[Update: Judge Kozinski was open to letting trying out the plan rejected here, but this puts into question his neutrality. Was he like scoping out John Roberts (yeah, that one!)? The dissent referenced, however, is a classic.]
In an unsigned opinion (Volokh Conspiracy thinks Justice Kennedy is a good guess as author, which I thought as well), the Supreme Court blocked the broadcast of the Same Sex Marriage / Prop 8 trial on procedural grounds:
We are asked to stay the broadcast of a federal trial. We resolve that question without expressing any view on whether such trials should be broadcast. We instead determine that the broadcast in this case should be stayed 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.
We know the division because:
JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE GINSBURG and JUSTICE SOTOMAYOR join, dissenting.
It would be interesting to have seen how anti-camera in the courtroom (at least his) Justice Souter would have ruled. The dissent argues that this is not a case to interfere with lower court administration. As to the procedural question, I generally am inclined to take the opinion of the four in close questions, particularly when we are talking about the Supreme Court interfering with the judgment of the lower court's internal proceedings. I might be convinced otherwise, but in close cases, the tie generally goes against what the majority decided here, particularly when the result in less public trials. See also, here.
It also challenges claims of "irreparable harm" to the people involved in the lawsuit itself. For instance:
But the witnesses, although capable of doing so, have not asked this Court to set aside the District Court’s order. [case citations deleted] And that is not surprising. All of the witnesses supporting the applicants are already publicly identified with their cause. They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the State advocating a “yes” vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse.
Likewise, the reporting already is broad:
By way of comparison literally hundreds of national and international newspapers are already covering this trial and reporting in detail the names and testimony of all of the witnesses.
I'd add this reduces the general argument that video -- via YouTube or an Internet link to the court feed or the more limited way at issue here -- is dangerous. Witnesses often have something to worry about and some of the concerns voiced are standard to any protest movement -- nasty names and threats of boycotts to businesses included. The public nature of the witnesses underline even threats of violence by a few (exaggerated by some to imply that Olson* on down are involved) is not convincing. At worse, the judge can block coverage to sensitive witnesses, though said witnesses would still be seen by the media and people on hand.
The majority did comment on the effects of broadcasts but the ruling ultimately was limited:
The District Court has issued an order permitting the trial to be broadcast live via streaming audio and video to a number of federal courthouses around the country.
The plan to broadcast on the Internet was never finalized; but given opposition to this limited broadcast, the net effect of the ruling makes that somewhat besides the point. More here. Overall, video coverage would provide the general public a direct means to judge the proceedings, humanizing both sides in the process. This is ultimately the value of public trials generally, which is taken to a new level here. Comparably, there is a right to confront one's witnesses in court, dry transcripts or hearsay deemed not good enough. Some want to leave things to the same media that they disdain as a general matter as incompetent and/or biased.
Some fear that television will in effect make things a circus, but this only tells one side of the story, openness being messy but not just that. If some who want to stop equality want to stay in the shadows, is that a good thing? The shock at how nasty support of inequality is treated is precious given how nasty equality has and continues to be. Greedy business -- they won but can't even take criticism. Their chances of winning in court on some level (at least in the short term) reasonable, but that is not enough. They want to hide as they do it. No sale.
To be fair, some are wary of wide release -- again not the immediate issue in this ruling -- on neutral grounds like avoiding a circus or cranks dominating the debate, but I also don't find their reasons compelling. [More on why I think video important here.] I also would think that even direct audio, which would reduce various concerns, is useful here. Oh well. Back to media coverage and secondhand philosophizing.
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* Lot of talk about "the left," which apparently includes Ted Olson, solicitor general of the Bush Administration, and lead advocate on that side in Bush v. Gore.
To add to the flashbacks, we again here talk of "irreparable harm" and distrust of lower court judges that include Republican appointees like Judge Kozinski, who is among those ultimately having the responsibility to support or reject what the lower court judge is doing here.