The latest on televising important court cases

The latest chapter in the long debate over televised court proceedings arose in the ongoing federal trial in San Francisco over California Proposition 8 barring same-sex marriage. In that case, Hollingsworth v. Perry, both sides on the incendiary issue have lined up articulate lawyers, spokesmen and expert witnesses to propound their views. Whatever one’s views on the substantive subject of gay marriage, the case presents an interesting opportunity to educate the public on a contentious issue of contemporary policy.

The issue in the case wasn’t whether the trial would be covered by Court-TV or C-SPAN or another network. It was whether the trial could be broadcast closed-circuit to five other federal courthouses in the United States (two in California and one apiece in Seattle, Portland, Ore., and Brooklyn) a practice occasionally allowed (the Oklahoma bombing case is a recent example). The trial court said yes, but the United Sates Supreme Court stayed the application of the ruling because the trial court had not followed proper procedures for doing what it did.

The U.S. Supreme Court opinion stated that its decision was “confined to a narrow legal issue,” whether the District Court complied with local procedural rules. The court stated, “We do not here express any views on the propriety of broadcasting court proceedings generally,” an avowal cynics will find difficult to believe.

The Supreme Court has historically resisted televising its own proceedings, though, decades ago, it allowed states to decide whether to permit televising their court proceedings. Forty-two states now do so (along with several federal trial courts).

The Supreme Court opinion in Hollingsworth referred to old fears about televised trials — that witnesses would be afraid to testify, and that some witnesses are paid, arguments that have been disputed in past debates on the subject. That witness testimony, along with attorneys’ arguments, would be televised was a factor the Supreme Court relied upon, despite acknowledging the important social issues debated in the case.

Four justices dissented: Breyer, Stevens, Ginsburg and Sotomayor — surprise! They noted the limited distribution of the requested television coverage, and the great public interest in this non-jury, civil trial. The dissenters stated the obvious, that “there is a larger question of the place of cameras in the courtroom” involved here, not simply a question of the local administrative rule under question.

The Supreme Court historically does not reach out for issues, especially issues that are divisive in society and within the court itself. It is a matter of Supreme Court policy to decide issues in the most limited, not the most expansive, fashion. That said, the court missed an opportunity to 1) allow a federal trial court to do what the governing trial judge ordered; and 2) deal head-on with an important issue of national judicial administration.

The clear trend in American courts is to permit televised trials unless the rules of the courts involved deny it. This is an especially important question because there is a unique educational feature in some cases, Hollingsworth being a classic example. The public would be edified by controlled rational debate by experts on both sides of the same-sex marriage issue, if this trial were televised beyond a few federal courts themselves — not an issue in this case, but a subject on every interested party’s mind.

The federal courts have been slower than the states in allowing cameras into courts — interesting since the Supreme Court ruled decades ago that cameras in courts were not constitutionally barred. Since that ruling in a Florida state court, the national trend has been to permit the practice in cases like the one in question.

The old argument about television disrupting court proceedings is obsolete since the advent of modern technology. (See photos attached demonstrating that trial bedlam goes on outside courts, not in court proceedings.) Reactionary judges claim television would only show “snippets,” distorting the actual proceedings. But all current news coverage is no more than the reporters’ snippets, while gavel-to-gavel coverage reports the whole proceeding. Some judges fear losing their public anonymity — not a decisive factor when the issues are, as here, so important to a public debate.

For those who advocate more widespread use of televised trials — I am one, and have testified on the subject before Congress on this issue — this case presented a missed opportunity. Then again, this Supreme Court as presently constituted — had it dealt with the issue of televised trials — probably would have voted 5-4 against. Perhaps advocates should welcome its ducking the issue.

Visit www.RonaldGoldfarb.com.