-VA), Rep. Mike Quigley (D-IL), and Rep. Ted Poe (R-TX), are spearheading the bill to give the public access to Courts traditionally shielded from mass viewing.
“The Supreme Court is not some mystical, druidic priesthood that periodically deigns to review constitutional issues and hand down their wisdom from on high,” Rep. Connolly said at the rally. “It is a human institution, a co-equal branch of government, and it is long overdue that the American public has better access to their highest court.”
The Eyes on the Court Act (H.R. 3723), which has been referred to the House Committee on the Judiciary, would allow the public and press to hold the judicial branch accountable and increase public discourse of an insulated branch of government.
Currently, all recording devices are forbidden inside the U.S. Supreme Court. However, the court releases audio recordings of oral arguments at the end of each argument week, and has released audio of arguments on the same day in exceptional circumstances.
Under the Eyes on the Court Act, live video recording of proceedings would be permitted unless the court determines the recording would violate the due process rights of a party.
The Eyes on the Court Act is the most recent attempt by Congress to allow access to court proceedings. Past efforts to pass laws allowing cameras in the court have failed to garner enough attention to advance past the committee stages.
Although the U.S. Supreme Court has always barred cameras or recording devices, many federal courts and state courts currently allow broadcasting of proceedings.
“I know cameras can be placed in a courtroom without disruption because I was one of the first judges in Texas to allow cameras to film criminal cases,” Rep. Poe said at the rally. “The American people deserve an all-access pass to watch the High Court rule on the law of the land.”
All 50 state Supreme Courts allow some sort of camera accessibility. The U.S. Court of Appeals for the Second Circuit grants camera coverage in some proceedings, while the Ninth Circuit live streams its oral arguments online.
A pilot program that brought cameras to 14 U.S. District Courts beginning in 2011 concluded this past July. During the program, the courts published the proceedings online for the public to view. The Judicial Conference is expected to consider recommendations from the pilot program at its March 2016 session.
Advocates of the Eyes on the Court Act believe Congress has the authority to mandate cameras in the Supreme Court just as the legislative branch regulates other aspects of the judiciary. For example, Congress sets the number of Supreme Court justices, determines the start and end dates of the court’s term, and approves the Federal Rules of Civil Procedure.
Even though some current Supreme Court Justices appeared open to allowing cameras in the Supreme Court at their confirmation hearings, all nine Justices now seem unified in their opposition to cameras, citing pandering to the cameras by attorneys and Justices, apprehension that cameras will ruin the dignified aura of the Court, and fear that the public will misunderstand the judicial process.
However, Gabe Roth, the executive director of Fix the Court, believes showing the public the court in action could highlight positive aspects of the court.
“Instead of nine individuals, often split five to four along partisan lines, unable to agree on marriage or health care or voting rights, the public would see — the vast majority of time — an institution that takes its job seriously and carefully and creatively weighs the issues before it,” Roth said at the rally.
Momentum for court access has grown in recent years. A 2015 C-SPAN poll revealed 76 percent of respondents favor camera access in the Supreme Court — a 15-percent spike from 2009.
“The nine justices are fond of saying they don’t pay attention to public opinion, but there’s no question that each of them is cognizant of how popular the cameras issue is,” Roth said at the rally.
Federal anti-SLAPP bill introduced
All states are not created equal when it comes to protecting members of the news media from frivolous lawsuits.
Because of inconsistent state laws and the absence of a unifying federal statute, the ability to defend against lawsuits brought to suppress speech can vary across the country.
For example, in 2013, billionaire Frank VanderSloot sued Mother Jones for defamation in Idaho after the magazine published an article critical of him and his company Melaleuca. Mother Jones spent years and more than $2 million fighting the suit before Judge Darla Williamson granted Mother Jones’ motion for summary judgment this past October.
Because VanderSloot filed his lawsuit in Idaho, one of 22 states without an anti-SLAPP law, the suit likely survived longer than it would have in states with anti-SLAPP protections, thus causing Mother Jones to spend unnecessary resources contesting the suit.
If VanderSloot’s suit would have been brought in California, for example, Mother Jones could have taken advantage of the state’s anti-SLAPP law and filed a motion to strike to dismiss the claim within 30 days, avoiding the burden and costs of defending the suit. Additionally, if there had been a federal anti-SLAPP law, Mother Jones could have probably dispensed with it in a more expedited fashion.
A bipartisan bill introduced in May 2015 by Rep. Blake Farenthold — the SPEAK FREE Act of 2015 — seeks to solve this problem by giving defendants an avenue to quickly fight lawsuits attempting to silence their speech in federal court and across all states.
The SPEAK FREE Act of 2015 (H.R. 2304) allows defendants to quickly file a motion to dismiss meritless lawsuits brought to suppress speakers or cause immense legal fees, known as SLAPPs or strategic lawsuits against public participation.
The bill expands protections against SLAPPs in two ways: First, it gives defendants in the 22 states without anti-SLAPP laws the ability to remove state court SLAPP suits to federal court. Once in federal court, the defendant can file a motion to dismiss the suit within 30 days. Second, the bill permits defendants sued under federal claims in federal courts to quickly combat SLAPP suits by filing a motion to dismiss within 45 days of service of the claim.
Once a defendant files a motion to dismiss, the court will determine if the defendant was exercising his free speech rights. If so, the court will dismiss the lawsuit unless the plaintiff can show the claims are likely to succeed.
Evan Mascagni, policy director of the Public Participation Project, an organization leading federal anti-SLAPP efforts, explained that the bill’s objective is to advance First Amendment rights of those discussing public issues.
“The SPEAK FREE Act of 2015 would allow Americans to speak freely and give their opinion without fear of retaliation,” Mascagni said. “It’s important for individuals to be able to give their opinions and do so in a way that they won’t be retaliated against with a meritless lawsuit.”
Support for the SPEAK FREE Act of 2015 has grown in recent months. A coalition of 34 organizations sent a letter to members of the House of Representatives in June encouraging them to review the bill. Additionally, nearly 60 legal scholars penned a letter to members of Congress in September asking for swift advancement of the bill to protect the speech of all Americans in all courts.
Congress has considered various versions of federal anti-SLAPP legislation in the past, including the Citizen Participation Act of 2009, but none gained enough support to become law.
Hope for this term’s version of the law stems from its bipartisan and broad support — the bill currently has 28 co-sponsors from both sides of the aisle. Also, the SPEAK FREE Act of 2015, modeled off the robust state anti-SLAPP laws in Texas and California, provides broader protections than previous federal anti-SLAPP bills.
Laura Prather, a partner at Haynes and Boone, LLP, and author of Texas’ anti-SLAPP statute, said the challenge facing the SPEAK FREE Act of 2015 is getting the message out to constituents so they can push their legislators to support the bill.
“Most people probably don’t know what a SLAPP is,” Prather said. “The first step is to educate the public about what a SLAPP is and for them to realize the evil that it represents and the challenges it presents to our legal system.”
Although the SPEAK FREE Act of 2015 would give journalists expansive protections nationwide, there are concerns the removal portion of the bill may clog up the federal judiciary. However, statistics from the California Judicial Council show that the number of anti-SLAPP cases is minimal in the grand scheme of civil filings. According to the California Judicial Counsel, there were 2,881 anti-SLAPP motions between 2005 and 2010, but that only constituted approximately 0.046 percent of total civil filings in California trial courts.
“This information is important because it shows that the number of cases involving anti-SLAPP motions is very small in comparison to the overall number of civil cases, and yet, the number is significant enough to show that SLAPP suits are a problem,” Mascagni said.
The SPEAK FREE Act of 2015 comes at a time when courts have begun narrowing the application of state anti-SLAPP laws. In May, the Washington State Supreme Court struck down its anti-SLAPP law, finding that the law denied litigants the right to a trial by jury under the Washington Constitution.
In Abbas v. Foreign Policy, the U.S. Court of Appeals for the District of Columbia held in April that the D.C. anti-SLAPP law was preempted and did not apply in federal court.