Can justice be livestreamed?
Probably not, but as always, it depends.
Earlier this week fellow Substacker Ryan Broderick posted about semi-viral Michigan judge Jeffrey Middleton’s decision to stop livestreaming his courtroom Zoom feed on YouTube (yes I get a lot of my news from Garbage Day). The judge has already reversed that decision, but not before publicly grappling with whether it is appropriate to make a local Michigan courtroom available to anyone with a link.
Middleton’s courtroom has become internet fodder more than once over the course of the pandemic. He’s the judge who told off the guy for signing in under the screen name “Buttfucker3000,” and also presided over a hearing in which the prosecutor noticed and called to the attention of the court that the defendant in a domestic violence case was in the same house as the complaining witness, during the hearing, despite a restraining order.
As someone who appears in virtual court on a daily basis, neither of these incidents are particularly surprising to me. I’ve forgotten to change my Zoom name between a silly friend Zoom and a professional meeting before, although luckily I do not go by Buttfucker3000 even with my friends. And that someone accused of domestic violence would end up visiting/staying with/living with the person who has a restraining order against them is totally commonplace, although as a defense attorney you really hope that your client is smart enough not to be in the same room as the witness during a video hearing.
I think that clips like this have gone viral in the last year because they succinctly and dramatically capture the pandemic-forced blur between our public and private lives. It’s so hard to distinguish between your public self and your private self when you never leave your living room.
By design, a courtroom is one of the most formal places in America. It’s a place where the government wields its power over individuals. A judge, acting with all the authority of the State, demands deference from the individuals brought before them, as they are all that stands between the person and the full violence of the State being brought down on them (that’s jail, and it’s in the back, and if you’re in a courtroom you usually can’t see it but you know it’s there). There’s a cultural conception that one should be on their best behavior in court, but at the same time we all know how easy it is on Zoom to lose the distinction between public and private, formal and informal.
The physical space of a courthouse: the architecture, the security, the court officers, the way in which the room is set up such that judges are literally sitting above everyone else, looking down at them from the bench in their robes, reminds people of that required deference and formality long before their turn in front of the judge. Video court has very few of the physical reminders of the required formality, and therefore it’s pretty easy to wake up and go into your living room and remember, oh, yeah, I have video court this morning, and log on in your pajamas using the name “Buttfucker3000” that you came up with drunk with your friends a few nights ago without thinking too hard about it. The judge, who has no reason to expect any less deference to the formality and power of the court (many of them even during the pandemic appear from their courtrooms or offices) is appalled. For everyone else watching, hilarity ensues.
Regardless of why some local court proceedings end up going viral, the fact is that they do, and that’s at the heart of the judge’s discussion about whether it is appropriate to livestream proceedings. I think it’s a really hard question. I think that people accused of crimes, especially when they have not been convicted, have a right to a certain amount of privacy—especially given the swiftness with which we love to brand, discard, and discriminate against “criminals” in our society. People accused of crimes, whether they did anything or not, don’t have a choice when it comes to appearing in court, and if the judge makes the decision that the proceeding is going to be livestreamed, they may also find themselves humiliated by a viral clip.
On the other side of things, a big part of the reason that courts in America are open to the public is for transparency reasons. Theoretically, citizens are supposed to be able to watch for abuses of power. In the last few years in New York City, the volunteer organization Court Watch NYC has been invaluable in bringing attention to abuses of power in the court system just by having people go to court and sit in the audience and tweet what they see.
Similarly, it really makes a difference for an accused person—both for the person and for the judge making decisions about that person’s future—to see family members or friends come into the courtroom to support that person.
In New York City, our video courts are not open to the public, cutting out both volunteer court oversight AND familial support from the court proceedings. Both of those groups of people are essential to the functioning of any sort of system that we might want to refer to as concerning “justice.”
The question for me is how to find a happy medium, and I don’t think that the internet really provides any solutions. I don’t think the transparency of physical courts is perfect, but the physical space of the courthouse does curtail a lot of the privacy problems of livestreamed court in most cases (big media cases excepted). The public is allowed in the courthouse I work in in Queens, but you actually have to travel there, and stand in line for security, and know which room to go to, in order to see a proceeding take place there. You need a real motivation. For the most part, courtrooms where I work are filled with people who have court, sometimes a family member or friend, lawyers, law students, and the very occasional member of the public who has come to watch. It’s not really a place for voyeurism because it’s just too much of a hassle.
I don’t really have a good answer for this, other than to say that there are real problems with closing court to the public, but I don’t really want any of my clients’ faces posted on a Reddit analysis of a court proceeding, either. And there are issues with every option in between.
Here are some other things I’ve been reading about this week:
The 9th Circuit, in the classic law school “does ‘and’ mean ‘and’ or does it mean ‘or’” analysis, basically got rid of the federal sentencing guidelines for federal drug offenders. Well, technically Congress did. We’ll see what the great textualists at SCOTUS have to say later.
Rachel Barkow called out the Biden Admin’s chickenshit clemency plan.
“Friends with benefits” now means something when it comes to Fourth Amendment standing to challenge a search in New Jersey. What that means, legally, is that should you happen to be in a house that is searched by the cops in the state of New Jersey, you should very much claim to be horny for a person who lives there.
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