As previously discussed in this blog, the highly publicized hearings on the constitutionality of California's Prop 8 ban on gay marriage was proposed to be one of the first federal hearings to be filmed by cameras. In a compromise, Judge Vaughn Walker, who is presiding over the courtroom, intended to have the filming not streamed live (except to other courtrooms within the jurisdiction), but posted at a later time on YouTube. Yesterday, the Supreme Court called a halt to all discussion of filming the Prop 8 proceedings.
In a 5-4 split, with the more conservative judges (Justices Roberts, Alito, Kennedy, Scalia and Thomas) in the majority with an unsigned opinion, the Court extended the stay on filiming they had ordered on Monday, until after an appeal on the camera issue is heard. This effectively negates any chance of the proceedings to be filmed. The majority took Judge Walker to task for allowing the cameras to enter the courtroom, writing they, "determine that the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirements of procedural regularity on others, and must follow those requirements ourselves."
The majority added that a case as highly publicized and polarizing as this one was not a good candidate for any pilot program involving cameras in the courtroom.
The dissent, signed by Justice Breyer (who also dissented to the original order) wrote for Justices Sotomayor, Ruth Bader-Ginsburg and John Paul Stevens challenging the High Court's authority to "micromanage district court administrative procedures in the most detailed way," and questioning the general supervisorial power cited by the majority. The minority asked if there were not other entities that should oversee such matters as these. The dissent also disagreed strongly that the case had even been made in the first instance to block the viewing outside the courthouse.
SCOTUS blog opines that for a usually slow moving court to deliver a 17 page opinion and a 10 page dissent in two days indicates they may have previously made up their minds on this issue. The court ultimately turned to the issue of the presence of cameras potentially "chilling" the first amendment rights of the hearings participants. In an age where everyone (perhaps outside the 9 nine justices of the USSC) is Twittering and Facebooking their every move, is an argument that expression could be inhibited by more reportage still valid?