I reacted very critically when I discovered that the Supreme Court deleted audio of the protestor. Not everyone agreed? Some said the Court did the right thing. They analogized deleting the audio to TV stations turning off the camera when a streaker runs across the field. They said that allowing the protestor’s audio to remain in would encourage this type of behavior.

This is a plausible argument in the abstract, but in the context of this case I don’t find it persuasive for several reasons.

Firs, the Court hasn’t seen fit to delete audio of protests in the back. For example, during arguments in Gonzales v. Carhart, there was a protest, but that audio remained in the recording sent to the National Archives. Though, the primary difference is that when that case was argued, the audio was not released till the end of the term. By that time, the arguments were no longer a news item, and no one cared. Now, when arguments are released at the end of the week, it is still on the media’s radar.

Which leads me to my second point. Everyone knew about this protest. When it happened, countless media outlets reported on it. Art Lien had a sketch. EVERYONE knew about it. The cat was out of the bag. At this point, there was really no incentive for the Justices to redact the audio. But then the unthinkable happened. The protestor managed to smuggle a camera into the Court, and recorded it. The video leaked on Thursday. EVERYONE saw it. It was all over cable news. At this point, everyone knew that the protest happened, and had seen it. Whatever incentive to delete the audio from the recording absolutely vanished. But by Friday, the decision was made to doctor the audio.

This brings me to my third, and most important point. Everyone knew it happened. Now, everyone knew the Supreme Court edited the audio. For a Court that has, let’s say transparency problems, this looks really, really bad. At the very same moment when groups are bombarding the Court with commercials urging them to be more open, and allow cameras into the Chambers, we have tangible evidence that the Court is doctoring audio of recordings from open court, and deleting something that we all know happened, and we have video of it happening. This does not even go to the fact that the Court, as an agent of government, is censoring speech it finds objectionable. This is the same Court that arrests people for peaceably standing on its steps. The First Amendment is no matter here.

I appreciate the reasons in favor of not including the audio to discourage protestors, but this strategy will not succeed. 99Rise has announced they will record sessions again. But even worse than this, editing the audio will result in a loss of faith towards the Court itself. I’ve been shaken by this. One of the arguments the Justices raise to oppose cameras is that their deliberations are public (well that excludes the private conferences and opinion circulations). But if the Justices now censor their public proceedings, that sends the absolute wrong message. And, in the process, they actually censored what I thought was a warm comment by Justice Kennedy, urging the attorney who was about to begin to take his time. We’ve lost that moment to history. I hope that the recording submitted to the National Archives is complete. The National Archives Record Act prohibits the alteration of government records–and for good reasons. But the Supreme Court is not subject to NARA.

I would be remiss if I did not mention Nixon v. GSA. In that case, the Court held that President Nixon did not personally own the recordings made in the Oval Office, and he had to surrender them to the government.  The Court found that the preservation of these materials is a compelling government interest that outweighed the President’s countervailing interest in ownership and control of the tapes. I recognize that this case is hardly on point here, as that case involved a law (that was almost certainly a bill of attainder) that required President Nixon to turn over his secret recordings. But the reasoning of the GSA Court is relevant. Recordings of public proceedings belong to the Public. (Whether a law by Congress requiring the maintenance of Supreme Court recordings would violate the Separation of Powers is a fun question).

These proceedings belong to We the People. The Court is not doing us a favor by recording them, and releasing only those sections they see fit to record. Because of their refusal to allow cameras, this is the *only* way the public can follow the proceedings.

As an aside, I would love to find out who made the decision to alter the recordings. Was it the Public Information Office? Did the Chief Justice, or the Justices decide this? This decision was likely made before the Friday conference, so I doubt the other Justices were consulted–and I suspect several of them would not concur. Remember when Justice Breyer and Ginsburg dissented from the decision to close the front door?

This happened once. It will probably happen again. This is a conversation those who watch the Court must have.