How The Litigation Over California’s Anti-Same-Sex-Marriage Prop. 8 Gave Rise to a First Amendment Fight

Posted in: Constitutional Law

As readers likely know, Proposition 8—“Prop. 8” for short—is a California initiative that purported to amend the state’s constitution to prohibit same-sex marriage.  Accordingly, Prop. 8 has sparked debate as to precisely what the equal protection of the law requires.  Now, however, the Prop. 8 litigation has raised a different, but related issue, regarding what free speech requires, too.

The issue arose because the original trial judge in the Prop. 8 litigation, Chief Judge Vaughn Walker, had allowed witness testimony to be videotaped—but had also promised witnesses that the tapes would never be broadcast, but would only be viewed by him in his chambers.  Accordingly, Walker had put the tapes under seal.

But then Walker retired.  And his successor on the bench, Chief Judge Ware, thought differently.  Chief Judge Ware ordered—after being presented with a motion to unseal the tapes—that the tapes would be released, and could be broadcast for all to view.

In a February 2 opinion, a three-judge panel of the U.S. Court of Appeals of the Ninth Circuit held that Judge Ware’s decision to unseal the tapes, two years after the trial occurred, was an abuse of discretion, in light of Judge Walker’s promises to the witnesses.  Accordingly, the panel directed that the tapes would remain under seal.

In this column, I’ll consider the arguments that were made in the Ninth Circuit opinion.

The Issues That the Ninth Circuit Panel Emphasized That It Was Not Resolving—Yet Couldn’t Quite Persuasively Avoid

The Ninth Circuit panel’s opinion, penned by Judge Stephen Reinhardt, began by emphasizing two issues that the panel was not reaching:  (1) what it now means, in light of new technologies, for a trial to be truly public; and (2) what the boundaries of the freedom of the press ought to be.  But in the end, those issues seemed to be woven through the opinion nonetheless.

Regarding the first issue, Reinhardt noted that the trial, when it actually occurred, was public enough, in that it was open to all to attend.  But with an issue that had deeply engaged Californians, both pro and con, and with modern technology available, readers of the opinion might well ask, Why should the audience to the trial be restricted to only those with the means and time to visit the courtroom?  How can that level of publicness be deemed to be public enough?

In response to such arguments, Reinhardt suggested that the cameras-in-the-courtroom issue ought to be resolved by the federal judiciary as a whole, or by Congress—which is a reasonable stance.  But in this day and age, to suggest, as Reinhardt does, that merely opening the courtroom door makes a trial sufficiently public seems archaic– like suggesting, for instance, that trial attendees must ride horses to the trial, rather than driving cars.

The reality, I think, is that we are waiting for the judiciary or Congress to make good on the promise of truly public trials, in a way that is appropriate for our time.  And the wait has already taken much too long.

Regarding the second issue, Reinhardt saw no freedom-of-the-press argument as to material that a judge prepares for his own use, in his own chambers.  Here, again, though, the issue isn’t quite as straightforward as Reinhardt suggests.

Reinhardt’s stance would surely be valid if we were talking about, say, a judge’s handwritten notes, made while the judge was on the bench.  No judge would, or should, ever give over that kind of record of his or her preliminary thinking to the press.

Indeed, to do so could be disastrous for the administration of justice.  Imagine, for instance, a judge’s handing over to the press his possible Sentencing Guidelines calculations—including the ones he had considered and discarded—for a particular defendant.

But this wasn’t a set of handwritten notes; it was a set of videotapes.  Thus, it did not reveal the judge’s private thinking at all—and the decision regarding disclosure was accordingly much more difficult.

In sum, I think that these two issues were impossible to completely avoid, despite Reinhardt’s protestations to the contrary.  Yet the panel ultimately avoided them in order to focus solely on Chief Judge Walker’s promise to the witnesses, as I will explain.

The Ninth Circuit’s Core Concern:  The Promises to the Witnesses

Based on the record, as the panel opinion describes it, there is no question but that Chief Judge Walker, in fact, promised the witnesses that the videotapes of the Prop. 8 trial would never be shown.  Accordingly, he directed that the tapes at issue would be filed under seal.

In addition, Chief Judge Walker noted that the Prop. 8 proponents decided not to call the majority of the witnesses that they had designated, even after, in his words, the potential for public broadcast had been “eliminated.”  And surely, that paucity of witnesses cut strongly against the Prop. 8 proponents in the case, precisely because the witnesses truly voluntarily—that is, free from fear—opted not to testify.

(Unfortunately, Chief Judge Walker seems to have broken his own promise and his own sealing order, both before and after his retirement, when he displayed excerpts from the videotapes during public appearances—an action that he surely should have known he should not take.  For the judge to ignore his own order—an order that was supposed to protect wary witnesses—is inexcusable.  It smacks of lawlessness.)

After Chief Judge Walker’s retirement, Chief Judge Ware replaced him.  Chief Judge Ware ordered Chief Judge Walker to return the videotapes to the court, putting a stop to Chief Judge Walker’s use of the tapes during his appearances.  So far, so good, one might think.

But then Chief Judge Ware decided—when faced with a motion to unseal the videotapes—that the common law right of public access applied, and thus that the videotapes should be unsealed.  (The common law right of public access is the right to copy public records and documents, including judicial records and documents.)

Chief Judge Ware also directed that former Chief Judge Walker be given a copy of the videotapes.  Later, Chief Judge Walker lodged that copy with the Ninth Circuit as directed.  Moreover, the Ninth Circuit panel ultimately directed that that copy should not be returned to former Chief Judge Walker.

The Ninth Circuit Panel’s Holding:  A Judge’s Promise Overrides the Common Law Right of Public Access to Judicial Records

The Ninth Circuit panel felt that it was clear that former Chief Judge Walker’s promise to witnesses that the tapes would not become public trumped the common law right of public access to judicial records.  The Ninth Circuit reasoned that the witnesses who testified at the Prop. 8 trial had the right to rely on that promise.

Moreover, by relying on that promise, the Ninth Circuit pointed out, the witnesses had sacrificed something of value: the chance to move for an order stating that the recording of the videotapes would be halted.  The Ninth Circuit reasoned that there was a real possibility that such an order might have been issued.

Chief Judge Ware apparently took the position that he was not bound by his predecessor’s promises to witnesses.  But as the Ninth Circuit noted, that kind of promise binds future judges too.

One Key Lesson From This Dispute:  Judges Should Make Rulings, Not Promises

Ultimately, the root of the problem here was Chief Judge Walker’s decision to make promises to the witnesses at the Prop. 8 trial, rather than making rulings to the same effect.

Had Judge Walker’s stance been represented by a ruling, then the attorneys defending Prop. 8 would surely have cautioned witnesses that the ruling could change—for instance, if the Ninth Circuit later disagreed with Judge Walker.  And if Chief Judge Walker become worried that witnesses would over-rely on his ruling, he could have made clear in the ruling itself that the ruling could change.

As it was, Chief Judge Walker usurped the Ninth Circuit’s role, effectively forcing the Ninth Circuit to rule as it did.  By making promises to witnesses, he bound the Ninth Circuit’s hands—and, as Judge Reinhardt’s opinion showed, he succeeded.

Rather than capitulate, the Ninth Circuit panel should have made it crystal clear that in the future, district court promises are no more than rulings, which can always be reversed or amended by higher courts—or upon reconsideration, by the issuing court.

It’s bizarre to me—and hopefully, it will also strike an en banc Ninth Circuit as bizarre—that an appellate court would so easily cede its power.  Surely, the Ninth Circuit must have had witness safety in mind, but if so, the opinion ought to have focused on that consideration far more clearly.

  • sunman

    One can see that ” a promise ” not kept, by the judiciary, in any circumstance regarding the safety of a witness, would discourage anyone from doing his/her civic duty to speak the truth. Trust is the word of the year. Trust in the legal system itself, and on all levels of fairness and justice.  So many examples to draw from. ……Laws made by and for the 1% special interests. How was that for a plug for justice!?

  • Joe Simmons

    Professor Hilden,

    I am confused by your article. How exactly does the freedom of press come into play? I assumed you meant in the Constitutional sense, but you only mention a common law right of public access. As I understand, freedom of press is about freedom of reporting, not freedom of access.

    I’m not saying there isn’t some relationship between the two, but the above presentation appears to muddy the issues. Courts do have the privilege of sealing records and holding in camera reviews, despite the difficulty this might cause the press. You don’t say whether the recorded interviews were otherwise part of the court’s written record (which would make me wonder why any assurance was given).

    From reading your article, I see no reason for the Circuit panel to have dealt with “(1) what it now means, in light of new technologies, for a trial to be
    truly public; and (2) what the boundaries of the freedom of the press
    ought to be.”

    Re (1): For Constitutional purposes, as long as the court is open to the public,
    that’s all that matters. You can walk into the court room and report on what you saw. Might it be a good idea to make it easier to keep an eye on judicial proceedings? Sure, it might be. If the legislature or courts wish to allow cameras in the courtroom, they can do that.

    Re (2): Do public trials serve to protect rights of the press? Or is it about the rights of those at trial, to ensure they receive a fair trial? Allowing the press to report on it is clearly one way the goal of fair trials is served, but it is not a right that belongs to the press. See Sheppard v. Maxwell 384 U.S. 333 (1966):

    “The principle that justice cannot survive behind walls of silence has
    long been reflected in the “Anglo-American distrust for secret trials.”
    In re Oliver, 333 U.S. 257 , [384 U.S. 333, 350] 
    268 (1948). A responsible press has always been regarded as the
    handmaiden of effective judicial administration, especially in the
    criminal field…This Court has, therefore, been unwilling to place any direct
    limitations on the freedom traditionally exercised by the news media
    for “[w]hat transpires in the court room is public property. Craig v. Harney, 331 U.S. 367, 374 (1947).”

    The Court does go on to say:

    “The “unqualified prohibitions laid down by the framers were intended to give to liberty of the press . . . the broadest scope that could be countenanced in an orderly society.” Bridges v. California, 314 U.S. 252, 265 (1941).”

    But of course, Bridges v. California dealt with the press being punished for reporting on a trial and the principle was ultimately of limited relevance in Sheppard, where the Court also wrote, “As we stressed in Estes, the presence of the press at judicial
    proceedings must be limited when it is apparent that the accused might
    otherwise be prejudiced or disadvantaged.”

    All the Circuit panel had to in the instant case was decide was whether the recorded testimony was part of the public record to which the press would have access, or whether Judge Walker had the privilege of preventing release of the footage.

    You write, “But in this day and age, to suggest, as Reinhardt does, that merely
    opening the courtroom door makes a trial sufficiently public seems
    archaic– like suggesting, for instance, that trial attendees must ride
    horses to the trial, rather than driving cars.”

    That is seems archaic is not a Constitutional infirmity. The analogy is particularly flawed because the Judge is not saying the press must do or not do anything. Reinhardt is not saying the press should use parchment and quills or watch the proceedings through 18th century eyeglasses. He is saying that the decision to not release the video was within the discretion of Judge Walker. Maybe he is wrong on that, but for different reasons than you argue, I suspect.

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  • Jeff

    one of the best metaphors I’ve encountered in a long time:

    like suggesting … trial attendees must ride horses to the trial, rather than driving cars.


    • Joe Simmons

      I hope that was sarcasm. The analogy was fundamentally flawed.

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  • EHamptons

    screw the voters and the constitution…. this is Obama Rules! Loudest whiners win!

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  • Conway The Contaminationist

    Yeah, so much for “the will of the people”; rhetorical sophistry and twisted reasoning again triumphs over logic.

    Not that I care, pro or con, about the concept of “gay marriage”, but this situation does indeed prove that the citizenry no longer have the right to collective self-determination as decided by the majority. The citizenry are instead told how to live and what to think by their adjudicating “betters”, and charged to obey in the name of “freedom”.Legalistic dictatorship by pandering, activist judges will eventually lead to a revolution and bloodbath. Not that it matters, as history has proven it countless times, and the United States, a moribund, bankrupt entity, deserves what is coming to it.

  • K J

    3 unelected judges nullify the votes of the majority of the people of the state of California-what a travesty