High court pulls plug on YouTube trial coverage

(01-11) 17:01 PST SAN FRANCISCO --

For now, the only way Californians can watch the trial over the constitutionality of the state's ban on same-sex marriage is to take a trip to the federal courthouse on Golden Gate Avenue in San Francisco.

Just an hour before the trial got under way Monday, the U.S. Supreme Court halted for at least two days the judge's plans to allow video of the proceedings to be uploaded on a delayed basis on YouTube.

The 8-1 decision also prevented live simulcasts from being broadcast at the federal appeals court building at Seventh and Mission streets and at courthouses in Seattle, Pasadena, Portland, Ore., and Brooklyn, N.Y.

The court said it wanted until at least Wednesday to consider arguments by backers of Proposition 8, the November 2008 ballot measure outlawing same-sex marriage, that camera coverage could result in threats or even violence against witnesses favoring the measure.

Judge awaits decision

Chief U.S. District Judge Vaughn Walker, who approved the camera coverage last week in what would be a first for a federal trial, said as the case got under way Monday that "we'll see what guidance the Supreme Court can provide us."

The judge had approved the coverage under a pilot program announced by the Ninth Circuit Judicial Council. Walker said the District Court in San Francisco had solicited public comments on the idea and had received more than 138,000 comments as of Friday, of which only 32 were opposed.

"The issue of the public's right to access to judicial proceedings is an important one," Walker said. "It's important that we in the federal judiciary work to achieve that access." '

At the request of the plaintiffs seeking to overturn Prop. 8, and over defense objections, he agreed to record Monday's proceedings on video so it can be shown if the high court ultimately allows it.

Lone dissent

The court did not provide any basis for the camera-coverage ban. The lone dissenter, Justice Stephen Breyer, suggested that Prop. 8 advocates had not shown that airing the trial would result in "irreparable harm" to their legal interests.

Prop. 8 backers fear that broadcasting the trial will jeopardize supporters' chance of "getting a fair and impartial hearing," said their attorney, Andy Pugno.

He said potential witnesses have been threatened, but declined to provide details.

Asked whether the public would be deprived of seeing the emotional impact of the case, Pugno said, "There are many examples on both sides of the issue" outside the courtroom.

"We think the issues in this case are mainly legal issues and not about an individual's feelings," Pugno said.

'Teachable moment'

Those challenging Prop. 8 argued that the public had the right to see the trial unfold.

Molly McKay, spokeswoman for Marriage Equality USA, said camera coverage could provide a "teachable moment" for people who don't know a lot of same-sex couples.

She said video conveys the emotional impact of the same-sex marriage ban on plaintiffs better than "some dry transcript. This is the way people communicate now - by watching videos on YouTube."

Thomas Burke, an attorney who argued on behalf of The Chronicle and other media to televise the trial, said Monday's ruling was "a loss to the understanding of how the court operates." But he added, "The Supreme Court thinks this is an important issue and it wants to have sufficient time to consider the matter."

UC Berkeley law Professor Jesse Choper, a constitutional scholar and high court expert, said the ruling was predictable given the high court's aversion over the years to televising proceedings.

Although a final decision will not be issued at least until Wednesday, "I wouldn't be optimistic," Choper said. "I would be quite surprised if they simply said, 'Go ahead.' "

Chronicle staff writer Bob Egelko contributed to this report. E-mail the writers at jvanderbeken@sfchronicle.com and jgarofoli@sfchronicle.com.

This article appeared on page A - 10 of the San Francisco Chronicle