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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:

YouTube Preview Image

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?

Comments

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RWG
April 15th, 2011 | LINK

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.

MirrorMan
April 15th, 2011 | LINK

Yes.
They are that stupid.

And don’t call me Shirley.

Amicus
April 15th, 2011 | LINK

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.

Gus
April 16th, 2011 | LINK

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 | LINK

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.

tavdy79
April 16th, 2011 | LINK

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.

Hunter
April 16th, 2011 | LINK

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 | LINK

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

Aeval
April 16th, 2011 | LINK

“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 | LINK

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 | LINK

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?

mike
April 16th, 2011 | LINK

” 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 | LINK

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.

TomTallis
April 16th, 2011 | LINK

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.

David
April 17th, 2011 | LINK

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.

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