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Editorial: SCOTUS order in Proposition 8 trial chills

Editorial Indiana Lawyer
January 20, 2010
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Indiana Lawyer Editorial


It sounded too good be true, so we weren't surprised when we found out it was not to be.

We were intrigued and excited at the prospect of actually witnessing the Proposition 8 trial, Kristin M. Perry v. Arnold Schwarzenegger, even on a time-delayed, YouTube basis. Some of us on staff are familiar with the entertainment Web site, youtube.com, while others of us admit to only watching an occasional and quite silly video at the insistence of one of our children. The prospect of witnessing something of historic importance on this Web site had us and countless others who wanted a chance to see the trial full of hope.

It appears the YouTube broadcasting was dropped in favor of trying to preserve the ability to stream video of the trial to other federal courthouses.

But then the United States Supreme Court intervened. In the end, the plan to stream video of the trial regarding the same-sex marriage prohibition to several courthouses across the nation was limited to streaming trial footage to other rooms in the federal courthouse where the trial is taking place in the Northern District of California.

The somewhat snarky yet entirely civil language in letters and decisions back and forth among the jurists involved in this decision has made for some compelling reading.

First there is the Jan. 8 letter from the secretary of the Judicial Conference of the United States to Judge Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit. The letter asks Judge Kozinski to consider the conference's policy, "which does not allow courtroom proceedings in civil and criminal trials in district courts to be broadcast, televised, recorded, or photographed for the purpose of public dissemination."

Judge Kozinski quite cordially replied two days later, one day before the trial was scheduled to begin, that there is in fact no such policy in place, as it is up to the judicial council of each circuit to make such decisions. The judge said the court has responded to public demands for "transparency from its public institutions" by making "digital audio recordings of each appellate argument available to the public" on its Web site. He also says that a "substantial" number of arguments are video recorded and broadcast.

The judge then outlined the decisionmaking process that went into what he called the "pilot program" to experiment with the use of video in non-jury civil cases. Perry v. Schwarzenegger is one of these.

Near the end of the letter is the real zinger. The judge wrote: "Like it or not, we are now well into the Twenty-First Century, and it is up to those of us who lead the federal judiciary to adopt policies that are consistent with the spirit of the times and the advantages afforded us by new technology. If we do not, Congress will do it for us."

In an unsigned 5-4 decision Jan. 13, the United States Supreme Court granted the stay of the decision to make video of the case available to the public, in essence pulling the plug on the cameras. The majority found that District Court failed to follow the rules for amending its court rules. The majority is concerned with the witnesses who support Proposition 8 and fears for their safety if the trial were permitted to be broadcast to the public.

The dissent, written by Justice Stephen Breyer and joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor, says that there was ample consideration of the court's intention to make the trial available to the public via cameras in the courtroom. He accuses the majority of micromanaging the lower court.

Justice Breyer also doesn't buy the argument that those who would testify about their support of Proposition 8 have reason to fear for their safety. "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," he wrote.

The majority made much of the potential for the testimony from the witnesses in support of Proposition 8 to be "chilled if broadcast." That led us to think about the kinds of hate-filled and venominspired comments about the news of the day that appears on some blogs and newspaper Web sites. We believe less anonymity in those kinds of instances would do a lot to chill this offensive kind of speech; few things clean up a person's words quite like the necessity of attaching your own name to them. We believe the same could be true for courtrooms via cameras.

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  1. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

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