Challenge Lodged On The Broadcasting Of Proposition 8 Bench Trial

After the Northern District of California Chief Judge and the Ninth Circuit Chief Judge authorize limited broadcast of the bench trial, application for a stay is filed in the Supreme Court; while broadcast was originally ordered by the district court to be posted on YouTube, it presently is “limited to real-time live streaming to federal courthouses”

Today, Monday, January 11, 2009, at 8:30 a.m. PST, the bench trial commences in the constitutional challenge to California Proposition 8, which amended 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. As reported last week, a limited broadcast of the bench trial was ordered by Northern District of California Chief Judge Vaughn Walker, who is presiding over the trial in Perry v. Schwarzenegger, No. 3:09-cv-02292-VRW. Originally, Chief Judge Walker had authorized a limited, delayed broadcast of the trial over YouTube. See Egelko, Prop. 8 Trial Will Be Shown On YouTube, SF Chronicle (Jan. 7, 2010). However, subsequently Ninth Circuit Chief Judge Alex Kozinski, acting under the authority of the Ninth Circuit Judicial Council, authorized that the broadcast be “limited to real-time live streaming to federal courthouses” and had not ruled on a request to post video files on the district court web site.

Since the original broadcast order, there has been a flurry of briefs and activity concerning a request to stop or stay the broadcast ruling. See Bench Trial Broadcast On YouTube In Case Challenging California Proposition 8. Over the weekend, Supreme Court Justice Anthony Kennedy, as Circuit Justice of the Ninth Circuit Court of Appeals, was asked to stay the ruling. Since the district court ruling last week ordering the limited broadcast, the following has transpired:

  • House Judiciary Committee Ranking Minority Member Lamar Smith wrote a letter to the Secretary of the Judicial Conference expressing his concern over the manner in which the district court decided to permit televised broadcasting of the civil trial. See Letter of Ranking Minority Member Lamar Smith to James C. Duff, Conference Secretary to the Judicial Conference of the United States (Jan. 6, 2010).
  • On Friday, January 8, 2010, a Ninth Circuit panel denied the petition for mandamus filed by the defendants in the case, who oppose the broadcasting of the proceedings on grounds that witnesses may be harassed. See Hollingsworth v. United States District Court for the Northern District of California, _ F.3d _ (9th Cir. Jan. 8, 2009) (No. 10-70063).
  • On January 8, 2010, the Honorable Anthony J. Scirica, Chairman of the Executive Committee for the Judicial Conference, and James C. Duff, Conference Secretary to the Judicial Conference of the United States, write to Ninth Circuit Chief Judge Kozinski urging him to consider the Judicial Conference policy prohibiting broadcast coverage in civil and criminal cases. See Letter of Honorable Anthony J. Scirica, Chairman of the Executive Committee for the Judicial Conference of the United States, and James C. Duff, Conference Secretary to the Judicial Conference, to Ninth Circuit Chief Judge Alex Kozinski (Jan. 8, 2010).
  • On January 8, 2010, Ninth Circuit Chief Judge Alex Kozinski approved “a request from the Chief Judge of the Northern District of California to permit audio-video recording and transmission of pre-trial proceedings and trial in” the case.” The order notes that the “request is granted, limited to real-time live streaming to federal courthouses to be designated by the Circuit and Court of Appeals Executive, and subject to such procedures and limitations as the district judge presiding over the case may deem appropriate.” However another request to post video files on the district court web site remains pending. 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. 2010-2) (dated January 8, 2010).
  • The District Court for the Northern District of California announced that “live video and audio feed from the upcoming Proposition 8 trial in San Francisco will be available for public viewing in [selected] federal courthouses,” including in San Francisco, California; Portland, Oregon; Seattle, Washington; Brooklyn, New York; and Pasadena, California. See Federal Courthouses to Offer Remote Viewing of Proposition 8 Trial.
  • On Saturday, January 9, 2010, the defendants filed a stay of the order permitting the limited broadcast pending a petition for a writ of certiorari from the denial of the petition for mandamus or, alternatively, a petition of mandamus to review the order permitting a YouTube broadcast of the bench trial. The petitioners argue: “The district court’s order is contrary to the long-established policy of the Judicial Conference of the United States — as well as the policies of both the Northern District of California and the Ninth Circuit in effect at least until late December 2009. Both policies appear to have been changed with great haste and procedural irregularity solely to ensure that this case would be publicly broadcast.” Further, the petitioners note that supporters of Proposition 8 have been subjected to harassment and witness are likely to be subjected to similar harassment. See Petitioners Application for Immediate Stay of Proposition 8 Official Proponents (No. 09A648).
  • On Sunday, January 10, 2010, the plaintiffs responded, arguing that the request for a stay was premature and that the case represents a sound candidate for broadcasting the proceedings. They argue that the pilot program broadcast would “provid[e] the public with meaningful access to the trial proceedings and foster[] public confidence in the outcome of this closely watched case.” A stay is not warranted, they contend, because the petitioners will not incur irreparable harm. See Response to Stay Application (No. 09A648); see also Supplemental Appendix.
  • On Sunday, January 10, 2010, Chief Judge Alex Kozinski responded to the Judicial Conference inquiry in a six-page letter, noting the authorized recording was limited to court-room viewing and was consistent with the public interest in greater access to the courts. After recounting the history of broadcast coverage of federal court proceedings, the letter notes:
    "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 soon 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 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."
    See Letter of Ninth Circuit Chief Judge Alex Kozinski to the Honorable Anthony J. Scirica, Chairman of the Executive Committee for the Judicial Conference of the United States, and James C. Duff, Conference Secretary to the Judicial Conference (Jan. 10, 2010).
  • A media coalition filed an opposition brief. In sum, the media coalition argues that the district court acted with authority in authorizing the limited broadcast based on the Ninth Circuit Judicial Council’s recent decision to permit a pilot program. See Opposition By Non-Party Media Coalition To Application For Immediate Stay Of The District Court S Order Permitting Public Broadcast Of Trial Proceedings (No. 09A648).

Justice Kennedy, who could have considered the stay application alone, referred the matter to the Court. In an eight to one ruling, the Court stayed the district court ruling authorizing "real-time streaming" with the exception of permitting "streaming to other rooms within the confines of the courthouse in which the trial is to be held." No other broadcast was permitted. The stay, which remains in place until Wednesday, January 13, 2010, at 4 p.m. eastern time, will allow the Court more time to consider the merits of the application. Justice Breyer dissented. He agreed "that further consideration is warranted," but concluded that a stay was not necessary since he believes a likelihood of "irreparable harm" had not been demonstrated.

The broadcasting of the trial has generated a substantial amount of argument and interest in a short period. It remains to be seen whether any broadcast may impact the presentation of the evidence, as advanced by the petitioners. Beyond the broadcasting of the proceedings in this case, the manner in which any broadcast occurs may also impact whether other federal proceedings may be televised in the future.

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