By Jack Karp

Law360 (January 28, 2021, 11:16 AM EST) -- Texas Judge Emily Miskel has been livestreaming her proceedings directly from Zoom, where they're held, to YouTube for much of the pandemic.

The presiding judge for the 470th District Court in Collin County, Texas, said 10 to 50 people generally watch her livestream, and she's heard that county employees and law students often tune in, "which I think is great," she said.

Livestreaming virtual court makes it "vastly easier for the public to access court proceedings," she told Law360 Pulse, "because they don't have to leave their house and drive to the courthouse and figure out which courtroom it's going to be in and sit there. They can just go on YouTube."

When the pandemic forced judicial proceedings to migrate to online videoconferencing platforms, judges like Judge Miskel faced a challenge beyond simply keeping their courts open. They also had to keep them open to the public.

The Constitution requires public access to the courts, said Douglas Keith, counsel at the Brennan Center for Justice, and courts have found a variety of ways to meet this obligation. Increasingly they're doing it by livestreaming proceedings to websites like YouTube and Facebook.

Champions of greater public court access have applauded the innovation, which they say allows more people to watch the wheels of justice turn more easily from more places. But others are fighting to stop the practice, worried it threatens the privacy and safety of litigants, witnesses and even judges.

And with many judges saying they intend to continue holding virtual court even after the pandemic, the fight over public access to those proceedings is just getting started.

'Nothing Like a Public Presence in a Courtroom'

A Texas Judicial Branch website lists hundreds of courts livestreaming their proceedings, with links to pages where the public can watch. Courts in New Jersey, Illinois and California, among other states, are also allowing members of the public to watch livestreams of both criminal and civil cases by simply clicking on a link.

The change is being cheered by proponents of greater public access to the courts.

"There's nothing like a public presence in a courtroom," said Simone Levine, executive director of Court Watch NOLA, which trains volunteers to observe New Orleans' criminal courts. That observation provides accountability for judges, prosecutors and public defenders, Levine said.

So when New Orleans courts moved to Zoom at the beginning of the pandemic, Levine fought to ensure that her court watchers could continue attending the now-virtual proceedings.

There's a "level of accountability that comes just even if there's one person in the court," she said. It has "such incredible impact."

Public access to the courts isn't just about citizens watching court officers, Keith said. It's also about court officers seeing the public.

"The presence of people watching court proceedings is supposed to sort of serve as a constant reminder" that the litigants are members of a family and a community, Keith said. Citizens "make sure that judges and juries and prosecutors just never forget about the gravity of the proceedings that they're participating in."

That's why the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center has been fighting for access to the criminal courts in Allegheny County, Pennsylvania, said Jennifer Safstrom, counsel at the organization.

She and others have been pushing several Pennsylvania state courts since May to provide the public with remote access to virtual court proceedings, against the courts' resistance.

"Court access is a necessary and critical first step to promoting transparency, and that in turn enhances fairness, encourages accountability, and it increases the public's trust in our judiciary," Safstrom said. "Individuals and the system benefit when there is public access."

Privacy and Safety Concerns

While the pandemic has made a public presence in virtual court necessary, it's important that there be restrictions on that access, insisted Jennifer Storm, Pennsylvania's acting victim advocate.

Storm has fought several battles to limit public access to certain court proceedings, including to stop the livestreaming of a rape victim's testimony to Facebook Live and to keep off YouTube a murder trial that included video of the victim being killed.

"Here's this mother's single-worst experience she's ever had and now it's out there just for the whole, entire world to view, disseminate, comment on, share," Storm said.

Streaming court proceedings on the internet is entirely different from allowing citizens to attend hearings, she and other opponents of the practice say. For starters, livestreaming courts creates serious privacy concerns for witnesses and jurors, who may be reluctant to participate if their appearances could end up on YouTube.

Privacy concerns extend to criminal defendants as well, Keith said. Defendants are often acquitted, have the charges against them dropped or later get their records expunged or sealed. But a video of a hearing can live online indefinitely, making sealing or expungement pointless.

It's not just those appearing in criminal cases at risk, according to activists. Eviction hearings, custody battles, even personal injury suits can involve sensitive information and exhibits, including photographs of litigants' physical injuries.

"To have the ability for someone to just watch that because they're bored on a Tuesday?" Storm said. "There's an ick factor to it that's really uncomfortable."

Courts have instituted rules against recording these streamed proceedings, but those rules are hard to enforce. And while Judge Miskel insists she deletes her proceedings from YouTube immediately after, Keith said many judges aren't as diligent.

"Once it's out on the internet they're going to have very little control over what people actually do with it," Keith said.

As a result, the livestreaming of court could have a chilling effect on participation in the justice system, said Sarah Lageson, an assistant professor at Rutgers University who studies criminal law, privacy and technology.

Lageson said she has watched several livestreamed court proceedings, including a family court hearing in Texas in which a mother's lawyer shared pictures of her children's bedrooms to prove the kids had a safe space.

While public access to proceedings like this is intended to let citizens see how government officials do their jobs, Lageson said, "I didn't learn anything about the judge watching that. I learned a lot about this woman's apartment. I learned about her husband's suicide attempt, his alcoholism, I watched them argue. It went on for hours."

Will other parents be willing to fight for custody of their children, or will workers be willing to sue their employers for discrimination, if they know personal details like these will wind up online? Lageson asked.

Even Judge Miskel acknowledges that livestreaming has led some judges to worry for their own safety.

Video of a family law case a colleague of Judge Miskel's was hearing went viral after one of the parents involved posted it online, leading to a doxxing attack on the judge, making her private information public. Armed protestors showed up at that judge's home.

"The positive experiences for civics education [of livestreaming] are so great that it's worth it to me right now," Judge Miskel said. "That could change if I get doxxed or armed men with rifles come to my house."

Potential Safeguards

Online courts could replicate the safeguards of physical courtrooms, such as limiting the number of people who attend proceedings, Storm said. Courthouses also have security that ensures those who enter can't record hearings.

Lageson pointed out that judges, juries and litigants can always see who's present in a physical courtroom, something they can't on YouTube, which allows unlimited numbers of anonymous viewers. So she said judges should employ platforms like Zoom, where they can screen and admit participants, rather than YouTube.

That's what Pennsylvania's Fifth Judicial District agreed to do in response to the Institute for Constitutional Advocacy and Protection's campaign for public access. Requests for remote access to a particular case can now be made online and an invitation to observe the Microsoft Teams proceeding is then sent to the requester, said District Court Administrator Christopher H. Connors.

Courts can also decide whether to allow the public access on a case-by-case basis, rather than making blanket allowances or prohibitions, privacy advocates say.

"The beauty of technology is that we can choose something in the middle," Lageson said. "We can make concessions that are case-specific, that are witness-specific, that are type-of-proceeding-specific. It doesn't need to be all or nothing."

Whether these concessions are made or not, the livestreaming of virtual courts is likely here to stay. Judge Miskel said she plans to continue holding virtual hearings even after the pandemic, as do many other judges around the country.

The Administrative Office of the U.S. Courts has already announced that 13 district courts will be participating in a two-year pilot program livestreaming the audio of some civil proceedings directly to YouTube beginning by February.

Judge Miskel acknowledged that this livestreaming has risks. But those risks aren't greater than the risks of in-person courtrooms, she said, they're just different.

"There were tons of problems with the in-person way of doing things," she said. "Like I can't get shot on a Zoom hearing, that's a plus."

--Editing by Brian Baresch and Alyssa Miller.

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