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Time To Put Justice On Camera

Two lawyers will go before a judge today to make closing arguments on an issue that divides the nation. Though the scene will be captured on camera and people all over the country are eager to watch, the only way to see the video is to go to a federal courthouse in San Francisco.

The federal courts’ refusal to allow live broadcast of their proceedings has thus progressed from anachronistic to flat-out ridiculous.

The case in question is Perry v. Schwarzenegger. It will likely determine the fate of California’s Proposition 8, the voter initiative that ended same-sex marriages in that state nearly two years ago.

There is no criminal defendant in this case whose rights to a fair trial must be protected. For that matter, there is no jury, because the case is being tried in front of U.S. District Judge Vaughn R. Walker, the chief judge of the federal district for Northern California. And there will be no witnesses today, either. Just lawyers for the opposing sides summing up their arguments over whether Proposition 8 violates the U.S. Constitution’s guarantees of due process and equal protection. If ever a court hearing was suitable for broadcast, this one is.

The battle over cameras in court began in 1935 with the so-called Lindbergh Baby Trial. The public was fascinated by the kidnapping and murder of the son of aviator Charles Lindbergh, and the trial devolved into a media circus. Bruno Richard Hauptmann was convicted and sentenced to death. In the wake of the trial, many speculated that the crush of cameras and journalists had interfered with the court’s ability to deliver justice. Cameras were swiftly and nearly universally banned from federal and state courtrooms.

The issue has since been addressed by the U.S. Supreme Court in two prominent cases. In 1965, in the case of Estes v. Texas, the court held that the presence of cameras and microphones at a pretrial hearing violated the defendant’s due process rights. In 1981, however, the decision went the other way. In Chandler v. Florida, the court ruled that the use of video and still photography in the courtroom was not necessarily a violation of a defendant’s rights.

Since Chandler v. Florida all 50 states have found ways to allow courtroom cameras in at least some instances. Federal courts, including the Supreme Court, have lagged.

Before the Perry v. Schwarzenegger trial began, Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, which includes California, formed a committee to explore the idea of liberalizing the region’s rules governing video and audio broadcasts of federal court proceedings. Judge Walker was a member of that committee, which decided to allow district judges to experiment with broadcasts from their courtrooms. While the decision was not intended to address any single case, according to Walker, “this case [Perry v. Schwarzenegger] was very much in mind at that time because it had come to prominence then and was thought to be an ideal candidate for consideration.”

But supporters of Proposition 8 objected to Walker’s proposal to allow broadcast of the trial via closed circuit to other courthouses, with footage also available for delayed uploads on the Internet. They argued that the district court did not allow enough time for public comment before it changed its rules.

The dispute went to the Supreme Court, which decided 5-4 to put the broadcasting plans on hold. The high court did not rule on whether broadcasting is constitutional or desirable. Instead, it focused on the narrow question of whether the lower courts followed proper procedures in amending their rules. “Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves,” the order stated. Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsberg and Sonia Sotomayor dissented.

After the decision, the District Court again tried to push through a rule change, lengthening the available comment period. But, just a few days ago, Walker announced that he would not grant any requests for broadcast of the closing arguments outside of the courthouse. A camera will be in the courtroom today, but only spectators seated in an overflow room at the courthouse will able to see the debate onscreen.

Walker did not explain why he refused to permit broadcast of today’s proceedings. My best guess is that, because backers of Proposition 8 continue to oppose any broadcast — even of just the closing arguments — Walker does not want to give them any additional grounds for appeal if, as expected, the case ends up back before the Supreme Court.

This does not mean that Walker already plans to rule against Proposition 8, or that he assumes the Supreme Court will go out of its way to rule against same-sex marriage. But it is going to be an uphill fight to persuade a generally conservative high court that it should strike down a voter-approved referendum on a divisive social issue.

If Perry v. Schwazenegger turns out to be the case that establishes a constitutional right to same-sex marriage in this country, it is probably going to be because Walker writes a compelling opinion about the stigma and harm that gay and lesbian couples suffer because they are denied that right. He will have to explain, to a skeptical group of justices, how thin and insubstantial were the arguments on the other side of the case, in which proponents only produced two witnesses who tried, with little empirical support, to show how same-sex marriage damages society at large or threatens governmental interests.

In effect, Walker’s opinion will be his own closing argument to the Supreme Court. The last thing he probably wants is to have his views dismissed out of hand because of an extraneous issue like broadcasting today’s events.

So one way to view Walker’s decision is that he has sacrificed public access to an important trial to improve his odds of getting the Supreme Court to accept his decision, whatever it may be. This may be a perfectly sound appellate strategy. But forcing a judge to make this sort of trade-off is terrible, and pointless, public policy.

It is long past time to let the public watch what happens in open court. Video and audio streams can be turned off when necessity dictates, but the default approach should be to put justice on camera. To make that case, I offer today’s hearing in San Francisco as Exhibit A.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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