Metro Weekly

BREAKING: Ninth Circuit Says Prop 8 Tapes Should Not Be Released, “Assurances” Given at Trial

The U.S. Court of Appeals for the Ninth Circuit ruled today that the videotape of the trial over the constitutionality of Proposition 8 — Perry v. Brown — should not be released, reversing U.S. District Court Judge James Ware.

From the court’s unanimous opinion, authored by Judge Stephen Reinhardt:

We resolve the narrow question before us on a narrow basis when we conclude that the district court abused its discretion by ordering the unsealing of the recording of the trial notwithstanding the trial judge’s commitment to the parties that the recording would not be publicly broadcast.

. . .

We therefore reverse the order of the district court as an abuse of its discretion and remand with instructions to maintain the recording under seal.

Later, the court discussed the issue of how it viewed Ware as having abused his discretion in finding that the videotape should be unsealed. Reinhardt wrote:

We conclude that there is a compelling reason in this case for overriding the common-law right [to access of trial recordings] and that, in failing to identify that reason on the basis of the record before it, the district court abused its discretion. The reason is that Proponents reasonably relied on Chief Judge Walker’s specific assurances—compelled by the Supreme Court’s just-issued opinion—that the recording would not be broadcast to the public, at least in the foreseeable future.

The court went on to detail:

Interpreted in their full context, at least two of Chief Judge Walker’s statements amount to unequivocal assurances that the video recording at issue would not be accessible to the public. No other inference can plausibly be drawn from the record.

First, following the Supreme Court’s issuance of a stay against the public broadcast of the trial, Chief Judge Walker stated in open court that he was going to continue “taking the recording for purposes of use in chambers,” but that the recording was “not going to be for purposes of public broadcasting or televising.” It would be unreasonable to expect Proponents, upon reading the Supreme Court’s opinion and hearing Chief Judge Walker’s statement in response, to foresee that a recording made for such limited purposes might nonetheless be released for viewing by the public, either during or after the trial. …

Second, Chief Judge Walker stated in his opinion—citing the Supreme Court’s temporary and permanent stays—that “the potential for public broadcast in the case had been eliminated.” Perry, 704 F. Supp. 2d at 944 (emphasis added).

The ruling could be appealed by the plaintiffs, who are backed by the American Foundation for Equal Rights. Asked whether they plan to appeal the ruling, AFER spokesman Brandon Hersh told Metro Weekly, “We’re keeping our options open.”

In AFER’s statement regarding today’s decision, plaintiffs’ attorney Theodore J. Boutrous, Jr., said, “We think Chief Judge Ware had it right, but we are looking at the big picture and hoping for a ruling soon on the merits affirming the district court’s judgment that Proposition 8 is unconstitutional.”

Regarding the Proposition 8 proponents, he said, “It speaks volumes that the proponents of Proposition 8 are so insistent about concealing the videotaped record of this historic trial. They know the videotape would expose their baseless campaign of fear and let the public see the powerful evidence we submitted showing that Proposition 8 flatly violates the United States Constitution. That’s why they fought so hard to keep the tapes secret.”

In its release, AFER notes that “[a] robust coalition of media companies and organizations that includes the Los Angeles Times, CNN, The New York Times, FOX News, NBC News, Dow Jones & Co. and The Associated Press filed a brief in support of the plaintiffs’ effort to release the trial tapes.”

The Courage Campaign chair, Rick Jacobs, issued a statement, saying, “We are disappointed in the 9th Circuit’s decision to not release the videotapes from the historic Prop 8 hearing. In our minds, it never made sense that transcripts from the hearing could be easily accessed by anyone but not the videotapes. That just proves that our cowardly opponents knew they did a poor job defending their bigotry and homophobia in court.”

National Center for Lesbian Rights executive director Kate Kendell said in a statement, “The court’s decision to keep the people from seeing this public record of one of the most important trials in American history is extremely disappointing. As those lucky enough to have watched the trial saw, the defenders of Prop 8 were unable to offer a shred of evidence to support it, while the plaintiffs presented a mountain of compelling reasons to strike down this unjust and damaging law. The public deserves the same chance to see the facts for themselves.”

Of the underlying question about the constitutionality of Proposition 8, Jacobs said, “We sincerely hope this decision does not herald more bad news regarding the unconstitutionality of Prop 8. Lives are depending on it.”

READ the opinion: 1117255.pdf

[NOTE: This post was updated, with the final changes made at 2:03 p.m.]