Copyright Law

Supreme Court Blocks Video Streaming of Prop 8 Trial

By Sam Bayard

This afternoon, the Supreme Court put the final kibosh on video streaming of the Prop 8 trial to five federal courthouses around the nation.  The Court stayed U.S. District Judge Vaughn Walker's order permitting the broadcast.  The stay will remain in force for the foreseeable future, putting an end to the controversy for practical purposes. The Court did not address the recording and dissemination of the trial on YouTube, viewing it unnecessary because Judge Alex Kozinski, the Chief Judge of the Ninth Circuit, had not approved Judge Walker's decision to allow Internet dissemination when the petitioners sought a stay.

The Justice split 5-4 down familiar ideological lines, with the conservative majority ruling that Judge Walker's order was invalid on procedural grounds because "the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting." This despite the Ninth Circuit Judicial Council's mid-December approval of a pilot program allowing limited use of cameras in district courts within the Circuit. According to the majority, the district court did not give the public sufficient notice and opportunity to comment before revising a local rule that prohibited the broadcast at the "eleventh hour."

While steadfastly maintaining that it was not "express[ing] any views on the propriety of broadcasting court proceedings generally," the majority let fly some dicta that tells a different story.  Most troubling, the majority seemed to take for granted that "witness testimony may be chilled if broadcast," that Prop 8 witnesses would be exposed to an increased risk of harassment, and (most perversely) that broadcast of trials is particularly problematic in high-profile cases involving matters of public controversy (see especially slip op. at  15-16).

Justice Breyer wrote a feisty dissenting opinion, joined by Stevens, Ginsburg, and Sotomayor, which challenged the majority's take on the procedural issue and chided it for micromanaging procedural aspects of local judicial administration. Breyer also criticized the assumption that cameras have any adverse affect on the judicial process, questioned whether Prop 8 witnesses would suffer any meaningful harm as a result of the broadcast, and observed that broadcasting the trial would further "the public's interest in observing trial proceedings to learn about this case and about how courts work."

Full post as published by Citizen Media Law Project on January 13, 2010 (boomark / email).