Supreme Court Issues a Stay to Prevent Broadcasting of Proposition 8 Case
By Andrew Segna – Edited by Dmitriy Tishyevich
Hollingsworth v. Perry (on application for stay), Case No. 09A648 (U.S., Jan. 13, 2010)
The Supreme Court granted a stay of the order issued by the United States District Court for the Northern District of California for a broadcast of the California lawsuit challenging Proposition 8, which amended the state constitution to define a valid marriage as only between a man and woman. The District Court issued this order following an amendment to a local rule of the District Court that had forbidden broadcasting of trials outside of the courthouse. The court had planned to stream the trial live in federal courts in several other cities and to post it on YouTube as part of a pilot program to test broadcasting of court proceedings. Chief Judge Alex Kozinski of the Court of Appeals for the Ninth Circuit issued an order allowing for real-time broadcasting to five federal courthouses, but did not address broadcasting the trial online due to technical difficulties encountered by the District Court staff. In a per curiam decision, the Supreme Court held that the revision of the local district rule did not follow procedures designated by federal law, found that applicants would suffer irreparable harm if the live broadcast occurred, and granted a stay of the order.
DC Dicta has an overview of the Supreme Court’s decision. SCOTUSblog provides an analysis of the opinion and what it means for the future broadcasting of this challenge to Proposition 8. An editorial in the New York Times criticizes the effect this decision will have on public discussion regarding this case.
In determining the appropriateness of issuing a stay, the Supreme Court analyzed the process by which the District Court amended the rule, the potential harm to the parties, and the Court’s interest in overseeing the judicial system. The Supreme Court held that the five business days the District Court allowed for the public notice and comment period for its revision of the rule was likely insufficient, and found that the modification of the rule did not qualify for the “immediate need” exception to the usual notice and comment requirement. The Supreme Court held that irreparable harm would likely result from denial of a stay, noting that witness testimony may be chilled if broadcast, and acknowledging that some of the applicant’s witnesses will not testify if the trial is broadcast due to past incidents of harassment. The Supreme Court also emphasized its significant interest in supervising the administration of the judicial system, and criticized the District Court for its attempt to change the rules “at the eleventh hour” to treat “this high-profile trial” differently contrary to federal statutes and policy.
Justice Breyer dissented and was joined by Justices Stevens, Ginsburg, and Sotomayor. Justice Breyer would have held that the District Court provided an appropriate notice and comment period for the rule revision because the trial judge discussed the possibility of live broadcast as early as September 25, 2009, both sides made written submissions to the court as to their views on other transmissions, and the court had received 138,574 comments by January 8, 2010, all but 32 of which favored the broadcast. Justice Breyer said that the Supreme Court would normally not grant certiorari to this kind of a legal question, as questions regarding local judicial administration have traditionally been left to Circuit Judicial Councils, and Supreme Court lacks their institutional experience. He noted that he was unable to find a single previous instance of the Supreme Court intervening in procedural aspects of local judicial administration in this manner. The dissent also questioned the applicants’ claim that denying a stay would lead to irreparable harm, since none of the witnesses had asked the Supreme Court to stop the broadcast, and many of them are already well-known participants in the debate surrounding Proposition 8. Justice Breyer would have found that the respondents’ interest in broadcasting the trial and keeping the public informed outweighed the respondents’ concerns that the broadcast would harm the parties.
The importance of this case with regard to broadcasting of cases to the public should not be overstated. Although this is certainly a loss for those who wished this particular trial to be shown to the public, the Supreme Court emphasized repeatedly that it was not making a judgment on whether trials in general should be broadcasted. This decision is limited to the particular circumstances of this high-profile trial, and the more general question of trial broadcasting remains to be addressed.