January 14, 2010
SCOTUS Indefinitely Blocks Live Streaming of Prop 8 Trial to Other Federal Courthouses, Hints Case Inappropriate for Internet Broadcasting
Yesterday, the US Supreme Court, 5-4 (per curiam), indefinitely blocked broadcasting the Proposition 8 trial, (Perry v. Schwazenegger in the US District Court for the Northern District of California; LLB's earlier post) beyond the local courthouse because the District Court's amendment of its local rules to allow live streaming of court proceedings to other federal courthouses failed to compile with federal law. Hollingsworth v. Perry, No. 09A648 (Jan. 13, 2010). "If courts are to require that others follow regular procedures, courts must do so as well." In a slap-down, the majority wrote
The Court’s interest in ensuring compliance with proper rules of judicial administration is particularly acute when those rules relate to the integrity of judicial processes. The District Court here attempted to revise its rules in haste, contrary to federal statutes and the policy of the Judicial Conference of the United States. It did so to allow broadcasting of this high-profile trial without any considered standards or guidelines in place. The arguments in favor of developing procedures and rules to allow broadcast of certain cases have considerable merit, and reasonable minds can surely differ over the general and specific terms of rules and standards adopted for that purpose. Here, however, the order in question complied neither with existing rules or policies nor the required procedures for amending them.
Justice Breyer joined by Justices Stevens, Ginsburg and Sotomayor dissented:
It is particularly inadvisable for this Court to consider this kind of question because it involves local rules and local judicial administration. Here, for example, the Court decides just how a district court should modify its own local rules; in a word, this Court micromanages district court administrative procedures in the most detailed way.
Irreparable Harm Ruling. Do note that the majority also held that applicants have demonstrated that irreparable harm would likely result from the District Court's attempt to broadcast the trial to other federal courthouses under the now SCOTUS-invalidated local rule.
The balance of equities favors applicants. While applicants have demonstrated the threat of harm they face if the trial is broadcast, respondents have not alleged any harm if the trial is not broadcast. The issue, moreover, must be resolved at this stage, for the injury likely cannot be undone once the broadcast takes place.
Justice Breyer dissents: "I can find no basis for the Court’s conclusion that, were the transmissions to other courtrooms to take place, the applicants [or its witnesses as the applicants also claim] would suffer any 'irreparable' harm."
The competing equities consist of not only respondents’ interest in obtaining the courthouse-to-courthouse transmission that they desire, but also the public’s interest in observing trial proceedings to learn about this case and about how courts work. ... the scales tip heavily against, not in favor, of issuing the stay.
The majority’s action today is unusual. It grants a stay in order to consider a mandamus petition, with a view to intervening in a matter of local court administration that it would not (and should not) consider. It cites no precedent for doing so. It identifies no real harm, let alone 'irreparable harm,' to justify its issuance of this stay. And the public interest weighs in favor of providing access to the courts. To justify this extraordinary intervention, the majority insists that courts must 'enforce the requirement of procedural regularity on others, and must follow those requirements themselves.' [citation omitted]. And so I believe this Court should adhere to its institutional competence, its historical practice, and its governing precedent—all of which counsel strongly against the issuance of this stay.
On Internet Broadcasting. The Court did not address the issue of Internet broadcasting of the trial, explaining the issue may be premature. In other words, the District Court must get its Local Rules house in order first. "Reasonable minds differ on the proper resolution of that debate and on the restrictions, circumstances, and procedures under which such broadcasts should occur. We do not here express any views on the propriety of broadcasting court proceedings generally," quoting from the unsigned opinion.
However, the Prop 8 trial may not be a good case for a properly crafted pilot program. On SCOTUSBlog, Lyle Denniston writes, "as a practical matter, the ruling almost certainly dooms any broadcast coverage of the trial as it goes on. ... the main opinion seemed to indicate that the Court, in the last analysis, would not permit the coverage in any event. The television viewing of the Prop. 8 trial was to be done as part of a “pilot program” in the federal courts in the Ninth Circuit. The Court majority wrote: 'This case is ... not a good one for a pilot program. Even the studies that have been conducted thus far have not analyzed the effect of broadcasting in high-profile, divisive cases.'"
Resources. No video -- live blogging from Prop 8 opponents here and here. See also CUNY law prof Ruthann Robson's Perry v. Schwarzenegger, “The Proposition 8 Trial”: A Primer on Constitutional Law Prof Blog. [JH]