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Legal Experts Weigh in on Supreme Court Banning Cameras


By Julia Rosen

Whenever I want legal analysis of a SCOTUS ruling, I turn to the only lawyer in my family for his opinion. It just so happens that the cousin in question is Professor Jonathan Turley, who often shows up on your Tee-Vee talking about the law.

So last night I shot him an email about the extremely disappointing ruling by SCOTUS not to allow the trial to be televised or even put up delayed on YouTube. Jonathan has been a long-time advocate for opening up the courtroom for filming, contending that constitution “clearly states a principle of open, public proceedings”. He ended up posting about it over at his blog:

This is normally a matter left to the discretion of a trial judge. To be sure, there are always concerns about the safety of witnesses, but those concerns are routinely addressed by positioning the camera to avoid showing a witness when there is a credible fear. In this case, conservatives have said that witnesses will fear a backlash for opposing same-sex marriage and even physical attacks. Yet, the names of these witnesses and their identifying information will not be sealed.

I disagree with the Court’s ruling, which will now bar the broadcast of one of the most important civil rights challenges of the decade. It not only disregards the discretion given to the trial court, but ignored that fact that this pilot program was approved after long debate last month by the Ninth Circuit Court of Appeals. It was left to the trial judges to order such taping in non-jury, civil trials.

What we are left with is that the defense argued that a small number of individuals testifying feared harassment, but none of them actually stepped forward to say that themselves. Because of that fear, which as Jonathan states could be mitigated by camera positioning or the like, all of the testimony from the vast majority of those on the stand during this trial is blocked from public viewing.

Jonathan continues:

The issue went to a Court that has historically opposed taping its own proceedings. Most of the justices do not want cameras in the Supreme Court and some have hinted that they might leave the bench. The objection is perfectly absurd in my view. There is no reason why the public should have to stand in line to get a few seats in the chamber rather than watch the proceedings on C-Span. Yet, conservatives knew that this was the perfect group to which to appeal the California ruling.

Seriously? Members of the court would really stamp their feet and retire if cameras were in the courtroom. Perfectly absurd indeed.

I find the decision of the majority to be troubling. I believe that the objections to the district court “amending” the rules was a valid matter to put before the courts. However, in the end, it is a matter normally left to the local court and circuit. It not only serves to reaffirm the view of many of a political agenda on the Court, but it suggests that the Ninth Circuit cannot police its own local rules on public access and viewing.

Ironic isn’t it that Olson/Boies are involved on the same side of a case that received a ruling tinged with politics, rather than substance. SCOTUS is at its worst with rulings like this one.

For another take on the ruling, Jenny Pizer of Lambda Legal is guest blogging over at LGBT POV:

The high court’s majority decision is troubling in its accommodation of Prop 8’s proponents’ supposed fears of harm. As the dissent points out, the standard for Supreme Court interference with trial court management of such things is high and the evidence of threat submitted was paltry at best. In other words, despite the many excited claims, when the details are parsed out, there’s just not much there, there.

The antigay defamers’ apparent success (still) at casting themselves as victims who need defending (like their marriages?), while running campaign after powerful campaign to eliminate gay people’s rights, is an Orwellian problem calling for a reality check. But the absurd victimhood claims of right-wing political operatives and religious leaders are not the heart of the Supreme Court ruling. Instead, the court simply concluded that proper procedures were not followed for changing the court rules about broadcasting.

Most importantly, this isn’t a ruling on the merits of the Olson-Boise marriage case. The issues are entirely unrelated.

That last line really cannot be repeated enough. The ruling by SCOTUS was wrapped up in their own personal dislike of video cameras in the courtroom. It was not about the substance of this trial.

Again and again the other side has portrayed themselves as victims (see more from Robert on victimhood) while they simultaneously work to suppress the rights of a minority that has long been subject to enormous hatred and discrimination. It’s despicable and at the same pretty incredible how successful they have been at it. It’s impossible to know how many LGBTs might have faced less discrimination, harassment and pain from the airing of this trial and the subsequent changing of hearts and minds.

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  • 1. Warren  |  January 14, 2010 at 8:27 am

    So how do we counter it? Can we launch an all out media blitz with the witnesses being interviewed, re-enactments, commercials, what???

    the other side has the very effective method of distributing their information through churches, we have to find a way to get the stories and the facts out. How can we do it though?

  • 2. keithincali  |  January 14, 2010 at 2:54 pm

    I liked the idea of having actors reenact it from the transcript. Maybe someone can turn it into a movie or a documentary.

  • 3. whabbear  |  January 14, 2010 at 8:29 am

    It's also relevant, if perhaps somewhat self-evident, to note that in the case of every pro-Prop 8 activist, their decision to get involved and fight to deny rights and freedoms to gay men and women and impact our lives in a negative way was entirely voluntary. They chose to do this. The fact that they're now screaming foul over negative consequences in their own lives is ironic in the extreme.

  • 4. Mykelb  |  January 21, 2010 at 6:06 am

    It's not only ironic, it's cowardly and bereft of integrity. When one goes out to destroy another's position in society by making one's innate sexuality the issue of legal fodder, one must have scientific evidence that the questioned innate sexuality harms the general public. I see no scientific evidence that is the case. The far radical religious right is doomed to failure because they cannot show scientific evidence of any harm our lives cause to the public and never will be able to do it because we only amount to less than 5% of the population (conservatively). What can 5% of the population do to 95% of the population? Absolutely nothing. Their fears and trumped up harm are irrational and baseless.

  • 5. Holcombe  |  January 14, 2010 at 8:30 am

    While the ruling doesn't deal with any of the subject matter in the Olson-Boise case, it does indicate a LOT of attention and verbage paid by SCOTUS in a ruling that helps the defendents (by reaffirming their fictitious "victimhood," by keeping public opinion from being swayed by the obvious bigotry playing out in court, by allowing them to "reinvent" the courtroom testimony on their no-comments-allowed blogs).

    It is serious business!

  • 6. Gray Peterson  |  January 14, 2010 at 8:48 am

    Then the best thing we can do is to get the trial transcripts in .pdf format and spread it out there on the internet as much as possible

  • 7. JonT  |  January 14, 2010 at 8:59 am

    Is this possible? Will 'official' trial transcripts be made available by the court?

  • 8. Meh  |  January 14, 2010 at 8:51 am

    I really like the idea of televised trials. The information the majority opinion opines needs protection (identities of witnesses) is already available via other venues, so that argument falls flat on it's face.

    That said, the dissenting opinion really disappointed me. The argument that XX,XXX thousand people expressed a desire to have it televised vs. only XX people objecting to it ALSO falls flat on its face.

    The XX,XXX thousand people were signatories to a single petition — in short, only providing one argument in favor of the trial being broadcast.

    Justices weigh ARGUMENTS, not the number of people behind a single position. A million people could stand behind one invalid argument, and a single person could stand up a present a better argument, and the court should defer to the single better argument rather than giving weight to the volume of the voices.

    I don't agree with the decision, but we kinda dropped the ball on this one.

  • 9. Matthew S.  |  January 14, 2010 at 9:05 am

    Not that it matters, but I'm fairly certain I read on this very site (somewhere) that the majority of the signatures were from the Courage Campaign and were on individual letters with individual addresses– not XXX,XXX signatures on one petition.

  • 10. Meh  |  January 14, 2010 at 9:19 am

    If true (haven't seen this), I stand corrected.

    The same problem remains though: even if 100,000 people essentially said the same thing, it's not the number of people that counts — it's the validity of various, unique arguments that count.

    That's why I'm disappointed that the dissenting opinion highlighted the volume, rather than the quality and validity of *specific* arguments.

    Since this is a case where we're trying to get the "tyranny of the majority" overturned on a constitutional basis… it seems odd to see dissenting justices argue that majority opinion should influence their decision regarding televising the trial.

  • 11. ncooty  |  January 14, 2010 at 9:05 am

    The plaintiffs presented the public comment information, because the defendants claimed that there was insufficient time for public comment.

    Those numbers were by no means the totality of the plaintiffs' arguments.

  • 12. Beth  |  January 14, 2010 at 9:26 am

    I disagree. Of course, in court itself, when you're before a judge, legal argument is what matters (and all you need is one winning argument, obviously, in which case numbers are totally irrelevant). But this wasn't about a substantive argument in court — it was a period of public comment on a proposed rule change. When you're inviting public comment on a rule change you ARE talking about quantity — because courts are funded by taxpayer dollars, taxpayer opinion counts, even when it's very ill-informed opinion. So in a case like this, even the quality of the argument isn't necessarily as important as the quantity of support.

  • 13. curiousgeorgie  |  January 14, 2010 at 3:20 pm

    According to this, there were 326 letters from other sources, still 10 times as many as the opposing argument.

  • 14. Beth  |  January 14, 2010 at 8:56 am

    Hmm. Well, if certain members — and perhaps that 5-4 ruling could help us determine which ones — would leave the bench if we allowed cameras… then I say, bring on the cameras!

  • 15. Mykelb  |  January 21, 2010 at 6:09 am

    Beth, all you have to do is to read the dissenting opinion…They weren't cowards and signed their names to it. You will be able to figure out who the other 5 were by elimination.

  • 16. Nathan  |  January 14, 2010 at 8:59 am

    I say, put cameras into the Supreme Court and let those Justices who don't like it walk. I have a pretty good idea who those Justices are, and would be happy to see them go. They can be replaced.

  • 17. Matthew S.  |  January 14, 2010 at 9:01 am

    Wasn't it one of the Michael Jackson trials that was re-enacted daily on Court TV (or some other station) since the proceedings were not allowed to be televised? Some cable channel or at least a budding filmmaker could do a bang up job re-enacting this every day. Considering how many of the networks are desperate for revenue streams, it's shocking to me that somebody hasn't explored this yet. This might be one time where being exploited might be a good thing.

  • 18. C L  |  January 14, 2010 at 9:21 am

    By disallowing cameras what Prop 8's supporters are really doing is trying to slip this under the noses of the majority of Californians. In the absence of footage to show on TV, this trial gets less press coverage (and right now it's got a massive natural disaster to compete with for people's attention).

    The only possible counter to this is, sadly, a protest at the courthouse on the level of the day-after protests we saw when Prop 8 passed. But I'm not sure that would be possible to pull together.

    The issue of cameras in the courtroom have as much to do with the rights of all Americans as they do with this specific issue. In the case of a trial that can materially affect the civil rights of all Americans, Americans have a RIGHT to watch the proceedings.

  • 19. keithincali  |  January 14, 2010 at 3:06 pm

    Lady Justice wears a blindfold to signify that justice is blind to fear or favor, regardless of identity, money, power, or weakness and that judgments should be ruled on objectively.

    What the SCOTUS just did is blindfold the public from seeing and hearing the truth.

  • 20. Paul  |  January 15, 2010 at 2:57 am

    Is the trial still being broadcast at local courts throughout the state? If so why not have marches across the state to the local court houses?

  • 21. truthspew  |  January 14, 2010 at 9:50 am

    And of course the anti-gay side is crowing about the single "death threat" they received. I happen to know that the event was a tongue in cheek thing and not a death threat.

    I countered that with a post on my blog that told Maggie Gallagher and the Heritage Foundation that while LGBT people have suffered all the same discrimination as the former party lays claim to, while the former party has received a "death threat" our side of the argument has actually seen other LGBT people MURDERED for being themselves.

    The USSC is out of line on this one. Tell me, can a District/Circuit court tell the USSC to go get stuffed and just do it anyhow?

  • 22. keithincali  |  January 14, 2010 at 3:09 pm

    The gay community lives in a reality that they can be killed at anytime for who they love. I don't think there has ever been a documented case of gays going around and bashing straight people–it's the other way around. The prop 8 supporters are only afraid of being outed for the hateful bigots they are.

  • 23. Ted  |  January 14, 2010 at 9:50 am

    Judging a person's veracity is not possible by reading a written transcript. Body language, timing, facial expression and many other factors are involved in judging the validity of their testimony, This is part of the whole basis of being able to "face your accuser" in a court of law. If this is a requirement for a fair jury trial, why is it not also a requirement when reporting a trial?

    By restricting the public to written testimony, you also deny the public the full range of tools available to make an informed opinion as to whether a trial was adjudicated fairly.

    An uniformed public, based on decisions delivered without full and open access to the processes that lead to them, cannot make rationally and fully-informed decisions in the future.

  • 24. Nikki  |  January 14, 2010 at 10:18 am

    This might be a naive question, but can one sue the feds for release of the video tapes of the trial under the Freedom of Information Act? I can see nothing in the list of FOIA exemptions that exempts non-criminal federal court trials from FOIA…

  • 25. Nikki  |  January 14, 2010 at 10:28 am

    Here's another thought…outside the court house is public access. We should have someone with a camera or video cam shoot stills and/or video of all the parties involved in the trial on both sides–lawyers, plaintiffs, expert witnesses, etc.–as they enter and exit the courthouse. Then we can lay the reading of the trial transcripts over the video and stills of the appropriate individuals. It would not be as telling as the actual video but it would force the burrowing rats out into the sphere of public scrutiny where they belong.

  • 26. julie  |  January 14, 2010 at 10:33 am

    The live documentation of this historical event is priceless. not to diminish the serious nature of all this-our next step- get the transcript of the trial rush it into production as a movie- place it on you tube and watch it go viral. not the same as live- but info gets shared. now who will play the handsome live bloggers? and the rest of the hard working contributors?some levity and thanks for all the hard work! 😉

  • 27. activecitizen54  |  January 14, 2010 at 10:47 am

    I can't thank you enough for your hard work and dedication to this project. It is with great gratitude that I read the day's events. I'm a 55 year old Gay Man with a Gay Son and a Not-Gay Son who knows from life experience what these issues are all about. Thank you for your Courage, pride and diligence.
    Kevin Andrews
    Out, Proud and Never Giving up Hope.

  • 28. Elw  |  January 14, 2010 at 12:08 pm

    The important learning here is that is is the 5-4 split foreshadowing vote the scotus will engage down the road. Forget the cameras, now that we've lost them. Concentrate on strategy for the 5 judges who, today And iin near future term, will surly decide to uphold prop8.

  • 29. J.P.  |  January 14, 2010 at 12:33 pm

    I hope Dustin Lance Black can take note of all the dialogue of this trial and make it into one big movie…. oh to dream. 🙂

  • 30. DanO  |  January 14, 2010 at 1:51 pm

    J.P., I don't think that's a half bad idea. Take the transcripts and re-enact the trial. I believe it's been done before when cameras weren't allowed in the trial.

  • 31. B  |  January 14, 2010 at 2:15 pm

    While a lot of people probably just signed a petition, others, including me, sent the court comments in support of broadcasting the trial, providing our own arguments as to why that should be done

  • 32. keithincali  |  January 14, 2010 at 2:31 pm

    It shows they have something to hide. Our justice should be blind but instead we are the ones who are blind. We own the SCOTUS not the other way around. The people must demand transparency. If the old bigots don't like it they can leave.

  • 33. keithincali  |  January 14, 2010 at 2:36 pm

    Gays are being harmed everyday by their second class status but does the SCOTUS help us? Hell no. We live in constant fear of being beat up, or even killed just for holding hands in public at the wrong time. And these bigots get off on that. It turns my stomach.

  • 34. Paul  |  January 14, 2010 at 5:18 pm

    I think maybe we should stop being afraid of being harmed, even if we know it might happen. By being overly sensitive to the discomfort or homophobia of others we're actually hurting ourselves. If we hold hands in public and we get assaulted because of it, that's just more evidence that we are under attack.

    I'll admit that whenever I go to the zoo, and I do quite often since I have a full membership, I don't hold my partner's hand even if I want to out of fear of what other people will think or do. Instead I think I should dismiss that feeling, just go for it and if there are consequences, stand up for myself.

  • 35. Mykelb  |  January 21, 2010 at 6:13 am

    Paul, do yourself a favor and get a stun gun if you want to protect yourself.

  • 36. Carole L Vincent  |  January 14, 2010 at 3:57 pm

    If I understand the Supreme Court's decision correctly, it was to block the showing of the trial in the five other federal court houses around the country. I've read elsewhere that the Supreme Court did not address a delayed showing on YouTube. Am I mistaken?

  • 37. Doug K.  |  January 15, 2010 at 2:12 am

    My Facebook status update from yesterday: – Dear U.S. Supreme Court : transparent public discourse about same-sex marriage is the honorable and respectful approach. Therefore, let's televise Perry v. Schwarzenegger to allow for an educated response to these changing times. Let's not erase and repress history for the protection of the majority, and further the exploitation and humiliation of the LGBT minority. This is 2010.

  • 38. Pete  |  January 19, 2010 at 12:54 am

    I hope I don’t get cyber yelled at for this, but I can’t help but notice that without the televised footage we are forced to read the limited resources offered the American Public ?) covering the trial. (Hello, don’t my over-taxed dollars pay for the damn courtroom. My best out to Courage Campaign and FDL for their unwavering coverage. However, it is exceptionally biased writings (yeah it’s my bias too, but still). I went over to check on “the other side” ie The Christian Post and was horrified to read their coverage of Dr. Lamb’s testimony. I asked myself if they were watching the same trial I was but, Doh’ I forgot, televising how our civil rights are decided is a no-no (Are these Justices spending a lot of time in China? Can anyone say repression of facts?) Long story short, without unbiased reporting the justice system is doing itself a great disservice, and a greater injustice to the American people.

  • 39. joey lesperance  |  January 19, 2010 at 9:47 am

    Fear of harassements? This is a joke! What the witness is fearing, is to look like the bullie that is is.
    I never heard about a bunch of gays bashing anyone, but I got bashed twice because I LOOKED gay.

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