BREAKING NEWS: Federal judge temporarily unseals Proposition 8 videos for public viewing

SAN FRANCISCO – Chief District Judge James Ware this morning granted a motion to temporarily unseal the video recordings of the Proposition 8 trial until Sept. 30, allowing anti-gay supporters of the California law to appeal his decision.

Judge Ware refuted every single argument made by Prop 8 supporters on why the video recordings should remain sealed, arguing that the public's right to know is paramount.

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 trials and public access to the record of judicial proceedings. Consequently, once an item is placed in the record of judicial proceedings, there must be compelling reasons for keeping that item secret. In the course of the non-jury trial of this case, at the direction of the presiding judge, court staff made a digital recording of the trial. After the close of the evidence, the judge ordered the clerk of court to file that digital recording under seal. The trial record is closed and the case is currently on appeal to the Ninth Circuit.

Presently before the Court is a Motion by Plaintiffs to unseal the recording.1 The Motion is opposed by Defendant-Intervenors. Upon review of the papers and after a hearing conducted on August 29, 2011, the Court concludes that no compelling reasons exist for continued sealing of the digital recording of the trial. Accordingly, the Court GRANTS Plaintiffs’ Motion to Unseal and ORDERS the Clerk of Court to place the digital recording in the publicly available record of this case.

The issue was the topic of a hearing in Ware’s federal courtroom on Sept. 6 in San Francisco, in which attorneys for Prop 8 supporters asked the judge to keep the videotape out of the public eye. Lawyers for the American Foundation for Equal Rights (AFER), which successfully argued in district court that Prop 8 is unconstitutional, urged the judge to let the American people see what happened during the historic 2010 trial.

David Thompson, an attorney for the Prop 8 supporters, contended that the release of the videotape would put their two star witnesses in harm’s way because their faces and voices would become publicly known. AFER attorneys argued that because the two witnesses are already publicly known because they have frequently testified for anti-gay groups in trials. Furthermore, the AFER attorneys noted that the two witnesses have not been “intimidated” in any way since the Prop 8 trial last year.

The Proposition 8 supporters mounted a $45 million ad campaign that narrowly persuaded California voters to overturn marriage equality in November 2008. After a three-week trial, then-Chief District Judge Vaughn Walker on Aug. 4, 2010, ruled that Prop 8 was unconstitutional.

Theodore “Ted” J. Boutrous, a prominent attorney on the AFER team, made a strong case for why the videotape should be released, saying that there is a strong presumption of public access to judicial records and the lack of any basis for why the videotape should be kept secret.

“We have a strong tradition of openness in this country and the First Amendment and common law make judicial records and proceedings presumptively open to the public. This presumption applies with full force to videotaped record of this historic trial,” Boutrous said.

“The proponents have been utterly unable to explain why the public should be barred from seeing and hearing for themselves what happened in a public trial potentially affecting the rights of millions of Americans. The real reason that the proponents are fighting public release is that do not want the world to see the powerful evidence we submitted showing that Proposition 8 flatly violates the Constitution and the extraordinarily weak case that they put on trying to defend this discriminatory law.”

Also arguing for the videotape’s release were various news organizations, including The Associated Press, Fox News, NBC News, The New York Times and Los Angeles Times.

To read the judge's full ruling, click HERE.

Reactions to the decision

Chad Griffin, AFER board president:

“This is a significant victory for the American people, who will soon be able to see the evidence put forward by both sides in this historic federal trial. Unlike political campaigns, in a court of law, the truth and facts are all that matter. When witnesses take the stand, they are under oath and under penalty of perjury, and their statements are subjected to cross-examination and scrutiny. The public will soon see the extraordinarily weak case that the anti-marriage Proponents presented in a desperate attempt to defend this discriminatory law.”

Shannon Minter, legal director of the National Center for Lesbian Rights:

“Judge Ware’s ruling is a great victory for openness and transparency. Our democracy depends on the public's right to know what takes place inside our nation's federal courts, especially in cases addressing fundamental constitutional rights that affect every person. The proponents of Prop 8 should be ashamed for fighting to bar public access to this historic trial.”

Roland Palencia, executive director of Equality California:

“During the trial, proponents of Prop 8 based their arguments for preserving the amendment on malicious lies and cruel stereotypes about gay, lesbian, bisexual and transgender people.
“Proposition 8 supporters wanted to keep these tapes secret because they reveal the ugly truth about the extremist motivations behind this and other anti-equality efforts, such as a referendum to overturn the FAIR Education Act, that they try to cloak behind 'pro-family' rhetoric.

“The public has the right to know the truth. Today's ruling is a victory for equality, for transparency and for the fundamental principles of our democracy.”

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