Hollingsworth v. Perry

Decision Date13 January 2010
Docket NumberNo. 09A648.,09A648.
Citation78 USLW 4044,175 L.Ed.2d 657,558 U.S. 183,130 S.Ct. 705
PartiesDennis HOLLINGSWORTH et al. v. Kristin M. PERRY et al.
CourtU.S. Supreme Court



We are asked to stay the broadcast of a federal trial. We resolve that question without expressing any view on whether such trials should be broadcast. We instead determine that the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves.

* * *

This lawsuit, still in a preliminary stage, involves an action challenging what the parties refer to as Proposition 8, a California ballot proposition adopted by the electorate. Proposition 8 amended the State Constitution by adding a new section providing that [o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const. Art. I, § 7.5. The plaintiffs contend that Proposition 8 violates the United States Constitution. A bench trial in the case began on Monday, January 11, 2010, in the United States District Court for the Northern District of California.

The District Court has issued an order permitting the trial to be broadcast live via streaming audio and video to a number of federal courthouses around the country. The order was issued pursuant to a purported amendment to a local Rule of the District Court. That Rule had previously forbidden the broadcasting of trials outside the courthouse in which a trial takes place. The District Court effected its amendment via several postings on the District Court's Web site in the days immediately before the trial in this case was to begin.

Applicants here are defendant-intervenors in the lawsuit. They object to the District Court's order, arguing that the District Court violated a federal statute by promulgating the amendment to its local Rule without sufficient opportunity for notice and comment and that the public broadcast would violate their due process rights to a fair and impartial trial. Applicants seek a stay of the order pending the filing of petitions for writs of certiorari and mandamus. We granted a temporary stay to consider the issue further. Post, p. ––––. Concluding that the applicants have made a sufficient showing of entitlement to relief, we now grant a stay.


Proposition 8 was passed by California voters in November 2008. It was a ballot proposition designed to overturn a ruling by the California Supreme Court that had given same-sex couples a right to marry. Proposition 8 was and is the subject of public debate throughout the State and, indeed, nationwide. Its advocates claim that they have been subject to harassment as a result of public disclosure of their support. See, e.g., Reply Brief for Appellant 28–29 in Citizens United v. Federal Election Comm'n, No. 08–205, now pending before this Court. For example, donors to groups supporting Proposition 8 “have received death threats and envelopes containing a powdery white substance.” Stone, Prop 8 Donor Web Site Shows Disclosure is a 2–Edged Sword, N.Y. Times, Feb. 8, 2009. Some advocates claim that they have received confrontational phone calls and e-mail messages from opponents of Proposition 8, ibid., and others have been forced to resign their jobs after it became public that they had donated to groups supporting the amendment, see Brief for Center for Competitive Politics as Amicus Curiae 13–14, in Citizens United v. Federal Election Comm'n, No. 08–205, now pending before this Court. Opponents of Proposition 8 also are alleged to have compiled “Internet blacklists” of pro-Proposition 8 businesses and urged others to boycott those businesses in retaliation for supporting the ballot measure. Carlton, Gay Activists Boycott Backers of Prop 8, Wall Street Journal, Dec. 27, 2008, A3. And numerous instances of vandalism and physical violence have been reported against those who have been identified as Proposition 8 supporters. See Exhs. B, I, and L to Defendant–Intervenors' Motion for Protective Order in Perry v.Schwarzenegger, No. 3:09–cv–02292 (ND Cal.) (hereinafter Defendant–Intervenors' Motion).

Respondents filed suit in the United States District Court for the Northern District of California, seeking to invalidate Proposition 8. They contend that the amendment to the State's Constitution violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution. The State of California declined to defend Proposition 8, and the defendant-intervenors (who are the applicants here) entered the suit to defend its constitutionality. A bench trial began on Monday, January 11, 2010, before the Chief Judge of the District Court, the Honorable Vaughn R. Walker.

On September 25, 2009, the District Court informed the parties at a hearing that there was interest in the possibility that the trial would be broadcast. Respondents indicated their support for the idea, while applicants opposed it. The court noted that [t]here are, of course, Judicial Conference positions on this,” but also that [t]his is all in flux.” Exh. 9, p. 72, App. to Pet. for Mandamus in No. 10–70063 (CA9) (hereinafter App. to Pet.).

One month later, Chief Judge Kozinski of the United States Court of Appeals for the Ninth Circuit appointed a three-judge committee to evaluate the possibility of adopting a Ninth Circuit Rule regarding the recording and transmission of district court proceedings. The committee (of which Chief Judge Walker was a member) recommended to the Ninth Circuit Judicial Council that district courts be permitted to experiment with broadcasting court proceedings on a trial basis. Chief Judge Walker later acknowledged that while the committee was considering the pilot program, this case was very much in mind at that time because it had come to prominence then and was thought to be an ideal candidate for consideration.” Id., Exh. 2, at 42. The committee did not publicly disclose its consideration of the proposal, nor did it solicit or receive public comments on the proposal.

On December 17, the Ninth Circuit Judicial Council issued a news release indicating that it had approved a pilot program for “the limited use of cameras in federal district courts within the circuit.” Id., Exh. 13, at 1. The release explained that the Council's decision “amend[ed] a 1996 Ninth Circuit policy” that had banned the photographing, as well as radio and television coverage, of court proceedings. Ibid. The release further indicated that cases would be selected for participation in the program “by the chief judge of the district court in consultation with the chief circuit judge.” Ibid. No further guidelines for participation in the pilot program have since been issued.

On December 21, a coalition of media companies requested permission from the District Court to televise the trial challenging Proposition 8. Two days later, the court indicated on its Web site that it had amended Civil Local Rule 77–3, which had previously banned the recording or broadcast of court proceedings. The revised version of Rule 77–3 created an exception to this general prohibition to allow “for participation in a pilot or other project authorized by the Judicial Council of the Ninth Circuit.” Id., Exh. 14. Applicants objected to the revision, arguing that any change to Ninth Circuit or local rules would require a sufficient notice and comment period.

On December 31, the District Court revised its Web site to remove the previous announcement about the change to Rule 77–3. A new announcement was posted indicating a “proposed revision of Civil Local Rule 77–3,” which had been “approved for public comment.” Id., Exh. 17. The proposed revision was the same as the previously announced amendment. Comments on the proposed revision were to be submitted by Friday, January 8, 2010.

On January 4, 2010, the District Court again revised its Web site. The announcement regarding the proposed revision of Rule 77–3 was removed and replaced with a third version of the announcement. This third version stated that the revised Rule was “effective December 22, 2009,” and that [t]he revised rule was adopted pursuant to the ‘immediate need’ provision of Title 28 Section 2071(e).” Id., Exh. 19, at 3.

On January 6, 2010, the District Court held a hearing regarding the recording and broadcasting of the upcoming trial. The court announced that an audio and video feed of trial proceedings would be streamed live to certain courthouses in other cities. It also announced that, pending approval of the Chief Judge of the Ninth Circuit, the trial would be recorded and then broadcast on the Internet. A court technician explained that the proceedings would be recorded by three cameras, and then the resulting broadcast would be uploaded for posting on the Internet, with a delay due to processing requirements.

On January 7, 2010, the District Court filed an order formally requesting that Chief Judge Kozinski approve “inclusion of the trial in the pilot project on the terms and conditions discussed at the January 6, 2010, hearing and subject to resolution of certain technical issues.” Id., Exh. 1, at 2. Applicants filed a petition for a writ of mandamus in the Court of Appeals, seeking to prohibit or stay the District Court from enforcing its order. The following day, a three-judge panel of the Court of Appeals denied the petition.

On January 8, 2010, Chief Judge Kozinski issued an order approving the District Court's decision to allow real-time streaming of the trial to certain federal courthouses listed in a simultaneously issued press release. Five locations had been selected: federal courthouses in San Francisco, Pasadena, Seattle, Portland, and Brooklyn. The press release also indicated that [a]dditional sites may be announced.”...

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    ...would reverse, and (ii) that the applicant would likely suffer irreparable harm absent the stay. Hollingsworth v. Perry, 558 U.S. 183, 190, 130 S. Ct. 705, 175 L. Ed. 2d 657 (2010) (per curiam). In deciding whether to grant a stay pending appeal or certiorari, the Court also considers the e......
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