Or live streamed. Or posted to YouTube, it seems. The Supreme Court has ruled to keep the cameras turned off during the Perry vs. Schwarzenegger trial that began Monday the federal courthouse in San Francisco. SCOTUSBlog's Lyle Denniston has a great look at the 17-page ruling. The justices broke along the conservative-liberal divide, with Justice Anthony Kennedy joining Justices Roberts, Alito, Scalia, and Thomas in the majority opinion. Those justices seemed to take particular issue with the fact Judge Vaughn Walker of the California Northern District Court had moved to gear up the federal courts' video "pilot program" in a case this controversial. Here's Denniston's take:

As a practical matter, the ruling almost certainly dooms any broadcast coverage of the trial as it goes on. The trial’s length has been estimated variously at two weeks to several weeks. There is no indication that final Supreme Court action on the dispute would be speeded up to the point that the question could be resolved during that brief span of time.

The Court gave the supporters of the Prop 8 ban two options to seek a final order against the television coverage: they could (as they have indicated they would) file a petition for review from the lower courts’ orders, or they could file a petition seeking what is called a “writ of mandamus” -- that is, an order from a higher to a lower court to take, or not take, some action. The Court did not indicate whether it would grant review of either approach, although Wednesday’s order was a strong hint that it would.

And, in fact, the main opinion seemed to indicate that the Court, in the last analysis, would not permit the coverage in any event...

(Photo credit: Sonomabuzz)

From her seat inside the federal courtroom, LGBT POV's Karen Ocamb picked up on federal judge Vaughn Walker testimony yesterday that, judging from the official comments he received, public sentiment leaned heavily towards posting video from the Prop 8 trial to YouTube:

Walker then said that he received “a substantial number of comments by 5:00pm Friday -- 138,574” with the “overwhelming majority in favor of the rule change; there were 32 comments opposed. People laughed. He said uproar, however, was “very helpful” -- noting that it is “highly unfortunate” that the courts have not dealt with the issue of public access in the past. “Finally, after some 20 years, we’ll get some sensible movement forward,” Walker said.

It's weird. Without a video feed from the trial or even an official transcript, trying to find out what's really going down inside that courthouse in San Francisco is like engaging in a trans-continental game of Telephone.

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)

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.

Maybe this is what justice would have looked like had King Solomon had YouTube at his disposal. We noted yesterday that opponents and proponents of same-sex marriage in California were battling over whether or not cameras should be allowed to televise next week's Perry v. Schwarzenegger trial, a case where two Alameda County women are suing the Governator and various other state officials for denying them a marriage license after the passage of Proposition 8. There's been a big move on that front.

Judge Vaughn Walker has just come up with an option (c) -- allow cameras to record the proceedings in real time, and then post the videos to YouTube on the District Court's new channel at YouTube.com/USDCCAND. The San Francisco Chronicle's Bob Egelko has the story. There will be a time lag from a few hours to several hours between what's happening in Walker's courtroom and the posting of videos to YouTube, and Walker will have the option of blacking out the faces of witnesses or muting their voices during their testimony, addressing a concern raised by opponents that broadcasting the proceedings would be witnesses at risk. "I've always thought that if the public could see how the judicial process works, they would take a somewhat different view of it," said the judge.

But there is still a question that remains here about what using time-delayed YouTube postings really accomplish. It looks a lot like Walker could have had the option of protecting witness identities and otherwise shaping what the world sees of his courtroom, even without any gap between real events and the posting of the video. If you hop on over the the court's YouTube channel right now, you can check out Judge Walker, aided by two technicians, testing out the video equipment to be sure that mics can be silenced and witness feeds turned at the judge's command -- and in real time.

Whether or not there is any actual utility to allowing C-SPAN, that eye on democracy sponsored by the cable industry, to broadcast the House and Senate's final negotiations over their respective health care bills is a debate gripping the blogosphere. There seems, generally speaking, to be a particular bent to the critique thus far that focuses on whether transparency-via-video would actually improve how legislation gets made. To catch up on the commentary, check out how the Wonk Room's Igor Volsky (somewhat oddly) uses the vapidness of congressional floor debate, which is often little more than kabuki at this point, to argue against the airing of this final, substantive round. Matt Yglesias concludes that it's "a terrible idea," while Ezra Klein finds himself conflicted about the prospect.

Perhaps fortuitously for advocates of televising how government works, there's a somewhat simpler case on the horizon that highlights the other selling point for institutional camera work: its educational value. Televising government, the thinking goes, can help us all understand how government works, even if it is a total mess. What's come up is that the California judge presiding over the Proposition 8 case Perry v. Schwarzenegger has raised the possibility of allowing a single pool television camera into his courtroom to cover the trial. He's accepting public comments on the matter until Friday. Opponents of same-sex marriage are arguing that, since this is a trial, with witnesses and the like, cameras aren't proper. Generally speaking, though, these same-sex marriage cases are kind of the perfect storm (in a good way) of incentives towards allowing cameras in the court.

There's considerable public interest in the same-sex marriage in general, and Prop 8 in particular. And more than that, we're dealing here with some of the core, enduring questions about the complications of doing democracy American-style. How do we balance the rights of the minority and the will of the majority? How do states and the federal government engage with one another when personal rights are in question? Cameras in the court aren't going to change any verdicts here. (At least one would hope not.) But it could create the opportunity for more people to better understand how the operating system of government works today -- and the mechanisms we have available to change it.

The Courage Campaign, for one, is running a "Televise the Trial" petition drive.

But would anyone watch? Hard to say, but a point in favor of the idea that they would is the March 5th California Supreme Court hearing on the validity of Prop 8. To cite one example, Ana Marie Cox ran a lively live blog of the proceedings, all few hours of it. You had lawyers helping law people parse the nuances of the law, and all assembled debating the moral and social aspects of the case. It was really quite wonderful, and you can't ask for much more than that.

Arlen Specter used some of his time questioning Judge Sonia Sotomayor today to ask her, again, if broadcasting the court's proceedings in the same way Congress's are wouldn't be a boon to the public's understanding of the judicial process. Specter usefully detailed why Congress might have a say on the topic. While the Supreme Court is generally very independent of the legislature, Congress does have a role in shaping procedural matters -- from the number of justices on the court to the right to a speedy trial to setting the date when the court convenes each term. For her part, Sotomayor sticks to her I've-done-it-before-and-I'd-be-open-to-trying-it-again formulation. Video of the exchange is above.

A correspondent writes to suggest that a better title for this post would have been "Cameras in Court: Oyez or Oy Vey?" He is correct.

Yes, I know -- that's a truly disgraceful headline. Sue me!

While we're on the topic of courts (horrendous headlines beget horrible ledes, what can I say), let's talk Supreme Court. More pointedly, the question of whether or not it makes sense for the U.S. Supreme Court to allow cameras in to capture the court's proceedings. Passions flare up about the question of cameras in the courts every few years, often sparked by Senate nomination hearings for potential justices. Who's for and who's against giving the public an eye on what happens in the highest court in the land? Several prominent members of Congress -- notably some of the heavyweights on the Senate Judiciary Committee, including Patrick Leahy, Lindsey Graham, Arlen Specter, Russ Feingold -- have pushed for cameras not only in SCOTUS, but in U.S. appellate and district courts too. C-SPAN, unsurprisingly, wants a chance to bring its cameras inside courtrooms. Scores of newspapers, which would benefit from increased access to the courts, have editorialized in favor of the idea. But some of the nine Supreme Court justices have been resistant to the idea. And by "resistant," I mean things like David Souter saying, "The day you see a camera come into our courtroom it's going to roll over my dead body."

The notoriously publicity-avoiding Souter is, of course, on his way out (thankfully, under his own volition), which is why we're having confirmation hearings for Sotomayor. So where does the nominee come down on the question? Wisconsin Senator Herb Kohl was one among several senators who asked the nominee about where she stands on allowing cameras in the courts. As you can see in the video up top, Sotomayor danced around the question like she was on "Dancing with the Stars." I'm not on the court yet, she said, so rendering a verdict on the role of cameras in the courts would be presumptuous. Fair enough, said Kohl. But surely, given your lengthy experience as a judge, you must have an opinion on the matter? Sotomayor claimed deference to her potential colleagues on the court, saying that she would approach the matter by engaging in collegial collaborative discussion after she donned the robe. (Full transcript of the Kohl-Sotomayor exchange below.)

The thing is, Sotomayor's dodge might actually be an opening...