Legal Commentary

Much Less in This Statistic Than Meets the Eye

By Eugene Volokh

?By January 8, 2010, the Court had received 138,574 comments, all but 32 of which favored transmitting the proceedings,? writes the dissent in the Prop. 8 broadcasting case.

Nor do I think that the dissent?s use of that statement later in the opinion is that helpful: ?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.? (I assume that these comments were received through the Court?s Web site.) [UPDATE: Ed Whelan, a critic of the district judge?s actions in this case reports that ?138,248 of the supportive responses were signatures solicited by an activist group called the Courage Campaign that launched a petition drive urging its supporters to sign their names to a letter to Walker that ?insist[s] that the trial of Proposition 8 be televised.?? He also reports that he believes ?the petition was hand-delivered? because the court ?refused to accept electronic submissions.? I appreciate the correction, but I don?t think it affects my bottom-line analysis.]

The 138,574 number suggests that the comments were the result of a campaign that was quickly organized by supporters of broadcasting. The number doesn?t say much about whether members of the public more broadly ? including those members of the public that might have special expertise on the subject ? had enough time to learn of the issue, consider it, and comment on it.

None of this is dispositive of the merits of the stay petition, of course; nor do I mean to fault the organizers of the pro-broadcasting comment campaign ? they were exercising their constitutional rights, and apparently with considerable effectiveness. I just wanted to point it out as a weak use of evidence (something that I?ve written and blogged about before in other contexts).

UPDATE: Commenter PeteP suggests that the transmission to the five other courthouses ?exponentially increases the likelyhood that someone will record it ( off the screen / audio feed ) with a cell phone etc in one of those remote locations, where the presiding judge can not personally control security.? I suppose that?s possible, but I take it that the standard remedy for this risk ? present in every trial ? is to have marshals monitor the audience for such behavior. So long as the marshals in the other courtrooms are instructed to monitor the same way as they would be in the main courtroom, does the risk of unauthorized cell-phone-recording really increase that much? Maybe it does; I?m just not sure that the somewhat increased risk is enough to weigh heavily in the balance of hardships.

Full post as published by The Volokh Conspiracy on January 13, 2010 (boomark / email).