OPEN COURTS -- By a 5-4 vote, the Supreme Court today made permanent its Monday order banning video coverage of the federal court Proposition 8 trial in San Francisco, ruling
that the defenders of the ban on same-sex marriage would likely face
"irreparable harm" if a video of the proceedings were made available for viewing in linked federal courtrooms around the nation.


As reported by Warren Richey in the Christian Science Monitor,

The case has generated enormous interest among both supporters and
opponents of gay marriage. At issue in the two-week trial is whether
California’s Proposition 8 ballot initiative banning gay marriage
violates US constitutional protections of due process and equal
protection. The case, legal analysts say, could work its way through
the appeals process to the Supreme Court itself.

Wednesday’s
ruling did not address the merits of that dispute. Instead, it focused
on whether the trial court acted properly in adopting a new policy
allowing remote broadcasts and potentially broadcasts of the trial on
the Internet.

“The District Court here attempted to revise its
rules in haste, contrary to federal statutes and the policy of the
Judicial Conference of the United States. It did so to allow the
broadcasting of this high-profile trial without any considered
standards or guidelines in place,” the court majority wrote in an
unsigned opinion.

The trial judge, the Supreme Court justices
said, attempted at the 11th hour to change the federal rules that
restrict broadcasts of trials. The effort meant that he was treating
the Prop. 8 trial differently from other trials in the same courthouse,
said the justices.

“If courts are to require that others follow regular procedures, courts must do so as well,” the majority justices said.

Although
the decision was unsigned, it was supported by Chief Justice John
Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas,
and Samuel Alito.

Justice Stephen Breyer wrote a dissent, suggesting he would have allowed the trial judge to proceed with his plan.

“This
legal question is not the kind of legal question that this court would
normally ... consider,” Justice Breyer wrote. “There is no conflict
among the state or federal courts regarding the procedures by which a
district court changes its local rules.

”According to Breyer, 42
states and two federal district courts currently give judges the
discretion to allow the broadcast of civil nonjury trials like the
Prop. 8 trial.

Breyer’s dissent was joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor.

The
broadcast issue arose in recent weeks after Chief US District Judge
Vaughn Walker announced a policy change permitting remote broadcasts of
the Prop. 8 trial.

Under Judge Walker’s proposal, those
interested in watching the trial could view a real-time broadcast
relayed to courtrooms in Pasadena, Calif.; Seattle; Portland, Ore.;
Brooklyn, N,Y.; and San Francisco. In addition, there were possible
plans to broadcast on YouTube.

Those challenging the
constitutionality of Prop. 8 favored the remote broadcasts. But some of
the supporters of the gay-marriage ban opposed broadcasting the trial,
expressing concern that it might exacerbate harassment and threats
they’d received because of their position.

The Supreme Court’s
majority opinion notes that some individuals had received death
threats, envelopes containing a powdery white substance,
confrontational phone calls, threatened boycotts, and vandalism. Some
witnesses said they would not testify if the trial were broadcast, the
justices noted.

In contrast, the majority said, the other side in the Prop. 8 lawsuit had not alleged any harm if the trial were not broadcast.

Breyer
countered in his dissent: “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.”

He added, “Literally hundreds of
national and international newspapers are already covering this trial
and reporting in detail the names and testimony of all of the
witnesses.”

The majority's play-by-the-rules piety ignores two points.  One, the federal courts have had about six decades to experiment and pilot various arrangements for letting the public view judicial proceedings on their television screens, and for all their progress—or even interest in progressing—you would think the 1935 Lindbergh kidnapping trial was only last week.

Two, the rules are not as binding on the lower federal courts as the majority would have the public believe.  Senior Ninth Circuit Judge Alex Kozinski was scolded in recent days by the Judicial Conference for tolerating Judge Walker's order, but gave as good as he got.