Upon Further Review

If you have had the pleasure of orally arguing an appeal recently in the Supreme Court of Pennsylvania or before the en banc (full court) Superior Court of Pennsylvania or Commonwealth Court of Pennsylvania, then you probably noticed that those oral arguments are videotaped for later broadcast on the Pennsylvania Cable Network (PCN).

A number of years ago, Pennsylvania’s appellate courts chose PCN as their designated provider of oral argument video on cable television and online over the internet. Sometime soon after an oral argument session of the Pennsylvania Supreme Court, PCN will broadcast the oral arguments on its cable television channel, usually sandwiched in between video from a local farm show, a program about a unique Pennsylvania manufacturer, video from the floor of Pennsylvania’s State House or Senate, or other Pennsylvania-related public interest programming.

Those of us fortunate to argue cases in the Pennsylvania Supreme Court or before an en banc panel of one of Pennsylvania’s two intermediate appellate courts have all probably heard from lawyer colleagues or even neighbors that we have been spotted on PCN arguing an appeal when our colleague or neighbor was switching channels on their television. To be sure, the number of people who intentionally tune-in to watch appellate court oral arguments on PCN must be vanishingly small, consisting largely of appellate nerds (a term we appellate nerds use with great affection), arguing counsel, and the moms of arguing counsel.

Fortunately, back when PCN began recording and televising these Pennsylvania state court oral arguments, it didn’t matter much whether one was lucky enough to catch the television broadcast of the oral arguments during whatever odd hour PCN decided to air the program. That’s because, from the outset, PCN also made the oral argument video freely available online over its website to be viewed on demand by anyone who was interested.

PCN’s decision to make these oral argument videos freely available online provided a tremendous public service, not only to lawyers and clients who were interested in watching, but also to members of the news media who perhaps might not have been able to attend the oral argument in person but who still wanted to become familiar with the oral argument so that they could be able to report in a fully informed manner on the court’s ultimate decision.

Thanks to the wonderful reporting that The Legal Intelligencer provides in previewing noteworthy cases that are about to be argued before the Pennsylvania Supreme Court, I must confess that I was among those who frequently would access the online video of recent Pennsylvania Supreme Court oral argument sessions to see how the oral argument in cases of interest to me had unfolded, or even to watch how other appellate advocates who I admire had performed.

It thus saddens me to report that PCN recently decided to stop making the video of Pennsylvania Supreme Court and en banc Pennsylvania intermediate state appellate court oral arguments freely available online. Instead, whatever online access now exists to those oral argument videos now exists behind PCN’s paywall, meaning that one must pay to view those videos. Because I have not opted to pay for access, I cannot tell you what access is available to those who do pay. But when I go to access these oral argument videos via PCN’s website, the web site immediately informs me that a paid subscription is necessary to access the content I am seeking.

Now I realize that media providers, including the newspaper that hosts this column, have varying policies concerning free online access to the content they produce. I certainly share the view that media outlets and newspapers have the right to charge for the information they provide, and few things dismay me more than when a news outlet that I have found to be essential is forced to cut back or go out of business due to technology’s often devastating economic effects on the mass media.

According to PCN’s website, “We receive no federal or state funding. PCN is supported through a monthly per-subscriber fee paid by participating cable companies that carry us on their channel lineup.” Signing up for online access is not inexpensive. PCN charges $12.99 for 24 hours of online access and $34.99 for a year’s subscription. You can also purchase from PCN’s Online Store videos of two Pennsylvania Commonwealth Court sessions, one costing $46 and the other $36.

By contrast, the U.S. Court of Appeals for the Ninth Circuit posts its oral argument video to YouTube, where it is freely available. The Third Circuit has begun hosting oral argument videos of select cases on its own website, where the video is freely available. Other state courts of last resort have arranged with public broadcasting television stations in their states to record and host online the oral argument video of those courts, and the public broadcasting stations in my experience make those videos freely available online.

It is possible that Pennsylvania’s state appellate courts have not yet become aware that PCN is no longer making the video of their oral arguments freely available online. This column at a minimum should provide such awareness. Next, perhaps Pennsylvania’s appellate courts can persuade PCN to return to its previous policy of making such oral argument video freely available online for at least some significant time after the oral arguments were initially broadcasted on PCN.

Failing that, Pennsylvania’s state appellate courts should investigate whether it is feasible either to host those videos online at the courts’ own websites or to replace PCN with one of Pennsylvania’s public television providers, which presumably could make those videos freely available online.

As someone who was especially proud when Pennsylvania’s appellate courts began to allow the televising of oral arguments, it was disappointing for me to discover that one main source of access–free online viewing over the internet–has apparently disappeared without any real fanfare. Here’s hoping that Pennsylvania’s state appellate courts can remedy that disappearance one way or another in the not too distant future.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa. and can be reached by telephone at 215-830-1458 and via email at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.abovethelaw.com/ and via Twitter @howappealing.