Lights, action, no camera – The Perry trial begins

by on January 12, 2010  •  In Uncategorized

As everyone reading this must surely know, the trial began Monday in Perry v. Schwarzenegger. Equally well known at this point is that the YouTube uploads ordered by Judge Walker did not. The lawyers defending Prop 8 secured an order from the Supreme Court temporarily blocking the broadcast. They argued that witnesses who support Prop 8 fear retaliatory harassment and intimidation by gay marriage advocates.  The Court's final decision will issue Wednesday.

This initial ruling should be no surprise. Allowing cameras to record, much less broadcast, trials is rare, new and profoundly discomfiting to many judges. Webcasting of appellate arguments has become fairly common, but many judges feel that courts could be turned into theaters, if not circuses, by the lawyers and witnesses involved in a trial. Trials have always been theatrical, of course, but the argument by those opposed to such broadcasts is that playing to the camera would be irresistible if lawyers were cross-examining a witness or arguing to the jury, for example, rather than arguing in the tones one uses to address a panel of appellate judges.

What is really at issue here is the self-image, cherished by federal judges, of the elite status of, well, the federal judiciary. The special combination of formality and clubbiness that characterizes proceedings in federal court – and that is usually nowhere to found in the quasi-chaotic goings on in a state trial court – might be imperiled by allowing low-brow media into the picture.

However unsettling this prospect is to some judges, however, it is another kettle of fish to argue that a trial judge abused his discretion by issuing the kind of carefully crafted order that Judge Walker did, or that parties or witnesses can claim a right to block the broader dissemination of a public event. It was easy for the Court to find that no harm of any consequence would be done if the first few days of the trial were not broadcast, while the Justices considered the issue more carefully. (Nonetheless, Justice Breyer dissented.) But I will be surprised if the Court's final order concludes either that the judge lacked the authority to allow the uploads to YouTube or that the harm feared by Prop 8 supportive witnesses is anything more than speculative or that the presence or absence of cameras will make a difference. The identities of all the witnesses for both sides are already public knowledge.

One caveat – SCOTUS blog reports that the chief judge of the Ninth Circuit has not approved the YouTube portion of Judge Walker's order. The Ninth Circuit's new policy allowing cameras to record trials reportedly (I haven't seen the text) covers only broadcasts to other federal courthouses around the country. (Rooms in those courthouses would be open to the public, but obviously many fewer people would see the event than if they could watch at their convenience on the web.) If the Ninth Circuit does not approve the full scope of Judge Walker's order, the Supreme Court could find that he acted outside the bounds of discretion set by the Court of Appeals.  If the Ninth Circuit endorses the Walker order, however, the Supreme Court should not interfere with this experiment in greater transparency of judicial proceedings.


Leave a Reply

Your email address will not be published. Required fields are marked *