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A Wise Ruling? Judging the Supreme Court's YouTube Pause

BY Nancy Scola | Tuesday, January 12 2010

You're probably aware that the Supreme Court is the reason why you didn't see any post-trial highlights from Day One of California's major Prop 8 trial on last night's news. This is the big trial that's made news mostly because it's being litigated by the odd couple of Ted Olson and David Boies, known better as the opposing quarterbacks during a little case known as Bush v. Gore. Federal judge Vaughn Walker had arranged a planned to post time-delayed video footage of the proceedings on YouTube, but the berobed nine stepped in at the last minute yesterday and, with the dissent of only Justice Breyer, ordered Walker's court to stay away from YouTube (and, also, to quit from its plan to stream the trial to other federal courthouses).

The Supreme Court's one-page ruling is here, including Breyer's statement that, in his judgement, the claims made by the anti-YouTube crowd "do not show a likelihood of 'irreparable harm.'"

So, were the Supreme sans Breyer just reacting out of fear and oldtimeyness in telling Judge Walker to step away from the YouTube? Slate's Emily Bazelon considers whether it's that -- or whether there are legitimate concerns that those citizens who are testifying against same-sex marriage shouldn't have to face the disapproval of anti-Prop 8 folks across the country (and in their neighborhoods) after they come in for criticism on Countdown. Those witnesses didn't sign up for that when they agreed to part of the case, the thinking goes, and no matter where you come down on the issue of same-sex marriage, the American people have an interest in protecting the freedom for people to say unpopular things. Bazelon, fleshing out the case against YouTube'd courts here:

There is an argument on the other side. The Judicial Conference of the United States, the governing body for the federal courts, made it clear in general terms most recently in a letter to Congress last July. The conference is worried about "interfere[ing] with a fair trial," by affecting how the people who participate in the trial behave. "Witnesses might refuse to testify or alter their stories," the judges who make up the conference wrote. "Embarrassing personal information" about them could be revealed. And the witnesses might grandstand. In opposing the YouTube broadcast for the gay-marriage opponents, lawyer Charles Cooper argued that even though this is a civil trial, and the witnesses are appearing voluntarily, they could suffer intimidation or harassment. Cooper brings up the "hostilities and harms" that followed the disclosure of the names of people who donated to the campaign for Prop. 8, the ballot measure banning gay marriage that the Perry suit is challenging...

In the end, though, Bazelon for one seems to come down on the side of openness. The trial could have huge educational value, particularly in a case, like this one, where so many competing interests are at stake. YouTube or no? It's a difficult question, and one that one hopes the Supreme Court is really wrestling with right at the moment. They've given themselves until 4 p.m. tomorrow to make a decision on whether or not Judge Walker can stick to his plan of streaming and YouTubing the Prop 8 case, one that might prove to be an earthquake to the marriage landscape in this country.

The Supreme Court tends to treat the idea of cameras in the courtroom as a gnat, a nuisance to swat away. They've never, generally speaking, demonstrated much of an open mind for the idea that the inviting the public into the courtroom has a great deal of redeeming social value. Perry vs. Schwarzenegger might prove to be as much of a landmark case on the "open courts" front as it is on the marriage one. Stay tuned. (Photo credit: ken mccown)