No Go for YouTube in Gay Marriage Case
A case of Too Much, Too Soon: The Supreme Court has just blocked the televised broadcast of the high-profile trial challenging California's gay marriage ban. The 5-4 decision said the district court judge failed to follow the proper procedures to televise the trial and stream it on YouTube, and that he tried to do an end-run around the rules to make it happen anyway.
The Court emphasized it wasn't ruling on the merits of cameras in the courtroom, but the opinion, not surprisingly, has some language that appears sympathetic to opponents of cameras. Supporters of the gay marriage ban had urged the court to block the broadcast, and the Court expresses some sympathy for their arguments that they could face harassment if the trial is broadcast across the country.
The Court also seems sympathetic to arguments that witnesses may be conscious of the cameras and testify differently than they would otherwise—in other words, cameras would change the entire proceeding. We've heard several justices make that argument over the years, when speaking publicly about why cameras in the Supreme Court aren't going to happen.
That language in today's opinion is likely to disappoint C-SPAN, among others, which has long argued the Supreme Court should allow cameras in its own courtroom. Some had hoped the Court would be more receptive with the retirement of Justice Souter, who famously said "the day you see a camera come into our courtroom, it's going to roll over my dead body."
But if you're trying to read tea leaves, the signals in today's opinion aren't encouraging—although there was a bright spot. Interestingly, Justice Sotomayor, who took Souter's place, was one of the four liberals who dissented and would not have blocked the broadcast at this point.
As a policy matter, the U.S. Judicial Conference doesn't allow cameras in federal courtrooms, but some circuits have begun to consider broadcasts on a limited basis. The Ninth Circuit has approved a "pilot" program for some civil trials.
This dispute arose when the judge in this historic trial, which is a challenge to California's Proposition 8 banning gay marriage, decided to broadcast it---and also stream it on YouTube.
But the judge, Vaughn Walker, didn't follow the proper procedures and rules, said the Court.
"The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district," the Court said. "Not only did it ignore the federal statute that establishes the procedures by which its rules may 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."
This is of course a victory for supporters of the gay marriage ban, who argued the trial should not be broadcast, and their lawyer, Chuck Cooper. But it's also a complete vindication of the arguments Ed Whelan over at NRO's Bench Memos has been making for some time now about Walker's shenanigans.
