03/18/2010 05:12 am ET | Updated May 25, 2011

Prop 8 Backers Ask Federal Judge to Ban Cameras, Plaintiffs Reply

Charles Cooper -good

Charles Cooper, the attorney representing the Prop 8 supporters in the Perry v Schwarzenegger federal case challenging Prop 8, filed two letters asking the judge not to allow TV cameras into the courtroom. The letters are in response to a media coalition's request to allow at least pool TV coverage by In Session, formerly Court TV (see my coverage here and here - and Ted Johnson's coverage at Variety's Wilshire and

The plaintiffs - a legal team represented by famed attorneys Ted Olson and David Boies - responded to District Court Chief Judge Vaughn Walker saying they support broadcasting the trial.

Though the public has had years of experience watching televised trials from OJ Simpson to the on-going cases at Court TV/In Session and even Judge Judy and her imitators, federal courts do not allow broadcasting of trials. However, the Ninth Circuit is ready to launch a pilot project to try it and speculation has been that - given the international attention this case has already generated - the Prop 8 challenge set for Jan. 11 in San Francisco might be a good place to begin.

Variety's Ted Johnson at Wilshire&Washington reportsthat Walker has received so many letters for and against allowing TV cameras in the courtroom that he has scheduled a hearing on the issue for Jan. 6.

Cooper's letter sent Monday (Dec. 28) refers extensively to the Judicial Conference of the United States' policy that first talked about how "the intimidating effect of cameras on some witnesses and jurors was cause for concern." In 1996, the Judicial Conference adopted a policy "based upon the potentially negative impact that the public broadcast of federal trial court proceedings could have on the administration of justice."

Later in his letter, Cooper headlined a whole section this way: "The Judicial Conference's Fair Trial Concerns Apply With Great Force in This Case." He wrote:

Most importantly, given the highly contentious and politicized nature of Proposition 8 and the issue of same-sex marriage in general, the possibility of compromised safety, witness intimidation, and/or harassment of trial participants is very real. Indeed, lead counsel for Plaintiffs has acknowledged that "widespread economic reprisals against financial supporters of . . . Proposition 8" resulted from public disclosure of the names of donors during the campaign. Doc #187-1 at 6-7.

And the record of other forms of harassment against Proposition 8 supporters is well documented. See Doc #s 187-1, 187-2 at ¶¶ 10-12; 187-9 at ¶¶ 6-8; 187-9 at 12-15; 187-11; 187- 12 at ¶¶ 5-6; 187-13 at ¶ 8; see also Thomas M Messner, The Price of Prop 8, The Heritage Foundation, available at ("expressions of support for Prop 8 have generated a range of hostilities and harms that includes harassment, intimidation, vandalism, racial scapegoating, blacklisting, loss of employment, economic hardships, angry protests, violence, at least one death threat, and gross expressions of anti-religious bigotry"). This campaign of harassment and reprisal has often been "targeted and coordinated," id., and the retaliation has often been quite serious. See, e.g., Doc # 187-11 at 81 (Brad Stone, Disclosure, Magnified on the Web, N.Y. Times (Feb. 8, 2009) ("Some donors to groups supporting the measure have received death threats and envelopes containing a powdery white substance....").


With this background, it is not surprising that potential witnesses have already expressed to Proponents' counsel their great distress at the prospect of having their testimony televised. Indeed, some potential witnesses have indicated that they will not be willing to testify at all if the trial is broadcast or webcast beyond the courthouse.

(The second Cooper letter apologized for having gone on about the Court's Local Rule 77-3. Se Notice Concerning Revisions of Civil Local Rule 77-3, at e34847a5588257695007f5f75?OpenDocument.)


Theodore J. Boutrous, Jr, counsel for plaintiffs, authored the letter to Judge Walker in response to Cooper's letter.

Boutrous wrote that, "It is well within this Court's authority to televise the trial proceedings." And he goes on to explain why, noting also that the

Southern District of New York and the Eastern District of New York have policies expressly authorizing judges to broadcast civil proceedings. See S.D.N.Y. Local Civ. R. 1.8; E.D.N.Y. Local Civ. R. 1.8.

Televising the bench trial proceedings in this case would also promote deeply rooted First Amendment principles that favor broad public access to judicial proceedings.

But it is Boutrous' response to the second part of Cooper's - the part about how some of his potential witnesses are already so intimidated by the prospect of speaking out in favor of heterosexual-only marriage that they may not testify - that is extremely important.

More than 13 million Californians cast a vote for or against Prop. 8. And there are hundreds of thousands of gay and lesbian Californians who have a direct stake in the outcome of this case. Ultimately, however, the issues in this case are of such transcendent importance that every Californian should be afforded an opportunity to view the proceedings to the greatest extent practicable. Indeed, far from detracting from the right of public access (Doc # 324 at 6), the "highly contentious and politicized" character of the issues to be resolved in this case underscores the importance of providing the public with a meaningful window into the trial proceedings so it can see and hear what is happening in the courtroom. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984) ("The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed."). The "ability to see and to hear a proceeding as i[t] unfolds is a vital component of the First Amendment right of access." ABC, Inc. v. Stewart, 360 F.3d 90, 99 (2d Cir. 2004).

Proponents' concerns about "the possibility of compromised safety, witness intimidation, and/or harassment of trial participants" (Doc # 324 at 6) are utterly unsubstantiated and groundless speculation. Indeed, Proponents willingly thrust themselves into the public eye by sponsoring Prop. 8 and orchestrating an expensive, sophisticated, and highly public multimedia campaign to amend the California Constitution. They certainly did not exhibit a similar fear of public attention when attempting to garner votes for Prop. 8 from millions of California voters, when touting their successful campaign strategy in post-election magazine articles and public appearances (see Doc # 191-2;, or when voluntarily intervening in this case.

In any event, many aspects of the trial--including opening and closing arguments and testimony by the parties' experts (who were designated after the Court first raised the possibility of televising the proceedings)--will not even remotely implicate Proponents' purported witness-related concerns.


If this case--which raises constitutional issues of vital importance and overriding interest to millions of Californians and citizens across the Nation--is not appropriate for broadcast under the pilot project, it is difficult to conceive of any case that would be.

Boutrous makes a sound legal argument against Cooper's fearful whine about the possibility of intimidation.

Let me be not so nice. In fact, the audacity of the complaint infuriates me! Did some angry gays erupt in protest after the passage of Prop 8 - yes, as is their right. Was their reaction at having what the California Supreme Court called their fundamental constitutional right taken away by a majority vote frightening to some straight people - no doubt. Just like the anti-Vietnam War demonstrators and the Black Panthers and the Chicano and Asian-American civil rights movement and ACT UP and the bra-burning Women's Libbers and the Transgender Menace scared the hell out of The Establishment they were protesting.

Truthfully - given the long long long history of violence against LGBT people - from the biblical "abomination" curse that enabled religious people to justify killing and maiming homosexuals in the name of God, to the murder of the psyches and emotional well-being of LGBT youth, to disdain from family and by extension, society, to lobotomies in the name of mental health, to the LAPD pronouncing us NHI - "no human involved" - I'm truly surprised we are, in the words of Holly Near, "a gentle loving people."

Can those straight heterosexual Christians claim the same? No, the one Christian who had done to him what we endure on a daily basis was really about peace, love and no judgment - something the LGBT movement for equality - and especially the marriage movement - is all about. If anything, the LGBT community is more in the vanguard of spirituality, the essence of the Good News about love, than the holier-than-thou religious bigots who find some reason to hate their gay neighbor.

Cooper says the Prop 8 supporters he represents fear intimidation? A couple of brief, sporadic economic boycotts are not the equivalent of what the FBI said on Nov. 23 was an 11% increase in hate crimes against gays.

Santa Clara County Deputy District Attorney Jay Boyarsky said last March that violent crimes against gays and lesbians accounted for more than half of the hate crimes last year - a huge leap from the 15% reported in 2007:

My belief from having done this work for many years is that surges in types of hate incidents are linked to the headlines and controversies of the day. Marriage equality and Proposition 8 have been in the news, and we have seen an increase in gay-bashing.

The LA County Hate Crime report released Nov. 19 indicated an overall 4% drop in hate crimes - but a spike in hate crimes against LGBTs largely because of Prop 8. The LA County Commission on Human Relations' annual Hate Crime Report said there were 134 sexual-orientation hate crimes reported last year, up from 111 in 2007, and were more likely to be violent than hate crimes motivated by race or religion.

Lorri Jean

Lorri Jean, CEO of the LA Gay and Lesbian Center, said at a news conference:

"I am very sad to be here today because my presence means that my community - lesbian, gay, bisexual and transgender people - were horribly impacted by hate crimes in 2008.

Anti-gay and anti-transgender hate crimes do not happen in a vacuum," she said, "they happen in the context of a society that still tolerates and even promotes discrimination against us."

And the 14% increase in religious hate crimes - that was attributed to 15 crimes targeting the Church of Scientology, the commission said.

Indeed, one agonist website went where even gays feared to tread, referring to the FBI hate crime report and asking:

The quick answer to the question "How many Christians were killed in the US in 2008 for their religion?" is zero. Not one Catholic, Protestant or any other sect of Christians suffered one member of their religion being martyred for Christ. But seven people were murdered last year in a hate crime: one of them for being black, one for being Hispanic, and five of them for being homosexual or lesbian.

There were 47 aggravated assaults classified last year as motivated by religion. Of these, one was against a Catholic, and three were against Protestants. The rest were overwhelmingly against Jews or Muslims. Compare this to 232 aggravated assaults against gay people, 6 rapes, 501 simple assaults, and 419 cases of intimidation. In every single category of crimes against persons or property (such as arson, robbery, or vandalism), there are at least 5 times more crimes against gay people than Christians, Jews or Muslims.

In terms of the sheer number of crimes, the only thing worse than being a gay person in America is being an African-American, but as gays are statistically a much smaller percentage of the population than blacks, the odds of suffering a hate crime is much, much higher for gay people than anyone else in this country.

And the least persecuted people? Christians. Christians aren't being dragged out of their homes, hung up on crosses, burned alive, beaten senseless, raped, or dragged behind pick-up trucks along country roads. But gay people are - there are documented cases of these crimes.

Boutrous wrote:

Proponents' concerns about "the possibility of compromised safety, witness intimidation, and/or harassment of trial participants" (Doc # 324 at 6) are utterly unsubstantiated and groundless speculation.

This is clearly an understatement aimed at a reasonable man, Judge Walker. But what Boutrous and by extension Olson and Boies need to understand is that Cooper and his legal team are not just pitching Walker - they are pitching the public. Cooper's argument against TV in the courtroom is a legal variation of the successful Prop 8 marketing campaign about "consequences."


Here's Jeff Flint of Prop 8 campaign managers Schubert/Flint explaining (about 4 minutes into the tape) the "art and science" of what they do - and the principle of raising a doubt about something:

raising a doubt and projecting a doubt forward that you have to get people to believe may happen - but it hasn't happened yet. So in this case, gay marriage had been legal for a few months and we wanted people to understand that that could mean consequences - but largely because it was a new thing, those consequences were something that could happen in the future.... Something could happen that you may not like so you need to vote Yes to stop that from happening.

It would be nice if this federal challenge to Prop 8 was simply a principled legal battle fought by gentlemen. But if we've learned anything about the fight over Prop 8 in California - or marriage equality in Maine or anywhere else - it's that for one side, the fight is neither simple nor principled. And with enough political pressure, even judges can lose sight of the prize of full equality for all.