Monday, February 1, 2010

Story for "The News Media and The Law" Magazine

By Curry Andrews

The YouTube video opens with a federal judge sitting high on the bench with the grand, golden seal of the U.S. District Court for the Northern District of California mounted behind him. Seconds later, oral arguments begin in the challenge to California’s ban on same-sex marriage. It takes a couple of minutes to realize it isn’t an actual judge, a practicing attorney or even a real courtroom—it’s actors, reading from court transcripts, filmed hundreds of miles away from where the trial actually took place.


The re-enactment, an eleventh hour brainchild of two California filmmakers, came about only because the real judge’s plans to allow video recording of the hearing fell apart.


On the day the trial over California’s same-sex marriage ban was to begin, the U.S. Supreme Court temporarily blocked San Francisco-based Judge Vaughn Walker’s plan to videotape the trial, stream it throughout courthouses on the West Coast and later upload the footage to the video-sharing Web site YouTube. Two days later, the court extended the stay until it decides whether to hear the California ballot proponent’s appeal.


“The [Supreme Court]’s ruling came out on a Wednesday, and by Friday morning we had signed with the Screen Actor’s Guild and we had put out casting calls,” said filmmaker John Ireland. “We started shooting Sunday.”


Placing cameras in courtrooms is not a new concept. State courts across the country have allowed cameras in courtrooms for decades, covering both civil and criminal cases on the trial and appellate level. Yet on the federal level, the policy is mixed. The federal appellate courts in the Ninth and Second Circuits allow videotaping of civil proceedings, as do two federal trial courts in New York, but most other federal courts generally prohibit cameras.


It seemed that was about to change, when the Judicial Council of the Ninth Circuit—the governing body for all federal courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana Islands—voted unanimously in December to amend a rule that prohibited cameras and allow its 15 district courts to experiment with taping civil cases tried without a jury.


At the time, Ninth Circuit Chief Judge Alex Kozinski explained the council hoped “that being able to see and hear what transpires in the courtroom will lead to a better public understanding of our judicial processes and enhanced confidence in the rule of law.”


A coalition of media outlets, including the Associated Press, ABC, NBC, CBS, and FOX, asked to film Perry v. Schwarzenegger, the legal challenge to California’s ballot proposition banning gay marriage. Kozinski approved the inclusion of the case in the pilot program and Judge Walker made plans to stream live footage to federal courthouses in San Francisco, Pasadena, Seattle, Portland and Brooklyn.


When Kozinski approved Walker’s request, it set off a legal power struggle between judicial bodies. The Judicial Conference of the United States, a governing body headed by Chief Justice John Roberts, sent Kozinski a sternly worded letter reminding him that council policy prohibited filming trials for public dissemination. Kozinski volleyed back that federal courts must start incorporating technology before they are forced to do so by Congress. An attorney defending the ballot proposition asked Justice Anthony Kennedy to temporarily stay the broadcast, which was granted.


Two days later, nearly an hour after the temporary stay expired, the Supreme Court released its opinion holding that the stay would remain in effect until the ballot proposition’s attorneys presented their appeal. The decision, which split 5-4 along the court’s conservative-liberal lines, avoided the larger question of whether cameras have a place in the courtroom and instead focused on the issue of whether Kozinski circumvented policy of the Judicial Conference of the United States when the Ninth Circuit Judicial Council amended its local rule.


“[O]ur 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. We conclude that it likely did not,” the opinion read. “[I]n amending this rule, it appears that the District Court failed to ‘give appropriate public notice and an opportunity for comment,’ as required by federal law.”


Tom Burke, a lawyer at Davis, Wright, and Tremaine in San Francisco who represented the media coalition during the appeal of the stay to the Supreme Court, rejected that reasoning, noting that 138,474 comments were submitted to the Ninth Circuit and all but 37 of them approved of the change.


“There were an overwhelming number of comments to the rule amendment,” Burke said. “I would challenge anyone to find a local rule that has gotten that type of attention.”


Beyond the technicality, the high court also said that “irreparable harm will likely result” from the broadcast. The attorneys representing the ballot proposition’s proponents had argued that many witnesses and Proposition 8 supporters faced harassment for their involvement with the initiative and a televised proceeding would only increase the likelihood for harassment.


In a dissenting opinion, Justice Breyer—joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor—said that the majority opinion “identifies no real harm, let alone 'irreparable harm,' to justify its issuance of this stay … and the public interest weighs in favor of providing access to the courts.”


In a brief filed on behalf of the media, Burke gave two reasons why cameras should be allowed. The first is the importance of the case itself. “The fact that the case was so divisive was exactly the reason they should have allowed cameras,” Burke said. “The second reason is that the defendants voluntarily intervened to defend the constitutionality of this provision.”


Given that the cornerstone of the majority opinion was a technicality, some believe that slowly buy surely broadcasters will have greater access in federal courts.


“It will start with a tendency to allow cameras in non-divisive, noncontroversial cases,” Burke said. “And nobody may want to watch that, but the change will be incremental.”


Until then, staged re-enactments may be the only form of transparency available to the public. Knowing that the Proposition 8 trial would be over by the time the U.S. Supreme Court finally hears an appeal of the cameras issue, Ireland and fellow filmmaker John Ainsworth started formulating a plan to re-enact the case and stream it online. They cast actors, found a mock courtroom and used 3,000 pages of court transcripts and eye-witness accounts to produce 12 episodes reconstructing the landmark case. The language is authentic, the tone is dry, and the actors even resemble the people they portray. Though both Ireland and Ainsworth are gay and married to their respective partners, they say their motivation for the project was transparency.


“We have one singular goal, and that is to make this trial available to the public,” Ireland said. “These proceeding are public, and while we understand the need to protect the identity of some people, there is no compelling reason to make this a closed proceeding.”



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