There’s no good reason, a federal judge ruled Monday, to keep secret the court-recorded video of last year’s San Francisco trial challenging the constitutionality of Proposition 8—the ban on gay marriage in California. Defenders of the proposition, who are still before the U.S. Ninth Circuit of Appeals arguing their right to that status—even though state officials declined the role—say they will take the video access issue to the Ninth Circuit and even to the U.S. Supreme Court if necessary. They argue that their witnesses need protection from the exposure that a video release would bring. Kirsten Berg explains for he Reporters Committee for Freedom of the Press.
Video recordings of the contentious trial that struck down California’s ban on same-sex marriage should be released to the public, a federal judge in San Francisco ordered Monday, ruling that there is no compelling reason that the tapes should remain sealed.
The courts 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 2010 proceedings.
The defendants in the case, backers of the voter-approved Proposition 8 that bans same-sex marriage in California, had claimed that releasing the video would defy a previous decision by the U.S. Supreme Court and a local court rule about broadcasting court proceedings and could have a chilling effect on expert witnesses such as those who testified against gay marriage in the trial.
The court dismissed these arguments, calling the latter claim an “unsupported hypothesis.”
Instead, the court ruled that because there was no objection by either side when the recordings were admitted as part of the trial record, that the common law right for the public to access to civil court proceedings applied. Their decision was narrow — because the defense failed to show a compelling reason that outweighed this public right of access, there is no reason to continue to seal the recordings.
“Foremost among the aspects of the federal judicial system that foster public confidence in the fairness and integrity of the process are public access to the record of judicial proceedings,” U.S. District Court Chief Judge James Ware wrote in his ruling. “Consequently, once an item is placed in the record of the judicial proceedings, there must be compelling reasons for keeping that item secret. . . . the Court concludes that no compelling reasons exist for continued sealing of the digital recordings of the trial.”
Ware’s order is set to take effect Sept. 30, giving the defendants time to appeal his decision and delay the release. At least one group of Proposition 8 supporters argued against releasing the tapes has announced it will contest the ruling.
“Today’s decision is bizarre for many reasons, but mostly because it defies a direct order of the U.S. Supreme Court,” Andy Pugno, an attorney for the Protect Marriage coalition, said in a statement issued Monday. “We will appeal immediately to the Ninth Circuit and ask them to restore some sanity to this case.”
The controversy surrounding the release of the tapes of the proceedings lies both in the contention over Proposition 8 and in an ongoing debate over whether federal courtroom proceedings can be broadcast publicly.
The 2010 trial challenging the constitutionality of the same-sex marriage ban was originally set to be recorded and video streamed to courtrooms across the U.S., 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.
Although the transcripts and other court documents in the trial are available to the public, proponents said that the video recordings are especially important for evaluating the trial because they capture the nuances of the testimony.
“The recordings are significant because they relay information that simply can’t be relayed by a plain transcript,” said Rochelle Wilcox, one of the attorneys working with the collection of media outlets that argued to release the tapes. “The public can best understand and evaluate for themselves the proceedings in this historic trial if they can observe the actual testimony and are not relegated to the transcript or reenactments based on the transcript.”
In Monday’s decision, Ware declined to rule on the broader issues of broadcasting courtroom proceedings and whether there is a First Amendment right of access to court documents. The decision to release the tapes because there was no compelling reason to keep them sealed, however, did reinforce the common law right of the public to access judicial records.
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.
But courts such as the U.S. Court of Appeals in San Francisco (9th Cir.), the federal appellate court with jurisdiction over federal trial courts in California, have declined to rule on whether this constitutional right exists, Ware noted in his opinion. Instead, they rely on the common law, which requires the balancing of the interests of the parties involved with those of the public and the press, he added.
Despite the lower standard that parties have to prove to close records subject only to a common law right of access, the recent decision by Ware said that the public had the clear overriding interest in the case.
“The court’s order makes clear that the public’s right of access can’t be overcome by generalities and speculation, and that arguably unusual procedure [the recording] in a case does not undermine that right of access,” Wilcox said.
The appeal of the trial court decision to overturn Proposition 8 is still pending before the Ninth Circuit.