Hollingsworth v. Perry

When getting everything ready for Perry v. Schwarzenneger, one of the things that Judge Walker had decided that he wanted to do was to broadcast the trial and also make it available for viewing over the internet. Ninth Circuit rules forbid this, but there has been some discussion among the members of the circuit toward changing this. Walker evidently decided that this case would be the case that was recorded and broadcast. In this particular instance, he wanted to broadcast the trial to other Federal courthouses around the country, and he also made arrangements to place recordings of the trial on the internet, including on the website YouTube.

The difficulty arose in the fact that many of the expert witnesses that the defense planned to call were strongly opposed to the idea. Some of the witnesses even indicated that they would not testify if the trial were broadcast due to fear of possible reprisals. Supporters of Proposition 8 have been hounded by same-sex marriage proponents, leading even in some instances to the loss of employment. So to say that the defense in this trial was opposed to the release of the trial in a video format is a bit of an understatement.

Despite this, Judge Walker went ahead with his plans. And eventually he released all of the details and asked for comments regarding the broadcast. However, he didn't ask for comments to be submitted until just one week before the trial began. As a result, a week ago last Monday - the same day that the trial started - the US Supreme Court placed a temporary block order on the broadcasting of the trial. On Wednesday of last week (yeah, I'm a bit slow here...) the court issued a 5-4 opinion that blocked the broadcast of the trial (link here: http://www.scotusblog.com/wp-content/uploads/2010/01/Perry-order-opinion.pdf).

In the opinion, the majority focuses on two specific items. The first is the fashion in which Judge Walker went about arranging for the broadcast. The Ninth Circuit has various rules regarding this sort of thing, and Judge Walker went about making amendments to those rules at the last possible instant. The majority in this decision seem to have been particularly troubled by this, and point out that as courts exist to "enforce the requirement of procedural regularity" on everyone, they particularly must enforce it on themselves. Judge Walker failed to follow proper procedure in this instance.

Additionally, the justices in the majority agree that there is some cause for concern regarding the well-being of the defense witnesses, and provide that as a secondary reason for blocking the broadcast. Adding to that, no one has yet demonstrated that any serious harm would result in the trial not being broadcast.

The majority opinion explicitly avoided addressing the issue of making the video of the trial available on the internet, but indicated that they may visit this particular topic at a later date if it becomes important.