Supreme Court Justice Anthony Kennedy is weighing whether to grant a stay to prevent TV coverage of the Prop 8 trial.
After proponents of the ban on same-sex marriage asked Kennedy to put a halt to such coverage, a media coalition filed a brief this morning in which they reiterated that by making the trial available to a wider reach, “the district court will enhance the legitimacy of the decision ultimately rendered in this case.”
Noting that the Ninth Circuit, which recently launched a pilot program to allow cameras, has long discussed and reviewed the issue, the coalition’s attorney, Thomas Burke, wrote in the brief, “If camera access is ever appropriate — and it is — it is the high profile case, like this one, in which it is most important.” He cited the First Amendment presumptive right in favor of full access to judicial proceedings.
He added, “This is not the typical case, in which the parties are fighting about their own rights to money or property. The parties are fighting about the validity of a controversial amendment to California’s Constitution.”
He also challenged Prop 8 proponents’ arguments that TV coverage should not be allowed because the public exposure would subject them to harassment and reprisals.
In the brief, Burke notes that Prop 8 proponents will be in the public eye regardless of whether cameras are present in the courtroom. Witness lists and trial transcripts are or will be publicly available.
Prop 8 proponents’ “concern is with the incremental additional publicity that will flow from the public dissemination of these trial proceedings over the Internet,” he writes. “Yet the harms they claim to fear flow from their decision to intervene in this proceeding, and the decisions of their witnesses to testify in support of Proposition 8. Having voluntarily chosen to inject themselves into this highly contentious judicial proceeding, they cannot now demand that they be allowed to hide from the public eye.”
U.S. District Judge Vaughn Walker last week said he would allow court
employees to record the proceedings and upload them to YouTube. He also
will allow a closed circuit live feed to courthouses in New York,
Seattle, Portland and Pasadena, as well as an overflow courtroom where
the trial is taking place in San Francisco.
His plan is still subject
to the approval of Ninth Circuit Judge Alex Kozinski, who on Friday
signed off on the closed circuit feed but indicated that he is still
mulling whether to allow posting to the Internet. Interestingly, Kozinski didn’t make any reference to posting to YouTube but to the district court’s website.