Court allows broadcast in Calif. same-sex marriage appeal

Derek Green | Secret Courts | Feature | December 7, 2010

The U.S. Court of Appeals in San Francisco (9th Cir.) allowed the live broadcast Monday of more than two hours of oral arguments in Perry v. Schwarzenegger, a case challenging the constitutionality of California’s ban on same-sex marriages.

The hearing before the three-judge panel is the latest legal step in the case brought by two same-sex couples to challenge California’s Proposition 8, an amendment to the state constitution enacted by voters in 2008.

In August, a federal court in San Francisco ruled that Proposition 8 violated the federal constitution. That ruling, by Judge Vaughn Walker, came after a trial that, by order of the U.S. Supreme Court, could not be broadcast to the public.

In a 5-4 decision, the Supreme Court rebuffed Walker’s plan to broadcast the trial, ruling that the broadcasting would conflict with court policy and procedural rules. The Supreme Court also noted the possible chilling effect on witnesses.

The Ninth Circuit’s decision to broadcast Monday's hearing did not raise the same issues. The appellate court's guidelines leave the decision whether to allow camera coverage of an oral argument with the panel hearing the appeal. And, as is typical in an appellate argument, no witnesses testified at the hearing, which consisted of lively questioning of the attorneys by the three judges.

The argument garnered significant media interest from traditional and new media outlets, according to David Madden, the assistant circuit executive for the Ninth Circuit. Madden said by e-mail that the court received media requests for live and recorded audio and video broadcasting, as well as Web streaming from a variety of media organizations.

C-SPAN broadcast the argument live and operated a video pool for other media organizations. "I would say that every major network, including PBS and NPR, had access to the C-SPAN feed," Madden said.

A number of newspapers and other groups also participated in the C-SPAN feed for use on websites. At least a few websites, including C-SPAN's, provided live Web streaming of the entire proceeding, Madden said. Public radio also broadcast the argument live and the Associated Press coordinated a still photography pool.

C-SPAN was not able to provide an estimate of the number of viewers who watched its feed and the court does not know how many people tuned in to the argument. But judging from the expansive reach of the media involved, Madden said he believes the number was quite high. "I do not think it would be exaggerating to say millions for some or all of the proceeding," he said.

The Ninth Circuit has allowed live coverage of its hearings in other cases as well. Last month, the court streamed live a hearing in United States v. Arizona, a case involving the enforcement of a controversial state immigration law. According to the court's media release, a dozen law schools live-streamed that argument. Madden said that at least 17 law schools live-streamed Monday's argument as well.

The Ninth Circuit is one of two federal appellate courts that have allowed live broadcasts of their hearings, according to C-SPAN. The other is the U.S. Court of Appeals in New York (2nd Cir.).

Earlier this year, the federal court’s policy making arm, the Judicial Conference of the United States, announced a pilot project to allow cameras into some federal district court proceedings.