Prop. 8: Trial TV blackout permanent?

By Lyle Denniston
on Apr 21, 2011 at 2:19 pm

The Supreme Court’s January 2010 order blocking public TV broadcasting of the trial on the constitutionality of the Proposition 8 ban on same-sex marriage is a total ban, so the videotape of the trial must remain sealed permanently, the proponents of the marriage measure argued on Thursday.  The argument against any replay publicly of the trial videotape came in this reply brief.

It has been 15 months since the last testimony was heard in the case (lawyers’ closing arguments came later, as did the trial judge’s ruling striking down Proposition 8), but the time lapse has not ended the controversy over whether the full videotape of the trial should ever be seen by the public.

 The ongoing controversy now turns, in significant part, on conflicting interpretations of the Supreme Court’s 5-4, 17-page decision issued Jan. 13, 2010, when the trial was only in its third day.  (An earlier temporary order by the Court blocked TV for the opening days of the trial.)  A full videotape does exist, however, and the fate of that recording is now at the center of the legal dispute over access to and uses of  it.

The two same-sex couples who successfully challenged Proposition 8 in the trial have argued recently, with the support of the city of San Francisco and a coalition of media orgaizations, that the Supreme Court only blocked the real-time broadcast of the trial beyond the courthouse in San Francisco. 

 However, the backers of Proposition 8, in their reply filed Thursday, argued that the Court ruling amounted to a total and permanent prohibition on any broadcast, in any venue or forum.

It is at least arguable, from the actual text of what the Supreme Court did, that both sides can find in it support for their views of what had occurred.  

On the one hand, the Court stressed in that opinion that it was taking only limited action, to stop streaming of the video beyond the San Francisco courthouse, until after it could rule on a later appeal that the Proposition 8 backers did, in fact, file.   The Court never did issue a final ruling on the legality of the plan to broadcast the trial, but instead found the legal controversy “moot” after the trial testimony had ended.  The Court majority had indicated that it was concerned about the widespread broadcast of the trial resulting in intimidation of witnesses.

On the other hand, the Court did suggest that a judiciary-wide ban on television of federal court trials, as well as a local rule in the San Francisco court, may have been violated by the judge’s plan to broadcast the trial.  And the Court majority had noted that the local rule banned the recording of a trial for the purpose of public broadcasting.

This new layer of controversy got stirred up when the proponents of the marriage ban learned in March that the trial judge, U.S. District Judge Vaughn R. Walker, had used a three-minute clip of the videotape in at least two public lectures (the judge has retired from the bench). The proponents thus asked the Ninth Circuit Court, where an appeal of Walker’s ruling is pending, to order the judge and the lawyers in the case to return all copies of the trial videotape, and to prevent the judge from any further use of it in public.   The judge, in his own filed response, said he will do whatever the Ninth Circuit decided to order.   The videotape exists under seal in the record in Judge Walker’s District Court, but he also retained a copy in his own files on the case.

Reacting to the complaint about public use of a portion of the videotape, the same-sex couples, San Francisco officials, and the coalition of media urged the Circuit Court to do just the opposite: now that the trial is long over, they argued, it should unseal the entire recording, and allow its public dissemination, in the interest of allowing the public to view a historic proceeding.   These groups have relied upon a First Amendment claim that records of trials are traditionally open.

It thus appears that, when the Circuit Court reacts to the new dispue, it might have to provide its own interpretation of what the Supreme Court’s action in 2010 meant.  It could, however, rule based only on its understanding of what local court rules allow, although that seems less likely.

There is also an issue of whether the Circuit Court should deal itself with this new dispute, or refer it back to the District Court, where the videotape was made and is now technically stored.  The Proponent 8 backers argued Thursday, however, that the full record of the case is now before the Circuit Court, as part of the appeal process, so the District Court has at least temporarily lost any power to issue orders in it.

Given the strength of the views on each side of this broadcast-or-not controversy, it would not be at all surprising if the issue would wind up back in the Supreme Court, for the Justices to say what the majority had intended when it stopped the trial broadcast.