Cameras in the Courtroom

The US Supreme Court’s 5-4 decision in Hollingsworth vs. Perry, denying Chief U.S. District Judge Vaughn Walker’s plans to televise the Proposition 8 trial, is worth reading for a number of reasons. The opinion acknowledges that the question whether courtroom proceedings should be broadcast has prompted considerable national debate and that reasonable minds differ on the proper resolution of that debate and on the restrictions, circumstances, and procedures under which such broadcasts should occur. While the per curiam decision prevents Judge Walker’s plans for transmission of the proceedings of the case to five other federal courthouses located in Seattle, Pasadena, Portland, San Francisco, and Brooklyn, (and also, on a delayed basis, to allow the video to be posted on YouTube) it does so on procedural grounds stating that is does not “express any views on the propriety of broadcasting court proceedings generally”. The opinion lays out some interesting procedural aspects of the case. For example, page 3 of the opinion states: “The State of California declined to defend Proposition 8, and the defendant-intervenors (who are the applicants here) entered the suit to defend its constitutionality.” While the decision takes pains to side step the controversy, it makes references to claims by the proponents of Proposition 8 that a televised trial would subject them to harassment. For example, at pages 2 to 3, the decision addresses the concerns of the proponents of Proposition 8:

Its advocates claim that they have been subject to harassment as a result of public disclosure of their support. For example, donors to groups supporting Proposition 8 “have received death threats and envelopes containing a powdery white substance.” Some advocates claim that they have received confrontational phone calls and e-mail messages from opponents of Proposition 8 and others have been forced to resign their jobs after it became public that they had donated to groups supporting the amendment. Opponents of Proposition 8 also are alleged to have compiled “Internet blacklists” of pro-Proposition 8 businesses and urged others to boycott those businesses in retaliation for supporting the ballot measure. And numerous instances of vandalism and physical violence have been reported against those who have been identified as Proposition 8 supporters (citations omitted).

Pages 15-16 of the opinion make reference to the fact that the SDNY and the EDNY allow trials to be broadcast, see Civ. Rule 1.8 (SDNY 2009); Civ. Rule 1.8 (EDNY 2009), but that they recognize that a district judge’s discretion to broadcast a trial is limited. See also Second Circuit Guidelines for Cameras in the Courtroom. Opinions on the propriety of broadcasting court proceedings fill the blogosphere. For example, at Above the Law, David Lat offers support for the idea in his post Cameras in the Prop 8 Courtroom: Why Not?.

The discussion has been ongoing for years as evidenced by Brooklyn Law School Library’s collections with titles such as TV or Not TV: Television, Justice, and the Courts by Ronald L. Goldfarb (Call # KF8725 .G65 1998) with chapters The trial of the century; The free press, the fair and public trial: a constitutional conundrum; Cameras in the courts: the experiment; A thing observed, a thing changed: what is the impact of television on trials? The crucible: court TV; Conclusion: TV or not TV.

See also Cameras in the Courtroom: Television and the Pursuit of Justice by Marjorie Cohn and David Dow (Call #KF8725 .C63 1998).

Judge Alex Kozinski, in his letter dated January 10 defending the Ninth Circuit pilot program for TV broadcasting, may have summed up the argument best by writing “"Like it or not, we are now well into the twenty-first century, and it is up to those of us who lead the federal judiciary to adopt policies that are consistent with the spirit of the times and the advantages afforded us by new technology. If we do not, Congress will do it for us." In fact, in the last session of Congress, Sen. Grassley and Sen. Schumer introduced the Sunshine in the Courtroom Act of 2009 to authorize the televising to the public of court proceedings. A Congressional Research Service Report entitled Televising Supreme Court and Other Federal Court Proceedings: Legislation and Issues discusses the issue at length.