In something of a repeat of the judicial system barring the videotaping and live broadcast of Joel Tenenbaum’s trial, the Supreme Court voted to bar video streaming of a controversial court case in California. The 5 – 4 ruling was supported mainly on procedural grounds — about how the courts couldn’t make such a “change” without giving more notice. It’s difficult to comprehend how that makes any sense. This is not a massive “change” in procedures or anything that affects how the judicial system works. It’s merely an attempt to provide more transparency to what goes on in the court rooms, which seems like an extremely laudable goal, no matter where you stand on the various cases where this issue has come up.
Of course, while officially the ruling was about procedural issues, the majority did also claim a fear that broadcasting the trial would put a chill on witnesses. This seems backwards. This is the public court system, and reporters are allowed to report on (most) cases, so anyone who testifies is going to be known to the public anyway and what they say will be reported on, too. How is that any different than if the video is recorded and broadcast in some manner? If there are special cases where video might create a real chilling effect, deal with those special cases, rather than pushing a blanket “no video rule.” As Justin Silverman wrote before the ruling came out, the idea that videos in the courtroom would lead to attacks on witnesses made no sense, since it was already illegal to attack witnesses and we have a legal system to deal with that:
What good is giving the press freedom if it is not allowed to use the tool of its trade? In this case, that tool is a video camera. Similarly, law enforcement has many tools of its trade, the most important being the law. In California, the law includes prohibiting the very acts Prop 8 supporters and–apparently–the Justices are so concerned about. Perhaps it’s too much to ask, but can we just let both journalists and police do their jobs?By staying the broadcast of this trial–and impliedly finding that Prop 8 supporters will suffer “irreparable harm” absent a stay–the Supreme Court seems to be advocating curtailment of the press as a means of law enforcement. In a sense, there’s a backwards Heckler’s Veto at play: the Court is protecting the right of witnesses to speak by limiting the ways in which they will be heard and preventing retaliation by those who will not have heard them. Instead, those witnesses should take the stand knowing they will be given the largest forum possible in which to speak and the strongest protection against those who may retaliate when they do so.
And that retaliation is a big may. Among their reasons for requesting a stay, the petitioners say that “public broadcast can intimidate witnesses who might refuse to testify or alter their stories when they do testify if they fear retribution by someone who may be watching the broadcast.” Further, “all of the petitioners’ witnesses have expressed concern over the potential public broadcast of trial proceedings and some have stated that they will refuse to testify if the district court goes forward with its plan.”
In a controversial case such as this one, no doubt the unpopular speaker is a nervous one. But I’m skeptical that witnesses already committed to testifying will suddenly shy away because of the prospect of video dissemination. Do they not realize that, without a single camera, the San Jose Mercury News is reporting live accounts that include the names of those taking the stand? That special interest groups will be Twittering their testimony as they speak? That there are already websites identifying Prop 8 supporters and where they live? Banning a broadcast, I believe, will not change this. But to allow a broadcast, I’m certain, will further enlighten the debate….
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