First Amendment Coalition » Prop 8

Federal appeals court rejects requests to release Prop 8 trial videos

donal brown — Thu, 02 Feb 2012 20:11:40 +0000

In a narrowly tailored decision, the 9th U.S. Circuit Court of Appeals ruled that the public, media and same-sex marriage proponents could not gain access to the videotapes of the trial over Proposition 8.

The court said that the trial judge had assured Prop 8 backers that the trial videotape would not be made public, and that pledge had to be respected to maintain the integrity of the justice system. -db

From the San Jose Mercury News, February 2, 2012, by Howard Mintz.

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San Francisco federal appeals court to allow broadcast of same-sex marriage hearing

donal brown — Mon, 05 Dec 2011 19:07:51 +0000

When the lawyers argue before the 9th U.S. Circuit Court of Appeals on the appeal of the striking down of Prop 8, the referendum prohibiting same-sex marriage, the proceedings will be videotaped and then televised.

A federal district court had ruled Prop 8 unconstitutional for violating equal protection and due process rights. -db

From the First Amendment Center, December 2, 2011.

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Federal appeals court grants stay on release of identities of Prop. 8 contributors

donal brown — Tue, 25 Oct 2011 18:57:10 +0000

After a federal judge upheld a ruling allowing release of donors to Prop. 8 prohibiting same-sex marriage in California, the 9th Circuit U.S. Court of Appeals granted an emergency stay pending appeal of the ruling. -db

From the Courthouse News Service, October 24, 2011, by William Dotinga.

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Federal appeals court keeps Prop. 8 trial videos on ice

donal brown — Tue, 25 Oct 2011 17:28:41 +0000

The Ninth U.S. Circuit Court of Appeals has delayed its decision on whether to release video recordings of the January 2010 Prop. 8 trial on the constitutionality of banning same-sex marriage.

The court is still deciding if the public’s right to know outweighs potential danger to witnesses in favor of Prop. 8, passed by the voters in 2008 banning same-sex marriage in California. -db

From the San Francisco Chronicle, October 25, 2011, by Bob Egelko.

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Federal judge dismisses suit to keep secret the donors to proposition to ban same-sex marriage

donal brown — Mon, 24 Oct 2011 16:56:27 +0000

A federal district judge upheld a state law allowing the release of names of those donating $100 or more to political campaigns. The supporters of Proposition 8 banning same-sex marriage in California wanted to withdraw the information claiming that the donors were at risk.

Prop. 8 supporters said they had been harassed, vandalized, and received hate mail and death threats. -db

From the San Francisco Chronicle, October 22, 2011, by Bob Egelko.

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Hold on releasing Prop. 8 trial videos

donal brown — Thu, 29 Sep 2011 17:21:08 +0000

The videos of Prop. 8 lawsuit videos will not be released while federal appeals court considers whether the videos would endanger witnesses and compromise the credibility and integrity of the federal judiciary.

The 9th Circuit Court of Appeals issued a temporary hold on the videos after Chief U.S.District Judge James Ware ruled on Sept. 19 that the videos be released. -db

From the San Francisco Chronicle, September 28, 2011, by Bob Egelko.

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Federal district judge orders release of Prop 8 trial video

donal brown — Tue, 20 Sep 2011 18:03:55 +0000

Citing the importance of public access to trials and court records in fostering public confidence in the judiciary, a federal district judge ordered the release of the video of hearings on Prop 8, California’s ban on same-sex marriage.

Groups defending Prop 8 want the videos to remain sealed to protect the privacy of those testifying to uphold the law passed by a state-wide initiative. -db

From The New York Times, September 19, 2011, by John Schwartz.

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Ninth circuit appeals court allows live broadcast of Prop 8 hearing

donal brown — Thu, 09 Dec 2010 19:27:20 +0000

The live broadcast of the appeal proceedings in the U.S. Court of Appeals (9th Cir.) on Prop 8, the initiative banning same-sex marriage, reached a wide audience including at least 17 law schools. -db

The Reporters Committee for Freedom of the Press
December 7, 2010
By Derek Green

The U.S. Court of Appeals in San Francisco (9th Cir.) allowed the live broadcast Monday of more than two hours of oral arguments in Perry v. Schwarzenegger, a case challenging the constitutionality of California’s ban on same-sex marriages.

The hearing before the three-judge panel is the latest legal step in the case brought by two same-sex couples to challenge California’s Proposition 8, an amendment to the state constitution enacted by voters in 2008.

In August, a federal court in San Francisco ruled that Proposition 8 violated the federal constitution. That ruling, by Judge Vaughn Walker, came after a trial that, by order of the U.S. Supreme Court, could not be broadcast to the public.

In a 5-4 decision, the Supreme Court rebuffed Walker’s plan to broadcast the trial, ruling that the broadcasting would conflict with court policy and procedural rules. The Supreme Court also noted the possible chilling effect on witnesses.

The Ninth Circuit’s decision to broadcast Monday’s hearing did not raise the same issues. The appellate court’s guidelines leave the decision whether to allow camera coverage of an oral argument with the panel hearing the appeal. And, as is typical in an appellate argument, no witnesses testified at the hearing, which consisted of lively questioning of the attorneys by the three judges.

The argument garnered significant media interest from traditional and new media outlets, according to David Madden, the assistant circuit executive for the Ninth Circuit. Madden said by e-mail that the court received media requests for live and recorded audio and video broadcasting, as well as Web streaming from a variety of media organizations.

C-SPAN broadcast the argument live and operated a video pool for other media organizations. “I would say that every major network, including PBS and NPR, had access to the C-SPAN feed,” Madden said.

A number of newspapers and other groups also participated in the C-SPAN feed for use on websites. At least a few websites, including C-SPAN’s, provided live Web streaming of the entire proceeding, Madden said. Public radio also broadcast the argument live and the Associated Press coordinated a still photography pool.

C-SPAN was not able to provide an estimate of the number of viewers who watched its feed and the court does not know how many people tuned in to the argument. But judging from the expansive reach of the media involved, Madden said he believes the number was quite high. “I do not think it would be exaggerating to say millions for some or all of the proceeding,” he said.

The Ninth Circuit has allowed live coverage of its hearings in other cases as well. Last month, the court streamed live a hearing in United States v. Arizona, a case involving the enforcement of a controversial state immigration law. According to the court’s media release, a dozen law schools live-streamed that argument. Madden said that at least 17 law schools live-streamed Monday’s argument as well.

The Ninth Circuit is one of two federal appellate courts that have allowed live broadcasts of their hearings, according to C-SPAN. The other is the U.S. Court of Appeals in New York (2nd Cir.).

Earlier this year, the federal court’s policy making arm, the Judicial Conference of the United States, announced a pilot project to allow cameras into some federal district court proceedings.

Chief judge of federal appeals court argues for allowing TV cameras in courtrooms

donal brown — Sat, 09 Oct 2010 12:33:59 +0000

Chief Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals wrote in the Fordham University law review that it is time to allow television cameras in courtrooms to give the public a full view of the proceedings and increase public respect for the justice system. -db

San Francisco Chronicle
October 8, 2010
By Bob Egelko

SAN FRANCISCO — It’s time to allow television cameras into the nation’s courtrooms “to give the public a full and fair picture of what goes on,” says the chief judge of the federal appeals court in San Francisco – with a swipe at the U.S. Supreme Court for blocking video coverage of the Proposition 8 trial.

Televising court proceedings would increase public respect for the justice system and might also improve trials, Chief Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals wrote in the Fordham University law review.

Although some lawyers and judges might grandstand for the camera, and some witnesses might be intimidated, others may act more carefully if they know the public is watching, Kozinski said in the article, co-written with his former law clerk Robert Johnson.

“Judges may avoid falling asleep on the bench or take more care explaining their decisions and avoiding arbitrary rulings or excessively lax courtroom management,” Kozinski said.

“Some witnesses may feel too nervous to lie,” he wrote. “Others may hesitate to make up a story when they know that someone able to spot the falsehood may hear them talk.”

Federal courts have long prohibited cameras, with a few exceptions. The appeals courts in San Francisco and New York televise some hearings. Kozinski’s court approved a pilot project in December 2009 authorizing trial judges in the nine-state circuit to allow cameras at selected nonjury civil trials, but the experiment hit a roadblock in the Supreme Court.

Chief U.S. District Judge Vaughn Walker of San Francisco approved closed-circuit broadcasts to other federal courthouses of this year’s trial of a lawsuit challenging Prop. 8, California’s ban on same-sex marriage. He also said it could be videotaped for later posting on YouTube.

The appeals court approved the closed-circuit telecast, but the high court vetoed it just as the trial was about to start. A 5-4 majority said Walker had failed to give the public enough time to comment on the proposal and said cameras could have a chilling effect on the expert witnesses called to defend Prop. 8.

Any televising of federal trials should begin with a less controversial case, said the justices, who have rejected proposals to admit cameras to their own hearings.

Kozinski took a poke at the ruling in his article.

“At a time when we’ve had gavel-to-gavel coverage of both houses of Congress for over two decades, it’s hard to explain why the prospect of broadcasting a judicial trial to a courtroom across the country merits the emergency intervention of the Supreme Court,” he said.

All states allow cameras in at least some court proceedings. California leaves decisions on cameras at trials to Superior Court judges, who have rejected virtually all such requests since the histrionics of the O.J. Simpson murder trial in 1995.

A state Judicial Council committee of judges, lawyers and media representatives has recommended changing the rules and allowing cameras at trials unless the judge states specific reasons to exclude them, findings that media organizations could then appeal.

The council has invited public comments through Oct. 29 and plans to consider the proposal next spring.

If hard-won court victory against Prop 8 is tossed out because of “standing” defect, you can thank Jerry Brown

Peter Scheer — Wed, 18 Aug 2010 18:31:34 +0000

BY PETER SCHEER—If I were Ted Olson, the former US solicitor general who is leading the legal battle against Prop 8, I would be unhappy with Jerry Brown right now.

Olson’s hard-won victory before federal district court judge Vaughn Walker was meant to be the first stage of a legal strategy culminating in a US Supreme Court decision establishing–for the entire country–a constitutional right of gay marriage. But Judge Walker’s decision striking down Prop 8 may never be considered by the federal court of appeals, much less the Supreme Court. Worse, the obstacle to appellate review could result in the voiding of Judge Walker’s decision altogether, thus restoring the gay marriage ban in California.

How does this scenario involve Jerry Brown? As California’s Attorney General, Brown has the job of defending the state, and its laws, in court. Like a private lawyer representing a client, he is supposed to defend California whether or not he thinks the state’s legal position is correct. This is so not only because the state deserves a defense, but also because our judicial system, in order to function, requires legal advocacy on behalf of both sides to a dispute. When a judge hears from one side only (the favored approach in countries that tend also to have only one political party), the judge is likely to make lots of mistakes.

With an eye on higher political office, Brown declined to defend Prop 8 in Judge Walker’s courtroom. Instead, the defense of Prop 8 was left to a group of citizen activists involved in the Prop 8 electoral campaign. Brown’s absence may have helped his own political fortunes, but, ironically, his strategy of non-participation ultimately may play into the hands of Prop 8′s supporters.

Although the defenders of Prop 8 were ably represented in Judge Walker’s courtroom by conservative litigator Charles Cooper, they may lack legal “standing”–a constitutional requirement in federal suits–to appeal Judge Walker’s decision to the federal court of appeals and, ultimately, to the US Supreme Court. Judge Walker highlighted this issue in a recent order, and the defendants, in their brief to the court of appeals, focused on it.

Without digging too deeply into the intricacies of the federal constitutional doctrine of standing, suffice it to say that the standing issue in the Prop 8 case is not trivial. Suffice it also to say that, if Jerry Brown had participated in the case and presented even a weak, half-hearted defense of Prop 8 at trial, standing would, at this juncture, pose no obstacle to appeal to the court of appeals and the Supreme Court.

But it gets worse. The problem is not limited to obtaining appellate review of Judge Walker’s decision. If it turns out that the Prop 8 supporters lack standing to appeal, it may also be the case that they lacked standing to represent the state’s interests in their defense of Prop 8 in the District Court. So says UC Davis Law School professor law Vikram Amar, who is no friend of Prop 8, in an interview with Time magazine.

While I disagree with Amar on this point (because I think states should not have the power, through their absence, to veto federal constitutional challenges to state laws), these are, at best, unchartered legal waters. If it turns out that none of the parties before Judge Walker was a constitutionally adequate defendant, the judge’s entire decision may fall—which is to say, gay marriages in California would once again be illegal.

Although Jerry Brown is no doubt sincere in his view that Prop 8 violates the Constitution, his role as Attorney General is not to advocate his own personal views or to take positions that please his political base. Rather, his job is to defend California in all cases except where the state’s actions are patently indefensible. (And while it may be terrible public policy, Prop 8 is unquestionably defensible under existing constitutional doctrine). This aspect of the attorney general job description is not spelled out in any law. Nonetheless, it is necessary for the functioning of the judicial system.

Ted Olson’s legal strategy is gay Californians’ last best hope for judicial affirmation of their right to marry. Ironically, Jerry Brown’s pursuit of short-term political advantage jeopardizes that strategy.
—–
Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. http://www.firstamendmentcoalition.org

Judge rules out TV for closing arguments in Prop. 8 hearing

donal brown — Thu, 10 Jun 2010 19:02:39 +0000

Federal Judge Vaughn Walker denied a media request to televise arguments in the California same-sex marriage trial without providing reasons for his decision. -db

San Francisco Chronicle
June 10, 2010
By Bob Egelko

SAN FRANCISCO — The only members of the public who will get to watch next week’s closing arguments in the trial over same-sex marriage in California will be the ones who make it to the courthouse.

Chief U.S. District Judge Vaughn Walker issued a brief order today denying a request by media organizations to televise the arguments, scheduled to last all day Wednesday in San Francisco. The organizations included Hearst Corp., which owns The Chronicle.

Two same-sex couples and the city of San Francisco have sued to overturn Proposition 8, the November 2008 initiative that amended the California Constitution to define marriage as the union of a man and a woman.

Walker, who heard 12 days of testimony in January, had proposed to televise the trial proceedings live to several federal courthouses around the nation and record them for a delayed Internet posting on YouTube.

But the U.S. Supreme Court pulled the plug, saying Walker hadn’t given the public enough time to comment on the proposed change in court rules. The court also cited claims by Prop. 8′s sponsors that showing the proceedings outside the courthouse might intimidate witnesses.

In their request to Walker last month to allow camera coverage of the closing arguments, the media organizations noted the high public interest in the trial and said televising a hearing that included only lawyers and the judge shouldn’t raise any concerns about intimidating witnesses.

But Prop. 8′s sponsors opposed a telecast, telling Walker that cameras have “negative effects on some judges and attorneys, including distraction, grandstanding and avoidance of unpopular decisions or positions.”

Walker did not spell out his reasons for denying the media request. The arguments will still be shown on closed-circuit TV, but only in an overflow courtroom at the San Francisco courthouse at 450 Golden Gate Ave.

Prop. 8 supporters oppose cameras in court for final arguments

donal brown — Tue, 25 May 2010 17:38:06 +0000

A lawyer for the Prop. 8 campaign committee sent a letter to the federal judge hearing the lawsuit challenging the proposition arguing that a broadcast of the closing arguments set for June 16 would have negative effects on the judge including making him avoid unpopular decisions. -db

San Francisco Chronicle
May 25, 2010
By Bob Egelko

Sponsors of California’s ban on same-sex marriage opposed televising next month’s final arguments in the Proposition 8 trial Monday and suggested that camera coverage might induce the judge to overturn the voter-approved measure.

In a letter to Chief U.S. District Judge Vaughn Walker in San Francisco, a lawyer for the Prop. 8 campaign committee said federal court officials have found that “public broadcast has negative effects on some judges and attorneys, including distraction, grandstanding and avoidance of unpopular decisions or positions.”

The lawyer, Charles Cooper, didn’t spell out what he meant by avoiding unpopular decisions. But he argued that camera coverage of the arguments would violate his clients’ right to a fair trial – indicating that he feared a telecast would increase the prospect of an unfavorable ruling.

Cooper also told Walker that allowing cameras to record lawyers’ closing arguments would violate the “letter and spirit” of the U.S. Supreme Court’s ruling in January that barred camera coverage of trial testimony.

The court said Walker had not allowed enough time for public comment before approving telecasts. The 5-4 majority also said cameras might intimidate witnesses and that a controversial, high-profile case was “not a good one for a pilot program” on cameras at federal trials.

Walker has scheduled closing arguments for June 16 in a lawsuit by same-sex couples and the city of San Francisco challenging Prop. 8, the November 2008 state constitutional amendment that defined marriage as the union of a man and a woman.

No federal trial in California has been shown on television or the Internet. After the federal appeals court in San Francisco authorized a pilot project in December allowing cameras at selected civil, nonjury trials, Walker approved closed-circuit telecasts of the Prop. 8 trial to a few other federal courthouses. He also ordered videotaping for Internet viewing in delayed uploads on YouTube.

After the Supreme Court intervened, the federal court in San Francisco allowed additional public comment before again authorizing camera coverage during trials, with the approval of the judge and the appeals court’s chief judge.

Last week, a group of media organizations including Hearst Corp., which owns The Chronicle, asked Walker to allow telecasting of the Prop. 8 case’s closing arguments. They noted that witness intimidation was not an issue because only lawyers would participate in the hearing, and said cameras would expand access to a case of intense public interest.

Prop. 8′s sponsors, a conservative religious coalition called Protect Marriage, have argued that camera coverage would distort the trial proceedings. Cooper’s letter Monday also said telecasting could endanger lawyers and judges.

Thomas Burke, lawyer for the media organizations, said Cooper’s concerns were based on unfounded speculation. In a case that has already drawn broad coverage, he said, the question is whether members of the public who are interested in the proceedings will have “a greater opportunity to see them firsthand.”

California: Federal panel refuses to reverse order forcing anti-prop 8 alliance to produce campaign materials

donal brown — Thu, 15 Apr 2010 17:01:54 +0000

Groups that campaigned against Prop 8, the California initiative that banned same-sex marriage, lost a court battle to block release of their campaign materials. -db

Courthouse News Service
April 14, 2010
By Elizabeth Banicki

(CN) – The 9th Circuit said it lacks jurisdiction to overturn a federal judge’s order forcing gay marriage advocacy groups to turn over their Proposition 8 campaign materials.

Equality California, No on Proposition 8 and the Campaign for Marriage Equality appealed Chief U.S. District Judge Vaughn Walker’s order compelling them to produce internal campaign documents in the federal trial challenging Prop 8, California’s voter-approved ban on same-sex marriage.

The organizations argued that their materials are protected by a First Amendment privilege shielding internal campaign communications.

But the three-judge panel said the organizations can’t appeal Walker’s order until they have been held in contempt for failing to comply with it.

The groups argued, alternatively, that the 9th Circuit can force the district court to adopt its reasoning in a December 2009 ruling allowing Prop 8 proponents to keep their identities secret.

A writ of mandamus would not be appropriate, the 9th Circuit panel explained, because the groups “have not demonstrated that the district court’s ultimate conclusions were clearly erroneous as a matter of law.”

Judge Walker is presiding over the first federal trial involving a challenge to a state’s ban on same-sex marriage.

Judge orders Prop 8 opponents to release campaign documents

donal brown — Tue, 23 Mar 2010 20:56:22 +0000

The federal judge hearing the challenge to Prop. 8 ordered Prop. 8 opponents to give campaign records to the proponents of the initiative saying that the records were public rather than “private and internal.” -db

Courthouse News Service
March 23, 2010
By Maria Dinzeo

SAN FRANCISCO (CN) – A federal judge ordered groups that campaigned against California’s Proposition 8, the same-sex marriage ban, to deliver documents that were withheld from the other side.

In upholding a previous ruling by Magistrate Judge Joseph Spero, U.S. District Judge Vaughn Walker said gay marriage ban opponents Equality California and the American Civil Liberties Union must surrender the campaign materials, which include email exchanges between the groups.

Judge Walker disagreed with the groups’ assertion that the materials were protected by the First Amendment. He wrote, “The standard does not protect campaign communications that are not private and internal.”

Federal courts rule out broadcast of closing arguments in California same-sex marriage trial

donal brown — Wed, 10 Mar 2010 20:12:38 +0000

A federal court will not include California’s same-sex marriage trial in its pilot program to broadcast civil proceedings contrary to recent media reports. -db

The Reporters Committee for Freedom of the Press
March 9, 2010
By Curry Andrews

A federal court in San Francisco announced on Friday that it is not planning to broadcast closing arguments in the trial over California’s gay marriage ban, despite media reports to the contrary.

As of now, Judge Vaughn Walker has not asked that Perry v. Schwarzenegger be included in a pilot program that allows the broadcast of certain non-jury civil trials.

“Broadcasting closing arguments would require Chief Judge Walker to request that these arguments be included in the Ninth Circuit’s pilot program and approval of that request by Chief Judge Kozinski,” the press release said. “No such request has been made.”

Walker said in January that he would ask to broadcast the proceedings, citing the Judicial Council of the 9th Circuit’s decision that trial courts could begin experimenting with recording civil trials. He withdrew that request after the Supreme Court blocked the trial’s broadcast, finding the court had not properly followed policies that govern changes to court rules.

Prop. 8 trial could still find the airwaves

donal brown — Fri, 26 Feb 2010 16:51:12 +0000

San Francisco Bay Area federal judges are again floating a plan to allow cameras in federal courtrooms just weeks after the U.S. Supreme Court, in a rare intervention, rejected a similar plan. If approved this time, it is possible that the final arguments in the Prop. 8 could be telecast. -db

The San Francisco Chronicle
February 26, 2010
By Bob Egelko

SAN FRANCISCO — Despite a rebuff from the U.S. Supreme Court, the Bay Area’s federal judges are again proposing to allow cameras in their courtrooms, a plan that could lead to telecasting of closing arguments in a suit challenging California’s ban on same-sex marriage.

The U.S. District Court in San Francisco has posted a rule change on its Web site that would allow its judges to take part in a pilot program of airing selected nonjury civil trials. The public comment period began Feb. 4 and ends Thursday.

The proposal is the same one Chief U.S. District Judge Vaughn Walker adopted in January after a week of overwhelmingly favorable public comment. But the Supreme Court intervened when Walker approved camera coverage of the trial over Proposition 8, the November 2008 initiative that outlawed same-sex marriage.

In a 5-4 ruling, the court – which has refused to telecast its own proceedings – rebuked Walker for shortening the usual comment period.

The court said it was not deciding whether federal judges could televise trials. But the conservative majority did not cite any public benefit in trial broadcasts and said any such project should start with a more routine case.

The justices cited statements by Prop. 8′s sponsors that telecasting outside the courthouse would intimidate their witnesses. Sponsors withdrew four of their six scheduled witnesses, all academic experts, when the trial started Jan. 11 and did not reinstate them after the court barred cameras.

No federal trial in California has ever been shown on television or the Internet. Walker had proposed live, closed-circuit telecasts of the Prop. 8 trial to a few other federal courthouses and a delayed posting on YouTube.

Testimony in the lawsuit by two same-sex couples and the city of San Francisco ended Jan. 27, but Walker postponed scheduling lawyers’ closing arguments until after a final round of briefs, due today.

If his court approves the new rule next week, Walker could allow camera coverage of the arguments along the lines of his previous order, subject to approval by Alex Kozinski, chief judge of the Ninth U.S. Circuit Court of Appeals.

Telecasting lawyers’ arguments, without witness testimony, might pass muster with the Supreme Court, which hasn’t objected to televised hearings of arguments before the Ninth Circuit.

Prop. 8′s sponsors, who opposed telecasting the trial, won’t say whether they would challenge the airing of final arguments.

With no specific broadcast plan on the table, “we’re not going to speculate on how we would feel about that,” said Andrew Pugno, lawyer for Protect Marriage, the Prop. 8 campaign committee.

Prop. 8′s opponents supported Walker’s earlier video plans. They were also endorsed by a group of news organizations that included Hearst Corp., owner of The Chronicle.

The media group’s lawyer, Thomas Burke, said public interest in the Prop. 8 case remains high and that the upcoming arguments should be telecast.

The Supreme Court’s concerns about witness intimidation “are not present in closing arguments,” Burke said. “This is an issue of critical concern to a lot of people. … In our view, the more access, the better, regardless of which side you’re on.”

Supreme Court scuttles plan for televising Prop 8 trial

donal brown — Thu, 14 Jan 2010 17:15:08 +0000

In another 5-4 decision, the U.S. Supreme Court ruled that given the notoriety of the same-sex marriage trial and that the public had insufficient time to comment on the decision to televise the trial, there would be no live telecasts or delayed broadcasts on YouTube. The Court did not rule on whether any federal trial could be televised. -DB

San Francisco Chronicle

January 14, 2010

By Bob Egelko

SAN FRANCISCO — The U.S. Supreme Court pulled the plug Wednesday on plans for camera coverage of the same-sex marriage trial in San Francisco and said any televising of federal court proceedings should start with a more humdrum case.

The 5-4 majority said Chief U.S. District Judge Vaughn Walker, presiding over the trial on the constitutionality of California’s Proposition 8, had not given the public enough time to comment last week before he approved live telecasts to be shown in several courthouses around the country. Walker also approved videotaping for public Internet viewing, in delayed uploads on YouTube.

The ruling permanently bars a broadcast that the high court temporarily blocked just before the trial started Monday. Opponents of Prop. 8, the November 2008 initiative that prohibits same-sex marriage, are suing to overturn the measure as a denial of equal protection of the law.

The federal appeals court in San Francisco approved a pilot program last month allowing cameras at selected civil, nonjury trials, a project clearly designed for the Prop. 8 trial. Walker approved the telecast over the objections of the ballot measure’s sponsors, who said their witnesses could face harassment and might refuse to testify. The sponsors appealed to the Supreme Court.

No federal trial in California has ever been shown on TV or the Internet. The Supreme Court, which has refused to televise its own proceedings, said it was not ruling on whether any federal trials could be televised, but the majority justices made their discomfort clear.

The Prop. 8 trial, which involves “issues subject to intense debate in our society … is not a good one for a pilot program,” because the potential for harm is greater in a high-profile case, the court said.

The justices also said they were concerned about the effect on witnesses’ testimony, which “may be chilled if broadcast,” the court said.

Walker approved the telecast after only a week of public comment, rather than the 30 days that the San Francisco federal court normally requires when it changes its rules. Walker cited his authority to shorten the comment period when immediate needs arise, and said Monday he had received more than 138,000 comments from the public, all but 32 of them favorable.

But the Supreme Court said there was no immediate need to suspend the 30-day requirement because shutting off the cameras would harm neither side in the case.

Opponents of Prop. 8 had supported television coverage, as had news organizations, including Hearst Corp., which owns The Chronicle.

The ruling was issued by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito.

The dissenters were the court’s more liberal members, Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor.

Breyer, writing for the dissenters, said the public had ample opportunity to comment, there was no evidence that witnesses would be harmed, and those outside the courthouse were losing an opportunity to view a trial of “great public interest.”

Walker had ordered the trial telecast live to the regional appeals court’s headquarters at Seventh and Mission streets in San Francisco and courthouses in Pasadena, Seattle, Portland, Ore., and Brooklyn, N.Y.

Wednesday’s ruling means the only place people can watch the case on TV is in a 19th floor conference room at the Golden Gate Avenue courthouse that seats about 150. Thirty-six seats are available to the public for the trial itself in Walker’s courtroom on the 17th floor.

The case is Hollingsworth vs. Perry, 09A648. The ruling can be viewed at links.sfgate.com/ZJCL.

Prop 8 hearing: Strict enforcement of laws against assault needed rather than curtailing TV coverage

donal brown — Tue, 12 Jan 2010 22:41:07 +0000

A Citizen Media Law Project blogger argues that the Supreme Court should recognize that it is against California law to assault witnesses and that not televising the proceedings will not protect witnesses in what promises to be a widely publicized event. To allow the broadcast on YouTube would provide a boost to freedom of the press and greater access for millions of Americans who would then be able to see our justice system at work. -DB

Citizen Media Law Project
Opinion
January 12, 2010
By Justin Silverman

There are a couple of laws in California that the U.S. Supreme Court should consider before it announces tomorrow whether or not the Proposition 8 trial can be broadcast on YouTube: § 240 and§ 422. These two laws don’t address same-sex marriage, discrimination, or even access to courts, as you may have expected. Instead, these sections of the California Penal Code make it a crime to either assault or threaten to use violence against another person.

The Justices should take comfort in these laws. They are significant because the opportunity to view what could be a watershed case for gay rights is being prevented by a concern for the safety of witnesses. Ironically, those witnesses do not happen to be the persecuted homosexuals of bygone days, but instead those who now support a state measure to deny same-sex couples the right to marry. The trial began yesterday in San Francisco, and U.S. District Judge Vaughn Walker originally agreed to a delayed broadcast of each day’s proceedings on YouTube. But yesterday the Supreme Court issued an order (.pdf) temporarily stopping the broadcast at the request of Prop 8′s supporters.

“The record is already replete with evidence showing that any publicizing of support for Prop 8 has inevitably led to harassment, economic reprisal, threats, and even physical violence,” according to the petitioner’s application for a stay (.pdf). “In this atmosphere, witnesses are understandably quite distressed at the prospect of their testimony being broadcast worldwide on YouTube.”

So, despite the Ninth Circuit Judicial Council’s decision (.pdf) last month to allow cameras in district courtrooms on an experimental basis, this already highly publicized case may not be viewed by the public—well, most of the public as there are, in the Court’s defense, a whopping 20 seats available. The rest of the world can either cram into other rooms of the courthouse to see real-time streaming of the trial or remain in the relative dark relying on text-only accounts.

Rather then spending time on the virtues of cameras in the courtroom, let me just say that my support for them is rooted in both a desire for transparency and the practical concern best worded by an old journalism professor of mine: What good is giving the press freedom if it is not allowed to use the tool of its trade? In this case, that tool is a video camera. Similarly, law enforcement has many tools of its trade, the most important being the law. In California, the law includes prohibiting the very acts Prop 8 supporters and—apparently—the Justices are so concerned about. Perhaps it’s too much to ask, but can we just let both journalists and police do their jobs?

By staying the broadcast of this trial—and impliedly finding that Prop 8 supporters will suffer “irreparable harm” absent a stay—the Supreme Court seems to be advocating curtailment of the press as a means of law enforcement. In a sense, there’s a backwards Heckler’s Veto at play: the Court is protecting the right of witnesses to speak by limiting the ways in which they will be heard and preventing retaliation by those who will not have heard them. Instead, those witnesses should take the stand knowing they will be given the largest forum possible in which to speak and the strongest protection against those who may retaliate when they do so.

And that retaliation is a big may. Among their reasons for requesting a stay, the petitioners say that “public broadcast can intimidate witnesses who might refuse to testify or alter their stories when they do testify if they fear retribution by someone who may be watching the broadcast.” Further, “all of the petitioners’ witnesses have expressed concern over the potential public broadcast of trial proceedings and some have stated that they will refuse to testify if the district court goes forward with its plan.”

In a controversial case such as this one, no doubt the unpopular speaker is a nervous one. But I’m skeptical that witnesses already committed to testifying will suddenly shy away because of the prospect of video dissemination. Do they not realize that, without a single camera, the San Jose Mercury News is reporting live accounts that include the names of those taking the stand? That special interest groups will be Twittering their testimony as they speak? That there are already websites identifying Prop 8 supporters and where they live? Banning a broadcast, I believe, will not change this. But to allow a broadcast, I’m certain, will further enlighten the debate over same-sex marriage, if not provide insight into our judicial system altogether.

But to help do that, the speaker, regardless of whether they are preaching in a town common or testifying in a trial, should be heard and, in this case, seen. When the petitioners argue that broadcasting the trial would “vastly increase the likelihood” that trial participants would face retaliation, the Supreme Court should acknowledge that this is an unfortunate price for press freedom, and the reason our police officers suit up each day.

Tomorrow is an opportunity for the Justices to do just that.

Justin Silverman is a CMLP Legal Intern.

Federal judge for same-sex marriage trial approves taping but limits live broadcast

donal brown — Thu, 07 Jan 2010 17:45:40 +0000

Chief Judge Vaugh Walker ruled that court personnel can tape the proceedings of the federal challenge to Prop 8, California’s ban on same-sex marriage, but maintained control by not allowing live broadcast except to federal courthouses in cities in other states. -DB

The Recorder
January 7, 2010
By Dan Levine

SAN FRANCISCO — Chief Judge Vaughn Walker made it clear Wednesday that he will forge ahead with televising the federal challenge to Prop 8.

But he also signaled he doesn’t want to be the next Lance Ito.

The trial, which begins on Monday, will be filmed by court personnel, Walker ruled, but it will not be broadcast live. Instead, the recording will be posted on a YouTube page at some point after the close of the day’s proceedings. Walker declined an offer from In Session (formerly Court TV) to broadcast live, with its own crew.

“I think in view of the nature of this proceeding, it is important for this process to be completely under the court’s control,” he said.

Lawyers representing the Yes on 8 campaign objected to any broadcast beyond an overflow room in the San Francisco federal building, arguing that witnesses would be intimidated, or change their testimony. But Walker was skeptical, pointing out that depositions have been widely videotaped for years.

Before Walker took the bench Wednesday, court personnel demonstrated how the camera facing the witness could be shut off, should the situation demand it. In the video sample shown to observers in the gallery, the cameras facing the judge and the attorney’s lectern remained active, resulting in a screen display split three ways.

“Our intent is to upload the entire thing,” said IT specialist Buz Rico.

While a live broadcast won’t be made available to the public at large, real-time viewing will be available at federal courthouses in other cities, Walker said. So far, that list includes Pasadena, Seattle, Portland, Ore., and Chicago. The Ninth Circuit will also set up a screen at its headquarters at Seventh and Mission streets in San Francisco.

Cameras have suddenly become a serious attention suck in what was already a high-profile trial. After a frenetic six months of pretrial litigation and discovery, a team of lawyers from Gibson, Dunn & Crutcher and Boies, Schiller & Flexner who represent same-sex couples will square off Monday against the Yes on 8 campaign in a bench trial.

Walker acknowledged in court Wednesday that the Ninth Circuit began formalizing its pilot program in October, with an eye toward the Prop 8 trial. The circuit’s judicial council OK’d the program last month for civil, non-jury trials selected by each district’s chief judge. Alex Kozinski, the circuit’s chief judge, must then grant his approval.

Gibson, Dunn partner Theodore Boutrous Jr. voiced strong support for broadcast in court Wednesday. Tossed a few softballs by Walker — including one about the “checkered history” of televised trials — Boutrous replied that this is a bench trial about constitutional issues, not a murder case.

“We think this is an ideal situation to use this pilot program,” Boutrous said.

Thomas Burke, a Davis Wright Tremaine partner representing a media coalition seeking live broadcast, noted that the court’s cameras are “consumer” quality, while the networks could provide broadcast-ready footage with no technical problems. But that didn’t sway Walker.

When Yes on 8 campaign lawyer Michael Kirk tried to cite U.S. Judicial Conference guidance against cameras, Walker asked whether that really applied more to criminal trials. The Prop 8 campaign raised lots of money and openly electioneered, Walker said.

“They assumed a public face, if you will,” he said.

Kirk, a Washington, D.C.-based partner at Cooper & Kirk, argued that blacking out a given witness’s video feed wouldn’t help. “That fact in and of itself will shine a spotlight on that person,” Kirk said.

In the end, Walker tried to voice a larger objective.

“I’ve always thought if the public could see how the judicial process works, they would take a somewhat different view of it,” he said, adding: “I think it’s worth trying in this case.”

Prop. 8 proponents object to TV for hearing in federal court

donal brown — Thu, 31 Dec 2009 03:34:19 +0000

Sponsors of Prop. 8 the ballot measure that banned same-sex in California say that television coverage of the court trial in San Francisco in January would result in harassment and intimidation of witnesses and other participants. -DB

San Francisco Chronicle
December 30, 2009
By Bob Egelko

SAN FRANCISCO — Sponsors of California’s ban on same-sex marriage, which faces a federal court trial in San Francisco next month, have told the trial judge that his suggestion to televise the proceedings is both unwise and illegal.

Television coverage could expose witnesses and other trial participants to harassment and intimidation, backers of Proposition 8 said in a court filing Monday. They said some of their witnesses “have indicated that they would not be willing to testify” if the trial was televised.

They also argued that a long-standing court rule prohibits cameras and cannot be changed until the court invites and considers public comment. The filing by attorney Charles Cooper hinted that the Yes-on-8 campaign would ask higher courts to intervene if Chief U.S. District Judge Vaughn Walker approved TV coverage.

Prop. 8, a November 2008 initiative, amended the state Constitution to define marriage as the union of a man and a woman, overturning a May 2008 state Supreme Court ruling that allowed gay and lesbian couples to marry.

The federal lawsuit by two same-sex couples, a gay-rights group and the city of San Francisco claims the ballot measure discriminates unconstitutionally on the basis of sexual orientation and gender. The trial is scheduled to start Jan. 11.

Walker first proposed television coverage in a discussion with lawyers in September. The idea picked up steam Dec. 17, when the Judicial Council of the Ninth U.S. Circuit Court of Appeals in San Francisco approved the nation’s first pilot program for televising nonjury civil trials.

The council said the chief judge of each district in the nine-state circuit, in consultation with the appeals court’s chief judge, Alex Kozinski, would choose cases for camera coverage and set the ground rules.

State courts in California and many other states allow cameras with the judge’s consent, but federal courts have historically prohibited them during trials.

A lawyer for the couples challenging Prop. 8 supported television coverage in a filing Tuesday, citing the “overwhelming national public interest in the issues.” Safety concerns voiced by defenders of the measure are “unsubstantiated and groundless speculation,” said attorney Theodore Boutrous.

Federal court approves television cameras in time for Prop 8 hearing

donal brown — Tue, 22 Dec 2009 11:30:31 +0000

The Judicial Council of the Ninth Circuit approved television cameras for certain district court hearings, civil proceedings with no juries. Before now the court had only allowed cameras to televise appellate arguments. -DB

Cal Law
December 18, 2009
By Dan Levine

SAN FRANCISCO — The Judicial Council of the Ninth Circuit authorized television cameras in certain district court proceedings Thursday, reviving a national controversy just weeks before a groundbreaking trial over same-sex marriage is slated to begin in San Francisco.

The Ninth Circuit currently allows cameras to televise appellate arguments, as does the Second Circuit. A private vendor has also recorded a handful of district court proceedings in New York.

But under the Ninth Circuit’s new experimental program — in which only civil, non-jury trials would qualify — district courts would be likely to use their own camera equipment, said Circuit Executive Cathy Catterson. The method of distribution would be figured out on a case-by-case basis.

“It might be posted later in the day, it could be edited, or it could be live. It would depend on the nature of the case,” Catterson said.

Cases to be considered for the pilot program, and the distribution details, will be decided by each district’s chief judge, in consultation with Ninth Circuit Chief Judge Alex Kozinski. In San Francisco it is the Northern District’s chief judge, Vaughn Walker, who is presiding over the federal challenge to Prop 8.

Walker first raised the possibility of a televised broadcast several weeks ago, and lawyers representing pro-same-sex-marriage plaintiffs support the idea. The defendants oppose it, saying anti-gay-marriage witnesses could be subject to harassment and retribution. When the topic arose again this week, Walker alluded to possible Ninth Circuit action and asked for another discussion with the parties should authorization occur.

The U.S. Judicial Conference officially opposes cameras in the court, and it has “strongly urged” each circuit council to prohibit the practice, said Karen Redmond, a spokeswoman for the Administrative Office of the Courts. Only the Second and Ninth Circuits have broken ranks.

Last April, U.S. Supreme Court Justice Antonin Scalia made news when he denounced the idea for his tribunal. And Seventh Circuit Chief Judge Frank Easterbrook recently rebuked a district court judge for authorizing cameras at a proceeding in Peoria, Ill.

In a press release, Kozinski said the court hopes cameras will lead to enhanced confidence in the rule of law.

“The experiment is designed to help us find the right balance between the public’s right to access to the courts and the parties’ right to a fair and dignified proceeding,” Kozinski said.

Berkeley defense lawyer Cris Arguedas, who sits on the state’s Bench Bar Media Committee, said that while cameras in the court are good for the public, it does not improve the quality of litigation — as evinced in the O.J. Simpson and Lyle and Erik Menendez trials.

“When there’s a camera in the courtroom, most lawyers and witnesses are conscious of the camera and wind up playing to the camera,” said Arguedas, who was on Simpson’s trial team. “That’s not good, because the audience should be the judge, the appellate court, maybe, and the jury if there is one.”

But even though she said she objects every time the issue comes up in state court, Arguedas thinks the Prop 8 trial is fit for broadcast.

“It’s an extremely important issue to the public, and I think it’s right to have it be available in this way,” she said, “as opposed to some little bank robbery case that doesn’t matter to the public, but might matter to the guy on trial.”

Opinion: Imperial Valley Board of Supervisors violated spirit of California’s open government law

donal brown — Tue, 22 Dec 2009 11:15:31 +0000

While finding that the county supervisors covered themselves sufficiently on the Brown Act, the Imperial Valley Press argues that they failed to honor the spirit of the Brown Act by not fully informing the public that it was their intention to intervene in a federal case involving Prop 8 making same-sex marriage illegal in California. -DB

Imperial Valley Press
December 20, 2009

When everything comes out in the wash, we believe the American Civil Liberties Union will find that the county of Imperial sufficiently covered its behind so as not to violate the Brown Act. That in itself is troubling, because the county was anything but above board.

The ACLU is investigating the Imperial County Board of Supervisors over a decision to become an intervening party in a federal case involving Proposition 8, which made same-sex marriage illegal. The ACLU contends the county made the decision without notifying the public properly, which the organization says is a direct violation of the Ralph M. Brown Act, the state law governing how and when public organizations can make decisions regarding their constituents.

For us, we are not so much concerned about the issue of the county jumping on the Prop. 8 case. Rather, our concern is with the undercover nature in which this decision was made and how the county seems to be justifying its actions.

The Brown Act allows for boards such as the county Board of Supervisors to talk about items in closed session if they pertain to personnel matters, matters of real property negotiations or potential litigation as long as the items are placed on an agenda under those headings and as long as any decision made in closed session is later announced in public session.

The county counsel himself admitted that the county had been discussing the item and it was on the agenda as potential litigation. Supervisors Chairman Wally Leimgruber said the board had been talking about the Prop. 8 case since November.

Sure, on all counts they are right, and they clearly are protected by the law, having upheld its letter. But the whole issue smacks of being disingenuous, and a blatant disregard for the spirit of the Brown Act, which is meant to protect the public from boards operating in secrecy.

This whole issue could have been avoided if the county had been up front about its intentions to discuss climbing aboard the Prop. 8 case. It makes us wonder what there is about this that the board didn’t want the public to know. What was there to hide?

Public agencies are infamous for the sneaky ways in which they maneuver right out in the open. It’s unfortunate that we might in fact have that going on in Imperial County. Thankfully the ACLU, for all its faults, is shining a light on this. After all, perception is sometimes far worse than actual wrongdoing.

Imperial County Board of Supervisors under scrutiny for possible open government violation

donal brown — Tue, 22 Dec 2009 10:55:08 +0000

The American Civil Liberties Union is looking into an allegation that the Imperial County Board of Supervisors violated California’s Brown Act in a closed session December 15 when it voted to intervene in a federal case involving Prop 8, the state proposition making same-sex marriage illegal. -DB

Imperial Valley Press

December 18, 2009
By Elizabeth Variner

Did the Imperial County Board of Supervisors break the law?

It’s the question that the American Civil Liberties Union is asking as it investigates whether the Board of Supervisors violated the Ralph M. Brown Act at its last meeting.

The county voted in closed session Tuesday to intervene in a federal case involving Proposition 8, which made same-sex marriage illegal.

The ACLU is looking into whether the board violated the Brown Act, though no determination has been made yet, San Diego region ACLU Executive Director Kevin Keenan said.

“It’s an unusual thing they’ve done, to be so secretive,” he said.

The Brown Act requires public boards, commissions and councils to act and deliberate in sessions open to the public.

Keenan said the group is looking into the issue because the board did not provide the public notice that the intervention would be on the agenda. It was treated as an emergency exception and decided that morning, though in court records filed hours later, it indicated that board members had been discussing the issue for weeks.

“Is that how Imperial County should be doing its business?” he asked.

If the board did violate the act, the public was denied notice to comment on the issue, Keenan said.

“We’re very concerned that the public did not have a chance to weigh in on the decision,” he said.

The ACLU filed a public records request Wednesday for transcripts or audio files of the meeting and will continue to look into it, he said.

County Counsel Michael Rood insists there was no violation of the Brown Act.

“We certainly, definitely, do not agree that there has been a violation of the Brown Act,” he said.

The item was posted on the agenda as potential litigation, which is legal, he said. Rood also announced the actions taken at the board meeting in open session, which is required under the act.

“That’s the way it’s supposed to be done,” he said.

The public has not been denied a chance to speak, as the public comment section of the meeting is set aside exclusively for that purpose, he said. Anything within the board’s jurisdiction, which includes this case, can be spoken about during that public comment portion of the meeting.

Chairman of the Board Wally Leimgruber agreed, adding there is a public comment section at every meeting scheduled for 10:30 a.m.

Leimgruber admits he has known about the case since November, and it has been on the agenda as potential litigation, he said. It hasn’t been hidden.

This is also not the first item that board members have put on the closed session agenda, he said. However, it was decided at that time because the date to file was approaching, and the board needed to take action.

Former El Centro resident and national board member for Marriage Equality USA Fernando Lopez said the decision has a big effect on his family that still lives in the area.

Since Lopez heard from a friend about the decision, he has been doing his own research, he said. He’s even called all of the supervisors because he hasn’t been able to find any information.

“I just called as a concerned citizen,” he said.

The public was not informed about the decision or given opportunity to voice their concerns, Lopez said. If the board wanted to support the will of the people, the decision would have been made public.

“It affects me and my family, but it’s our personal lives,” he said.

No cameras…yet for Prop 8 court challenge

donal brown — Thu, 17 Dec 2009 18:22:45 +0000

The Northern District chief judge said there would be no TV cameras allowed into court for the federal challenge to Prop 8, but that under a Ninth Circuit governing council is considering a pilot program to allow them. -DB

Legal Pad
A Cal Law Blog
December 16, 2009
By Dan Levine

As of today, cameras will not be permitted to televise the federal challenge to Prop 8. But that may change by the time trial starts next month.

Under local and circuit rules, television cameras aren’t allowed into court, said Northern District Chief Judge Vaughn Walker during a final pretrial conference Wednesday. However, the Ninth Circuit conference passed a toothless resolution a couple years ago supporting the concept in civil bench trials, just like the Prop 8 case. Now, the circuit’s governing council is mulling a pilot program to allow it, which “may be considered in the near future,” Walker said.

Later in the day, Legal Pad just happened to be at Seventh and Mission, chatting with Ninth Circuit Chief Judge Alex Kozinski. So we asked whether the circuit might pass the pilot program in time for the Jan. 11 Prop 8 trial. The normally loquacious Kozinski turned a touch furtive. “I really don’t want to comment,” he said.

En banc review of the recent Ninth decision on the case? Follow the jump.

Walker, for his part, clearly wants to revisit the topic if the circuit signs off. And lawyers representing the same sex couples do, too. “We have a great deal to say about it when it’s appropriate and propitious to do so,” said Ted Olson of Gibson Dunn & Crutcher. The Yes on 8 campaign didn’t weigh in on Wednesday, but it has previously opposed cameras on the grounds that they would subject Prop 8 supporters to public retribution.

In other matters, Walker decided he will hear from all of the anti-gay-marriage experts proffered by the Yes on 8 defendants, and then make decisions as to their credibility after the trial. The same sex marriage plaintiffs had sought to bar some of those academics from testifying at all, saying they were unqualified.

Walker also announced that he received a phone call Wednesday morning from the Ninth Circuit, saying there had been a call to review en banc a recent panel decision on internal Yes on 8 documents. Walker had ordered the campaign to turn over internal communications, but an appellate panel overturned him. Now, apparently, the full Ninth Circuit will take a look at whether the First Amendment protects those papers.

Walker indicated the circuit will make “every effort” to resolve the issue before trial next month. If the appellate court actually acts that fast, it would have to be an all-time record.

Federal judge orders Prop. 8 backers to cough up campaign strategy documents without delay

donal brown — Mon, 26 Oct 2009 17:36:30 +0000

Backers of proposition 8 were hoping to delay turning over campaign records while appealing a court order to surrender the documents. But a district federal judge ordered them to relinquish the documents so that Prop. 8 opponents could examine them for anti gay bias. -DB

San Francisco Chronicle

October 26, 2009
Bob Egelko

SAN FRANCISCO — A federal judge said sponsors of California’s ban on same-sex marriage may not delay in handing over campaign strategy documents to gay-rights groups that are looking for evidence of anti gay bias as they try to overturn the measure.

The sponsors had sought to keep the documents while challenging the order to turn them over in an appeals court.

But in a ruling late Friday, Chief U.S. District Judge Vaughn Walker of San Francisco said backers of Proposition 8 had failed to show that disclosing internal memos and e-mails would violate their freedom of speech or subject them to harassment.

He said they had refused to identify any documents that needed special protection and noted that he could order their opponents to keep any sensitive material confidential.

“It simply does not appear likely that (Prop. 8′s) proponents will prevail on the merits of their appeal,” Walker said.

He said he doubts that a federal appeals court even has jurisdiction to consider the dispute at this early stage of the case.

Prop. 8, approved by the voters last November, amended the California Constitution to define marriage as a union of a man and a woman, overturning a May 2008 state Supreme Court ruling that granted gays and lesbians the right to marry their chosen partners.

The lawsuit by two same-sex couples, a gay rights organization and the city of San Francisco contends Prop. 8 violated the U.S. Constitution’s guarantee of equality by discriminating on the basis of sexual orientation and gender. Walker has scheduled a trial in January.

Plaintiffs in the suit said documents from the Yes on 8 campaign might help them prove that the ballot measure was motivated by anti-gay bias, which would increase their chances of overturning it.

The measure’s sponsors, a conservative religious coalition called Protect Marriage, said voters were entitled to reaffirm the traditional definition of marriage and that the organizers’ alleged motives were irrelevant.

Walker ordered disclosure of the documents Oct. 1. In a court filing a week later seeking a stay, Charles Cooper, a lawyer for Protect Marriage, said the order would “cause future initiative proponents to censor their speech with campaign volunteers, donors, supporters and agents” and would “silence initiative supporters who wish to remain anonymous.”

Prop 8 Supreme Court hearing is best evidence yet for allowing cameras into the courtroom

Peter Scheer — Wed, 03 Jun 2009 00:22:11 +0000

By Peter Scheer

The California Supreme Court’s hearing yesterday in the Prop 8 case–broadcast live over the internet via streaming video–erased any doubt about the wisdom of allowing cameras into the nation’s courts.

Let’s hope US Supreme Court Justices David Souter, Stephen Breyer, Anthony Kennedy, Antonin Scalia and Clarence Thomas were watching the oral arguments on Prop 8′s constitutional amendment banning same-sex marriage. They are the camera-allergic justices who have publicly stated their opposition to televising the US Supreme Court’s oral arguments (and other public proceedings).

The video coverage of the Prop 8 proceeding is important not merely because of its educational value–although it certainly was educationally eye-opening to anyone who has not attended a Supreme Court argument. Broad public access to the Prop 8 arguments is essential because it will enhance the legitimacy of the Court’s eventual decision in a politically-charged and divisive case.

Viewers on both sides of Prop 8 saw the California Supreme Court justices struggling to make sense of the parties’ positions in the context of a continuum of legal precedent. While they may have expected to see a partisan foodfight, instead they saw thoughtful and well-informed judges asking questions of the lawyers to test the applicability of general legal principles to the specific facts of this case. It is an exercise that, among other things, highlights the complexity of the legal issues.

If, as seems likely from the justices’ questions, the Court upholds Prop 8 (while leaving intact the marriages held prior to the November election), Prop 8′s opponents will–because of the video coverage–be more inclined to respect that outcome. They will disagree with it; they will organize to reverse it through the political process; but they are not likely to believe in large numbers that they have been cheated by the judicial system.

Legitimacy, the most valuable asset of any court, is diminished by judicial secrecy and enhanced by openness. Justices of the US Supreme Court, take note.