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Why the 9th Circuit Decision on the Prop 8 Tapes Undermines Our Democracy

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Yesterday, Feb. 2, the 9th Circuit Court of Appeals overturned a district court's previous ruling to release the video recordings of the Perry v. Brown trial. The 2010 trial, about the constitutionality of Proposition 8, a voter-approved constitutional amendment restricting marriage to heterosexual couples, was widely followed, and resulted in a landmark ruling supporting marriage equality under both the Equal Protection and Due Process provisions of the U.S. Constitution. Yesterday's appellate ruling means that the public will not get to watch footage from the historic trial, in a loss for transparency and the free dissemination of information. The plaintiffs working to release the tapes did not yet immediately indicate whether they would appeal the decision.

The Perry trial should have included a public broadcast from the beginning. District Court Judge Vaughn Walker entered the trial into a pilot program begun by the 9th Circuit to allow cameras into the courtroom. That pilot program was specifically created for high-profile, high-interest cases like Perry v. Brown -- cases in which the public would have something to learn from watching the proceedings that occurred in court. Judge Walker sought to gauge public opinion on the broadcast through a public comment period. The results: 138,574 comments in favor (many of them through Courage Campaign's petition, which was ultimately cited in the Supreme Court dissent on the matter), and 32 comments opposed.

Nevertheless, the proponents of Proposition 8 went all the way to the Supreme Court to make sure the trial was not broadcast. They claimed that their witnesses would face retribution from marriage equality supporters. The Supreme Court agreed and stayed the broadcast. Walker withdrew the case from the pilot program and recorded the trial proceedings for his own use in chambers.

In its ruling yesterday, the 9th Circuit did not address the spurious claims of Prop 8's proponents that a public broadcast would endanger their witnesses and supporters. The proponents have not been able to prove their claims in court, and the 9th Circuit panel considering the appeal was rightfully skeptical of these allegations when it heard oral arguments in December. Nonetheless, they have chosen to keep the tapes under seal, reversing the lower court decision of Judge James Ware, who took over the case after Judge Walker retired. Judge Ware agreed with the opponents of Prop 8 and a broad coalition of media companies that the public had a right to see trial for themselves.

It is admirable for the 9th Circuit to argue, as it did in its ruling, that the integrity of the judicial system is of paramount importance to its very success. Yes, Judge Walker did promise the proponents of Prop 8 that there would be no public broadcast of the trial recordings. And there wasn't.

In choosing to keep the recordings under seal, the 9th Circuit has unfortunately dealt a blow to transparency in the courtroom. There is no new information contained in the recordings that is not already part of the public record. The trial's full transcript can be found online, and has been reenacted by both celebrities and regular citizens alike who wanted to spread the word about this historic trial. A star-studded production of the play 8, written by Milk screenwriter Dustin Lance Black and based on the transcripts, was performed last fall in New York. Another celebrity cast will perform the show in Los Angeles this March.

Rather, the recordings contain something more powerful and more intangible than mere words. They contain body language, tone of voice, and the many other verbal and non-verbal cues that we use to communicate with one another. Because the 9th Circuit has chosen to keep the recordings sealed, the public may never have the chance to experience the Perry trial in all its complexity. And that is a loss for all of us.

This post was co-written with Jacob Combs.