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The Case for Video Access to Virtual Court Hearings

Concept photo of a businessman using his tablet to access a virtual court hearing and observe the proceedings.

Public access to court proceedings is considered a foundational aspect of the American legal system. For decades, attending a trial was as simple as showing up to the courthouse on the day of the hearing. However, due to the COVID-19 pandemic, individuals who wish to exercise their right to observe have found themselves without access to virtual hearings.

In this article, we’re going to review a recent Virginia court petition to allow video access to virtual proceedings and we’ll discuss how this would impact the public’s right of free access to criminal and civil proceedings.

Let’s get started!

Understanding the Petition

In June of 2021, journalist Aaron Cantú filed a petition in the Eastern District of Virginia which asked the court to amend a general order issued by Chief U.S. District Judge Mark Davis during the previous year. The order in question stated the importance of facilitating continued public access to civil and criminal proceedings during the COVID-19 pandemic; however, Judge David also found that Judicial Conference policy and the Federal Rules of Criminal Procedure meant the public could only access audio, not video, of those proceedings.

Differentiating Between Audio & Video Access

While all parties agreed that providing audio access was appropriate, counsel for Cantú argued that it wasn’t going far enough, writing:

“There is no doubt that the pandemic provides a compelling reason for remote courtrooms. It does not, however, provide a reason to exclude the public from watching what happens in those remote courtrooms, a practice that therefore violates the First Amendment.”

The petitioner further argued that limiting observers purely to audio was in clear violation of the public’s historic right of access to the entirety of court proceedings. Without the ability to observe non-verbal communication and examine the exhibits, Davis’s order prevented the press and public from forming a clear picture of “how video courtrooms handle some of the most pressing issues of our day, including the procedural fairness of pandemic criminal proceedings and the influence of race and other factors in the criminal legal system.”

The First Amendment & Broadcast Limitations

As referenced in the Cantú petition, limiting access to virtual trials could be considered a violation of the First Amendment. In fact, in 1980, the Supreme Court explicitly recognized that the public had a First Amendment right of public access to criminal legal proceedings. However, this constitutional consideration is seemingly at odds with a federal rule of civil procedure which prevents the broadcasting of judicial proceedings from the courtroom. To resolve the issue of virtual access, courts will need to determine whether allowing people to attend a video conference would constitute a broadcast.

Final Thoughts

Thanks for reading! We hope these tips have given you some insight into the evolving conversation around public access to virtual trials. If you enjoyed this article, let us know on social media!

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