Federal Court to Allow Limited Audio Access as COVID Rules End

WASHINGTON — Federal courts will begin dialing back remote audio access later this month when an emergency policy implemented during the pandemic expires, but judges will still have the discretion to allow live audio access to certain non-trial proceedings, the U.S. Judicial Conference said this week.

The 26-member conference is the policymaking body for the federal court system, and it typically meets twice a year to consider administrative and policy issues affecting the court system.

On Tuesday the body announced it will continue to allow public access to civil and bankruptcy proceedings, but with restrictions that only allow remote listening to occur during non-trial proceedings when no witnesses are testifying.

The new policy, which will go into effect on Sept. 22, is a disappointment for lawmakers and others who had been calling for broader regular remote access to court proceedings.

However, it does go far beyond what federal courts had typically allowed for civil and bankruptcy cases before COVID-19 forced the courts to go virtual in a bid to reduce the spread of the virus.

Remote public access to criminal proceedings was cut off on May 10 after the White House allowed COVID-era emergency declarations authorizing such broadcasts to end. 

The move was bemoaned by journalists and members of the general public who could, among other things, dial in to listen to how challenges to the 2020 elections — not to mention the criminal cases against alleged Jan. 6 conspirators — played out in real time in federal courtrooms.

But the Judicial Conference granted a 12-day grace period for access to other proceedings, as it considered what it wanted to do about access to civil and bankruptcy cases.

That in itself was considered a big development, as prior to COVID, the judiciary’s long-standing policy was to prohibit remote public access to all federal court proceedings.

“The consensus among the conference was to return to what had been our status quo with an improvement on it or at least a modification of it,” said U.S. Circuit Judge Lavenski Smith, chair of the Judicial Conference’s executive committee, during a press briefing on Tuesday.

The new policy was adopted on the recommendation of the panel’s Committee on Court Administration and Case Management, which is now exploring ways to further expand remote  public access to civil and bankruptcy proceedings and examining the potential adverse impacts of allowing that access to proceedings involving witness testimony.

The new policy was also endorsed by the Committee on the Administration of the Bankruptcy System and the Committee on the Administration of the Magistrate Judges System. 

None of the changes that have occurred since May affect a judge’s ability to allow parties and counsel to appear remotely by teleconference and videoconference.

In an email to The Well News, Gabe Roth, executive director of Fix the Court, a nonpartisan group that advocates for greater transparency by the federal courts, said he was disappointed in the U.S. Judicial Conference’s moves this week.

“Advocates realize we’re probably not going to get live video of most federal trials in the near future, but limiting audio access to civil proceedings without witnesses is a step backwards, especially since it’s not hard to turn off recording devices or disguise a voice if, say, a witness is a minor,” Roth said.

He also noted that the conference did not address at all whether any of former President Donald Trump’s trials will be livestreamed.

“Limiting real-time access only to the select few allowed in the courtroom would be a travesty,” he said.

Caitlin Vogus, deputy director of advocacy for the Freedom of the Press Foundation, a nonprofit organization that promotes free speech and freedom of the press, said the Judicial Conference’s decision “is one step forward, two steps back.”

“It improves on the pre-pandemic rules forbidding all remote audio access, but it doesn’t go far enough,” Vogus said in an email to The Well News. “For the first time during the pandemic, Americans could listen remotely to federal civil trials. The success of that experience shows there’s no reason not to continue to allow the public to listen remotely to full civil trials, including witness testimony.”

On a related note, on Wednesday, the Reporters Committee for Freedom of the Press and 62 media organizations sent a letter to Chief Justice John Roberts, urging him to make permanent the U.S. Supreme Court’s COVID-era practice of providing live audio of oral arguments before the court.

“This practice improves the quality of journalism about the court and greatly enhances the public’s understanding of its operations,” the media coalition stated.

The Supreme Court has provided a live audio feed of its arguments for every term since the onset of the COVID-19 pandemic in 2020. With its new term set to begin next month, the court has yet to announce whether it will continue to provide that access.

The Reporters Committee notes that while the Supreme Court sets aside only 50 seats for members of the public to attend oral arguments, 100,000 tuned in to listen to the first two weeks of Supreme Court arguments in May 2020 when the live broadcasts began. 

In addition it notes that oral arguments from the 2021-2022 term were streamed at least 3.8 million times.

“Live audio of Supreme Court proceedings unequivocally benefits the public and the press,” the coalition’s letter concludes. “Short of providing live video of proceedings, permanent live audio of the Supreme Court’s proceedings is the best way to keep the public informed and engaged with respect to its operations.”

Roth said he’s hoping the Reporters Committee and other advocacy groups weigh in with the Judicial Conference on livestreaming the Trump trials as well.

He also said there’s a chance Congress may soon intervene in the matter.

In March, Sen. Chuck Grassley, R-Iowa, introduced S 833, also known as the Sunshine in the Courtroom Act of 2023, which would establish a framework to allow federal court proceedings — in district courts, in circuit courts and at the Supreme Court — to be photographed, recorded, broadcast or televised. 

Specifically, it authorizes the presiding judge to permit media coverage of court proceedings, subject to requirements and limitations.

Since its introduction, the bill has been read twice and referred to the Senate Judiciary Committee.

“I’m hopeful the Senate Judiciary Committee will move on it,” Roth said.

The 26-member Judicial Conference is the policymaking body for the federal court system. 

By statute, the chief justice of the United States serves as its presiding officer and its members are the chief judges of the 13 courts of appeals, a district judge from each of the 12 geographic circuits, and the chief judge of the Court of International Trade.

Dan can be reached at [email protected] and @DanMcCue