October 8, 2002
"The Supreme Court's Unfree Speech"--A Commentary by Prof. Akhil Reed Amar and Steven G. Calabresi '83
(This essay was originally published in the October 5, 2002, edition of the New York Times.)
The Supreme Court's Unfree Speech
By Akhil Reed Amar, Southmayd Professor of Law at YLS, and Steven G. Calabresi '83, professor of law at Northwestern University School of Law
If recent history is any guide, the Supreme Court's new term, which begins Monday, promises to be another good one for freedom of expression -- except, that is, within the courtroom itself. The justices support a broad view of free speech in their rulings, but they practice something very different in their own court.
In the last eight terms, the court has invoked free-speech principles to invalidate actions of other branches of government in no fewer than 25 cases. Yet it bars television cameras and radio microphones from its own public oral arguments. Transcripts of the dialogue between lawyers and the justices are not posted on the court's Web site until weeks later. Spectators in the gallery may not even take notes about what is being said in open court.
These court policies do not literally abridge free speech. But they inhibit the kind of robust and timely public discourse that, according to the court's own doctrine, lies at the very core of the First Amendment. Oral arguments take place in open court. The lawyers may take notes, as may those with official press credentials. Members of the public deserve the same right.
These restrictive rules are at odds with the practices of other courts. Every federal appeals court and state supreme court allows note-taking by the public. The court's approach also contrasts with the openness practiced by other branches of government. Americans can watch Congress live on C-Span and read verbatim transcripts of Congressional debate on Congress's Web site, updated daily. Presidential press conferences are customarily carried live on C-Span.
The Supreme Court, like other courts, has not allowed TV cameras in the court. Opponents of televised proceedings typically argue that lawyers are likely to play to the camera; that commercial news programs might broadcast short clips of trials out of context; and that witnesses would lose privacy as their faces become more publicly recognizable.
But these are arguments against televising ordinary civil and criminal trials. Appellate cases before the Supreme Court are different. There are no witnesses, and lawyers before the court face strict limits on their time and arguments. Granted, it can be misleading to broadcast excerpts out of context; justices sometimes ask provocative questions or make arguments merely to sharpen debate. But this is precisely why Americans should be allowed to see the entire transcript and watch the argument uncut and free of commercials. Citizens could then judge for themselves what a questioner may have meant. Even if the court continues to bar television cameras, the justices have no excuse for preventing public radio stations from broadcasting oral arguments live.
The First Amendment protects free expression so that the people can monitor and debate what is done by government on their behalf. The justices are public servants. Americans deserve the right to see and hear how they conduct the public's business.
Akhil Reed Amar is a law professor at Yale. Steven G. Calabresi is a law professor at Northwestern.