Prop. 8 and the First Amendment

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.

JULIE HILDEN practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She is the author of a memoir, The Bad Daughter and a novel Three. She can be reached through her website.

This column originally appeared in Justia‘s Verdict.

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