Supreme Court Rules 5-4 to Stay Prop 8 Trial Broadcast Ban

The U.S. Supreme Court has voted 5-4 to block the broadcast of the federal challenge to Proposition 8:

Walker "The high court's five conservatives formed the majority. They said federal judge Vaughan Walker didn't follow court rules when he ordered proceedings broadcast by closed circuit to federal courthouses in several cities.

The Supreme Court's four liberals joined a dissent written by Justice Stephen Breyer."


"The Supreme Court earlier issued a stay against the closed-circuit broadcasts as well as an order by Judge Walker for the proceedings to be shown on the Internet site YouTube. Wednesday's high-court ruling didn't touch on the Internet posting, saying it was premature. A federal appeals court hasn't yet ruled on the Internet aspect."


The Court, chastizing the trial court for attempting “to change its rules at the eleventh hour,” issued an unsigned 17-page opinion.  The ruling came out nearly 40 minutes after an earlier temporary order blocking TV had technically expired. 

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
fairly 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.  The
television viewing of the Prop 8 trial was to be done as part of a
“pilot program” in the federal courts in the Ninth Circuit.  The Court
majority wrote: “This case is…not a good one for a pilot program.  Even
the studies that have been conducted thus far have not analyzed the
effecdt of broadcasting in high-profile, divisive cases.”

As a practical matter, the ruling almost certainly dooms any broadcast coverage of the trial as it goes on.

The American Foundation for Equal Rights released a statement in response to the ruling:

“Proposition 8 attacks the core of what our nation stands for — that
all of us are entitled to equal protection under the law and equal
treatment from the government. A trial on constitutional rights should
be accessible to as many people as possible,” said Chad Griffin, Board
President of the American Foundation for Equal Rights. “Given the
powerful evidence against Prop. 8 presented in court today, we are not
surprised the initiative’s defenders sought to keep this trial as
private as possible.”


  1. Sargon Bighorn says

    I wonder what rules Walker broke? If the bigots think that some how they will not be known after this trial they are dumber than even they know. Every one is going to know who is on both sides of this Civil Rights issue. There is no hiding.

  2. bobbyjoe says

    You can’t hide your lyin’ eyes /
    And your smile is a thin disguise /
    I thought by now you’d realize /
    There ain’t no way to hide your lyin eyes

  3. John says

    Unfortunately, this could easily go the way of Bush v Gore. The trial has barely begun and we are already seeing the 5-4 conservative versus liberal split develop in the Supreme Court.

    Though I suspect the Supreme Court will delay the process until after the next general election. Because if California votes to repeal Prop. 8 in 2012. the high court will use that technicality as an excuse to remove themselves from the debate. The justices never wanted to deal with this in the first place. And should the plaintiffs’ request for a judicial remedy become unnecessary or moot (i.e. they can get married), they will lose the ability to file a lawsuit in federal court against the State of California.

    Remember, this is a case against Prop. 8 and Arnold Schwarzenegger – as Governor of California – and has nothing to do with challenging DOMA. That case is preceding on a separate track in another court.

  4. Rafael says

    This is so disconcerting. The Supreme court states irreparable damage to the defendants as part of their reasoning to block the broadcasting of this trial. There is a disparity in fairness here, and it is most obvious in the Justices split decision over this matter.

  5. DR says

    Well, when the courts flagrantly ignore the Federal Rules, this is what happens. I get the impression that is the big beef of the Court, a smackdown on the fact that the 9th Circuit did what it wanted, when it wanted. And really, I don’t need to watch the trial, just let me read the opinion when it comes out. *shrug*

  6. says

    Well, one way to solve this will be to post the transcripts online or to create videos with actors reading the transcripts and posting the pictures of the lawyers and witnesses. If the Prop 8 supporters think they can hide, they are completely mistaken.

  7. stephen says

    Talk about your “Teachable Moments”…

    Given that there’s a split, it’s obvious that some of these Judges are motivated more by ideology than by fairness.

    I recognize that the court always seeks to address in the most narrow manner possible, but it all seems like baloney.

  8. Rodney Wollam says

    A 5-4 ruling against freedom of information is no surprise at all.
    Once again, the Supreme Court flashes it’s political partisonship. It’s amazing any justice is actually served there.

  9. drifterbob says

    I do think the terms of this debate favor our side — the bigots are fighting to keep the case private because they don’t want to be seen propagating their prejudice. I mean, if they really believed in their cause, shouldn’t they want the whole world to watch their crusade against us?

    Their position against broadcast begs the questions: what are they ashamed of? What do they have to hide?

    Even though we lost, I think this issue helps us in the public forum (to the extent people are paying attention, and for as far as that takes us, which isn’t far…)

  10. Clifw says

    Eh, bigger fish to fry.

    I now live in the US, but back home you can’t have ANY camera in the courtroom so I don’t really get all the fuss. Everything is being reported almost verbatim anyway, so the only difference is that its not instantaneous. Particularly with a trial with this amount of interest, there isn’t going to be a shortage of reporting.

  11. John says

    so much for a free and open democracy. This is bullshit and I have a bad feeling when this case gets to the high court, and it will, we’ll see a 5-4 AGAINST us. We need Scalia or Thomas to suddenly resign. Anyone have any pictures of Scalia or Thomas banging a goat??

  12. Republican says

    I’m posted these thoughts elsewhere, but will also post them here.

    Don’t worry about this 5-4 decision. There is some history here that’s been building involving Kozinski (Chief Judge of the 9th Circuit) and some of his antics in that Circuit. Yes, I said Kozinski, not Walker, though the Court is obviously mad at him, too. There is more to this bitch slap than what the Court has put in its opinion, but it is not of the anti-gay variety. It’s an issue of power.

    As for gay marriage, I still see at least five votes for our side. Kennedy will not go down in history as the swing vote for bigotry. He knows it. We all know it. Don’t worry.

  13. Jon 92027 says

    this may have been more of an issue of not setting a precedent in allowing the court proceedings to be televised, because if they were to allow it in this case, there would be precedent in allowing it in SCOTUS cases. That is not something that the justrices wanted to do. The result would have been the same regardless of the case that would have been televised

  14. Bill says

    Funny how the backs of Referendum 71 petitions were not signed, which is required by law, yet were allowed to be counted because the “technicality” was trivial. Oh, I forgot, haterosexuals are supposed to have an advantage at every thing while gay people are supposed to be perpetually disadvantaged. The haterosexual bigots don’t want cameras broadcasting in the court because it will reveal their true intentions: hatred. They don’t want gay people to have video evidence of Prop 8 players anti-gay bigotry because it will be indisputable what gay people already knew about these haterosexual-only marriage amendments and then haterosexuals could not deny hatred is behind the anti-gay lsws.

    The majority on the Supreme Court didn’t like that people only had 8 days to comment on whether there should be cameras in the courtroom, they wanted at least 30 days. That’s the excuse they gave behind their bigotry.

  15. Marc C says

    RE: Bobby | Jan 13, 2010 7:40:26 PM

    “The conservative judges on the SC need to be pelican briefed.”

    My thoughts exactly!

    They lost their credibility 10 years ago and it’s time for justice to be served. The SC is neither supreme nor just and should face what’s coming to them with open eyes. Tyranny under the guise of law is still tyranny!

  16. Stephen says

    My guess is that the Supreme Court doesn’t want to be embarrassed when they dissent Prop 8. Every arrangement the bigots have been putting forth in this trial have be destroyed by the plaintiffs. Why televise that when they are going to dissent the same damn stupid arguments we already repeatedly destroyed.

  17. says

    this will be one of my less adult comments.

    to SCOTUS: Suck. My. Dick.

    posting the transcripts and acting them out in prime time would be FABULOUS. i hope some production company does just that.

  18. Jim says

    Contact your legislators and encourage them pass Judicial reform. Make the Obama administration live up to their promise of transparency! Open up ALL the courts to recording: SCOTUS included!

  19. Mike says

    That would be a terrific idea for a bunch of actors to do a recreation of the trial and put it on youtube. Or better still get public photographs of the folks testifying and show their images while reading the transcript. The prop 8 folks assertions during this trial have been ridiculous. Today they said gay people are accepting in society as illustrated by Will and Grace and Brokeback Mountain (guess they forgot about the storyline of Brokeback). That is like saying we don’t need the Civil Rights act of 1964 because of Amos and Andy.

  20. Tim says

    Yes, yes, and yes. But remember that if this stay holds on appeal, it will also take away one of the obvious appeal tactics of the pro prop 8 group: we didn;t get a fair trial because our witnesses were scared to testify….whine, whine, whine. The majority did state that they thought the applicant had substantiated its concerns over harassment and that there was a ‘qualitative’ difference between making public appearances on an issue and having their testimony broadcast across the country.
    Cowardice, but there you go.

  21. jack says

    excuse my obsession, but it is so glaring i feel the need to keep this fact in public discourse. the five SCOTUS justices who voted to ban the broadcast are all roman catholic. only sotomayor who is also rc voted with the minority.

    to my knowledge only one MAY have ever voted against RC orthodoxy and then only partially.

    our federal laws are being shaped by rome…

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