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

Timothy Kincaid

January 13th, 2010

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.

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.


January 13th, 2010

This gives me the chills, because I get the dreaful feeling that Kennedy might go the same way with a decision on the actual case and side with the cinservatives for a 5-4 defeat of gay marriage on the highest court in the land.

Priya Lynn

January 13th, 2010

The only hope for this case is a change in the makeup of the supreme court before it gets there.

David C.

January 13th, 2010

Yes, this is a disappointment, but let’s not read too much into this just yet. The minority opinion makes more sense to me, but there are other considerations here besides what the petitioners claim. Let’s see what happens with the delayed internet rebroadcast part of the decision.


January 13th, 2010

The SCOTUS (at least the conservative majority) wants to hide behind closed door while trying to craft some sort of justification for discrimination. I think that they fear this case. I think that they fear pressure to open up their own proceedings when this case comes before them.

Perhaps legislation should be advanced on increasing transparency in the judiciary.

David C.

January 13th, 2010

Well, it looks like we are not going to get to see this on YouTube. That is sad. All the more reason to support efforts to get information and testimony out to the public as quickly as possIble.

John, your suggestion might be a good one, though I don’t know exactly how that would work.

Richard Rush

January 13th, 2010

From the majority opinion: “. . . its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue.”

Unless I’m missing something, aren’t all court cases, by definition, about contentious issues?

Richard W. Fitch

January 13th, 2010

@R.Rush – and the very fact that it is contentious, !!Highly Contentious!! is all the more reason for transparency.


January 13th, 2010

We are in big trouble. Gay rights will not happen until we are in the streets. As for the good old US of A secret courts, rendition, hiding the information on the FED and AIG, secret wire tapping, and on and on. We are a secretive society and getting ever more so. Not only are gay rights being withheld, so are our rights as citizens in a democracy. The small cabal that runs the government and supports business, wealthy, and power group interests get stronger – we just pay the taxes.


January 14th, 2010

If they denied televised proceedings based on some procedural technicality, I wouldn’t be that concerned. But the majority made it a point to affirm the absurd notion that “irreparable harm” will come to those good Christians at the hands of the evil homos. It’s over. The five have shown their hand already. We will lose this case when it goes to SCOTUS, 5-4. I really wish Olsen hadn’t done this. This will set us back a generation or more.

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