Theodore Boutrous

A federal district court judge in San Francisco Monday (August 29) heard vigorous arguments over a request to release for public viewing a videotape of last year’s historic trial on Proposition 8.

Public release of the videotapes has been considered barred since January 2010, when the U.S. Supreme Court ruled at the start of the trial that there could be no broadcast of the court proceedings. One question U.S. District Court Chief Judge James Ware posed during Monday’s hearing, according to Twitter reports, was: “Now that the trial is over,” can the prohibition on broadcasting be set aside?”

The legal team challenging the ban on marriage for same-sex couples requested the hearing to convince Ware to allow for public release of the videotapes.  Ware said, at the end of the proceeding Monday morning, that he would issue a ruling on that request soon.

Live reports from Monday morning’s proceedings in San Francisco were transmitted via Twitter by the American Foundation for Equal Rights, which has sponsored the litigation challenging Proposition 8, and the Courage Campaign, an online organizing group that supports marriage equality.

According to those reports, Ware indicated at the top of the hour-long hearing that neither side in the litigation had sought to strike the videotapes from the litigation’s official record. But Yes on 8 did object to the broadcast of today’s hearings and last week, Ware granted that request and barred broadcast of today’s hearing.

Ted Boutrous, one of the top attorneys for the team challenging Proposition 8, told Ware that releasing the videotapes will enable the public to “see and hear” why Ware’s predecessor ruled Proposition 8 unconstitutional. A lengthy, written transcript of the full proceeding has been available to the public for some time.

“It is difficult for people to accept what they are prohibited from observing,” Boutrous told Judge Ware, according to the AFER Twitter report. Boutrous said the release of the videotapes would also be helpful in addressing concerns raised by Yes on 8 that the trial was somehow unfair to Yes on 8.

Boutrous noted that Yes on 8 has also claimed that release of the videotape would leave Yes on 8 witnesses at the trial vulnerable to harassment. But, Boutrous noted, the dual argument –that the trial was unfair but don’t release the videotapes – is trying to “have it both ways.”

“The public’s interest would have been best served by the broadcast of the trial,” said Boutrous.

According to the Courage Campaign Twitter feed, Ware pressed Boutrous on his motives for seeking release of the videotapes, and noted that federal trials and hearings are not usually broadcast.

At the time of the Proposition 8 trial, the 9th Circuit U.S. Court of Appeals was just beginning to roll out a new program to consider allowing for broadcast of trials and hearings. Judge Vaughn Walker, who presided over the Proposition 8 trial, asked to allow broadcast of that trial as part of the new program. Ultimately, the U.S. Supreme Court weighed in and said no.

Both AFER and Courage Campaign Twitter reports noted that Judge Ware said he was “bothered” by the fact that the videotape was in existence because of Judge Walker, and not because of one of the parties to the litigation.

“I am bothered by the question of what to do with something that is recorded by the judge’s action,” said Ware, according to the Courage Campaign.

But Boutrous said Judge Ware should look at the videotape as it looks at the written transcript. The videotape, said Boutrous, is just the “transcript-plus …plus audio, plus video.”

Boutrous showed Judge Ware a video clip from a re-enactment of the trial, a clip starring Academy Award-winning actor Marisa Tomei as plaintiff Kristen Perry. And then the same clip from the actual video recording of the trial. Boutrous also replayed a clip from the actual video recording of the trial in which Yes on 8 expert witness David Blankenhorn agreed with plaintiffs that allowing for marriage equality would make our society “more American.” He followed that with a clip from the re-enactment. Both AFER and Courage Campaign indicate the re-enactment comes across as very different from the actual recording.

AFER and Courage Campaign say Judge Ware commented to Boutrous that he does not believe the court has a role in educating the public and asks Boutrous to identify a legal authority to justify release of the videotapes. They did not indicate whether Boutrous was able to identify such an authority but quoted Boutrous as arguing that release of the videotapes is necessary to defend the “integrity of the court.”

Christine Van Aken, from the San Francisco City Attorney’s Office, which has also opposed Proposition 8, was also given time before Judge Ware. She said Yes on 8 claims about potential for harassment are unfounded, that there’s been no indication of intimidation, according to the AFER Twitter report. And, says Van Aken, certain actions –such as boycotts—are types of expressions protected by the First Amendment. Van Aken said it should require more than just “hypothesis and conjecture” about harassment to justify keeping the videotapes under seal. Attorney Thomas Burke, representing the “Media Coalition,” a group of mainstream news organization seeking to broadcast the videotapes, agreed.

“If you can have the [written] transcripts publically available,” said Burke, according to the AFER Twitter report, “surely the public cannot be hurt by seeing the actual testimony.”

Yes on 8 supporters argued against videotaping the trial and don’t want the tapes in public circulation, claiming it will enable opponents of Proposition 8 to harass Yes on 8 witnesses. In documents filed with the court, they said release of the videotapes will lead to broadcast of the trial proceeding, in violation of a longstanding policy of not broadcasting trials. They also claimed it violated the “spirit” of the U.S. Supreme Court order that the trial not be broadcast live outside the federal courthouse in San Francisco where the trial took place.

In court Monday, Yes on 8 attorney David Thompson said his legal team did not object to Judge Walker’s videotaping of the trial because of Walker’s assurances that the video would be used only by him, in chambers, in preparation of his final decision in the case. According to Twitter reports from AFER and Courage Campaign, Thompson said one of Yes on 8’s two witnesses relied on that assurance in deciding to testify. Thompson, in response to a question from Ware, said it would be in violation of the court’s seal for even the 9th Circuit—which has an appeal of Walker’s decision before it—to play the videotapes. To abide by the seal, said Thompson, the 9th Circuit judges would need to view the recording from the San Francisco federal courthouse “in this courtroom.” There can be no electronic transmission of the videotape outside the courtroom, said Thompson.

“Our concern is not with the 9th Circuit view it,” said Thompson, according to the AFER Twitter report, “our concern is with it being made public.”

Ware, according to the AFER and Courage Campaign reports, expressed some discomfort with Thompson’s argument, saying he was concerned it might “interfere” with the 9th Circuit’s ability to review the record in the case. He reiterated his initial notation that no one had requested to strike the videotape from the official record of Perry v. Brown. But Thompson said the videotapes are not part of the official record; only the written transcript is.

Ware pressed Thompson to explain the difference in harm between public availability of the transcript and availability of the videotapes.

“You know what [the witnesses] look like. You know what they sound like,” said Thompson, according to AFER’s Twitter report.

But, on rebuttal, AFER attorney Ted Boutrous dismissed Thompson’s concern as “flimsy.”

“It would take literally two seconds for someone to see Mr. Blankenhorn talk for hours about [same-sex] marriage,” said Boutrous, an apparent reference to AFER’s claim that Blankenhorn that Yes on 8’s other witness make frequent public appearances to talk about their opposition to marriage equality. Boutrous also said AFER considers the videotape to be part of the official judicial record.

In a brief to Judge Ware July 15, Charles Cooper, the lead attorney for Yes on 8 concerns in the litigation, said his client also objects to the court’s returning to Judge Walker a copy of the videotapes for retention as a part of his judicial papers.

In June, Ware rejected a request from Proposition 8 supporters to take possession of and sequester the videotapes permanently. He also rejected their request to vacate the August 2010 ruling –that Proposition 8 is unconstitutional—by then U.S. District Court Chief Judge Vaughn Walker. Yes on 8 proponents had argued that, because Walker confirmed in April 2011, two months after he retired from the bench, that he has been in a relationship with a man for the past 10 years, he should have recused himself from presiding over and deciding the Perry v. Brown (formerly Perry v. Schwarzenegger) lawsuit.

On September 6, the California Supreme Court will hear oral arguments on whether there is any authority in state law to justify allowing Yes on 8 attorneys appeal Judge Walker’s decision in Perry v. Brown given that state officials have decided against appeal and have asked to abide by Walker’s decision.