Death of a newsman

Like everyone else, I too mourn the impending demise of America’s favorite faux-anchor, Stephen Colbert. (Here I refer to the character; the man will, presumably, live on.) Unlike so many others on late-night TV, Colbert is left oddly without a protégé. Even The Daily Show‘s Jon Stewart — the closest thing Colbert has to a peer these days — returned from a hiatus last summer only to find his replacement, John Oliver, being popularly crowned as his successor. (Oliver now has a new show on HBO, but he’s still my odds-on favorite to return when Stewart eventually bows out.)

Colbert, meanwhile, occupies a rarified air all his own, a Bill O’Reilly facsimile for all of us who despise the real one. Which leads me to wonder, half-seriously, if that’s what all of the handwringing over his departure is about in the first place.

As I’ve written before, the idea of Stewart and Colbert as Heroic Liberals has always been more myth than reality. There is little evidence to suggest that either of them truly desires a progressive transformation of Stateside democracy: a little tax reform here, a little less voter discrimination there, sure. But one rarely gets the sense that the duo’s comedy informs their activism, rather than the other way around.

Indeed, Stewart’s passion has not aged well. He won early accolades for his righteously indignant takedown of CNN’s Crossfire, a program with a premise so stupid that the hapless network couldn’t resist reviving it late last summer. Then in 2010, The New York Times made the dramatic comparison to Edward Murrow after Stewart successfully advocated (with evident feeling) for healthcare funding on behalf of 9/11 first responders.

But where Stewart’s satire cut viciously in the Bush years, his Obama-era humor has begun to feel almost formulaic. In January 2010, Stewart’s timid interview with torture memo author John Yoo was so universally panned that he apologized for his performance the next night. His later conversation with Donald Rumsfeld wasn’t terribly better (“I feel like we’re on the porch drinking lemonade,” Stewart remarked).

Colbert, on the other hand, didn’t initially enjoy the same reputation for edgy confrontation (although his 2006 speech at the absurd spectacle that is the White House Correspondents Dinner remains a masterpiece of the genre). But where Stewart has occasionally been known to throw a knockout punch or two in person (Jim Cramer springs to mind), Colbert’s victims are largely crucified in absentia. In between, he had his head shaved by a U.S. Army general on a base in Iraq.

Two years ago, Steve Almond took a long look at these two comedians and threw up his hands:

Our high-tech jesters serve as smirking adjuncts to the dysfunctional institutions of modern media and politics, from which all their routines derive. Their net effect is almost entirely therapeutic: they congratulate viewers for their fine habits of thought and feeling while remaining careful never to question the corrupt precepts of the status quo too vigorously.

Our lazy embrace of Stewart and Colbert is a testament to our own impoverished comic standards. We have come to accept coy mockery as genuine subversion and snarky mimesis as originality. It would be more accurate to describe our golden age of political comedy as the peak output of a lucrative corporate plantation whose chief export is a cheap and powerful opiate for progressive angst and rage.

His frustrations are certainly valid. But more to the point, it seems to me that Almond’s expectations scooted far away from reality. It’s one thing to excoriate the audiences of Stewart and Colbert for their complacency, and quite another to assume that they share Almond’s progressive ideals. For that matter, it seems even less justifiable to assume the two guys peering into our living rooms from behind their news desks four nights a week are all that different from most of the people staring right back at them — that is to say, mainstream urban America.

If Colbert’s upcoming exodus to late-night network TV feels like a betrayal, it’s a curiously one-sided one. It brings to mind my gradual realization, during my mid-teens, that the inveterate hatred I felt for the New York Yankees was not shared by my idols wearing Red Sox uniforms, who routinely exchanged jokes with Jorge Posada and Derek Jeter as they made their away around the infield diamond and, all too often, later donned the pinstripes themselves. Turns out the Sox and Yankees were not nearly the polar opposites I’d always supposed, and that they had more in common with each other as pro ballplayers than either of them had with me. It seems to be taking all of us a little longer to reach the same realization about our comedians.

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Justice Breyer’s Full Answer on Live Audio at SCOTUS Oral Arguments: Still Conservative with a Small “C”

During the question-and-answer portion of Justice Stephen Breyer’s international law lecture at the Brookings Institution yesterday, an audience member from the Coalition for Court Transparency asked the justice about the possibility of live streaming audio from Supreme Court oral arguments. Justice Breyer gave a nearly six-minute reply which reiterated some of the same arguments he has made against live video in the past, but the answer did contain an interesting new tidbit at the end in which he mentions recent audio “experiments” from the D.C. Circuit.

Michelle Olsen of Appellate Daily published a transcription of the last part of this answer yesterday evening. The following is my transcription of the full question and answer, which I have slightly edited for clarity.

Breyer at Brookings

The relevant question starts at the 2:12:00 mark of the Brookings Institution video.

Audience Member: Alright, this is not a hot political question; it’s a hot legal question. My name is Karl, I’m with the Coalition for Court Transparency.

You referenced five areas [where] American judges might do well to consult foreign sources or foreign legal thought. High courts in Canada and the U.K. and many, many other countries have cameras.

I don’t want to know if you support cameras, because I already know where you stand on cameras in the Supreme Court–but there’s a nice lounge at the Supreme Court where Supreme Court bar members are allowed to listen to live audio. Why don’t we allow the live audio to be transmitted outside the building, to everybody else who might not have the money or means to come to Washington, D.C. and wait in line outside in the cold, [so that they can] listen to such audio?

Justice Breyer’s answer to this question begins at the 2:14:08 mark.

Justice Breyer: Now, to give my unsatisfactory answer to [the question] about cameras in the courtroom under the guise of radio, you have to understand that it’s a pretty tough question, and we’re pretty conservative–with a small “c”–when you start talking about our institution. I mean, we don’t know what would happen if we let cameras in the courtroom. And the risks would be–two [risks], and we don’t know what the answer is. Three [risks], actually.

One risk is that people would begin to think that the oral argument–which is about 5% [of what the Supreme Court does], almost all of our material is submitted in writing–they would begin to think that that was what we’re about. The oral argument! That would be misleading, but not deadly.

What might be worse is that people do relate to people. That’s good. You relate more to your family than you relate to your friends, than you relate to people you don’t know, and people you see you relate to more than people you just hear about, and statistics you relate to not at all. OK. That’s the human condition, and I think it’s probably a good one. But the job of an appellate court–and particularly our court, which is about three levels of appellate courts, or two–is to think about how our decision is affecting the 300 million people who aren’t in the courtroom. They’re not there. But they will possibly be affected by our ruling. And people might, well, just look–to the good guy and the bad guy. And that might have an impact on the effectiveness of the Court.

Or, what is the most obvious thing, and you get privately–opposite advice from different members of the press on this one. [Voices perspective of a SCOTUS justice] “It won’t affect us! I mean, we’re grown up, we hope. And there’s the press there anyway, And why will it affect what questions I ask? I have to watch what I say anyway!” Well, apparently, I don’t. But nonetheless, you have to watch it, it’s public and the press is there, so why would this make a difference? To which some members of the press will say, you just wait ’til you see how you react when you ask a question in good faith on A, and then it’s reported on various shows on television and they show a picture of you. You’ll be pretty careful, and maybe you’ll be careful to stop asking. That might be a public benefit, but nonetheless, you see the point. And you say, go see what happens in the Senate or the House, which perhaps has to respond to public opinion.

But the reason you have a court–the reason we decide constitutional questions–if you go back to Alexander Hamilton, is–why? Because this document [takes out pocket copy of Constitution]… it treats exactly the same way the least popular and the most popular person in the United States. That’s what it’s supposed to be. And by the way, he said, we better give the Court the power to review laws–why? Because if we give the President the power to say whatever he does is constitutional or not, he’ll always say it’s constitutional, and he has enough power already.

Why not give the power to Congress?  After all, they’re elected, and many countries have done that. To which Alexander Hamilton says–he doesn’t say it in these words–he says, what happens when the decision is right but unpopular? He says, I’ll tell you about Congress–they are experts in popularity. He says, believe me, they know popularity. But what will they do when it’s unpopular? So let’s take these judges nobody’s ever heard of–they don’t have the power of the purse, they don’t have the power of the sword–fabulous. They’re weak. And give them the authority. And when it’s unpopular–unpopular and important, and by the way, possibly wrong–I mean, I’ve participated on both sides of 5-4 decisions. Not as many as you think–there may be 20% [of decisions that] are 5-4, 50% are unanimous–but somebody’s wrong in these cases. Alright, so–and that is the question I get from the President of the Supreme Court of Ghana, a woman who is trying to further democracy and civil, human rights in Ghana, and from Ouagadougou [in Burkina Faso], and from countries all over–why do people do what you say?

That’s a pretty good question. And it’s taken us–I say, there’s no answer in this document [the Constitution], and Hamilton didn’t answer it, either. He didn’t know. Nobody knew. It’s two hundred years of history. You want people in your country to follow courts and the rule of law–go out to the villages. Don’t just talk to the lawyers. Don’t just talk to the judges. By the way, there are in our country–contrary to popular belief–309 of the 310 million are not lawyers. Alright? And I say, they’re the ones that had to support sending the troops to Little Rock to enforce integration. They’re the ones that have to decide they will follow decisions that they think are really wrong and really unpopular. And that takes time. But that’s part of our job. And who knows? So I say we’re conservative with a small “c.”

And the radio? I mean, the radio–[unintelligible] they tried that in the D.C. Circuit [which has since September 2013 provided same-day audio for its oral arguments], didn’t hurt anything. Could we experiment with that? Maybe. But that’s not right in front of us. So therefore, that’s [my] not answering [the question].

—–

As mentioned in the beginning of this post, most of Justice Breyer’s answer, which focuses on insulating the Court from the misconceptions of the public, retreads his previous statements about cameras in the courtroom. In March 2013, in response to questioning from a House Appropriations subcommittee, Breyer mentioned the Court’s conservatism with a small “c” on the issue, the potential distortion by the press, and the self-censoring effects televised arguments could have on the justices’ questioning. He said then: “I’m not ready yet. I mean, I want to see a little bit more of how all this works in practice. I’d give people the power to experiment. I’d try to get studies–not paid for by the press–of how this is working in California, of how it affects public attitudes about the law. I’d like some real objective studies–I know that’s a bore, but that’s where I am at the moment.”

In January 2014, Justice Breyer told an audience at The Washington Center for Internships and Academic Seminars that he suspects it is a matter of when, not if, oral arguments are televised, but worried about the “demonizing and angelizing” of certain members of the Court.

What made yesterday’s answer different (and encouraging for advocates of live streaming) was his begrudging acknowledgment at the end that the D.C. Circuit has adapted its procedures to make oral arguments more accessible to the public, with no harm done to the integrity or the perception of the court. I would not go so far as to call it Breyer’s endorsement of live audio–as Michelle Olsen pointed out, the D.C. Circuit still doesn’t have live audio, only same-day audio, and it’s unclear which of these two practices Justice Breyer’s musings on “experiments” referred to. Given that the Supreme Court currently releases its argument recordings just once a week on Fridays, though, even moving toward same-day audio at One First Street would be a small step in the right direction.

What Do the Changes to the SAT Really Mean?

In college, I took an intro-level microeconomics course with a professor who had taught for a long time at the university. Every few years (even though it seemed like an annual ritual), he would put out a “new edition” of his microeconomics textbook, slap a new cover photo on it, and jack up the price – all while requiring students to buy the newest edition.

So, was this “new edition” really all that new?

Of course not. None of my classmates nor I ever found any major (or even minor) differences between the editions. It was still an overpriced textbook, and requiring the newest edition really only helped boost the professor’s textbook royalties.

Naturally, when the College Board announced “major changes” to the SAT, I thought back to my intro to econ course. How “major” are these changes to the SAT really? Is reverting back to the 1600 scale truly all that new?

The answer to these questions depends on your frame of reference:

Now, we know what most of the media thinks about these latest developments with the SAT:

  • CBS called the announcement “sweeping changes
  • The New York Times called them “major changes” (Note: An updated headline has now removed the phrase “major changes” from the title, but the URL still reflects the original title)
  • NBC News labeled them “big changes
  • The Wall Street Journal said that the College Board “shakes up” the SAT

You get the picture.

In large part due to this deluge of news coverage calling the changes such “big news,” I went on a bit of a Twitter rant to point out that the new developments were not, in fact, all that major. Here are a few highlights:

The truth is: the SAT is a charade. For all the College Board’s talk about “delivering opportunities” and making college more accessible for students, the SAT represents an unnecessary — and useless — barrier on the road to college.

Just last month, the National Association for College Admission Counseling (NACAC) released a report that found virtually no difference in college completion rates for students, regardless of whether they submitted SAT scores or not. The study affirmed what previous research had already found: including or not including the SAT (or ACT, for that matter) in college admissions considerations really doesn’t make much of a difference.

So then, why do the SAT and ACT remain such a major part of the college admissions web? There are a couple of factors, but at the root of these is one common denominator — money.

Consider that the test prep industry generates over $1 billion each year (this doesn’t even include the profits from actual testing), and consider that the SAT is better at predicting a student’s socioeconomic background than his or her college success.

So, while the news of this week has focused on the College Board and what it has done to retool the SAT, the deeper issues that impede college access still remain. The true culprits in this equation are the colleges and universities that still feed into the testing frenzy, allowing concerns over institutional prestige and rankings to cloud their ability to enact truly impactful policies for expanding access.

When colleges and universities require the SAT or ACT, families with the means to put their children through test prep courses are at an even greater advantage over low-income and even many middle-income families who simply cannot afford such extraneous luxuries. Frankly, what does it say about the test itself when an entire industry is built around prepping students for it? And, truthfully, a nice PR move like partnering with the Khan Academy is nothing but a band-aid solution to a much deeper issue (and what does it say about the Khan Academy, too?).

It’s time to throw out an anachronistic component of college admissions that is doing nothing but driving an academic arms race among higher education institutions. Instead, let’s focus our efforts on real, substantive issues such as trimming the costs of administrative bloat, addressing the mountainous student debt bubble, and boosting declining state investment in higher education. The bigger news focus this week should have been on efforts such as the new Higher Ed, Not Debt initiative launched by a number of education champions, including Sen. Elizabeth Warren and American Federation of Teachers President Randi Weingarten.

But, instead, we’ve been hearing all about this “new SAT.” As a higher education access and affordability advocate, I could certainly break down the ways in which the changes to the SAT might impact how we work with students as they prepare for and apply to college. But that’s for another day, since — as a higher education access and affordability advocate — I also feel the need to point out when the discussion is heading in the wrong directions.

And that’s the point — because, in the grand scheme of things, until we really shake our college admissions processes free of these measurement tools of privilege and focus on true systemic ways to increase access for low-income, underrepresented, and first-generation students, changes to the SAT really aren’t that major after all.

Propaganda, or the other side of the story?

At around 5 PM on Wednesday afternoon, RT (formerly Russia Today) anchor Liz Wahl decided to call it quits on-air, accusing the channel of “[whitewashing] the actions of Putin.”

Wahl’s announcement created quite the buzz in media circles. The New York Daily News, temporarily losing track of the date by several decades, declared: “A ‘Russia Today’ anchor broke through the Iron Curtain.” The New York Times ran a piece headlined “Russian Channel’s War Coverage Continues to Cost It Journalists.” MSNBC host Lawrence O’Donnell dubbed Wahl “today’s bravest person on TV.” And Business Insider helpfully proclaimed: “Anchor For Russian Propaganda Channel Dramatically Quits In Protest Live On The Air.”

Perhaps no one was more effusive in his praise for Wahl than James Kirchick, a contributor to The Daily Beast. In an “exclusive” post-resignation correspondence with Wahl, Kirchick reports that, as far back as last August, “Wahl felt morally compromised working for the network, she told me, but wasn’t yet prepared to quit.” (Wahl had first contacted Kirchick last year after he had taken a brief hiatus from agitating for whistleblower Chelsea Manning’s execution in order to stage a bizarre one-man TV protest against Russia’s undeniably pervasive homophobia — a stunt that lasted two minutes and was utterly unrelated to the panel on which he’d been asked to participate.)

“Wahl did a very brave thing,” Kirchick concluded. “Unlike [Abby Martin, another RT anchor who had expressed her displeasure at Russia's Crimea intervention, two days prior to Wahl], who will continue to cash Putin’s paychecks, Wahl is now out of a job. But that’s the price real reporters—not Russian-government funded propagandists—have to pay if they are concerned with quaint notions like objectivity and the truth.”

Aside from the obvious absurdity of calling an American anchor working from Washington, D.C. “brave” for publicly denouncing the editorial decision-making process of her foreign employer, Kirchick’s article failed to define what exactly differentiates “real reporters” from “Russian-government funded propagandists.”

This is especially surprising given Kirchick’s own background as a reporter for a government-funded propaganda network. As a recent writer-at-large for Radio Free Europe/Radio Liberty (RFE/RL), Kirchick and his employer were funded entirely by the United States Congress. RFE/RL got its start in 1949, when it was founded by the anti-Communist organization National Committee for a Free Europe. That organization was launched, in turn, by none other than Allen Dulles, who just four years later would take the helm of the CIA as the Director of Central Intelligence. (He still holds the record for the longest tenure as DCI.)

RFE/RL was itself funded by the CIA as late as 1971, a fact that brought the radio network no small amount of notoriety. During the Cold War, Radio Free Europe headed up an American anti-Soviet propaganda operation that “sent 590,415 balloons that carried 301,636,883 leaflets, posters, books, and other printed matter from West Germany over the Iron Curtain to Czechoslovakia, Hungary and Poland from August 1951 to November 1956.” (The historical legacy of this “extensive propaganda campaign” is recounted on RFE/RL’s web site.)

Today, RFE/RL is overseen by the Broadcasting Board of Governors (BBG), an entity that also supervises other bastions of independent journalism such as Voice of America, Radio Free Asia, and the Office of Cuba Broadcasting. (This is the same Office of Cuba Broadcasting that, during the George W. Bush administration, paid ten reporters varying totals of up to $240,000 each to disseminate anti-Castro opinion — the revelation of which resulted in the termination of three of them by El Nuevo Herald, The Miami Herald‘s Spanish counterpart.) The BBG is itself under the watchful eye of foreign relations committees in both the House and the Senate, and its budget is set annually by Congressional appropriations committees as well. Last year a former board governor, commenting on an inspector general’s report portraying widespread dysfunction at the BBG, explicitly described the organization’s purpose as “telling [the American] story worldwide.”

Kirchick’s role at RFE/RL included filing American-friendly stories with headlines such as this one, from August 26, 2011: “As Libyan Rebels Assert Control, Calm Descends Over War-Torn Capital.” In that particular piece, published five months after the U.S. and its allies launched a military intervention in Libya that quickly obliterated the operation’s stated objectives (as described by United Nations Security Council Resolution 1973), Kirchick bizarrely declared:

As fighting continues in the Libyan capital between rebels and fighters loyal to deposed leader Muammar Qaddafi, a sense of calm has finally settled over most of the city, putting something of an end to what has been the most intense conflict to emerge in the “Arab Spring.”

And everyone lived happily ever after. As The New York Times summed up last month:

Precious little has been achieved in Libya since the war that killed Colonel Qaddafi and ended his 42 years of autocratic rule. The country held its first free elections amid much euphoria in 2012, creating a General National Congress that then appointed a new government.

But both bodies have come under criticism for failing to manage the country effectively. Security is deteriorating amid growing corruption and perceived incompetence, and the Congress has been frequently gridlocked by a strong divide between Islamist parties and the more liberal groups that are nervous about the growing power of the Islamists.

Tensions have been rising in recent weeks as the militias that fought the war against Colonel Qaddafi have tried to influence the political process. Prime Minister Ali Zeidan was abducted from his hotel and held for hours in October by militia members who wanted to force his resignation. On Tuesday, two militia groups demanded that the Congress dissolve itself or face the arrest of its members.

You know, “something of an end” to the conflict. It’s almost enough to make one wonder whether Kirchick’s coverage was influenced by the government that funded him.

Indeed, given the reality of his former employer’s history and present (an association which Kirchick happily touts on his own site), it seems particularly incongruous of him to call Liz Wahl brave for stating the below today:

Last night RT made international headlines when one of our anchors went on the record and said Russian intervention in Crimea is wrong. And indeed as a reporter on this network, I face many ethical and moral challenges — especially me personally, coming from a family whose grandparents, my grandparents, came here as refugees during the Hungarian revolution, ironically to escape the Soviet forces.

I have family on the opposite side, on my mother’s side, that sees [sic] the daily grind of poverty, and I’m very lucky to have grown up here in the United States. I’m the daughter of a veteran. My partner is a physician at a military base where he sees every day the first-hand accounts of the ultimate prices that people pay for this country. And that is why personally I cannot be part of network [sic] funded by the Russian government that whitewashes the actions of Putin. I’m proud to be an American and believe in disseminating the truth. And that is why, after this newscast, I’m resigning.

Even leaving aside the above confusing litany of digressions — which reads more like a checklist of patriotic cliches than a plausible justification for quitting one’s job on a live television show — there is little courageous about Wahl’s pronouncement. And the timing, coming just two days after her colleague Abby Martin’s more measured criticism of Russian foreign policy — statements that did not, as it turned out, culminate in a melodramatic abdication of the anchor’s perch — is certainly interesting, to say the least. Perhaps strangest of all, however, is Wahl’s apparently sudden epiphany as to RT’s source of funding. One can only surmise, of course, that James Kirchick remained just as blissfully unaware of his own benefactors during his time at RFE/RL.

RT, in responding to Wahl’s accusations, stated:

When a journalist disagrees with the editorial position of his or her organization, the usual course of action is to address those grievances with the editor, and, if they cannot be resolved, to quit like a professional. But when someone makes a big public show of a personal decision, it is nothing more than a self-promotional stunt.

Even given the blatant pro-Kremlin slant of RT’s entire oeuvre, it is hard to disagree with the network’s assessment. Wahl leaves RT for an almost certainly brighter future in American journalism: by feuding with her employer — whose bankrollers in the Kremlin are particularly vilified in the popular American mindset at the moment — in such a public manner, she managed both to significantly raise her media profile and to solidify her mainstream American bona fides at the same time. (Hey, it worked for Juan Williams.) Fox News must already be on the phone.

But RT’s editor-in-chief Margarita Simonyan, speaking in the wake of Abby Martin’s on-air critique, scored the most on-point observation:

Media outlets do not exist in a vacuum. Can you really expect any American corporate-owned news network to report a story in a way that goes against the U.S. national interest? Or Euronews to not advocate [European Commission] positions?

Given our own recent history with unjustified violations of other nations’ sovereignties, Simonyan’s question seems fair — “Russian-government funded propagandist” or not. As for James Kirchick, well, it takes one to know one.

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Identifying the Clandestine Videos of Supreme Court Oral Arguments Posted Online [UPDATED]

Noah Newkirk of Los Angeles made national headlines yesterday when he interrupted an oral argument in the Supreme Court with a protest over the Court’s 2010 decision in Citizens United v. Federal Election Commission. Newkirk, who had been admitted into the courtroom as a spectator, stood up and made his statement toward the end of arguments for Octane Health LLC v. Icon Health and Fitness, Inc.–a case that involved patent attorneys’ fees, not campaign finance–before being promptly removed by security. Because cameras are not permitted in the courtroom and the Supreme Court does not broadcast its oral arguments live, initial media accounts of the disruption either summarized or quoted only snippets of what Newkirk reportedly said, while the court’s official transcript of the Octane oral argument left out the protest entirely.

Thanks to new video released by a YouTube user named “SCOTUSpwned,” however, we can now see footage of Newkirk’s protest in full, which was clandestinely recorded (and captioned) by an anonymous person sitting in the spectators’ section with Newkirk yesterday. In addition, SCOTUSpwned also posted five other secretly-made videos from two different Supreme Court oral arguments from this term, ranging from four seconds to half an hour in length. I’ve watched all of them and identified the relevant oral arguments where I can, which I describe below. We begin with the first video that SCOTUSpwned uploaded:

Video 1 (MOVI0000) – Timestamped 10/08/13

Burt v. Titlow (argued 10/08/2013): 16 minutes into the video, you hear one of the attorneys, John J. Bursch, say, “[Y]ou can see how that difference played out in this very case because the Sixth Circuit didn’t look at all the other evidence …,” which matches page 55 of the transcript of the Titlow oral argument.

Video 2 (SUNP0000) – Timestamped 1/25/08 

It is inconclusive where this was taken, since the video only lasts 4 seconds. Based on the timestamp, however, I believe this was recorded during the same session, by the same person, as Video 4 (which was of the Burt v. Titlow oral argument; see below).

Video 3 (MOVI0036) – Timestamped 1/1/2008

Octane Fitness v. Icon Health & Fitness (argued 2/26/2014): 34 seconds into the video, you can hear attorney Carter G. Phillips say, “And then when Congress, in 1952, incorporates the exceptional case standard…” which matches the argument on p. 32 of the transcript.

Video 4 (SUNP0001) – Timestamped 1/25/2008

Burt v. Titlow (argued 10/08/2013): Around 38 seconds into the video, Valerie Newman says, “It appears from the record that he got his information from the media. This was a highly, highly publicized case,” which corresponds with p. 50 of the transcript.

Video 5 (SUNP0019) – Timestamped 6/14/2008 

Octane Fitness v. Icon Health and Fitness (argued 2/26/2014): 50 seconds in, Roman Martinez says, “Here Congress did not say otherwise. Congress did not embrace a clear and convincing standard,” which matches the dialogue on p. 26-27 of the transcript.

Video 6 (“Supreme Court caught on Video!”) – Timestamped 10/08/13 [UPDATED]

Burt v. Titlow (argued 10/08/2013), Octane Fitness v. Icon Health and Fitness (argued 2/26/2014): This video contains footage from two separate oral arguments. The first 1:10 is from Titlow–although it is mislabeled in the video as “the oral arguments… for the case McCutcheon v. FEC” (which was argued the same day as Titlow, but is not the same case). At the 50-second mark, we can hear Valerie Newman, Titlow’s attorney, say “She had already pled, so she had already entered a plea, and all that was left was sentencing,” which matches p. 50 of the argument transcript.  The last half of the video is from yesterday’s Octane Fitness v. Icon Health argument and includes Noah Newkirk (captioned as “Kai” in the video) asking the justices to overrule Citizens United. Newkirk waits until Carter G. Phillips says, “If there are no other questions, your honors, I’d urge you to affirm” (p. 48 of the Octane argument transcript) before standing up and protesting. The video then shows him being removed from the courtroom.  The anti-corruption grassroots group 99rise, of which Newkirk is a co-founder, took responsibility for the protest and issued a press release that included the full speech Newkirk made in court.

[UPDATE: The original version of this post misidentified the first minute and ten seconds of the video as coming from the McCutcheon v. FEC oral argument, in part due to the caption of the videographer and in part due to the fuzziness of the audio--I believed the female voice I heard was Erin Murphy, a lawyer for the McCutcheon appellants. Upon further audio analysis, however, I realized that the words the female attorney was saying matched up not with the McCutcheon argument transcript but the Burt v. Titlow transcript, and that the voice was Valerie Newman's rather than Murphy's. None of the six videos on SCOTUSpwned's YouTube page are from McCutcheon v. FEC. I regret the error.]

As far as I can tell, these are the first videos of the Court in session to go public, sparking online discussion about the identity of the cameraman, the method they used in compiling this footage (what did they use to film the Court, and how did they get it past security?), and whether this incident might ultimately push the Supreme Court toward or away from allowing live broadcasts of its proceedings.

I’m also wondering whether we can expect a “sequel” from 99rise anytime soon. It appears from the differing timestamps and varying audio quality on some of the videos that multiple people managed to sneak devices in and film the Court (Video 1, for instance, bears the correct date for the oral argument in Burt v. Titlow but makes it difficult to hear the words of the attorneys because it captures mostly the breathing of the cameraman, whereas Video 4 of the same oral argument has an incorrect timestamp but much cleaner audio), but to date, only Noah Newkirk has been thrown out for causing a disturbance. It is unclear whether any other collaborators were caught recording the arguments during yesterday’s scuffles. Since the group obviously cares a great deal about the Court’s campaign finance jurisprudence and made a point to be physically present on the day of the McCutcheon argument (Burt v. Titlow, after all, was argued on the same day as McCutcheon), I’m guessing that they were at the Court yesterday because they believed that the justices were going to issue a ruling in McCutcheon. That didn’t turn out to be the case, but what will they have planned when the Court actually does, and how does Court staff plan to tighten security before that day comes?