Tuesday, January 12, 2010

Cameras and Prop 8

By Mike Dorf

Yesterday, the Supreme Court issued a temporary stay of the plans of the district court in the case challenging California's Prop 8 to make video of the proceedings available online in real time.  Justice Breyer dissented but expressed satisfaction with the temporary nature of the stay--only until tomorrow, Wed, at 4 pm--so the Court can give the issue full consideration.  For a backgrounder on the case, see this BLT post.  Here I'll register a quick thought of my own in real time.

Let's put aside the question of a stay--which puts a special burden to show irreparable injury on the party seeking to overturn the lower court decision, here the sponsors of Prop 8.  Focusing only on the underlying merits, there are two very different sorts of grounds for not making judicial proceedings available live (or delayed) over the internet, on tv, or via other means.

First, there is the general worry that in every case, the presence of cameras broadcasting to the world will change the nature of the proceedings. In seeking the stay, the sponsors of Prop 8 cited the fear of creating a "media circus," a not very precise or helpful term.  You say media circus; I say freedom of the press.  The worry is not that the press will behave badly and somehow disrupt the courtroom.  Rather the worry is that lawyers, witnesses and perhaps even judges will ham it up or otherwise "perform" in a way that they would not in cases not going out to a worldwide viewing public.

Although Supreme Court Justices have credited these sorts of worries--especially with respect to their own proceedings--I find the claim unpersuasive.  The Richmond Newspapers case finds a First Amendment right of public and press access to criminal trials, absent a compelling need to close them, and its logic would seem to apply at least as strongly to civil cases.  To limit access to pre-1930s technology should require a strong justification.  The "hamming" worry is hard to assess.  Once cameras and thus web or tv access become routinely part of the trial process, one might expect trial participants simply to forget about them.  At the very least, that's what various experiments--including in the Prop 8 case itself--aim to find out.

The second argument--for closing this particular trial to tv/internet broadcast--rests on a claim that the sponsors of Prop 8 will be subject to reprisals, intimidation, etc.  But of course the substance of everything that would be viewable via the internet will be accessible to any interested members of the public even without cameras.  Although I have previously expressed sympathy for the claim that signers of a petition like Prop 8 ought to be able to maintain their anonymity, sponsors are in a very different category.  To borrow from the Supreme Court's First Amendment doctrine governing defamation, the sponsors have thrust themselves into public controversy.  Absent specific credible threats of the sort that would justify actually closing the trial entirely, I don't see the case for keeping the cameras out.

The real worry, in the end, is probably just the opposite.  So much of what happens in court--even in high-profile cases--is boring, incomprehensible to the lay public, or both.  Maybe the Justices want to keep the cameras away to avoid losing the ratings contest to reruns of Law & Order.


Sam Rickless said...

Hear hear!

I think there is no question that the default should be that court proceedings be open. Consider the "hamming it up" problem. As it is, courtrooms are not closed to spectators. Even at the Supreme Court, there are numerous people not involved in the case who are watching the proceedings, and the judges know this. There is little doubt in my mind that Justice Scalia hams it up at least in part because he knows that he is being watched by interested parties other than the justices and lawyers involved in the case. Would he ham it up *more* if he knew that television cameras would be capturing his every move? There is no reason to suppose that he would. (Today he held his head in his hands and moaned "no, no, no, no".) For what it's worth, I am not more of a ham in front of 300 students than I am in front of 100. Would I be more of a ham if I knew that C-Span (with its dedicated viewership of 5,000, give or take) had brought its cameras into my lecture hall? No.

More interesting is the worry that, with the cameras on them, judges would be excessively self-conscious about their gestures, their tone of voice, their posture, and so on. This self-consciousness would distract them from the issues at hand, would make it more difficult for them to concentrate on the business of the court, and might well reduce the opportunities for meaningful intellectual give and take at oral argument. I understand these worries. But I watched the televised oral argument on the legality of Prop 8 in front of the CA Supreme Court, and I didn't notice the judges being weird. This is because they are grown-ups, with years of experience discussing legal matters in front of spectators. A little self-consciousness won't hurt any.

And as for reprisals and intimidation of Prop 8 supporters, don't make me laugh. Gay people, not their persecutors, are subject to reprisals and intimidation in this country.

egarber said...

Let me play Floyd Abrams for a moment and ask a question:

If the mere perception of trouble -- distraction, intimidation, etc. -- isn't enough to trump the need for First Amendment open-ness here, why is it sufficient to curb rights in the campaign finance context? In campaign finance, the perceived trouble is corruption.

One answer might be that protecting "democracy" is also a competing interest, so in the spirit of Breyer, that would be the consistent thread in favoring cameras and campaign finance rules.