Supreme Court Watch: No Broadcast Of Proposition 8 Bench Trial After Supreme Court Stay

After issuing a temporary stay, a Supreme Court majority stays the lower court ruling to broadcast the bench trial proceedings to other courtrooms after concluding that a sufficient showing of harm had been made and questions rose whether the lower court broadcast ruling was properly entered and authorized; the dissent would have denied the stay and permitted the broadcast, in Hollingsworth v. Perry, 558 U. S. __, 130 S. Ct. 705, 175 L. Ed. 2d 657 (per curiam) (No. 09A648)

In issuing the stay, the per curiam majority noted that it was not addressing the merits of whether federal trials should be broadcast. Instead, a procedural issue was decided. The stay was issued “because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves.” Hollingsworth v. Perry, 558 U. S. __, 130 S. Ct. 705, 175 L. Ed. 2d 657 (per curiam) (No. 09A648). The majority noted that the:

District Court here attempted to revise its rules in haste, contrary to federal statutes and the policy of the Judicial Conference of the United States.

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rulesmay be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

Hollingsworth, 558 U. S. at __.

The majority noted the differing views on whether federal court trials should be broadcast:

The question whether courtroom proceedings should be broadcast has prompted considerable national debate. Reasonable minds differ on the proper resolution of that debate and on the restrictions, circumstances, and procedures under which such broadcasts should occur. We do not here express any views on the propriety of broadcasting court proceedings generally. Instead, our review is confined to a narrow legal issue: whether the District Court’s amendment of its local rules to broadcast this trial complied with federal law. We conclude that it likely did not and that applicants have demonstrated that irreparable harm would likely result from the District Court’s actions. We therefore stay the court’s January 7, 2010, order to the extent that it permits the live streaming of court proceedings to other federal courthouses. We do not address other aspects of that order, such as those related to the broadcast of court proceedings on the Internet, as this may be premature.

Hollingsworth, 558 U. S. at __.

The majority also concluded that a sufficient showing of harm had been shown for the stay, which included “citing incidents of past harassment.” In weighing the equities, the majority concluded the risk of harm from the broadcast outweighed any risk from no broadcast:

While applicants have demonstrated the threat of harm they face if the trial is broadcast, respondents have not alleged any harm if the trial is not broadcast. The issue, moreover, must be resolved at this stage, for the injury likely cannot be undone once the broadcast takes place.

Hollingsworth, 558 U. S. at __.

Justice Stephen G. Breyer filed a dissent, which was joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor. The dissent concluded that the question of the trial broadcast should have been left to “local judicial administration.” As the dissent explained:

I recognize that the Court may see this matter not as one of promulgating and applying a local rule but, rather, as presenting the larger question of the place of cameras in the courtroom. But the wisdom of a camera policy is primarily a matter for the proper administrative bodies to determine.

Hollingsworth, 558 U. S. at __ (Breyer, J., dissenting). Additionally, the dissent disagreed that a showing of irreparable harm had been made, particularly since “[a]ll of the witnesses supporting the applicants are already publicly identified with their cause” and that the district court broadcast order would merely have permitted an audience in other courtrooms to view the proceedings.

The manner in which the broadcast of the Proposition 8 bench trial has been handled has further focused the issue of whether federal proceedings should be broadcast. As previously noted, legislation has been introduced to permit federal court broadcasting under limited circumstances. See, e.g., Recent Action In Two Circuits Highlights Issue Of Cameras In The Federal Courtroom. Another issue, posed in the Hollingsworth case, is whether broadcasted proceedings may affect or influence witness testimony or the introduction of other evidence. While the stay was imposed in the case, it remains to be seen whether the issues surrounding broadcast coverage in Hollingsworth will cause Congress, the Judicial Conference and the courts to revisit the propriety and parameters of allowing cameras in the federal courtroom.

Federal Rules of Evidence