As an effort to overturn Proposition 8 makes its way to the U.S. District Court in San Francisco next month, a lingering question is whether the upcoming trial over same-sex marriage will be televised.
Such extensive coverage would be a first for a federal court in the Western states, as there has been a long tradition of prohibiting cameras or restricting them to oral arguments and the like.
A media coalition, including the major broadcast networks, Dow Jones & Co. and Hearst Corp., is asking U.S. District Court Judge Vaughn Walker for permission to broadcast and webcast the proceedings, which are scheduled to begin Jan. 11, with cabler In Session (TruTV's daytime format, formerly known as Court TV News) providing the gavel-to-gavel pool.
The plaintiffs who are seeking to overturn Proposition 8, a state constitutional ban on gay nuptials that passed in California in 2008, do not object to the idea, nor do their attorneys, Ted Olson and David Boies.
But defenders of the proposition do object, citing that the exposure will subject witnesses and litigants to the "potential for intimidation" and that perhaps the "right to a fair trial will be undermined."
In a letter sent to Walker on Monday, their attorney, Charles Cooper, referred to the aftermath of the 2008 election, a time marked by protest rallies, marches and, in some cases, boycotts of those who contributed to the Yes on 8 campaign, including one website that identified donors and their addresses with a Google map overlay.
Indeed, 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," Cooper wrote.
The case, officially called Perry vs. Schwarzenegger, was filed in May by Olson and Boies, after marriage equality supporters exhausted their efforts before the state Supreme Court. A group of entertainment industry activists, including Rob Reiner, Bruce Cohen and Dustin Lance Black, are backing the effort via the American Foundation for Equal Rights, led by political consultant Chad Griffin.
Although there are no procedures in place for televised trials in the circuit, there has been a recent movement afoot to test the waters in federal civil cases that do not have a jury -- just what the Prop. 8 case is. Earlier this month, the Judicial Council for the Ninth Circuit Court of Appeals issued an announcement that cameras would be allowed in such cases on an "experimental basis," citing the need to keep the public better educated about the judicial process. But such a move in the Prop. 8 case still has to be cleared with Walker.
Given the media interest, Walker already has made arrangements for an overflow courtroom with a closed-circuit feed, and will allow reporters to text and even tweet during the proceedings -- as long as it is not disruptive.
Attorney Thomas Burke, representing the media coalition, said that they anticipated there would be some opposition to the effort, but he noted that because the trial will be public, witnesses will be identified whether cameras are present or not.
Of Cooper's concerns over privacy, Burke said, "That is not an argument for a wholesale ban on coverage."
Burke added that their goal is to obtain "access in the broadest way" yet consistent with conditions placed on them by Walker.
Moreover, given the historic nature of the case, interest among the public in the details of the proceedings are significant, Burke suggested. "It is not about a crime or an individual," he said. "The issues in this case are political, social, religious. It has got it all."