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?

Post Revisions:

About victoriakwan

Victoria holds a J.D. from Columbia Law School and has recently completed a clerkship with a judge in Anchorage, Alaska. She tweets as @victoriakwan_ and posts primarily on legal issues, especially those involving the Supreme Court.