“By January 8, 2010, the Court had received 138,574 comments, all but 32 of which favored transmitting the proceedings,” writes the dissent in the Prop. 8 broadcasting case.
Nor do I think that the dissent’s use of that statement later in the opinion is that helpful: “Then, on December 31, the Court revised its public notice to ask for comments directly. By January 8, 2010, the Court had received 138,574 comments, all but 32 of which favored transmitting the proceedings.” (I assume that these comments were received through the Court’s Web site.) [UPDATE: Ed Whelan, a critic of the district judge's actions in this case reports that "138,248 of the supportive responses were signatures solicited by an activist group called the Courage Campaign that launched a petition drive urging its supporters to sign their names to a letter to Walker that 'insist[s] that the trial of Proposition 8 be televised.”” He also reports that he believes “the petition was hand-delivered” because the court “refused to accept electronic submissions.” I appreciate the correction, but I don’t think it affects my bottom-line analysis.]
The 138,574 number suggests that the comments were the result of a campaign that was quickly organized by supporters of broadcasting. The number doesn’t say much about whether members of the public more broadly — including those members of the public that might have special expertise on the subject — had enough time to learn of the issue, consider it, and comment on it.
None of this is dispositive of the merits of the stay petition, of course; nor do I mean to fault the organizers of the pro-broadcasting comment campaign — they were exercising their constitutional rights, and apparently with considerable effectiveness. I just wanted to point it out as a weak use of evidence (something that I’ve written and blogged about before in other contexts).
UPDATE: Commenter PeteP suggests that the transmission to the five other courthouses “exponentially increases the likelyhood that someone will record it ( off the screen / audio feed ) with a cell phone etc in one of those remote locations, where the presiding judge can not personally control security.” I suppose that’s possible, but I take it that the standard remedy for this risk — present in every trial — is to have marshals monitor the audience for such behavior. So long as the marshals in the other courtrooms are instructed to monitor the same way as they would be in the main courtroom, does the risk of unauthorized cell-phone-recording really increase that much? Maybe it does; I’m just not sure that the somewhat increased risk is enough to weigh heavily in the balance of hardships.
ArthurKirkland says:
Weak, perhaps, but fitting given the underlying dispute — could it be any weaker than the attempted use of the Bible as authority to excuse discrimination against homosexuals?
January 13, 2010, 6:12 pmMike McDougal says:
Is your argument that the evidence is too good to be good?
January 13, 2010, 6:13 pmVolokh Groupie says:
The argument is that such ‘evidence’ isn’t proof of anything except that such a statistic can be created.
[Paragraph deleted for pointless vulgarity. -EV]
January 13, 2010, 6:19 pmEMB says:
Were there really 326 other people who sent separate letters in favor of the broadcast? (Even 32 seems if anything surprisingly many.)
January 13, 2010, 6:44 pmJasonF says:
Let’s assume Whelan’s reportage is accurate (I have no reason to believe it’s not, but no reason to believe it is, either), and let’s assume petition signatures are worthless as an indication of people’s opinions and preferances (a dubious assumption and one that our political system generally does not make, but let’s make it here). Even so, you’ve still got more than 350 comments to the proposed rule change — in my experience, that’s a relatively large number of comments for a proposed change to procedural rules, let alone a proposed change to procedural rules in one judicial district. Further, the comments run ten to one in favor of the rule change — it’s not exactly a close question among the commenting public.
January 13, 2010, 7:19 pmMike McDougal says:
What statistics aren’t “created”? Are you advocating for a scientific sampling and public polling requirement?
January 13, 2010, 7:23 pmKen Arromdee says:
Signatures and letters are respected by politicians because the signatures and letters are proportional to the amount of support from the general public. If you increase the number of signatures and letters by any method other than getting more supporters–such as campaigning–the logical politician will compensate for that by treating the signatures as less important. He’s not really interested in signatures as an end in themselves, after all, but in what they signify.
It’s not 100% correct because being able to campaign for signatures may also mean being able to campaign for more voters, but in general this is why letter and signature campaigns fail, and why signatures are worth less the easier they are to get. Campaigning for signatures (or letters) is really a kind of cheating. And even politicians will catch on.
January 13, 2010, 10:18 pmKevin says:
I assumed that the transmission would be intercepted or recorded between the court houses.
January 14, 2010, 12:15 amEric Rasmusen says:
The dissent is appalling. Did a clerk write it while Breyer was on vacation? The use of comment numbers is an example. Am I wrong in thinking that when judges and regulators ask for comments they’re asking for information rather than for a vote by the public? What is the formal principle on that? As a commentor said, elected officials count heads, or, more precisely, count heads weighted by political influence and estimated intensity of preference. Judges aren’t supposed to do that. Even if the comments are 200,000 to 1, a judge should not be criticized for saying that the 1 had a better comment and he’s going with that guy.
In this case, the fact that a lot of people sign a petition is indication that they think there’s a benefit to broadcasting, which is useful as evidence, though I think unnecessary since it is already clear that a lot of people want a live trial in which the judge unlawfully favors opponents of Proposition 8.
But that brings up the main purpose of a comment period. It’s not to allow supporters of a rule change to cheer on the rulemaker. It’s to allow people to criticize the change so that the details can be improved or the change can be dropped. If teh comment period is shortened to five minutes, loss of the supportive comments is no harm, since the rule will go through anyway. Loss of the critical comments is the loss (and, of course, once there is time for critical comments, supportive comments that counter the critical comments become useful).
January 14, 2010, 10:37 am