Box Turtle Bulletin

SCOTUS disallows live streaming of Perry v. Schwarzenegger to other courthouses

The question as to whether the proceedings at Perry v. Schwarzenegger can be made available to the public has not been settled. But the Supreme Court, by a 5-4 vote, determined that they cannot be transmitted to other courthouses.

We do not here express any views on the propriety of broadcasting court proceedings generally.

Instead, our review is confined to a narrow legal issue: whether the District Court\’s amendment of its local rules to broadcast this trial complied with federal law. We conclude that it likely did not and that applicants have demonstrated that irreparable harm would likely result from the District Court\’s actions. We therefore stay the court\’s January 7, 2010, order to the extent that it permits the live streaming of court proceedings to other federal courthouses. We do not address other aspects of that order, such as those related to the broadcast of court proceedings on the Internet, as this may be premature.

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well. The Court grants the application for a stay of the District Court\’s order of January 7, 2010, pending the timely filing and disposition of a petition for a writ of certiorari or the filing and disposition of a petition for a writ of mandamus.

Justices Breyer, Stevens, Ginsburg, and Sotomayor disagreed, wondering how transmitting to other courthouses could possibly cause harm to the witnesses:

All of the witnesses supporting the applicants are already publicly identified with their cause. They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the State advocating a “yes” vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse. The likelihood of any “irreparable” harm is further diminished by the fact that the court order before us would simply increase the trial\’s viewing audience from the occupants of one courtroom in one courthouse to the occupants of five other courtrooms in five other court-houses (in all of which taking pictures or retransmissions have been forbidden). By way of comparison literally hundreds of national and international newspapers are already covering this trial and reporting in detail the names and testimony of all of the witnesses.
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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.” [] 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.

So, for now, it is up to the blogosphere to report as best possible on the arguments, positions, assertions, and identity of those who present themselves as experts on why our state and nation should institutionalize discrimination.