U.S. District Judge Vaughn Walker in an order issued last week said he is considering allowing recording or webcasting of a Jan. 6 hearing on an experimental basis.
Walker gave lawyers on both sides of the Proposition 8 case until today to say whether they object to the limited recording of the Jan. 6 hearing.
Charles Cooper, a lawyer for the sponsors of the measure, told Walker in filings earlier this week that his clients oppose televising the trial.
Some witnesses have said "they will not be willing to testify at all if the trial is televised or webcast," Cooper wrote. Proposition 8 sponsors are concerned about possible intimidation or harassment of witnesses.
While it would be the first time a federal trial in California is televised, experts say it’s not uncommon.
Cameras have previously been allowed in some federal appeals court hearings as well as in California's state court system.
“The issue of whether to televise trials has been a long-standing problem in the federal and state courts since the 1940s,” said Rory Little, a professor at the University of California's Hastings Law School. “There are a handful of Supreme Court cases where convictions are reversed because of what’s called the mob scene of the media.’’
Little says some arguments could include why a judge would allow such a high-profile case to be used for a pilot program.
Ten media organizations have told the judge they would like to provide gavel-to-gavel broadcast and webcast coverage of the trial, with pool coverage handled by In Session, formerly known as Court TV.
Theodore Boutrous, a lawyer for the same-sex couples, told the judge that his clients "strongly support televising the trial in order to afford the public meaningful access in this exceptionally important case."
Walker wrote that a review of the video would "be helpful to the court in deciding whether to permit recording or broadcasting of the trial proceedings," which are due to begin Jan. 11.
In the trial, expected to last two to three weeks, Walker will rule without a jury on two same-sex couples' claim that the marriage ban violates their federal constitutional rights.
The measure was enacted by state voters in 2008 as Proposition 8.
Consideration of trial broadcasting was made possible when the Judicial Council of the 9th U.S. Circuit Court of Appeals announced Dec. 17 that it had approved a pilot program allowing some televising of civil non-jury trials in nine western states.
The purpose of the Wednesday hearing is to resolve last-minute evidence disputes before the trial.