As I understand the procedural posture of the stay application in the Prop. 8 transmission case, the only thing the Supreme Court was actually considering was whether the trial may be transmitted live to five other federal courthouses throughout the country. The question whether the trial may be distributed to the public via the Internet was not before the court, because “[a] final decision whether to permit online publication would be made [by the Ninth Circuit] when technical difficulties were resolved.”
If that’s so, and the transmission will be seen only in several other courthouses — as opposed to throughout the nation on YouTube and in excerpts replayed on TV news — then why is there reason to think that such a transmission would materially increase the risk of witness harassment (see pp. 12-13 of the majority opinion)? The transmission would, of course, increase the size of the audience, but no more than holding the trial in an extra large courtroom would. And most of the extra audience would be far from California, and therefore not especially likely to be able to effectively harass the witnesses in ways that turn on seeing the witness’s testimony. (Some audience members might harass witnesses by, say, threatening a boycott of their employers, but that would be equally possible based on newspaper coverage of the trial, without regard to whether the trial can also be seen live in several other courthouses.)
This is not necessarily dispositive of the bottom line, since the Court’s chief argument is that the district court’s order violated federal notice-and-comment law; that would be true regardless of the breadth of transmission. But I take it that it would affect the balance of hardships, which is relevant to the question whether the Court should stay the district court order. That, I take it, is the argument on p. 8 of the dissent. Is the dissent correct on this?
PeteP says:
EV – it 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.
What the anti-prop-8 side wants is a podium, a venue to present legally irrelevant witnesses, and ‘tell their story’ to YouTube.
January 13, 2010, 6:23 pmNMissC says:
Both links are to the majority opinion and neither to the Breyer dissent. [EV: They both link to the slip opinion, which includes both the majority and the dissent.]
January 13, 2010, 6:26 pmSteve says:
The dissent makes the point that all of the witnesses are well-known advocates on both sides of the gay marriage issue who have made their views known publicly in the past. It’s not like the witnesses are just average people off the street who are looking for as little exposure as possible.
I’m truly amazed at how desperate gay marriage opponents are to avoid having this testimony televised. Someone might sneak a cell phone into a federal courthouse and illegally record the testimony and post it to YouTube, and that would be irreparable harm… how? The argument can’t be made with a straight face.
January 13, 2010, 6:28 pmRidiculous says:
Are you actually taking the court at face value? This was really a straight up vote on the merits of gay marriage. The conservatives on the court know that if the trial is viewed by greater numbers of people, the Prop. 8 witnesses will lose the nerve to make their absurd arguments, affording the court less of a factual record to support its eventual, pre-ordained finding that there is a rational basis for the discrimination. The fix is in.
January 13, 2010, 6:29 pmVolokh Groupie says:
I don’t think is a balance of hardships point your making as the opinion states that the plaintiffs didn’t allege that they would be imminently harmed if the trial were not broadcast.
I think the issue of harm done to the defendants is a little more convoluted than a simple issue of an increase in the number of viewers due to the broadcast. On page 13, the opinion pretty much stakes out the ‘harm’ that I don’t think you take into account in this post:
Thus, the harm done to the defendants here can be predicated simply on the ‘chilling effect’ that broadcasts would have on their witness testimony. This isn’t to say that there isn’t the slippery slope you refer to with respect to say a larger courthouse as well.
January 13, 2010, 6:32 pmRPT says:
I am confused; legally irrelevant witnesses will not be testifying at trial or broadcast.
January 13, 2010, 6:38 pmVolokh Groupie says:
@Steve
I agree with your second paragraph, its pretty doubtful that the broadcast in a couple extra courtrooms would create a much higher security/media control hazard.
Your first paragraph just restates the defenses’ claim without addressing the opinions claim. Whether you or others feel that expert witnesses are already in the spotlight is irrelevant to whether potential increased harassment from the broadcast would ‘chill’ their testimony according to the court
January 13, 2010, 6:46 pmSteve says:
Whether you or others feel that expert witnesses are already in the spotlight is irrelevant to whether potential increased harassment from the broadcast would ‘chill’ their testimony according to the court
It may not be dispositive, but it’s certainly not irrelevant. Anyway, if the witnesses sign affidavits saying they won’t testify if more than 50 people are watching, will the judge rope off some of the benches? There’s nothing magical about allowing an additional handful of people to watch.
January 13, 2010, 6:58 pmParenthetical Greg says:
EV: Is the dissent correct on this?
Sure looks like it. SCOTUS was ruling on simulcasting the trial to appellate courthouses in the Ninth Circuit (plus a NY federal court). The harm prong of the analysis reads like ipse dixit.
January 13, 2010, 7:00 pmPeteP says:
“I’m truly amazed at how desperate gay marriage opponents are to avoid having this testimony televised.”
The trial is SUPPOSED to be a trial, not a televised circus, first of all. Secondly, it was Judge Walker who decided it could not be televised, not ‘some desperate opponent’.
” Someone might sneak a cell phone into a federal courthouse and illegally record the testimony and post it to YouTube, and that would be irreparable harm… how? The argument can’t be made with a straight face.”
It most certainly can be , and was.
And if the Judge’s decision is based on witness protection, then clearly the enhanced ability to record it in some less secure location, and instantly re-transmit it to any private or public place anywhere in the world ( be it Youtube, or some local ( to the trial ) people that the judge is concerend about ) is in direct violation of Judge Walker’s order.
As to ‘all of the witnesses are well-known advocates on both sides of the gay marriage issue” – so ??? How does that affect the desire of some ( on one side ) to turn a trial into an emotionaly-burdened public spectacle ? It does not change anything.
The gay advocates want to turn it into a forum on ‘gay rights’, and attempt to get a Federal judge to declare gay marriage legal from the bench. In fact, that has no bearing on the case at hand, which is ‘is Prop 8 valid? ‘, not ‘is gay marriage valid ?’.
RPT – “I am confused; legally irrelevant witnesses will not be testifying at trial or broadcast.”
If you believe that, then you ARE indeed confused :-). The trial at hand is about ‘is Prop 8 valid ?’, not ‘is gay marriage = marriage ?’. Totally different issues. However, the gays want to turn it into a circus of personal stories they think advance their view of gay marriage.
January 13, 2010, 7:02 pmRPT says:
Pete:
The security guards in the Central District do not allow camera phones in the court.
The trial judge decides what’s relevant, that’s what I mean. Besides, can’t the anti-8 groups post youtube videos now? What is different about sworn trial testimony.
And can you leave out the personal comments? I’ve done legal work in the past for one of the most vocal pro-8 religious leaders and am quite familiar with the parties’ respective views as well as the theological issues.
January 13, 2010, 7:13 pmVolokh Groupie says:
Anyway, if the witnesses sign affidavits saying they won’t testify if more than 50 people are watching, will the judge rope off some of the benches? There’s nothing magical about allowing an additional handful of people to watch.
That’s touching on the slippery slope Eugene alluded to. At least in this case the central issue is just the broadcast to other courtrooms (with Estes cited). I’m equally as puzzled as to how say broadcasting a trial to a courtroom or two across town as opposed to the broadcast in this case would effect witness testimony considering how different the facts were in Estes.
January 13, 2010, 7:14 pmSteve says:
It most certainly can be , and was.
No, this silly argument about someone in a different federal courthouse taping the broadcast on a cell phone certainly wasn’t made to the Supreme Court. Do you have any basis for your statement that the argument was made, other than your personal belief that it’s a great argument?
January 13, 2010, 7:24 pmVolokh Groupie says:
@RPT
The security procedures of the other courts the case would be broadcast too wouldn’t seem to have had an effect in this case as the dissent states they all disallowed retransmissions and taking pictures. If you’re getting hung up on specific policy of whether cellphones are banned I guess that could be another issue but the dissent doesn’t feel the broadcast could stifle testimony in any event (and suggests it my help it be more truthful).
The likelihood of any “irreparable” harm is further diminished by the fact that the court order before us would simply increase the trial’s viewing audience from the occupants of one courtroom in one courthouse to the occupants of five other courtrooms in five other court-houses (in all of which taking pictures or retransmissions have been forbidden).
January 13, 2010, 7:27 pmPeteP says:
Steve = “It most certainly can be , and was.
No, this silly argument about someone in a different federal courthouse taping the broadcast on a cell phone certainly wasn’t made to the Supreme Court. Do you have any basis for your statement that the argument was made, other than your personal belief that it’s a great argument?”
First, kindly show me where I claimed it had been made to SCOTUS ???
January 13, 2010, 7:39 pmSteve says:
First, kindly show me where I claimed it had been made to SCOTUS ???
Well, tell me where it was made at all, other than by you in this comment thread. Don’t hide your light under a bushel. Cite the pleading or oral argument where someone argued that the trial shouldn’t be broadcast to other federal courthouses because someone might sneak in a cell phone.
January 13, 2010, 7:42 pmPeteP says:
Steve “First, kindly show me where I claimed it had been made to SCOTUS ???
Well, tell me where it was made at all, other than by you in this comment thread.”
Again, first tell me where I made any such claim to it being ‘argued in other places’ ?
Are you a lawyer ? With that poor a reading comprehension skillset ?
I stated a position, you responded with “The argument can’t be made with a straight face.”, and I replied with ‘It most certainly can be , and was.’ And that is a true fact – it was made by me, right here. I alluded to no claim of its history more than that.
January 13, 2010, 7:59 pmSteve says:
Well, congratulations on advancing a possible basis for the Supreme Court’s decision that they never mentioned and was never presented to them as an argument. I’m sure that must have been the basis for their decision.
January 13, 2010, 8:59 pmPeteP says:
Steve – you are truly clueless.
January 13, 2010, 9:27 pmzuch says:
I have a Solomonic solution: Any pro-Prop. 8 witnesses who object to broadcast of their visages should be allowed to testify while wearing hoods … and robes.
Cheers,
January 13, 2010, 9:36 pmThomas says:
Ah, the question is why Kozinski’s lawless decision wasn’t respected by a rule-bound court. The answer is the realist one: they knew the game he was playing, but apparently he didn’t know the game they were playing, because Kozinski lost.
January 14, 2010, 12:26 amKharn says:
I think it is not just the chilling affect on the current witnesses that must be considered, but also on potential witnesses on any future non-PC or unpopular measure. I wouldn’t participate or join groups supporting my political opinion if I believed I would have to testify about those beliefs in court for my coworkers, family, etc, to hear.
January 14, 2010, 7:33 amSCOTUSblog » Thursday round-up says:
[...] some of the key excerpts from the Court’s decision, and Eugene Volokh has two posts at the Volokh Conspiracy critiquing elements of the [...]
January 14, 2010, 8:23 amTweets that mention The Volokh Conspiracy » Blog Archive » Why Does Transmitting a Trial to Several Other Courthouses Throughout the Country Materially Increase the Risk of Witness Harassment? -- Topsy.com says:
[...] This post was mentioned on Twitter by Suffolk Media Law and Eugene Volokh, katie. katie said: Free Reading !!! The Volokh Conspiracy » Blog Archive » Why Does Transmitt.. http://bit.ly/59b7mx mypsychicsonline.inf [...]
January 14, 2010, 9:35 amEric Rasmusen says:
As the post says, it is the fact that the broadcasting decision was made in blatant violation of procedural rules that was dispositive here. I don’t see why they had to even mention balancing the equities.
But the post does ask about balancing the equities. There, the answer is simple: balancing means looking at both sides, doesn’t it? There’s very little harm in broadcasting to 5 courthouses, but there’s also very little benefit.
I don’t know if it’s a legal principle or not, but I woudl think that if both the plus and the minus of practical impact is small, more weight should be given to the other considerations– i.e., whether the action violates the law. If no such legal principle exists, please let me know at erasmuse@indiana.edu and maybe I’ll write a law-and-econ paper proposing it.
January 14, 2010, 10:23 amptt says:
I’m disappointed with the SCOTUS decision because I think this country needs to hear the arguments, such as they are, on both sides (though I oppose televising of trials in general) but I’m actually a bit surprised they didn’t lift the ban just as the anti-gay side started presenting its case…
January 14, 2010, 2:37 pmJohn Herbison says:
Well, in my part of the country anyway, bigots wearing hoods is a (not so) proud tradition.
More seriously, if simulcasting a (paid professional) witness’s testimony would chill the witness from testifying, what does that say about the reliability of that witness?
January 14, 2010, 5:53 pmFloridan says:
Kharn: “I wouldn’t participate or join groups supporting my political opinion if I believed I would have to testify about those beliefs in court for my coworkers, family, etc, to hear.”
It’s a good thing the Founding Fathers, abolitionists and civil rights activists had a little more backbone than you.
January 15, 2010, 5:32 pm