_________________ 

_________________ 

Cite as: 558 U. S. ____ (2010) 1 

Per Curiam 

SUPREME COURT OF THE UNITED STATES 

No. 09A648 

DENNIS HOLLINGSWORTH ET AL. v. KRISTIN M. 

PERRY ET AL. 

ON APPLICATION FOR STAY 

[January 13, 2010] 

PER CURIAM. 

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 
2 HOLLINGSWORTH v. PERRY 

Per Curiam 

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. 

I 

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 
Cite as: 588 U. S. ____ (2010) 3 

Per Curiam 

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– 
4 HOLLINGSWORTH v. PERRY 

Per Curiam 

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 
Cite as: 588 U. S. ____ (2010) 5 

Per Curiam 

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 
6 HOLLINGSWORTH v. PERRY 

Per Curiam 

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 realtime 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.” Federal Courthouses to Offer Remote 

Viewing of Proposition 8 Trial, online at 

http://www.ca9.uscourts.gov/datastore/general/2010/01/08/

Prop8_Remote_Viewing_Locations.pdf (as visited Jan. 13,

2010, and available in the Clerk of Court’s case file). 

Chief Judge Kozinski’s January 8 order noted that the

request to broadcast the trial on the Internet was “still

pending” before him. In a later letter to Chief Judge

Walker, he explained that the request was not yet “ripe for

approval” because “the technical staff encountered some 

unexpected difficulties preparing a satisfactory video 

suitable for on-line posting.” Letter of Jan. 9, 2010 (available in Clerk of Court’s case file). A final decision whether 

to permit online publication would be made when technical difficulties were resolved. 

On January 9, 2010, applicants filed in this Court an

application for a stay of the District Court’s order. Their 

petition seeks a stay pending resolution of forthcoming 

petitions for the writs of certiorari and mandamus. 

II 

The question whether courtroom proceedings should be 
Cite as: 588 U. S. ____ (2010) 7 

Per Curiam 

broadcast has prompted considerable national debate.

Reasonable minds differ on the proper resolution of that

debate and on the restrictions, circumstances, and procedures under which such broadcasts should occur. We do 

not here express any views on the propriety of broadcasting court proceedings generally. 

Instead, our review is confined to a narrow legal issue: 

whether the District Court’s amendment of its local rules 

to broadcast this trial complied with federal law. We 

conclude that it likely did not and that applicants have

demonstrated that irreparable harm would likely result

from the District Court’s actions. We therefore stay the

court’s January 7, 2010, order to the extent that it permits

the live streaming of court proceedings to other federal

courthouses. We do not address other aspects of that

order, such as those related to the broadcast of court proceedings on the Internet, as this may be premature. 

A 

To obtain a stay pending 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 meritorious to grant certiorari; (2) a

fair prospect that a majority of the Court will vote to

reverse the judgment below; and (3) a likelihood that 

irreparable harm will result from the denial of a stay. In 

close cases the Circuit Justice or the Court will balance 

the equities and weigh the relative harms to the applicant 

and to the respondent. Lucas v. Townsend, 486 U. S. 

1301, 1304 (1988) (KENNEDY, J., in chambers); Rostker v. 

Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in 

chambers). To obtain a stay pending the filing and disposition of a petition for a writ of mandamus, an applicant 

must show a fair prospect that a majority of the Court will

vote to grant mandamus and a likelihood that irreparable 

harm will result from the denial of a stay. Before a writ of 
8 HOLLINGSWORTH v. PERRY 

Per Curiam 

mandamus may issue, a party must establish that (1) “no 

other adequate means [exist] to attain the relief he desires,” (2) the party’s “right to issuance of the writ is ‘clear 

and indisputable,’ ” and (3) “the writ is appropriate under

the circumstances.” Cheney v. United States Dist. Court 

for D. C., 542 U. S. 367, 380–381 (2004) (some internal 

quotation marks omitted). This Court will issue the writ 

of mandamus directly to a federal district court “only

where a question of public importance is involved, or 

where the question is of such a nature that it is peculiarly

appropriate that such action by this court should be 

taken.” Ex parte United States, 287 U. S. 241, 248–249 

(1932). These familiar standards are followed here, where 

applicants claim that the District Court’s order was based

on a local rule adopted in violation of federal law. 

B 

Given the importance of the issues at stake, and our 

conclusion that the District Court 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 for a writ of certiorari and reverse the order

below or will grant a petition for a writ of mandamus. 

A district court has discretion to adopt local rules. 

Frazier v. Heebe, 482 U. S. 641, 645 (1987) (citing 28

U. S. C. §2071; Fed. Rule Civ. Proc. 83). Those rules have 

“the force of law.” Weil v. Neary, 278 U. S. 160, 169 

(1929). Federal law, however, requires a district court to 

follow certain procedures to adopt or amend a local rule.

Local rules typically may not be amended unless the 

district court “giv[es] appropriate public notice and an 

opportunity for comment.” 28 U. S. C. §2071(b); see also 

Fed. Rule Civ. Proc. 83(a). A limited exception permits 

dispensing with this notice-and-comment requirement 

only where “there is an immediate need for a rule.” 

§2071(e). Even where a rule is amended based on imme-
Cite as: 588 U. S. ____ (2010) 9 

Per Curiam 

diate need, however, the issuing court must “promptly

thereafter afford . . . notice and opportunity for comment.” 

Ibid. 

Before late December, the court’s Local Rule 77–3 explicitly banned the broadcast of court proceedings: 

“Unless allowed by a Judge or a Magistrate Judge 

with respect to his or her own chambers or assigned 

courtroom for ceremonial purposes, the taking of photographs, public broadcasting or televising, or recording for those purposes in the courtroom or its environs, in connection with any judicial proceeding, is 

prohibited. Electronic transmittal of courtroom proceedings and presentation of evidence within the confines of the courthouse is permitted, if authorized by

the Judge or Magistrate Judge. The term ‘environs,’ 

as used in this rule, means all floors on which chambers, courtrooms or on which Offices of the Clerk are 

located, with the exception of any space specifically 

designated as a Press Room. Nothing in this rule is

intended to restrict the use of electronic means to receive or present evidence during Court proceedings.” 

Notably, the Rule excepted from its general ban the transmittal of certain proceedings—but it limited that exception 

to transmissions “within the confines of the courthouse.” 

The negative inference of this exception, of course, is that 

the Rule would have prohibited the streaming of transmissions, or other broadcasting or televising, beyond “the

confines of the courthouse.” 

Respondents do not dispute that this version of Rule 77–

3 would have prohibited streaming video of the trial

around the country. But they assert that this is not the 

operative version of Rule 77–3. In a series of postings on

its Web site, the District Court purported to revise or

propose revisions to Local Rule 77–3. This amendment 

would have created an additional exception to Rule 77–3’s 
10 HOLLINGSWORTH v. PERRY 

Per Curiam 

general ban on the broadcasting of court proceedings “for

participation in a pilot or other project 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 Court 

failed to “giv[e] appropriate public notice and an opportunity for comment,” as required by federal law. 28 U. S. C. 

§2071(b). The first time the District Court asked for public comments was on the afternoon of New Year’s Eve. 

The court stated that it would leave the comment period 

open until January 8. At most, the District Court therefore allowed a comment period spanning five business

days. There is substantial merit to the argument that this 

was not “appropriate” notice and an opportunity for comment. Administrative agencies, for instance, “usually” 

provide a comment period of “thirty days or more.” Riverbend Farms, Inc. v. Madigan, 958 F. 2d 1479, 1484 (CA9 

1992); see Petry v. Block, 737 F. 2d 1193, 1201 (CADC 

1984) (“[T]he shortest period in which parties can meaningfully review a proposed rule and file informed responses is thirty days”). 

To be sure, the possibility that some aspects of the trial 

might be broadcast was first raised to the parties by the

District Court at an in-court hearing on September 25, 

some three months before the Rule was changed. The 

broadcasting, however, was prohibited under both Circuit

and local rules at that time. The first public indication

that the District Court intended to adopt a rule of general

applicability came in its Web site posting on December 23. 

And even if Chief Judge Walker’s in-court allusion to the 

possibility that the Proposition 8 trial might be broadcast 

could be considered as providing notice to the parties in

this case—his statement that “[t]his is all in flux” notwithstanding—the disclosure falls far short of the “appropriate 
Cite as: 588 U. S. ____ (2010) 11 

Per Curiam 

public notice and an opportunity for comment” required by

§2071(b). Indeed, there was no proposed policy on which 

to comment. 

The need for a meaningful comment period was particularly acute in this case. Both courts and legislatures have

proceeded with appropriate caution in addressing this

question. In 1996, the Judicial Conference of the United 

States adopted a policy opposing the public broadcast of 

court proceedings. This policy was adopted after a multiyear study of the issue by the Federal Judicial Center 

which drew on data from six district and two appellate 

courts, as well as state-court data. In light of the study’s

findings, the Judicial Conference concluded that “the 

intimidating effect of cameras on some witnesses and

jurors [is] cause for concern.” Report of the Proceedings of

the Judicial Conference of the United States 47 (Sept. 20,

1994).

In more than a decade since its adoption the Judicial 

Conference has continued to adhere to its position on the 

broadcast of court proceedings. While the policy conclusions of the Judicial Conference may not be binding on the 

lower courts, they are “at the very least entitled to respectful consideration.” In re Sony BMG Music Entertainment, 

564 F. 3d 1, 6 (CA1 2009). Before abandoning its own 

policy—one consistent with the Judicial Conference’s 

longstanding views—it was incumbent on the District

Court to adopt a proposed rule only after notice and an

adequate period for public comment.

In dispensing with public notice and comment the District Court invoked the “immediate need” exception. 28 

U. S. C. §2071(e). It did so through a Web site posting on

January 4—prior to the expiration of the comment period—indicating that Rule 77–3 had been revised to permit participation in the Ninth Circuit’s pilot program.

These postings gave no explanation for invoking the exception. At trial the District Court explained that the 
12 HOLLINGSWORTH v. PERRY 

Per Curiam 

immediate need here was to allow this case to be broadcast pursuant to the Ninth Circuit’s new pilot program.

See Exh. 1, p. 11, Supp. App. to Response for Perry et al. 

This does not qualify as an immediate need that justifies dispensing with the notice and comment procedures

required by federal law. While respondents (the plaintiffs

in the District Court) had indicated their approval of the 

plan, no party alleged that it would be imminently harmed 

if the trial were not broadcast. Had an administrative 

agency acted as the District Court did here, the immediate 

need exception would likely not have been available. See 

5 U. S. C. §553(b)(B) (administrative agencies cannot 

invoke an exception to affording notice-and-comment

before rulemaking unless the notice-and-comment procedures would be “impracticable, unnecessary, or contrary to 

the public interest”). In issuing its order the District 

Court relied on the Ninth Circuit Judicial Council’s pilot 

program. Yet nothing in that program—which was not 

adopted after notice and comment procedures, cf. 28

U. S. C. §332(d)(1)—required any “immediate” revision in

local rules. The Ninth Circuit Judicial Council did not 

purport to modify or abrogate the District Court’s local

Rule. Nor could it, as the Judicial Council only has the

power to modify or abrogate local rules that conflict with 

federal law. See §332(d)(4) (permitting a circuit court 

council to modify a local rule that is “found inconsistent”

with rules promulgated by the Supreme Court). No federal law requires that the District Court broadcast some of 

its cases. The District Court’s local Rule, in addition, was 

not a conforming amendment to Ninth Circuit policy, 

because that policy does not require district courts to

broadcast proceedings.

Applicants also have shown that irreparable harm will 

likely result from the denial of the stay. Without a stay,

the District Court will broadcast the trial. It would be 

difficult—if not impossible—to reverse the harm from 
Cite as: 588 U. S. ____ (2010) 13 

Per Curiam 

those broadcasts. The trial will involve various witnesses, 

including members of same-sex couples; academics, who 

apparently will discuss gender issues and gender equality, 

as well as family structures; and those who participated in 

the campaign leading to the adoption of Proposition 8. 

This Court has recognized that witness testimony may be 

chilled if broadcast. See Estes v. Texas, 381 U. S. 532, 547 

(1965); id., at 591 (Harlan, J., concurring). Some of applicants’ witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated 

their concerns by citing incidents of past harassment. See, 

e.g., Exh. K to Defendant-Intervenors’ Motion (71 news 

articles detailing incidents of harassment related to people 

who supported 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 regarding 

an issue and having one’s testimony broadcast throughout 

the country. Applicants may not be able to obtain adequate 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 his or 

her testimony had not been broadcast. And witnesses 

subject to harassment as a result of broadcast of their 

testimony might be less likely to cooperate in any future

proceedings.

The balance of equities favors applicants. While applicants have demonstrated the threat of harm they face if

the trial is broadcast, respondents have not alleged any 

harm if the trial is not broadcast. The issue, moreover, 

must be resolved at this stage, for the injury likely cannot 

be undone once the broadcast takes place. 

This Court also has a significant interest in supervising 

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 accepted and usual 
14 HOLLINGSWORTH v. PERRY 

Per Curiam 

course of judicial proceedings . . . as to call for an exercise 

of this Court’s supervisory power”). The Court may use its 

supervisory authority to invalidate local rules that were 

promulgated in violation of an Act of Congress. See Frazier, 482 U. S., at 645–646; id., at 652, 654 (Rehnquist, 

C. J., dissenting). The Court’s interest in ensuring compliance with proper rules of judicial administration is 

particularly acute when those rules relate to the integrity

of judicial processes. The District Court here attempted to

revise its rules in haste, contrary to federal statutes and

the policy of the Judicial Conference of the United States. 

It did so to allow broadcasting of 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 purpose. Here, however, the order in question 

complied neither with existing rules or policies nor the 

required procedures for amending them. 

By insisting that courts 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 all the more evident here, 

where the lack of a regular rule with proper standards to

determine the guidelines for broadcasting could compromise the orderly, decorous, rational traditions that courts

rely upon to ensure the integrity of their own judgments.

These considerations, too, are part of the reasons leading 

to the decision to grant extraordinary relief. 

In addressing a discrete instance authorizing a closedcircuit 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 had 

been transferred to the United States District Court for 

the District of Colorado, so it was set to take place in 
Cite as: 588 U. S. ____ (2010) 15 

Per Curiam 

Denver. That meant the families of deceased and surviving victims in and around Oklahoma City would not have 

the opportunity to observe the trial. Congress passed a

statute that allowed victims’ families to watch the trial on 

closed-circuit television. 42 U. S. C. §10608. The statute 

was drawn with care to provide precise and detailed guidance with respect to the wide range of issues implicated by 

the broadcast. See §10608(a) (the statute only applies “in

cases where the venue of the trial is changed” to a city

that is “out of the State” and “more than 350 miles from 

the location in which those proceedings originally would 

have taken place”); §§10608(a)–(b) (standards for who can

view such trials); §10608(c) (restrictions on transmission). 

And the statute gave the Judicial Conference of the United 

States rulemaking authority “to effectuate the policy

addressed by this section.” §10608(g). In the present case, 

by contrast, over a span of three weeks the District Court 

and Ninth Circuit Judicial Council issued, retracted, and 

reissued a series of Web site postings and news releases. 

These purport to amend rules and policies at the heart of

an ongoing consideration of broadcasting federal trials. 

And they have done so to make sure that one particular

trial may be broadcast. Congress’ requirement of a notice 

and comment procedure prevents just such arbitrary

changes of court rules. Instead, courts must use the procedures prescribed by statute to amend their rules, 28 

U. S. C. §2071.

If Local Rule 77–3 had been validly revised, questions

would still remain about the District Court’s decision to 

allow broadcasting of this particular trial, in which several 

of the witnesses have stated concerns for their own security. Even districts that allow trials to be broadcast, see 

Civ. Rule 1.8 (SDNY 2009); Civ. Rule 1.8 (EDNY 2009), 

recognize that a district judge’s discretion to broadcast a 

trial is limited, see, e.g., Hamilton v. Accu-Tek, 942 

F. Supp. 136, 138 (EDNY 1996) (broadcast forbidden 
16 HOLLINGSWORTH v. PERRY 

Per Curiam 

unless “there is no interference with the due process, the 

dignity of litigants, jurors and witnesses, or with other

appropriate aspects of the administration of justice”). 

Consequently, courts in those districts have allowed the

broadcast of their proceedings on the basis that those

cases were not high profile, E*Trade Financial Corp. v. 

Deutsche Bank 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); Katzman v. Victoria’s 

Secret Catalogue, 923 F. Supp. 580, 586–587 (SDNY 1996). 

Indeed, one District Court did not allow the broadcasting

of its proceedings because the case “involv[ed] very sensitive issues.” Schoeps v. Museum of Modern Art, 599 

F. Supp. 2d 532, 534 (SDNY 2009). This case, too, involves issues subject to intense debate in our society. The 

District Court intends not only to broadcast the attorneys’ 

arguments but also witness testimony. See Sony BMG, 

564 F. 3d, at 11 (Lipez, J., concurring) (distinguishing 

broadcast of attorneys’ arguments from other parts of the 

trial). This case is therefore not a good one for a pilot 

program. Even the studies that have been conducted thus 

far have not analyzed the effect of broadcasting in highprofile, divisive cases. See Application for Stay 17 (warning by Judge Edward R. Becker that in “‘truly high-profile 

cases,’” one can “‘[j]ust imagine what the findings would 

be’” (quoting Exh. 21, at 2, App. to Pet.)). 

III 

The District Court attempted to change its rules at the 

eleventh hour to treat this case differently than other 

trials in the district. Not only did it ignore the federal 

statute that establishes the procedures by which its rules

may be amended, its express purpose was to broadcast a 

high-profile trial that would include witness testimony

about a contentious issue. If courts are to require that 

others follow regular procedures, courts must do so as 
Cite as: 588 U. S. ____ (2010) 17 

Per Curiam 

well. The Court grants the application for a stay of the

District Court’s order of January 7, 2010, pending the

timely filing and disposition of a petition for a writ of 

certiorari or the filing and disposition of a petition for a

writ of mandamus. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 558 U. S. ____ (2010) 1 

BREYER, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 09A648 

DENNIS HOLLINGSWORTH ET AL. v. KRISTIN M. 

PERRY ET AL. 

ON APPLICATION FOR STAY 

[January 13, 2010] 

JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE 

GINSBURG and JUSTICE SOTOMAYOR join, dissenting. 

The Court today issues an order that will prevent the

transmission of proceedings in a nonjury civil case of great

public interest to five other federal courthouses located in 

Seattle, Pasadena, Portland, San Francisco, and Brooklyn. 

The Court agrees that it can issue this extraordinary legal

relief only if (1) there is a fair chance the District Court

was wrong about the underlying legal question, (2) that 

legal question meets this Court’s certiorari standards, (3) 

refusal of the relief would work “irreparable harm,” (4) the 

balance of the equities (including, the Court should say,

possible harm to the public interest) favors issuance, (5) 

the party’s right to the relief is “clear and undisputable,” 

and (6) the “question is of public importance” (or otherwise

“peculiarly appropriate” for such action). See ante, at 6–7; 

Rostker v. Goldberg, 448 U. S., 1306, 1308 (1980) (Brennan, J., in chambers) (stay standard); Cheney v. United 

States Dist. Court for D. C., 542 U. S. 367, 380 (2004) 

(noting that mandamus is a “drastic and extraordinary 

remedy reserved for really extraordinary causes” (internal 

quotation marks 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 merits of the legal issue: The United 

States Code, in a chapter entitled “Rules of Courts,” states 
2 HOLLINGSWORTH v. PERRY 

BREYER, J., dissenting 

that “[a]ny rule . . . shall be prescribed only after giving 

appropriate public notice and an opportunity for comment.” 28 U. S. C. §2071(b). The question here is whether

the District Court accompanied the modification of its 

antivideo rule with “appropriate public notice and an

opportunity for comment.” 

Certainly the parties themselves had more than adequate notice and opportunity to comment before the Rule 

was changed. On September 25, 2009, the trial judge,

Chief Judge Vaughn Walker, discussed the possibility of 

broadcasting trial proceedings both within the courthouse

and beyond, and asked for the parties’ views. No party 

objected to the presence of cameras in the courtroom for

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”), and both sides

made written submissions to the court regarding their

views on other transmissions. The court again raised the

issue at a hearing on December 16.

Nor, in practice, did other members of the Judiciary lack 

information about the issue. In May 1996 the Circuit

Council adopted a policy permitting video in connection

with appellate proceedings, but prohibiting its use in the

district court. Subsequently, appellate court panels have 

frequently permitted electronic coverage. Judges, the

press, lawyers, and others have discussed the matter. In 

2007 the lawyers and judges present at the Ninth Circuit 

Judicial Conference considered a resolution that favored 

the use of cameras in district court civil nonjury proceedings. And, voting separately, both lawyers and judges

“approved the resolution by resounding margins.” Letter 

from Chief Judge Kozinski to Judge Anthony Scirica (Jan.

10, 2010), Exh. 8, p. 4, Supp. App. to Response for Perry 

et al. (hereinafter Supp. App. to Response). Subsequently,

a committee of judges was created to study the matter.

And on December 17, 2009, the Circuit Council voted to 
Cite as: 558 U. S. ____ (2010) 3 

BREYER, J., dissenting 

authorize a pilot program permitting the use of video in 

nonjury civil cases as part of an “experiment with the

dissemination of video recordings in civil nonjury matters”

(specifically those selected by the Chief Judge of the Circuit and the Chief Judge of the District Court). And it 

issued a press release. News Release, Ninth Circuit Judicial Council Approves Experimental Use of Cameras in 

District Courts (Dec. 17, 2009), Exh, 13. App. to Pet. 

In this context the United States District Court for the 

Northern District of California amended its local rules on 

December 22, 2009 to bring them into conformity with

Ninth Circuit policy. In particular, the court amended the 

local Rule forbidding the public broadcasting or televising 

of court proceedings by creating an exception “for participation in a pilot or other project authorized by the Judicial 

Council of the Ninth Circuit.” Public Notice Concerning

Revisions of Civil Local Rule 77–3, id., Exh. 14. The court 

initially relied on a provision in the United States Code

that permits District Courts to prescribe rules “without

public notice and opportunity for comment” “[i]f the prescribing court determines that there is an immediate need 

for a rule,” and if the court “promptly thereafter afford[s] 

such notice and opportunity for comment,” 28 U. S. C. §

2071(e). See Exh. 1, at 11, Supp. App. to Response. Then, 

on December 31, the court revised its public notice to ask

for comments directly. By January 8, 2010, the court had

received 138,574 comments, all but 32 of which favored 

transmitting the proceedings. Id., at 12. 

Viewed in light of this history, the court satisfied the

statute’s insistence that “notice” be “appropriate.” Cf. 28 

U. S. C. §§2071(b), (e). The parties, the judges, and the

interested public were aware of the proposals to change

Ninth Circuit policy that culminated in the “pilot program” well before the change in the local rules that enabled participation in the project. The Ninth Circuit 

issued a press release in mid-December explaining its new 
4 HOLLINGSWORTH v. PERRY 

BREYER, J., dissenting 

“pilot program.” Then, once the District Court amended 

its local rule, it issued its own notice nearly three weeks 

before the transmissions that the rule change authorized 

were to begin. And the rule change itself is simply a 

change that conforms local rule to Circuit policy—a conformity 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 Circuit,” Letter

from Chief Judge Hug to All Ninth Circuit Judges (June 

21, 1996) (available in Clerk of Court’s case file); it announced its new “pilot program” policy in December 2009, 

App. to Application, Exh. 13, App. to Pet.; and federal

statutes render district court rules void insofar as they

have been “modified or abrogated” by the Council, see

§2071(c)(1). Compare ante, at 11 (“Council only has the 

power to modify or abrogate local rules that conflict with 

federal law”), with 28 U. S. C. §332(d)(1) (“[C]ouncil shall 

make all necessary and appropriate orders for the effective 

and expeditious administration of justice within its circuit”).) The applicants point to no interested person unaware of the change. How can the Majority reasonably 

demand yet more notice in respect to a local rule modification that a statute likely requires regardless?

There was also sufficient “opportunity for comment.”

The parties, the intervenors, other judges, the public—all 

had an opportunity to comment. The parties were specifically 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 Court to submit 

comments after the rule change was announced, right up 

to the eve of trial. As I said, the court received 138,574 

comments during that time. How much more “opportunity

for comment” does the Court believe necessary, particularly when the statutes themselves authorize the local 

court to put a new rule into effect “without” receiving any

“comments” before doing so when that local “court deter-
Cite as: 558 U. S. ____ (2010) 5 

BREYER, J., dissenting 

mines that there is an immediate need” to do so (and to

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, this legal question is not the kind of legal question that this Court would normally grant certiorari to

consider. There is no conflict among the state or federal 

courts regarding the procedures by which a district court

changes its local rules. Cf. this Court’s Rules 10(a)–(b). 

The technical validity of the procedures followed below

does not implicate an open “important question of federal

law.” Cf. Rule 10(c). Nor do the procedures below clearly

conflict with any precedent from this Court. Cf. ibid. 

It is particularly inadvisable for this Court to consider

this kind of question because it involves local rules and 

local judicial administration. Here, for example, the Court

decides just how a district court should modify its own 

local rules; in a word, this Court micromanages district 

court administrative procedures in the most detailed way. 

And, without briefing, the Court imposes limitations on

the Judicial Councils’ ability to implement policy decisions, ante, at 11–12 (suggesting Council policy does not 

abrogate local rules), with consequences we cannot predict. The District Councils, the Circuit Councils, the 

Judicial Conference of the United States, and the Chief 

Justice bear responsibility for judicial administration, not 

this Court. See 28 U. S. C. §§331–332. And those bodies 

have adequate authority to resolve disagreements about

how to promulgate and apply local rules, and, particularly, 

about the use of cameras in the courtroom. 

For the past 80 years, local judicial administration has 

been left to the exclusive province of the Circuit Judicial 

Councils, and this Court lacks their institutional experience. See generally P. Fish, The Politics of Federal Judicial Administration 152–153 (1973) (From their creation, 
6 HOLLINGSWORTH v. PERRY 

BREYER, J., dissenting 

“[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 competence in th[eir] work . . .”). For that reason it is inappropriate as well as unnecessary for this Court to intervene in

the procedural aspects of local judicial administration. 

Perhaps that is why I have not been able to find any other 

case in which this Court has previously done so, through

emergency relief or otherwise. Cf. Bank of Nova Scotia v. 

United States, 487 U. S. 250, 264 (1988) (SCALIA, J., concurring) (“I do not see the basis for any direct authority to

supervise lower courts” (citing Frazier v. Heebe, 482 U. S. 

641, 651–652 (1987) (Rehnquist, C. J., dissenting))). Nor 

am I aware of any instance in which this Court has preemptively sought to micromanage district court proceedings as it does today.

I recognize that the Court may see this matter not as

one of promulgating and applying a local rule but, rather, 

as presenting the larger question of the place of cameras 

in the courtroom. But the wisdom of a camera policy is 

primarily a matter for the proper administrative bodies to 

determine. See 28 U. S. C. §332. This Court has no legal

authority to address that larger policy question except 

insofar as it implicates a question of law. The relevant 

question of law here concerns the procedure for amending 

local rules. And the only relevant legal principles that

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 us—to look to 

the nature of the harm at issue and to balance equities, 

including the public interest. I consequently turn to those 

two matters. 

Third, consider the harm: I can find no basis for the 

Court’s conclusion that, were the transmissions to other 

courtrooms to take place, the applicants would suffer 
Cite as: 558 U. S. ____ (2010) 7 

BREYER, J., dissenting 

irreparable harm. Certainly there is no evidence that 

such harm could arise in this nonjury civil case from the

simple fact of transmission itself. By my count, 42 States

and two Federal District Courts currently give judges the

discretion to broadcast civil nonjury trials. See Media 

Privacy and Related Law 2009–10 (2009) (collecting state

statutes and rules); Civ. Rule 1.8 (SDNY 2009); Civ. Rule

1.8 (EDNY 2009). Neither the applicants nor anyone else

“has been able to present empirical data sufficient to

establish that the mere presence of the broadcast media 

inherently has an adverse effect on [the judicial] process,” 

Chandler v. Florida, 449 U. S. 560, 578–579 (1981). Cf. M. 

Cohn & D. Dow, Cameras in the Courtroom: Television 

and the Pursuit of Justice 62–64 (1998) (canvassing studies, none of which found harm, and one of which found 

that witnesses “who faced an obvious camera, provided

answers that were more correct, lengthier and more detailed”). And, in any event, any harm to the parties, including the applicants, is reparable through appeal. Cf. 

Chandler, supra, at 581. 

The applicants also claim that the transmission will

irreparably harm the witnesses themselves, presumably 

by increasing the public’s awareness of who those witnesses are. And they claim that some members of the

public might harass those witnesses. But the witnesses, 

although capable of doing so, have not asked this Court to

set aside the District Court’s order. Cf. Miller v. Albright, 

523 U. S. 420, 445 (1998) (O’Connor, J., joined by 

KENNEDY, J., concurring in judgment); Powers v. Ohio, 

499 U. S. 400, 411 (1991). And that is not surprising. All 

of the witnesses supporting the applicants are already

publicly identified with their cause. They are all experts 

or advocates who have either already appeared on television or Internet broadcasts, already toured the State 

advocating a “yes” vote on Proposition 8, or already engaged in extensive public commentary far more likely to 
8 HOLLINGSWORTH v. PERRY 

BREYER, J., dissenting 

make them well known than a closed-circuit broadcast to 

another federal courthouse. 

The likelihood of any “irreparable” harm is further

diminished by the fact that the court order before us 

would simply increase the trial’s viewing audience from

the occupants of one courtroom in one courthouse to the 

occupants of five other courtrooms in five other courthouses (in all of which taking pictures or retransmissions

have been forbidden). By way of comparison literally 

hundreds of national and international newspapers are

already covering this trial and reporting in detail the 

names and testimony of all of the witnesses. See, e.g.,

Leff, Woman Recalls Emotional Ordeal of Gay Marriage 

Ban, Associated Press, Jan. 11, 2010. I see no reason why

the incremental increase in exposure caused by transmitting these proceedings to five additional courtrooms would

create any further risk of harm, as the Court apparently 

believes. See ante, at 13. Moreover, if in respect to any

particular witness this transmission threatens harm, the 

District Court can prevent that harm. Chief Judge

Walker has already said that he would keep the broadcast 

“completely under the Court’s control, to permit the Court

to stop it if [it] proves to be a problem, if it proves to be a

distraction, [or] if it proves to create problems with witnesses.” See Exh. 2, at 45, App. to Pet. The Circuit Council confirmed in a press release that the District Court

“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 any duration” or to terminate participation in the pilot program “at any time.” News 

Release, Federal Courthouses 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 district court judge with 
Cite as: 558 U. S. ____ (2010) 9 

BREYER, J., dissenting 

20 years of trial-management experience, will be sufficient 

to address any possible harm, either to the witnesses or to

the integrity of the trial. 

Fourth, no fair balancing of the equities (including harm

to the public interest) could support issuance of the stay. 

See Times-Picayune Publishing Corp. v. Schulingkamp, 

419 U. S. 1301, 1305 (1974) (Powell, J. in Chambers) 

(recognizing “significant public and private interests

balanced on both sides” when “present[ed with] a fundamental confrontation between the competing values of free 

press and fair trial”). As I have just explained, the applicants’ equities consist of potential harm to witnesses—

harm that is either nonexistent or that can be cured 

through protective measures by the District Court as the 

circumstances warrant. The competing equities consist of

not only respondents’ interest in obtaining the courthouseto-courthouse transmission that they desire, but also the

public’s interest in observing trial proceedings to learn

about this case and about how courts work. See Nebraska 

Press Assn. v. Stuart, 427 U. S. 539, 587 (1976) (Brennan, 

J., concurring in judgment); see also Exh. 2, at 42, App. to 

Pet. (statement of Chief Judge Walker) (“[I]f the public 

could see how the judicial process works, they would take

a somewhat different view of it.” “I think the only time

that you’re going to draw sufficient interest in the legal 

process is when you have an issue such as the issues here, 

that people think about, talk about, debate about and 

consider”). With these considerations in the balance, the 

scales tip heavily against, not in favor, of issuing the stay. 

The majority’s action today is unusual. It grants a stay 

in order to consider a mandamus petition, with a view to 

intervening in a matter of local court administration that

it would not (and should not) consider. It cites no precedent for doing so. It identifies no real harm, let alone 

“irreparable harm,” to justify its issuance of this stay.

And the public interest weighs in favor of providing access 
10 HOLLINGSWORTH v. PERRY 

BREYER, J., dissenting 

to the courts. To justify this extraordinary intervention,

the majority insists that courts must “enforce the requirement of procedural regularity on others, and must 

follow those requirements themselves.” Ante, at 1. And so 

too I believe this Court should adhere to its institutional 

competence, its historical practice, and its governing 

precedent—all of which counsel strongly against the issuance of this stay. 

I respectfully dissent.