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Promises of confidentiality require sealing of Prop. 8 video

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Video recordings of the contentious trial that struck down California’s ban on same-sex marriage will likely not be released to…

Video recordings of the contentious trial that struck down California’s ban on same-sex marriage will likely not be released to the public after all, following a federal appellate court’s reversal today of a lower court’s finding that there was no compelling reason for the tapes to remain sealed.

The unanimous opinion by the three-judge panel of the U.S. Court of Appeals in San Francisco (9th Cir.) emphasized the narrowness of its ruling, which turned entirely on the trial court’s guarantees to the parties that the tapes would not be publicly disclosed.

The trial judge’s “commitments were not merely broad assurances about the privacy of judicial records in the case; they could not have been more explicitly directed toward the particular recording at issue,” the court said in Perry v. Brown (formerly Schwarzenegger). “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 ruling is the latest in a controversy that encompasses the contention over Proposition 8, the voter-approved measure that banned same-sex marriage in California, as well as an ongoing debate over whether federal courtroom proceedings can be broadcast publicly.

The 2010 trial challenging the constitutionality of Proposition 8 was originally set to be recorded and video streamed to courtrooms across the United States, per request of the plaintiffs in the case. Two days into the trial, the U.S. Supreme Court — without expressing any view on whether federal trials should be broadcast — barred the airing of the trial, ruling that judicial amendment of local rules that allowed for the broadcast appeared to be procedurally incorrect. The court continued to tape the proceedings, but only for court records.

In the trial, U.S. District Court Judge Vaught Walker struck down Proposition 8 as unconstitutional. The tapes of the proceedings were then sealed as part of the court record, but then became an item of increased interest when the judge’s fairness in the trial was called into question.

Some Proposition 8 supporters said that Walker, who is openly gay and in a committed relationship, was personally biased in his ruling and that the decision should be thrown out. Opponents of the ban countered and requested that the tapes of the proceedings be released to prove he was fair and professional in his conduct.

Last September, U.S. District Court Chief Judge James Ware, who took over the case after Walker retired, sided with gay marriage advocates and a coalition of media outlets, including The Reporters Committee for Freedom of the Press, who argued that the public and the press have a common law right to view the high-profile proceedings.

Ware ruled that because there was no objection by either side when the recordings were admitted as part of the trial record, the common law right of access to civil court proceedings applied. Because the defense failed to show a compelling reason that outweighed this right of public access, there was no reason to continue to seal the recordings, the judge held.

Most U.S. courts have held that there is a qualified First Amendment right of access to civil courts and that judges must, before restricting public access to cases, articulate specific, on-the-record findings demonstrating that closure is necessary to serve a compelling government interest and narrowly tailored to serve that interest.

The Ninth Circuit, however, has declined to rule on whether this constitutional right exists. Instead, it relies on the common law, which requires the balancing of the interests of the parties involved with those of the public and the press.

The distinction is significant because of the lower standard parties must meet to close records subject only to a common law right of access, which include the Proposition 8 trial recordings.

“Upon this record, there is only one plausible application of the standard for sealing a record that is, (arguably), 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,” the appellate court wrote.

In emphasizing the narrowness of its holding, the court noted that it was not deciding whether the First Amendment right of public access applies to civil proceedings and records, nor "resolv[ing] any of the policy questions with which courts are now struggling about how to reconcile the traditional concept of 'openness' in judicial proceedings with the development of technology that has given the term a new meaning."

The court remanded the case to the trial court with instructions to maintain the recording under seal, although the plaintiffs could ask the Supreme Court to review the issue. The appeal of the trial court decision to overturn Proposition 8 is still pending before the Ninth Circuit.