Saturday, December 26, 2009

Olson/Boies Judge's Sunshine
Gift to Gays: 'Tweeting' Allowed

(Gay and lesbian plaintiffs, left to right: Jeff Zarrillo, Paul Katami, Kris Perry and Sandy Stier. Photo credit: Bill Wilson Photography.)

From the start, the federal lawsuit against Prop 8 filed by superstar lawyers Ted Olson and David Boies, has gone against conventional wisdom, Gay Inc pleas to not bring suits, and brought much fresh thinking about legally challenging gay marriage prohibitions.

The ground-breaking aspects of the case expanded even more on Christmas Eve, with a procedural decision issued from Judge Vaughn Walker. Back in August, after a pre-trial hearing, in which only paper and pens were allowed, I said the hearing was a throwback to the stone age. That assessment has been radically altered.

In his guidelines regarding rules for journalists covering the trial that begins on January 11, 2010, Walker advanced the cause of judicial transparency and brought the soon-to-start legal proceedings into the modern electronic age, at least as it pertains to laptops, texting and using Twitter. From the PDF booklet:

In the case of Perry v. Schwarzenegger, Chief Judge Walker has granted express permission for the following in Courtroom 7 and the overflow courtroom, unless otherwise ordered:

1. Use of a laptop.

2. Although generally prohibited, use of a Blackberry or other similar personal device for transmission of e-mail, including filing of reporter's stories, is permitted in Courtroom 7 and the overflow courtroom, unless otherwise ordered.

3. Wireless internet access is not otherwise available in the federal court, but silent use of a wireless card to transmit from the courtroom is permitted.

4. Unless a specific area is officially designated by U.S. Marshal's for photography inside the building (such as the Federal Bar Association Media Center on the first floor), cameras may not be used in the San Francisco federal building. Photography and interviews are permitted outside the building. No cabling is permitted in the federal building.

5. Cell phones, pagers and other devices may NOT be used except for text functions and must be turned off or set to vibrate mode in the courtroom. "Tweeting" is a permitted form of texting. [...]
(Emphasis added.)

Allowing all those forms of communication is indeed highly laudable, however, Walker stopped far short of bringing full transparency to the historic case unfolding in his courtroom, explained in rule No. 6:

Broadcasting of proceedings is prohibited by policy of the Judicial Conference of the United States. This includes tape recording devices of any kind. As an exception, the court has specifically permitted short circuit broadcasting to an adjoining courtroom to accommodate additional observers.

If an exception to the Judicial Conference can be made for the overflow of reporters and other court observers, it behooves corporate media giants with First Amendment lawyers on retainer to appeal to the court to simply share the short-circuit feed beyond the courtroom next to Walker's.

I'm feeling quite optimistic for the gay community regarding the legal outcome of the trial, and also for increased sunshine principles, which is why I'm climbing out on a limb today and predicting that before the Olson/Boies lawsuit is over in Walker's courtroom, we're going to see some of the proceedings air on TV and the web.

(Hat tip: Eve Batey, of


William B. Kelley said...

Here's what "A Journalist's Guide to the Federal Courts" says (published by the Administrative Office of the United States Courts):

"Trials and other courtroom proceedings are generally open to the public.
No federal trial court, however, permits broadcasting of its proceedings.
News organizations may intervene in high-profile cases to make a motion
to allow broadcasting the trial. No such motion ever has been granted.
The biggest stumbling block to broadcasting federal trials is Federal Rule
of Criminal Procedure 53, which says the court shall not permit the taking
of photographs in the courtroom during judicial proceedings or the
broadcasting of judicial proceedings from the courtroom. Members of
Congress on occasion have introduced bills that would give federal trial
judges the discretion to allow broadcasting trials. To date, none has been
There are two types of exceptions to this prohibition that are worth noting,
though neither provides video for public broadcast:
• In the trial of Timothy McVeigh, who was charged with
bombing the Oklahoma City Federal Building in 1995,
Congress passed a law that required the federal court
hearing the case in Denver to set up a closed-circuit
viewing location for relatives of the victims in Oklahoma
• In cases where a single courtroom will not hold all
spectators, some federal courts, at the presiding judge’s
discretion, have piped a closed-circuit video feed of the
proceedings into an adjacent room, which can double or
triple the number of spectators accommodated."

Rule 77-3 of the San Francisco federal district court's Civil Local Rules says:

"Photography and Public Broadcasting.
Unless allowed by a Judge or a Magistrate Judge with respect to his or her
own chambers or assigned courtroom for ceremonial purposes or for participation in
a pilot or other project authorized by the Judicial Council of the Ninth Circuit, the
taking of photographs, public broadcasting or televising, or recording for those
purposes in the courtroom or its environs, in connection with any judicial proceeding,
is prohibited. Electronic transmittal of courtroom proceedings and presentation of
evidence within the confines of the courthouse is permitted, if authorized by the
Judge or Magistrate Judge."

In fact, at least one federal district judge has held that Rule 53 prohibits tweeting from the courtroom. United States v. Shelnutt, No. 09-CV-14 (M.D. Ga. Nov. 2, 2009). Judge Walker apparently disagrees with that view (as have some other judges).

Interpreting the rules is one thing. Violating them is something else. Judge Walker may be able to interpret the rules to permit tweeting and BlackBerry use, but it's certainly doubtful that he could or would permit radio or TV broadcasting in the face of federal and local rules.

Anonymous said...

William: Perry v. Schwarzenegger is not a criminal but a civil case and hence it is not governed by the Federal Rules of Criminal Procedure. As to the other court rules, the Ninth Circuit has just changed them - if Chief Judge Kozinski of the Ninth Circuit and Chief Judge Walker so determine, the broadcast is entirely possible and within the federal rules.