Freeing the Prop 8 Tape: Perry v. Brown, the Presumption of Access to Civil Proceedings, and the Preservation of Judicial Integrity

University of Florida Journal of Law and Public Policy, Vol. 24, No. 1, 2013

34 Pages Posted: 12 Jan 2014

See all articles by Andrew A. Proia

Andrew A. Proia

Indiana University Bloomington - Center for Applied Cybersecurity Research; Seton Hall Law School

Date Written: April 1, 2013


The Proposition 8 trial recording controversy has forged a complex judicial path. The campaign to constitutionally invalidate gay marriage in California had gained national attention before and after the 2008 election, so it was no surprise that many media outlets were interested in having the Proposition 8 trial broadcasted live. After the District Court of Northern California quickly amended its local rules to allow for the broadcast, the Supreme Court of the United States stepped in and issued a permanent stay because of the lower court‘s failure to adequately amend its local rules in accordance with statutory requirements. The story did not end there, however, as the district judge ordered that the trial would be recorded for use only in chambers and would also be added into the judicial record under seal. Two years later, a request by news affiliates to release the Proposition 8 trial recording to the general public was granted. The Ninth Circuit, falling back to the earlier promises made by the district court, reversed the decision. In its rationale, the Ninth Circuit concluded "there [was] a compelling reason in this case for overriding the common law right [of access to court records.]" Citing to the district court‘s earlier promises, the Ninth Circuit held it was reasonable for the Proposition 8 proponents to believe the district court as stating "there was no possibility that the recording would be broadcast to the public in the future." While the Ninth Circuit had made clear its denial on releasing the trial recording was "narrow" and "based on the unique circumstances" of the case, the court determined that the "grave threat to the integrity of the system" was a compelling enough reason to overcome the common law right of public access.

This decision, however, is a curious one. Open access to judicial proceedings has been an extensive part of this country‘s history. The idea of a constitutional right of access to criminal trials, for instance, has derived from the First Amendment‘s inherent constitutional rights. Lower courts have extended this First Amendment right to civil judicial records, and many others have relied on the common law presumption of access to the judiciary. The courts are unique because they are one of the few locations in which citizens hold a constitutional right of access to many of its forums and records. This right deserves a court‘s fullest attention and consideration, especially when involving cases of national importance such as the Proposition 8 trials. While the "integrity of the judicial process, as the Ninth Circuit proclaimed, may be a value that deserves attention when faced with the issue of releasing court records, what is of equal, if not greater importance is the execution of judicial policies and procedures that "permit[] the public to participate in and serve as a check upon the judicial process." This poses the question: should the promises of a trial judge concerning the disclosure of a nationally influential, nonjury civil trial video recording be enough to overcome the presumptive openness of the judiciary? If so, what response, if any, should be made in order to balance our societal need of information with the possible damage that might come from an over-promising judiciary? This Note argues that the common law presumed right of access, in conjunction with First Amendment values, should have tipped the scales to compel the release of the Proposition 8 trial recordings. This presumed right, equally weighed against the narrow circumstances of Judge Walker‘s remarks and an overall concern for "judicial integrity" should have outweighed any minimal consequences that might have occurred upon the Proposition 8 trial recording‘s release.

Keywords: right of access, First Amendment, Proposition 8

JEL Classification: K00

Suggested Citation

Proia, Andrew and Proia, Andrew, Freeing the Prop 8 Tape: Perry v. Brown, the Presumption of Access to Civil Proceedings, and the Preservation of Judicial Integrity (April 1, 2013). University of Florida Journal of Law and Public Policy, Vol. 24, No. 1, 2013, Available at SSRN:

Andrew Proia (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States

Indiana University Bloomington - Center for Applied Cybersecurity Research ( email )

Wylie Hall 105
100 South Woodlawn
Bloomington, IN 47405
United States

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