San Francisco Bay Area federal judges are again floating a plan to allow cameras in federal courtrooms just weeks after the U.S. Supreme Court, in a rare intervention, rejected a similar plan. If approved this time, it is possible that the final arguments in the Prop. 8 could be telecast. -db
February 26, 2010
By Bob Egelko
SAN FRANCISCO — Despite a rebuff from the U.S. Supreme Court, the Bay Area’s federal judges are again proposing to allow cameras in their courtrooms, a plan that could lead to telecasting of closing arguments in a suit challenging California’s ban on same-sex marriage.
The U.S. District Court in San Francisco has posted a rule change on its Web site that would allow its judges to take part in a pilot program of airing selected nonjury civil trials. The public comment period began Feb. 4 and ends Thursday.
The proposal is the same one Chief U.S. District Judge Vaughn Walker adopted in January after a week of overwhelmingly favorable public comment. But the Supreme Court intervened when Walker approved camera coverage of the trial over Proposition 8, the November 2008 initiative that outlawed same-sex marriage.
In a 5-4 ruling, the court – which has refused to telecast its own proceedings – rebuked Walker for shortening the usual comment period.
The court said it was not deciding whether federal judges could televise trials. But the conservative majority did not cite any public benefit in trial broadcasts and said any such project should start with a more routine case.
The justices cited statements by Prop. 8’s sponsors that telecasting outside the courthouse would intimidate their witnesses. Sponsors withdrew four of their six scheduled witnesses, all academic experts, when the trial started Jan. 11 and did not reinstate them after the court barred cameras.
No federal trial in California has ever been shown on television or the Internet. Walker had proposed live, closed-circuit telecasts of the Prop. 8 trial to a few other federal courthouses and a delayed posting on YouTube.
Testimony in the lawsuit by two same-sex couples and the city of San Francisco ended Jan. 27, but Walker postponed scheduling lawyers’ closing arguments until after a final round of briefs, due today.
If his court approves the new rule next week, Walker could allow camera coverage of the arguments along the lines of his previous order, subject to approval by Alex Kozinski, chief judge of the Ninth U.S. Circuit Court of Appeals.
Telecasting lawyers’ arguments, without witness testimony, might pass muster with the Supreme Court, which hasn’t objected to televised hearings of arguments before the Ninth Circuit.
Prop. 8’s sponsors, who opposed telecasting the trial, won’t say whether they would challenge the airing of final arguments.
With no specific broadcast plan on the table, “we’re not going to speculate on how we would feel about that,” said Andrew Pugno, lawyer for Protect Marriage, the Prop. 8 campaign committee.
Prop. 8’s opponents supported Walker’s earlier video plans. They were also endorsed by a group of news organizations that included Hearst Corp., owner of The Chronicle.
The media group’s lawyer, Thomas Burke, said public interest in the Prop. 8 case remains high and that the upcoming arguments should be telecast.
The Supreme Court’s concerns about witness intimidation “are not present in closing arguments,” Burke said. “This is an issue of critical concern to a lot of people. … In our view, the more access, the better, regardless of which side you’re on.”