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On cameras in the Prop. 8 courtroom, justices rule: Do as we do, not as we say

January 11, 2010 |  2:33 pm

In 1981 the U.S. Supreme Court, semi-overruling a previous decision, ruled that the Constitution "does not prohibit a state from experimenting" with television cameras in the courtroom. Today the  justices stayed -- put on hold -- the decision of U.S. District Judge Vaughn Walker to allow the dissemination on the Internet of video of this week's trial on the constitutionality of Proposition 8. (The justices also blocked Walker's plan to stream the video in real time to other federal courthouses.)

 What gives?

The legal basis for the order is a principle that allows courts to issue injunctions if there is a danger of "irreparable harm." As Justice Stephen Breyer pointed out in dissenting from the order, the request by (suddenly publicity-shy) Proposition 8 supporters for a stay  didn't meet that exacting standard. An alternative theory is that the justices simply react reflexively against the idea of cameras in courtrooms.

Whether or not they lift the stay when it expires on Wednesday (and I assume Breyer is evangelizing  his colleagues), the Brethren seem to have put their own skittishness about televised proceedings above the principle of public access to the judicial system.  Walker's decision to allow the  wide dissemination of video of the trial on a delayed basis was simply a matter of adapting the tradition of public  trials to the age of television -- and  the Internet. (The video of the trial was to have been posted on YouTube.)

The justices are free to continue their irrational resistance to cameras in their own court. But they shouldn't let their aversion to being seen on TV warp their legal judgment in other cases.

-- Michael McGough

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