Justices step directly into cameras-in-court debate

Tuesday, January 12, 2010

WASHINGTON — The debate over broadcast access to the federal courts has taken place in slow motion over the last decade or so, with an occasional jab from Congress or the news media in favor of the idea, followed by an alarmed response from Supreme Court justices who tell Congress, in so many words, to mind its own business.

Pressure then recedes, with the judiciary throwing out an occasional bone to the press in the form of increased access in some other way, such as online audio of hearings in some courts, or accelerated release of oral argument transcripts at the Supreme Court.

But now, with remarkable speed and not much warning, the issue is foursquare in front of the Supreme Court. And perhaps unsurprisingly, it arrived at the Court from the West — from the courts of the 9th Circuit, to be exact. A plan by U.S. District Judge Vaughn Walker to allow taping and delayed YouTube video broadcast of the trial over Proposition 8, the anti-gay marriage measure approved by California voters in 2008, is now before the justices.

Yesterday, just an hour before the trial was set to begin in San Francisco, the Court issued an order halting the YouTube plan, at least until tomorrow afternoon at 4 p.m., when the Court will have had more time to deliberate. Justice Stephen Breyer was the lone dissenter. He was pleased the stay was temporary, and said that he, for one, did not think that those objecting to the plan had shown the “irreparable harm” they might suffer, a necessary element for justifying a stay.

Even by tomorrow afternoon, the Court may not have time for a full treatment of the issue. And the outcome is uncertain. Access advocates have felt renewed hope because Justice Sonia Sotomayor, a proponent of access at the 2nd U.S. Circuit Court of Appeals, has replaced David Souter, a diehard opponent of cameras in the court. And Sotomayor has indicated she would not be shy about raising the issue with her new colleagues. But she is the only former federal trial judge on the high court, and having the issue come to her as a question of trial court access rather than Supreme Court access may trigger a different calculus.

But no matter how this week’s episode turns out, it still may serve as an alert to the high court — and to Congress as well — that the issue of access by cameras, microphones, and now Internet video, cannot be easily avoided by the slow dance that has taken place thus far.

The 9th Circuit, led by Chief Judge Alex Kozinski, set the stage late last year by announcing a pilot program for broadcast access to civil trials in the circuit — did he have the Prop. 8 trial in mind? — with the aim of promoting “better public understanding of our judicial processes.” Judge Walker said in court yesterday that he had gotten overwhelming public approval of the plan, in the form of more than 130,000 positive messages and only a handful of negative ones.

But it was the objectors who got the issue before the Supreme Court. On Jan. 9, Charles Cooper of Cooper and Kirk, who represents the proponents of Prop. 8, asked Justice Anthony Kennedy, who handles emergency matters from the 9th Circuit, to halt the YouTube plan. Using the language of stay applications, Cooper said broadcasting the trial, even on a delayed basis, would cause “irreparable harm” to the fair-trial rights of Prop. 8 supporters. It would create a “media circus,” Cooper said, and could, given past experience, subject opponents of gay marriage to “harassment, economic reprisal, threats, and even physical violence.”

The opponents of Prop. 8, who favor camera access for the trial, responded by noting that those who object have in fact sought out publicity — including on YouTube — and so have a weak claim that they will be harmed. Theodore Olson of Gibson, Dunn & Crutcher was joined on the brief by partner Theodore Boutrous Jr., a prominent press lawyer. They told the high court that the trial was a “sound candidate” for the 9th Circuit’s pilot program. The brief cited “overwhelming public interest” in the trial, and asserted that allowing broadcast coverage is a proper way of “fostering public confidence in the outcome.” The concerns voiced by Cooper, the brief stated, are “utterly unsubstantiated and groundless speculation.”

A coalition of news media organizations also weighed in. In a brief authored by Thomas Burke of Davis Wright Tremaine in San Francisco, they argued that “If camera access is ever appropriate — and it is — it is the high profile case, like this one, in which it is most important… . The First Amendment mandates that the public be allowed to observe, so that it can understand, what occurs in the courtroom.”

The high court has said as much in past rulings on the subject of public access to court proceedings. And in the 1981 opinion Chandler v. Florida, the Court said, “the states must be free to experiment” with televising trials and other proceedings in courts.

Now, the justices are being asked to pass judgment on experimentation at the federal level — in the very federal courts they rule on and superintend. Will they respond in a “not in my back yard” fashion, or will they defer to the judgment of the 9th Circuit and Judge Walker? An early answer may come tomorrow.


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