ILNews

Editorial: SCOTUS order in Proposition 8 trial chills

Editorial Indiana Lawyer
January 20, 2010
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

ADVERTISEMENT