Observing the Supreme Court in Action

The United States Supreme Court refused to grant C-SPAN prompt access to the audiotape of the arguments before it last week in Fox TV v. the Federal Communications Commission. The case raises interesting questions about the agency’s administration of its indecency laws — what language may not be broadcast. As Supreme Court reporter for The New York Times Adam Liptak noted, the high court is not a lexicographer, but it has been called upon to mediate the use of four-letter words by media. Given the level and ubiquity of foul language on radio and television, one wonders what standard is left to administer by the FCC. Do four-letter worlds necessarily have sexual or excretory meaning, exclusively? When is swearing “vulgar” or “indecent”? Indeed, should government be in the censorship business?

The nature of these questions aside — and they are interesting — my quarrel is with the Supreme Court’s notion of its right to control the transparency and openness of their open proceedings. How dare the court, or any government agency, censor the public record of its open proceedings?

What the justices do in their private sanctum should be private. What they do in open court should not. Yet, historically, the high court has allowed a limited number of print reporters to observe its public proceedings — arguments of the important issues of the times — the better to report about them to the general public. But historically, the court has refused to permit contemporaneous records or televising of the parties’ arguments. C-SPAN has offered to broadcast, gavel to gavel, all Supreme Court oral arguments — the sexy ones and the dull ones, unedited and uninterrupted. The chief justice refused. Then-Chief Justice William Rehnquist even sued to prevent a political science professor from publishing transcripts and cassettes of court arguments. The Archives now keep recordings of arguments, but access is limited to visitors. The refusal is based on idiosyncratic, undemocratic, self-righteous self-mystification by the court, which practice has no place in modern times. Sophisticated technology permits such coverage in a totally unobtrusive manner. Yet the justices are adamant about protecting their “public privacy.”

The educative nature of this kind of full coverage of the public workings of one branch of the government is indisputable. The experiences to date with televised coverage in many states have been exemplary. As documented in my book, TV or Not TV: Television, Justice, and the Courts, all Americans would be well-served if they knew more about the influential and often misunderstood judiciary branch of government.

Visit www.RonaldGoldfarb.com.