_________________

_________________ 1 Cite as: 55 8 U

. S. ____ (2010)

Per Curia m 

## SUPREME CO URT O FTHE UNI TED STATES

No. 09A6 48

D E NN IS HO LLING SWO R TH ETAL

. v. KRIS TIN M. PERRY ET AL

. ON APPLICATION FOR STAY [Jan u a r y13, 2010]
P ER C UR IAM

. We are asked to stay the broadcast of a federa l trial. We resolve that question without e x pressing any view on whether such trials should be b r oadcast. We instead determine that the bro a dcast in th is case should be stayed because it appears th e courts below did no t follow th e appropriate procedures set forth in federal law befor e changing their rules to allow such broadcasting. Courts enforce the requirement of proce d ural regul a rity on ot h

ers, and must follow those requirements themselves.

* * * This lawsuit, still in a preliminary stage, involves an action challenging wha tthe partie s refer to as Proposition 8, a California ballot proposition a d opted 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 Propo

sition 8 viol ates the United States Constitution. A bench trial in the case began on Monday, January 11, 2010, in the United States Dist rict Court f o r the Nor t hern Distri ct of Californi a. The Distric tCour t ha s issued an order per m itting the trial to be broadcast live via streaming audio and video to a number of federal courthouses around the country. Th e2 HOLLINGSWORTH v. PERRY

Per Curia m order was i ssued pursuant to a purported a m endment to a local Rule of the Distri ct Cour t. T hat Rule had previousl y forbidden the broadcasting of trials outside the courthouse in which a t rial takes pl ace. The Di strict Courteffected its amendment via severa l postin gs on the District Cour t’s Web site in the days immediately before the trial in this case was to begin. Applicants here are defendant-intervenors in the law

suit. They object to the DistrictCourt’s or der, arguin g that the Di strict Court violated a f e deral statute by prom

ulgating th e amendment to its local Rule wi thout suffi

cient oppor t unity for notice and comment and thatt h e public broadcast would violate thei r due proce ss rights to a fair and impartial trial. Applicants seek a stay of the order pending the filin g of petitions for writs of certiorari and mandamus. We gr anted a temporary stay to conside r the issue fu rther. Post , p. ___. Co ncluding that the appli

cants have made a s u fficient showing of entitlement to relief, we n o w grant a stay. I Proposition 8 was pas s ed by Cal i fornia voters in No

vember 2008. It wa s a ballot proposition designed to overturn a ruling by the California Supreme Court that had given same-sex couples a righ t to marry

. Proposition 8 was and is the subject of public debate throughout th e State and, indeed, nationwide. Its advoca tes claim tha t they have b een subject to harassment as a result of publi c disclosure of their support. See, e.g., Reply Brief for Ap

pellant 28–29 in Citizens Uni t edv. Fed e ral E lec tio n 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 pow

dery white substance.” Stone, Prop 8 Do nor Web Site Shows Disclosure isa 2-Edged Sword, N. Y. Times, Feb. 8, 2009. So me advoca tes claim that they h ave received3 Cite as: 58 8 U

. S. ____ (2010)

Per Curia m confrontational phone calls ande-mail m e ssages from opponents of Proposition 8, ibid. , and others have been forced to resign their jobs afte r it became public that they had donated to groups supporting the ame n dment, see Brief for Ce nter for Co mpetitive Politics as Amicus Cu riae 13–14, in Citizens Unitedv. Fe de ral E lec t i on C o mm’ n , No. 08–205, now pending before this Court. Opponents of Proposition 8 also are alleged to have compiled “Internet blacklists” of pro-Pro p osition 8 businesses and urged others to boycott thos e businesses in retaliation for sup

porting the ballot measure. Carlto n, Gay Ac tivists Boycot t Backers of Prop 8, Wall Street Journal, Dec. 27, 2008, A3. And numerous instances of vandalism and physical vi o
lence have been reported agains t those wh o have been identified a s Propositio n 8 supporters. See Exhs. B, I, an d L to Defendant-Intervenors’ Moti on for Protective Order in Perryv. Schwarzenegger , No. 3:09–cv–02292 (ND Cal.) (hereinafter Defendant-Intervenors’ Motion). Respondents filedsuitin the United States District Court for t h e Northern District of California, seeking to invalidate Proposition 8. They contend that the amend

ment to the State’s Con s titution violates the E qual Protec

tion and Due Process Clauses of the Fourteenth Amend

ment of the United States Constitution. The State of California declined to defend Proposition 8, and the defen

dant-intervenors (who are the applicants here) entered the suit to defend its constitutio nality. A bench trial began on Monday, January 11, 2 010, before the Chief Judge of the District Court, the Ho norable Vaughn R. Walker. On September 25, 200 9, the Dist r i ct Cour t in formed the parties at ahearing th at there wa s interest in the possibil

ity that the trial would be broadcast. Respondents indi

cated their support for the idea, wh ile applicants opposed it. The court noted t hat “[t]here are, of course, Judicial Conference positions onthis,” but also that “[t]his is all in flux.” Exh. 9, p. 72, App. to Pet. for Mandamu s in No. 10–4 HOLLINGSWORTH v. PERRY

Per Curia m 70063 (CA9 ) (hereinafter App. to Pet.). One month later, Chief Judge Kozinski of th e United States Court of Appeals for the Ninth Circuit appointed a three-judge committee to evaluate the possibil i ty of adopt

ing a Nin t h Circuit Rule regar ding the r e cording a n d transmission of district court proce e dings. The committee (of which Chief Judge Walker was a me mber) reco m
mended to the Ninth Circuit Ju dicial Council that distri ct courts be permitted to experi ment with broadcasting court proceedings on atrial basis. Chief Judge Walk er later ack n owledged that while the committee was considering the pilot pr ogram, “thi s case was verymuchin mind a t that time b e cause it had come to p r ominence then and wa s thought to be an ideal candidate for consideration.” Id. , Exh. 2, at 42. The com m ittee did not publicly disclose its consideration of the p r oposal, nor did it solicit or receive public comments on the proposal. On Decem b er 17, the Ninth Circuit Judicial Council issued a news release indicating that it had approved a pilot progr a m for “the limited use of cameras in federal district cou rts within t h e circuit.” Id. , Exh. 13, at 1. The release explained that the Council’s decision “amend[ed] a 1996 Ninth Circuit po licy” that had banned the photo

graphing, a s well a s ra dio and television coverage, of court proceedings. Ibid. The release further indicated that cases would be selected for pa rticipation in the progra m “by the chief judge of the di strict court in consultation with the ch ief circuit j u dge.” Ibid. No further guidelines for particip a tion in the pilot program have since been issued. On Decem b er 21, a coalition of media companies re

quested permission fro mthe Di strict Court to televise the trial challenging P r oposition 8. Two days later, the co urt indicated on its Web s i te that it h a d amended Civil Local Rule 77–3, which had previously banned the recording or broadcast o f courtpro c eedings. The revised version o f5 Cite as: 58 8 U

. S. ____ (2010)

Per Curia m Rule 77–3 c r eated an exception to this general prohibition to allow “for participat i on ina pil o t or otherproject au

thorized by the Judicial Council of the Ninth Circuit.” Id. , Exh. 14. Applicants objected to the revision, arguing th a t any change to Ninth Circuit or local rules would require a sufficient notice and comment period. On Decemb er 31, the Distri ct Co urt revised its Web site to remove the previousannouncement about the change to Rule 77–3. A new ann ouncement was posted indicating a “proposed revision of Civil Local Rule 77–3 ,” which h a d been “appr oved for pu blic comment.” Id. , Exh. 17. Th e proposed revision was the same as the previously an

nounced amendment. Comments on the pro p osed revision were to be submitted by Friday, Ja nuary 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 versi o n of the announcement. This third versi o n stated thatthe revised Rule was “effective December 22, 2009,” and that “[t]he revised rule was adop ted pursuant to the ‘immediate ne ed’ provision of Title28 Section 2071(e).” Id. , Exh. 19, at 3. On January 6, 2010, the District Court held a hearing regardingt h e recording and b r oadcasting of t h e upcomin g trial. The court announced that a naudio and video feed of trial proceedings would be s treamed live to certain cou rt

houses in other cities. It also a nnounced that, pending approval of the Chief J u dge of theNinth Circuit, the trial would be re corded and then broadc ast on the Internet. A court techn i cian explained that th e proceedings would be recorded bythree cameras, and then the resulting broad

cast would be uploaded for postin g on the Int e rnet, with a delay due to processin grequirements. On January 7, 2010, the District Court filed an order formally requesting that Ch ief Judge Kozinski approve “inclusion of the trial in the pilot project on t h e terms and6 HOLLINGSWORTH v. PERRY

Per Curia m conditions discussed at the January 6, 2010, hearing and subject to r e solution of certain tec hnical 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 Co urt from enforcing it s order. The f o llowing day, a three-judge panel of the Court of Appeals denied the petition. On January 8, 2010, Chief Judge Kozinski issued an order appro ving the Di strict Cour t ’ 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 courtho u ses in San Francisco, Pasadena, Seattle, Po rtland, an d Brooklyn

. The press release als oindicated that “[a]dditional sit e s may be announced.” Federal Co urthouses to Offer Remote Viewing of Proposition 8Trial, online at http://www.ca9.uscourts.gov/d atastore/general/ 2010/01/08/ Prop8_Remote_Viewin g_Locations.pdf (as visited Jan. 13 , 2010, and available in th e Clerk of Court’s case file). Chief Judge Kozinski’s January 8 order noted that th e request to broadcast t h e trial on the Internet was “stil l pending” b e fore him. In a later letter to Chief Judge Walker, he explained that the request was not yet “ripe for approval” b e cause “the technical staff encountered some unexpecteddifficulties preparin g a satisf actory vid e o suitable foron-line pos t ing.” Letter of Jan. 9, 2010 (avail

able in Clerkof Court’s case file). A final decision whether to permit online public ation would be made when techni

cal difficulties were resolved. On January 9, 2010, applicants filed in this Court an application for a stay of the Distri ct Cour t’s order. Their petition seeks a stay pendin g resolution of forthcoming petitions for the writs of certiorari and mandamus.
II The questio n whether courtroom proceedings should be7 Cite as: 58 8 U

. S. ____ (2010)

Per Curia m broadcast has prompted considerable national debate. Reasonable minds diff er on the p r oper resolution of th a t debate and on the restrictions, circumstance s , and proce

dures under which such broadcasts should occur. We do not here express any views on the propriety o f broadcast

ing court pr oceedings generally. Instead, our review is confined to a narrow legal issue: whether th e District C o urt’s amendment of its local rules to broadcas t this trial complied with federal law. We conclude that it likely did not an d that applicants have demonstrated that irreparable harm would likely result from the District Cour t’s ac tions. We therefore stay th e court’s Jan uary 7, 201 0, order to the extent that it permi t s the live streaming of court proceedings to other federal courthouses. We do not addres s other aspects of th at order, such as those related to the broadcast of court pro

ceedings on the Internet, as this may be premature. A To obtain a stay pendi n g the filing and disposition of a petition for a writ of certiorari, an applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritoriou s to grant ce rtiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; an d (3) a lik elihood that irreparable harm will result from the denial of a stay. I n close cases the Circuit Justice or the Court will balance the equitiesand weigh the relative harms to the applicant and to the respondent. Lucasv. Towns e n d , 486 U. S. 1301, 1304 (1988) (K E NNEDY , J., in chambers); Rostker v. Goldberg , 448 U. S. 1306, 1308(1980) (Brennan, J., in chambers). To obtain a stay pending the filin gand dispo

sition of a petition for a writ of mandamus, an applicant must show a fair prospect that a majority of the Court will vote to gra n t mandamus and a likelihood that irreparable harm will result from the denial of a stay. Before a writ of8 HOLLINGSWORTH v. PERRY

Per Curia m mandamus may issue, a party mu st establishthat (1) “no other adequate means [exist] to attain the relief he d e
sires,” (2) the party’s “right to issuance of th e writ is ‘clear and indisputable,’ ” and (3) “the writ is appropriate unde r the circums tances.” Ch eneyv. Unit e dSt atesD i st . C o ur t for D. C. , 5 42 U. S. 36 7, 380–381 (2004) (some internal quotation marks omitted). ThisCourt will issue the w ri t of mandamus directly to a fe deral districtcourt “onl y where a question of public importance is involved, or where the q u estion is of such a na t u re that i ti s peculiarly appropriate that such action by this court should be taken.” Exparte United S t ates , 287 U. S. 2 41, 248–249 (1932). These familiar standards a r e followed here, where applicants claim that the District Court’s ord e r was based on a local ru le adopted in violationof federal l a w. B Given the i m portance of the is su es at stak e, and our conclusion that the DistrictCourt likely violated a federal statute in revising its local rules, applicants have shown a fair prospect that a majority of this Court will either grant a petition f o r a writ o f certiorariand rever s e the order below or will grant a pe tition for a writ of mandamus. A distric t court has discreti on to adopt l o cal rules. Frazierv. Heeb e , 482 U. S. 641, 645 (1987) (citing 28 U. S. C. §2071; Fed. Rule Civ. Proc. 83). Thos e rules hav e “the force of law.” Weilv. Neary , 278 U. S. 160, 1 6 9 (1929). Federal law, however, requires a dis trict court to follow certain procedur es to adopt or amend a local rule. Local rules typically may not be amendedunless th e district cou rt “giv [es] appropriate public notice and an opportunity for comment.” 28 U. S. C. §2071(b); see als o Fed. Rule Civ. Proc. 83(a). A li mited exception permits dispensing with this noti ce-and-comment requirement only where “there isan imme diate needfor a rul e .” §2071(e). Even where a rule is a m ended based on imm e
-9 Cite as: 58 8 U

. S. ____ (2010)

Per Curia m diate need, however, the issuingcourt must “promptl y thereafter afford .

. . notice and opportunity fo r comment.” Ibid. Before late December, the court’s Local Rule 77–3 ex

plicitly banned the broadcast of court proceedi n gs: “Unless allowed by a Judge or a Magistrate Judge with respec t to his or her own ch ambers or assigned courtroom for ceremonial purposes, the takingof pho

tographs, public broadcasting or televising, or re

cording for those purposes in the c o urtroom or its en

virons, in connection with any ju dicial proceeding, is prohibited. Electronic transmittal of courtroom pro

ceedings and presentation of evide n ce within the con

fines of the courthouse is permitt e d, if authorized b y the Judge or Magistra t eJudge. The term ‘environs,’ as used in this rule, m e ans all floors on which cham

bers, courtrooms or on which Offices of the Cl erkare located, with the exce ption of any space specifically designated as a Press Room. Nothing in thi s rule is intended to restrict th e use of electronic means to re

ceive or present evidence during Court proceedings.” Notably, th e Rule excepted from its general ban the tran s
mittal of certain proceedings—but it limited that exception to transmissions “within the confines of the courthouse.” The negativ einference of this exception, of course, is that the Rule would have prohibited the streaming of trans

missions, or other b r oadcasting o rtelevising, beyond “the confines of th e courthouse.” Respondents do n o t dis p ute that this version of Rule 77

– 3 would have prohibited streaming video of the trial around the country. But they a ssert that this is not the operative version of Rule 77–3. In a seriesof postings on its Web site, the Dist rict Court purportedt orevise or propose revisions to L o cal Rule 7 7–3. This amendment would have created an additional exception to Rule 77–3’s10 HOLLINGSWORTH v. PERRY

Per Curia m general ban on the broadcasting of court proceedings “for participatio nin a pilotor ot her p r oject authorized by the Judicial Council of the Ninth Circuit.” Exh. 14, App. to Pet. Respondents rely on this amended version of the Rule. The amended version of Rule 77–3 appears to be invalid. In amending this rule, it appears that the District Cour t failed to “giv[e] appropriate public notice and an opportu

nity for co mment,” as required by federal law. 28 U. S. C. §2071(b). The first tim ethe Distri ct Court as ked for pub

lic comments was on the afternoon of New Year’s Eve. The court stated that i twould leave the comment period open until January 8. At most, the District Court there

fore allowed a comment period spanning five busines s days. There is substantial merit to the argu ment that this was not “appropriate” notice and an opportunity for com

ment. Ad ministrativ eagencies, for instan ce, “usually” provide a comment period of “thirty days or more.” River

bend Farm s, Inc. v. Mad i gan , 958 F. 2d 147 9, 1484 (CA9 1992); see Petryv. Block , 737 F. 2d 1193, 1 201 (CADC 1984) (“[T]he shortest period in which parti e s can mean
ingfully review a proposed rule and file informed re

sponses is th irty da ys”). To be sure, the possibility t hat some aspects of the trial might be broadcast was first raised to the parties by the DistrictCo urt atan i n -court hea ring on September 25 , some three months b e fore the Ru le was changed. The broadcasting, however, was prohibited under both Circuit and local r u les at that time. Th e first public indication that the District Courtintended t oadopt a ru le of gener a l applicability came in it s Web site posting on December 23. And even if Chief Judge Walk er’s in-court allusion to the possibility that the Proposition 8trial might be broadcast could be considered as providing notice to the parties in this case—his statement that “[t] his is all in flux” notwit h

standing—t h e disclosur efalls far short of the “approp riat eCite as: 58 8 U

. S. ____ (2010) 11

Per Curia m public notice and an opportuni tyfor comment” required b y §2071(b). Indeed, there was no p r oposed policy on which to comment. The need for a meaningful comment period was particu

larly acute in this case. Bothcourts and legislatures have proceeded with appropriate c aution in addressing this question. In 1996, the Judicial Conference of the Unite d States ado p ted a policy opposing the public broadcast of court p r oce e dings. Th is policy wa s adopted a f ter a multi

year study of the issue by the Federal Judicial Center which d r ew on data f r om six dist rict andt w o appellate courts, as well as state-court dat a

. In light of the study’s findings, the Judicial Conference concluded that “th e intimidating effect of cameras on some w i tnesses and jurors [is] cause for concern.” Rep o rt of the Proceedings of the Judicial Conference of the United States 47 (Sept. 20, 1994). In more th an a decade since its adoption the Judicial Conference has continued to adhere to its position on the broadcast of court pro c eedings. While the policy conclu

sions of the Judicial Co nference may not be binding on the lower courts, they are “at the ve ry least entitled to respect

ful consideration.” In reSony BM G Musi c En ter t ainmen t , 564 F. 3d 1, 6 (CA1 2009). Bef o re abandoning its own policy—one consistentwith the Judicial Conference’s longstanding views

—itwas incu mbent on the Distric t Court to adopt a proposed rule only after notice and an adequate period for public comment. In dispensing with pu blic notice and comment the Dis

trict Courtinvoked th e “immediate need” exception. 28 U. S. C. §2071(e). It did so through a Web sit eposting on January 4—prior to the expiration of the comment pe

riod—indicating that Rule 77–3 had been r e vised to p e r
mit partici pation in th e Ninth Circuit’s pi lot program. These postings gave n oexplanation for invoking the ex

ception. At trial the Dis trict Court explained that th e12 HOLLINGSWORTH v. PERRY

Per Curia m immediate need here was to allow this case to be broad

cast pursu ant to the Ninth Circ uit’s new pilot program. See Exh. 1, p. 11, Supp. App. to Res p onse for Perry et al. This does n o t qualify a s an imm e diate need that justi

fies dispens i ng with the notice an d comment procedures required by federal law. While res p ondents (the plaintiff s in the Dist rict Cou rt) had indicat e d their ap proval of th e plan, no party alleged that it woul d be immin e ntly harm e d if the trial were not broadcast. Had an administrative agency acte d as the District Cour t did here, the immediat e need exception would likely no t have been available. See 5 U. S. C. §553(b)(B) (adminis trative age n cies cannot invoke an exception to affo rd ing notice-and-commen t before rulemaking unl ess the notice-and-comment proce

dures would be “impra cticable, unnecessary, or contrary to the public interest”). In issuing its order the Distr i c t Court relied on the Ninth Circuit Judicial Council’s pil o t program. Yet nothing in that p r ogram—which was not adopted after notice and comment proced ures, cf. 28 U. S. C. §3 32(d)(1)—re quired any “immediate” revision in local rules. The Ninth Circuit Judicial Council did not purport to modify or abrogate the District Court’s loca l Rule. Nor could it, as the Judicial Council only has the power to modify or abrogate lo cal rules that conflict with federal law. See §332(d)(4) (per mitting a circuit cour t council to modify a local rule tha tis “found inconsistent” with rules promulgated by the S u preme Court). No fe d

eral law req u ires that t h e District Court broa dcast some of its cases. The District Court’s loca l Rule, in addition, was not a conforming am endment to Ninth Circuit policy, because that policy d oes not require district cour ts t o broadcast proceedings. Applicants also have s h own that irreparable harm will lik ely result from the denial of th e stay. Without a stay, the District Court will broadcast the trial. It would be difficult—if not impossible—to reverse the harm from13 Cite as: 58 8 U

. S. ____ (2010)

Per Curia m those broadcasts. The trial will involve various witnesses, including members of same-sex couples; academics, who apparently will discuss gender issues and gender equali t y, as well as family struc t ures; and t h ose who participated in the campaign leading to the ad option of P r oposition 8. This Court has recognized t hat wi tness testimony may be chilled if br oadcast. See Este sv. Texas , 381 U. S. 532, 547 (1965); id. , at 591 (Harlan, J., conc urring). So me of appli

cants’ witnesses have already said that they will not tes

tify if the trial is broadcas t, and they have s ubstantiated their concerns by citing incidents of past harassment. See, e.g., Exh. K to Defen d ant-Intervenors’ Motion (71 news articles detailing incidents of harassment rela ted to people who suppo rted Proposition 8). These concerns are not diminished by the fact that some of applicants’ witnesses are compensated expert witnesses. There are qualitative differences between making public appearances regardin g an issue an d having one’s testimony broadcast throughout the country

. Applican ts may notbe able to obtain ade

quate relief through an appeal. The trial will have already been broadcast. It is difficult to demonstrate or analyze whether a witness would have testified differently if hisor her testimony had not been broa dcast. And witnesses subject to harassment as a resu l tof broadcast of thei r testimony might be le ss lik ely tocooperate i nany future proceedings. The balance of equ i ties favors applicants. While appli

cants have demonstrated the threat of harm they face i f the trial is broadcast, respondents have not alleged any harm if the trial is no t broadcast. The issu e, moreover , must be res o lved at this stage, for the injury likely cannot be undone once the broadcast ta kes place. This Court also hasa s i gnificant interest in s u pervising the administration of the judicial system. See this Court’s Rule 10(a) (the Court will consider whether the courts below have “so far departed from the accepte dand usual14 HOLLINGSWORTH v. PERRY

Per Curia m course of ju dicial proceedings .

. . as to call for an exercise of this Court’s supervis ory power”). The Court may use it s supervisoryauthority to invalidat e local rules that were promulgated in violation of an Act of Congre ss. See Fra

zier , 482 U. S., at 645 –646; id., at 652, 654 (Rehnquist, C. J., dissenting). Th e Court’s i n terest in ensuring com

pliance with proper rules of judicial administration is particularlyacute whe nthose rules relate to the integri t y of judicial processes. The Di strict Court here attempted t o revise its ru les inhas te, con traryto federal statutes and the policy o f the Judicial Conference of the United States. It did so to allow broadcastingof this high-profile trial without any considered standards or guidelines in place. The arguments in favor of developing procedures and rules to allow broadcast of certain cases have considerable merit, and reasonable minds can surely differ over the general and specific terms of rules and standards adopted for that pu rpose. Her e , however, the order in question complied neither with existingrules or policies nor the required procedures fo r amending them. By insisting that cour ts comply with the law, parties vindicate not only the rights they assert but also the law’s own insistence on neutrality and fidelity to principle. Those systematic interests are allthe more evident here, where the l a ck of aregu lar rule with proper s t andards to determine the guidelines for broadcasting c o uld compro

mise the or derly, decorous, ra tional traditions that courts rely upon t oensure the integrity of their own judgment s. These consi d erations, too, are part of the reasons leading to the decision to grant extraordina ry relief. In addressing a discrete instance authorizing a closed

circuit broadcast of a trial, Congress has illustrated the need for careful guidelines and standards. The trial of the two defendants in the Oklahoma City bombing case ha d been transferred to th e United S t ates Distri ct Cour t for the Districtof Colorado, so it was set to take place in15 Cite as: 58 8 U

. S. ____ (2010)

Per Curia m Denver. That meant the familiesof deceased and surviv

ing victims in and arou nd Oklahoma City wo uld not have the opportu nity to observe the tri al. Congress passed a statute that allowed victims’ families to watch the trial on closed-circuit television

. 42 U. S. C. §10608. The statut e was drawn with care to provide precise and detailed gui d

ance with respect to the wide range of issue s i m plicated by the broadcast. See §10 608(a) (the statute only applies “in cases where the venue of the trial is changed” to a cit y that is “out of the State” and “more than 350 milesfrom the locatio nin whichthose proc eedings ori ginally would have taken place”); §§1 0608(a)–(b) (standards for who can view such t rials); §10608(c) (restri ctions on tr ansmission). And the statute gave the Judicial Conference of the United States rule making au thority “to effectuate the policy addressed by this section.” §10608( g). In the p r esent case, by contras t , over a spa nof three weeks the DistrictCo urt and Ninth Circuit Judicial Council issued, retracted, an d reissued a series of Web site p o stings and news releases

. These purport to amend rules and policies at the heart of an ongoing consideration of broa dcasting fe deral trials. And they have done so to make sure that one particul a r trial may b ebroadcast. Congress’ requirement of a noti ce and comment procedure preven ts just su ch arbitra r y changes of court rules. Instead, courts must use the pro

cedures pr escribed by statute to amend their rules, 28 U. S. C. §2071. If Local Ru le 77–3 had been validly revised, questions would still remain about the District Court’s decision to allow broadcasting of t h is particular trial, in which sever a l of the witnesses have stated conc erns for their own secu

rity. E v en districts th at allow tri als to be broadcast, see Civ. Rule 1.8 (SDNY 2 009); Civ. Rule 1.8 (EDNY 2009), recognize that a district judge ’ s discretion to broadcast a trial is limited, see, e.g., Hamiltonv. Accu-Tek , 942 F. Supp. 1 36, 138 (EDNY 199 6) (broadcast forbidden16 HOLLINGSWORTH v. PERRY

Per Curia m unless “there is no interference with the due process, the dignity of litigants, ju rors and witnesses, orwithothe r appropriate aspects o f the adm i nistration of justice ” ). Consequently, courts in thos e districts have allowed the broadcast of their proceedings on the basis that those cases were not high profile, E*Trad e Financial Corp. v. Deutsch e Ba nk AG , 582 F. Supp. 2d 528, 535 (SDNY 2008), or did not involve witnesses, Marisol A. v. Giuliani , 929 F. Supp. 660, 661 (SDNY 1996); Katzmanv. Victoria’s Secret Ca ta logue , 923 F. Supp. 58 0, 586–587 (SDNY 1996). Indeed, one District Court did not allow the broadcasting of its proce e dings because the case “involv[ed] very sensi

tive issues. ” Schoepsv. Museu m of Mode rn Art , 59 9 F. Supp. 2d 532, 534 ( S DNY 2009). This c a se, too, in

volves issue s subject to intense debate in our society. The DistrictCo urt intends not only to broadcast t h e attorney s’ arguments but also wi tness testimony. See Sony BM G , 564 F. 3d, at 11 (Lipez, J., concurring) (distinguishing broadcast of attorneys’ arguments from otherparts of the trial). This case is th erefore no t a good o n e for a pi lot program. Even the studies that have been con d ucted thus far have no t analyzed the effect o f broadcasti ng in high

profile, divisive cases. See Application for Stay 17 (warn

ing by Ju dg e Edwa rd R

. Beckerth at in “ ‘trul yhigh-profile cases,’ ” one can “ ‘[j]us t imagine what the findings would be’ ” (quoting Exh. 21, a t2, App. to Pet.)).
III The District Court a t tempted to change its rules at the eleventh hour to trea tthis case differently than othe r trials in th e district. Not only di d it ignore the federa l statute that establishes the pr ocedures by which its rules may be am ended, its e x press purpose was tobroadcast a high-profile trial tha twould inc l ude witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts mu st do so as17 Cite as: 58 8 U

. S. ____ (2010)

Per Curia m well. The Court gran ts the application for astay of the District Co urt’s order of January 7, 2010, pending the timely filin g and disposition of a petition for a wri t of certiorari or the filing and disposition of a petition for a writ of man d amus. It is so orde red._________________

_________________ 1 Cite as: 55 8 U

. S. ____ (2010)

B REYER , J., diss enting 

## SUPREME CO URT O FTHE UNI TED STATES

No. 09A6 48

D E NN IS HO LLING SWO R TH ET AL

. v. KRIS TIN M. PERRY ET AL

. ON APPLICATION FOR STAY [Jan u a r y13, 2010]
J USTICE B RE YE R , with whom J UST I CE S TE VEN S , J U S TI CE G INSBURGand J USTIC E S OTOMAYORjoin, dissenting. The Court today issues an order that will prevent the transmission of proceedings in a no njury civil case of great public interest to five other federal courthouses located in Seattle, Pas a dena, Portland, San Francisco, an d Brooklyn. The Court agrees that it can issue this extrao r dinary legal relief only if (1) there is a fair ch ance the Di strict Court was wrong about the underlying legal question, (2) that legal question meets this Court’s certiorari s t andards, (3) refusal of th e relief would work “ir r eparable harm,” (4) th e balance of the equities (includin g , the Court should say, possible ha rm to the public interest) favors issuance, (5) the part y’s right to the relief is “cl ear and un disputable,” and (6) the “question isof public importance” (or otherwi s e “peculiarly appropriate ” for such a ction). See ante , at 6–7 ; Rostker v. Goldberg , 4 48 U. S., 1306, 1308 (1980) (Bren

nan, J., in chambers) (stay standard); Chen e yv. United Sta t esDi st. Court for D. C., 542 U. S. 367, 380 (2004) (noting tha tmandam us is a “drastic and extraordinary remedy res e rved for re ally extraor dinary caus es” (internal quotation mark s omitted)). This case, in my view, does not satisfy a single one of these standards, let alone all of them. Consequently, I must dissent. First , consider the meri ts of thele gal issue: The United States Code , in a chapter entitled “Rules of Courts,” state s2 HOLLINGSWORTH v. PERRY

B REYER , J., diss enting that “[a]ny rule . . . sh all be prescribed only after giving appropriate public notice and an opportunity for com

ment.” 28 U. S. C. §20 71(b). The question here is whether the Distric tCourt a c companied the modification of its antivideo rule with “ a ppropriate public notice and a n opportunityfor comment.” Certainly the parties themselveshad more than ade

quate notice and opportunity to comment bef o re the Rule was changed. On September 25, 2009, the trial judge , Chief Judge Vaughn Walker, discussed the possibility of broadcasting trial proc eedings bothwithin the courthouse and beyond, and aske d for the parties’ views. No part y objected to the presence of cameras in the courtroom fo r transmissions within the courthouse, Exh. 9, p. 70, App. to Pet. for Mandamus in No. 10–70063 (CA9) (hereinafter App. to Pet. ). (“No objection. None at all”), an d both sides made written submiss i ons tothe court reg a rding their views on other transmissions. The court again raised the issue at a h e aring on December 16. Nor, in practice, did other membersof the Judi c iary la ck informationabout the issue. InMay 1996 the Circui t Council adopted a policy permitting video in connection with appellate proceedings, but prohibiting its use in th e district cou rt. Subsequently , appellate court panels have frequently permitted electro nic coverage. Judges, the press, lawyers, and others have di scussed th e matter. In 2007 the la wyers and judges present at the Ninth Circuit Judicial Conference considered a resolution that favored the use of c a meras in district cou rt civil nonjury proceed

ings. And, voting separately, both lawyers and judges “approvedt h e resolution by resou n ding mar gins.” Lette r from Chief Judge Kozinski to Judge Anthony Scirica (Ja n

. 10, 2010), Exh. 8, p. 4 , Supp. App. to Response for Perry et al. (herei nafter Supp. App. to Response). Subsequently, a committee of judges was c r eat e d to studythe matte r. And on December 17, 2009, the Circuit Cou n cil voted to3 Cite as: 55 8 U

. S. ____ (2010)

B REYER , J., diss enting authorize a pilot program perm itting the use of video in nonjury civil cases as part of an “experiment with the dissemination of video recordings i ncivil nonj ury ma tters ” (specifically those selec t ed by the Chief Judge of the Cir

cuit and th e Chief Judge of the District Court). And it issued a press relea s e. News Release, NinthCircuit Ju di

cial Council Approves Experime ntal Use of Cameras in District Courts (Dec. 1 7 , 2009), Exh, 13. App. to Pet. In this context the Uni t ed Sta t es DistrictCo urt for th e Northern District of C a lifornia amended its local rules on December 22, 2009 t obring them into conf ormity with Ninth Circu it policy. In particular , the court amended the local Rule f o rbidding the public b r oadcasting or televis i ng of court proceedings by creating an exception “for partici

pation in a pilot or other proj ect authorized b ythe Judi c ial Council of the Ninth Circuit.” Public Notice Concerning Revisions of Civil Local Rule 77–3, id., Exh. 1 4

. The court initially rel i ed on a provision in the United States Code that permit s District Courts to prescribe r u les “without public notice and opportunity for comment” “ [i]f the pre

scribing court determin es that there is an immediate need for a rule,” and if the court “prom p tly thereaf t er afford[s ] such notice and opportunity for comment,” 28 U. S. C. § 2071(e). See Exh. 1, at 11, Su pp. App. to Res p onse. Then, on December 31, the court revised its public notice to ask for comments directly. By January 8, 2010, the court had received 13 8,574 comments, all but 32 of which fa vored transmittin gthe proceedings. Id., at 12. Viewed in light of this history, the court satisfied the statute’s insistence that “notic e” be “appropr iate.” Cf. 28 U. S. C. §§2071(b), (e). The parties, the judges, and the interested public were awar e of the proposals to change Ninth Circ uit policy that culminated in the “pilot pro

gram” well before the change in the local rules that en

abled participation in the project. The Ninth Circuit issued a press releas e in mid-December explaining its new4 HOLLINGSWORTH v. PERRY

B REYER , J., diss enting “pilot progr a m.” Then , once the DistrictCo urt amende d its local rule, it issuedits own notice nearly three weeks before the t r ansmissions that the rule change authorized were to begin. And the rulech ange itself is simply a change tha tconforms local rule to Circuit policy—a con

formity that the law may well require. (The Judicial Council had long before voted to make its video policy “binding on all courts within the Ninth Cir c u it,” Letter from Chief Judge Hu g to All Nin t h Circuit Judges (Ju n e 21, 1996) ( available in Clerk of Court’s cas efile); it a n
nounced its new “pilot program” policy in December 2009 , App. to Application, Exh. 13, App. to Pet.; and federal statutes render district court ru les void insofar as they have been “modified or abrogate d” by the Council, see §2071(c)(1). Compare ante , at 11 (“Council only has th e power to modify or abrogate lo cal rules that conflict with federal law”), with28 U. S. C. §33 2 (d)(1) (“[ C ] o uncil shall make all necessary andappropriat e orders for the effective and expeditious administration of justice within its cir

cuit”).) The applicants point to no interested person un

aware of the change. How canthe Majority reasonab ly demand yetmore notice in resp ect to a local rule modific a
tion that a statute likely requires regardless? There was also suffic i ent “opportunity for comment.” The parties, the intervenors, othe r judges, the public—all had an opp o rtunity to comment. The parties were specif i

cally invited by Chief Judge Walker to comment on the possibility of broadcast as early as September. And the entire public was invited by the District Co urt to submit comments after the ru le change was announced, righ t up to the eve of trial. As I said, th e court received 138,5 7 4 comments during that t i me. How much more “opportunit y for comment” does th e Court bel i eve necessary, pa rtic u
larly when the statutes themselv es authorize the local court to puta new rule intoeffect “without” r e ceiving any “comments” before doing so when that local “ c ourt deter

-5 Cite as: 55 8 U

. S. ____ (2010)

B REYER , J., diss enting mines that there is animmediate need” t od os o( a n dt o receive comments later)? And more importantly, what is the legal source of the Court’s demand for additional comment time in respect to a rule change to conform to Judicial Council policy? Second , thi s legal ques t ion is not the kind of legal ques

tion that this Court would normally grant certiorari to consider. There is noconflict among the state or federal courts rega rding the p r ocedures by which a district cou r t changes its local rules

. Cf. this Court’s Rul e s 10(a)–(b)

. The technical validity of theprocedures foll owed below does not implicate an open “important question of federal law.” Cf. R u le 10(c). Nor do the procedures below clearly conflict wit hany prece d ent from t h is Court. Cf. ibid. It is particularly inadvisabl e for this Court to consider this kind of question because it involves loc a l rules an d local judicial administration. Here, for example, the Court decides just how a district cour tshould modify its own local rules; in aword, this Court micromanages district court administrative procedures in the most detailed way. And, wi thout briefing, the Courtimposes limitations on the Judicial Councils’ ability to implementpolicy deci

sions, ante, at 11–12 (suggesting Council policy does not abrogate local rules), with consequences we cannot pre

dict. The Distric tC o uncils, the Circuit Councils, the Judicial Co nference of the Unite dStates, and the Chief Justice bear responsibility for judicial administration, no t this Court. See 28 U. S. C. §§331–332. And those bodies have adequate authority to resolve disagreements abou t how to promulgate and apply lo cal rules, and, particularl y, about the use of camer a s in the courtroom. For the past 80 years, local judicial administ ration has been left tothe exclusive province of the Circuit Judicial Councils, and this Court lacks their institutional experi

ence. See generally P. Fish, The Politics of Federal Judi

cial Administration 152–153 (1973) (From their creation,6 HOLLINGSWORTH v. PERRY

B REYER , J., diss enting “[t]he councils constituted . . . a mechanism through which there could be a concentration of responsibility in the various Circuits—immediate responsibility for the work of the courts, with power and authority . . . to insure compe

tence in th[ e ir] work . . .”). For th at reason it is inappro

priate as well asunnec e ssary fo r this Court to intervene in the procedural aspects of local judicial administration. Perhaps th at is wh y I have not been able to find any othe r case in which this Court has previously done so, through emergency relief or oth e rwise. Cf. Bank of Nova Scotiav. United S t ates , 487 U. S. 250, 264(1988) (S CALIA , J., con

curring) (“I do not see the basis forany direct authority to supervise lower courts ” (citing Fraz ie rv. Heebe , 482 U. S. 641, 651–652 (1987) (Rehnquist, C. J., dissenting))). Nor am I aware of any instance in which this Cou rt has pre

emptively sought to microm anage district co urt proceed

ings as it does today. I recognize that the C o urt may see this mat t er not as one of prom ulgating and applying a local rule but, rather, as presenti ng the larger questionof the plac e of camera s in the cour troom. Butthe wisdo mof a ca mera policyis primarily a matter for the proper administrat ive bodies to determine. See 28 U. S. C. §332. This Court has no legal authority to address that larger policy question excep t insofar as i timpli c ates a questionof law. The relevant question of law here co ncerns the procedure for amending local rules. And the only releva nt legal pri n ciples tha t allow us here to take account of the immediate subject matter of that local rule, namely cameras, are those legal principles that permit us—indeed require u s—to look to the nature of the har m at issu e and to bala n ce equities, including t h e public interest. I consequently turn to tho s e two matters

. Third , consider the ha rm: I can f i nd no basis for th e Court’s con c lusion that, were the transmissions to other courtrooms to take place, the applicants would suffe r7 Cite as: 55 8 U

. S. ____ (2010)

B REYER , J., diss enting irreparable harm. C e rtainly th ere is no evidence th at such harm could arise in this nonjury civil case from the simple fact of transmission itself. By m ycoun t, 42 Sta t es and two Federal Distri ct Cour ts c u rrently give judges t h e discretion to broadcast civil nonjury trials. See Media Privacy an d Related Law 2009–1 0 (2009) (collecting state statutes and rules); Civ. Rule 1.8 (SDNY 200 9); Civ. Rul e 1.8(EDNY 2009). Neither the applicants nor anyone els e “has been able to present empirical data sufficient to establish that the me re presence of the bro a dcast media inherently has an adverse effect on [the judi cial] process,” Chandlerv. Florida , 449 U. S. 560, 578–579 (1 981). Cf. M

. Cohn & D. Dow, Cam e ras in the Courtroom : Television and the Pursuit of Jus tice 62–64 ( 1998) (canvassing stud

ies, none of whichfound harm, a n d one of which foun d that witnes ses “who faced an obvious camera, provide d answers th at were mo re corre c t , lengthier and more de

tailed”). An d, in any event, any harm to th e parties, in

cluding the applicants, is reparab l e through appeal. Cf. Chandler, supra , at 58 1. The applicants also c l aim that the transmission will irreparably harm the witnesses themselves, presumably by increasing the public’s awareness of wh o those wit

nesses are. And they claim that some m e mbers of th e public might harass those witnesses. But the witnesses, although capable of doing so, have not asked this Court to set aside the District C o urt’s order

. Cf. Millerv. Albright , 523 U. S. 420, 445 (1998) ( O’Connor, J., joinedby K ENN E DY , J., concurring in judgment); Powersv. Ohio , 499 U. S. 400, 411 (19 91). And that is nots u rprising. All of the witnesses supporting the applicants are already publicly identified with their cause. They are all experts or advocate s who have either already appeared on televi

sion or In ternet broadcasts, already toure dthe State advocating a “yes” vote on Proposition 8, or already en

gaged in extensive public co mmentary fa r more likely to8 HOLLINGSWORTH v. PERRY

B REYER , J., diss enting make them well known than a closed-circuit broadcast to another federal courthouse. The lik elih ood of any “irreparable” harm is furthe r diminished by the fact that the court ord e r before us would simply increase the trial’s viewing audience from the occupants of one courtroom in one courthouse to th e occupants of five other cou rtrooms in five other court

houses (in all of which taking pictures or retransmission s have beenforbidden). By way of comparison literal ly hundreds of national and international newspapers a r e already cov e ring this trial and r e porting in detail the names and testimony of all of the witnesses. See, e. g., Leff, Woman Recalls Emotional Ordeal of Gay Ma rri age Ban, Associ ated Press, Jan. 11, 2010. I see no reason why the incremental increase in exposure caused by transmit

ting these proceedings to five additional courtrooms would create any further ris kof harm, a s the Court apparently believes. S ee ante , at 13. Moreover, if in respect to an y particular witness this transmission threatens harm, t h e District Co urt can pr event that harm. Chief Judge Walker has already said that he would keep the broadcast “completely under the Court’s co n trol, to permit the Court t os t o p i ti f [i t] p r o v e s t ob eap r o b l e m , i f i tp r o v e s t ob e a distraction, [or] if itp r oves to c r e ate problems with wi t

nesses.” See Exh. 2, at 45, App. to Pet. The C i rcuit Coun

cil confirmed in apress rel e ase that the District Co urt “will fully control the process” and that “Judge Walker has reserved the right to terminate any part of the audio or video, or both, for a n y dura tion” or to ter m inate par

ticipation in the pilot program “at anyti me.” News Release, Federal Courthouse s to Offer Remote Viewing of Pro-position 8 Trial (Jan. 8, 2010), http://www. ca9.uscourts.gov/datastore/general/ 2010/01/08/Prop8_ Remote_Viewing_Locations.pdf (as visited Jan. 13, 2010, and available in Clerk of Court’s case file). Surely such firm control , exercised by an able districtcou rt ju dge wit h9 Cite as: 55 8 U

. S. ____ (2010)

B REYER , J., diss enting 20 years of trial-management experience, will be sufficien t to address any possible harm, either to the witnesses or to the integrit y of the trial. Fourth , no fair balancing of the equities (includi ng harm to the public interest) could support issuance of the stay. See Times-Picayune Publishing Corp. v. Schulingkam p , 419 U. S. 1301, 1305 (1974) (Powell, J. in Chambers) (recognizing “significant p ublic and private interests balanced on both sides” when “present[ed with] a funda

mental confrontation between the competing values of free press and fair trial”). As I have just explained, the appli

cants’ equi ties consist of potenti a l harm to witnesses— harm that is either nonexistent or that can be cured through p r otective measures by t h e District Court as th e circumstan ces warrant

. The competing equities consist of not only respondents’ interest in obtaining the courthouse

to-courthouse transmission that they desire, but also the public’s interest in observing trial proceedings to learn about this case and about how cou rts work. See Nebrask a Pres s As sn. v. Stu a rt , 427 U. S. 5 39, 587 (1976) (Brennan, J., concurri ng in judgment); see also Exh. 2, at 42, App. to Pet. (state ment of Chief Judge Walker) (“[ I ]f the pub lic could see how the ju dicial process wor k s, the ywould take a somewhat different view of it.” “I think the only time that you’re going to d r aw sufficient interest in the legal process is wh en you have an issu e such as the issues h e re, that people think about, talk about, debate about an d consider”). With these considerations in the balance, the scales tip heavily against, not in favor, of issu ing the stay. The majority’s action today is unu sual. It gra n ts a stay in order to consider a mandamus petition, with a view to intervening in a mat t er of local co urt adminis tration that it would not (and should not) consider. It cites no prece

dent for do ing so. It identifies n oreal harm, let alone “irreparabl e harm,” to justify its issuance of this stay. And the public interestweighs in f avor of providing acces s10 HOLLINGSWORTH v. PERRY

B REYER , J., diss enting to the cour ts. To just ify this ext r aordinary intervention, the majority insists that courts must “enforce the re

quirement of procedural regularity on others, and must follow those requirements themselves.” Ante , at 1. And s o too I b e liev ethis Court should adhere to its institutional competence, its historical practi ce, and its governing precedent—all of which counsel strongly again s t the issu

ance of this stay. I respectfully dissent.