The Supreme Court blacks out the YouTubing of the gay-marriage trial.

The law, lawyers, and the court.
Jan. 11 2010 4:22 PM

Blind Justice

The Supreme Court blacks out the YouTubing of the gay-marriage trial.

We don't know why the Supreme Court stopped the YouTube broadcast of the gay-marriage trial that began today in San Francisco. The justices didn't tell us. But it can't be a good development for a nice little West Coast experiment with cameras in federal courtrooms or for broadcasting trials in general. And since we do know that the Supreme Court justices don't want their own proceedings televised, it's hard not to think this is personal.

Judge Vaughn Walker, who is presiding over the gay-marriage trial, Perry v. Schwarzenegger, opened his courtroom to cameras and a time-delayed YouTube broadcast based on a recent authorization from his appeals court, the 9th Circuit. In December, the 9th Circuit OK'd a pilot project for the broadcasting of civil trials, without juries, from the federal courts in its purview. The 9th Circuit authorization points out that more than 130 times since 1991, appellate panels have broadcast their proceedings and that "an overwhelming majority" of 9th Circuit judges "have had a positive experience with such coverage." Trying it out in the trial courts "would promote greater public understanding of the role and function of the federal judiciary."

Emily Bazelon Emily Bazelon

Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law School. She is the author of Sticks and Stones.

This all seems duly sober and earnest: a toe in the water of video and TV, not a plunge. By limiting the experiment to civil trials, the 9th Circuit left for another day the questions of safety and witness intimidation that are more common in criminal proceedings. And in continuing to shield jurors from the cameras, the court avoided the tricky intersection of privacy and jury service.

The gay-marriage trial, however, is the definition of high profile. And so putting this trial on YouTube amounted to starting off the experiment with a bang. (The time delay was an annoyance to journalists like me, but if the video had been made available by evening, most people would have watched it via excerpts on the evening news and The Daily Show and Colbert, I'm sure.) On the other hand, isn't a buzzy trial exactly the kind video is most relevant for? This way, everyone who's interested gets to see for themselves without mediators. As the lawyers for the pro-gay-marriage Perry plaintiffs argued in support of televising the trial, "the 'highly contentious and politicized' character of the issues to be resolved in this case underscores the importance of providing the public with a meaningful window into the trial proceedings so it can see and hear what is happening in the courtroom."

There is an argument on the other side. The Judicial Conference of the United States, the governing body for the federal courts, made it clear in general terms most recently in a letter to Congress last July. The conference is worried about "interfere[ing] with a fair trial," by affecting how the people who participate in the trial behave. "Witnesses might refuse to testify or alter their stories," the judges who make up the conference wrote. "Embarrassing personal information" about them could be revealed. And the witnesses might grandstand. In opposing the YouTube broadcast for the gay-marriage opponents, lawyer Charles Cooper argued that even though this is a civil trial, and the witnesses are appearing voluntarily, they could suffer intimidation or harassment. Cooper brings up the "hostilities and harms" that followed the disclosure of the names of people who donated to the campaign for Prop. 8, the ballot measure banning gay marriage that the Perry suit is challenging. According to this paper from the Heritage Foundation, that's a real problem, and Heritage fellow Edwin Meese III made this point in a New York Times op-ed. You can see how TV clips of court testimony could cause a witness even more trouble than being outed as a campaign donor. The people testifying against gay marriage would have had a different kind of 15 minutes of fame: They would have been faces as well as names.

But as the Perry lawyers pointed out, Judge Walker could have decided not to televise the testimony of particular witnesses, on an individual basis. It's hard to see why the experts who are taking the stand—as opposed to the "Yes on 8" campaign volunteers testifying about their personal reasons for working on it—should be shielded from the cameras. There is some fussing over whether the witnesses should have been told about the cameras before they agreed to show up and whether the 9th Circuit should have gone through an official notice-and-comment period before launching the broadcasting experiment, because it's a change to the federal rules. (Judge Walker said this morning that he got 138,542 comments in favor of cameras, and 32 in opposition.) But at bottom, the question is whether witnesses who are ready to stand up in court and explain why they think gay marriage hurts heterosexual couples and children—or on the other side, why preventing gay couples from marrying stigmatizes them and their families—shouldn't be ready to see themselves on TV. Why does the value we place on public access to the courts extend to reading the quotes of named witnesses but not to hearing their voices and seeing their expressions?

It's also hard to see why the Supreme Court had to come down from on high and zap the 9th Circuit experiment. (Or at least, stay Judge Walker's YouTube plans until the end of Wednesday, to give the justices time for "further consideration," as their order said.) The circuit courts are allowed to make their own rules about broadcasting: The Judicial Conference of the United States gives them that authority. This is a 9th Circuit problem, if it's that, not a national one. It seems hugely-heavy handed for the Supreme Court to take it upon itself to police this, especially given how infrequently it responds to such appeals.

Which is why I wonder about whether the justices are taking this personally. When they think about those witnesses, do they see themselves on camera? I have some sympathy for the high court's reluctance to broadcast its own proceedings. It would change their jobs, turn them into people who can't go to the supermarket anonymously, force them to hear their sometimes long-winded questions as sound bites. Because they're in a position to shelter themselves, it's not surprising that they do. But reaching out to California and blinding the cameras for gay-marriage advocates and opponents? That's a move against widening access to the courts of a different order. I don't see it. Maybe because my screen is going blank.

AP Video: The Prop. 8 trial