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Delay in broadcast of Prop. 8 trial

The Supreme Court on Monday ordered at least a two-day postponement of any broadcast of the trial — opening later in the day in San Francisco — of the constitutional challenge to California’s “Prop. 8” ban on same-sex marriage.  The delay, issued over the dissent of Justice Stephen G. Breyer, will last at least until 4 p.m. Washington time on Wednesday, the Court said.  The ruling only allows “real-time streaming” of video of the trial to other rooms within the San Francisco courthouse, and not to other courthouses in the Ninth Circuit and in New York, and not to YouTube for Internet webcast.  The order is here.

The order not only blocks the trial judge’s original order permitting delayed broadcast of the trial proceedings, but also “any additional order permitting broadcast of the proceedings,” pending further action by the Justices.   In his brief dissent, Justice Breyer said he was not persuaded that the supporters of Prop. 8, who sought to block any televising of the trial, would suffer harm from such broacasts.

The fact that the Court will take more time to consider the issue is an indication that the broadcasting may yet be allowed.  But the mere fact that it has imposed even a temporary delay would not appear to be an encouraging sign for the prospect that the video will be seen outside the courthouse.

Although the Court provided no explanation of its decision to issue a stay lasting only through Wednesday, one possible reason was that the Ninth Circuit’s chief judge, Alex Kozinski, had not signed off on the webcast on YouTube — a broadcast that would have displayed the trial far more widely than in rooms in courthouses where capacity would be limited.  The Ninth Circuit’s approval of streaming the video and audio to other courthouses did not go beyond that, and, in fact, it barred anyone from photographing or recording the electronic feeds to the other courthouses designated.