The Los Angeles Times says that the anticipated webcast of today's Proposition 8 trial has been delayed by the U.S. Supreme Court. The trial was to be webcast live to virtual overflow rooms in other courthouses, and later posted on YouTube.
"Any additional order permitting broadcast of the proceedings is also stayed pending further order of this court," the justices said. They added that the temporary order "will remain in effect until Wednesday, Jan. 13."
The high court did not explain its reasoning.
Only Justice Stephen G. Breyer, a San Francisco native, dissented. "In my view, the court's standard for granting a stay is not met" in this case, he wrote. "In particular, the papers filed, in my view, do not show a likelihood of 'irreparable harm.' "
Under the court's rules, lawyers can seek an emergency order only if they can show their clients will suffer "irreparable harm" if the justices fail to act. In this case, the defenders of Prop. 8 said their witnesses could be subjected to harassment and intimidation if they testified in favor of the ban on marriage for gay and lesbian couples.
It is surprising to see the U.S. Supreme Court make an extraordinary move against cameras, disagreeing with both the trial judge and the Court of Appeals, based on the speculative arguments posed.
It has long been argued that the presence of cameras in court will somehow taint the proceedings, even though the trial is a completely public proceeding in all other respects open to the public. [For a complete history of the controversy, review White Papers by Boies Schiller and by Jim Lyons].
However, the time for such speculation is long past. CVN has captured hundreds of civil trials, with no adverse impacts noted.
CVN's experience with cameras is exceptionally broad, involving over a hundred judges in 30 different states, and more than 1,000 attorneys, in all kinds of proceedings, including hearings, bench trials, and jury trials.
Plus, the nation's experience with courtroom cameras is not limited to CVN's activity. Florida allows cameras into virtually all courtroom proceedings, and recently celebrated the 30th anniversary of their successful experiment with public access to the judicial process. In fact, some states, including Kentucky and Arizona, have permanent cameras in their courtrooms.
Last year the First Circuit reversed a federal court order allowing cameras because, according to the Court, the local rule did not give the trial judge discretion to allow a webcast. However, the First Circuit conceded that there were good reasons to allow a webcast, and that "emerging technologies may eventually change the way" the public learns about information from court cases. A concurring opinion went even further, stating:
"Indeed, in my view, there are no sound policy reasons to prohibit the webcasting authorized by the district court. Therefore, this case calls into question the continued relevance and vitality of a rule that requires such a disagreeable outcome."
That is why it was so surprising to see extraordinary relief by the Supreme Court in an instance where there was no rule prohibiting cameras, and not even a jury to be potentially impacted.
Of course the Proposition 8 trial is high profile, and perhaps some witnesses are uncomfortable stating their views in a public forum. However, federal courts are exceptionally public forums. Cameras do not create the public nature of the event, nor will their absence prevent detailed reporting of who said what and when.
Indeed, the absence of cameras will not make this public event even slightly private. But suppose it be true that some witnesses who were otherwise comfortable testifying in a high-profile federal trial would prefer that cameras not be present; it is not at all clear why that preference should outweigh the public's interest in having access to its own judicial process.
The argument seems to come down to just that, because the real-world experience with cameras in court has provided voluminous evidence quite in conflict with the speculation that the judicial process suffers "irreparable harm" from exposure to light.