Judge Frank G. Clement, Jr., of the Tennessee Court of Appeals, Middle Section, is not opposed to posting oral arguments on the Internet – with one exception: when the contents of the arguments might result in minor children being subjected to Internet bullying, harassment and abuse. In a January 14, 2013 letter to the Tennessee Bar and judiciary titled “Help protect children of domestic litigation from Internet abuse,” Judge Clement outlines his concern regarding the posting of oral arguments on the Internet, and urges the Tennessee Supreme Court to scrap the program before it begins this spring. Here is the letter, re-published in its entirety with Judge Clement’s permission:
Dear friend and professional colleague:
Effective this spring, digital audio recordings of all appellate oral arguments will be posted to the Web site of the Administrative Office of the Courts, including arguments regarding salacious facts arising from messy divorces of parents with pre-teen or teenage children, dependency and neglect cases, and termination of parental rights cases. As a result, facts grossly embarrassing to the children will be available to anyone with a cell phone or computer, which means classmates of pre-teen and teenage children will have instant access to this information. The inevitable result is the children will be innocent victims of this program, a circumstance that causes me grave concern. Therefore, I write you, not on behalf of my colleagues on the Court of Appeals of Tennessee, but as a lawyer of thirty-three years with seventeen years of experience on the trial and appellate bench, who believes this program should be stopped before it gets started.
Before I address my concerns, be assured that I have great respect for our Supreme Court and the individual justices, all of whom are personal friends. Nevertheless, I believe it is my professional duty to express my views when I am genuinely concerned about a proposed program or rule, especially when the bar was not invited to comment before the decision was made. The subject of this letter greatly concerns me, thus I share my views with you, and you are encouraged to share them with others as you see fit.
The purpose of my correspondence is to inform you that the appellate courts had little input regarding this program prior to the Supreme Court decision to implement and to let you know that I am unaware of any intermediate appellate judge or appellate lawyer who represents clients in domestic cases who favors dissemination of these appellate arguments.
I am confident you are aware of seedy facts that are often aired at oral argument. Moreover, in many of these cases, even when the sexual conduct of a parent is no longer relevant to the issues on appeal, their sexual misconduct is often presented in detail to cast a dark cloud over that parent.
I encourage you, your colleagues, and your bar association(s) to consider the following factors and, if you are inclined to do so, inform the Supreme Court of your views on this matter.
No data has been provided to show that audio recordings of all oral arguments will serve a public purpose that is greater than the harm it will most certainly cause in certain circumstances.
Oral arguments in the appellate courtrooms in Knoxville, Nashville, and Jackson have been and continue to be digitally recorded and all digital recordings are available to the parties, the public, and the media upon request. One need not have standing to obtain a copy of the oral argument and only a minimal fee is required to obtain a copy. Therefore, since all oral arguments are available to anyone upon request, transparency is not a justification for posting them on the Internet.
All appellate opinions are available on numerous internet sites; thus, making oral arguments available on the Internet will not further the public’s education, but it may be used to sensationalize cases.
Mandating that all oral arguments be posted on the Internet may cause litigants to avoid (or attempt to avoid) oral arguments to minimize the possibility of humiliating information being available to the public at the click of a mouse.
Some litigants in domestic cases may use the fact that all oral arguments shall be posted on the internet to attempt to coerce the adversary into an unfavorable settlement to avoid public humiliation or the obvious consequences to their minor children.
If litigants avoid oral arguments by submitting the cases on the briefs, then transparency will take a step back.
From my experience, I find the greatest benefit oral argument provides is a frank exchange between the court and counsel as the court attempts to clarify the issues or ascertain how a certain fact or legal principle relates to an issue. I am concerned that posting all oral arguments on the Internet may cause the appellate judges to be more guarded with their questions and reputable attorneys to be more guarded with their arguments and statements regarding the facts of the case.
Conversely, rogue lawyers will have an incentive to “ramp it up” for the Internet audience, an audience that would likely include those who go to that lawyer’s Web page, where he or she may post a link to the argument.
Tennessee trial courts have had cameras in the courtroom for several years and almost everyone agrees this is working well but it was implemented as a pilot program pursuant to a provisional rule after comments from the bar were both requested and considered. Moreover, we have learned from this that the media is only interested in a small percentage of cases, the high profile cases. Thus, posting all arguments does not address a current need.
Considering the above, I am unable to conclude that the benefits, if any, would outweigh even one unintended but tragic consequence where a sixth grader’s parents are involved in a nasty divorce, the word gets out via social media, and a tech savvy teenager gets online and listens to the argument that addresses one of the parent’s torrid sexual affair or allegations of abuse of the sixth grade student. Before you can say “the Internet,” the information is all over the child’s school. The obvious result is that the sixth grader is bullied, harassed and embarrassed.
I have concluded this all encompassing program is not worth even one harmful episode similar to that addressed above; therefore, I submit the Supreme Court should reconsider and limit the scope of the program to certain cases or allow the appellate courts to designate those cases which may be of public interest. Although there are other reasonable options that may be considered, excluding domestic cases involving minor children from the program is the most obvious option.
Therefore, I encourage you to inform the Supreme Court of your opinion on this subject, whatever it may be. The standard protocol when the Supreme Court requests comments – although it has not requested comments in this instance – is to submit your comments to the attention of Michael Catalano, Clerk of the Supreme Court, Supreme Court Building, 401 Seventh Avenue North, Nashville, Tennessee, 37219-1407; however, you may address your views to one or more of the justices with whom you have a personal or professional relationship.
Thank you for your consideration,
Frank G. Clement,
Jr. Citizen, Lawyer, Judge