Kristin Perry, et al v. Arnold Schwarzenegger, et al

Filing 346

Filed (ECF) Appellants Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight and ProtectMarriage.com - Yes on 8, A Project of California Renewal reply to response (,motion to unseal document, ). Date of service: 04/21/2011. [7725018] (CJC)

EXHIBIT 34

No. 09A648
IN THE

pìéêÉãÉ=`çìêí=çÑ=íÜÉ=råáíÉÇ=pí~íÉë=
DENNIS HOLLINGSWORTH, ET AL.,
Applicants,
v.
KRISTIN M. PERRY, ET AL.,
Respondents.
RESPONSE OF KRISTIN M. PERRY ET AL. TO
APPLICATION FOR IMMEDIATE STAY

THEODORE J. BOUTROUS, JR.
THEANE EVANGELIS KAPUR
ENRIQUE A. MONAGAS
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
[phone]

THEODORE B. OLSON
Counsel of Record
MATTHEW D. MCGILL
AMIR C. TAYRANI
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
[phone]

Counsel for Respondents

D.

The Balance Of Equities Weighs Against A Stay.

Finally, the balance of equities weighs against a stay because there is a strong
interest in providing the public with meaningful access to the trial proceedings in this
exceedingly important case.
Recording and publicly distributing this bench trial in other courtrooms and on the
Internet will promote deeply rooted First Amendment principles that favor broad public
access to judicial proceedings. Indeed, this Court has recognized that a “trial is a public
event” and that “[w]hat transpires in the court room is public property.” Craig v. Harney,
331 U.S. 367, 374 (1947). Because “it is difficult for [people] to accept what they are
prohibited from observing” (Richmond Newspapers v. Virginia, 448 U.S. 555, 572 (1980)
(op. of Burger, C.J.)), the First Amendment guarantees free and open access to judicial
proceedings in order to foster public confidence in the judicial system. Broad public
access to judicial proceedings also “protect[s] the free discussion of governmental
affairs” that is essential to the ability of “the individual citizen . . . [to] effectively
participate in and contribute to our republican system of self-government.” Globe
Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982) (internal quotation marks
omitted).
In light of the great public interest in the issues to be decided in this case,
providing a broadcast of the proceedings is the most effective means of affording the
public its constitutionally guaranteed right of access. More than 13 million Californians
cast a vote for or against Prop. 8. And there are hundreds of thousands of gay and lesbian
Californians who have a direct stake in the outcome of this case. Far from detracting
18

from the right of public access, the “highly contentious” character of the issues to be
resolved in this case (Stay App. 24) underscores the importance of providing the public
with a meaningful window into the trial proceedings so it can see and hear what is
happening in the courtroom. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501,
508 (1984) (“The value of openness lies in the fact that people not actually attending
trials can have confidence that standards of fairness are being observed”). The “ability to
see and to hear a proceeding as i[t] unfolds is a vital component of the First Amendment
right of access.” ABC, Inc. v. Stewart, 360 F.3d 90, 99 (2d Cir. 2004).
III.

CONCLUSION

For the foregoing reasons, the Application for Immediate Stay should be denied.
Respectfully submitted.
THEODORE J. BOUTROUS, JR.
THEANE EVANGELIS KAPUR
ENRIQUE A. MONAGAS
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
[phone]

/s/ Theodore B. Olson
THEODORE B. OLSON
Counsel of Record
MATTHEW D. MCGILL
AMIR C. TAYRANI
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
[phone]

January 10, 2010

19

EXHIBIT 35

Case3:09-cv-02292-VRW Document708

Filed08/04/10 Page1 of 138

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4
5
6
7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

KRISTIN M PERRY, SANDRA B STIER,
PAUL T KATAMI and JEFFREY J
ZARRILLO,
Plaintiffs,
CITY AND COUNTY OF SAN FRANCISCO,
Plaintiff-Intervenor,
v
ARNOLD SCHWARZENEGGER, in his
official capacity as Governor of
California; EDMUND G BROWN JR, in
his official capacity as Attorney
General of California; MARK B
HORTON, in his official capacity
as Director of the California
Department of Public Health and
State Registrar of Vital
Statistics; LINETTE SCOTT, in her
official capacity as Deputy
Director of Health Information &
Strategic Planning for the
California Department of Public
Health; PATRICK O’CONNELL, in his
official capacity as ClerkRecorder of the County of
Alameda; and DEAN C LOGAN, in his
official capacity as RegistrarRecorder/County Clerk for the
County of Los Angeles,

g
CREDIBILITY DETERMINATIONS
g
FINDINGS OF FACT
g
CONCLUSIONS OF LAW
g
ORDER

DENNIS HOLLINGSWORTH, GAIL J
KNIGHT, MARTIN F GUTIERREZ, HAKSHING WILLIAM TAM, MARK A
JANSSON and PROTECTMARRIAGE.COM –
YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL, as official proponents
of Proposition 8,
Defendant-Intervenors.

28

PRETRIAL PROCEEDINGS AND
TRIAL EVIDENCE

Defendants,

26
27

No C 09-2292 VRW

/

Case3:09-cv-02292-VRW Document708

1

Filed08/04/10 Page37 of 138

b.

Tr 1525:1-10: Segura and a colleague, through the
Stanford Center for Democracy, operate the American
National Elections Studies, which provides political
scientists with data about the American electorate’s
views about politics;

c.

Tr 1525:11-19: Segura serves on the editorial boards of
major political science journals;

d.

Tr 1525:22-1526:24: Segura’s work focuses on political
representation and whether elected officials respond to
the voting public; within the field of political
representation, Segura focuses on minorities;

e.

PX2330; Tr 1527:25-1528:14: Segura has published about
twenty-five peer-reviewed articles, authored about
fifteen chapters in edited volumes and has presented at
between twenty and forty conferences in the past ten
years;

f.

PX2330; Tr 1528:21-24: Segura has published three pieces
specific to gay and lesbian politics and political
issues;

g.

Tr 1532:11-1533:17: Segura identified the methods he used
and materials he relied on to form his opinions in this
case. Relying on his background as a political
scientist, Segura read literature on gay and lesbian
politics, examined the statutory status of gays and
lesbians and public attitudes about gays and lesbians,
determined the presence or absence of gays and lesbians
in political office and considered ballot initiatives
about gay and lesbian issues.

2
3
4
5
6
7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20

PROPONENTS’ WITNESSES
Proponents elected not to call the majority of their

21

designated witnesses to testify at trial and called not a single

22

official proponent of Proposition 8 to explain the discrepancies

23

between the arguments in favor of Proposition 8 presented to voters

24

and the arguments presented in court.

25

court on the first day of trial, January 11, 2010, that they were

26

withdrawing Loren Marks, Paul Nathanson, Daniel N Robinson and

27

Katherine Young as witnesses.

28

stated in court on Friday, January 15, 2010, that their witnesses

Proponents informed the

Doc #398 at 3.

35

Proponents’ counsel

Case3:09-cv-02292-VRW Document708

Filed08/04/10 Page38 of 138

1

“were extremely concerned about their personal safety, and did not

2

want to appear with any recording of any sort, whatsoever.”

3

1094:21-23.

4

Tr

The timeline shows, however, that proponents failed to

5

make any effort to call their witnesses after the potential for

6

public broadcast in the case had been eliminated.

7

Court issued a temporary stay of transmission on January 11, 2010

8

and a permanent stay on January 13, 2010.

9

Perry, 130 SCt 1132 (Jan 11, 2010); Hollingsworth v Perry, 130 SCt

The Supreme

See Hollingsworth v

United States District Court
For the Northern District of California

10

705 (Jan 13, 2010).

11

Circuit’s pilot program on broadcasting on January 15, 2010.

12

#463.

13

same day.

14

witness until January 25, 2010.

15

reason behind proponents’ failure to call their expert witnesses.

16

The court withdrew the case from the Ninth
Doc

Proponents affirmed the withdrawal of their witnesses that
Tr 1094:21-23.

Proponents did not call their first
The record does not reveal the

Plaintiffs entered into evidence the deposition testimony

17

of two of proponents’ withdrawn witnesses, as their testimony

18

supported plaintiffs’ claims.

19

comparative religion and the universal definition of marriage.

20

#292 at 4 (proponents’ December 7 witness list) Doc #286-4 at 2

21

(expert report).

22

attitudes towards Proposition 8.

23

December 7 witness list); Doc #280-4 at 2 (expert report).

24

Katherine Young was to testify on
Doc

Paul Nathanson was to testify on religious
Doc #292 at 4 (proponents’

Young has been a professor of religious studies at McGill

25

University since 1978.

26

history of religions and comparative religions from McGill in 1978.

27

Id.

28

normal variant of human sexuality and that same-sex couples possess

PX2335 Young CV.

She received her PhD in

Young testified at her deposition that homosexuality is a

36

EXHIBIT 36

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STATEMENT OF CHIEF JUDGE EDWARD R. BECKER
ON BEHALF OF
THE JUDICIAL CONFERENCE OF THE UNITED STATES
I.

Introduction
Mr. Chainnan, and Members of the Subcommittee, my name is Edward R. Becker. I am

presently Chief Judge of the United States Court of Appeals for the Third Circuit, having served on
the court for over 18 years. Prior to that I was a judge of the United States District Court for the
Eastern District of Pennsylvania for over 11 years. I will observe my 30th anniversary on the
federal bench on December 11, 2000. I am appearing before you today in my capacity as a
member of the Executive Committee of the Judicial Conference of the United States. On behalf of
the Judicial Conference, I appreciate the invitation to testify. We hope that the testimony provided
here is useful to you.
As you requested, this statement will comment on S. 721, a bill that would "allow media
coverage of court proceedings." The Judicial Conference strongly opposes this measure.
The federal judiciary has examined the issue of whether cameras should be pennitted in the
federal courts for more than six decades, both through case law and Judicial Conference
consideration. The Judicial Conference in its role as the policy-making body for the federal
judiciary has consistently expressed the view that camera coverage can do irreparable hann to a
citizen's right to a fair and impartial trial. We believe that the intimidating effect of cameras on
litigants, witnesses, and jurors has a profoundly negative impact on the trial process. Moreover, in
civil cases cameras can intimidate civil defendants who, regardless of the merits of their case,
might prefer to settle rather than risk damaging accusations in a televised trial. Cameras can also
create security concerns in the federal courts. Finally, cameras can create privacy concerns for
countless numbers of persons, many of whom are not even parties to the case, but about whom very

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personal infonnation may be revealed at trial.
These concerns are far from hypothetical. Since the infancy of motion pictures, cameras
have had the potential to create a spectacle around court proceedings. Obvious examples include
the media frenzies that surrounded the 1935 Lindbergh baby kidnapping trial, the murder trial in
1954 of Dr. Sam Sheppard, and the more recent Menendez brothers and O.J. Simpson trials. We
have avoided such incidences in the federal courts due to the present bar of cameras in the trial
courts, which S. 721 now proposes to overturn.
The federal courts have shown strong leadership in the continuing effort to modernize the
litigation process. This has been particularly true of the federal judiciary's willingness to
embrace new technologies, such as electronic case filing and access, videoconferencing, and
electronic evidence presentation systems. The federal courts have also established community
outreach programs in which several thousand students and teachers nationwide have come to
federal courthouses to learn about court proceedings. Our opposition to this legislation, therefore,
is not, as some may suggest, borne of a desire to stem technology or access to the courts. We
oppose the broadcasting of federal court proceedings because it is contrary to the interests of
justice, which it is our most solemn duty to uphold.
Today I will discuss some of the Judicial Conference's specific concerns with this
legislation, as well as with the issues of cameras in the courtroom, generally. However, before
addressing those concerns, I would like to provide you with a brief review of the Conference's
experience with cameras, which will demonstrate the time and effort it has devoted to

understanding this issue over the years. I must emphasize at the threshold that today, as in the past,

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the federal courts are at all times open to the public.

II.

Background on Cameras in the Federal Courts
Whether to allow cameras in the courtroom is far from a novel question for the federal

judiciary. Electronic media coverage of criminal proceedings in federal courts has been expressly
prohibited under Federal Rule of Criminal Procedure 53 since the criminal rules were adopted in
1946. That rule states that "[t]he taking of photographs in the courtroom during the progress of
judicial proceedings or radio broadcasting of judicial proceedings from the courtroom shall not be
permitted by the court."
In 1972, the Judicial Conference adopted a prohibition against "broadcasting, televising,
recording or taking photographs in the courtroom and areas immediately adjacent thereto .... "
The prohibition applied to criminal and civil cases. The Conference has, however, repeatedly
studied and considered the issue since then.
In 1988, Chief Justice William Rehnquist appointed an Ad Hoc Committee on Cameras in
the Courtroom, which recommended that a three-year experiment be established permitting camera
coverage of certain proceedings in selected federal courts. In 1990, the Judicial Conference
adopted this recommendation, and authorized a three-year pilot program allowing electronic media
coverage of civil proceedings in six district and two appellate courts, which commenced July 1,
1991. The courts that volunteered to participate in the pilot project were the

u.s. Courts of

Appeals for the Second and Ninth Circuits, and the U.S. District Courts for the

Southern District of Indiana, District of Massachusetts, Eastern District of Michigan, Southern
District of New York, Eastern District of Pennsylvania, and Western District of New York.

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The Federal Judicial Center (FJC) conducted a study of the pilot project and submitted its
results to a committee of the Judicial Conference in September 1994. I The research project staff
made a recommendation that the Conference "authorize federal courts of appeals and district
courts nationwide to provide camera access to civil proceedings in their courtrooms .... " It is
important to note that the recommendations included in the report were reviewed within the FJC
but not by its Board.
The Conference disagreed with the conclusions drawn by the FJC staff and concluded that
the potentially intimidating effect of cameras on some witnesses and jurors was cause for
considerable concern. The paramount responsibility of a United States judge is to uphold the
Constitution, which guarantees citizens the right to a fair and impartial trial. Taking into account
this considerable responsibility placed upon judges, the Conference concluded that it was not in
the interest of justice to permit cameras in federal courtrooms.
Two years later, at its March 1996 session, the Judicial Conference again considered the
issue. At that session, the Conference voted to strongly urge each circuit judicial council to adopt,
pursuant to its rulemaking authority articulated in 28 U.S.c. § 332(d)(1), an order reflecting the
Conference's September 1994 decision not to permit the taking of photographs or radio and
television coverage of proceedings in U.S. district courts. The Conference also voted to strongly
urge circuit judicial councils to abrogate any local rules that conflict with this decision, pursuant to
28 U.S.C. § 2071(c)(1).
The Conference, however, made a distinction between camera coverage for appellate and

lIn 1994, the Federal Judicial Center published a report entitled Electronic Media Coverage ofFederal
Civil Proceedings: An Evaluation of the Pilot Program in Six District Courts and Two Courts ofAppeals. The
period used by the Federal Judicial Center for its study was July 1, 1991, to June 30, 1993.

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district court proceedings. Because an appellate proceeding does not involve witnesses and
juries, the concerns of the Conference regarding the impact of camera coverage on the litigation
process were reduced. Therefore, the Conference adopted a resolution stating that "[ e]ach court of
appeals may decide for itself whether to permit the taking of photographs and radio and television
coverage of appellate arguments, subject to any restrictions in statutes, national and local rules,
and such guidelines as the Conference may adopt."
The current policy, as published in the Guide to Judiciary Policies and Procedures
states:
A judge may authorize broadcasting, televising, recording, or taking photographs in
the courtroom and in adjacent areas during investigative, naturalization, or other
ceremonial proceedings. A judge may authorize such activities in the courtroom or
adjacent areas during other proceedings, or recesses between such proceedings,
only: (a) for the presentation of evidence; (b) for the perpetuation of the record of
the proceedings; (c) for security purposes; (d) for other purposes of judicial
administration; or (e) in accordance with pilot programs approved by the Judicial
Conference ofthe United States.
Presently, only two of the 13 appellate courts, the Second and Ninth Circuits, have decided
to permit camera coverage in appellate proceedings. This decision was made by the judges of
each court. As for cameras in district courts, most circuit councils have either adopted
resolutions prohibiting cameras in the district courts or acknowledged that the district courts in that
circuit already have such a prohibition.

Finally, it may be helpful to describe the state rules regarding cameras in the courtroom.
While it is true that most states permit some use of cameras in their courts, such access by the
media is not unlimited. The majority of states have imposed restrictions on the use of cameras in

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the court or have banned cameras altogether in certain proceedings. Although it is somewhat
difficult to obtain current information, it appears that approximately 20 states that permit cameras
have restrictions of some kind written into their authorizing statutes, such as prohibiting coverage
of certain proceedings or witnesses, and!or requiring the consent of the parties, victims of sex
offenses, and witnesses. Eleven states do not allow coverage of criminal trials. In eight states
cameras are allowed only in appellate courts. Mississippi, South Dakota, and the District of
Columbia prohibit cameras altogether. Utah allows only still photography at civil trials, and
Nebraska allows only audio coverage in civil trials. In fact, only 16 states provide the presiding
judge with the type of broad discretion over the use of cameras contained in this legislation. It is
clear from the widely varying approaches to the use of cameras that the state courts are far from
being of one mind in the approach to, or on the propriety and extent of, the use of cameras in the
courtroom.

III.

Judicial Conference Concerns Regarding S. 721
I would now like to discuss some of the specific concerns the Judicial Conference has with

S. 721, as well as the more general issue of media coverage in the courtroom.

A. Cameras Negatively Impact the Trial Process
Supporters of cameras in the courtroom assert that modem technology has made cameras
and microphones much less obvious, intrusive or disruptive, and that therefore the judiciary need
not be concerned about their presence during proceedings. That is not the issue. While covert
coverage may reduce the bright lights and tangle of wires that were made famous in the Simpson
trial, it does nothing to reduce the significant and measurable negative impact that camera coverage
can have on the trial participants themselves.

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Proponents of cameras in the courtroom argue that media coverage would benefit society
because it would enable people to become more educated about the legal system and particular
trials. But even if this is true, and we take up this question later in the testimony, increased public
education cannot be allowed to interfere with the judiciary's primary mission, which is to
administer fair and impartial justice to individual litigants in individual cases. While judges are
accustomed to balancing conflicting interests, balancing the positive effects of media coverage
against an external factor such as the degree of impairment of the judicial process that camera
coverage would bring is not the kind of thing judges should balance. Rather, our mission is to
administer the highest possible quality of justice to each and every litigant. We cannot tolerate
even a little bit of unfairness (based on media coverage), notwithstanding that society as a whole
might in some way benefit, for that would be inconsistent with our mission.
The Conference maintains that camera coverage would indeed have a notably adverse
impact on court proceedings. This includes the impact the camera and its attendant audience
would have on the attorneys, jurors, witnesses, and judges. We believe, for example, that a
witness telling facts to a jury will often act differently when he or she knows that thousands of
people are watching and listening to the story. This change in a witness's demeanor could have a
profound impact on ajury's ability to accurately assess the veracity of that witness. Media
coverage could exacerbate any number of human emotions in a witness from bravado and over
dramatization, to self-consciousness and under reaction. In fact, even according to the FJC study
(which is discussed in more detail later in this statement), 64 percent of the participating judges
reported that, at least to some extent, cameras make witnesses more nervous. In addition, 46
percent of the judges believed that, at least to some extent, cameras make witnesses less willing to

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appear in court, and 41 percent found that, at least to some extent, cameras distract witnesses.
Such effects could severely compromise the ability of jurors to assess the veracity of a
witness and, in turn, could prevent the court from being able to ensure that the trial is fair and
impartial. Likewise, television cameras could have a profound impact on the deliberations of a
jury. The psychological pressures that jurors are already under would be unnecessarily increased
by the broader exposure resulting from the broadcasting of a trial and could conceivably affect a
juror's judgment to the detriment of one of the parties.

B. S. 721 Inadequately Protects the Right to a Fair Trial
The primary goal of this legislation is to allow radio and television coverage of federal
court cases. While there are several provisions aimed at limiting coverage (i.e., allowing judges
the discretion to allow or decline media coverage; authorizing the Judicial Conference to develop
advisory guidelines regarding media coverage; and requiring courts to disguise the face and voice
of a witness upon his or her request), the Conference is convinced that camera coverage could, in
certain cases, so indelibly affect the dynamics of the trial process that it would impair citizens'
ability to receive a fair triaF
For example, Section lea) and (b) of the bill would allow the presiding judge of an
appellate or district court to decide whether to allow cameras in a particular proceeding before
that court. If this legislation were to be enacted, we are confident that all federal judges would use
extreme care and judgment in making this determination. Nonetheless, federal judges are not
clairvoyants. Even the most straightforward or "run of the mill" cases have unforseen

2We recognize that the legislation would sunset the authority for district court judges to permit cameras
three years after the date of enactment of the Act. There is no comparable sunset provision for the appellate
courts.

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developments. Obviously a judge never knows how a lawyer will proceed or how a witness or
party will testify. And these events can have a tremendous impact on the trial participants.
Currently, courts have recourse to instruct the jury to disregard certain testimony or, in extreme
situations, to declare a mistrial if the trial process is irreparably harmed. If camera coverage is
allowed, however, there is no opportunity to later rescind remarks heard by the larger television
audience. This concern is of such importance to the Conference that it opposes legislation that
would give a judge discretion to evaluate in advance whether television cameras should be
permitted in particular cases.
We also are concerned about the provision that would require courts to disguise the face
and voice of a witness upon his or her request. Anyone who has been in court knows how
defensive witnesses can be. Frequently they have a right to be. Witnesses are summoned into
court to be examined in public. Sometimes they are embarrassed or even humiliated. Providing
them the choice of whether to testify in the open or blur their image and voice would be cold
comfort given the fact that their name and their testimony will be broadcast to the community. It
would not be in the interest of the administration of justice to unnecessarily increase the already
existing pressures on witnesses.

These basic concerns regarding witnesses were eloquently described by Justice Clark in

Estes v. Texas, 381 U.S. 532:
The quality of the testimony in criminal trials will often be impaired. The impact
upon a witness of the knowledge that he is being viewed by a vast audience is
simply incalculable. Some may be demoralized and frightened, some cocky and
given to overstatement; memories may falter, as with anyone speaking publicly, and
accuracy of statement may be severely undermined. Embarrassment may impede
the search for the truth, as maya natural tendency toward over dramatization.

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Furthermore, inquisitive strangers and 'cranks' might approach witnesses on the
street with jibes, advice or demands for explanation of testimony. There is little
wonder that the defendant cannot 'prove' the existence of such factors. Yet we all
know from experience that they exist. ...

Estes, 381 U.S. at 547.
It is these concerns that cause the Judicial Conference of the United States to oppose

enactment ofS. 721.

C. Threat of Camera Coverage Could be Used as a Trial Tactic
Cameras provide a very strong temptation for both attorneys and witnesses to try their
cases in the court of public opinion rather than in a court of law. Allowing camera coverage
would almost certainly become a potent negotiating tactic in pretrial settlement negotiations. For
example, in a high-stakes case involving millions of dollars, the simple threat that the president of
a defendant corporation could be forced to testify and be cross examined, for the edification of the
general public, might well be a real disincentive to the corporation's exercising its right to a
public trial.

D. Cameras Can Create Security Concerns
Although the bill includes language allowing witnesses who testify to be disguised, the bill
does not address security concerns or make similar provision regarding other participants in
judicial proceedings. The presence of cameras in the courtroom is likely to heighten the level and
the potential of threats to judges. The number of threats against judges has escalated over the
years, and widespread media exposure could exacerbate the problem. Additionally, all witnesses,
jurors, and United States Marshals Service personnel may be put at risk because they would no
longer have a low public profile.
Also, national and international camera coverage of trials in federal courthouses, would

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Page 11

place these buildings, and all in them at greater risk from terrorists, who tend to choose targets for
destruction that will give their "messages" the widest exposure. Such threats would require
increased personnel and funding to adequately protect participants in court proceedings.

E. Cameras Can Create Serious Privacy Concerns
There is a rising tide of concern among Americans regarding privacy rights and the
Internet. Numerous bills have been introduced in both the Congress and state legislatures to
protect the rights of individual citizens from the indiscriminate dissemination of personal
information that once was, to use a phrase coined by the Supreme Court, hidden by "practical
obscurity,"3 but now is available to anyone at any time because ofthe advances oftechnology. The
judiciary is studying this issue carefully with respect to court records, and Congress has before it a
bipartisan proposal to create a Privacy Study Commission to look at a number of issues, including
public records.
Broadcasting of trials presents many of the same concerns about privacy as does the
indiscriminate dissemination of information on the Internet that was once only available at the
courthouse. Witnesses and counsel frequently discuss very sensitive information during the course
of a trial. Often this information relates to individuals who are not even parties to the case, but
about whom personal information may be revealed. Also, in many criminal and civil trials, which
the media would most likely be interested in televising, much of the evidence introduced may be of
an extremely private nature, revealing family relationships and personal facts, including medical
and financial information. This type of information provided in open court, is already available to

3United States Department of Justice v. Reporters Committee for the Freedom of the Press, 489 U.S.
749,764 (1989).

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the public through the media. Televising these matters sensationalizes these details for no apparent
good reason.
Involvement in a federal case can have a deep and long-lasting impact on all its
participants, most of whom have neither asked for nor sought publicity. In this adversarial setting,
reputations can be compromised and relationships can be damaged. In fact, according to the FJC
study on live courtroom media coverage, 56% of the participating judges felt that electronic media
coverage violates a witness's privacy. This is not to say that the Conference advocates closed
trials; far from it. Nevertheless, there is a common-sense distinction between a public trial in a
public courtroom-typically filled with individuals with a real interest in the case-and its
elevation to an event that allows and encourages thousands to become involved intimately in a
case that essentially concerns a small group of private people or entities.
The issue of privacy rights is one that has not been adequately considered or addressed by
those who would advocate the broadcasting of trials. This heightened awareness of and
concern for privacy rights is a relatively new and important development that further supports the
position of the Judicial Conference to prohibit the use of cameras in the courtroom.

F.

s. 721 Does Not Address the Complexities Associated with Camera Coverage

Media coverage of a trial would have a significant impact on that trial process. There are
major policy implications as well as many technical rules issues to be considered, none of which
are addressed in the proposed legislation. For example, televising a trial makes certain court
orders, such as those sequestering witnesses, more difficult to enforce. In a typical criminal trial,
most witnesses are sequestered at some point. In addition, many related technical issues would
have to be addressed, including advance notice to the media and trial participants, limitations on

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coverage and camera control, coverage of the jury box, and sound and light criteria.
Finally, S. 721 includes no funding authorization for implementation of its mandates.
Regardless of whether funding is authorized, there is no guarantee that needed funds would be
appropriated. The costs associated with allowing cameras, however, could be significant. For
example, costs would be incurred to retrofit courtrooms to incorporate cameras while minimizing
their actual presence to the trial participants. Also, to ensure that a judge's orders regarding
coverage of the trial were followed explicitly (e.g., not filming the jury, obscuring the image and
voice of certain witnesses, or blocking certain testimony), a court may need to purchase its own
equipment, as well as hire technicians to operate it. When considering that these expenses may
have to be incurred in each of the 94 districts, the potential cost could be significant. An
additional considerable cost would be creation of the position of media coordinator or court
administrative liaison to administer and oversee an electronic media program on a day-to-day
basis. According to the FJC report, the functions of the media liaisons included receiving

applications from the media and forwarding them to presiding judges, coordinating logistical
arrangements with the media, and maintaining administrative records of media coverage.

G. There is No Constitutional Right to have Cameras in the Courtroom
Some have asserted that there is a constitutional "right" to bring cameras into the
courtroom and that the First Amendment requires that court proceedings be open in this manner to
the news media. The Judicial Conference responds to such assertions by stating that today, as in
the past, federal court proceedings are open to the public; however, nothing in the First
Amendment requires televised trials.

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The seminal case on this issue is Estes v. Texas, 381 U.S. 532 (1965). In Estes, the
Supreme Court directly faced the question whether a defendant was deprived of his right under the
Fourteenth Amendment to due process by the televising and broadcasting of his trial. The Court
held that such broadcasting in that case violated the defendant's right to due process oflaw. At the
same time, a majority of the Court's members addressed the media's right to telecast as relevant to
determining whether due process required excluding cameras from the courtroom. Justice Clark's
plurality opinion and Justice Harlan's concurrence indicated that the First Amendment did not
extend the right to the news media to televise from the courtroom. Similarly, Chief Justice
Warren's concurrence, joined by Justices Douglas and Goldberg, stated:
[nJor does the exclusion of television cameras from the courtroom in any way
impinge upon the freedoms of speech and the press. . .. So long as the television
industry, like the other communications media, is free to send representatives to
trials and to report on those ttja1s to its viewers, there is no abridgement of the
freedom of press.

Estes, 381 U.S. at 584-85 (Warren, c.J., concurring).
In the case of Westmoreland v. Columbia Broadcasting System. Inc., 752 F.2d 16 (2d Cir.
1984), the Second Circuit was called upon to consider whether a cable news network had a right
to televise a federal civil trial and whether the public had a right to view that trial. In that case,
both parties had consented to the presence of television cameras in the courtroom under the close
supervision of a willing court, but a facially applicable court rule prohibited the presence of such
cameras. The Second Circuit denied the attempt to televise that trial, saying that no case has held
that the public has a right to televised trials. As stated by the court, "[tJhere is a long leap ...
between a public right under the First Amendment to attend trials and a public right under the First
Amendment to see a given trial televised. It is a leap that is not supported by history."

Westmoreland, 752 F.2d at 23.

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Similarly, in United States v. Edwards, 785 F.2d 1293 (5th Cir. 1986), the court discussed
whether the First Amendment encompasses a right to cameras in the courtroom, stating: "No case
suggests that this right of access includes a right to televise, record, or otherwise broadcast trials.
To the contrary, the Supreme Court has indicated that the First Amendment does not guarantee a
positive right to televise or broadcast criminal trials." Edwards, 785 F.2d at 1295. The court
went on to explain that while television coverage may not always be constitutionally prohibited,
that is a far cry from suggesting that television coverage is ever constitutionally mandated.
These cases forcefully make the point that, while all trials are public, there is no
constitutional right of media to broadcast federal district court or appellate court proceedings.

H. The Teachings ofthe FJC Study
Proponents of S. 721 have indicated that the legislation is justified in part by the FJC study
referred to earlier. The Judicial Conference based, in part, its opposition to cameras in the
courtroom on the same study. Given this apparent inconsistency, it may be useful to highlight
several important findings and limitations of the study. As I noted earlier in the statement, the
recommendations included in the FJC report, which were proposed by the research project staff,
were reviewed within the FJC but not by its Board.
First, the study only pertained to civil cases. This legislation, if enacted, would allow
camera coverage in both civil and criminal cases. As this Subcommittee is acutely aware, the
number of criminal cases in the federal courts continues to rise. One could expect that most of
the media requests for coverage would be in sensational criminal cases, where the problems for
witnesses, including victims of crimes, and jurors are most acute.

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Second, the study's conclusions ignore a large amount of significant negative statistical
data. For example, the study reports on attorney ratings of electronic media effects in proceedings
in which they were involved. Among these negative statistics were the following:
•

32% of the attorneys who responded felt that, at least to some extent, the cameras distract
witnesses;

•

40% felt that, at least to some extent, the cameras make witnesses more nervous than they
otherwise would be;

•

19% believed that, at least to some extent, the cameras distract jurors;

•

21 % believed that, at least to some extent, the cameras cause attorneys to be more
theatrical in their presentations;

•

27% believed that, at least to some extent, the cameras have the effect of distracting the
attorneys; and

•

21 % believed that, at least to some extent, the cameras disrupt the courtroom proceedings.
When trial judges were asked these same questions, the percentages of negative responses

were even higher:
•

46% believed that, at least to some extent, the cameras make witnesses less willing to
appear in court;

•

41 % found that, at least to some extent, the cameras distract witnesses;

•

64% reported that, at least to some extent, the cameras make witnesses more nervous than
they otherwise would be;

•

17% responded that, at least to some extent, cameras prompt people who see the coverage
to try to influence juror-friends;

•

64% found that, at least to some extent, the cameras cause attorneys to be more theatrical in
their presentations;

•

9% reported that, at least to some extent, the cameras cause judges to avoid unpopular
decisions or positions; and

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17% found that, at least to some extent, cameras disrupt courtroom proceedings.
These negative statistical responses from judges and attorneys involved in the pilot project

dominated the Judicial Conference debate and were highly influential in the Conference's
conclusion that the intimidating effect of cameras on witnesses and jurors was cause for alarm.
Since a United States judge's paramount responsibility is to seek to ensure that all citizens enjoy a
fair and impartial trial, and cameras may compromise that right, allowing cameras would not be in
the interest of justice. For these reasons, the Judicial Conference rejected the conclusions made by
the FJC study with respect to cameras in district courts.
For the appellate courts, an even larger percentage of judges who participated in the study
related negative responses:
•

47% of the appellate judges who responded found that, at least to some extent, the cameras
cause attorneys to be more theatrical in their presentations;

•

56% found that, at least to some extent, the cameras cause attorneys to change the emphasis
or content of their oral arguments;

•

34% reported that, at least to some extent, cameras cause judges to change the emphasis or
content of their questions at oral arguments; and

•

26% reported that, at least to some extent, the cameras disrupt courtroom proceedings.
While the Conference did allow each United States court of appeals to determine whether

to permit the use of cameras in that circuit, these high negative responses give us a very real
indication as to why only two out of 13 courts of appeals have allowed their proceedings to be
televised. The two courts that do allow camera coverage are the Second and Ninth Circuits,
which voluntarily participated in the pilot project.
Carefully read, the FJC study does not reach the firm conclusions for which it is repeatedly
cited. The negative responses described above undermine such a reading. When considering

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legislation affecting cameras in the courtroom with such permanent and long-range implications for
the judicial process, the negative responses should be fully considered. Certainly that is what the
Conference focused on. In reality the recommendations of the study reflect a balancing exercise
which may seem proper to social scientists but which is unacceptable to judges who cannot
compromise the interests of the litigants, jurors, and witnesses, even for some amorphous public
good. We turn to that issue now.

IV.

The Putative Educational Benefit of Cameras in the Courtroom
The proponents of cameras in the courtroom rely, of course, on the putative benefits of

public education and understanding of court processes. The Judicial Conference supports that goal
but does not agree that cameras in courtrooms will significantly further it. The FJC study analyzed
the results achieved during the pilot project. The main approach to the issue lay in a content
analysis of evening news broadcast using footage obtained during the pilot program. 4 The content
analysis is disquieting. The ninety stories analyzed presented a total of one hour and twenty-five
minutes of courtroom footage, with an average of fifty-six seconds of courtroom footage per story.
There is not too much educational content in 56 seconds. Moreover, most of the courtroom footage
was voiced over by a reporter's narration. On average, reporters narrated 63% of all courtroom

4rhis analysis was conducted by the Center for Media and Public Affairs under contract with the FJC.
Content analysis is the objective and systematic description of communicative material. The content analysis
performed for this study proceeded in two phases. First, a qualitative analysis was used to identify the symbols,
stylistic devices, and narrative techniques shaping the form and substance of the news stories; this allowed the
researchers to develop analytic categories based on the actual content of the stories rather than imposing priori
categories. Second, the analytic categories that were developed and pre-tested formed the basis of a quantitative
analysis, which involved the systematic coding of story content into discrete categories.

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footage. Thus, the witnesses, parties, and attorneys spoke on camera for just over one-third of the
total air time. In at least one-half of the cases photographed, information on the nature of the case
was provided by reporters or anchors without relying on the participants.
The FJC report also sought to determine specifically the extent to which the stories
provided basic educational information about the legal system, examining whether five pieces of
information were conveyed to the viewer: (1) identification of the case as a civil matter;
(2) identification of the type or proceeding, such as a hearing or trial; (3) statements about whether
a jury was present; (4) descriptions of the proceedings on a given day; and (5) discussion of the
next step in the legal process. The report concluded as follows:
The vast majority of stories (95% of non-first day stories) did not identify
the proceeding covered as a civil matter. In addition, 77% of the stories failed to
identify the type of proceeding involved. Almost three-quarters (74%) of all
stories did not provide information about whether a jury was present, including half
of the stories that identified the covered proceedings as a trial.
Most stories (74%) did explain what transpired in court on a particular day,
such as who testified or what evidence was presented. In multiple-day cases, 90%
of the stories explained the daily proceedings, compared to 63% in single-day
stories. Seventy-six percent of the daily proceedings in a story were explained by
a combination of reporter narration and participant discussion. Only 29% of
stories mentioned the next step in the litigation process in the case.
Thus, the stories did not provide a high level of detail about the legal
process in the cases covered. In addition, the analysis revealed that increasing the
proportion of courtroom footage used in a story did not significantly increase the
information given about the legal process.
In view of the foregoing, we suggest that the benefits of televised coverage of courtroom
proceedings are overrated (and are certainly far outweighed by the detriments described above).
Television news coverage oftentimes appears simply to use the courtroom for a backdrop or a
visual image for the news story which, like many of such stories on television, are delivered in

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short sound bites and not in depth.
The FJC study also reported that Court TV covered 28 cases under the program and that CSPAN covered 7 cases. However, it does not appear from records available to us that these
proceedings were broadcast either in their entirety or continuously. The paucity of cases selected
by C-SPAN-seven in two years-suggests that the tediousness, technicality, and sheer length of

trials are obstacles to comprehensive media transmission, except in the sensational kinds of cases
where the harms described previously are the greatest.

V.

A Better Vehicle for Public Education
The federal judiciary acknowledges that more needs to be done to improve the general

understanding by the public of the federal judiciary and its processes. We believe that this goal
can best be achieved by active federal judicial involvement. Federal courts have, in the past few
years, begun to play an active role in this area through community outreach programs. Under the
aegis of these programs, thousands of students, teachers, and other members of the public have
come into federal courts to learn more about the federal courts and to engage in dialogue with
judges, attorneys and court personnel. National initiatives to increase public understanding of the
federal court system are underway in pilot programs in two circuits. In addition, over the last two
years, the federal judiciary has conducted Law Day programs for high school seniors, during
which mock trials were broadcast to 2,000 students at over 30 participating courthouses
nationwide.
Additionally, plans are underway for federal courts to assist school personnel in planning
curriculums designed to instruct about the federal judiciary, culminating in court visits (or visits by

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judges to schools). The positive results of these kinds of programs are self-evident. We believe
that it would be preferable to expend the monies that would be necessary to support a cameras in
the courtroom project on these community outreach programs.

VI.

Conclusion
When almost anyone in this country thinks of cameras in the courtroom today, they

inevitably think ofthe Simpson case. I sincerely doubt anyone believes that the presence of
cameras in that courtroom did not have an impact on the conduct of the attorneys, witnesses, jurors,
and judge-almost universally to the detriment of the trial process. Admittedly, few cases are
Simpson-like cases, but the inherent effects of the presence of cameras in the courtroom are, in
some respects, the same, whether or not it is a high-publicity case. Furthermore, there is a
legitimate concern that if the federal courts were to allow camera coverage of cases that are not
sensational, it would become increasingly difficult to limit coverage in the high-profile and
high-publicity cases where such limitation, almost all would agree, would be warranted.
This is not a debate about whether judges would be discomfited with camera coverage.
Nor is it a debate about whether the federal courts are afraid of public scrutiny. They are not.
Open hearings are a hallmark of the federal judiciary. It is also not about increasing the
educational opportunities for the public to learn about the federal courts or the litigation process.
The judiciary strongly endorses educational outreach, which could better be achieved through
increased and targeted community outreach programs.
Rather, this is a decision about how individual Americans-whether they are plaintiffs,

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defendants, witnesses, or jurors-are treated by the federal judicial process. It is the fundamental
duty of the federal judiciary to ensure that every citizen receives his or her constitutionally
guaranteed right to a fair trial. For the reasons discussed in this statement, the Judicial Conference
believes that the use of cameras in the courtroom could seriously jeopardize that right. It is this
concern that causes the Judicial Conference of the United States to oppose enactment of S. 721. As
the Supreme Court stated in Estes, "[w]e have always held that the atmosphere essential to the
preservation of a fair trial-the most fundamental of all freedoms-must be maintained at all
costs." 381 U.S. at 540.
Mr. Chairman, thank: you again for the opportunity to testify and present these views. I will
be pleased to answer any questions you or the other members ofthe Subcommittee may have.