Bench Memos

Judge Walker’s “Immediate Need” for a YouTube Circus—Part 1

In a series of three or so posts today, I’m going to explain why Judge Walker’s order requiring audio-video recording and transmission (I’ll sometimes use the admittedly inexact shorthand “televising”) of the trial proceedings in the Proposition 8 case should be overturned forthwith.  In this post, I’ll review yesterday’s sham hearing and discuss just what Walker has ordered.  In the next post, I’ll show that his order is unlawful.  And then I’ll discuss why his order threatens unfair and irreparable (and wildly asymmetric) prejudice to Proposition 8 supporters.

A few key points about yesterday’s hearing:

1.  In a microcosm of what the trial will be, yesterday’s hearing was a sham on the issue of televising.  Even before the hearing started, Walker had already had the court’s clerk issue a statement declaring (evidently falsely, as it turns out) that the Ninth Circuit had already granted Walker’s request “to pilot [the Ninth Circuit’s] public access program by providing audio & video of the trial” of the case.  Walker had the hearing begin with the court’s IT manager explaining how the televising would work.  And Walker revealed during the course of the hearing that the fix was in on this issue long ago—that the desire to televise the Proposition 8 case drove the recommendation by a Ninth Circuit committee to authorize the pilot program:  “this case was very much in mind at that time because it had come to prominence then and was thought to be an ideal candidate for consideration.”  How would Walker know this?  He was (surprise!) one of the three members appointed by Ninth Circuit chief judge Alex Kozinski to serve on the committee.

Despite the fact that this issue had been predetermined, Walker went through the motions of asking some seemingly probing questions of plaintiffs’ counsel.  

2.  Walker’s televising order has two distinct aspects:  First, the entire proceedings will be transmitted live to various courthouses throughout the Ninth Circuit and perhaps to federal (and state?) courthouses throughout the country.  (Walker stated that the Northern District of Illinios has already submitted a request for streaming video, and he indicated that he was receptive to requests from “other courts” as well.)  Second, the entire proceedings will be transmitted “on a delayed basis to YouTube for purposes of posting on the Internet so the proceedings can be made generally available.”

Posting on YouTube would, of course, in turn make it easy for anyone to splice and dice the video, post highlights, overlay the video with text or special effects, and make alterations.  Posting on YouTube, in other words, creates the possibility that any particular excerpt of any witness’s testimony or any counsel’s statement could “go viral.” 

Together, these aspects of Walker’s order ensure that the potential for abuse and harassment of witnesses and other trial participants is thousands, if not millions, of times greater than an ordinary unrecorded trial would entail.

3.  An apparent purpose—and surely the obvious effect—of the show trial that Walker is staging is to make Proposition 8’s sponsors pay as high a price as possible for their exercise of their First Amendment rights.  The meaning and operation of Proposition 8 are clear.  Millions of Californians voted for Proposition 8, and the votes of Proposition 8’s sponsors were immaterial to the outcome.  What possible relevance is there to the particular motivations, the particular understandings of and attitudes of Proposition 8’s sponsors?  Either there is a federal constitutional right to same-sex marriage, or there isn’t.  How can that question possibly turn on factual inquiry into the motivations of Proposition 8’s sponsors?  (I intend to explore this issue more fully.) 

At trial, plaintiffs’ counsel aim (as they state in their trial memorandum) to show that Proposition 8 is “an irrational, indefensible, and unconstitutional measure” and that it was “motivated by moral disapproval and irrational views concerning gay and lesbian individuals.”  Plaintiffs’ counsel will be trying to show that the sponsors of Proposition 8 who testify as witnesses are contemptible bigots—and the predictable consequence of their effort will be to incite harassment and abuse of these witnesses and their counsel.

4.  Dismissing the vast multiplier effect that the televising order will have, Walker and plaintiffs’ counsel, Theodore Boutrous, indicated their belief that the sponsors of Proposition 8 deserve whatever additional harassment and abuse come their way.  As Boutrous put it, the sponsors “thrust themselves into this issue.”  He called it “ironic” that people who have been “stripping away” the right to same-sex marriage could complain about being subjected to harassment and intimidation.  (His December 29 letter similarly states that “Proponents willingly thrust themselves into the public eye.”)  Walker likewise stated that the Proposition 8 sponsors had, by virtue of their political campaign, “assumed a public face” that evidently subjects them to whatever ensues.

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