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Focusing only on the underlying merits, there are two very different sorts of grounds for not making judicial proceedings available live (or delayed) over the internet, on tv, or via other means.

First, there is the general worry that in every case, the presence of cameras broadcasting to the world will change the nature of the proceedings. In seeking the stay, the sponsors of Prop 8 cited the fear of creating a "media circus," a not very precise or helpful term.  You say media circus; I say freedom of the press.  The worry is not that the press will behave badly and somehow disrupt the courtroom.  Rather the worry is that lawyers, witnesses and perhaps even judges will ham it up or otherwise "perform" in a way that they would not in cases not going out to a worldwide viewing public.

Although Supreme Court Justices have credited these sorts of worries--especially with respect to their own proceedings--I find the claim unpersuasive.  The Richmond Newspapers case finds a First Amendment right of public and press access to criminal trials, absent a compelling need to close them, and its logic would seem to apply at least as strongly to civil cases.  To limit access to pre-1930s technology should require a strong justification.  The "hamming" worry is hard to assess.  Once cameras and thus web or tv access become routinely part of the trial process, one might expect trial participants simply to forget about them.  At the very least, that's what various experiments--including in the Prop 8 case itself--aim to find out.

The second argument--for closing this particular trial to tv/internet broadcast--rests on a claim that the sponsors of Prop 8 will be subject to reprisals, intimidation, etc.  But of course the substance of everything that would be viewable via the internet will be accessible to any interested members of the public even without cameras.  Although I have previously expressed sympathy for the claim that signers of a petition like Prop 8 ought to be able to maintain their anonymity, sponsors are in a very different category.  To borrow from the Supreme Court's First Amendment doctrine governing defamation, the sponsors have thrust themselves into public controversy.  Absent specific credible threats of the sort that would justify actually closing the trial entirely, I don't see the case for keeping the cameras out.

The real worry, in the end, is probably just the opposite.  So much of what happens in court--even in high-profile cases--is boring, incomprehensible to the lay public, or both.  Maybe the Justices want to keep the cameras away to avoid losing the ratings contest to reruns of Law & Order.

In a controversial case such as this one, no doubt the unpopular speaker is a nervous one. But I'm skeptical that witnesses already committed to testifying will suddenly shy away because of the prospect of video dissemination.  Do they not realize that, without a single camera, the San Jose Mercury News is reporting live accounts that include the names of those taking the stand? That special interest groups will be Twittering their testimony as they speak?  That there are already websites identifying Prop 8 supporters and where they live?  Banning a broadcast, I believe, will not change this.  But to allow a broadcast, I'm certain, will further enlighten the debate over same-sex marriage, if not provide insight into our judicial system altogether.

But to help do that, the speaker, regardless of whether they are preaching in a town common or testifying in a trial, should be heard and, in this case, seen. When the petitioners argue that broadcasting the trial would "vastly increase the likelihood" that trial participants would face retaliation, the Supreme Court should acknowledge that this is an unfortunate price for press freedom, and the reason our police officers suit up each day.

Cameras in the courtroom present a difficult conundrum -- you do not want to do anything that turns the trial into a circus (see: O.J. trial) or that makes witnesses so uncomfortable they are unlikely to be open. 

Clearly cameras should not be allowed in every case -- minors or rape victims should rightly not appear on camera, but as long as judges have discretion (and they do under the 9th Circuit's plan), we should trust them to use it appropriately. 

Courts are supposed to be public, and it's difficult to think why that means only public if you have the time to go to the court and sit there. It is the most basic argument and one that is difficult to get around. The technology exists that allows us to watch a trial, we should be able to. 

And if it turns into a disaster, we can go back. Is this a simple argument? Yes. At the most basic level, is it a simple question? Yes.

In the Prop 8 case, the arguments against the cameras have mainly been that those testifying in favor of the gay marriage ban could be subject to harassment. But these concerns are not so strong that any serious consideration was given to actually closing the courtroom or concealing the identify of the witnesses. Reporters were there yesterday, and all names of witnesses are in all the major papers. The argument is, basically, one against the size of the audience. 

While that may be emotionally compelling, it isn't legally compelling.

Love gay marriage or hate it, love Boies and Olson or hate them, we all want to watch. Fire up YouTube, and let's see what happens.

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