The Lewis F. Powell Jr. U.S. Court of Appeals for the Fourth Circuit Courthouse and Annex in Richmond, Virginia. The Lewis F. Powell Jr. U.S. Court of Appeals for the Fourth Circuit Courthouse and Annex in Richmond, Virginia.

 

The U.S. Court of Appeals for the Fourth Circuit will soon decide whether to livestream oral arguments for the first time next month.

The court will hear oral arguments May 8 in a lawsuit challenging President Donald Trump’s second travel ban executive order. Mark Zanchelli, chief deputy clerk at the Fourth Circuit, said that court has not decided whether to livestream the May arguments, but should have a decision sometime next week.

“We have not livestreamed before, but that’s not to say that won’t happen in this case,” Zanchelli said.

In February, the U.S. Court of Appeals for the Ninth Circuit made headlines when more than 137,000 people logged onto the court’s website to hear live audio of oral arguments in a case involving Trump’s first travel ban order. Even more tuned in via CNN, which broadcast the arguments through a pool feed from the court.

Though the Fourth Circuit has never aired arguments live, it does post audio files of oral arguments by the next business day for the general public to hear. In some high-profile cases, audio can be posted quicker. Zanchelli said he is not privy to the factors under consideration in the livestream discussions, but said it’s likely a mix of how to technically do it and whether the court should.

After the Ninth Circuit’s broadcast gained a relatively large audience and provoked gleeful legal fodder from lawyers on Twitter, some attorneys are hoping the Fourth Circuit will do the same.

“Part of the fun about the Ninth Circuit argument was … getting home from work and turning on cable news and having them livestream that argument,” said Kevin Elliker, an associate at Hunton & Williams in Richmond, Virginia, and former Fourth Circuit clerk. “It was a little surreal to be sitting there on the couch listening to an actual live argument that was going on.”

Elliker said he thinks it’s important to livestream arguments to give those outside the legal system a window into what goes on in the courtroom.

Rob Rosborough, a partner at Whiteman Osterman & Hanna in Albany, New York, added that he was “impressed by how accessible it made the proceedings seem in a highly technical case like that one.”

“You could hear phenomenal attorneys on both sides advocate for their clients on issues that had an impact on millions of people nationwide,” Rosborough said. “I do think that the Fourth Circuit, and all courts, should livestream arguments in all cases, especially in cases like the travel ban that have drawn such public interest.”

Opponents argue that livestreaming could unhinge juries and witnesses, affect lawyers’ behavior, and disrupt the legal process. The general public is also typically allowed to attend oral arguments at most federal courts, though Holland & Knight partner Chuck Tobin pointed out few do so.

Tobin said that because appellate courts don’t use juries or witnesses, and often handle high-profile cases, all appellate courts should allow live broadcasts.

“Courts should be open,” he said. “[The travel ban case] is the public’s business. It’s going to determine a significant issue of public policy in the U.S., and there’s really no substitute for seeing the legal process for yourself.”

Even if the Fourth Circuit decides not to livestream the audio, there will be another chance for the public to see — or rather, hear — the legal process a week later. The Ninth Circuit has scheduled oral arguments for a different case challenging the travel ban on May 15, a week after the Fourth Circuit’s arguments.