Prop 8 Appeal To Be Televised

Rex Wockner tips us to a major development in next month's appeal of the overturn of Proposition 8 before the Ninth Circuit Court.

United States Court of Appeals for the Ninth Circuit
Notice of Docket Activity
The following transaction was entered on 11/17/2010
Case Name: Kristin Perry, et al v. Arnold Schwarzenegger, et al
Case Number: 10-16696

[snip]

C-SPAN applied to televise live the case captioned above, scheduled to be heard in San Francisco, on December 6, 2010 at 10:00 a.m. C-SPAN's request to televise live is GRANTED. A maximum of two (2) video cameras will be permitted in the courtroom. C-SPAN will serve as the pool-feed for all media organizations that submit an application.

As you may recall, the first hearing of Perry Vs. Schwarzenegger was to have been broadcast on YouTube, but Protect Marriage rushed to the Supreme Court to prevent that because they didn't want their witnesses to become national laughingstocks. Let's see if they try that again.

Supreme Court Rules Against Release Of Proposition 8 Trial Videotapes

Yesterday the Supreme Court ruled that video taken during the Proposition 8 trial may not ever be released.

The Supreme Court on Monday ordered the 9th Circuit to dismiss as moot a dispute over the release of videotape from the trial overturning Proposition 8, California's voter-approved ban on gay marriage. Prop 8 supporters had sought to block the retention and release of trial video even to the parties, fearing it might eventually be released to the public. The 9th Circuit refused to intervene, and the Supreme Court vacated and remanded, instructing the circuit court to dismiss the dispute as moot after the justices ruled 5-4 on Jan. 13 to block any broadcast of the trial to the general public.

NOM has already tweeted in celebration of the ruling.

No Cameras For Prop 8 Trial Finish

Despite what was speculated in Thursday's SF Chronicle, Karen Ocamb at LGBT POV reports that there were not be a broadcast of the closing arguments at Perry vs. Schwarzenegger. From a press release from the Court:

1. On January 15, 2010, Chief Judge Walker withdrew his previous request to include Perry et. al. v. Schwarzenegger et. al . in the Ninth Circuit’s pilot program permitting broadcasting of district court proceedings in limited circumstances. On the same date, Chief Judge Kozinski approved the request to withdraw the Perry case from the program. Broadcasting closing arguments would require Chief Judge Walker to request that these arguments be included in the Ninth Circuit’s pilot program and approval of that request by Chief Judge Kozinski. No such request has been made.

2. The presentation of evidence has not been completed; defendant-intervenors requested that their case remain open pending completion of discovery they are seeking from third parties. The proceedings concerning this discovery are on-going. Further information regarding the date for closing arguments will be made available on the court’s website when a date has been scheduled.

Prop 8 Trial Closing Arguments May Be Televised After All

The closing arguments in Perry vs. Schwarzenegger might just be televised after all.

Despite a rebuff from the U.S. Supreme Court, the Bay Area's federal judges are again proposing to allow cameras in their courtrooms, a plan that could lead to telecasting of closing arguments in a suit challenging California's ban on same-sex marriage. The U.S. District Court in San Francisco has posted a rule change on its Web site that would allow its judges to take part in a pilot program of airing selected nonjury civil trials. The public comment period began Feb. 4 and ends Thursday.
The proposal is the same one Chief U.S. District Judge Vaughn Walker adopted in January after a week of overwhelmingly favorable public comment. But the Supreme Court intervened when Walker approved camera coverage of the trial over Proposition 8, the November 2008 initiative that outlawed same-sex marriage.

Protect Marriage says they won't speculate on opposing the broadcast until they know if it is really going to happen.

You Can't Turn The Lights Off

Courtesy of 33 collaborators who were attending the Sundance Film Festival, here's a cute Schoolhouse Rock-ish take on the decision not to broadcast the Prop 8 trail. The message is that in world of live-blogging and Twitter, the words of bigots will be known. The video was made by HitRECord, which was founded by actor Joseph Gordon Levitt.

(Tipped by JMG reader Jessica in Salt Lake City)

Maggie Knows Prop 8 Is Lost (And It's All Because Of Violent Homofascists!)

Maggie Gallagher has posted a letter she sent to Perry vs. Schwarzenegger Judge Vaughn Walker, in which she complains that Protect Marriage's case was ruined, simply ruined, because of all those witnesses that fled the potential violent fury of raging homofascists.

The price of participating in a trial should not be the willingness to tolerate even a minimum of reasonable threats to one’s livelihood or personal safety. The Supreme Court stepped in to prevent the broadcast of these hearings. But it was too late. Expert witnesses had already dropped out. The trial had been changed, forever, by the mere prospect of television broadcast. Our case for Proposition 8 has been deeply harmed. The public record has been impoverished and the information available to reviewing courts permanently reduced all because some witnesses feared retaliation as a result of the publicity. I wish they had more courage, but I cannot view their fears as unreasonable. The first purpose of a trial is to do justice to the litigants.

As much as I would personally love to be able to see the Proposition 8 trial unfold in real time, I cannot contemplate the reasons why a court should subordinate justice to some other interest, whether it is public entertainment or public education. The purpose of a trial is not to educate the public. It is to do justice to the parties the court has permitted in the court room. Where there is a conflict, or a potential conflict, courts must adhere to their primary purpose and eschew any innovations that threaten that purpose. If television is ever to be permitted, it should only be when all parties to the litigation agree. Anything else is a travesty of justice, a subordination of the purpose of a court system to some other goal. Here’s the bottom line: If the Supreme Court should overturn Proposition 8 and find a constitutional right to gay marriage I will never know whether or not that would be a result of the haste to televise the trial. And it is to no-one’s interest that such a reasonable doubt should be thrown on the deliberations of the Supreme Court.

She is pre-arranging her victim status for her post-decision speaking tour. Delicious.

The Omen, Starring SCOTUS

Last week's SCOTUS decision to bar the televising of Perry vs. Schwarzenegger has many reading the ruling as an omen of how they will rule when the case reaches them.

Legal experts on the left and right gleaned three insights from the high court intervention: First, the justices are following this case closely. They typically rule on appeals after cases are decided. It is rare for them to intervene in a pending trial. Second, the court's conservatives do not trust Walker to set fair rules for proceedings. Their opinion described how he had given shifting explanations of his plans. This suggests Walker's ruling on Proposition 8 may be viewed with some skepticism. And third, the majority has a distinct sympathy for the foes of same-sex marriage. The justices cited a series of newspaper stories reporting on the threats and harassment faced by those who have publicly opposed gay unions.

"The ideological split was stunning," said Erwin Chemerinsky, a liberal law professor and dean of the UC Irvine Law School. "It made me think of Bush vs. Gore" -- when, after the 2000 presidential election, the Supreme Court issued a 5-4 emergency order to halt the recount of Florida's paper ballots and three days later ended the recount. Last week's intervention in the San Francisco case "suggests the majority has a very strong sympathy for Prop. 8's supporters," USC law professor David Cruz added.

Whichever side loses, the case will be appealed to SCOTUS. How quickly the case will be heard is unknown.

No Prop 8 Clips For Internet

Perry vs. Schwarzenegger Judge Vaughn Walker has abandoned his plan to post clips of the trial on YouTube. And now the cowardly bigots on the other side want all the video of the trial destroyed.

Chief U.S. District Judge Vaughn R. Walker said Thursday he's withdrawing his application to have the landmark case video-recorded under a pilot program approved last month by the governing body for federal courts in the West. Walker says he doesn't want the issue to distract from the trial itself. He made the announcement a day after the U.S. Supreme Court indefinitely blocked his plan to record the trial so it could be transmitted to other federal courthouses. Walker rejected a defense lawyer's request to destroy any videotapes produced during the first days of the trials He says he wants the option to review them first.

NYT On Prop 8 Camera Ban

The New York Times editorial board came out swinging this morning in reaction to the SCOTUS ban on live cameras in the courtroom at Perry vs. Schwarzenegger.

The antipathy of some justices to televising Supreme Court arguments is as well known as it is wrongheaded. But the court’s stance against allowing unobtrusive C-Spanlike coverage of its own proceedings should not foreclose public viewing of this case. There have been claims that televising the courtroom proceeding would somehow be unfair to defenders of Proposition 8, the California ballot initiative that banned same-sex marriage. They are hazy and unsubstantiated and vastly outweighed by the strong public interest in the airing of a major civil-rights issue. But the Supreme Court’s majority bought the false argument.

Early Decision On Prop 8: Cameras, Yes. Live Streaming, NO.

Ninth District Court Judge Vaughn Walker has just nixed a request from two television groups to live-stream the proceedings during next week's Proposition 8 trial. But it appears that we may get to see YouTube'd clips on the following day. Via Karen Ocamb at LGBT POV:

Despite thousands of people responding to a request for comments on allowing a live TV pool camera in the courtroom for the federal Prop 8 trial starting next Monday, Judge Vaughn Walker just declined that offer by a Media Coalition and In Session TV. However, Judge Walker ordered a TV recording of the proceedings for delayed web distribution on YouTube the next day – pending approval by the 9th Circuit. Judge Walker did note in court that the public comment is still open but apparently did not indicate whether any public comment would change his decision. The deadline for public comment is Friday.

If this decision holds, I'd say this is still a win for us. Not many would be able to view the trial live during the daytime anyway and would probably look to blogs for highlight clips.

UPDATE: Maggie Gallagher is VERY unhappy.

This is no ordinary trial. This is a trial in a case where thousands of ordinary citizens have already faced a wave of hatred for participating in democracy. On Oct. 22, the Heritage Foundation released a report titled "The Price of Prop. 8," which concluded that "supporters of Proposition 8 in California have been subjected to 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." (Read it at www.heritage.org.) To deliberately and needlessly expose these people to a new wave of publicity and attacks by televising the trial is outrageous.

Sign Up Now: Petition Campaign To Televise Olson/Boies Prop 8 Trial

The Courage Campaign urges you to sign the petition urging the televising of the Olson/Boies Prop 8 trial. The presiding judge on the case is inviting public commentary prior to the decision.

The landmark federal lawsuit challenging Prop 8, Perry v. Schwarzenegger (also known as the Olson/Boies case) is about to go to trial starting Monday, January 11. The presiding judge, Chief Judge Vaughn Walker, is holding a hearing on whether the a pool television camera should be allowed to film the trial, given the unprecedented interest in the proceedings. Judge Walker is encouraging the public to submit comments on the issue, and set a deadline of Friday to receive comments. This is your one chance to urge Judge Walker to do the right thing in the name of equality, transparency and accountability. Join the Courage Campaign Institute and CREDO Action and sign this letter to Judge Walker. Optional: Please add your own personal comments. We will personally hand-deliver your comments. DEADLINE: Friday 9 AM.

Sign the petition now or write the Court directly yourself. Here's a PDF from the Court describing how the televising would work, if approved. Focus On The Family is circulating a petition of their own demanding that Prop 8 witnesses be protected from a "violent backlash" of homosexual activists. From the wingnut Washington Times:

Attorneys for Proposition 8 backers said television coverage would expose their witnesses to further harassment and intimidation. Backers of Proposition 8 were targeted for harassment in the months after the initiative's passage in November 2008. Some donors received threatening e-mails, letters and phone calls, while churches and businesses were singled out for boycotts and protests. Brian Brown, executive director of the National Organization for Marriage, which campaigned for Proposition 8 but isn't a party to the case, said he is worried about the safety of witnesses, who could include contributors, campaign staff and volunteers. "The question is really whether Judge Walker can put people on the stand where they can be threatened," said Mr. Brown. "It's a question of people's safety."