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United States: Supreme Court Enjoins Streaming Broadcast of Federal Trial

(Mar. 9, 2010) On January 13, 2010, the Supreme Court of the United States enjoined a federal district court order that would have permitted the broadcast of a trial via streaming audio and video to several federal courthouses around the country.

The trial concerns Proposition 8, a ballot proposition adopted in November 2008 that amended the California Constitution to recognize only marriages between opposite-sex couples. Plaintiffs filed a lawsuit in the federal district court in San Francisco claiming Proposition 8 violates the United States Constitution. In September 2009, the district judge told the parties at a hearing that there was interest in the trial being broadcast. The defendant-intervenors (supporters of Proposition 8) objected, arguing that a broadcast would inhibit their presentation of witnesses, as some witnesses had been subject to harassment.

In December 2009, the U.S. Court of Appeals for the Ninth Circuit adopted a pilot program allowing limited broadcasting of trials, and shortly thereafter, following a brief period for public notice and comment, the district court amended its local rule to permit participation in the pilot program. In the Proposition 8 case, the district judge held a hearing regarding broadcast of the trial, and said that an audio and video feed of trial proceedings would be streamed live to certain courthouses around the country. The Chief Judge of the Ninth Circuit issued an order approving the streaming broadcast of this trial. The defendant-intervenors filed an application with the Supreme Court for a stay of the order allowing the streaming broadcast.

The Supreme Court ruled that the district court and the Ninth Circuit did not follow the appropriate procedures before changing the rules to permit the trial to be broadcast, and it ordered a stay enjoining the broadcast. It said that federal law requires appropriate public notice and a period of opportunity to comment before a court can change a local rule, and the brief period for comment provided by the district court did not satisfy this requirement. It further found that irreparable harm to the defendant-intervenors likely would result from the denial of the stay, because witness testimony might be chilled by the witnesses' fear of harassment.

A dissenting opinion joined by four Justices said the district court's notice and comment on the local rule change was adequate; that the change to the local rule in any event merely brought the local rule into conformity with Ninth Circuit policy; and that, since all of the witnesses supporting Proposition 8 are already publicly identified with their cause, a limited streaming broadcast of their testimony would be unlikely to chill their testimony. (Hollingsworth v. Perry, No. 09A648 (Jan. 13, 2009), available at