Last Friday saw a dubious first: video of argument before the United States Supreme Court, now available on youtube. The matter was McCutcheon v Federal Electoral Commission, argued last October, on the vexed issue of campaign finance laws. There are several reasons this ‘first’ is dubious. For starters, there are two past clandestine photos of the court at work, albeit taken over eighty years ago. As well,the youtube video barely shows anything, as it was also taken surreptitiously and focused mainly on a protest by a group opposed to the Court’s controversial Citizens United ruling striking down limits on corporate donations. (Australia’s High Court heard and ruled on a similar case late last year.) While the video has drawn modest attention to issue of campaign financing, its main impact has been to prompt some interesting discussion of the legality of videos and protests inside a national court.
Unlike Australia’s High Court – which started hosting videos of its hearings last year and has previously permitted filming of arguments before it (now on youtube) – America’s top court has never permitted any cameras in the courtroom during argument. (See here and here for arguments and proposed laws to reverse the Court’s stance.) Despite this, there is some debate about whether or not it is illegal for someone to secretly film the court anyway. In Australia, such behaviour is now clearly an offence under s 39 of the new Court Security Act 2013 (Cth):
(1) A person in a building that is wholly court premises, or on court premises that are merely part of a building, must not make a recording or transmission of sound, or of one or more still or moving images, associated with:
(a) proceedings in a court; or
(b) an event associated with proceedings or proposed proceedings in a court.
Penalty: 30 penalty units.
The new offence commenced at the start of this year.
The protester shown in the new video, Noah Newkirk, has reportedly now been charged with the following offence:
It is unlawful to discharge a firearm, firework or explosive, set fire to a combustible, make a harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds.
(Presumably, the ban on a courtroom ‘oration’ doesn’t apply to judges or lawyers!) There do not seem to be any similarly specific offences applicable to behaviour in the High Court of Australia, but such a matter could be dealt with under general offences barring offensive conduct in public places or (more likely) contempt of court. Alternatively, protesters are simply told to leave, as occurred when (as Bob Brown recounts here) ‘a man in yellow saffron robes got up and ran across the Court yelling ‘No Dams!’’ as the High Court issued its landmark Tasmanian Dams decision.
According to CNN, protests inside the US Supreme Court are a rarity:
Court officials say the last time it happened was eight years ago, during an oral argument over a federal law restricting a certain type of later-term abortion procedure. A similar interruption occurred about two decades ago.
The latter may be a reference to an outburst by Hustler owner Larry Flynt during argument in a case about forum choice in defamation actions. Flynt had wanted to represent himself but the Court appointed an amicus in his place, apparently prompting Flynt to yell some characteristic obscenities from the gallery. The Chief Justice ordered Flynt arrested for contempt, but the charges apparently never proceeded. The Court ruled against Hustler in the defamation matter, but famously ruled in the magnate’s favour in a later dispute with Jerry Falwell.