The SCOTUS Decision on Broadcasting The Prop 8 Trial

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This afternoon, the Supreme Court of the United States ruled 5-4 to extend indefinitely a stay on the broadcast of Perry v. Schwarzenegger proceedings. Many tweeters and articles are using the language of “no cameras” which does not accurately reflect the decision, so I want to show you exactly what it says.

If you’ve been following the liveblogged transcripts, you may recall that when the trial first convened on Monday, the SCOTUS had just announced their temporary stay. The plaintiffs requested at that time that the recordings still be made for preservation, which Judge Walker authorized despite objection from the defendants.

Today’s ruling extends the same provisions as Monday’s temporary stay. The recordings may not be live streamed outside the courthouse, though the YouTube broadcasts are not specifically addressed in the same way, as Jeff Koertzen notes in his blog. None of this, however means “no cameras” or “cameras blocked” as many have been discussing. The overflow room is still being fed a live stream of proceedings, and the decision only addresses public broadcast, not recording.

The basis for this decision is essentially because of the procedure of the decision. From the top of the decision:

We are asked to stay the broadcast of a federal trial. We resolve that question without expressing any view on whether such trials should be broadcast. We instead determine that the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves.

Essentially, the decision to broadcast was made without “sufficient opportunity for notice and comment.”

The 17-page decision goes on to explain the nature of the trial and the importance of not making the decision for broadcast likely. Unfortunately, this means humoring the self-victimization of the defendants of Prop 8. (Court citations omitted below.)

Its advocates claim that they have been subject to harassment as a result of public disclosure of their support. . . . For example, donors to groups supporting Proposition 8 “have received death threats and envelopes containing a powdery white substance.” . . . Some advocates claim that they have received confrontational phone calls and e-mail messages from opponents of Proposition 8…and others have been forced to resign their jobs after it became public that they had donated to groups supporting the amendment. . . . Opponents of Proposition 8 also are alleged to have compiled “Internet blacklists” of pro-Proposition 8 businesses and urged others to boycott those businesses in retaliation for supporting the ballot measure. . . . And numerous instances of vandalism and physical violence have been reported against those who have been identified as Proposition 8 supporters.

This is unfortunate. It reflects an unbalanced juxtaposition, as noted by Joe Jervis this morning in his post, “Stolen Yard Signs: Worse Than Murder.” The plaintiffs against Proposition 8 are standing up for the continued subjugation and oppression of the gay community. Much in the spirit of South Africa’s Truth and Reconciliation, a public discussion of this history of oppression as well as discussions as to why such treatment is unwarranted would serve to reduce the harm continually inflicted upon our community by hate crimes and discrimination. It seems, though, that it is more important to protect those who would inflict such discrimination from any retaliation from those whose lives they impact than it is to air the grievances of those fighting for their civil rights.

Despite how this informed the decision, it is again important to note that today’s decision reflects only the process by which the rules were changed to allow the broadcast. Still, this is only at issue because the defendants (“applicants” in the decision) have raised concern. From page 12-13 (emphasis added):

Applicants also have shown that irreparable harm will likely result from the denial of the stay. Without a stay, the District Court will broadcast the trial. It would be difficult—if not impossible—to reverse the harm from those broadcasts. The trial will involve various witnesses, including members of same-sex couples; academics, who apparently will discuss gender issues and gender equality, as well as family structures; and those who participated in the campaign leading to the adoption of Proposition 8. This Court has recognized that witness testimony may be chilled if broadcast. . . . Some of applicants’ witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment. . . . These concerns are not diminished by the fact that some of applicants’ witnesses are compensated expert witnesses. There are qualitative differences between making public appearances regarding an issue and having one’s testimony broadcast throughout the country. Applicants may not be able to obtain adequate relief through an appeal. The trial will have already been broadcast. It is difficult to demonstrate or analyze whether a witness would have testified differently if his or her testimony had not been broadcast. And witnesses subject to harassment as a result of broadcast of their testimony might be less likely to cooperate in any future proceedings.

The balance of equities favors applicants. While applicants have demonstrated the threat of harm they face if the trial is broadcast, respondents have not alleged any harm if the trial is not broadcast. The issue, moreover, must be resolved at this stage, for the injury likely cannot be undone once the broadcast takes place.

That being said, I can understand to a limited extent why the court wants to limit broadcast: to keep things impartial as the case proceeds. Arguably, though, they’re just buying into the threats of those who do not have the courage or conviction to stand up for what they so passionately believe. Still, it would be in the court’s interest to maintain as much testimony from both sides, particularly should the case advance to higher courts or the SCOTUS itself, as many expect it to.

It is important to note that the bench was split. Justices Breyer was joined by Justices Stevens, Ginsburg, and Sotomayor in dissenting. Justice Breyer points out that discussions about video broadcast date back to December and “no party objected to the presence of cameras in the courtroom for transmissions within the courthouse.” He also notes the significant number of comments that had been submitted on the matter (over 130,000), which he thinks satisfies the “statute’s insistence that ‘notice’ be ‘appropriate.” Like the majority decision, the dissent focuses mostly on questions of judicial policy and practice, and the extent to which the Supreme Court can intervene in a local judicial administration.

The dissent also addresses the question of harm in bold language (from pages 23-26 with some citations omitted and emphasis added):

Third, consider the harm: I can find no basis for the Court’s conclusion that, were the transmissions to other courtrooms to take place, the applicants would suffer irreparable harm. Certainly there is no evidence that such harm could arise in this nonjury civil case from the simple fact of transmission itself. By my count, 42 States and two Federal District Courts currently give judges the discretion to broadcast civil nonjury trials. . . . Neither the applicants nor anyone else “has been able to present empirical data sufficient to establish that the mere presence of the broadcast media inherently has an adverse effect on [the judicial] process,” Chandler v. Florida, 449 U. S. 560, 578–579 (1981). Cf. M. Cohn & D. Dow, Cameras in the Courtroom: Television and the Pursuit of Justice 62–64 (1998) (canvassing studies, none of which found harm, and one of which found that witnesses “who faced an obvious camera, provided answers that were more correct, lengthier and more detailed”). And, in any event, any harm to the parties, including the applicants, is reparable through appeal.

The applicants also claim that the transmission will irreparably harm the witnesses themselves, presumably by increasing the public’s awareness of who those witnesses are. And they claim that some members of the public might harass those witnesses. But the witnesses, although capable of doing so, have not asked this Court to set aside the District Court’s order. . . . And that is not surprising. All of the witnesses supporting the applicants are already publicly identified with their cause. They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the State advocating a “yes” vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse.

The likelihood of any “irreparable” harm is further diminished by the fact that the court order before us would simply increase the trial’s viewing audience from the occupants of one courtroom in one courthouse to the occupants of five other courtrooms in five other courthouses (in all of which taking pictures or retransmissions have been forbidden). By way of comparison literally hundreds of national and international newspapers are already covering this trial and reporting in detail the names and testimony of all of 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. . . . Moreover, if in respect to any particular witness this transmission threatens harm, the District Court can prevent that harm. Chief Judge Walker has already said that he would keep the broadcast “completely under the Court’s control, to permit the Court to stop it if [it] proves to be a problem, if it proves to be a distraction, [or] if it proves to create problems with witnesses.” . . . The Circuit Council confirmed in a press release that the District Court “will fully control the process” and that “Judge Walker has reserved the right to terminate any part of the audio or video, or both, for any duration” or to terminate participation in the pilot program “at any time.” . . . Surely such firm control, exercised by an able district court judge with 20 years of trial-management experience, will be sufficient to address any possible harm, either to the witnesses or to the integrity of the trial.

Justice Breyer concludes his dissent by questioning the motives of the deciding majority:

The majority’s action today is unusual. It grants a stay in order to consider a mandamus petition, with a view to intervening in a matter of local court administration that it would not (and should not) consider. It cites no precedent for doing so. It identifies no real harm, let alone “irreparable harm,” to justify its issuance of this stay. And the public interest weighs in favor of providing access to the courts. To justify this extraordinary intervention, the majority insists that courts must “enforce the requirement of procedural regularity on others, and must follow those requirements themselves.” . . . And so I believe this Court should adhere to its institutional competence, its historical practice, and its governing precedent—all of which counsel strongly against the issuance of this stay.

I respectfully dissent.

It is interesting to see the court’s interest in involving itself in this trial. This makes it easier to suspect that the Supreme Court would hear this case should it make it to that level.

I hope this abstraction of today’s decision has been helpful!

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