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Editorializing in favor of open records in the Prop 8 trial

Prop 8 trial

By Adam Bink

Sagesse points us towards two op-eds in favor of releasing the tapes from the Prop 8 trial. The first from the the head of the Reporters Committee for Freedom of the Press. Excerpt:

There is a strong historical precedent for making judicial records public, and there is a vast and compelling public interest in this particular case. It is simply time for the courts to acknowledge that video records are a natural, lawful and useful evolution in the American judicial tradition of open court proceedings and judicial records.

The beneficial influences of such a video record have already been demonstrated in studies showing that witnesses tend to be more truthful, specific and detail-oriented when facing a camera they believe is recording their testimony.

Alex Kozinski, the chief judge of the U.S. 9th Circuit Court of Appeals, argued in a 2010 letter to the Judicial Conference of the United States: “It is up to those of us who lead the federal judiciary to adopt policies that are consistent with the spirit of the times and the advantages afforded us by new technology.” This is particularly true when that technology brings us closer to the ideals upon which our judicial system was founded.

The concept of an “open court, before as many people as choose to attend,” is reinforced through the power of video: Virtually anyone who wants to “attend” or study a trial can now do so, and in a case such as Perry, where the lives of millions of Americans are materially affected by the outcome, such a development is clearly in the public interest.

Any time a court deals with a request to protect witnesses, it must weigh the potential harm to them against the potential disservice to the public interest. In this case, the plaintiffs in Perry argue there is no weighing of interests to be made: The trial is over; the witnesses have testified and their identities and testimony are already part of the public record. There is no record of harassment or intimidation, and there is no evidence that releasing the video records of the trial would cause it to happen.

But even if there were a legitimate concern about harassment, the disservice done to the public interest by not releasing the recordings would still outweigh that concern. The trial over Proposition 8 was a landmark case that affected millions of Americans, and they have both 1st Amendment and common law rights of access to the judicial record in all of its forms.

Well put.

The second by the NYTimes editorial board:

On Monday, a lawyer representing the victorious plaintiffs will be urging a federal district judge in San Francisco, James Ware, to grant a motion to make public the videotape of the 12-day trial. In the interest of fostering confidence in the judicial system, the motion should be granted. Proposition 8’s supporters insisted that the broadcast ban was needed to protect their two witnesses — experts who testified in open court and whose identities were well known. Their arguments are even less persuasive now.

The trial was over more than a year ago, and the 13-volume trial transcript is public and available on the Internet. Legally, there is a presumption of access to judicial records, a point made in a brief filed by a media coalition, including The New York Times Company.

The demand to keep the videotapes secret is as flimsy as the arguments for denying gay people the fundamental right to marry. The proposition’s backers will not be hurt in any way if the footage is released. The American public, on the other hand, stands to lose something very valuable if it is denied the chance to see and hear what happened in a critically important case on marriage equality.


  • 1. Ann S.  |  August 27, 2011 at 1:36 pm


  • 2. Ann S.  |  August 27, 2011 at 1:38 pm

    Another good editorial from the LA Times.

    Throw open the Prop. 8 video records
    It is time for the courts to acknowledge that video records are a natural, lawful and useful evolution in the American judicial tradition of open court proceedings.

  • 3. NYCBruce  |  August 27, 2011 at 2:54 pm

    NOM is "worried" that their two "witnesses" will be harrassed, huh? How does that outweigh the harrassment that millions of gay people endure on an ongoing, day-to-day basis? This argument is absurd on its very face, and should not be dignified with a full "hearing" in public court. NOM is simply dragging their feet, just as they have since the very beginning of the filing of the suit against Prop 8. They had no real defense: that was proved in their rag-tag performance during the trial. They were unable to prove their contentious claims of "harm" to marriage by making it more inclusive, so now they are filing frivilous suits against everyone who was involved with the trial, including the JUDGE. It is WELL past time to halt this charade. The proposition has been found to be unconstitutional. The ban should be lifted, NOW!

  • 4. Greg  |  August 27, 2011 at 6:13 pm

    I don't believe that NOM is actually concerned that their witnesses will harassed. I believe they are worried their witnesses will be ridiculed – and rightly so.

  • 5. Elizabeth_Oakes  |  August 27, 2011 at 6:40 pm

    Not just their witnesses–their fancy-schmancy pricey counsel didn't perform up to snuff, either. If I were a NOM donor and I saw Cooper saying "I don't know [what harm would come from same-sex marriage]" I probably wouldn't want to donate anymore. And Cooper's got a stake in not letting the entire universe see how ineffectual he was, too.

  • 6. MFargo  |  August 29, 2011 at 10:49 am

    I believe they knew that going in, and that's what all of this is about. The objected to the broadcast because they thought, "This is all we got, and we don't look good." All of these arguments around harassment and "state secrets" are a mockery of the court.

  • 7. Rich  |  August 27, 2011 at 7:08 pm

    "The demand to keep the videotapes secret is as flimsy as the arguments for denying gay people the fundamental right to marry." Please NY TImes and every other paper in the land: Shout it to the rafters!

  • 8. Ann S.  |  August 27, 2011 at 8:28 pm

    According to the Media Director for Marriage Equality USA (aka my brother), no rally is planned for Monday, but one is being planned for a week from Tuesday before the CA Supreme Court hearing.

  • 9. Elizabeth_Oakes  |  August 27, 2011 at 9:54 pm

    Didn't know you had family in the mix!!! The CASC hearing will be broadcast though, right? Or was the broadcast of theHorton hearing a one-time thingy?

  • 10. Ann S.  |  August 28, 2011 at 9:01 am

    The CASC hearing is supposed to be broadcast, yes.

  • 11. Sheryl, Mormon Mom  |  August 27, 2011 at 10:49 pm

    Thanks, good to know how early to get there. Looking forward to seeing everyone again.

  • 12. _BK_  |  August 27, 2011 at 11:18 pm

    What effect could releasing the tapes have on the DOMA trials?

  • 13. Ronnie  |  August 28, 2011 at 7:35 am

    Subscribing & sharing…….

    Seattle Men's chorus & Seattle Women's chorus say "It Gets Better"…………… <3…Ronnie:
    [youtube oS4drd-rBEA&list=PLE5718B7AFD6342EE&index=168&feature=plpp youtube]

  • 14. Mark M. (Seattle)  |  August 28, 2011 at 9:02 am

    Thanks for posting Ronnie, I hadn't heard about this. Was great to see so many of my friends involved.

    Furry Hugs

  • 15. VoiceofConcern  |  August 28, 2011 at 10:42 am

    As someone who attended a good portion of the Testimony, I can tell you that there is a great deal of difference between reading the Transcript and seeing it live. Just as reading a news article about a football game is not at all the same experience, as watching the game on TV. Yes, the same Stats & technical details can be expressed. But it's not the same. The difference IS vital.

  • 16. Sheryl, Mormon Mom  |  August 28, 2011 at 12:36 pm

    Just checking that I have my information correct so son and I will be in the right place at the correct time.

    The hearing begins 9:00 AM in the Philip Burton Federal Building, 450 Golden Gate Avenue, Courtroom 15, 18th Floor.

    Looking forward to seeing everyone again.

  • 17. VoiceofConcern  |  August 28, 2011 at 3:33 pm

    "Monday's hearing will be held in Judge Illston's courtroom (courtroom 10 on the 19th Floor)". For those who wish to attend. – I got this direct from Judge Ware's Clerk.

  • 18. Sagesse  |  August 28, 2011 at 1:28 pm

    Neb. high court clarifies same-sex custody rights

  • 19. Sheryl_Carver  |  August 28, 2011 at 5:39 pm

    For those attending Mon's hearing:
    If you are planning to take BART during the afternoon commute time, be aware that there may be problems due to ongoing protests that have closed stations in the past weeks. I doubt the hearing will last that long, but if you are staying in the city for other reasons, just wanted you to be aware.

  • 20. Sagesse  |  August 29, 2011 at 4:27 am

    Rick Jacobs in the Huffington Post.

    Release The Tapes And Heal a Nation

    "Knowledge is truth and the truth shall set you free."

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