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Protests against California's Proposition 8 have been followed by legal proceedings and battles for televised coverage from inside the courtrooms. (Credit, Timothy Vollmer, Flickr.com)

Whether courtrooms should allow the media to broadcast trial proceedings rests on balancing the rights of a free press and the right of every American to a public trial, with the need for courts to protect defendants from unfair trials or other harm.

With the U.S. Supreme Court’s recent ruling that a high-profile trial that contests the legality of California’s Proposition 8 cannot be televised, the issue has garnered some heated discussion.

This trial clearly concerns a matter strongly in the public interest–the constitutionality of denying the right of marriage to a group of Americans. It is the role of journalists to report on matters in the public interest–to “tell the story of the diversity and magnitude of the human experience” and “recognize a special obligation to ensure that the public’s business is conducted in the open,” according to the Society of Professional Journalists’ code of ethics–whether this trial is broadcast or not is a matter of media ethics as well as law.

Extreme cases illustrate the easy examples for deciding whether or not to record trials. A case featuring abused or endangered children, for example, should clearly require greater protective privacy for participants. Other cases may be of such interest and importance to the American populace that they merit recording. The ‘Scopes Monkey Trial’ was broadcast nationally on radio in 1925.

In the case of Proposition 8– Perry v. Schwarzenegger–arguments have been made on both sides. The objection to televising comes from the defense, who have argued that witnesses testifying against gay marriage have been harassed for their views and monetary contributions to anti-gay marriage causes. The Supreme Court ruled with them, saying broadcasting risked exposing witnesses against gay marriage to further harassment.

Similar sentiments have been echoed at the New York Times and National Review.

Ethically, it makes sense that trial broadcasting should be decided on a case by case basis, weighing the safety of witnesses and defendants against the public’s right to know and the media’s right to share. “The standard for closing a courtroom to the public is very high, and justifiably so,” writes David Lat at AboveTheLaw.com. “We the People should be allowed to know — and to hear, and to see — what is transpiring within our courts.”

Though the Supreme Court has disallowed broadcasting this trial, even to a limited number of other courthouses, at least partly on the grounds that it could be injurious to witnesses, others argue banning cameras to protect trial witnesses is senseless in this case, since those allegedly “harassed” have already made their positions on marriage equality very public. “The Prop. 8 witnesses are volunteers. During the campaign, they went on TV and toured the state, Breyer points out,” writes Emily Bazelon at Slate.com

Erin Geiger Smith at the Business Insider writes,

In the Prop 8 case, the arguments against the cameras have mainly been that those testifying in favor of the gay marriage ban could be subject to harassment. But these concerns are not so strong that any serious consideration was given to actually closing the courtroom or concealing the identify of the witnesses. Reporters were there yesterday, and all names of witnesses are in all the major papers.

In terms of the ethical responsibility of journalists to disseminate information to the public, a bigger audience is a better audience. Yet, for this case, the court seems to have ruled that the opposite is true. Of course, the Supreme Court itself has always been anti-video, disallowing broadcasts of its own proceedings. Yet, the American people seem to support broadcasting even Supreme Court trials.

Kashmir Hill and David Lat write in an October Washington Post story,

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More than 60 percent of Americans favor televised coverage of Supreme Court sessions. “Even if only one in a hundred of our fellow citizens were to watch, that would be 3 million of us who stand to be enlightened and enriched,” former ABC News correspondent Tim O’Brien told the Legal Times.

And since journalists do already report on the proceedings of many trials as a matter of public interest, and the public is allowed to attend the Proposition 8 trial, banning broadcasts seems more a matter of defining the degree to which trials are mediated, rather than deciding whether or not they should be shared at all. “The argument is, basically, one against the size of the audience,” Smith writes at the Business Insider.

Bazelon, writing at Slate, argues,

The court came down from on high and interrupted its own busy week to block people from watching the gay marriage trial in five courthouses in San Francisco, Seattle, Portland, Brooklyn, and Pasadena. Really? What would have been the harm in as many press and interested observers who could have crammed into those courthouses watching a feed, when there are already hundreds of them at the trial?

Lat writes at AboveTheLaw,

In this age of videoconferencing, YouTube, blogging, and Twitter, the distinction between physical and virtual attendance of court proceedings is becoming increasingly artificial. If we can read reporter Dan Levine’s real-time tweets about the Prop 8 trial, or if we can read blog posts published during breaks about what just transpired in open court, why shouldn’t we be able to watch the proceedings ourselves, in livestreaming video? Or, if we can’t watch real-time video, why can’t we watch video posted online after the fact?

If this is true, arguing against broadcasts to protect witnesses from harassment loses even more traction. After all, if witnesses’ views have been shared publicly on talk shows and in churches, and the Proposition 8 trial is open to any of the public who can make it to San Francisco and fit into the courtroom, how is a broadcast ban a protection against harassment? Views expressed during the trial will be witnessed by the public who will in this interconnected age, share them widely.

(For a live report of trial proceedings, check out the San Jose Mercury News)

In a letter (PDF) last week to the Judicial Conference, Judge Alex Kozinski (who originally approved the move to broadcast the Proposition 8 trial to other courthouses) writes, “Technology has changed the way trials are conducted and reported. … Like it or not, we are now well into the Twenty-First Century, and it is up to those of us who lead the federal judiciary to adopt policies that are consistent with the spirit of the times and the advantages afforded us by new technology.”

Barry Friedman, a constitutional litigator writing in the Los Angeles Times explains, “the high court, perversely, felt broadcasting should be banned precisely because ‘this case . . . involves issues subject to intense debate in our society.’ The majority stressed that studies had not shown ‘the effect of broadcasting in high-profile, divisive cases.'”

“What, imaginably, could that bad effect be?” he asks. “That the American people might have views on the subject and debate them?”

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Ethics of Courtroom TV : Should Proposition 8 Trials be Televised?

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