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Supreme Court Tells CA Prop 8 Judge to Hold Off on YouTube

BY Nancy Scola | Monday, January 11 2010

A very intriguing development in the ongoing debate over what to do with video from the major Proposition 8 trial starting in San Francisco today: SCOTUSblog's Lyle Denniston is reporting that the U.S. Supreme Court has just decided this morning, against the objections of Justice Stephen Breyer, to enforce a delay in distribution of the video, including the planned posting to YouTube. According to Denniston, the delay will be in effect until at least 4 p.m. on Wednesday. That means, at the very least, that today's opening day of the case, which seeks to judge California's same-sex marriage restrictions unconstitutional, won't be watchable to anyone not sitting inside the federal courthouse in San Francisco until later this week at the earliest.

Lined up against broadcasting live or slightly delayed video feeds of the case are folks who have argued that since this is a trial -- with real live witnesses and the like -- video available for all the world to see could be damaging to same-sex marriage opponents. Part of the context here is another recent battle over putting the names of pro-Prop 8 petition signers online. Also part of this story: the fact that the Supreme Court has traditionally resisted calls to broadcast its own proceedings. Breyer himself has spoke about his concerns that videos of arguments made by lawyers before the Supreme Court would reveal only "2 percent of the matter" to the public.

This debate over video in the Perry vs. Schwarzenegger case is one well worth keeping an eye on. What's more important here, transparency and the educational value of watching the judicial branch in action? Or shielding those who might have unpopular politics from public opprobrium? Judges, from the federal circuit in California all the way to the Supreme Court are attempting to strike a balance that just might come down to making core judgments about when the gap between "real time" and posting time makes a YouTube video no longer worthwhile.

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