U.S. Supreme Court Ruling In California Same-Sex Marriage Trial Banning Internet Streaming Of Court Proceedings Is Likely Only A Temporary Setback

U.S. Supreme Court Ruling In California Same-Sex Marriage Trial Banning Internet Streaming Of Court Proceedings Is Likely Only A Temporary Setback

Even if you have lived your entire life in an urban environment, you have that vision of what it was once like — people flocking to the courthouse square in a small county seat to see justice handed out. Small town lawyer Matthew McConaughey as Jake Brigance, defending Carl Lee Hailey in his murder trial in Clanton, Mississippi in the film version of John Grisham’s first novel, “A Time to Kill” (yes, Grisham’s first novel, predating the success of “The Firm.”) Or Spencer Tracy and Fredric March slugging it out as the fictional versions of Clarence Darrow and William Jennings Bryan in “Inherit the Wind,” that wonderful 1960 film from Lawrence and Lee’s play about the Scope’s evolution trial in Tennessee.
 
Two story courthouses, open windows, pulsating ceiling fans, the lawyers in their shirt sleeves, the community hanging on every word. A far cry from today’s federal courthouses. Concrete and steel structures set in the middle of cities that seem to exist to discourage participation of the public. Jersey walls to prevent what happened in Oklahoma City, security doors, armed guards, metal detectors, surveillance cameras.
 
Citizens once went to the courthouse square to observe justice. Today many Americans who wanted news about the recent ruling by the United States Supreme Court that banned the Webcasting on YouTube of the Proposition 8 gay marriage trial in California went to Google News. A search in Google News for “Proposition 8” on the day following the ruling provided 4,758 articles relating to the Proposition 8 trial and the YouTube ruling. A similar search on Google News for “YouTube” yielded 4,101 articles on the trial. Or maybe you checked Twitter. Or you checked your favorite news site on your iPhone or your BlackBerry — as they say, “There’s an app for that.” Or for the more conventional, going to CNN.com. Or for the true traditionalist, actually watching CNN on the television. But none of us trudged over to the Supreme Court or the courthouse in San Francisco.
 
The United States Supreme Court held in Hollingsworth v. Perry (2010 U.S. LEXIS 533 [U.S. Jan. 13, 2010]) that the order of Judge Walker of the United States District Court for the Northern District of California permitting the Internet broadcasting of the Proposition 8 trial was improper because the rule permitting such had not been properly promulgated. As the Supreme Court stated in its per curiam decision, “The question whether courtroom proceedings should be broadcast has prompted considerable national debate. Reasonable minds differ on the proper resolution of that debate and on the restrictions, circumstances, and procedures under which such broadcasts should occur. We do not here express any views on the propriety of broadcasting court proceedings generally. Instead, our review is confined to a narrow legal issue: whether the District Court's amendment of its local rules to broadcast this trial complied with federal law.”
 
So if the Supreme Court ruling was really based upon this narrow procedural issue, (although the Supreme Court creates some doubt when it concludes by stating “If Local Rule 77-3 had been validly revised, questions would still remain about the District Court's decision to allow broadcasting of this particular trial, in which several of the witnesses have stated concerns for their own security.”), where might the federal courts be going in the future with Internet broadcasting of trials?
 
Justice Breyer states in his dissent in Hollingsworth v. Perry that “By my count, 42 States and two Federal District Courts currently give judges the discretion to broadcast civil nonjury trials.” As long ago as 1996, a federal court permitted Court TV to televise a motion hearing in a civil proceeding, Hamilton v. Accu-Tek (942 F. Supp. 136 [E.D. N.Y. 1996]), stating that “The public should be permitted and encouraged to observe the operation of its courts in the most convenient manner possible, so long as there is no interference with the due process, the dignity of litigants, jurors and witnesses, or with other appropriate aspects of the administration of justice. . . . .As Professor Vincent A. Blasi suggested in his article, Milton's Areopagitica and the Modern First Amendment, Columbia Law School Bulletin 35 (Fall 1996), the Parliament's regulation of pamphlet printing in the mid-17th century — because this revolutionary new medium of communication might be used to embolden the masses — may be analogized to controlling access of the eye and ear of television to public institutions.”
 
A similar result, denying permission for an Internet broadcast on the basis of an interpretation of a local rule, was reached by the First Circuit in In re Sony BMG Music Entm't (564 F.3d 1 [1st Cir. Mass. 2009]). The lower court had granted permission for the broadcast in a file-sharing music copyright infringement case in Capitol Records, Inc. v. Alaujan (593 F. Supp. 2d 319 [D. Mass. 2009]). The district court judge determined that she had the discretion to permit such a broadcast under the local rule and that she should do so because “Public today has a new resonance, especially in this case. The claims and issues at stake involve the internet, file-sharing practices, and digital copyright protections. The Defendants are primarily members of a generation that has grown up with the internet, who get their news from it, rather than from the traditional forms of public communication, such as newspapers or television. Indeed, these cases have generated widespread public attention, much of it on the internet. Under the circumstances, the particular relief requested — ‘narrowcasting’ this proceeding to a public website — is uniquely appropriate.”
 
The First Circuit reversed, holding that the local rule actually prohibited such broadcasting and did not provide the district judge with any discretion at all. In its narrow ruling, the First Circuit stated that “We are mindful that good arguments can be made for and against the webcasting of civil cases. We are also mindful that emerging technologies eventually may change the way in which information — including information about court cases — historically has been imparted. Yet, this is not a case about free speech writ large, nor about the guaranty of a fair trial, nor about any cognizable constitutional right of public access to the courts. Our purview here is much more confined: this is a society dedicated to the rule of law; and if a controlling rule, properly interpreted, closes federal courtrooms in Massachusetts to webcasting and other forms of broadcasting (whether over the air or via the Internet), we are bound to enforce that rule. In the last analysis, this boils down to a case about the governance of the federal courts.”
 
Ironically, the Hollingsworth v. Perry per curiam opinion references a sentence of the concurring opinion in In re Sony BMG Music Entm't. The concurring opinion agreed that the local rule prohibited Webcasting, but the writer also opined that “However, this inescapable legal conclusion does not discredit the policy concerns that animated, at least in part, the district court's decision. Indeed, in my view, there are no sound policy reasons to prohibit the webcasting authorized by the district court. Therefore, this case calls into question the continued relevance and vitality of a rule that requires such a disagreeable outcome.”
 
In In re Zyprexa Prods. Liab. Litig. (2008 U.S. Dist. LEXIS 92387 [E.D. N.Y. Mar. 4, 2008]), the federal court permitted Courtroom View Network (CVN) to record and provide audio-visual coverage of a hearing over a secure Internet connection pursuant to a local court rule. Relying upon the language in Hamilton v. Accu-Tek, the court stated that “The public should be permitted and encouraged to observe the operation of its courts in the most convenient manner possible, so long as there is no interference with the due process, the dignity of litigants, jurors and witnesses, or with other appropriate aspects of the administration of justice. See Diane L. Zimmerman et al., Let the People Observe Their Courts, 61 Judicature 156 (1977): see also Robert Barnes, A Renewed Call to Televise High Court, Washington Post, Feb. 12, 2007 at A15 (‘The two newest justices, Roberts and Samuel A. Alito Jr., sounded open to the possibility during their confirmation hearings, and Alito favored allowing cameras in his previous job as an appellate court judge.’).”
 
A few months later, though, another judge in the same court denied a CVN request under the same local rule in Smolowitz v. Sherwin-Williams Co. (2008 U.S. Dist. LEXIS 70404 [E.D. N.Y. Aug. 21, 2008]) to broadcast a summary judgment hearing. The court simply ruled that “The Court has full discretion to grant or deny CVN's request. . . . The Court has reviewed CVN's letter and chooses to exercise its discretion to deny CVN's application.”
 
A CVN broadcast request was also granted by the Southern District of New York in E*Trade Fin. Corp. v. Deutsche Bank AG (582 F. Supp. 2d 528 [S.D. N.Y. 2008]), over the objection of the defendant bank. The court found that the bank failed to show that it would be prejudiced by an Internet broadcast of the trial. The court stated that its permission to broadcast was based upon the “presumption of openness” that the Supreme Court had relied upon when it said that criminal trials were to be open to the public in Richmond Newspapers, Inc. v. Virginia (448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 [1980]).
 
Again, several months later, another judge in the Southern District denied a CVN request in a Nazi art theft case, Schoeps v. Museum of Modern Art (599 F. Supp. 2d 532 [S.D. N.Y. 2009]). The judge pointed out that he had granted CVN permission to broadcast other trials because “Audio-visual coverage is simply another way in which the public can keep abreast of public proceedings in the courthouse.” The judge exercised his discretion to deny broadcasting in this jury trial because “The Court has already experienced, in the prior proceedings it has allowed to be televised, the danger that cameramen and other technical personnel are not always attentive to the restrictions agreed to by counsel and the Court. The Court nevertheless remains open to the possibility of broadcasting a jury trial in the future. In the instant case, however, involving very sensitive issues concerning allegations of Nazi coercion and ‘looted art,’ the potential risks to jury impartiality were, in the Court's view, sufficient to deny broadcasting in this case.”
 
Widespread acceptance by the federal courts of broadcasting of their proceedings may not yet be in the cards. But as lawyers, who once relied upon those “dusty old lawbooks” to research the law, now rely so much on Lexis and its competitors for their legal research and practice management needs, it appears that some federal courts are prepared to lead the way into removing the four walls of the courtroom and permitting the public to observe their proceedings from both near and afar.
 
This blog originally appeared in Practice Area Insights of the Lexis® Hub. The Lexis Hub is exactly what its name implies: the center of all things legal for young attorneys and about-to-be lawyers. Set Your Legal Career in Motion.