In a letter to Chief U.S. District Judge Vaughn Walker in San Francisco, a lawyer for the Prop. 8 campaign committee said federal court officials have found that “public broadcast has negative effects on some judges and attorneys, including distraction, grandstanding and avoidance of unpopular decisions or positions.”

The lawyer, Charles Cooper, didn’t spell out what he meant by avoiding unpopular decisions. But he argued that camera coverage of the arguments would violate his clients’ right to a fair trial – indicating that he feared a telecast would increase the prospect of an unfavorable ruling.

Cooper also told Walker that allowing cameras to record lawyers’ closing arguments would violate the “letter and spirit” of the U.S. Supreme Court’s ruling in January that barred camera coverage of trial testimony.

The court said Walker had not allowed enough time for public comment before approving telecasts. The 5-4 majority also said cameras might intimidate witnesses and that a controversial, high-profile case was “not a good one for a pilot program” on cameras at federal trials.

Walker has scheduled closing arguments for June 16 in a lawsuit by same-sex couples and the city of San Francisco challenging Prop. 8, the November 2008 state constitutional amendment that defined marriage as the union of a man and a woman.

No federal trial in California has been shown on television or the Internet. After the federal appeals court in San Francisco authorized a pilot project in December allowing cameras at selected civil, nonjury trials, Walker approved closed-circuit telecasts of the Prop. 8 trial to a few other federal courthouses. He also ordered videotaping for Internet viewing in delayed uploads on YouTube.

After the Supreme Court intervened, the federal court in San Francisco allowed additional public comment before again authorizing camera coverage during trials, with the approval of the judge and the appeals court’s chief judge.

Last week, a group of media organizations including Hearst Corp., which owns The Chronicle, asked Walker to allow telecasting of the Prop. 8 case’s closing arguments. They noted that witness intimidation was not an issue because only lawyers would participate in the hearing, and said cameras would expand access to a case of intense public interest.

Prop. 8′s sponsors, a conservative religious coalition called Protect Marriage, have argued that camera coverage would distort the trial proceedings. Cooper’s letter Monday also said telecasting could endanger lawyers and judges.

Thomas Burke, lawyer for the media organizations, said Cooper’s concerns were based on unfounded speculation. In a case that has already drawn broad coverage, he said, the question is whether members of the public who are interested in the proceedings will have “a greater opportunity to see them firsthand.”

The U.S. Supreme Court on Wednesday appeared skeptical of the argument that signatures on a referendum to repeal Washington state’s domestic partnership law should be kept private.

It will be a couple of years until that central issue in the culture wars reaches the court. But two early skirmishes — if not proxy battles — arrived this month. Both are fights over the First Amendment ground rules for the debate.

On Monday, the justices considered the rights of a Christian student group to bar gay members from leadership positions. Next week, the court will hear arguments about whether the names of people who signed a petition to place an anti-gay-rights measure on the ballot in Washington State should be kept secret.

The student group, the Christian Legal Society, bars “unrepentant participation in or advocacy of a sexually immoral lifestyle,” which it says includes “all acts of sexual conduct outside of God’s design for marriage between one man and one woman, which acts include fornication, adultery and homosexual conduct.”

A public law school, Hastings College of the Law in San Francisco, part of the University of California, withdrew official recognition from the group after it refused to comply with a school policy that forbids discrimination on various grounds, including religion and sexual orientation.

At Monday’s argument, Justice Stephen G. Breyer wondered what the group would have to say about a prospective member who said, “I don’t believe in sexual relationships before marriage, and that’s why I want to work for homosexual marriage.”

Michael W. McConnell, the group’s lawyer and a former federal judge, said taking that position would be enough to disqualify the student.

“If he does not agree with the organization on the point of marriage, then he can be excluded from leadership in the group,” Mr. McConnell said.

In an interview last week, Mr. McConnell said the issue in the case, Christian Legal Society v. Martinez, No. 08-1371, was an instance of a larger problem of intolerance for disfavored views, one that sometimes affects gay groups and at other times religious ones.

“I have no doubt at all that different parts of the country at different times present different threats to free speech,” Mr. McConnell said. “What we’ve been doing is ostracizing large segments of the American public.”

Advocates of traditional marriage say their free speech rights are under assault, as a brief in Monday’s case put it, for holding views “contrary to the reigning zeitgeist.” Proponents of same-sex marriage say their adversaries mistake debate for harassment and have a lot of nerve to claim the mantle of victim.

The divide between the two sides is even starker in the case to be argued next week, Doe v. Reed, No. 09-559. The question there is whether Washington State’s open records law violates the free speech rights of people who signed ballot petitions by requiring their names to be made public. Some of those people say they fear retaliation and harassment from advocates of same-sex marriage.

A number of news organizations, including The New York Times Company, filed a brief in the case, arguing that the petitions should be treated as public records.

But a supporting brief filed by the American Civil Rights Union, a group that says it supports “all constitutional rights, not just those that might be politically correct,” warned that openness could have dire consequences and likened gay rights activists to Nazis.

“There must be no place in our democracy for Brownshirts seeking to force their way through thuggery and violent intimidation,” the brief said.

A supporting brief filed by gay rights groups accused the other side of using a “largely fictitious tale that those who seek to deprive lesbian and gay Americans of rights are the ones being victimized.” It added that the civil rights of gay men and lesbians had been put to a popular vote more than those of any other group and that hate crimes against them had risen while such initiatives were under consideration by voters.

Evan Wolfson, the executive director of Freedom to Marry, a group that supports same-sex marriage, said its opponents were using a sort of rhetorical jujitsu. “When they pour tens of millions of dollars to strip rights away in the Constitution, that’s just speech,” Mr. Wolfson said. “When people don’t like it, that’s harassment.”

A brief filed by four political scientists analyzed the evidence on harassment, drawing a distinction between financial supporters of Proposition 8, the California ballot initiative that did away with same-sex marriage there, and people who merely signed petitions to place an issue on the ballot.

“More than a million names of signers of petitions for referenda and initiatives opposing gay marriage have been posted on the Internet,” the political scientists’ brief said. “Yet there is no evidence that any of these signers has faced any threat of retaliation or harassment by reason of that disclosure.”

The Supreme Court has, however, been receptive to arguments based on fear of retaliation. It shut down camera coverage of the same-sex marriage trial in San Francisco in January, partly on the theory that witnesses might be subject to harassment.

In Citizens United, the big campaign finance case, eight justices endorsed disclosure requirements for corporate election spending. But the court suggested that it would have a different answer in the context of same-sex marriage.

Laws requiring disclosure would be unconstitutional, Justice Anthony M. Kennedy wrote, “if there were a reasonable probability that the group’s members would face threats, harassment or reprisals if their names were disclosed.”

That cannot be heartening for gay rights advocates. Mr. Wolfson said debate about free speech, anonymity and retaliation was a worrisome distraction from a direct discussion of the meaning of marriage.

In law school, Mr. Wolfson said, you learn three possible ways to win a case. You can argue the law. You can argue the facts. Or you can make a fuss.

He said opponents of same-sex marriage were down to the last tactic. “They’ve lost the argument on the facts and increasingly on the law,” Mr. Wolfson said. “What they’re doing now is pounding the table.”

Equality California, No on Proposition 8 and the Campaign for Marriage Equality appealed Chief U.S. District Judge Vaughn Walker’s order compelling them to produce internal campaign documents in the federal trial challenging Prop 8, California’s voter-approved ban on same-sex marriage.

A federal court in San Francisco announced on Friday that it is not planning to broadcast closing arguments in the trial over California’s gay marriage ban, despite media reports to the contrary.

As of now, Judge Vaughn Walker has not asked that Perry v. Schwarzenegger be included in a pilot program that allows the broadcast of certain non-jury civil trials.

“Broadcasting closing arguments would require Chief Judge Walker to request that these arguments be included in the Ninth Circuit’s pilot program and approval of that request by Chief Judge Kozinski,” the press release said. “No such request has been made.”

Walker said in January that he would ask to broadcast the proceedings, citing the Judicial Council of the 9th Circuit’s decision that trial courts could begin experimenting with recording civil trials. He withdrew that request after the Supreme Court blocked the trial’s broadcast, finding the court had not properly followed policies that govern changes to court rules.

Copyright 2010 The Reporters Committee for Freedom of the Press

WASHINGTON, D.C. — The Supreme Court has agreed to review a case that presents the classic tension between public disclosure and personal privacy but with the added twist of the Internet.

In a case from Washington state, Doe v. Reed, the Court will consider whether the right to privacy implied in the First Amendment’s protection of freedom of speech and association is violated when the state discloses the names of those who sign petitions seeking to place a referendum question on the ballot. The high court announced Jan. 15 that it would review the case, with arguments likely in April.

The issue arises in the context of Washington’s Referendum 71 last fall, in which groups supporting traditional marriage sought to overturn a law that extended rights and benefits given to same-sex domestic partnerships. Sponsors of the ballot initiative went to court to keep the names from being released under the state’s Public Records Act, claiming disclosure would violate their right to anonymous speech and to association and would subject signers to threats and harassment. They pointed to Web sites that promised to post the names on the Internet with the goal of encouraging gay-rights supporters to have “uncomfortable” conversations with petition signers.

James Bopp Jr., lawyer for the group that seeks to prevent disclosure of the names, said the Court had recognized a right of “associational privacy” in some cases, especially when it relates to joining organizations or taking positions on controversial matters.

“The issue is arising with greater frequency across the country,” wrote Bopp, because changes in technology are making it easier to publicize names and to subject advocates to “harassment and intimidation.”

A district judge issued an injunction barring release of the names last September, but the 9th U.S. Circuit Court Appeals reversed. The names could have then been released, but on an emergency appeal, Justice Anthony Kennedy granted a stay of the injunction. The 9th Circuit then ruled more fully, in favor of disclosure, but it preserved the stay pending Supreme Court action.

Bopp, lawyer for Protect Marriage Washington, which brought the suit, said Jan. 15 in a statement, “We are pleased that the Supreme Court has agreed to hear this case that seeks to protect the rights of citizens who support a traditional definition of marriage to speak freely and without fear. No citizen should ever worry that they will be threatened or injured because they have exercised their right to engage in the political process. The First Amendment protects citizens from being required to disclose their identity when they are engaged in political speech.”

Bopp asserts that laws like Washington state’s, which require public disclosure, should be subjected to “strict scrutiny,” the most difficult standard of review, because of the importance of the privacy rights of petition signers.

Washington Secretary of State Sam Reed, who is defending disclosure of the names, also issued a statement: “We welcome an opportunity to go to the highest court in the land to defend Washington citizens’ strong desire for transparency, openness and accountability in government, and the public’s belief that our state and local public documents must be available for public inspection.”

Reed added, “It is not surprising that the Supreme Court would be intrigued by a nationally-watched case dealing with disclosure, First Amendment considerations and public discourse during the Internet era.”

In his statement and in his brief, Reed also said the petition process was public throughout, giving signers no expectation of privacy. He also argued that petitioning for a referendum to be placed on the ballot amounts to a legislative act, which should be public.

The Supreme Court’s action on the Washington case is the second time last week that it considered privacy issues relating to anti-gay-rights referenda. By a 5-4 vote, the Court last week barred broadcast of the San Francisco trial on the Proposition 8 ballot initiative in California that banned same-sex marriage there.

In that case, as with the Washington state dispute, opponents of gay marriage asserted that publicity about their identities would subject them to harassment and threats. The high court ruling in the California case sympathized with that assertion, stating that “applicants have demonstrated the threat of harm they face if the trial is broadcast.”

The Court has recognized the right of privacy and anonymity in disputes related to associational rights. In the landmark case NAACP v. Alabama in 1958, the Court said the civil rights group could not be compelled to release its membership lists. InMcIntyre v. Ohio Elections Commission in 1995, the Court said those circulating campaign literature could not be compelled to identify themselves to the state.

Copyright 2010 First Amendment Center

When everything comes out in the wash, we believe the American Civil Liberties Union will find that the county of Imperial sufficiently covered its behind so as not to violate the Brown Act. That in itself is troubling, because the county was anything but above board.