By Layla Mustafa
CALIFORNIA – The global coronavirus pandemic has been a source of hardship and uncertainty for many. The force of COVID-19 has tested the foundation of our government, and in doing so, has exposed many weaknesses of our democratic process.
Specifically, in an effort to comply with public health and safety guidelines, our judicial system has faced great hurdles in overcoming and adapting to new virtual formats.
While it is necessary to acknowledge the challenges our courts have faced, the transition to a virtual format has not been uniform across county lines. California’s 58 counties serve as a true testament to the varying levels of adaptability and responsiveness among courts.
As of today’s date, there are still 29 counties who either do not offer public access to courts via livestream or audio stream or if they do it is unbeknownst to the public.
Under the First Amendment, the public has the right to access court proceedings and records. While understandably, many court activities were jolted by the shock of the pandemic, we are now approximately six months into court lockdown efforts, and it is still unclear as to why some courts are able to stream proceedings while others are not.
In the initial stages of lockdown early-April, Sacramento courthouses immediately established YouTube channels which allowed members of the public to livestream hearings. This effective response 
has done much to dispel any fear or question of public access to the courts in Sacramento County.
Many other courts across the state have had similar responses, some employing audio streaming methods, and others providing the public with meeting codes to access ZOOM hearings.
Most of these courts utilize some form of ZOOM meeting in conducting trials in “normal” times, so it would therefore not be impossible to assume they would also have some capability for audio streaming or allowing public access to the video conference.
Still, a large number of California courts are holding “public” hearings without actually providing accessibility to the courtrooms. In an attempt to give some benefit to the doubt we blame it on the challenges of the pandemic. But then why is this behavior still so shocking? Why can many courts do it and others not?
The answer to this question lies within each non-streaming county’s next-door neighbor. The lack of public access across roughly 29 Californian courts is shocking because it sits in stark contrast to neighboring counties that have been able to effectively livestream court proceedings for months.
It is difficult to understand why Placer County does not offer any form of court livestream while its two next-door neighbors — Sacramento County and El Dorado County, have both been offering live streams for the past five to six months.
All county courts have published some form of press release to inform the public of new COVID-19 guidelines and safety measures. In courts where there are no virtual livestreams, most of these guidelines provide no explanation as to why public access to court hearings has been delayed. For example, in the latest press release by Lake County Court they established the court may only be accessed by: “those persons required to be present and those persons permitted on request.”
Some counties not offering virtual livestreams are continuing to hold court in-person. While the public is free to attend some of these in-person court proceedings (provided they adhere to safety guidelines), it is necessary to question whether this method may actually be deemed “accessible.”
And “accessible” isn’t really what it sounds like. Take Sacramento, for instance. There is usually only one to maybe five or six “public” seats available because of social distancing. Is that really “accessible”?
Sacramento Superior Court, even though it early on had livestream, still has none for trials, and makes them available for those – a half dozen of less – who are not faint of heart and will enter an old building with Covid virus possibility lurking in the old ventilation system.
If attending court as a member of the public indicates running the risk of becoming infected with the virus, it is unlikely that there would be much motivation to visit the courthouse. Without a livestream in effect, the public has essentially been barred from participating in their constitutional right.
Some courts have livestreaming and in person, albeit it limited. They won’t have both. That seems odd.
Having proper public access to the courts establishes a precedent of accountability unto our judicial system. Public attendance at court proceedings act as a safeguard to ensure that the courts are not abusing their power.
Some counties have argued the difficulty in enforcing no-recording guidelines in court has cramped efforts to effectively livestream. However, many streaming courts use only audio or telephonic access, efficiently curtailing this issue.
The varying levels of competence between counties also calls into question those who only have minimal streaming available.
Within miles of the high tech capital of the world, after many months with no luck, San Francisco was finally able to establish YouTube channels for four departments. While select streaming is preferred to none at all, why can’t all departments be livestreamed? The county has now established that they have the capability, so why is it that the public are granted only partial access to proceedings?
Additionally, through a subscription service, Los Angeles has a database of old videos for select trials. Besides this access, it is unclear as to whether or not Los Angeles provides any form of streaming to the public. For two of the most populous cities in the state — San Francisco and Los Angeles are far behind in the level of court access that has been proven to be easily attainable by other counties in the region.
Evidently, these injustices are beginning to no longer go unnoticed, as is the case for Kern County. The American Civil Liberties Union has gone to federal court to file a suit on the basis of First Amendment Right violations “by placing undue restrictions on the public for accessing judicial proceedings.” Besides the lack of public access to the court, Kern County also restricted family members from attending in-person proceedings.
The suit was filed towards the end of June, and as of today’s date there are still no live streams available on Kern County’s website. In lieu of a livestream, there is a message reading, “The Court’s live audio streaming system is currently in the testing process. Only proceedings broadcast from Department 7 are available at this time.”
As the lawsuit unfolds, only time will tell if other counties engaging in identical behavior will make the appropriate changes or run the risk of a potential suit. As we tread longer into lockdown measures, many members of the general public are still forced to wait on their First Amendment right.
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Great article by Layla Mustafa! Interesting and well written!
Under the First Amendment…
Yeah, very clear… if you are creative… yeah, right…
Folk like to quote 1st and 5th amendments, in part, to suit their arguments… often, erroneously…
Actually, California and federal courts (including the U.S. Supreme Court) have held that the First Amendment does apply. The First Amendment right of free speech carries with it the right to listen. Therefore, court proceedings are presumed open, unless specifically closed by law or a party proves that an overriding interest in justice requires closure. By statute, there are exceptions in California, for example, for juvenile proceedings and certain family law and conservatorship proceedings.
Also, judges can close a trial proceeding if they expressly find after a hearing that there exists an overriding interest supporting closure and/or sealing of records; there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and there is no less restrictive means of achieving the overriding interest.
What constitutes adequate public access during the pandemic is something courts have yet to grapple with as far as I know. The ACLU lawsuit mentioned in the article will likely begin to address those issues.