Media Fighting Uphill Battle to Broadcast Same-Sex Marriage Case

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Members of the press are calling on Chief Justice John Roberts to grant additional media access — namely broadcast coverage — to the upcoming same-sex marriage arguments.

The U.S. Supreme Court is unlikely to reverse its stance on allowing cameras in the country’s most important courtroom. Just last month, Justice Antonin Scalia addressed the issue, stating, “I’m against televising court proceedings, but not because I wouldn’t come off well.” He added that the court “will not change willingly. I don’t think there’s anywhere near a majority on the court willing to have our proceedings televised.”

By the end of June, the Court is poised to decide, once and for all, whether states that ban or fail to recognize same-sex marriage are violating the Equal Rights Clause of the U.S. Constitution. It is arguably the most significant legal issue to come before the U.S. Supreme Court in decades.

As the Coalition for Court Transparency wrote in a letter to Chief Justice John Roberts Jr.:

The country, if not the whole world, is watching to see what will happen. And yet they cannot truly be watching, because live audio-visual coverage of Supreme Court proceedings is still barred. And while the cases affect millions of people’s everyday lives, only those present in the courtroom that day will get to see and hear the oral arguments as they happen.

The coalition includes the American Society of Newspaper Editors, the National Association of Broadcasters, the National Press Photographers Association and the Radio Television Digital News Association, as well as public interest groups Citizens for Responsibility and Ethics in Washington, the Alliance for Justice, Constitutional Accountability Center and openthegovernment.org.

Despite the calls for transparency, the U.S. Supreme Court has long operated outside of the view of the American public. Pursuant to Federal Rule 53: “Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” In 1972, the rule was expanded to include television cameras.

As a result, the only pictures that have been published of the Supreme Court in session have been surreptitiously taken by members of the audience. In 1937, Time Magazine famously published a photograph taken by a woman who hid a camera in her purse and took the picture through a small hole cut into it. More recently, a group protesting the Court’s Citizens United decision concealed cameras capture the disruption they caused in the courtroom.

In his recent annual report, Chief Justice Roberts acknowledged that “the courts will often choose to be late to the harvest of American ingenuity.” Despite the historical significance of the same-sex marriage cases, the justices are unlikely to budge on cameras in the courtroom anytime soon.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs. He has newly formed a super PAC that The Bergen Record reported about here.

Media Fighting Uphill Battle to Broadcast Same-Sex Marriage Case