Prop. 8 trial will not be televised

The Supreme Court has nixed efforts to televise the federal trial to overturn California’s ban on same-sex marriage, all but dashing the hopes of media outlets and gay rights orgs, who wanted to see the challenge to Proposition 8 beamed or streamed to a wider audience.

In a narrow 5-4 order, the court granted an indefinite stay to Prop. 8 supporters, who argued that the exposure from televised proceedings would subject their witnesses to harassment and jeopardize the ability to have a fair trial.

U.S. District Judge Vaughn Walker, who is presiding over the case, sought to allow the trial to be transmitted via closed circuit to five other courthouses.

He also sought to post streaming video of the proceedings on the district court’s website, although the high court’s order did not deal with that aspect of the plan because Walker never got the official clearance from Ninth Circuit Court of Appeals Chief Judge Alex Kozinski, who had been considering it.

Although the federal court had traditionally prohibited cameras from trials, the Ninth Circuit’s Judicial Council had approved a pilot project for such coverage in certain civil non-jury cases, as this one is.

The Supreme Court’s unsigned order stated that the lower court “attempted to change its rules at the 11th hour to treat this case differently than other trials in the district.”

In fact, Walker’s rationale for such coverage — that this was a historic trial with intense public interest — was turned on its head by the high court, which stated that it was for that very reason that the trial was “not a good one for a pilot program.”

The high court stated that Prop. 8 proponents had shown that “irreparable harm” would “likely result” from plans for TV coverage.

Even the studies that have been conducted thus far have not analyzed the effect of broadcasting in high-profile, divisive cases,” the high court stated.

Thomas Burke, an attorney representing a coalition of media outlets, including the major broadcast networks, said that the idea of cameras “has obviously touched a nerve, if not several nerves, within the court, and they have responded.”

The high court said its decision did not represent a rendering of judgment on the idea of cameras in federal courts but was about this case in particular.

Justice Stephen Breyer, joined in his dissent by Sonia Sotomayor, Ruth Bader Ginsburg and John Paul Stevens, argued that the parties were given ample notice to weigh in on TV coverage well before the rules were changed, noting that it was first broached in a September hearing.

He also challenged the idea that Prop. 8 supporters would suffer “irreparable harm,” noting that many of them have already 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 the witnesses.”

The high court had granted a temporary “stay” to TV coverage on Monday, just as the trial was set to begin, and its new ruling is indefinite pending an official legal challenge filed by Prop. 8 supporters. The trial is expected to last only two or three more weeks, and it’s unlikely such a challenge can be mounted and a decision rendered in that time.

Chad Griffin, board president of the American Foundation for Equal Rights, which is backing the case to overturn Prop 8, said in a statement, “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.”

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