Bench Trial Broadcast On YouTube In Case Challenging California Proposition 8

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Under the recently-announced Judicial Council of the Ninth Circuit pilot program for the “video recordings in civil non-jury matters only,” permission is granted to allow “audio-video recording and transmission” of a hearing in the Proposition 8 challenge case in the Northern District of California; subsequently the District Court approved

We recently noted the issue of cameras in the federal courtroom based on recent developments. In particular, on December 16, 2009, the Judicial Council of the Ninth Circuit had unanimously approved experimental “dissemination of video recordings in civil non-jury matters only.” See Ninth Circuit Judicial Council Approves Experimental Use of Cameras in District Courts; see also Recent Action In Two Circuits Highlights Issue Of Cameras In The Federal Courtroom.

This week approval under the pilot program was granted in the case involving the constitutional challenge to California Proposition 8, which overturned a state supreme court decision recognizing same-sex marriage by amending the California Constitution to declare that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const. art. I, § 7.5. See Complaint in Perry v. Schwarzenegger, No. 3:09-cv-02292-VRW (NDCA); Plaintiff’s Trial Brief; Defendant’s Trial Memorandum. The bench trial is set to begin on January 11, 2010.

On this issue, several events have transpired the past few weeks:

  • On December 21, 2009, media groups requested permission to broadcast and webcast the trial proceedings. See Media Coalition Request (Dec. 21, 2009). The defendants opposed the request, questioning the authority of the court is permit a broadcast and raising fair trial and harassment concerns. See Defendants’ Letter Objections to Televised Proceedings (Dec. 28, 2009); Defendants’ Supplemental Letter (Dec. 29, 2009).
  • The plaintiffs supported televised proceedings and considered the “case [as] an ideal candidate for the pilot camera project authorized by the Judicial Council of the Ninth Circuit.” See Plaintiffs’ Reply Letter (Dec. 29, 2009).
  • On December 29, 2009, the U.S. District Court for the Northern District of California submitted a statement of work for televised proceedings. See NDCA Request for Quotation and Statement of Work (Dec. 29, 2009).
  • On December 30, 2009, the Court issued an Order noting “the court is considering seeking approval from Chief Judge Kozinski to record or webcast the January 6 hearing” on the issue of further televised proceedings. The defendants reasserted their objection to “to the recording or webcasting of the January 6 hearing” based on the reasons previously noted. See Defendants’ Supplemental Letter (Jan. 4, 2010).
  • On December 31, 2009, the Media Coalition filed its brief in support of televised proceedings. See Media Coalition’s Memorandum of Points and Authorities (Dec. 31, 2009).
  • On December 31, 2009, the U.S. District Court for the Northern District of California proposed a modification to Local Rule 77-3 to permit photography or broadcasting “for participation in a pilot or other project authorized by the Judicial Council of the Ninth Circuit.” See Notice Concerning Proposed Revision Of Civil Local Rule 77-3 (Dec. 31, 2009).
  • On January 5, 2010, Ninth Circuit Chief Judge Alex Kozinski granted the request of Northern District of California Chief Judge Vaughn R. Walker, who is presiding over the case. See In The Matter Of Pilot District Court Public Access Program Approved December 16, 2009, Order of the Judicial Council Of The Ninth Circuit (No. 2010-1) (dated January 5, 2010). The permission is limited to “audio-video recording and transmission of one pre-trial hearing … on January 6, 2009.”
  • The Clerk of the Court issued a notice indicating the parameters of the cameras was limited: “During the January 6th hearing, three (3) court-provided cameras will be focused on views of the judge, witness and the counsel lectern. These views will be merged into a single multi-camera view, with associated audio from the courtroom's integrated sound and evidence presentation system. The cameras will be stationary and will not switch views, unless ordered by the court.” See Cameras in the Courtroom (Jan. 6, 2010).
  • At the hearing on January 6, 2010, Chief Judge Walker ruled that the bench trial would be broadcast over YouTube. See California Gay Marriage Trial Allowed to Be Broadcast, Business Week (Jan. 6, 2009). Chief Judge Walker reported noted: “This is a case which merits a very serious consideration for widespread distribution.”

Now that broadcasting of the upcoming bench trial has been ordered, it remains to be seen what impact, if any, the broadcasting will have on the presentation of the evidence in this high-profile case.

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