It was supposed to be an experiment: cameras in the courtroom for a high profile gay marriage case in San Francisco, with the footage on YouTube and in a handful of other courtrooms across the country. But then on Monday the Supreme Court shut the experiment down and, according to the New York Times’ Adam Liptak, thereby sent a message about where the Court stands in the debate over cameras in the courts.
BOB GARFIELD: This is On the Media. I'm Bob Garfield. It was meant to be a novel experiment this week, a court in San Francisco hearing a prominent gay marriage case was going to be videoed with time delay footage appearing later that day on YouTube. The case has garnered a great deal of attention and anticipation for the footage was high. The move to put cameras in the courtroom was approved by the Ninth Circuit earlier this month and was thought to be a kind of toe in the water on the divisive issue. But on Monday, at the last possible minute, the United States Supreme Court stepped in and shut the experiment down. The case and its resolution will not be televised. The effect of cameras in the courtroom has been a longstanding debate, and the Supreme Court has been resolutely against the idea, so many court watchers saw a strong signal in the eleventh hour denial. Adam Liptak has been writing about it for The New York Times, and he joins us once again. Adam, welcome back to the show.
ADAM LIPTAK: Thanks for having me.
BOB GARFIELD: Now, I said “novel” but cameras in the courtroom aren't entirely novel, especially in civil court. Can you give me the landscape?
ADAM LIPTAK: According to statistics Justice Breyer compiled in his dissent on Wednesday, 42 states allow camera coverage of non-jury civil trials, and there are experiments also in federal trial courts in Manhattan and Brooklyn.
BOB GARFIELD: In the majority’s unsigned opinion, there was a reference to the possibility for harassment of witnesses who might testify against gay marriage, in this case. Now, they may well be right. Is it the court’s duty to protect witnesses from harassment for their public testimony?
ADAM LIPTAK: That’s a really interesting question. One thing we know for sure is the people involved are paid experts and advocates who have made it a point to take public positions about these things, so you’re not talking about the ordinary kind of trial where witnesses are subpoenaed to arrive in court, sometimes against their will. If it were the case that the court should be wary of harassment of people testifying in public trial, maybe you should close the courtroom. Maybe you should ban the print press. Not clear what the additional increment of harassment potential is just because there’s also camera coverage.
BOB GARFIELD: Reading your story and others, one could not help but have the notion that this had maybe something to do [LAUGHS] with irregularities in the San Francisco court’s procedure, but more to do with the basic ideological split of the court. It was a typical five-to-four decision, with the conservative elements of the court prevailing. Does that portend a more precedent-setting decision about cameras in the courtroom at some point in the future?
ADAM LIPTAK: Well, it certainly was a surprising thing to see the court line up five-four with the conservatives plus Kennedy and the majority, the liberals, in dissent because if the question is should courts follow notice-and-comment procedure, you would not think that that itself is an ideologically charged question that should divide up people in the usual way. So I think you’re right, Bob, to suggest that this does give us some sense that when the court reaches the ultimate issue of are cameras appropriate in this case, it’s very likely to say no and it’s very likely to tell us something about its general views about cameras in the courtroom. And those views are likely to follow the views the court has about its own courtroom, which is it doesn't like cameras.
BOB GARFIELD: Well thanks for the you’re right, Bob, but [LAUGHS], Adam, I divined that based on the headline of your piece -
ADAM LIPTAK: [LAUGHS]
BOB GARFIELD: - at least online, which said decision breaks down [LAUGHS] according to ideological lines.
ADAM LIPTAK: Anytime.
BOB GARFIELD: So now we've gotten some hints about what this may augur for rulings on cameras in the courtroom, have we learned anything about the case which is at the center of all this, the constitutional issue regarding gay marriage in California? Is that even a factor in this conversation?
ADAM LIPTAK: It seems it’s a factor in this sense: The court says, well, if you’re going to do this, maybe you shouldn't start with a really high-profile trial. And there’s a passage in the majority decision saying that lower courts which have looked at this have started the experiments with low-profile trials, and there’s a distinct suggestion that a high-profile trial is a bad idea. And the other thing you might read into it is that it’s not a good sign for Ted Olson and David Boies, the lawyers challenging the ban on same-sex marriage, that the Supreme Court has now indicated that it has a distinct sense that it’s dealing with a runaway trial court judge.
BOB GARFIELD: All right, Adam. As always, thanks so much.
ADAM LIPTAK: Thank you.
BOB GARFIELD: Adam Liptak is the Supreme Court correspondent for The New York Times.