Supreme Court Disallows Broadcast of Proposition 8 Hearings

In a follow up to last week’s entry, the United States Supreme Court ruled yesterday that the Federal Court in San Francisco cannot broadcast the Hearing regarding the constitutionality of Proposition 8. “The court issued an unsigned opinion that said lower courts had not followed proper procedure in approving plans for the broadcast.”

The court cited to arguments of those who claim such a broadcast would intimidate, and possibly lead to physical harm of, witnesses, stating that “While applicants have demonstrated the threat of harm they face if the trial is broadcast, respondents have not alleged any harm if the trial is not broadcast." However, in the end the majority denied the right to broadcast on procedural grounds. In doing so, the majority states that they are not ruling on the propriety of broadcasting such Hearings if the proper procedures are followed.

In a dissenting opinion, Justice Breyer, joined by Justices Sotomayor, Stevens and Ginsburg, writes that the majority identifies “no real harm” that would result from this broadcast. Furthermore, the dissent argues that the potentially at-risk witnesses have not asked for any type of Court intervention. All the witnesses set to testify, “are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the state advocating a 'yes' vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse." As such, the dissenters opine that the majority’s ruling is “unjustified”.

As I stated last week, I believe that the postings of these Hearings on YouTube (or any other video sharing site) have benefits that outweigh any negatives. As the dissenters state, the information regarding witnesses is already available through other sources, and none of them seem as worried about potential harassment as the arguments seem to set forth.

If there truly are procedures that were in place and not followed regarding the broadcast of this Hearing, than the Supreme Court’s ruling is easier to understand. It is no less proper to allow special circumstances to permit the broadcasting of this Hearing than it is to allow special circumstances to prevent the broadcast. It is no less proper to allow the broadcasting of a controversial Hearing through “special procedures” than it is to allow unfounded potential outcomes to disallow the broadcast. It is unfortunate that this Hearing will not be made available for viewing, but it would be improper for an exception to be made based purely on the subject matter and public interest in the case.

For the full article from the Washington Post, click here.