SCOTUS Scuttles Prop 8 Video Coverage; The History Behind The Denial

images5thumbnail1.thumbnail1As you may have heard (See here and here), the Supreme Court has entered a last minute stay to put a hold on the video feed of the seminal Prop 8 trial in the Norther District of California (NDCA) to select other Federal courthouses in the country as well as the delayed release of video clips of the proceedings via YouTube.

This is the full text of the order issued by the Supremes:

Upon consideration of the application for stay presented to Justice Kennedy and by him referred to the Court, it is ordered that the order of the United States District Court for the Northern District of California, case No. 3:09-cv-02292, permitting real-time streaming is stayed except as it permits streaming to other rooms within the confines of the courthouse in which the trial is to be held. Any additional order permitting broadcast of the proceedings is also stayed pending further order of this Court. To permit further consideration in this Court, this order will remain in effect until Wednesday, January 13, 2010, at 4 p.m. eastern time.

Justice Breyer, dissenting.

I agree with the Court that further consideration is warranted, and I am pleased that the stay is time limited. However, I would undertake that consideration without a temporary stay in place. This stay prohibits the transmission of proceedings to other federal courthouses. In my view, the Court’s standard for granting a stay is not met. See Conkright v. Frommert, 556 U. S. ___, ___ (2009) (slip op., at 1–2) (Ginsburg, J., in chambers). In particular, the papers filed, in my view, do not show a likelihood of “irreparable harm.” With respect, I dissent.

This is, to say the least, a disappointing ruling. It had been my guess that Anthony Kennedy would field the issue, which went directly to him as the hot judge for emergency matters from the 9th Circuit, and see it as a matter within the discretion of the 9 Circuit and let them make the call, which they had done in favor of video dissemination. For those not aware, this idea of video from the courtroom was not germinated from the Prop 8 trial, even though that has been the focal point. Instead, the pilot program was the brainchild of the 9th circuit Judicial Conference, as described in this LA Times article from late last year:

Federal courts in California and eight other Western states will allow video camera coverage of civil proceedings in an experiment aimed at increasing public understanding of the work of the courts, the chief judge of the U.S. 9th Circuit Court of Appeals said Thursday.

The decision by the court’s judicial council, headed by Chief Judge Alex Kozinski, is in response to recommendations made to the court two years ago and ends a 1996 ban on the taking of photographs or transmitting of radio or video broadcasts.

“We hope that being able to see and hear what transpires in the courtroom will lead to a better public understanding of our judicial processes and enhanced confidence in the rule of law,” Kozinski said. “The experiment is designed to help us find the right balance between the public’s right to access to the courts and the parties’ right to a fair and dignified proceeding.”

The first proceedings to be taped or photographed will be chosen by the chief judge of each of the 15 districts in the 9th Circuit region in consultation with Kozinski, the court announcement said, noting that only non-jury civil cases would be subject to the new rules.

The Prop 8 trial became the hot button topic on the pilot program simply because the Chief Judge of the NDCA is Vaughn Walker and he chose the non-jury Prop 8 trial as the first proceeding for his district. It is hard to imagine a more appropriate case to televise and allow access to than one involving fundamental human and constitutional rights, as well as one that is in the forefront of the socio-political/legal conversation in the United States.

It is similarly hard to imagine anyone would object to that trial being disseminated by video to a wider audience unless, of course, you are the Proposition 8 supporters and do not want the world to see the ugliness of both your soft and hard bigotry. And so that invasive and discriminatory group did just that and filed a Petition for Stay to the United States Supreme Court to halt the video Judge Walker had ordered. There were three response briefs submitted, by the plaintiffs in the lower court (Perry) challenging the constitutionality of Prop 8, a Supplement by Perry, and one filed by an interested Media Coalition.

I could spend a couple of thousand words explaining my thoughts on why the order permitting the restricted video coverage which had been entered by Judge Walker, and upheld by the 9th Circuit, is appropriate and why the Supreme Court erred in setting it aside, even if temporarily, but the words and argument of the attorney for the Media Coalition, Tom Burke, really say it all better than I could. Take a look at it, it is not long and is excellent.

It will be very interesting to see what the Supremes have to say at the end of the day Wednesday once they have had a chance to engage in “further consideration”. I think there is a chance for bifurcation in their treatment between the live video feed to other selected Federal courtrooms and the dissemination of “YouTube” clips to the internet. We shall see. In the meantime, I would like to focus for a minute on the almost certain basis for the reticence of the Supreme Court, and it is their own longstanding, and somewhat self centered, interest.

The issue of video cameras in Federal courtrooms has, at root, historically been framed in terms of the First Amendment right to free press and the transparency it portends versus the Sixth Amendment right to a fair trial. As the top court, the US supreme Court has consistently ruled against permitting video cameras in courtrooms, generally citing the Sixth Amendment. Except where they haven’t; for instance in state court cases that could not set a precedent which could eventually lead to cameras in – gasp – the US Supreme Court.

In the 1981 case of Chandler v. Florida, the Supreme Court stated (from the syllabus):

The Constitution does not prohibit a state from experimenting with a program such as is authorized by Florida’s Canon 3A(7).

This Court has no supervisory jurisdiction over state courts, and, in reviewing a state court judgment, is confined to evaluating it in relation to the Federal Constitution.

Estes v. Texas, supra, did not announce a constitutional rule that all photographic, radio, and television coverage of criminal trials is inherently a denial of due process. It does not stand as an absolute ban on state experimentation with an evolving technology, which, in terms of modes of mas communication, was in its relative infancy in 1964 when Estes was decided, and is, even now, in a state of continuing change.

An absolute constitutional ban on broadcast coverage of trials cannot be justified simply because there is a danger that, in some cases, conduct of the broadcasting process or prejudicial broadcast accounts of pretrial and trial events may impair the ability of jurors to decide the issue of guilt or innocence uninfluenced by extraneous matter. The appropriate safeguard against juror prejudice is the defendant’s right to demonstrate that the media’s coverage of his case — be it printed or broadcast compromised the ability of the particular jury that heard the case to adjudicate fairly.

Whatever may be the “mischievous potentialities [of broadcast coverage] for intruding upon the detached atmosphere which should always surround the judicial process,” Estes v. Texas, supra at 381 U. S. 587, at present no one has presented empirical data sufficient to establish that the mere presence of the broadcast media in the courtroom inherently has an adverse effect on that process under all circumstances. Here, appellants have offered nothing to demonstrate that their trial was subtly tainted by broadcast coverage — let alone that all broadcast trials would be so tainted. (page citations omitted)

See? Broadcast is not inherently bad, and it certainly does not violate the Constitution, by the Supreme Court’s own words. But they sure sing a different tune when the thought of video coverage gets closer to their own hallowed halls; thus they have consistently fought off allowing video in Federal courts, because once it permeates lower Federal courts, it will get to the Supreme Court. And the cloistered Supreme Justices simply do not want the scrutiny that such transparency would yield to their process.

Many attempts have been made over the years to get video coverage of Supreme Court sessions permitted, the most recent championed in the US Senate in 2007 by Arlen Specter and, believe it or not, John Cornyn (who had experience in the Texas Supreme Court and found the camera coverage quite acceptable). But none other than Justice Anthony Kennedy and Justice Clarene Thomas schlepped down to the Senate to implore Congress not to pass legislation sanctioning camera coverage of the Supreme Court. Justice Kennedy testified on March 8, 2007:

But I don’t think it’s in the best interest of our institution…Our dynamic works. The discussions that the justices have with the attorneys during oral arguments is a splendid dynamic. If you introduce cameras, it is human nature for me to suspect that one of my colleagues is saying something for a soundbite. Please don’t introduce that insidious dynamic into what is now a collegial court. Our court works…We teach, by having no cameras, that we are different. We are judged by what we write. WE are judged over a much longer term. We’re not judged by what we say. But, all in all, I think it would destroy a dynamic that is now really quite a splendid one and I don’t think we should take that chance.

Fine for thee, but not for me has long been the Supreme Court view. Justice Souter famously declared in Congressional testimony back in 1996 when an earlier move to televise Supreme Court proceedings was raised:

The day you see a camera come into our courtroom it’s going to roll over my dead body.

For a complete breakdown on the respective views of the Supreme Court bench on televised proceedings, see this summary page from CSPAN on Cameras In The Court. The reticence to permit cameras in the Court is palpable, even though several couch their views to give the appearance of being open minded. The salient point is that every time Congress renews the subject, emissary Justices are immediately dispatched to give committee testimony against permitting video coverage; there are never corresponding Justices sent in favor of camera coverage. To be fair, Breyer and Ginsberg expressed no opposition during their confirmation hearings; but never on the record at regular hearings.

The bottom line for the Prop 8 case is that once Anthony Kennedy decided to take it upon himself and the Supreme Court to remove the decision power from the applicable circuit and trial court, there was not going to be ready approval for Judge Walker’s plan under the 9th Circuit pilot program. If history is any guide, the decision come Wednesday will be consistent with the long history by the Supremes of protecting their turf from the transparency eyes of the video courtroom by forbidding encroachment even in lower courts. But it is a new day, maybe the Justices will lend a new vision and openness. Here’s hoping.

  1. Teddy Partridge says:

    Good point, bmaz: the best way for the Supremes to keep cameras out of their courtroom is to keep them out of all federal courtrooms.

  2. earlofhuntingdon says:

    Thanks for the background and links. “All for me, none for thee,” is becoming the slogan of government.

  3. freepatriot says:


    It is similarly hard to imagine anyone would object to that trial being disseminated by video to a wider audience unless, of course, you are the Proposition 8 supporters and do not want the world to see the ugliness of both your soft and hard bigotry.

    I object on the grounds that this supposition is based upon a lack of imagination, and discounts out of hand any objection that could reasonably be raised

    in this instance, the trial of OJ Simpson could be cited as an example of how cameras can infect a court, outside of the material facts of the case

    I can’t remember his name, but that judge turned into a blathering jackass the minute that trial was televised

    we don’t need prima donna judges preening in front of the cameras, so why adopt a policy that would turn otherwise competent judges into narcissistic asshats posing for the audiences

    in simple terms, do you really want lushbo limpballs and glen beck rating the judge’s performance each day, based upon superficial acting ability, instead of the law

    even if I fail to persuade you this is a bad idea, I hope I can persuade you that all objections are not based upon the poor legal case of the pro prop 8 people

    I don’t care what the evidence looks like for either side, I don’t think televising trials is a good idea

    • Peterr says:

      Your Honor, if I may counter that objection . . .

      Counsel stated “why adopt a policy that would turn otherwise competent judges into narcissistic asshats posing for the audiences”

      This presumes facts not in evidence. Counsel is assuming that Judge Ito was an otherwise competent judge pre-OJ.

      I would counter that cameras in the courtrooms do not create narcissistic asshats — they expose them for what they already are. If your honor wants to cut down on the asshattery in the judiciary, I suggest more, not fewer cameras.

      After seeing Judge Ito at work, and after watching night after night of Jay Leno, David Letterman, et al. with their jokes at Ito’s expense, I suggest that more than a few judges sat back and said “I never want to look like that kind of a judge.”

      • ThingsComeUndone says:

        Crisis reveals character and TV only broadcasts the facts Nice Counter argument no wonder the Supremes are scared though. Bush vs Gore would not have survived the laugh test:)

      • earlofhuntingdon says:

        Nice retort to the shouting capital letterist. As with politicians and preening stars, cameras expose what people are to a wider audience. Let ’em roll.

    • paiagirl says:

      The trial of OJ Simpson shows, rather, the effect of a weak judge who lost control of his courtroom.

  4. freepatriot says:

    and hey bmaz, did ya see The Daily show nterview with john yoo ???

    that guy is dumber than any Public Defender I ever saw

    I wouldn’t let him represent me

  5. skdadl says:

    Please forgive the OT: Miep Gies has died, just a month short of 101. She was a true heroine, the last survivor of the helpers who kept Anne Frank and seven others in hiding for over two years in the Achterhuis in Amsterdam during the Nazi occupation.

  6. Peterr says:

    I could spend a couple of thousand words explaining my thoughts on why the order permitting the restricted video coverage which had been entered by Judge Walker, and upheld by the 9th Circuit, is appropriate and why the Supreme Court erred in setting it aside, even if temporarily, but the words and argument of the attorney for the Media Coalition, Tom Burke, really say it all better than I could. Take a look at it, it is not long and is excellent.

    It certainly is.

    Non-lawyers especially ought to take a look at this — it is very readable.

    • demi says:

      I did look at that, and thanks to bmaz for the encouragement. Read this post before it was front paged, which almost never happens for me. Reading that is such a great lesson in linear thinking and argument. This whole trial is a civic lesson for me.
      I went to Pasadena yesterday morning because I wanted to see for myself, with my own lying eyes, how this case which certainly does appear to be headed to the Supremes at some point.
      Needless to say, I was disappointed when by the time I got there, the injunction to ban was in place.
      Thank goodness for Teddy Partridge, I say.

      • demi says:

        Oops, I ran out of time to edit my incomplete thought. Oh, well, you know what I was trying to say. I hope.

  7. slide says:

    I do not believe that honest judges would object to cameras in their courtrooms. It is the dishonest judges that would object because they do not want others to see the dumb fucking comments and decisions they make or their prejudices, of which many judges have.

  8. eCAHNomics says:

    It’s too bad the same sex marriage case is the test for cameras in the federal courtrooms. The 6 (I think that’s right) SCOTUS members who are R.C.s will certainly vote against it.

    • bmaz says:

      Maybe, but I am not totally convinced of that. If they apply the correct type of review scrutiny (strict scrutiny), which Vaughn Walker is laying a beautiful foundation for, and which the 9th Circuit has already indicated they feel is appropriate to discrimination based on sexual preference, it will be extremely difficult to rule as you say. The legal foundation for the right decision is being laid in a way never done before, and it is being done very meticulously; Supremes who vote in neanderthal ways based upon obvious prejudice and improper and discriminatory religious beliefs are going to look rather silly in the eye of history. Not wanting to look like the last jackass throwback supporters of slavery did is powerful motivation. There is a whole new game being set up here.

      • demi says:

        Yes! By legal foundation, do you mean the questions Walker interrupted the opening statements with? I’m looking forward to more today. Sweet!

      • eCAHNomics says:

        I was just referring to the SCOTUS decision to bar cameras, not the upcoming SCOTUS review of Walker’s decision. IANAL, so I can’t opine on that, but it does seem to me that the fundmental case for the plaintiffs is a pretty strong one, which would force the Supremes to jump thru hoops if they want to reverse a decision in the plaintiffs’ favor.

        • oldgold says:

          I am not sure taking this case to this Supreme Court is where wisdom lies.

          I suspect the only thing you are going to get out of this is bad precedent

          • bmaz says:

            So, how long should people keep their powder dry on basic human rights, equal protection and due process? When do you deem to be the “right time” for equal application of the Constitution?

            • oldgold says:

              I support your position.

              I agreed with Justice Cady’s opinion in the Iowa case.

              I just wonder from a tactical perspective if you want to take this case to this Supreme Court. If they deny the equal protection argument, and I predict they will, I am afraid it is going to establish some very bad precedent.

              • bmaz says:

                You know, I am not without the concern you have; by the same token, if the fight had been joined long ago, we might already be in a different position now. On the whole, when it is a fundamental discrimination such as here, it seems better to call it that and fight like hell win, lose or draw; as opposed to treating it as a political issue that can be delayed and taken up when the winds are right etc.

                I could be wrong I dunno; that is just my view for the little it is worth.

  9. Badwater says:

    How about just one camera focused tightly on Clarence Thomas’s face? He’s basically a statue anyway.

  10. demi says:

    Do any legal minds here know whether the protection of self incrimination that’s extended to spouses also extend to domestic partners?

  11. jacklint says:

    The Establishment is stonewalling.

    The People need to Stonewall the Establishment.

    Unfortunately it’s the only ‘language’ the Establishment understands.

  12. oldtree says:

    our supreme court. Wrong. It has not been our supreme court since Thurgood Marshall. It has been perverted to become the political dumping ground of agenda sponsored by non human entities that have now paid enough to have their will become the law of the land.
    Seems sad that all of our institutions have become rotten from the inside out. A cancer grows within the halls of power. It is infectious and it’s first symptom is the horrible smell. A smell that covers out entire land.

  13. Neil says:

    /s nark alert:

    Video coverage of trials in CA should be limited to alleged crimes by celebrities such as OJ Simpson’s alleged murder, Michael Jackson’s alleged diddling, and Lyle & Erik Menendez alleged patricide.

    It’s more important that CA serve up entertainment than information about the adjudication of the civil right issues of our day. To do so would signal clearly misplaced priorities.

    God forbid legal experts explain the role of the courts in insuring the rights of the individuals and the Constitutional basis of competing interests.

    Celebrity trials should be licensed to Court TV only since they have a way of making it all so entertaining. If we could have gotten two gay or lesbian celebrity plaintiffs to challenge Prop 8 that would be another matter and then there would be no reason to deny the public video coverage.

    The decision is disappointing but having Dayen and Wheeler there, and Bmaz here, is a plus for FDL.

    Will the NYT and other MSM outlets get some of their best material by reading Emptywheel’s liveblog as they did in the Scooter Libby/Dick Cheney’s Firewall trial? (Is it fair game for me to ask that question?) Every time Cheney criticizes the Obama on national security credibility three words come to mind, “Anatomy of Deceit”

  14. joeff says:

    These are the guys who stayed an election recount back in ought-ought. Staying a video stream is hardly a heavy lift.

    PS–only Breyer dissented this time.

    • bmaz says:

      Not necessarily, he is the only one who wrote a dissent on the in chambers stay order. This was not an usual decision process, it was a decision on an emergency stay application.