Litigation

Supreme Court: ?Judging Procedure,? not Trial Broadcasting

By Peter Hardin

In barring the broadcasting of a nationally watched trial over a challenge to California’s gay marriage ban, a 5-4 Supreme Court majority wrote that it was not judging cameras in the courtroom but rather was narrowly addressing lower courts’ procedure in trying to change the rules.

The 17-page majority opinion faulted, according to an article in the New York Times,  U.S. District Judge Vaughn R. Walker’s permitting only five business days for public comment on rule changes proposed to allow broadcasting of the trial, which opened this week. It is important for courts to follow proper procedure, the majority wrote at the outset:

“We are asked to stay the broadcast of a federal trial.  We resolve that question without expressing any view on whether such trials should be broadcast.  We instead determine that the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves.”

The unsigned majority opinion also concluded that the District Court judge “likely did not” comply with federal law in changing the rules. It said defenders of a ban on gay marriage, which was approved by voters as Proposition 8, had showed they would likely face “irreparable harm” if the trial was broadcast publicly, the Los Angeles Times reported.

There are numerous ways that supporters of traditional marriage might suffer harassment if their trial testimony was broadcast publicly, the high court said in listing possible threats.

The decision tracked the high court’s ideological split, with the dissent issued by the high court’s more liberal justices. The dissenters wrote that in September, Judge Walker invited parties to the case to comment on broadcasting the proceedings, and he had gotten more than 138,000 public comments as a result. “How much more ‘opportunity for comment’ does the court believe necessary?” Justice Steven G. Breyer wrote for the dissenters.

The opinion specifically blocked broadcast of the Proposition 8 trial to other federal courthouses in the country. It did not discuss Judge Walker’s interest in posting video of the trial to YouTube or to the District Court’s own Web site. Judge Alex Kozinski, chief judge of the Ninth Circuit Court of Appeals, had not approved those proposals by Judge Walker.

Conservative commentator Ed Whelan, who early on raised questions about the lower courts’ procedures for changing the broadcast rules, welcomed the Supreme Court opinion in a National Review commentary. He wrote that it “derails Judge Walker?s plan to turn the case into a high-profile, culture-transforming, history-making, Scopes-style show trial of the sponsors of Proposition 8.”

Rick Jacobs, chairman of the Courage Campaign in Los Angeles, said, “The Supreme Court just struck a huge blow against transparency and accountability.” He added, “The five conservative justices are enabling Prop. 8 supporters to mask their radical views. This historic trial will remain largely hidden from public view.”

You can read earlier stories about the issue in Gavel Grab.

Full post as published by The Gavel on January 14, 2010 (boomark / email).