Federal Judges, Gay Marriage, Technology, Trials, Videos

Cameras in the Prop 8 Courtroom: Why Not?

gay marriage skadden.jpgA disclaimer: we’re not sure how we feel about Perry v. Schwarzenegger, the federal constitutional challenge brought by superlawyers Ted Olson and David Boies to Proposition 8, California’s voter-approved ban on same-sex marriage. We are somewhat sympathetic to Jonathan Adler’s position: gay marriage makes perfect sense as a policy matter, but the constitutional case is less clear. (We suspect that Elie may be more supportive of the Perry litigation and its ultimate objective; see here.)

We do know, however, how we feel about cameras in the courtroom: we are strongly in favor of them. For more, see our Washington Post piece. The right to an open and public trial is guaranteed by the Constitution, and understanding what’s going on in our courts is a crucial part of democratic self-governance.

The standard for closing a courtroom to the public is very high, and justifiably so. We the People should be allowed to know — and to hear, and to see — what is transpiring within our courts. After all, these are our laws being interpreted, our rights being adjudicated, and our taxpayer dollars at work.

And in this age of videoconferencing, YouTube, blogging, and Twitter, the distinction between physical and virtual attendance of court proceedings is becoming increasingly artificial. If we can read reporter Dan Levine’s real-time tweets about the Prop 8 trial, or if we can read blog posts published during breaks about what just transpired in open court, why shouldn’t we be able to watch the proceedings ourselves, in livestreaming video? Or, if we can’t watch real-time video, why can’t we watch video posted online after the fact?

This is why we are so disappointed in the Supreme Court’s decision to kill, at least for now, efforts to broadcast the Prop 8 trial. This is why we strongly support the efforts of Chief Judge Vaughn Walker (N.D. Cal.), who is presiding over the trial, and Chief Judge Alex Kozinski (9th Cir.), who is spearheading a Ninth Circuit pilot project providing for cameras in the courtroom, to offer some wider broadcast of the proceedings (whether on YouTube, an official court website, or even just to federal courthouses outside San Francisco).
More discussion, plus a READER POLL, after the jump.

With respect to broadcasting the Proposition 8 proceedings, Chief Judge Kozinski has been fighting the good fight. His battle with the powers that be over at the Judicial Conference, who seem to be stuck in the last century, has been covered by Legal Pad, the WSJ Law Blog, and the ABA Journal, among other outlets.
One of the more comprehensive write-ups appears on SCOTUSblog. Lyle Denniston explains:

A polite but no less pointed controversy has broken out over control of televised broadcasts of proceedings in federal civil courts, as part of the dispute over public viewing of the San Francisco trial on California’s ban on same-sex marriage. The controversy was laid before the Supreme Court Monday night and Tuesday morning, in new filings as the Justices weigh whether to step in further to allow or forbid such broadcasts.

The federal District Court judge conducting the Prop. 8 trial without a jury has planned to allow somewhat delayed TV coverage and, at one point, was going to permit viewing on the Internet through a YouTube site. The YouTube webcast idea apparently has now been abandoned by District Judge Vaughn R. Walker; the current plan seems to be to provide a viewing link on the District Court’s own website. The trial opened Monday morning, but shortly before that, the Supreme Court temporarily blocked any broadcast outside the San Francisco courthouse, while the Justices consider the question further. As of now, the Supreme Court’s bar to TV expires at 4 p.m. Wednesday.

We suspect that the Court will keep the broadcast ban in place. Justice Breyer was the only justice to dissent from the Court’s order barring broadcast “except as it permits streaming to other rooms within the confines of the courthouse in which the trial is to be held.” (And he did so on the somewhat technical ground that, in his view, the standard for granting a stay was not met.)

The locational limitation in the Court’s order — broadcast permitted only to other rooms within the same courthouse, not to other federal courthouses, and not online — seems so arbitrary. Why should the right to watch public proceedings in a United States courtroom be enjoyed only by those who have the time and the money to go out to San Francisco? In light of current technology, it’s no answer to say “because there’s no alternative.”

Back to SCOTUSblog:

Last Friday, before the Supreme Court had been drawn into the controversy, representatives of the U.S. Judicial Conference — the policymaking arm of the federal courts — wrote to Ninth Circuit Chief Judge Alex Kozinski, reminding him that the Conference has a policy against any “public dissemination” of TV or other broadcasts of civil or criminal trials in federal court. The letter is here. The chair of the Judicial Conference Executive Committee, Third Circuit Judge Anthony J. Sirica, and Conference Secretary James C. Duff urged Kozinski “to consider the Judicial Conference policy” as he weighed the broadcast plan.

That prompted a lengthy response from Judge Kozinski, dated Sunday, arguing that the issue of broadcasting from trial courts “rests exclusively with the Judicial Council of each circuit, consistent with the statutory governance structure of the courts.” The letter then quoted from a 9th Circuit Court decision in 1986: “Except for judicial disciplinary proceedings, the Judicial Conference does not have binding or adjudicatory authority over the courts.”

Read the letter, from Jim Duff, and then the response, from Chief Judge Kozinski. Judge for yourself, but it seems to us that His Honor has the better of the argument.
Some highlights from the Kozinski letter:

  • A study of electronic media coverage of federal civil proceedings, conducted by the Federal Judicial Center, showed “small or no effects of camera presence on participants in the proceedings, courtroom decorum, or the administration of justice.”

  • Since 1996, when the Ninth Circuit adopted a resolution allowing the recording and broadcast of its appellate arguments, “hundreds of appellate arguments have been recorded and broadcast without incident.”
  • “Technology has changed the way trials are conducted and reported. The public, too, demands greater transparency from its public institutions today than it did in 1996.”
  • “All states allow media broadcast of court proceedings in some form. Some states have even imposed great restrictions on state trial judges’ discretion to limit broadcasting.”

Chief Judge Kozinski goes into some detail about the Ninth Circuit’s “carefully-controlled pilot program to experiment with the use of video in non-jury civil cases,” like the Prop 8 case. He discusses the limited scope of the program and the safeguards in place. Near the conclusion of the letter, he writes:

We hope and trust that other federal circuits and the Judicial Conference will take advantage of our experience when they reconsider the matter, as we believe they must. Like it or not, we are now well into the Twenty-First Century, and it is up to those of us who lead the federal judiciary to adopt the policies that are consistent with the spirit of the times and the advantages afforded us by new technology. If we do not, Congress will do it for us.

A critic of the Ninth Circuit might joke, “Since when does the Ninth Circuit care about the views of Congress?” In this case, however, we suspect that Chief Judge Kozinski has it right. Members of Congress, a body whose proceedings can be readily viewed on C-SPAN, have repeatedly asked both sitting justices and SCOTUS nominees why the Supreme Court doesn’t televise its hearings.

The case for cameras is made succinctly by Erin Geiger Smith of Business Insider:

Courts are supposed to be public, and it’s difficult to think why that means only public if you have the time to go to the court and sit there. It is the most basic argument and one that is difficult to get around. The technology exists that allows us to watch a trial, we should be able to.

And if it turns into a disaster, we can go back. Is this a simple argument? Yes. At the most basic level, is it a simple question? Yes.

The main objection to broadcasting seems to be that it might result in the harassment of some pro-Proposition 8 witnesses or lawyers. This concern has been raised by a number of brilliant individuals with whom we usually agree, such as former Attorney General Ed Meese, in the New York Times, and fellow blogger (and former Scalia clerk) Edward Whelan, in National Review Online.

On this issue, though, we must respectfully dissent. We think Erin Smith gets it right:

[T]he arguments against the cameras have mainly been that those testifying in favor of the gay marriage ban could be subject to harassment. But these concerns are not so strong that any serious consideration was given to actually closing the courtroom or concealing the identify of the witnesses. Reporters were there yesterday, and all names of witnesses are in all the major papers.

The argument is, basically, one against the size of the audience. While that may be emotionally compelling, it isn’t legally compelling.

Two additional points on this harassment issue. First, harassment is a two-way street. Why does everyone think that all the harassment will be coming from pro-gay-marriage individuals? Conservatives as well as liberals have used publicly available information to harass, threaten, or discomfit their adversaries. E.g., anti-abortion groups who created a website with the names and addresses of abortion providers; Hal Turner, the pro-gun-rights blogger, who posted the names and addresses of Seventh Circuit judges who upheld a Chicago handgun ban.

Second, and perhaps more to the point: If harassment occurs, why not just punish it then? Telephone books and the internet make it easier to harass people, but we don’t ban them for that reason. Information itself is neither “good” nor “evil”; it’s how people act upon information that has a moral or legal valence.

Okay, we’ve given you our two cents. Readers, what do you think?

Court TV and judicial powers [SCOTUSblog]
While We Tweeted Prop 8, Kozinski Argued for Courtroom Cameras [Legal Pad via ABA Journal]
Judge Kozinski Unrelenting On ‘Cameras in the Court’ Issue [WSJ Law Blog]
Are Cameras In The Courtroom A Good Idea? [Business Insider]
Judge Walker’s Gambit to Bamboozle the Supreme Court [Bench Memos / National Review Online]
Stacking the Deck Against Proposition 8 [New York Times]
Ted Olson’s Case for Gay Marriage [Volokh Conspiracy]
Educational? You Be the Judge. [Washington Post]

Earlier: Prop 8 Blackout

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