Ninth Circuit To Televise Upcoming Oral Argument On Proposition 8 Appeal

The Ninth Circuit has granted the request of media organizations to televise live and videotape for later broadcast the appellate oral argument on the constitutional challenge to California Proposition 8; separately, Chief Judge Alex Kozinski expresses his support for televising federal proceedings.

For many years, a debate has ensued on whether federal court proceedings should be televised. In the past year, new efforts have been made to encourage the broadcasting of court proceedings. In April, the Senate Judiciary Committee approved legislation that would authorize cameras in the Supreme Court and other federal courts. In September, the U.S. Judicial Conference approved a pilot project to evaluate cameras in the U.S. District Courts.

With regard to the upcoming Proposition 8 appeal, several media organizations applied to the Ninth Circuit to televise the proceedings. The Ninth Circuit has granted the applications of CSPAN, KGO-TV, KQED, and the California Channel. The Ninth Circuit CSPAN order provides:

C-SPAN applied to televise live the case captioned above, scheduled to be heard in San Francisco, on December 6, 2010 at 10:00 a.m. C-SPAN’s request to televise live is GRANTED. A maximum of two (2) video cameras will be permitted in the courtroom. C-SPAN will serve as the pool-feed for all media organizations that submit an application.

Proposition 8, which amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California, was approved by the voters on November 4 2008. See California Secretary of State Proposition 8 Election Results; Summary. On August 14, 2010, Chief U.S. District Judge Vaughn Walker, of the Northern District of California, found the proposition was unconstitutional.

According to a Ninth Circuit order, the oral argument on December 6, 2010 will “be divided into two hour-long sessions, with a brief recess in between. In the first hour, the parties shall address each appellant’s standing and any other procedural matters that may properly be raised. In the second hour, the parties shall address the constitutionality of Proposition 8.” See Ninth Circuit Order.

Recently, Ninth Circuit Chief Judge Alex Kozinski published an article with Robert Johnson in the Fordham Intellectual Property supporting the use of cameras in the courtroom. See A. Kozinski & R. Johnson, Of Cameras and Courtrooms, XX Fordham Intellectual Property, Media & Entertainment Law Journal 1107 (2010). The article notes:

After so long, the time has come to rethink our aversion to cameras in the courtroom. In fact, cameras have become an essential tool to give the public a full and fair picture of what goes on inside the courtrooms that they pay for…..

The authors believe that the use of cameras in the courtroom would bring many benefits:

The public can better monitor the judiciary—to ensure that its processes are fair, that its results are (generally) just and that its proceedings are carried out with an appropriate amount of dignity and seriousness—if it has an accurate perception of what happens in the courtroom. Increased public scrutiny, in turn, may ultimately improve the trial process. Judges may avoid falling asleep on the bench or take more care explaining their decisions and avoiding arbitrary rulings or excessively lax courtroom management. Some lawyers will act with greater decorum and do a better job for their clients when they think that colleagues, classmates and potential clients may be watching. Some witnesses may feel too nervous to lie; others may hesitate to make up a story when they know that someone able to spot the falsehood may hear them talk.

The article concludes that the time has come for cameras in the courtroom:

So far, Congress has been patient with that glacial pace of change, but such forbearance cannot last forever. Legislation is currently pending that would authorize district judges to allow media recording and broadcast of court proceedings. If the federal courts don’t change with the times, others will institute change for us. Rightly so. If the public is to appreciate our justice system, and the legal regime that it upholds, the public must have full and fair information about proceedings in the courts. (footnote omitted).

The debate on broadcasting court proceedings is increasing. The upcoming broadcast of the Ninth Circuit oral argument will certainly contribute to this public discussion.


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