In addition to its illegality (see Part 2), Judge Walker’s televising order threatens unfair and irreparable—and wildly asymmetric—prejudice to the parties and witnesses supporting Proposition 8. For that reason, his order should be vacated before trial begins next Monday.*
From the paramount perspective of ensuring fair treatment of litigants, it is difficult to imagine a worse civil case to televise than the Proposition 8 case. As counsel for the Proposition 8 sponsors spelled out in their letters opposing televised proceedings, the fair-trial concerns that animate the longstanding opposition of the Judicial Conference of the United States to televised proceedings in federal district court apply with special force in this case. Given all the harassment of Proposition 8 supporters that has already occurred, “it is not surprising,” as counsel’s December 28 letter puts it, that “potential witnesses have already expressed to [counsel] their great distress at the prospect of having their testimony televised” and that “some potential witnesses have indicated that they will not be willing to testify at all if the trial is broadcast or webcast beyond the courthouse.”
As I discuss in point 2 of my Part 1 post, Walker’s YouTube order ensures that the potential for abuse and harassment of witnesses and other trial participants is thousands, if not millions, of times greater than an ordinary unrecorded trial would entail. Further, that potential is far more likely to be anticipated by those individuals supporting Proposition 8 than by plaintiffs and their witnesses. This is so not only because of the recent ugly episodes that followed adoption of Proposition 8. It is also because plaintiffs’ declared trial strategy (see point 3 of Part 1) is to show that the sponsors of Proposition 8 who testify as witnesses are contemptible bigots—and that strategy will have the predictable consequence of inciting harassment and abuse of these witnesses and their counsel. By contrast, the attorneys defending Proposition 8 have no litigation interest in showing that particular opponents of Proposition 8 are, say, really interested in destroying marriage altogether, or are anti-religious bigots, or are “irrational.” Their task, rather, is merely to show that Proposition 8 is rationally related to, or otherwise sufficiently advances, legitimate governmental interests.
I am not contending here that supporters of Proposition 8 are more genteel than their opponents. I am merely making the elementary point that the posture and related trial strategies of the two sides virtually guarantee that televising the proceedings will have a dramatically asymmetric effect on the abuse and harassment that witnesses and other trial participants anticipate and experience.
The possibility that Judge Walker might authorize that a witness’s face be blacked out on the streamed video does little to reduce the prospect of intimidation and harassment. For starters, some witnesses may simply refuse to testify if the trial is ordered televised. In addition, in a YouTube world, blacking out may operate to shine a spotlight on any witness who prefers not to testify on camera—and may trigger increased abuse.
There is no public interest in televising the trial that could remotely offset these fair-trial concerns. At yesterday’s hearing, Judge Walker contended that the case could provide an important “civics lesson.” Set aside the fact that Walker plainly isn’t interested in trying to provide a neutral civics lesson. The simple fact that Walker somehow has forgotten is that it’s not the role of the courts to set out to provide civics lessons. The role of the courts is to decide cases fairly and according to the law.
Moreover, our system of representative democracy has its (admittedly imperfect) way of providing civics lessons. They’re called election campaigns. They took place in California in 2000 and again in 2008 on the topic of marriage. And the losing side, having failed twice to convince a majority of Californians not to protect traditional marriage, is now intent on having an electorate of one judge override the democratic processes.
* Even if Walker’s order did not violate Local Rule 77-3, it would nonetheless be a gross abuse of discretion for the reasons discussed in this post, and should be vacated for those same reasons.