Prop 8 proponents seek continuation of stay barring release of trial videotapes

by on October 14, 2011  •  In Uncategorized

With 85 pages of argument and supporting exhibits, the brief filed by Prop 8 proponents in support of blocking public release of the videotapes of the trial seems designed to remind the Ninth Circuit of two things: there was a lot of press coverage of "widespread economic reprisals" against Prop 8 supporters after its passage, and, at the outset of the trial, the Supreme Court prohibited Judge Walker from allowing the trial to be broadcast on public television or to federal courthouses around the country. Hollingsworth v. Perry, 130 S.Ct. 705 (2010)

What is missing is any evidentiary support for the claim that the witnesses for the proponents who testified during trial were harassed or would be harassed if the videotapes of their testimony were to be released now. It was the fear of intimidation of witnesses that was invoked to get the first order preventing any release of the tapes.

How will this turn out?  Hard to say. The Supreme Court, where the matter will go eventually, is disinclined to allow cameras in the courtroom (or presumably the results of video recording to be released later). The Court's reasoning on the generic question has always been that attorneys will play to the unseen audience, thus lowering the quality of argument, and that the inevitable production of short clips will distort the impression of what happened in court.

The Prop 8 dispute focuses on more specific legal questions (eg, whether there is a common law right of public access to judicial proceedings and if so, what is its scope). In general, however, my hunch is that the Court will lift the stay on releasing the tapes only if the Justices conclude that precedent gives them no other option, an outcome that I doubt will occur.

My own view – I tend to favor public access to pretty much everything, but I also think that this debate is fundamentally a sideshow in the Prop 8 litigation saga.


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