U.S. Supreme Court rules against public's right to know

The U.S. Supreme Court struck a blow against public information and civic engagement this week when it ruled 5-4 against allowing televised coverage of a non-jury trial involving California's controversial Proposition 8, which bans gay marriage. The judge in the civil case was going to allow cameras to cover the case brought by people challenging Prop 8 and stream the courtroom activities to courtrooms around the country and put it on YouTube each day. The public in California and across the country, proponents and opponents of gay marriage alike, would be able to listen to arguments, hear witnesses, learn how a federal trial works and decide for themselves the merits of the case. Isn't that what civics and political science classes teach us is important about our democracy? But attorneys representing opponents of same-sex marriage argued that televised coverage could lead to "harassment, economic reprisal, threat and even physical violence" against witnesses prepared to testify in defense of Prop 8, according to The New York Times. The lawyer said that some witnesses might even back out of testifying if the case were televised. The attorney challenging Prop 8 is conservative Theodore Olson, who argued cases before the Supreme Court on behalf of the George W. Bush administration and who represented the former president before the high court in the famous election case involving Bush and former Vice President Al Gore. ( Ironically, his colleague in the California case is David Boies, his opponent in the Bush v. Gore Supreme Court case.) Olson argued that television coverage of the Prop 8 trial was justified because the outcome would affect hundreds of thousands of gays and lesbians in California. He said, according to The Times, that "concerns about the possibility of compromised safety, witness intimidation or harassment of trial participants are utterly unsubstantiated and groundless speculation." The U.S. Supreme Court majority did not deal at length with the pros and cons of camera coverage, but rather with lower court judges allegedly not following proper procedures to change court rules to allow coverage, including not allowing enough time for public comment. But dissenting Justice Stephen Breyer noted that the local federal judge invited comment last fall and received nearly 150,000 responses, with all but 32 favoring camera coverage. "How much more 'opportunity for comment' does the court believe necessary?" he wrote. So a golden opportunity for the public, gay and straight, pro- and anti-gay marriage, to hear the arguments and watch a crucial social issue debated is lost. These opportunities don't arise very often, particularly in federal court where cameras generally aren't allowed. In Minnesota, the state Supreme Court and the Court of Appeals allow coverage of arguments before them. Rules governing trial courts, however, basically allow any of the lawyers or the judge to veto cameras and so cases aren't covered because one of the parties always objects. A notable exception was the Franken-Coleman Senate recount case before a three-judge panel. While few people, except the reporters covering the case, watched every day of the trial, the availability on television and the Web made the case a daily lesson in democracy with all its confusion, messiness and, ultimately, fairness. Minnesota is moving towards a pilot project that would allow the judge to have the only say on whether a case can be broadcast. Rules would prohibit televising the jury or a reluctant witness. If successful, the project might finally bring Minnesota into the 21^st century when it comes to televising court proceedings. At least 35 other states allow cameras in the courtroom. While many lawyers and judges are uncomfortable with what they consider the intrusive nature of cameras, I believe that such coverage, if done properly and fairly, would enhance the public's understanding of the judicial system. After all, it is the public's courtroom and citizens have a right to see and hear what goes on inside its walls. As a newspaper reporter, I spent many hours sitting inside a courtroom. Sometimes it was boring and sometimes it was fascinating. I always learned something new. But I could never figure out why many of the attorneys and judges didn't want the public to see or hear this important stuff. As Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals wrote about televised coverage of the Prop. 8 case: "Like it or not, we are now well into the 21st century, and it is up to those of us who lead the federal judiciary to adopt policies that are consistent with the spirit of the times and the advantages afforded us by new technology. If we do not, Congress will do it for us."