Olson responds to Prop 8’s “hide the tapes” motion

Timothy Kincaid

April 15th, 2011

Surely, surely, the Proponents of Proposition 8 are not dumb as a bag of hammers. Surely the elevator goes all the way to the top, the lights are on and someone is home, they have enough bricks for a load, and their combo plate does not need another taco. It is simply inconceivable that a box of rocks might, indeed, have a higher IQ.

But they are doing their best to convince us otherwise.

On Wednesday, they fired up an indignant motion for the courts to put all video of the Perry v. Schwarzenegger trial under lock and key, signed by none other than lead counsel Chuck Cooper. I noted that this was but part of their desire to keep any evidence of their testimony locked in the closet, where they think gay people should be.

On Thursday, Judge Walker (an advocate for accountability) used their motion as an opportunity to give them – and the court – a little advice about the wisdom of denying the public access to its government.

But today is when we see how, as a strategic image effort, their motion was a colossal error in judgment. Today Ted Olson responded.

Olson’s opposition to the motion had four components. The first of these is obvious: the plaintiffs oppose the rounding up of the visual record of the trial. No surprises there. But it was interesting to discover that the ruling on the televising of the trial was not as expansive as the Proponents claim it to be:

That decision was explicitly limited to “the live streaming of court proceedings to other federal courthouses” and did not address other uses, such as the “broadcast of court proceedings on the Internet,” let alone the very limited use challenged here.

Olson’s second use of his filing was to point out the motivations behind their motion (this should sound familiar).

Through the present Motion, the Proponents of Proposition 8 seek to sequester and forever conceal from the American people video that accurately and without adornment depicts the testimony and argument each party presented at trial, and that the trial court considered when reaching the decision that Proponents now challenge. … Proponents’ fierce determination to shield access by any member of the American public to the actual compelling evidence which demonstrated the unconstitutionality of Proposition 8 and the paucity of evidence that Proponents presented in its defense directly conflicts with this Nation’s constitutional commitment to public and open judicial process and serves no legitimate public end.

The third response was stronger: not only should they not return the tapes, but they should be made public.

In addition to the First Amendment interest, the public has a common law right to view judicial records. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (“It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.”) (footnote omitted). This right cannot be abridged absent “a showing that the denial serves an important governmental interest and that there is no less restrictive way to serve that governmental interest.” Publicker Indus., 733 F.2d at 1070. Where, as here, the subject of the trial is a matter of great public importance, the public’s right to see the trial is heightened. Moreover, Proponents cannot and do not argue that the subject of the trial was in any way confidential or contained sensitive, proprietary information of any party, given that the live proceedings were themselves public.

But it was Olson’s clever fourth stroke that made me laugh out loud. Knowing that the media follows and reports every facet of this case, Olson used his opposition to the motion to remind everyone that there is record available – some of it video – and they should go check it out.

There was no reason to keep the video of this trial under the cover of darkness in the first place. Indeed, videos of two of the Proponents’ experts and one of the official Proponents of Proposition 8 are already available on the district court’s website. https://ecf.cand.uscourts.gov/cand/09cv2292/evidence/index.html. The 13-volume trial transcript is part of the public record and widely available on the internet. So too are reenactment videos of actors reading those transcripts widely available, including on YouTube. Accordingly, this Court should not only deny Proponents’ motion, it should order the video’s immediate release to allow the public to see the rest of the actual witnesses rather than being limited to actors’ portrayals.

And there ain’t no chance in hell that the Prop 8 Proponents wanted anyone to ever remember this guy:

I can see the Proponents thinking that they had a gotcha and could go whining to the courts in order to make Judge Walker look bad. But they had to know that Olson would respond. And by now they most certainly should be aware that you should never ever ever give Ted Olson an opportunity to speak when you don’t know where he’s going to go.

They can’t be unaware of that, can they? I mean, they aren’t just flat out stupid. Right?


April 15th, 2011

I read the Prop 8 plaintiff’s motion(by Olsen and Boies) in full. It was inspiring. Perhaps the 9th Circuit will lift the ban and we can all get a look at the whole trial (what a prime-time mini series that would make!).
Of course, if they do lift the seal, the Prop 8 defenders will once again run to the Supreme Court to try and keep the visual record of their failure out of the public eye. It will come out, all of it, eventually. The sooner the better.


April 15th, 2011

They are that stupid.

And don’t call me Shirley.


April 15th, 2011

Actually, I’d much rather see all of the discovery materials that were made available and all the trial exhibits that are not online (that I know, at least).

In particular, I’d love to see the e-mails that were provided, showing the back-workings of Proponents.


April 16th, 2011

The Proponents are playing a PR game to be played on the 700 Club and repeated by Rep. Bachman. Those evil Black Robed monsters on the bench must be stopped.

enough already

April 16th, 2011

If we win this against those who oppose us then it will be good to have on the record.
It won’t change the basic unfairness of the current Supreme Court majority.

This is a very good example of why we must attack our enemies on all flanks, at the same time. The old dictum, you can’t win a two front war, doesn’t count in gorilla warfare.

Anybody still arguing that those who oppose us won’t have a positive net gain from this should re-read Gus’ note, above.

It’s like the Teapublican vote on the FAUX budget yesterday – their followers are too d-u-m to grasp what really happened and they can milk it for all it’s worth. This gives us a needed boost, it won’t change the enemy’s position.

Win at court, win in the legislature, win referenda, what ever it takes. We can’t win the hearts of those who oppose us or change their hateful minds. We can, however, make it legally very expensive for them to continue to strip us of our human and civil rights.


April 16th, 2011

I mean, they aren’t just flat out stupid. Right?

They’re blinded by religious prejudice. That’s a very special kind of highly impervious stupid.


April 16th, 2011

As Boies noted when he called Tony Perkins out on his BS, you can’t lie on the witness stand. And now there’s a public record of the Proponents’ witnesses not being allowed to lie and it’s patently obvious they have no case. And if your whole campaign is built on lies, you can’t afford to let the truth out. Their problem is that they don’t have anything else to work with.

Yeah, they’ll play this episode to the 700 Club for all it’s worth, but what they’re peeing their pants about is that someone outside the 700 Club will see the record.

John B.

April 16th, 2011

There’s a good discussion of the Supreme Court ruling here: http://www.scotusblog.com/2010/01/prop-8-court-tv-blocked/

“The main opinion sought to portray the Court’s action as limited in scope. Aside from saying that it was not taking any position “on the propriety of broadcasting court proceedings generally,” it said it was only blocking the streaming of video and audio of the trial proceedings to federal courthouses other than the one in San Francisco where the trial is being held. Thus, it added, it was not ruling on plans — not yet finalized — to permit broadcast on the Internet, through YouTube or otherwise, since “this may be premature.””

More here: http://www.scotusblog.com/2011/04/prop-8-judge-challenged-anew


April 16th, 2011

“They can’t be unaware of that, can they? I mean, they aren’t just flat out stupid. Right?”

Well they are bible thumping homophobes, what do you expect, IQ higher than average shoe size?

Regan DuCasse

April 16th, 2011

This is a MAJOR social, as well as politically historical event. AKIN to court decisions regarding people of color in mixed marriage, housing, political affiliation, the workplace and free association.
To not have any visuals in the courtroom, was a major setback directly to the public’s exposure of the facts and evidence.
Especially for those who didn’t have the wherewithal to go through so many pages of transcripts.
The court proceeding itself could be tedious to people not used to that sort of thing.
That Prop. 8 supporters denied that opportunity up front, and now keep playing the ‘gays are threatening’ card, hopefully will reveal the cowardice on their part to engage the public WHERE it really matters.

I just saw a play called “The Tempramentals” Thursday night. It’s based on the life of Harry Hay and the original founding members of the Mattachine Society. I’ve gone and taken young people to the ONE Institute that archives gay and lesbian history and I realized something.
My family name is on a precedent of Constitutional law in CA regarding pamphleteering and privacy. I noticed that the Mattachine members benefited later on, as did any other groups that participated in political activity that was considered ‘subversive’.
HUAC was always on my uncle’s back and it was he that was in court through the ACLU on the issue.
Orgs like ADF and NOM and so on have my uncle to thank for that too.
Because they ARE subverting the protections of the Constitution FROM a SINGLE minority right now.

But I digress.
The point is, Prop. 8 supporters DO have things they want to hide, but it’s NOTHING that any privacy or threat protection clauses CAN cover.
A court can’t hide the truth. A court can’t make up evidence to cover their side’s lack of it. And a court can’t protect their lies from the scrutiny of the public.
This is another example of how they are the ones who actually want the courts to legislate and actuate laws that don’t exist, or can’t be employed the way they want.
And of course, they’ll blame in on gays and activist judges. Rather than their own failures, or the limits of the law.

Regan DuCasse

April 16th, 2011

Oh and you should have seen the newsletter that NOM sent out regarding this.
You’d think that Prop. 8’s witnesses were targets for a Mafia hit or deportation to concentration camps if they were exposed.
Damn, this isn’t like they need witness protection because they testified against dangerous criminals or on behalf of the federal government to expose a dangerous element within our society.

These are couples that want to get married with legit motives to do so.
Getting married is a LAW ABIDING thing to do.
What DO you do with people who want to spread panic where none is necessary and who behave as if panicked over nothing and want the courts to support their panic?


April 16th, 2011

” I mean, they aren’t just flat out stupid. Right? ”

You are talking about sheeple who always start their arguments with “the bible says” these aren’t people who are critical thinkers in any sense of the word.

enough already

April 16th, 2011

We have to distinguish between the leaders of those who oppose us and the Mitläufer.
The leaders are not stupid. They are cold, calculating monsters who have chosen us for precisely the same reason the Nazis chose the Jews.
The Mitläufer are idiots, incapable of independent thought. They want to be told what to do.

Our one and only hope is to keep attacking this in court, in public, in the legislatures. We can’t win if we keep denying that our enemies are enormously better organized and funded than we are.
We can’t win if we focus our energies on fighting ridiculous internecine political correctness fights instead of producing good TV commercials to counter their brilliantly presented lies.

The leaders aren’t dumb. We are the fools for wasting our time expecting justice from the Democratic party. They will only help us to the extent they need us.
We are fools for thinking that something which is so very clear and scientifically documented will be accepted – among those roughly 60% of Americans who believe the earth is 5,000 years old and global warming is a myth is where the voters are to be found who block our human and civil rights.


April 16th, 2011

I would love to see snippets from this trial used in TV ads all over the country wherever and whenever the issue of equal marriage comes up.


April 17th, 2011

I like Dr. Tam’s convincing reply as to where he got his information about the “gay agenda” and the view that gays are more prone to STDs, “it’s on the internet”, “do a Google search”.

Wow, that is powerfully convincing.

I wonder if Dr. Tam is aware of just what else is on the internet. The holocaust never happened. The earth is flat. Britney Spears is talented.

It must be so. I read it on the internet.

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.


Latest Posts

The Things You Learn from the Internet

"The Intel On This Wasn't 100 Percent"

From Fake News To Real Bullets: This Is The New Normal

NC Gov McCrory Throws In The Towel

Colorado Store Manager Verbally Attacks "Faggot That Voted For Hillary" In Front of 4-Year-Old Son

Associated Press Updates "Alt-Right" Usage Guide

A Challenge for Blue Bubble Democrats

Baptist Churches in Dallas, Austin Expelled Over LGBT-Affirming Stance

Featured Reports

What Are Little Boys Made Of?

In this original BTB Investigation, we unveil the tragic story of Kirk Murphy, a four-year-old boy who was treated for “cross-gender disturbance” in 1970 by a young grad student by the name of George Rekers. This story is a stark reminder that there are severe and damaging consequences when therapists try to ensure that boys will be boys.

Slouching Towards Kampala: Uganda’s Deadly Embrace of Hate

When we first reported on three American anti-gay activists traveling to Kampala for a three-day conference, we had no idea that it would be the first report of a long string of events leading to a proposal to institute the death penalty for LGBT people. But that is exactly what happened. In this report, we review our collection of more than 500 posts to tell the story of one nation’s embrace of hatred toward gay people. This report will be updated continuously as events continue to unfold. Check here for the latest updates.

Paul Cameron’s World

In 2005, the Southern Poverty Law Center wrote that “[Paul] Cameron’s ‘science’ echoes Nazi Germany.” What the SPLC didn”t know was Cameron doesn’t just “echo” Nazi Germany. He quoted extensively from one of the Final Solution’s architects. This puts his fascination with quarantines, mandatory tattoos, and extermination being a “plausible idea” in a whole new and deeply disturbing light.

From the Inside: Focus on the Family’s “Love Won Out”

On February 10, I attended an all-day “Love Won Out” ex-gay conference in Phoenix, put on by Focus on the Family and Exodus International. In this series of reports, I talk about what I learned there: the people who go to these conferences, the things that they hear, and what this all means for them, their families and for the rest of us.

Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"

The Heterosexual Agenda: Exposing The Myths

At last, the truth can now be told.

Using the same research methods employed by most anti-gay political pressure groups, we examine the statistics and the case studies that dispel many of the myths about heterosexuality. Download your copy today!

And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.

Testing The Premise: Are Gays A Threat To Our Children?

Anti-gay activists often charge that gay men and women pose a threat to children. In this report, we explore the supposed connection between homosexuality and child sexual abuse, the conclusions reached by the most knowledgeable professionals in the field, and how anti-gay activists continue to ignore their findings. This has tremendous consequences, not just for gay men and women, but more importantly for the safety of all our children.

Straight From The Source: What the “Dutch Study” Really Says About Gay Couples

Anti-gay activists often cite the “Dutch Study” to claim that gay unions last only about 1½ years and that the these men have an average of eight additional partners per year outside of their steady relationship. In this report, we will take you step by step into the study to see whether the claims are true.

The FRC’s Briefs Are Showing

Tony Perkins’ Family Research Council submitted an Amicus Brief to the Maryland Court of Appeals as that court prepared to consider the issue of gay marriage. We examine just one small section of that brief to reveal the junk science and fraudulent claims of the Family “Research” Council.

Daniel Fetty Doesn’t Count

Daniel FettyThe FBI’s annual Hate Crime Statistics aren’t as complete as they ought to be, and their report for 2004 was no exception. In fact, their most recent report has quite a few glaring holes. Holes big enough for Daniel Fetty to fall through.