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Court TV and judicial powers

A polite but no less pointed controversy has broken out over control of televised broadcasts of proceedings in federal civil courts, as part of the dispute over public viewing of the San Francisco trial on California’s ban on same-sex marriage.  The controversy was laid before the Supreme Court Monday night and Tuesday morning, in new filings as the Justices weigh whether to step in further to allow or forbid such broadcasts.

The federal District Court judge conducting the Prop. 8 trial without a jury has planned to allow somewhat delayed TV coverage and, at one point, was going to permit viewing on the Internet through a YouTube site.  The YouTube webcast idea apparently has now been abandoned by District Judge Vaughn R. Walker; the current plan seems to be to provide a viewing link on the District Court’s own website.  The trial opened Monday morning, but shortly before that, the Supreme Court temporarily blocked any broadcast outside the San Francisco courthouse, while the Justices consider the question further.  As of now, the Supreme Court’s bar to TV expires at 4 p.m. Wednesday.

Last Friday, before the Supreme Court had been drawn into the controversy, representatives of the U.S. Judicial Conference — the policymaking arm of the federal courts — wrote to Ninth Circuit Chief Judge Alex Kozinski, reminding him that the Conference has a policy against any “public dissemination” of TV or other broadcasts of civil or criminal trials in federal court.  The letter is here.  The chair of the Judicial Conference Executive Committee, Third Circuit Judge Anthony J. Scirica, and Conference Secretary James C. Duff urged Kozinski “to consider the Judicial Conference policy” as he weighed the broadcast plan.  (UPDATE: News organizations have turned up a letter to Duff dated Jan. 6 from Rep. Lamar Smith of Texas, the top Republican on the House Judiciary Committee, complaining of the plan to televise the Prop. 8 trial, and urging “the Judicial Conference to do everything in its power to intervene” with Judge Walker to prevent the TV broadcast.)

That prompted a lengthy response from Judge Kozinski, dated Sunday, arguing that the issue of broadcasting from trial courts “rests exclusively with the Judicial Council of each circuit, consistent with the statutory governance structure of the courts.”  The letter then quoted from a 9th Circuit Court decision in 1986: “Except for judicial disciplinary proceedings, the Judicial Conference does not have binding or adjudicatory authority over the courts.”

This exchange apparently signals that, when the Supreme Court further considers the issue, it may have to decide the legal status of the Judicial Conference policy, as compared to that of the Ninth Circuit’s Judicial Council, which has authorized the TV “pilot project” to apply to the Prop. 8 trial.  And the Justices may also have to consider the scope of their own “supervisory power” over a question of trial procedure in the federal District Courts.

The Prop. 8 supporters, in their own new filing with the Justices, renewed their claim that the Ninth Circuit and Judge Walker had acted illegally in clearing the way for televised broadcasts of the trial.  It noted that Judge Kozinski was now considering public viewing of the trial only through a link in the District Court’s own website, and had said that the YouTube posting was now not part of the plan.  The Prop. 8 group argued, though, that it would make only a technical difference, not a real one, if the viewing were allowed only on the Court’s website.  That would still be “public dissemination” contradicting Judicial Conference policy, and the display there could easily be converted into a broadcast with “mass distribution,” the new brief contended.