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Prop 8 proponents file reply brief on motion to release video

Briefs Prop 8 trial

h/t to Kathleen for the Scribd link

By Adam Bink

Today, the proponents of Prop 8 filed a response to the Olson/Boies/Boutrous motion to unseal video recordings of the trial (as well as other briefs such as that filed by City/County of San Francisco).

Proponents’ arguments center on:

1) Whether or not the Supreme Court’s order extends merely to live streaming in federal courthouses, or all video dissemination beyond. Plaintiffs and, it appears, The Media Coalition argue that the order extended only to concurrent live streaming, while opponents argue it extends to all broadcasts in any form during and after the district court trial.

2) Countering the First Amendment argument (right to recordings) advanced by plaintiffs by noting that the Supreme Court has already dismissed this argument in the original ruling, and that the plaintiffs now appear to be saying that the Supreme Court is violating the First Amendment.

3) Arguing that witness intimidation could still happen as a result of the release of the video, and that certain people only agreed to testify as a result of Judge Walker’s reassurance that video recordings would remain private.

4) Arguing, oddly, that plaintiffs have no use for the recordings, and citing the City/County of San Francisco brief to make this point:

Appellees ask in the alternative that they be allowed to retain theircopies of the trial recordings. Opp. 10-11. But now that the trial is over and theappeal has been briefed and argued to this Court, there is no reason to anticipatethat Appellees will need access to the trial recordings again. Indeed, San Franciscoconfesses that “[n]o party currently seeks to use the video footage.” S.F. Opp. 1.

5) Their conclusion:

For the foregoing reasons and the reasons stated in our opening brief, the Court should order that former judge Walker cease further disclosures of the trialrecordings in this case, or any portion thereof, and that all copies of the trialrecordings in the possession, custody, or control of any party to this case or former judge Walker be returned promptly to the Court and held by the court clerk underseal. The Court should also deny Appellees’ motion to unseal the trial recordings.

The full brief can be found here:

[scribd id=53564220 key=key-21l58rfxcarnd34rs9yo mode=list]


  • 1. Kathleen  |  April 21, 2011 at 6:04 am

    For those who haven't seen these yet..

    Proponents' original request to have the recording returned to the court is here:

    Walker's Response to the request:

    Plaintiffs' Response to the request:

    City and County of San Francisco Response:

  • 2. Kathleen  |  April 21, 2011 at 6:05 am

    And the Media Coalition's request to intervene:

    … and file this brief:

  • 3. Gregory in Salt Lake  |  April 21, 2011 at 1:05 pm

    tx for all! Nice you have in one location to review 🙂

  • 4. Mark  |  April 21, 2011 at 6:10 am

    I would like to see the videos of the trial, but I think it would have been better handled through legal channels first. The fact that any portion of them were shown to the public scores a point for their side. We all have to play by the rules. Let us fight for the release of these videos, and once granted, the other side cannot argue this point. In as much as I despise them, I feel they are right in this case.

  • 5. Mark M. (Seattle)  |  April 21, 2011 at 6:34 am

    Per Judge Walker's responce to the alligations of wrong doing, he clearly felt it was within his right to use the clips. There has been no ruling on any wrong doing.
    Proponents are just running scared…scared that the light of truth might shine on their lies finally, exposing them for the hateful people thay are.

  • 6. Mark  |  April 21, 2011 at 7:24 am

    I totally agree with you…but let's not give them ANY ammunition. We will win in the end, and they know that. So they want to find anything they can right now. We need to make sure our hands are clean.

  • 7. Carpool Cookie  |  April 21, 2011 at 8:04 am

    "I think it would have been better handled through legal channels first. The fact that any portion of them were shown to the public…"

    Legal issues like this can become very gray…I would ask, Is a legal classroom "The Public"? Did Walker "broadcast" the clip, or did CNN? Can you even identify any specifics of the tape, visually, in the clip that aired? (It looks awfully tiny and blurry). And the wording of the discussion back from when they were made is flexible; They were made with the assurance that they were intended to be used for study by all parties, and for closing arguments. That WAS the intent of why they were made. But now it is later…so….??? I guess it's open to interpretation.

    "We all have to play by the rules. Let us fight for the release of these videos, and once granted, the other side cannot argue this point."

    Well, none of us here have control over the tapes, of course, so we don't have any rules to directly follow in this instance. Judge Walker has been right about everything else so far, so I'm willing to trust his judgment.

  • 8. Carpool Cookie  |  April 21, 2011 at 8:10 am

    "They were made with the assurance that they were intended to be used for study by all parties, and for closing arguments. That WAS the intent of why they were made."

    I don't know if I can clarify this statement of mine any, but from what I remember from the briefs, etc., the argument was about WHY would filming continue. WHY were these tapes being made? And the answer was, They are being MADE for counsel and the judge to study, and to use in closing arguments (and to show to those in the courthouse overflow rooms).

    But once that reason has been served….which it was….well, now it's debateable as to how binding that wording is, and what it even meant.

    Just because something was made for a certain purpose doesn't mean it will forever be used that way.

  • 9. Kathleen  |  April 21, 2011 at 6:12 am

    Interesting article from Lyle Denniston on scotusblog:

  • 10. Michelle Evans  |  April 21, 2011 at 6:24 am

    Like all other rulings (except Walker's) I am certain that this one will also be against LGBT people.

    It is a sad fact that the courts will always side on the fact that society must somehow be protected from us. Look at the idea of the Prop 8 appeal. There is no way the proponents had any right to have the decision stayed pending appeal. Regardless of the issue of standing, they could show no harm to themselves if the stay were lifted. Our side can easily show irreparable harm. But we lose, and we will most likely continue to lose. A sad fact that just makes me depressed.

    I sincerely hope that very soon I will be proven absolutely wrong in my theory, and equality and justice will prevail.

  • 11. Ann S.  |  April 21, 2011 at 6:25 am

    The argument that the Plaintiffs have no need for them is patently ridiculous, since both sides have threatened (promised?) to appeal to the SCOTUS if they lose.

  • 12. Alan E.  |  April 21, 2011 at 6:29 am

    Way OT

    I just got back from the <a>annual book sale benefiting the San Francisco Public Library. I could have spent the whole day there, but I only had a small bag, and I was one my lunch break. Got some good stuff!

  • 13. Kate  |  April 21, 2011 at 7:28 am

    Tell! Tell! What a fabulous event that must be.

  • 14. Alan E.  |  April 21, 2011 at 7:50 am

    For our friends' kid, a Garfield book that's a collection of 3 books for his birthday (hes turning 8). 2 Anne Rice books for my sister's birthday (Interview with the Vampire and The Tale of the Body Thief).

    For me I got:
    Contact by Carl Sagan
    I,Robot by Isaac Asimov
    The Martian Chronicles by Ray Bradbury (I was even humming the "F**k Me, Ray Bradbury" song when I found it…Google it)
    The Hobbit (my favorite Tolkien book)
    The Subtle Knife and The Amber Spyglass to complete my Golden Compass trilogy (Philip Pullman)
    The Sword of Shannara by Terry Brooks
    Temple of the Winds and The Pillars of Creation by Terry Goodkind
    [If you can't tell, I spent a lot of time in the SF/Fantasy section]

    Lastly, I found the book that my mom and I have always enjoyed together, "<a>Love You Forever." This book was at the very front of one of the "Children" tables propped up between two books. The wind was blowing through causing the book to look as if it was waving to me.

    All of them were $2 each. Hardcovers are $3. I only had a small bag and my lunch break, so I couldn't do too much damage. However, on Sunday, everything left is only $1, and I am seriously considering going. I tend to go crazy at library sales and have to practice extreme restraint.

  • 15. fiona64  |  April 21, 2011 at 9:21 am

    Which reminds me … the Humane Society Silicon Valley is having a garage sale on 4/30 — and I know there will be lots of books because I'm donating some of them. I'll post particulars soon. 🙂


  • 16. Kate  |  April 21, 2011 at 11:56 am

    A good day's score, indeed.

  • 17. Gregory in Salt Lake  |  April 21, 2011 at 10:26 pm

    "Love You Forever" will be a lovely book to share with your child. My kids loved that one…makes me tear up thinking about holding my children & reading to them. Like all…only not familiar with the Martian Chronicles.

    Hubby and I took 2 youngest children to dinner @ a Peruvian restaurant last night and then went to a college where I work to utilize computers and research facilities. It was a delightful outing! I feel blessed and grateful that my children accept my Ariel as my partner and enjoy his company. This is especially poignant as my 2 oldest children choose not to have any contact with us.

  • 18. Ed Cortes  |  April 21, 2011 at 6:41 am


  • 19. Ronnie  |  April 21, 2011 at 6:47 am

    subscribing…. : / …Ronnie

  • 20. Rhonda  |  April 21, 2011 at 6:58 am

    I love the way they call him "former Judge Walker", as if to diminish his credibility.

  • 21. Kathleen  |  April 21, 2011 at 6:59 am

    I know! That stuck out for me, too.

  • 22. Kate  |  April 21, 2011 at 7:29 am

    Aren't judges "always" judges, the way former presidents are still President So-and-So?

  • 23. fiona64  |  April 21, 2011 at 9:22 am

    Technically, former presidents are *not* still "President So-and-So." There is only one President of the United States — the sitting one. That former president are still sometimes called "Mr. President" is a courtesy … but a breach of etiquette nonetheless.


  • 24. Kate  |  April 21, 2011 at 9:24 am

    Ah, so saying "President Carter" is not techincally correct? Interesting what we learn here.

  • 25. Mark M. (Seattle)  |  April 21, 2011 at 9:30 am

    Where do you get your info Fiona? I have always been taught once a President always a President….just as once a Justice always a Justice, Judge, General, Senetor etc….

  • 26. fiona64  |  April 21, 2011 at 9:48 am

    Mark, I used to work for the DoD; it's part of presidential protocol — and we were all drilled in it, because my office was responsible for the funeral details of past presidents who lived in the 12 Western states. However, I will provide you this link on the matter:

    I guess I may be feeling tetchy because I'm still ill, but it seemed like you were implying that I made it up. :-/

  • 27. fiona64  |  April 21, 2011 at 9:51 am

    A bit more detail on forms of address, specifically dealing with former and current presidents:

  • 28. fiona64  |  April 21, 2011 at 9:52 am

    And … what Emily Post has to say on the matter.

  • 29. Mark M (Seattle)  |  April 21, 2011 at 10:33 am

    Where in the world would you have gotten the idea that I didn't believe you? I asked you a simple question……
    Please don't read extra into my posts….you will KNOW when I am calling you out or disagreeing with you.
    Thank you for the links none the less.

  • 30. Mark M (Seattle)  |  April 21, 2011 at 10:44 am

    How rude of me…..didn't mean to gloss over your comment about being ill.
    So sorry you aren't feeling well. Hope you're back in the pink soon my friend.

  • 31. fiona64  |  April 22, 2011 at 2:48 am

    Thank you, Mark. I've had a relapse; what voice I had is mostly gone and I'm chugging Robitussin. Yet, because I'm no longer contagious (just miserable), I'm in the office. Hooray, LOL. (And yes, I get grumpy when I don't feel well …)

    Fiona (who can't wait to read about the wedding)

  • 32. Alan E.  |  April 21, 2011 at 7:53 am

    Check out the latest blog post from Louise (Hi!). He basically points out and confirms everything we were saying and speculating about the tour last summer.
    <a href="
    ” target=”_blank”>

  • 33. Carpool Cookie  |  April 21, 2011 at 8:59 am


    This could get more and more interesting….I bet Brian and Maggie and their devil minions are racking their brains, trying to remember what else they discussed with him.

    Sleep tight, fellas!

  • 34. nightshayde  |  April 21, 2011 at 9:17 am

    Louis — not "Louise."

    (Sorry – that totally jumped out at me. I'm a proofreader. Occupational hazard and all…)

    Hi, Louis! =)

    Wow – it feels really nice to say that & mean it in a truly friendly way & not in a snarky witch way.

  • 35. Kate  |  April 21, 2011 at 9:24 am

    Indeed. I will simply never to get to that. And I love it.

  • 36. Alan E.  |  April 21, 2011 at 9:25 am

    Yeah that's my bad. I work with a Louise, and I had just finished writing her an email.

  • 37. nightshayde  |  April 21, 2011 at 9:41 am

    Darn fingers! I just washed 'em & now I can't do a THING with 'em!

  • 38. Sagesse  |  April 21, 2011 at 7:58 am

    Long weekend reading.

  • 39. Sagesse  |  April 21, 2011 at 9:45 am

    Regardless of the legal outcome, it seems ludicrous to claim that there is somehow greater risk for a paid expert witness from having the recordings of the trial made public. They are public figures… anyone who wants to harass a university professor can find him. Every word he said is in the public transcript. If every future expert witness is going to be deterred, having a video record hardly seems to be a deciding factor.

  • 40. Mark M (Seattle)  |  April 21, 2011 at 10:59 am

    Agree completely…..never could understand how the Supremes could rule otherwise.

  • 41. Carpool Cookie  |  April 22, 2011 at 4:20 am

    I don't understand the restrictions, either. If you can't find an expert witness who isn't afraid to broadcast their opinion or their findings…..mmmmmm…..well, maybe that tells you something about your defense?

    Top experts already have great visibility, anyway…via publishing papers, speaking at conferences and as news commentators, and doing book tours.

  • 42. fiona64  |  April 22, 2011 at 5:46 am

    Yep. It isn't as though their "experts" are silent in the mainstream media.


  • 43. Josh  |  April 21, 2011 at 11:25 am

    Recently I've gotten the warning, "A script on this page is causing Internet Explorer to run slowly. If it continues to run, your computer may become unresponsive. Do you want to abort the script?" when on this site.

    What's up with that?

    I know this is off topic, but it's happened on all of the computers I use to check for news on this site so it's not isolated to this computer or this version of Explorer.

    What is P8TT doing to cause this slow page loading and warning message? It's really annoying and I hope whatever you've done will be removed because it makes this site run like crap.

    I hope someone can explain what you've changed to this site and why.

    Thank you!

  • 44. Sagesse  |  April 21, 2011 at 2:24 pm

    And once more…

    Prop. 8 judge speaking at GU tonight

  • 45. Sagesse  |  April 21, 2011 at 11:00 pm

    Good discussion of LGBT adoption in VA.

    Virginia rejects gay adoptions: Chat with Human Rights Campaign

  • 46. Sagesse  |  April 21, 2011 at 11:12 pm

    Know thine enemy. This would have been written testimony?

    The Defense of Marriage Act: A Measure for Children and Families

    Testimony before
    Subcommittee on the Constitution
    Committee on the Judiciary
    United States House of Representatives

    April 15, 2011

  • 47. Kathleen  |  April 21, 2011 at 11:54 pm

    …complete with the requisite scare quotes.

  • 48. Michael Adrian  |  April 22, 2011 at 7:07 am

    What a load of garbage. To Mr. Chuck Donovan: Call us when you've got something new to say on the subject that hasn't been totally and successfully disproved already.

  • 49. Sagesse  |  April 21, 2011 at 11:31 pm

    A petition seeking repeal of DOMA

    Tell Congress to Repeal the Defense of Marriage Act (DOMA)

  • 50. Sagesse  |  April 21, 2011 at 11:42 pm

    Perspective on organizing for marriage equality in New York.

    Who Do We Have To Blow To Get Gay Marriage? The 2011 Version

  • 51. Sagesse  |  April 21, 2011 at 11:52 pm

    Is this what political power looks like?

    Bracing for possible Hill attack on D.C. marriage

  • 52. Ronnie  |  April 22, 2011 at 1:05 am

    Watch: Rapper Lil B Says He's Receiving Death Threats for 'I'm Gay' Album Title

    "I got major love for the gay and lesbian community, and I just want to push less separation and that's why I'm doing it.I hope GLAAD sees that I'm taking initial steps to break barriers." ~ Lil B

    (me) Well somebody certainly doesn't like that Lil B supports LGBT people…..

    "People been hitting me up like, 'I'm gonna bash your head in,' 'you f—-t,' 'I'm gonna kill you.'…I'm not gonna stop and I'm not scared of anybody on earth. That's why I [titled the album I'm Gay] and nobody gonna stop me."

    (me) Good on you Lil B, don't let some homophobic neanderthal intimidate you.

    In other news:

    Italian MP Paola Concia and Her Partner Harassed in Public: 'They Should Have Sent You to the Ovens'

    (me) There are not enough words…WTF? & some passers-by actually sided with the homophobic sociopath…in ROME no less…(sighs) …. : / …Ronnie

  • 53. Steve  |  April 22, 2011 at 1:13 am

    No surprise there. Italy is extremely socially conservative, backwards and generally has a macho culture. It's the least gay-friendly country in western Europe in fact.

  • 54. Rhie  |  April 23, 2011 at 4:47 pm


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