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BREAKING: 9th Circuit overturns release of Prop 8 trial recordings

9th Circuit Court of Appeals Prop 8 trial Tapes

By Jacob Combs

The 9th Circuit Court of Appeals just filed an opinion overturning a district court’s previous ruling to release the video recordings of the Perry v. Brown trial.  Today’s decision means that the recordings will remain under seal.  Prop 8’s opponents can now appeal the decision to the U.S. Supreme Court, which may exercise its own discretion about whether or not it wants to take the appeal.

The question of broadcasting the Perry trial has been a thorny one from the beginning.  District Court Judge Vaughn Walker, who presided over the 2010 trial (known then as Perry v. Schwarzenegger) challenging the constitutionality of California’s Proposition 8, petitioned the 9th Circuit to include the Prop 8 trial in a pilot program the Circuit was trying out in which cameras were allowed into the courtroom.  The 9th Circuit said yes, but the proponents of Prop 8 went to the U.S. Supreme Court (a notoriously camera-phobic body). Over 140,000 people signed a Courage Campaign petition to the courts asking that the proceedings be televised. The U.S. Supreme Court ultimately stayed the broadcast of the proceedings in a 5-4 decision.  Judge Walker withdrew Perry from the pilot program, and while the case was still filmed, the tapes (actually, digital recordings) were given to the litigants and placed into the court record under a seal.

After they appealed Judge Walker’s August 2010 decision to the 9th Circuit, Prop 8′s proponents filed a motion in district court to prevent Judge Walker from showing portions of the recordings, which he had done at a few speaking engagements.  The plaintiffs, along with a coalition of media companies, filed their own motion to have the court unseal the recordings and make them public.  At this point, Judge Walker had retired, and Judge James Ware, who replaced him, heard both sides’ arguments in district court.

In September 2011, Judge Ware ordered the tapes to be unsealed.  Prop 8′s proponents filed an emergency request with the 9th Circuit to stay the order, which was granted, and appealed the decision.  In a December 8 hearing on the matter, an appeals panel of the 9th Circuit showed skepticism towards the proponents’ argument that releasing the tapes could lead to retribution against their witnesses.  At the same time, the panel seemed wary to release the tapes, given Judge Walker’s promise to the litigants that they would be made only for his own personal use.

Keep in mind that today’s ruling has no impact on the 9th Circuit’s decision about the motion to vacate Judge Walker’s decision, the proponents’ standing to appeal or the larger question of the constitutionality of Prop 8.  The 9th Circuit consolidated the motion to vacate and the constitutional challenge into one docket item last November, meaning it will issue one decision on both aspects of the Prop 8 case at a later date.

Today’s ruling regarding the tapes can be found below, via Scribd.  Check back throughout the day for updates and analysis (which can be found below the text of the ruling).

[scribd id=80243052 key=key-2gvjj2yl3x6tpm46x7kj mode=list]

Update: From the summary of the ruling:

Each of these abuses of discretion manifests the same basic error: the district court failed to appreciate the nature of the statements that the trial judge had made to the litigants, the specific factual and legal context in which he made them, and the consequences of his having done so. The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word. The record compels the finding that the trial judge’s representations to the parties were solemn commitments. Upon this record, there is only one plausible application of the standard for sealing a record that is, arguendo, subject to the common-law right of public access: the interest in preserving the sanctity of the judicial process is a compelling reason to override the presumption in favor of the recording’s release. 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.

Update 2: Statement from Rick Jacobs, chair and founder of the Courage Campaign, on the 9th Circuit’s ruling:

“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.”

Update 3: Shannon Minter, legal director of the National Center for Lesbian Rights, shares his thoughts on the decision:

The court had tipped its hand on this issue at oral argument, so today’s ruling is not surprising.  The bad news is that the public will be denied the right to see this historic trial, which is painfully disappointing.  The good news is that the court based its decision on a very narrow basis that has no negative implications for how it will rule on the underlying issue of whether Prop 8 is unconstitutional.  The sole basis for the ruling is the court’s determination that Judge Walker made a commitment to the parties that the recording would not be released and that disregarding that commitment would undermine the integrity of the judicial process.

Update 4: In my initial reading of the ruling, it seems fairly clear that the judges of the 9th Circuit panel made their decision with one aim in mind: addressing the effect that releasing the Perry recordings could have on the public’s perception of the judicial system.  If there is one sentence that sums up the ruling, in my opinion, it is this one:

The interest in preserving the sanctity of the judicial process is a compelling reason to override the presumption in favor of the recording’s release.

In their decision, the judges do not even mention the purported harm to witnesses and supporters that the proponents of Prop 8 argued would inevitably come from a release of the recordings.  (Indeed, the panel seemed quite skeptical of this claim in last December’s hearing.)  Neither do they address the question of whether the trial recordings should be covered by the common-law right of public access, saying instead that they “simply assume, without deciding, for purposes of this case only, that the common-law presumption of public access applies to the recording at issue here and that it is not abrogated by the local rule in question.”

As the center point of its ruling, the panel focuses on two statements Judge Walker made during the district court trial in January 2010.  In the first, made after the Supreme Court issued a stay against the public broadcast of the trial, Judge Walker said he would continue “taking the recording for purposes of use in chambers,” but that his recording was “not going to be for purposes of public broadcasting or televising.”  The second statement comes from Walker’s opinion, in which he cites the Supreme Court’s stay and criticizes Prop 8’s proponents for not presenting more witnesses, even after “the potential for public broadcast in the case had been eliminated.”

In the 9th Circuit’s opinion, the proponents of Prop 8 relied upon these statements as promises that the trial recordings would never be made public.  They then argue that Judge Ware, in his ruling releasing the recordings, did not appreciate the weight of Judge Walker’s commitment during trial to use the recordings for his purposes only.

Also, in an interesting footnote on p. 22 (thanks to Kathleen for noticing this!), the 9th Circuit orders the district court not to return Judge Walker’s copy of the recordings, which he had voluntarily lodged with the court while Judge Ware’s decision was pending.


  • 1. Kathleen  |  February 2, 2012 at 9:57 am

    Of interest is the note on page 22 instructing the district court not to return Judge Walker's copy to him.

  • 2. Robin  |  February 2, 2012 at 10:15 am

    Maybe a copy will wind up on wiki-leaks someday.

  • 3. Piper  |  February 2, 2012 at 1:47 pm

    Or maybe someone who works for the Court and has access can get the recordings uploaded on "The Pirate Bay", which is in Sweden and not bound by U.S. laws. Then anyone in the world can download the video for watching.

  • 4. AnonyGrl  |  February 2, 2012 at 10:16 am

    Darn. Not unexpected, sadly, but darn. Will read the whole thing when I have time.

  • 5. TLKV  |  February 2, 2012 at 12:31 pm

    I've read it. It's fascinating.

  • 6. fsb  |  February 2, 2012 at 10:17 am

    Very disappointing.

    Also, sorry to do this but… two spaces after periods… not cool. 🙁

    Here’s a recent article on the subject

  • 7. Dana Jeanne  |  February 2, 2012 at 10:20 am

    This just makes "8ThePlay" even more important to put on at various colleges, universities and venues.

  • 8. Gregory in SLC  |  February 2, 2012 at 11:22 am

    Yes, a positive spin is the "8" plays are still important, educational and interesting.

  • 9. DaveP  |  February 2, 2012 at 3:00 pm

    Indeed. I'll be at the performance at Standford University during the first week of March (along with Ann – hi Ann!). If anyone else wants to join us, go online & get your tickets (they're free!) and let us know so we can meet up with you.

  • 10. mark  |  February 2, 2012 at 10:23 am

    Hopefully HBO is recording 8The Play and televising it soon

  • 11. Dana Jeanne  |  February 2, 2012 at 10:29 am

    I wish. So far there are no plans to do that, at least not as of the last time I asked AFER about taping it or something. 🙁

  • 12. elliom  |  February 2, 2012 at 10:29 am

    The take I get from this is:

    It would be embarrasing to the court to release the tapes, as there was a percieved assurance from Walker that the tapes wouldn't be released. This embarrassment would compromise judicial integrity. Preserving judicial integrity superseeds common law rights. Ergo, tapes won't be released.

    To me, this sounds a lot like when the executive branch decides to classify information, not because there's a risk to security, but because the information would be embarrasing to the EB. The court has placed itself above the law (right to access) in order to maintain its integrity.

  • 13. Fr. Bill  |  February 2, 2012 at 1:06 pm

    With all due respect, Bush vs. Gore in SCOTUS, did far more to compromise the integrity of the judiciary than the release of any tapes.

  • 14. elliom  |  February 2, 2012 at 1:35 pm

    You'll get no disagreement from me.

  • 15. Str8Grandmother  |  February 2, 2012 at 10:29 am

    Don't forget the 10 year rule footnote to page 13

    "Northern District of California Local Rule 79-5(f) provides that “[a]ny document filed under seal in a civil case shall be open to public inspection without further action by the Court 10 years from the date the case is closed,” with the proviso that “a party that submitted documents that the Court placed under seal in a case may, upon showing good cause at the conclusion of the case, seek an order that would continue the seal until a specific date beyond the 10 years provided by this rule.”

    Maybe in 10 years when all Sexual Minorities have the Civil Right to Marriage nobody will care and the tape will be released.

  • 16. ĶĭŗîļĺęΧҲΪ  |  February 3, 2012 at 1:23 am

    Something tells me the proponents will yet again seek an order to extend the seal.
    I hope the recordings will be leaked.

  • 17. lee  |  February 2, 2012 at 10:35 am

    bummer. let's hope the verdict on the constitutionality is different and that it comes soon!!

  • 18. 9th Circuit Says No to Re&hellip  |  February 2, 2012 at 10:35 am

    […] the Courage Campaign has an extensive analysis at it important Prop 8 Trial Tracker, which they will constantly update. Courage founder Rick […]

  • 19. Kate  |  February 2, 2012 at 10:36 am

    Well, we unfortunately expected this. What a joke that the proponents want Walker's word honored on THiS matter but want it thrown out on his ultimate decision. Once again, they want (and so far get) it both ways.

  • 20. Gregory in SLC  |  February 2, 2012 at 11:25 am


  • 21. Tyler  |  February 2, 2012 at 10:37 am

    This is a sad result, but it is probably the best result on all counts. First of all, I think the opinion was correctly reasoned. We know that Judge Reinhardt, at least, disagreed with the Supreme Court's decision in 2010 but he is bound by it. This is also right politically because it shows that the Ninth Circuit, with all its reputation, and the liberal panel that is deciding this case, is not going to do everything it can to rule in favor of our side. I think this ruling gives the panel credibility with the Supreme Court when it later strikes down Prop 8.

  • 22. James Sweet  |  February 2, 2012 at 10:38 am

    I very much agree with Shannon Minter. While it's a shame that the public won't see the tapes, the court's reasoning is as understandable as it is expected. I very much see their point, even if I think (in this case at least) the public good would be better served by releasing the tapes.

  • 23. Jyo  |  February 2, 2012 at 10:47 am

    Ruling: not expected. I do note with sadness, though, the unfairness that when the bigots complain about imminent harm, they received protection while the matter is being decided, but Prop 8 is causing us actual harm right now, and the court has never stood up to protect our marriage rights while hearing the case.

    fsb: Don’t want to get into a punctuation flame war on this blog, but the Slate article isn’t the end-all-be-all word on this matter. Any absolute rule on sentence spacing like “never put two spaces after a period” is too inflexible to handle the wide number of cases. A good designer would take into account things like the thickness of the font, the width of the lines, the amount of spacing between lines, (and importantly, the reading level of the expected audience), and use these factors in making a determination of how much separation should appear between sentences. Farhad Manjoo’s editorial tries to slap a one-size-fits-all rule on something that doesn’t deserve to be treated that way.

  • 24. MJFargo  |  February 2, 2012 at 10:59 am

    There's "integrity" and then there's "reasonable accounting for the judicial process." The public interest seems to outweigh a "promise" by a judge about something that has no foundation. If the taping didn't exist, of course, we wouldn't have an interest in seeing them. The fact that they do exist and there's interest–and no real harm to be had in viewing them–this all seems more damaging to "integrity" than any demonstration of it. If the table's were turned, and the plaintiff's didn't want their faces spread all over YouTube (or wherever) during the trial, that's one thing. When the trial is over, do we seriously think a court would then bury a tape of the proceedings. If Judge Walker's verdict is overturned by the 9th or SCOTUS, will the proponents STILL want the tapes sealed? Why?

  • 25. Lesbians Love Boies  |  February 2, 2012 at 11:02 am

    Good point!

  • 26. Sam  |  February 2, 2012 at 11:00 am

    I wonder if it means anything that the decision was written by Judge Reinhardt–might that mean, for instance, that the merits decision is written by Hawkins or Smith? I ask because the Supreme Court has a long history of overturning Reinhardt's opinion–thoughts, anyone? Any speculation on when the merits decision might be released?

  • 27. Book in Tracy  |  February 2, 2012 at 11:50 am

    My thoughts, too, Sam. And with the 'narrow' ruling, it could be open for SCOTUS to rule differently. Maybe a calculated ruling!

  • 28. Glen  |  February 2, 2012 at 11:02 am

    Does this mean they are only sealed for 'public' viewing, and that the tapes can be viewed by specific people for specific reasons under specific circumstances?

    For instance, if a media organization wants to view them, under controlled conditions, could they apply to do that?

    Or, other judges, the plaintiffs, the defendants, relevant organizations, etc….?

  • 29. MJFargo  |  February 2, 2012 at 11:14 am

    As I read it, only the court and its officers have access.

  • 30. Kathleen  |  February 2, 2012 at 11:36 am

    The media is the public in this context. This decision keeps in place the protective order that dictates by whom and under what circumstances the recordings can be viewed. See footnote 3 on page 8 for the relevant terms of that order.

  • 31. Jessica  |  February 2, 2012 at 12:05 pm

    It's also worth pointing out, that while the tapes are of public interest, the US Supreme Court stayed the recording of the trial. Walker was basically told he *couldn't* record the proceedings, but was allowed to do so anyway because he had a good reason, i.e. that the tapes weren't for broadcasting, or showing to the public, just for private use in chambers while composing his opinion.

    The 9th is basically backing up Walker's actions wrt to the original Supreme Court decision. If the tapes were intended to be unsealed after trial, the Supreme Court opinion would have kicked in and the recording would have had to cease.

    Either way, the public would never get to see a trial recording– either the tapes would never be released, or they would never have been made in the first place.

  • 32. MightyAcorn  |  February 2, 2012 at 12:19 pm

    Right, and the Proponents would have STRENUOUSLY objected to the recording being made if Walker hadn't stated clearly that it wasn't going to be broadcast. There was a big kerfuffle about that issue, which obviously made the Proponents very nervous–not because of any retribution against witnesses (which they knew was a smokescreen argument) but because they didn't want the public to see what they were doing and how weak their arguments were. A promise is a promise–and to be honest, Walker was pushing the envelope when he used the recordings in a public presentation. I always thought this case was weak even though I wanted it to somehow succeed in "freeing the tapes."

    Still, pursuing the matter probably cost the Proponents a bit of their hater budget, which is good, and maybe in a few years time after final rulings are issued by SCOTUS about Prop 8, someone can try again to have the recordings released. Even if we can't use them now to create public understanding of the campaign against marriage equality, they will stand someday as a powerful document of how our benighted culture denied citizens equal rights based on whom they slept with. History will paint that notion as ridiculous someday, and I believe that day is coming sooner than the haters think.

  • 33. Bryce  |  February 2, 2012 at 3:09 pm

    That is just not true. I mean it is just factually flawed.

  • 34. Kathleen  |  February 3, 2012 at 10:57 am

    The Supreme Court didn't stay the recording of the trial. That question wasn't in front of them. It only decided on the issue of whether the trial could be live broadcast to several federal courthouses around the country (5 w/in the 9th Circuit + 1 on NYC). If SCOTUS had forbidden recording, Walker would have been in violation of a SC order by recording, which he was not.

  • 35. Jessica  |  February 3, 2012 at 11:37 am

    Thanks for the correction– I was misremembering the SCOTUS decision; in my defense, it *has* been a couple years since I read it. =)

  • 36. Mark  |  February 2, 2012 at 12:08 pm

    “Prop 8′s opponents can now appeal the decision to the U.S. Supreme Court, which may exercise its own discretion about whether or not it wants to take the appeal.” Is there any indication that an appeal may be filed?

  • 37. Ruling: Prop 8 trial watc&hellip  |  February 2, 2012 at 12:38 pm

    […] and staged readings. The 9th Circuit has selected to keep a tapes themselves underneath seal: BREAKING: 9th Circuit overturns recover of Prop 8 hearing recordings [Courage Campaign's Prop 8 Trial Tracker] READ: The opinion, around […]

  • 38. chris hogan  |  February 2, 2012 at 12:59 pm

    What the HELL'S the point of appealing this to the U.S. Supreme Court? They didn't even want the trial taped. Do you honestly think they'll let us SHOW it? I think Judge Ware, or somebody needs to "misplace the recording" and then say it was stolen.

  • 39. Tyler  |  February 2, 2012 at 1:10 pm

    Agreed, we should just accept this loss, as we'll win on the bigger and more important point. No amount of videotapes (particularly now that the news doesn't care anymore) are worth the worldwide headlines that will happen soon saying that a federal appeals court has found Proposition 8 to be unconstitutional. And if this helps even one bit in making the Supreme Court more amenable to the Ninth Circuit's decision, it was worth it. I look forward to studying the tapes in 2020 when they're released.

  • 40. B Z  |  February 2, 2012 at 3:51 pm

    Actually, I was wondering about that: it says "10 years from the date the case is closed". Does that mean 10 years from August 2010 (when the district court decided the case), or 10 years from the time that all appeals are completed (i.e. not yet)?

  • 41. Ron  |  February 2, 2012 at 1:18 pm

    I think this is one case where AFER slipped up a bit by not being the first out of the gate to argue for release of the tapes. If they had gone and filed right away for release and said, yeah we know they are sealed but here's why they should be unsealed the argument would have been stronger. Instead it was the other side who cried foul first and said the showing broke the agreement, giving them the advantage. All they had to show is that yes, the agreement was broken by showing them.

  • 42. Jessica  |  February 2, 2012 at 1:42 pm

    But no argument for release of the tapes would ever really hold water, regardless of when it was made. The mere *existence* of the tapes is in contravention to a prior decision by the SCOTUS, except that there's a very narrow exception under which Walker was allowed to record the proceedings– that is, for private use in his chambers.

    The whole thing about the public having access to trial recordings was decided, what, on, like the second day of the trial? The Supreme Court nixed the cameras. The 8 proponents, as mentioned above, would have fought tooth and nail to make sure the trial wasn't recorded if they thought that said recordings would *ever* see the light of day. It was only because Walker promised they wouldn't be that the issue wasn't pressed further.

  • 43. Bryce  |  February 2, 2012 at 3:08 pm

    Jessica, cite me any (and I do mean any) authority that says that one Judge's assurance is binding on another. Your analysis would effectively freeze judicial review and the body of case law which grants the right to appeal the sealing of a given record.
    And, you're factually wrong in your reading of the Supreme Court decision. They DID NOT bar taping, but rather contemporaneous, live broadcast. They further did not contemplate any video of the trial which had been placed in the record (something to which Proponents did NOT object).
    Your analysis of this case is only possible in a world where you wilfully disregard entire parts of the record itself, in addition to nearly all relevant case law.

  • 44. Jessica  |  February 2, 2012 at 3:44 pm

    Well, not to be flip, but I'd say the above opinion is a pretty good indication that the 9th circuit thought Judge Ware's ruling was out of line…

    I haven't looked at the SCOTUS ruling since 2010, so it's quite possible you're right and it was only related to contemporaneous broadcast. I was under the impression it included recordings as well. If so, I stand corrected.

    What doesn't change is the fact that if the pro-8 group ever thought the tapes would be released, they'd have made sure that no recordings were made at all. Given how the Supreme Court ruled for the pro-8 side in 2010, I'd expect them to win that one, too. It's conjecture, yes, but it appears consistent with the previous ruling, at least based on the pro-8 arguments about possible witness intimidation, etc.

  • 45. MightyAcorn  |  February 2, 2012 at 4:33 pm

    Wasn't there an issue about why the Proponents didn't object officially to therecording, and they replied that they had been assured by Walker the tape would only be used in chambers? I haven't read the ruling yet, but I think that's germane to the issue. You know they would have filed an objection under any other circumstances.

  • 46. Jessica  |  February 2, 2012 at 4:58 pm

    That's my understanding, yes. I remember reading about the kerfuffle during the trial and it only got dropped because of Walker's statement about limited use.

  • 47. chet  |  February 2, 2012 at 5:04 pm

    Is there legal distinction between "broadcast", "recording", and "live broadcast"? I (wishfully thinking) wonder if Walker was ruling out the "live broadcast" only.

  • 48. Leo  |  February 2, 2012 at 5:12 pm

    The district court further abused its discretion by holding that the determinations made by the trial judge regarding the placement of the recording under seal did not bind a different judge presented with a motion to unseal—a conclusion that we regard as an “implausible” and “illogical” application of the law.

  • 49. Alyson  |  February 2, 2012 at 1:51 pm

    Two questions:

    1. Based on oral arguments is there some idea that the seal is lifted in ten years if not renewed?

    2. Any way to apply for a consentual release or partial release based on parties effected granting permission? ie: put it back on the people depicted to agree to releasing it? The only folks with a problem with that seems to be the actual lawyers. Their witnesses don't even care.

  • 50. Alyson  |  February 2, 2012 at 2:09 pm

    Just saw str8grandmothers earlier comment! Thx. Alyson

  • 51. RWG  |  February 2, 2012 at 4:20 pm

    I'm much more interested in seeing the list of NOM's donors made public.

  • 52. Rich  |  February 2, 2012 at 5:11 pm

    RWG, I'm with you. I suspect, in the Sate of Maine, we are going to find that Bishop Malone and the Catholic Diocese, spent thousands of dollars in support of NOM. What will be revealed, and I have made it a mission to expose, is that those thousands of dollars were paid for lies and scare tactics to threaten the good citizens of Maine. Our Attorney general and Commissioner of Education proclaimed in a news conference that the teaching of homosexuality (gay sex to them) does not happen in our state's schools. The Catholic Church (and NOM) would not back off this ridiculous argument. Bishop Malone and the Church now proclaim (because the older scare tactics have been disputed) that they are in danger of being imprisoned, forced by the scruff of their necks to marry "gay people" in their churches and will, effectively, be run out of town. This argument is ludicrous at best and truly evil at worst. The message we need to heed is that those who hate us and the prospect that we might get married have now turned the argument around such that they will now play the role of victim. This will include the argument that marriage equality will effectively shut down religious organizations. What they will not accept is that their organizations that may close because they accept federal funding, (tax dollars that you and I pay and they willingly seek) must not discriminate based upon settled law. But they want to discriminate and in the worst way. We can't let up on this.

  • 53. Stephen  |  February 6, 2012 at 10:27 am

    Ruling on Prop 8 constitutionality will be filed tomorrow by Ninth Circuit Court of Appeals by 10:00 a.m. PST

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