Oppositions filed against motion to seal Prop. 8 trial video

The debate over cameras in the courtroom continued in California recently, as a series of court papers were filed in response to last week's motion concerning the use of recordings of last year's trial court proceedings challenging Proposition 8, California's ban on same-sex marriage.

Last week's motion by the proponents of Proposition 8 "stands the First Amendment on its head," said the response brief from the plaintiffs in Perry v. Schwarzenegger, the trial challenging the constitutionality of Proposition 8.

The proponents of Proposition 8 requested last week that the U.S. Court of Appeals in San Francisco (9th Cir.) stop the further disclosure of the trial video and order all parties to return copies of the recordings to the appellate court, to be held under seal. The motion, filed on April 13, was in response to a speech in February given by the now-retired judge who last year presided over Perry v. Schwarzenegger. During his presentation, former judge Vaughn Walker played a few minutes of the Perry recordings for the audience. The speech was broadcast by C-SPAN.

Last Thursday, Walker wrote a letter to Molly Dwyer, clerk for the Ninth Circuit, in response to the motion, in which he explained his reasoning and argued for the disclosure of the trial recordings. The parties challenging Proposition 8, the original plaintiffs and the city and county of San Francisco, filed briefs on Friday opposing the motion. Yesterday, a media coalition moved to intervene in the case and filed its own brief in opposition of the proponents' motion. The Reporters Committee for Freedom of the Press joined in the coalition, which also includes Los Angeles Times Communications, The New York Times Co., Fox News and The Associated Press.

Walker's letter said he "decided that in the presentation on February 18 at the University of Arizona it would be permissible and appropriate to use the actual cross-examination excerpt from Perry, instead of [a] re-enactment." His letter emphasizes the public nature of the trial itself, and that "the video of the entire Perry trial was made available to the parties in that case and portions were used in the closing arguments in the district and made part of the record before the case went on appeal."

The plaintiffs' opposition brief urges the court to deny the proponents' motion and order the immediate public release of the entire trial video. They assert that the proponents' "fierce determination to shield [public] access" to the trial video "directly conflicts with this Nation’s constitutional commitment to public and open judicial process and serves no legitimate public end." Noting that the transcript of the trial is available to the public and that actors have produced recreations of the testimony, the plaintiffs argue that the public would benefit from seeing "the rest of the actual witnesses rather than being limited to actors' portrayals."

The city and county of San Francisco's opposition also argues that the proponents' motion should be denied. Their brief disputes that the release of the video would be harmful to the proponents or their witnesses. "There is simply no reason to believe that the release of the trial video poses any risk to Proponents or their witnesses — particularly when . . . all of the information captured in the video is already public."

The media coalition's brief asks the court to unseal the video recordings, arguing that the recordings are presumptively public records. Even if the proponents were able to provide significant evidence supporting their motion, "a substantial public interest exists in allowing public access to the video recordings," which may outweigh the proponents' argument, the brief argues. "As this case winds its way through the state and federal court system, it continues to be closely watched because the legality of California's proposition 8 ban on same sex marriage is of profound interest to millions," the brief says. "Permitting public access to the video recordings of the trial proceedings will only enhance the public's understanding of and provide confidence in the Court's ultimate resolution of this matter."

Theodore J. Boutrous Jr., a lawyer for the plaintiffs, said the proponents' desire to keep the recordings from the public "demonstrate[s] the fact that they have no case and that their witnesses did such a poor job of explaining why millions of people should be denied the right to marry." Boutrous said that a "judicial record in the classic sense is actually a recording of a judicial proceeding." In the midst of the trial, the ability to utilize those recordings in order to prepare closing statements was revealing, he said. "There's no substitute for seeing the witness, hearing the questions, seeing the reactions."

The Ninth Circuit has not indicated when it will rule on the motion.