This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

Constitutional Law,
9th U.S. Circuit Court of Appeals

Dec. 15, 2020

9th Circuit should unseal video of historic Prop 8 trial

Footage will provide a far richer and more accurate understanding of the legal issues and evidence presented during the trial than anything available in a transcript. Video recordings are powerful storytelling tools that journalists often use to inform the public about the judicial branch.

Shannon Jankowski

E.W. Scripps Legal Fellow, Reporters Committee for Freedom of the Press

Caitlin Vogus

Staff Attorney, Reporters Committee for Freedom of the Press

Reporters Committee for Freedom of the Press is a nonprofit organization that provides pro bono legal representation, amicus curiae support, and other legal resources to protect First Amendment freedoms and the newsgathering rights of journalists.

Judge Vaughn Walker in 2011.

A video recording of one of the most important trials in American history exists -- but the public can't watch it. The 9th U.S. Circuit Court of Appeals should change that by affirming a district court's order unsealing the recording of Perry v. Schwarzenegger (20-16375) allowing journalists, documentarians and members of the public to finally view the footage of this historic same-sex marriage trial. Otherwise, many details of the trial will be forever lost to journalists and the public.

Perry concerned a constitutional challenge to Proposition 8, which amended the California Constitution to provide that "[o]nly marriage between a man and a woman is valid or recognized in California." The amendment sparked a legal battle that would permanently change American jurisprudence and the LGBTQ civil rights movement. Perry was the first federal case to decide the constitutionality of a ban on same-sex marriage. As such, it laid the foundation for the U.S. Supreme Court's landmark 2015 decision in Obergefell v. Hodges, recognizing the constitutional right of same-sex couples to marry.

More than a decade ago, Judge Vaughn Walker of the U.S. District Court for the Northern District of California held a bench trial in Perry. Scholars, psychologists and even a philosopher testified. Mindful of the intense public interest in the trial, Judge Walker initially intended to broadcast a video feed of the proceedings online and to other federal courthouses. However, after the Supreme Court prohibited the broadcast at the request of the proponents of Proposition 8, Judge Walker changed course. He continued to record the trial, but stated that the recording was being made "for use in chambers" in accordance with local rules. Ultimately, the district court struck down Proposition 8, and the recording was filed in the record under seal.

In 2012, upon a motion from Bay-area public television and radio station, KQED, the district court ordered the recording unsealed. But the 9th Circuit reversed, finding that Judge Walker's assurance that the recording would not be broadcast "at least in the foreseeable future" and the "importance of preserving the integrity of the judicial system" justified maintaining the seal. In 2018, in accordance with a local rule governing sealing, the district court ordered the recordings to be unsealed 10 years after the conclusion of the trial, unless the proponents could show a compelling reason to the contrary.

In April, 10 years after the trial's conclusion, the proponents moved the district court to continue the seal. KQED and others opposed the motion, and in July, the district court ordered, for a third time, that the recording be unsealed.

The 9th Circuit should affirm the district court's order. Both the common law and the First Amendment give the press and the public a presumptive right of access to judicial proceedings and documents. Judicial proceedings have long been open to the public, and this openness helps ensure that the judicial branch functions effectively. When the public can observe judicial proceedings, justice is more likely to be done. Public monitoring of the conduct of judges, lawyers, and witnesses allows members of the public to determine for themselves whether proceedings are fair and fosters public trust in the judiciary.

Perry was a high-profile trial, widely attended by members of the public and subject to numerous press reports. But many people -- particularly those outside of San Francisco -- were unable to attend. And news stories, documentaries or works of art about the trial are currently limited by what can be gleaned from written transcripts.

Fortunately, a recording of the trial exists. Providing access to this recording could allow the public, journalists and historians to view one of the most monumental and celebrated trials in recent history. The public has a particularly strong interest in legal battles over the constitutionality of same-sex marriage. In fact, before the U.S. Supreme Court began streaming live audio of its arguments in response to the coronavirus pandemic in May, the court's three same-sex marriage cases were among only 27 cases in the court's history to feature same-day audio.

Footage will provide a far richer and more accurate understanding of the legal issues and evidence presented during the trial than anything available in a transcript. Video recordings are powerful storytelling tools that journalists often use to inform the public about the judicial branch. For example, the critically acclaimed film "Paradise Lost" featured footage from the original trials of the "West Memphis Three" -- three teenagers convicted of the 1993 murders of three children in Arkansas. The documentary brought national attention to the case and raised questions about sufficiency of the evidence against the defendants. The West Memphis Three were ultimately freed from prison in 2011. In numerous other examples, such as the wildly popular documentaries "Making a Murderer" and "The Staircase," filmmakers have used video footage to allow the public to observe court proceedings firsthand.

The Perry trial has become part of American history and remains of great interest to journalists and the public. The benefits of unsealing the recording are numerous. Public access to the recording will allow journalists, historians and any member of the public to hear witness' testimony in their own voices, watch skilled and prominent legal advocates present their best arguments, and observe as Judge Walker conducts a complicated and vitally important trial.

In contrast to these many benefits, the proponents of Prop. 8 point to no specific harm from unsealing. At the recent 9th Circuit hearing, judges noted the absence of even one declaration from a proponent explaining why the recording should remain sealed. The original plaintiffs, on the other hand, provided declarations from 15 trial witnesses, all of whom support unsealing. The proponents raise only speculative concerns about "harassment and reprisals" due to changes in public opinion since Obergefell. But the proponents' identities and transcripts of their testimony and arguments have been a matter of public record since the Perry trial, including since Obergefell was decided more than five years ago. And even if, as the proponents argued, "a critical mass" of the proponents want the recording to remain sealed, the wish of a small group of individuals cannot overcome the presumptive right of access. This is particularly so in a case of such unique historic significance.

Perhaps because of this, the proponents also argue that the primary reason for continued sealing is to preserve an interest in judicial integrity. They claim that if the recordings are unsealed, public confidence in the judicial system will be undermined. But just the opposite is true. Public access to the recordings will only bolster trust in the judicial process by allowing those who could not attend the trial to see, hear, and more fully understand what led to the district court's decision. Any concerns about the conduct or integrity of the trial are best alleviated by allowing the public to observe those events firsthand.

Same-sex couples have been constitutionally guaranteed the right to marry since the Obergefell decision in 2015. The public deserves the opportunity to witness for themselves the events of the trial that set the stage for this historic decision. The 9th Circuit should affirm the decision of the district court and order the recordings at last unsealed. 


Submit your own column for publication to Ben Armistead

For reprint rights or to order a copy of your photo:

Email for prices.
Direct dial: 949-702-5390

Send a letter to the editor: