The Supreme Court issued a narrow ruling that bans cameras from the Prop 8 trial indefinitely.
The vote was 5-4, with conservative justices in the majority.
The majority wrote that the case was “not a good one for a pilot program.”
The court did not rule on the idea of broadcasting federal trials, but narrowed its decision to this case in particular. It said that the lower courts “did not follow the appropriate procedures” in allowing for coverage. The Judicial Council of the Ninth Circuit approved a pilot program for TV coverage last month, and U.S. District Judge Vaughn Walker planned to stream the trial online and to other courtrooms across the country.
“Even the studies that have been conducted thus far have not analyzed the effect of broadcasting in high-profile, divisive cases,” the court said.
A coalition of media outlets had sought TV coverage, and the plaintiffs in the case, led by attorneys Ted Olson and David Boies, supported the idea. But Prop 8 supporters, who are defending California’s ban on same-sex marriage, challenged Walker’s plans, arguing that proper procedures were not followed in changing long-standing policy against allowing cameras in such federal proceedings. They also contended that their witnesses and plaintiffs faced harassment and retribution from the public exposure that TV coverage would bring.
The Supreme Court said that Walker’s court “failed to ‘give appropriate public notice and an opportunity to comment,’ as required by federal law.”
Officially, the court’s ruling bans streaming to other federal courthouses, as the high court said that it did not address the idea of Internet streaming “premature” because it had yet to get the official sign off from Chief Judge Alex Kozinski in the Court of Appeals. Kozinski had been considering that possibility when the Supreme Court first stepped on Monday and banned cameras, at least temporarily, for broadcast to other courthouses.
Either way, it makes it highly unlikely that there will be any TV coverage at all.
Chad Griffin, board president of the American Foundation for Equal Rights, which is backing the case to overturn Prop 8, said in a statement, “Proposition 8 attacks the core of what our nation stands for — that all of us are entitled to equal protection under the law and equal treatment from the government. A trial on constitutional rights should be accessible to as many people as possible. Given the powerful evidence against Prop. 8 presented in court today, we are not surprised the initiative’s defenders sought to keep this trial as private as possible.”
The Prop 8 proponents seeking to block cameras now have time on their side. The Supreme Court’s order is a “stay” on TV coverage until the Prop 8 proponents can file petitions for a writ of certiorari and mandamus, the latter of which would call on the high court to intervene and overturn a lower court decision. Although it is a question of procedure, it is doubtful that a final court ruling would be issued on the matter before the end of the trial, and even then there is now a majority on record opposing cameras.
Justice Stephen Breyer, joined in his dissent by John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor, wrote that the parties were given adequate notice to comment before the rules for Tv coverage were changed, noting that Walker first discussed the possibility back in September. And he also noted that the court received some 138,574 comments — proof that there was a rigorous effort to obtain it.
He also challenged the notion that Prop 8 supporters would suffer “irreparable harm” because of the broadcasts. He noted that supporters already have voluntarily entered the public eye, and that “literally hundreds of national and international newspapers are already covering this trial and reporting in detail the names and testimony of all the witnesses…I see no reason why the incremental increase in exposure caused by transmitting these proceedings to five additional courtrooms would create any further risk of harm, as the Court apparently believes.”
Update: Andy Pugno, general counsel of ProtectMarriage.com, reacted in a blog post to the ruling.
“We have argued from the start that there is no precedent for Judge Walker’s decision to allow the proceedings to be televised and posted on YouTube, that it impedes a fair and impartial trial and that it subjects Prop 8 supporters – by way of having their images streamed worldwide – to harassment for their views. We are gratified by the high court’s decision.”
Shannon Minter, who successfully argued for same-sex marriage before the California Supreme Court, noted in a blog post on Pam’s House Blend that “Breyer described the majority’s ruling as an
“extraordinary intervention,””micromanaging” local court procedure, and
stated that “the public interest weighs in favor of granting access to
the courts.”” He also provides other commentary on today’s proceedings, including an explanation of why Prop 8 proponents are so determined to contend that discrimination against gays and lesbians is no longer prevalent, as evidenced by their reference to “Will & Grace” and “Brokeback Mountain.”
Minter also noted the moment of today’s proceedings that generated the biggest laughs. It came when Nicole Moss, attorney for Prop 8 proponents, was cross examining expert witness Anne Peplau, a social psychologist. Peplau testified that couples in a same sex marriage get the same benefits as those in a heterosexual marriage. Minter writes, “But at Moss’s insistence, she did confirm that a lesbian couple
cannot “accidentally” procreate a child through spontaneous
generation-one of the few moments today that elicited universal