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12 years later, recordings of California same-sex marriage trial are finally public

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  1. Court Access
RCFP attorneys have supported KQED’s years-long battle to unseal recordings of the historic same-sex marriage trial.
Screenshot of video showing 2010 bench trial in Perry v. Schwarzenegger
A screenshot of a video recording of the 12-day bench trial in the same-sex marriage case originally known as Perry v. Schwarzenegger. (Courtesy of the U.S. District Court Northern District of California)

More than 12 years after a federal court struck down a state constitutional amendment banning same-sex marriage in California, members of the public can finally watch video recordings of the landmark civil rights trial.

The recordings were publicly released last week following KQED’s successful legal battle for access to the videos — a fight attorneys for the Reporters Committee for Freedom of the Press have supported for years.

“While it is great news that the recordings of this landmark trial have finally been made public, it never should have taken 12 years to get them unsealed,” said Shannon Jankowski, a staff attorney for the Reporters Committee for Freedom of the Press. “Thanks to KQED’s tireless legal efforts, journalists, historians, and documentarians will be able to bring much more detailed and complete information to the public about this historically significant case for decades to come.”

The 12-day bench trial in the case — originally known as Perry v. Schwarzenegger — concerned Proposition 8, a state constitutional amendment banning same-sex marriage in California. At the conclusion of the 2010 trial, the U.S. District Court for the Northern District of California ruled that Proposition 8 was unconstitutional.

Video recordings of the bench trial were entered into the record but filed under seal, making it impossible for members of the public to watch attorneys from both sides make their respective cases and hear testimony from historians, psychologists, and same-sex marriage activists.

In 2017, KQED, Northern California’s NPR and PBS member station, filed a motion with the district court to unseal the video recordings. But several proponents of Proposition 8 opposed the unsealing, sparking a drawn-out legal battle that lasted the next five years.

As the case wound its way through the federal courts, the Reporters Committee — joined by large news media coalitions — filed four friend-of-the-court briefs in support of KQED’s efforts to make the recordings public. In each filing, Reporters Committee attorneys emphasized the importance of accessing the recordings for journalists, historians, and documentarians.

“Though transcripts of the trial are available, access to the Recordings will provide the media and the public with a far more rich, informative understanding of the trial than can be obtained from even the most perfect transcription,” Reporters Committee attorneys argued in a July 2020 friend-of-the-court brief submitted to the U.S. Court of Appeals for the Ninth Circuit. “A recording, unlike a transcript, conveys body language, inflection, tone of voice, and other contextual information vital to a complete understanding of a courtroom proceeding.”

After the district court held that the recordings should be made public, and the Ninth Circuit dismissed their appeal, the proponents of Proposition 8 asked the U.S. Supreme Court to take up the case. However, the justices denied their petition on Oct. 11, clearing the way for the video recordings to be released. The next day, the district court began publishing the recordings of the trial on its YouTube page.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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