|January 20, 2010|
Previously published on January 13, 2010
On January 13, a 5-4 majority of the Supreme Court issued a per curiam stay in Hollingsworth v. Perry, No. 09A-648, preventing a trial judge in the Northern District of California from streaming audio and video to a number of federal courthouses around the country. The civil bench trial involved the constitutional challenge to California's Proposition 8 that amended the state constitution to provide that "[o]nly marriage between a man and a woman is valid or recognized in California."
The majority concluded that the lower courts had not allowed sufficient notice and comment periods before changing court rules to allow broadcasting. The Court considered other aspects of the proceedings, such as provisions allowing the trial to be recorded and broadcast on the Internet, premature and did not address them. The Court stated that it was not "expressing any view on whether [federal] trials should be broadcast." Nevertheless, it also asserted that "no party alleged that it would be imminently harmed if the trial were not broadcast," but that "irreparable harm will likely result from the denial of the stay" because it would be "difficult -- if not impossible -- to reverse the harm from those broadcasts" in the form of possible chill on witness testimony and possible harassment of witnesses in "high-profile, divisive cases." The Court compared the "arbitrary" change of court rules in the California situation to Congress' statutory authorization of closed-circuit broadcasting of trials in the wake of the Oklahoma City bombing case. Because that bombing trial had been transferred to the District of Colorado, the families of the victims would not have had the opportunity to observe the trial, so Congress passed a statute with "careful guidelines and standards" for transmissions when venue was changed to a city out of the State and more than 350 miles from the location where trial originally would have occurred.
The dissenters contended that the parties themselves had had months of notice and opportunity to comment before the court rules were changed to permit transmission of audio and video outside the courtroom, and that both lawyers and judges at the 2007 Ninth Circuit Judicial Conference had approved by a "resounding margin" rule changes to favor the use of cameras in district court civil nonjury proceedings. The rule changes at issue were part of a Ninth Circuit pilot project for such coverage, with this case in particular the subject of widespread and intense public interest. The district court had received 138,574 public comments over the course of about four months. The dissenters also asserted that the Court was "micromanag[ing] district court proceedings and that there was "no evidence that [irreparable] harm could arise in this nonjury civil case from the simple fact of transmission itself." They noted that no witness had asked the Court to set aside the district court's transmission order, that all of the applicants' witnesses were already publicly identified with their cause (opposing gay marriage) in ways "far more likely to make them well known than a closed-circuit broadcast to another federal courthouse," that hundreds of national and international media organizations were reporting in detail the names and testimony of all witnesses, and that the district court could control the proceedings to prevent any harm to any particular witness if the transmission threatened such harm. Finally, the dissenters invoked "competing equities consist[ing] of not only respondents' interests in obtaining the courthouse-to-courthouse transmission that they desire, but also the public's interest in observing trial proceedings to learn about this case and how courts work." In a rebuke to the majority's insistence that courts must "enforce the requirement of procedural regularity," the dissenters concluded: "this Court should adhere to its institutional competence, its historical practice, and its governing precedent -- all of which counsel strongly against the issuance of this stay."
The unsigned per curiam opinion of the Court was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito. Justice Breyer filed the dissenting opinion, joined by Justices Stevens, Ginsburg and Sotomayor.