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JUDICIARY 2.0 -- Prop. 8, YouTube and the Supreme Court

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Does YouTube belong inside the Supreme Court?

More to the point: If the White House's own YouTube channel contains some 480 videos (including President Obama's weekly radio address and administration-oriented events), if Congress members (and those clamoring for elected jobs on Capitol Hill) consider their presence on the mainstream video sharing site as a given -- if both the executive and legislative branches of the federal government have jumped on the social media train -- then what's taking the judicial branch so long?

The gnawing technological gap was in display yesterday, when the Supreme Court halted a federal judge's decision to upload videos of the closely watched trial challenging California's gay marriage ban on YouTube. Federal trials are not televised, much less posted on video sharing sites. But U.S. District Judge Vaughn Walker, who is presiding over the gay marriage case, is clearly aiming for history -- and offering a civic lesson. "I've always thought that if the public could see how the judicial process works, they would take a somewhat different view of it," Judge Walker said.
It must be noted that the High Court's 8-1 ruling, with Justice Stephen Breyer dissenting, is temporary. The stay sought by proponents of Prop. 8, the successful ballot measure that limits marriage to heterosexual couples, have until tomorrow to halt the video uploads. YouTube awaits. In a statement to HuffPostTech, Steve Grove, YouTube's head of news and politics, wrote: "Though courts have a long tradition of allowing citizens to attend trials in person, YouTube gives courts an opportunity to further open up their proceedings to a global audience. We look forward to working with state and federal courts to bring more openness and transparency to judicial proceedings." YouTube aside, the Supreme Court sent a very loud and troublesome and altogether unacceptable message: We're stuck in the 20th century, technological changes be damned.

And it underlines a reality that, for many, the 220-year-old SCOTUS is arguably the most mysterious of our federal institutions.

Other than physically attending a hearing inside its four-story building in Washington, D.C., the average citizen cannot get a real time view of the Court's proceedings. Television cameras are not allowed inside the courtroom, thanks to former Chief Justice Warren Burger, who headed the High Court from 1969 to 1986. Outside posting its current docket and calendar online, which lists dates for specific oral documents on its virtual headquarters, SupremeCourtUS.gov feels and looks like the Web circa 1994, the year the White House and other federal agencies went online. By current standards, SCOTUS's Internet presence is more than dated, it's not at all user-friendly.

"I don't understand why the Supreme Court doesn't put its hearings online. Their explanations sound like pretty flimsy rationalizations, but usually when there's a rationalization, there's a fairly obvious motive behind it. What's theirs? Fear they'll look foolish? Fear they'll play to the cameras? Do they really lack that basic degree of confidence and self-control? I honestly don't get it," David Weinberger, a fellow at the Berkman Center for Internet & Society at Harvard University, wrote to HuffPostTech.

The reality is, unless you're a SCOTUS nerd -- following the latest news on the SCOTUSblog or Above the Law; reading up on the history of the current justices in Jeffrey Toobin's informative and entertaining "The Nine"; watching re-runs of SCOTUS-themed episodes of "The West Wing" (hey, Aaron Sorkin, after you're done with that Facebook movie, can you introduce Facebook to The Nine and a create an online-only fictional SCOTUS series starring Alison "C.J. Cregg" Janney as the first female Chief Justice?) -- court proceedings that impact each and everyone of our lives feel disconnected, downright anachronistic. At a time in which the Internet and technology have brought average citizens closer to their government, the judicial branch in general and SCOTUS in particular feel distant -- out of touch, even.

And likely to stay that way.

"It's almost as if the federal courts, the Supreme Court, the judicial branch in general, is immune to this ongoing Internet revolution. Elected officials have grappled with it more head-on, because they're constantly campaigning. They're in the thick of things and they've seen first hand how it's changed everything, from the way money is raised to how people self-organize," Joe Trippi told me in a phone interview. Trippi headed Howard Dean's online-fueled campaign in 2003 and a year later wrote the prescient book "The Revolution Will Not Be Televised: Democracy, the Internet, and the Overthrow of Everything." "Our judicial system is largely stuck in its old ways, and there's something sort of elitist about the whole thing -- 'we know what's good for you, we're gonna make a decision and that's it.' But eventually, they'll have to let the people in."

"When it comes to government, the Internet is all about transparency," Trippi continued, "and transparency has to come to the courts, too."

Make that increased transparency.

To be sure, court proceedings are public. A trial is a public event. Quoting former Justice Byron White, Paul Lippe, CEO of Legal OnRamp, a Facebook-meets-Wikipedia-meets-Linked In for lawyers, said: "The judicial branch is the only branch of government that justifies all its decisions in writing." Its entire record -- arguments and decisions -- are printed and published, he pointed out. In short, there was transparency in court proceedings long before the Internet has revolutionized and redefined our version of it. Still, Lippe concedes that the courts must adapt to a more Web-based generation and engage the online public at large. Wherever you stand on the gay marriage issue, "all interested stakeholders will benefit from a more transparent process, and in an ideal world most would come away with a greater respect for the argument and concerns of those with whom they disagree," Lippe explained.

Which takes us back to the Prop. 8 trial, a highly controversial and emotional case. A social media-driven gay grassroots community has been blogging, tweeting and Facebooking about the trial before it began yesterday. So have backers of Prop. 8. Opponents of same-sex marriage fear that releasing video of the proceedings to the public will subject witnesses to harassment and intimidation -- what courtspeak calls "irreparable harm." With its decision to halt the YouTube broadcasts, the High Court agrees.

"But the claim of 'irreparable harm' cuts both ways. The people testifying on behalf of gay marriage could be discriminated against. I'm not taking a side here -- that's just a fact," Don Tellock, a former assistant attorney general for the state of New York who's now a litigation partner at Schiff Hardin, specializing in information/data security and technology cases, told me. "There's a reason why trials are public -- we want to see justice being meted out so we know that everyone can get a fair shot. And in our new YouTube-driven era, in an era in which people want more information and want to be engaged, the it's not just definition of transparency that is changing, it's also the definition of what's public. Now, a public trial means that it should be available online for everyone to see and for everyone to share."

Here's hoping SCOTUS realizes that soon enough.

*** JUDICIARY 2.0: This is the first in a continuing series about social media's impact in our judicial system. Are you a lawyer or a law student? A concerned citizen? In the age of Twitter, Facebook and YouTube, how do you define transparency? What's public, and private? Should all trials be streamed online? Share your comments below.***

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