Karen Ocamb

9th Circuit Says No to Release of Prop 8 Trial Tapes

Filed By Karen Ocamb | February 02, 2012 6:30 PM | comments

Filed in: Marriage Equality, Politics
Tags: 9th Circuit Court of Appeals, AFER, American Foundation for Equal Rights, California, gay marriage, marriage equality, Prop 8 trial, Prop. 8, same-sex marriage

The 9th Circuit Court of Appeals decided not to release the Prop 8 trial tapes, TDK-VHS-videotapes.jpgoverturning the district court's earlier ruling that the public had a right to see the video recordings of the Perry v. Brown trial. The decision [pdf] can now be appealed to the U.S. Supreme Court.

Chris Geidner at MetroWeekly writes:

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

From the court's 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.

The American Foundation for Equal Rights (AFER) is the sole sponsor of the Perry lawsuit. They issued this statement (see full press release below):

"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," said Plaintiffs' attorney Theodore J. Boutrous, Jr. "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."

The Courage Campaign has an extensive analysis at its important Prop 8 Trial Tracker, which they will constantly update. Courage founder Rick Jacobs, who founded Prop 8 Trail Tracker when the court prohibited the broadcasting of the trial, released this statement:

"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. We sincerely hope this decision does not herald more bad news regarding the unconstitutionality of Prop 8. Lives are depending on it."

The American Foundation for Equal Rights issued this press release:

Today, the United States Court of Appeals for the Ninth Circuit issued a decision not to unseal the video record of the historic twelve-day public trial in Perry v. Schwarzenegger (now Perry v. Brown). The Perry case is a federal constitutional challenge to Proposition 8, which stripped gay and lesbian Californians of the fundamental freedom to marry. In a landmark August 2010 ruling, Proposition 8 was found unconstitutional by the Federal District Court.

Plaintiffs have steadfastly maintained that the trial videotapes should be unsealed based on the strong presumption of access to judicial records under the First Amendment and common law.

On September 19, 2011, United States District Chief Judge James Ware ruled that the tapes should be released, emphasizing that "Transparency is pivotal to public perception of the judiciary's legitimacy and independence."

The American Foundation for Equal Rights (AFER) is the sole sponsor of the Perry lawsuit.

"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," said Plaintiffs' attorney Theodore J. Boutrous, Jr. "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."

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. Their argument was elaborated in a Los Angeles Times op-ed by Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of the Press.

"The anti-marriage proponents of Proposition 8 will spend millions on a political campaign to publicize their views, yet they are doing everything they can to stop the public from seeing the weak case they put on at trial," said AFER Board President Chad Griffin. "In a court of law, only the truth and facts matter. And the facts are that the Proponents have no case. AFER will do everything we can to make sure that the American people see what happened at trial."

In order to ensure that the public is able to experience what happened at trial, AFER has teamed up with Broadway Impact to produce "8," a new play chronicling the historic twelve-day Perry trial. Written by Academy Award-winning screenwriter AFER Founding Board Member Dustin Lance Black, "8" had its much-heralded Broadway world premiere in September 2011. The production brought in over one million dollars to support AFER's efforts to achieve full federal marriage equality.

"8" is set to have its West Coast premiere at the Wilshire Ebell Theatre in Los Angeles on Saturday, March 3, 2012, for an exclusive, one-night-only fundraiser to benefit AFER. The production will feature Academy Award-winning actor, producer, screenwriter and director George Clooney along with an all-star cast, and be directed by acclaimed actor and director and AFER Founding Board Member Rob Reiner.

In addition to its Broadway and Los Angeles productions, AFER and Broadway Impact are licensing "8" to colleges and community theatres nationwide in order to spur action, dialogue and understanding.

(Crossposted at LGBT POV)


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