By a 5-4 vote, the Supreme Court on Wednesday stayed or halted plans to transmit the video and audio of the high-profile federal trial on California's ban on same-sex marriage to other courthouses around the country.
The ruling (pdf) effectively means that the San Francisco trial, which began on Monday, is likely to end before any further consideration of the courthouse dissemination plan -- or any wider broadcast by posting the trial video on the Internet -- can take place. The ruling extends a temporary stay it granted on Monday just an hour before the trial began.
U.S. District Judge Vaughn Walker, who is presiding over the trial on the validity of Proposition 8, which banned same-sex marriage in California in 2008, had planned to post the video on the court's Web site and on YouTube. In recent days the plan was seemingly scaled back to allow only for broadcast to courthouses in San Francisco, Pasadena, Seattle, Portland, Ore., and Brooklyn, N.Y., to accommodate wide public interest in the trial. Chief Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals, who in December launched a pilot program to experiment with broadcast access -- a program that enabled Walker to proceed with his plans -- said that because of technical issues, the broader plan for posting the trial proceedings on the Internet was not "ripe for approval."
The Supreme Court said that it was not ruling on the Internet broadcast plan, "as it may be premature." The stay on any broadcasting will remain in place, the high court said, until a petition for mandamus or certiorari is filed by those who applied for the stay.
The unsigned Supreme Court opinion is a rebuke to the U.S. District Court for the Northern District of California and, by implication, Walker, for the court's hasty change of local rules in the weeks before the trial began to allow for the broadcast. The process probably violated the law on how rules changes must be considered and promulgated, the Court said. By launching the plan without considered rules and guidelines, the Court said, the district court "could compromise the orderly, decorous, rational traditions that courts rely upon to ensure the integrity of their own judgments."
The decision does not speak broadly about the issue of camera access to federal trials, stating that "reasonable minds differ on the proper resolution of that debate and on the restrictions, circumstances and procedures" that should govern any court broadcasts.
But the high court did accept the controversial claim by opponents of broadcasting the California trial that "irreparable harm" would result from wide broadcast of the trial, because of possible witness harassment and intimidation. Proponents of Proposition 8, who opposed the telecast, based their request for a stay on the potential harm to witnesses who they say have already been threatened for publicly opposing gay marriage. "It would be difficult -- if not impossible -- to reverse the harm from the broadcasts," the Court wrote.
The Court noted that in 1996, the last time the Judicial Conference addressed the issue of cameras in the federal courts, it concluded that potential intimidation of witnesses and jurors was "cause for concern." While the conference's policy against broadcast of trials is not binding on the lower courts, the Supreme Court said, it was at least entitled to "respectful consideration" before the district court changed its rules.
Because of these observations among others in the Court's ruling, it would be hard to interpret it as anything other than a setback for advocates of broadcast access to federal courts -- except for the fact that four justices dissented.
Justice Stephen Breyer dissented, joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor. Breyer wrote that the district court had given ample notice of its proposed rules, and received more than 130,000 comments in recent weeks favoring the plan to televise the trial. Breyer said it was "inappropriate as well as unnecessary" to interfere with local judicial administration. He also dismissed the Court's claim of irreparable harm to witnesses, noting that 42 states and two federal trial courts have allowed broadcast of trials without empirical evidence of substantial harm.
"The public interest weighs in favor of providing access to the courts," wrote Breyer, asserting that the public is interested in "observing trial proceedings to learn about this case and about how courts work."
This article first appeared on The BLT: The Blog of Legal Times.