Camera Questions, Awaiting SCOTUS Blocks Broadcast

The Supreme Court divided, 5-4, in ruling against U.S. District Judge Walker's plan to broadcast the Proposition 8 trial to several other courtrooms across the country.

The Supreme Court divided, 5-4, in ruling against U.S. District Judge Walker's plan to broadcast the Proposition 8 trial to several other courtrooms across the country.

POST-DECISION REPORT: The Supreme Court has blocked the broadcast of the Proposition 8 trial, as first reported at SCOTUSblog (and as explained below).

As Lyle Denniston wrote, it was a 5-4 decision of the Court, “chastizing lower courts for attempting ‘to change its rules at the eleventh hour’” in a 17-page opinion.  Justice Breyer was joined by Justices Stevens, Ginsburg and Sotomayor in a 10-page dissent.

The opinion — representing the views of Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito — and dissent are available here (pdf) at Law Dork c/o SCOTUSblog.

The Supreme Court, in a per curiam — meaning unsigned — opinion, summarized the matter as follows:

[O]ur review is confined to a narrow legal issue: whether the District Court’s amendment of its local rules to broadcast this trial complied with federal law.  We conclude that it likely did not and that applicants have demonstrated that irreparable harm would likely result from the District Court’s actions.  We therefore stay the court’s January 7, 2010, order to the extent that it permits the live streaming of court proceedings to other federal courthouses. We do not address other aspects of that order, such as those related to the broadcast of court proceedings on the Internet, as this may be premature.

Slip opinion, at 7.  The Court notes that this is only an injunction, subject to revision on appeal or by order of mandamus.  What this means is that the Court did not determine its opinion on the matter, but — among other points addressed in the dissent — it did determine whether the Proposition 8 proponents had shown a “substantial likelihood of success” on the merits and an “irreparable harm” if the injunction were not granted.  (It is important to point out that the Court was only considering here the broadcast to the five other courthouses — not the proposed YouTube posting, which it appears would have received even less support from the Court.)

As to the merits, the Court’s majority determined that the procedure used by Judge Walker — the Chief Judge of the Northern District of California — was likely to be found insufficient.  The Court held: “The amended version of Rule 77–3 appears to be invalid.  In amending this rule, it appears that the District Court failed to ‘giv[e] appropriate public notice and an opportunity for comment,’ as required by federal law.  28 U. S. C. §2071(b).”  Slip op., at 10.  The Court majority found that the five business days given were unlikely to meet the legal requirements: “There is substantial merit to the argument that this was not “appropriate” notice and an opportunity for comment.”  Id.

As to the irreparable harm, the Court’s opinion will be seen as more problematic.  The Court agreed with the Proposition 8 proponents that there would be no remedy for the harm that they could suffer if broadcast.  The Court held:

This Court has recognized that witness testimony may be chilled if broadcast.  See Estes v. Texas, 381 U. S. 532, 547 (1965); id., at 591 (Harlan, J., concurring).  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. See, e.g., Exh. K to Defendant-Intervenors’ Motion (71 news articles detailing incidents of harassment related to people who supported Proposition 8). . . . There are qualitative differences between making public appearances regarding an issue and having one’s testimony broadcast throughout the country. . . . And witnesses subject to harassment as a result of broadcast of their testimony might be less likely to cooperate in any future proceedings.

Slip op., at 13. The Court then, most clearly, takes a swipe at Judge Walker:

The District Court here attempted to revise its rules in haste, contrary to federal statutes and the policy of the Judicial Conference of the United States. It did so to allow broadcasting of this high-profile trial without any considered standards or guidelines in place.

Slip op., at 14.

Justice Breyer authored a very strong dissent, in which he was joined by Justices Stevens, Ginsburg and Sotomayor, as previously noted.  Noting the six steps that he asserts the Court agrees were necessary to issuing this indefinite stay, Breyer concludes: “This case, in my view, does not satisfy a single one of these standards, let alone all of them. Consequently, I must  dissent.”

As to the merits, Breyer writes:

Certainly the parties themselves had more than adequate notice and opportunity to comment before the Rule was changed. On September 25, 2009, the trial judge, Chief Judge Vaughn Walker, discussed the possibility of broadcasting trial proceedings both within the courthouse and beyond, and asked for the parties’ views. . . . The court again raised the issue at a hearing on December 16. . . . Nor, in practice, did other members of the Judiciary lack information about the issue.

Viewed in light of this history, the Court satisfied the statute’s insistence that “notice” be “appropriate.”  Cf. 28 U. S. C. §§2071(b), (e). The parties, the judges, and the interested public were aware of the proposals to change Ninth Circuit policy that culminated in the “pilot program” well before the change in the local rules that enabled participation in the project.

Slip op., at 2-3.  Moreover, Justice Breyer was incredulous at the Court’s allegation that insufficient public comment was allowed: “[T]he entire public was invited by the District Court to submit comments after the rule change was announced, right up to the eve of trial.  As I said, the court received 138,574 comments during that time.  How much more “opportunity for comment” does the Court believe necessary . . . ?”  Slip op., at 4.

As to the alleged irreparable harm, Breyer writes of the potential harm to the trial: “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.”  Slip op., at 7.  As to the witnesses, he is no less understanding of the Court’s opinion.  He wrote:

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 close-circuit broadcast to another federal courthouse.

Slip op., at 7-8.

Turning the stay request on its head, Breyer finds, in fact, that “the scales tip heavily against” a stay preventing further broadcast to the other courthouses:

The competing equities consist of not only respondents’ interest in obtaining the courthouse-to-courthouse transmission that they desire, but also the public’s interest in observing trial proceedings to learn about this case and about how courts work.

Slip op., at 9.

Additionally, Breyer makes a very persuasive case that this is not even the type of matter that the Court traditionally hears, noting “For the past 80 years, local judicial administration has been left to the exclusive province of the Circuit Judicial Councils, and this Court lacks their institutional experience.”  Slip op., at 5.

Neither any of the other reasons given by Breyer nor that lack of experience, however, were enough today to persuade Justice Anthony Kennedy or his four other colleagues in the majority to allow the broadcast of the trial.

[UPDATE: Thanks to David Lat for his kind pairing of me with SCOTUSblog's Lyle Denniston in David's post noting the decision at Above the Law, as well as to other for the links from elsewhere -- including at Good As You.]

For my pre-decision thoughts, please see below the jump.

Pre-Decision Report

The Supreme Court’s stay of any outside streaming and broadcasting of the Perry v. Schwarzenegger Proposition 8 trial was lifted as of 4 p.m. today.  There has, thus far, been no further order reported to have come from the Court or posted on its site.

As such, Judge Vaughn Walker will be placed in an interesting position when the trial re-commences after lunch.  There is no pending order prohibiting him from allowing the streaming feed to be shown in other courthouses or from planning to post the trial on YouTube.

There is, however, an expectation from Supreme Court observers like SCOTUSblog’s Lyle Denniston that a ruling from the Court will be forthcoming.

[UPDATE: This puts the trial judge, Judge Walker, who made a determination about this matter prior to the start of trial, in a very difficult position.  He could begin to allow the streaming and the posting of the previous recordings on YouTube, as he is within his rights to do as things stand -- and get the Proposition 8 proponents calling him a "renegade judge" or some such thing.  Or, he can deferentially await word from the Supreme Court, as I would think a trial court judge would generally be inclined to do -- and be asking for the rage of the opponents of Proposition 8.  Either way, this is not a position of his choosing.]

I will update this post as we know more.

Here is the stay, issued Monday:

Upon consideration of the application for stay presented to Justice Kennedy and by him referred to the Court, it is ordered that the order of the United States District Court for the Northern District of California, case No. 3:09-cv-02292, permitting real-time streaming is stayed except as it permits streaming to other rooms within the confines of the courthouse in which the trial is to be held.  Any additional order permitting broadcast of the proceedings is also stayed pending further order of this Court.  To permit further consideration in this Court, this order will remain in effect until Wednesday, January 13, 2010, at 4 p.m. eastern time.

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About the Author

Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect,, Salon and other publications, as well as at his blog, Law Dork. He has appeared regularly on television commenting on current affairs, including MSNBC, PBS, HLN & Current. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found here, and you can follow him on Twitter.