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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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