This hearing in the Prop 8 case is about the public release of the videotapes of the district court trial, where the AFER team headed by Ted Olson and David Boies offered evidence as to the unconstitutionality of Prop 8 and cross-examined pro-Prop 8 witnesses. At the time, the Supreme Court did not permit a live broadcast of the trial through the Ninth Circuit's new technology program, but Judge Walker videotaped the trial so he could review portions of the case in his chambers as he prepared his decision. The tapes exist not because trials are generally recorded, but because Judge Walker taped them himself.
There is no precedent for this, or I should say, neither the AFER team nor I can find a previous case with the same facts. That, however, does not mean we are wandering aimlessly in new territory.
Consider first the question of what is the "record." The record of a trial is just what it sounds like — the transcripts of the trial, the exhibits, the decisions, the motions, the transcripts of any pre-trial hearings, and so on. All of that is public. If you wanted to go online (if you have access to the online system) or take a trip to the courthouse in San Francisco or take any number of other steps, you could read everything that was said at the Prop 8 trial. The out playwright, Dustin Lance Black, did just that when he combed through the trial transcripts to write his trial adaptation play, 8.
If the videotape is just a live-action version of what is already public, then some would argue that the video is part of the record, is the record, just like the transcript. That was part of AFER's argument at the hearing, capably argued by Ted Boutrous. Thomas Burke, representing a coalition of media outlets seeking release, focused almost exclusively on this point: "If you can have the [written] transcripts publicly available," said Burke, according to the AFER Twitter report, "surely the public cannot be hurt by seeing the actual testimony."
I'm not so certain. We can read what happened in that San Francisco courtroom, but we cannot see or hear the witnesses' intonation, how they shifted in their seats or how they sweated during cross-examination. We want to see that and, if it were up to me, I think we should see that, but the fact remains that a videotape is more than a transcript. It is a transcript plus. Mr. Boutrous conceded this point, using almost precisely the same language. But, if the videotape is more than just the transcript, then it stands to reason that there should be a higher standard for its release. The plus is not meaningless; that, after all, is why we want it released.
We do not normally broadcast federal trials, but we do normally release transcripts. So, consider the opposite context from what is at issue in the hearing. What if we were talking about sealing off or hiding part of the transcript from the public? If the videotape is, as all parties concede, the transcript plus, then a motion to put all or part of the transcript under seal must be about the transcript minus. Courts allow this under certain circumstances, say, if the trial requires discussion of certain trade secrets that could irreparably damage a party's business. Or, if the trial involves domestic violence or minors, names can be stricken from the record. In each case, the party seeking to release only the transcript minus has to justify the seal. It is a departure from the norm.
That means that the burden is on AFER to justify release of the transcript plus. Christine Van Aken, representing San Francisco in support of releasing the videotape, disagreed. In response to the Prop 8 proponents' argument that releasing the tapes would subject their witnesses to harassment, Ms. Van Aken used the word "unfounded" (Mr. Boutrous called the position "flimsy"). Ms. Van Aken went further: according to AFER's Twitter feed, she reminded the court that certain actions — such as boycotts — are types of expressions protected by the First Amendment. It therefore should require more than just “hypothesis and conjecture” about harassment to justify keeping the videotapes under seal.
Once again, I am not so sure. Ms. Van Aken may be wrong both on what constitutes the default transcript and the burden. She implies that it is the responsibility of the Prop 8 proponents to justify keeping the videotape secret. But, are the anti-gay forces seeking to keep the tapes secret, or is AFER seeking to make the tapes public? That may sound like a semantic distinction, but it matters to a lawyer. As we have discussed, the videotape is the transcript plus and, like the transcript minus, it is the responsibility of the party seeking to deviate from the norm to justify the deviation. Since the norm (to date) is not to videotape trials or broadcast or release the tapes, AFER is the one asking to change the rules. That means AFER has to justify release with persuasive legal and policy arguments.
To do that, Mr. Boutrous, Mr. Burke and Ms. Van Aken made many good arguments: the integrity of the court's decision depends on public understanding, there is a great difference between re-enacting the video and the actual video and failing to release the tapes would prevent even the Ninth Circuit from viewing them for the purposes of coming to a decision, to name just a few of the pro-release points. I hope their arguments are enough to release the tapes. But, if it is not, the problem is not isolated to this case. The problem is systemic. We do not videotape federal trials and we should. If we did, this endeavor would be quite a bit easier.
Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.
Follow Ari on Twitter at @ariezrawaldman.