The Supreme Court of the United States issued an opinion on Jan. 13, 2010, that blocked the broadcast of a high-profile federal court trial on the constitutionality of California's recently enacted ban on same-sex marriages.
In Hollingsworth v. Perry, 130 S. Ct. 705 (2010), the Court issued a 5-4 per curiam opinion ruling that a California district court had not properly amended its rules to allow for broadcast of the trial, and that because the dispute over the California ballot measure involves "issues subject to intense debate in our society," it was "not a good [case] for a pilot program," since it was unclear what the effects of cameras on such a high-profile case would be.
The trial in the case involved a lawsuit filed in the U.S. District Court for the Northern District of California challenging the validity of Proposition 8 (Prop 8), a California ballot measure passed in the November 2008 election that amended the California Constitution to only recognize marriages between a man and a woman.
The decision to broadcast the trial came after the Judicial Council of the 9th Circuit U.S. Court of Appeals announced on Dec. 17, 2009 that it had approved a pilot program "to experiment with broadcasting court proceedings on a trial basis." Previous 9th Circuit rules had banned any photographic, radio, or television coverage of district court proceedings. A December 17 press release from the 9th Circuit stated that cases would be selected for the program by the chief judge of the district court in consultation with the chief circuit judge.
On Dec. 21, 2010, a coalition of media companies requested permission from the Northern California district court to televise the then-upcoming Prop 8 trial. Two days after this request, the court posted a proposed amendment to Civil Local Rule 77-3 on its website. Rule 77-3 had previously banned the recording or broadcast of court proceedings in Northern California's federal courts, but the new rule created an exception to allow "for participation in a pilot or other project authorized by the Judicial Council of the Ninth Circuit." Comments on the proposed revision were to be submitted by Jan. 8, 2010.
On Jan. 4, 2010, the District Court revised its website to state that the new Rule was "effective December 22, 2009 . . . pursuant to the 'immediate need' provision" of 28 U.S.C. § 2071(e), which states that if a court "determines that there is an immediate need for a rule, such court may proceed under this section without public notice and opportunity for comment."
On Jan. 6, 2010, the district court held a hearing regarding the recording and broadcasting of the Prop 8 trial, and filed an order the next day requesting that 9th Circuit Chief Judge Alex Kozinski permit the trial to be broadcast live via streaming audio and video to federal courthouses around the country, which he did. Prop 8's proponents filed an application for a stay of the order with the Supreme Court on Jan. 9, 2010, arguing that the amendment to the local rules was made without sufficient opportunity for notice and comment, and that the public broadcast would violate their right to a fair trial.
"The question whether courtroom proceedings should be broadcast has prompted considerable national debate," the Supreme Court majority stated in Hollingsworth. "Reasonable minds differ on the proper resolution of that debate and on the restrictions, circumstances, and procedures under which such broadcasts should occur. We do not here express any views on the propriety of broadcasting court proceedings generally."
Instead, the Court stated, its review was solely to determine whether the district court's amendment of its local rules to broadcast this trial to other federal courthouses complied with federal law. "We conclude that it likely did not and that applicants have demonstrated that irreparable harm would likely result from the District Court's actions," the opinion stated. The Court granted the defendant's requested stay, prohibiting the broadcasting of the trial.
"Federal law . . . requires a district court to follow certain procedures to adopt or amend a local rule," the majority stated, citing authorities such as 28 U.S.C. § 2071 and Fed. R. Civ. P. 83(a). The Court then stated that the district court's amended version of Rule 77-3 was invalid because the court "failed to give appropriate public notice and an opportunity for comment," as required by 28 U.S.C. § 2071(b). The Court pointed out that federal administrative agencies provide a comment period of thirty days or more when making rule changes, and that the district court's disclosure period fell "far short of the appropriate public notice and an opportunity for comment."
The Court also stated that participation in the 9th Circuit's pilot program "does not qualify as an immediate need that justifies dispensing with the notice and comment procedures required by federal law," since "no party alleged that it would be imminently harmed if the trial were not broadcast."
The Court also agreed with the Prop 8 proponents' assertion that "irreparable harm will likely result" if the district court would have broadcast the trial. "The trial will involve various witnesses, including members of same-sex couples; academics, who apparently will discuss gender issues and gender equality, as well as family structures; and those who participated in the campaign leading to the adoption of Proposition 8," the majority opinion stated. "This Court has recognized that witness testimony may be chilled if broadcast.. . . Some of applicants' witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment.. . . There are qualitative differences between making public appearances regarding an issue and having one's testimony broadcast throughout the country."
"It is difficult to demonstrate or analyze whether a witness would have testified differently if his or her testimony had not been broadcast," the opinion continued. "While applicants have demonstrated the threat of harm they face if the trial is broadcast, respondents have not alleged any harm if the trial is not broadcast."
The Court also stated that broadcasting high-profile trials was particularly threatening to the rights of the parties involved, and even if it determined that the district court's rules had been appropriately revised, "questions would still remain about the District Court's decision to allow broadcasting of this particular trial." The Court noted that, even in districts where cameras are routinely allowed, "courts in those districts have allowed the broadcast of their proceedings on the basis that those cases were not high profile . . . or did not involve witnesses."
Justice Stephen Breyer wrote a dissenting opinion in the case, which was joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor.
"The Court today issues an order that will prevent the transmission of proceedings in a nonjury civil case of great public interest," Breyer wrote.
In his dissent, Breyer argued that the district court had provided adequate notice of the rule change, that the rule change involved "local rules and local judicial administration," and that by issuing a stay the Court "micromanages district court administrative procedures in the most detailed way."
"I recognize that the Court may see this matter not as one of promulgating and applying a local rule but, rather, as presenting the larger question of the place of cameras in the courtroom," Breyer wrote. "But the wisdom of a camera policy is primarily a matter for the proper administrative bodies to determine."
Breyer also argued that there was no evidence that "harm could arise in this nonjury civil case from the simple fact of transmission itself."
"Neither the applicants nor anyone else has been able to present empirical data sufficient to establish that the mere presence of the broadcast media inherently has an adverse effect on the judicial process," Breyer wrote, citing the Supreme Court case Chandler v. Florida, 449 U.S. 560 (1981), which allowed state courts to permit photographs and broadcasting of criminal trials.
Breyer also criticized the majority's arguments about the potential effect on witnesses in the trial.
"[T]he witnesses, although capable of doing so, have not asked this Court to set aside the District Court's order," Breyer wrote. "And that is not surprising. All of the witnesses supporting the applicants are already publicly identified with their cause. 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."
Breyer closed by arguing that "the public's interest in observing trial proceedings to learn about this case and about how courts work" was an important consideration not included in the majority's opinion. "With these considerations in the balance, the scales tip heavily against, not in favor, of issuing the stay."
Judge Vaughn Walker, who is presiding over the trial, had also been attempting to have the trial broadcast live on the Internet, but a Jan. 15, 2010 Associated Press (AP) story reported that he abandoned this effort after the release of the Supreme Court's decision. Walker said he did not want the issue of cameras to distract from the trial itself, the AP reported.
In a Feb. 2, 2010 story, the San Francisco Chronicle reported that two Los Angeles filmmakers were attempting to re-enact the trial for broadcast on YouTube with the help of transcripts, bloggers, and a volunteer corps of professional actors. "We want all Americans to have a chance to judge for themselves, based on the evidence that was presented," filmmaker John Ireland said, according to the Chronicle.
His filmmaking colleague, John Ainsworth, said the project was motivated in part by the Supreme Court's decision to prevent the trial's broadcast. "It frustrated me," Ainsworth said. "Who were they to say that I can't watch this, especially when it's in a public courtroom?"
- JACOB PARSLEY
SILHA FELLOW AND BULLETIN EDITOR