FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN M. PERRY; SANDRA B. No. 20-16375
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO, D.C. No.
Plaintiffs-Appellees, 3:09-cv-02292-
WHO
CITY AND COUNTY OF SAN
FRANCISCO,
Intervenor-Plaintiff-Appellee, OPINION
KQED, INC.,
Intervenor-Appellee,
v.
GAVIN NEWSOM, Governor; ROB
BONTA, Attorney General; TOMÁS J.
ARAGÓN,* in his official capacity as
Director of the California
Department of Public Health & State
Registrar of Vital Statistics; LINETTE
SCOTT, in her official capacity as
Deputy Director of Health
Information & Strategic Planning for
the California Department of Public
Health,
Defendants-Appellees,
*
Under Fed. R. App. P 43(c)(2), Rob Bonta and Tomas Aragón have
been substituted for their predecessors, Xavier Becerra and Mark B.
Horton.
2 PERRY V. HOLLINGSWORTH
DENNIS HOLLINGSWORTH; GAIL J.
KNIGHT; MARTIN F. GUTIERREZ;
MARK A. JANSSON,
Intervenor-Defendants-Appellants,
and
PATRICK O’CONNELL, in his official
capacity as Clerk-Recorder for the
County of Alameda; DEAN C.
LOGAN, in his official capacity as
Registrar-Recorder/County Clerk for
the County of Los Angeles,
Defendants.
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted December 7, 2020
San Francisco, California
Filed November 18, 2021
Before: Carlos F. Lucero,** William A. Fletcher, and
Sandra S. Ikuta, Circuit Judges.
**
The Honorable Carlos F. Lucero, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
PERRY V. HOLLINGSWORTH 3
Opinion by Judge W. Fletcher;
Dissent by Judge Ikuta
SUMMARY***
Civil Rights
The panel dismissed, for lack of jurisdiction, an appeal
from the district court’s order releasing to the public the
video recordings of the district court bench trial in the
landmark case striking down California’s Proposition 8
forbidding same-sex marriage.
Judge Walker recorded the trial for use in chambers,
pursuant to a local rule in effect at the time. When
proponents of Proposition 8 (“Proponents”) objected, he
assured them that the recording was not going to be used for
purposes of public broadcasting or televising. The video
recordings were offered to the parties for use in their closing
arguments and were later entered into the record under seal.
In 2011, after Judge Walker’s retirement and while the appeal
of Judge Walker’s order permanently enjoining Proposition 8
was pending, then-Chief Judge Ware ordered the video
recordings to be unsealed. Proponents appealed, explaining
that they had understood Judge Walker’s assurance to mean
that the recordings would not be made public, although
during oral argument, the attorneys acknowledged that neither
they nor their clients believed the recordings would remain
permanently sealed. On appeal, this court reversed the
district court, holding that it had abused its discretion in
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 PERRY V. HOLLINGSWORTH
ordering the recordings unsealed in light of Judge Walker’s
specific assurances that the recordings would not be broadcast
to the public, at least in the foreseeable future. In an amended
footnote, the court cited local Rule 79-5(f), which provides
that any document filed under seal in a civil case shall be
open to the public 10 years from the date the case was closed,
unless good cause could be shown to extend the seal. In
2020, Proponents asked the district court to extend the seal.
The district court declined the request, in part because
Proponents failed to submit any evidence that any Proponent
or witness who testified on behalf of Proponents wanted the
recordings to remain under seal or feared retaliation or
harassment if the recordings were released.
The panel held that Appellants, a subset of the original
Proponents, failed to establish a particularized and concrete
injury sufficient to constitute “injury in fact” as the Supreme
Court has defined that term. Appellants did not claim, and
cited no authority for the proposition, that a statement—even
a “promise”— made by a judge to litigants in the course of
litigation is an enforceable contract. The panel held that even
assuming, contrary to their statement in the 2011 appeal, that
Judge Walker told Appellants that the video recordings would
remain sealed in perpetuity, they failed to plausibly allege a
concrete and particularized injury. The panel rejected
Appellants’ contentions that the unsealing would result in a
“palpable injustice” to Appellants themselves or would harm
future litigants’ ability to rely on judicial “promises,” and
would thereby injure both the judicial system and future
litigants. Neither alleged injury was sufficiently concrete and
particularized for purposes of Article III standing. The panel
therefore lacked jurisdiction over the appeal.
PERRY V. HOLLINGSWORTH 5
Dissenting, Judge Ikuta stated that for the past ten years,
the Proponents have gone to extraordinary lengths to prevent
the public broadcast of these trial proceedings, including a
successful trip to the Supreme Court and multiple appeals to
this court. Whether Chief Judge Walker’s promise not to
publicly broadcast the trial recording is an enforceable
contract or merely closely analogous to one, the breach of
that promise is a concrete and particularized injury sufficient
to confer Article III standing upon the Proponents.
Accordingly, the issue of Article III standing does not provide
a basis to depart from this court’s prior ruling “that the
integrity of the judicial process is a compelling interest that
in these circumstances would be harmed by the nullification
of the trial judge’s express assurances, and that there are no
alternatives to maintaining the recording under seal that
would protect the compelling interest at issue.” Perry v.
Brown, 667 F.3d 1078, 1081 (9th Cir. 2012).
6 PERRY V. HOLLINGSWORTH
COUNSEL
John D. Ohlendorf (argued), Charles J. Cooper, David H.
Thompson, Peter A. Patterson, Cooper & Kirk PLLC,
Washington, D.C., for Intervenor-Defendants-Appellants.
Christopher D. Dusseault (argued), Theodore J. Boutrous Jr.,
Theane Evangelis, Abbey J. Hudson, and Jillian N. London,
Gibson Dunn & Crutcher LLP, Los Angeles, California;
Theodore B. Olson, Matthew D. McGill, Amir C. Tayrani,
and Andrew Wilhelm, Gibson Dunn & Crutcher LLP,
Washington, D.C.; Ethan Dettmer and Elizabeth A. Dooley,
Gibson Dunn & Crutcher LLP, San Francisco, California;
David Boies, Boies Schiller & Flexner LLP, Armonk, New
York; for Intervenor-Plaintiffs-Appellees.
Seth E. Goldstein, Deputy Attorney General; Benjamin M.
Glickman, Supervising Deputy Attorney General; Thomas S.
Patterson, Senior Assistant Attorney General; Rob Bonta,
Attorney General; Attorney General’s Office, Sacramento,
California; for Defendants-Appellees.
Dennis J. Herrera, City Attorney; Ronald P. Flynn, Chief
Deputy City Attorney; Jeremy M. Goldman, Co-Chief of
Appellate Litigation; Office of the City Attorney, San
Francisco, California; for Intervenor-Plaintiff-Appellee.
Thomas R. Burke (argued) and Kelly M. Gorton, Davis
Wright Tremaine LLP, San Francisco, California; Rochelle
L. Wilcox, Davis Wright Tremaine LLP, Los Angeles,
California; for Intervenor-Appellee.
Katie Townsend, Caitlin V. Vogus, and Shannon A.
Jankowski, Reporters Committee for Freedom of the Press,
PERRY V. HOLLINGSWORTH 7
Washington, D.C., for Amici Curiae Reporters Committee for
Freedom of the Press and 32 Media Organizations.
OPINION
W. FLETCHER, Circuit Judge:
We are once again asked to decide whether either the First
Amendment or common-law right of access requires public
release of video recordings of the district court bench trial in
the landmark case striking down California’s Proposition 8
forbidding same-sex marriage. See Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010). Long after the trial,
the district court ordered release of the recordings.
Appellants are a subset of the original proponents of ballot
Proposition 8. We conclude that Appellants have failed to
demonstrate sufficient injury for Article III standing. We
therefore dismiss their appeal for lack of jurisdiction.
I. Background
In 2008, California voters passed Proposition 8 amending
California’s Constitution to provide that “[o]nly marriage
between a man and a woman is valid or recognized in
California.” Cal. Const. art. 1, § 7.5. Two same-sex couples
who wished to marry (“Plaintiffs”) filed suit in the Northern
District of California against the Governor, Attorney General,
and other California officials. Hollingsworth v. Perry,
570 U.S. 693, 702 (2013). Plaintiffs argued that Proposition
8 violated their due process and equal protection rights under
the federal Constitution. Id. The California State defendants
refused to defend Proposition 8, though they continued to
enforce it. Id. Proposition 8’s official proponents who were
8 PERRY V. HOLLINGSWORTH
responsible for putting it on the ballot—Dennis
Hollingsworth, Gail Knight, Martin Gutierrez, Hak-Shing
William Tam, Mark Jansson, and Protectmarriage.com
(“original Proponents”)—were permitted to intervene as
defendants. Schwarzenegger, 704 F. Supp. 2d. at 954. Tam
split off before trial, leaving a group we will refer to as
“Proponents” or “remaining Proponents.”
A bench trial was scheduled for January 2010 before
then-Chief Judge Vaughn Walker. As that time grew closer,
Judge Walker discussed with the parties the possibility of
livestreaming the trial to other courthouses. Hollingsworth v.
Perry, 558 U.S. 183, 200 (2010) (per curiam) (Breyer, J.,
dissenting). The primary obstacle to such broadcasting was
the local rules of the Northern District. In particular, Local
Rule 77-3 read in relevant part:
Unless allowed by a Judge or a Magistrate
Judge with respect to his or her own chambers
or assigned courtroom for ceremonial
purposes, the taking of photographs, public
broadcasting or televising, or recording for
those purposes in the courtroom or its
environs, in connection with any judicial
proceeding, is prohibited. Electronic
transmittal of courtroom proceedings and
presentation of evidence within the confines
of the courthouse is permitted, if authorized
by the Judge or Magistrate Judge.
Perry v. Brown, 667 F.3d 1078, 1082 n.1 (9th Cir. 2012).
In December 2009, the Ninth Circuit Judicial Council
authorized a pilot program “permitting the use of video in
PERRY V. HOLLINGSWORTH 9
nonjury civil cases.” Hollingsworth, 558 U.S. at 201 (Breyer,
J., dissenting). A few days later, the Northern District
amended its local rules in order to participate in the pilot
program. Id. The rule change would have allowed the
Proposition 8 trial to be broadcast to other courthouses.
Proponents challenged this change of rules. In January
2010, they petitioned our court for a writ of mandamus that
would have prevented the district court from participating in
the pilot program. Id. at 188. We denied the petition. On the
morning of the first day of trial, the Supreme Court issued a
temporary stay of the proposed broadcast to other
courthouses. Id. at 185. Two days later, the Court extended
the stay. Id. at 184. The Court concluded that the Northern
District’s amendment of its local rules likely violated
28 U.S.C. § 2071, which requires that courts generally
provide “appropriate public notice and opportunity for
comment” when changing their rules. See Brown, 667 F.3d
at 1082 (citing Hollingsworth, 558 U.S. at 191).
Judge Walker had video recorded (but not broadcast
beyond the courthouse) the first two days of trial in the event
that the Supreme Court lifted the temporary stay. Id. After
the stay was extended, Proponents asked that the trial no
longer be recorded. Judge Walker responded:
The local rule permits the recording for
purposes . . . of use in chambers and that is
customarily done when we have these remote
courtrooms or the overflow courtrooms. And
I think it would be quite helpful to me in
preparing the findings of fact to have that
recording. So that’s the purpose for which the
recording is going to be made going forward.
10 PERRY V. HOLLINGSWORTH
But it’s not going to be for purposes of public
broadcasting or televising.
After this assurance from Judge Walker, Proponents
dropped their objection to recording the trial. Perry, 667 F.3d
at 1082. Proponents called only two witnesses at the trial.
Proponents explained, without providing supporting
evidence, that their other witnesses declined to testify because
they “were extremely concerned about their personal safety,
and did not want to appear with any recording of any sort.”
Schwarzenegger, 704 F. Supp. 2d at 944.
Without objection, the video recordings of the trial were
offered to the parties for use in their closing arguments, and
were later entered into the record under seal. Brown,
667 F.3d at 1082. Judge Walker relied on the recordings to
prepare his findings of fact and conclusions of law in his
written order at the conclusion of the case. Schwarzenegger,
704 F. Supp. 2d at 929. He also allowed the parties to keep
partial copies of the recordings, subject to a protective order.
Id. On August 4, 2010, Judge Walker entered an order
permanently enjoining the enforcement of Proposition 8,
holding that it violated the Equal Protection and Due Process
Clauses of the Fourteenth Amendment. See id. at 1004.
Proponents appealed. Perry v. Brown, 671 F.3d 1052 (9th
Cir. 2012). They did not challenge, as part of their appeal,
Judge Walker’s decision to enter the video recordings into the
record under seal, or his decision to provide partial copies of
the recordings to the parties. Brown, 667 F.3d at 1083.
Less than a year after deciding the case, Judge Walker
retired. Id. Both before and after retiring, Judge Walker used
clips of the recordings in public appearances. Id. In
PERRY V. HOLLINGSWORTH 11
response, the Proponents—whose merits appeal was then
pending before us—moved this court to order the return of all
copies of the recordings to the district court. Id. Plaintiffs,
joined by a coalition of media companies, cross-moved to
unseal the recordings. Id. We transferred the motions to the
district court for that court to address them in the first
instance.
Then-Chief Judge James Ware had taken over the case
following Judge Walker’s retirement. After determining that
the common-law right of access applied and that Proponents
had failed to demonstrate a compelling reason to continue the
seal, the court ordered that the video recordings be unsealed.
Perry v. Schwarzenegger, No. C 09-02292, 2011 WL
4527349 (N.D. Cal. Sept. 19, 2011). Proponents appealed,
explaining that they had understood Judge Walker’s
assurance to mean that the recordings would not be made
public. They contended, further, that their witnesses would
likely be harassed if the recordings were released, and that
fear of harassment would make it more difficult to retry the
case if Proponents succeeded in their merits appeal.
In 2011, during oral argument in the appeal from the
court’s order unsealing the records, Proponents’ counsel
acknowledged that neither they nor their clients believed the
recordings would remain permanently sealed:
JUDGE HAWKINS: Were your clients under the
impression that these tapes would be forever
sealed?
COUNSEL: No Your Honor, I believe that a
seal lasts for—not necessarily, I guess, is the
better answer, is the seal lasts for ten years
12 PERRY V. HOLLINGSWORTH
under the local rules of the Northern District
of California and at the end of the trial—at the
end of the proceedings—at the end of the
case, then we would be entitled to go in and
ask for an extension of that time to a specific
date. But it would be a minimum of ten years,
Your Honor.
JUDGE HAWKINS: And it’s clear from the
record that your client understood that and
acted on that basis?
COUNSEL: The record, I don’t believe has
anything one way or the other on that, but yes
we were aware of the local rules, Your Honor,
that it was a minimum of ten years and that
we would have the opportunity to ask for an
extended seal if we could make a good cause
showing of that.
Oral Argument at 07:04–07:58, Brown, 667 F.3d 1078
(No. 11-17255), https://www.ca9.uscourts.gov/media/video
/?20111208/11-17255.
We reversed the district court, holding that it had abused
its discretion in ordering the recordings unsealed. Brown,
667 F.3d at 1081. We concluded, even assuming that the
First Amendment and common-law right of access applied,
that there was a compelling reason not to release the
recordings at that time. Id. at 1084. We wrote, “The reason
is that Proponents reasonably relied on Chief Judge Walker’s
specific assurances—compelled by the Supreme Court’s just-
issued opinion—that the recording would not be broadcast to
the public, at least in the foreseeable future.” Id. at 1084–85.
PERRY V. HOLLINGSWORTH 13
In an appended footnote, we cited and quoted Local Rule 79-
5(f), to which Proponents’ counsel had referred in his answer
during oral argument. Id. at 1085 n.5. Our footnote
explained that Rule 79-5(f)
provides that “[a]ny document filed under seal
in a civil case shall be open to public
inspection without further action by the Court
10 years from the date the case is closed,”
with the proviso that “a party that submitted
documents that the Court placed under seal in
a case may, upon showing good cause at the
conclusion of the case, seek an order that
would continue the seal until a specific date
beyond the 10 years provided by this rule.”
Id. (alteration in original) (quoting Local Rule 79-5(f)).
In the separate merits appeal, we affirmed Judge Walker’s
ruling that Proposition 8 violated the Fourteenth Amendment
of the Constitution. Brown, 671 F.3d 1052. The Supreme
Court granted certiorari and ultimately concluded that while
Proponents had standing to defend Proposition 8 in the trial
before the district court, they lacked Article III standing to
appeal the district court’s decision striking down Proposition
8. Hollingsworth, 570 U.S. at 715. Two years later, in
Obergefell v. Hodges, 576 U.S. 644 (2015), the Court held
that same-sex marriage is protected under the Fourteenth
Amendment.
In 2017, media intervenor KQED asked the district court
to unseal the video recordings of the trial. Proponents
opposed the unsealing. By this time, Judge Ware had retired
14 PERRY V. HOLLINGSWORTH
and the case had again been reassigned, this time to Judge
William Orrick.
In 2018, the district court held that the common-law right
of access applied to the trial recordings. The court held,
further, that the reliance interest we had identified in 2012
remained a compelling reason to maintain the recording’s
seal until its presumptive expiration after ten years, pursuant
to the court’s local rules. The court ordered that the trial
recordings be released after the seal’s presumptive expiration
in 2020, unless Proponents demonstrated a “compelling
reason” to extend the seal. Proponents appealed. We
dismissed the appeal for lack of jurisdiction, holding that the
decision was neither a final order nor an appealable collateral
order. Perry v. Schwarzenegger, 765 F. App’x 335 (9th Cir.
2019).
In 2020, Proponents asked the district court to extend the
seal. For the first time, the California State defendants
actively supported release of the video recordings to the
public. The court declined to extend the seal, in part because
“the Proponents again failed to submit any evidence by
declaration that any Proponent or witness who testified on
behalf of the Proponents want[ed] the trial recordings to
remain under seal . . . [or] fear[ed] retaliation or harassment
if the recordings are released.” The court also found that
Proponents’ acknowledgment during oral argument in 2011
was “a significant indication that even Proponents’ counsel
contemporaneously understood that sealing is typically
limited in time and that it was not reasonable to rely solely on
Judge Walker’s statements to insist that sealing be
permanent.” On August 12, 2020, the court ordered that the
recordings be made public.
PERRY V. HOLLINGSWORTH 15
Proponents timely appealed. A divided motions panel of
this court stayed the district court’s ordered release of the
recordings pending a hearing before the merits panel.
Following oral argument, our merits panel requested
supplemental briefing addressing the question whether
Proponents have Article III standing to bring this appeal.
II. Standard of Review
Even when not raised by the parties, we are obliged to
determine whether we have subject matter jurisdiction.
Article III standing is an essential ingredient of subject matter
jurisdiction. Whitaker v. Tesla Motors Inc., 985 F.3d 1173,
1178 (9th Cir. 2021).
III. Article III Standing
Appellants are all of the original Proponents except for
Hak-Shing William Tam and Protectmarriage.com. With the
appeal in its current posture, the threshold (and
determinative) question is whether Appellants have Article III
standing. As the parties seeking federal review, Appellants
bear the burden of showing that they have standing.
Under Article III of the Constitution, our jurisdiction is
limited to “Cases” and “Controversies.” U.S. Const. Art. III,
§ 2. “For there to be such a case or controversy, it is not
enough that the party invoking the power of the court have a
keen interest in the issue. That party must also have ‘standing
. . . .’” Hollingsworth, 570 U.S. at 700. The Supreme Court
has explained that the “‘irreducible constitutional minimum’
of [Article III] standing consists of three elements.” Spokeo
v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Those elements
16 PERRY V. HOLLINGSWORTH
require that the party invoking federal jurisdiction
“(1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct . . . , and (3) that is likely to be redressed
by a favorable judicial decision.” Id. (citing Lujan, 504 U.S.
at 560–61). The Court has explained that “under Article III,
a federal court may resolve only a real controversy with real
impact on real persons.” TransUnion LLC v. Ramirez, 141 S.
Ct. 2190, 2203 (2021) (quotation marks and citation omitted).
Although questions of standing often arise early in a case,
“Article III demands that an ‘actual controversy’ persist
throughout all stages of litigation.” Hollingsworth, 570 U.S.
at 705. “That means that standing ‘must be met by persons
seeking appellate review, just as it must be met by persons
appearing in courts of first instance.’” Id. (quoting Arizonans
for Off. English v. Arizona, 520 U.S. 43, 64 (1997)).
The current appeal comes to us in a different posture from
Appellants’ prior appeals. When Appellants appealed Judge
Ware’s order unsealing the recordings in 2011, they plausibly
alleged potential harm from their release. At that time, their
merits appeal was still pending. If they had succeeded in that
appeal, the case might well have been retried. Appellants
introduced evidence that they and others had been harassed
for supporting Proposition 8 around the time of its passage.
Based on this evidence, Appellants plausibly alleged that
their prospective witnesses might refuse to testify for fear of
harassment if the video recordings of the first trial were
released.
When Appellants appealed Judge Orrick’s order in 2019,
we lacked appellate jurisdiction to review the order. The
district court had denied immediate relief but had provided
Appellants the option of establishing a compelling reason to
PERRY V. HOLLINGSWORTH 17
maintain the seal prior to the recordings’ release in 2020. We
accordingly dismissed the appeal for lack of an appealable
final order.
Unlike in 2011, there is now no prospect of a retrial.
Further, Appellants do not allege or rely on any fear of
harassment, as indicated by comments by Appellants’ counsel
to the district court in 2020:
I very much appreciate that Your Honor had
invited and perhaps expected some additional
kind of argumentation about threats to the
witnesses’ safety or harassment, or that sort of
thing, but the truth is, Your Honor, that’s
never been the motivating factor or the basis
for which we’ve opposed disclosure of these
videotapes.
Unlike in 2019, the district court’s ruling in 2020 is an
appealable final order.
In denying Proponents’s request to keep the video
recordings sealed, the district court concluded in 2020:
Proponents again failed to submit any
evidence by declaration that any Proponent or
witness who testified on behalf of Proponents
wants the trial recordings to remain under
seal. There is no evidence that any Proponent
or trial witness fears retaliation or harassment
if the recordings are released. Nor is there
any evidence that any Proponent or trial
witness on behalf of the Proponents believed
at the time or believes now that Judge
18 PERRY V. HOLLINGSWORTH
Walker’s commitment to personal use of the
recordings meant that the trial recordings
would remain under seal forever.
IV. Injury in Fact
Our Article III standing inquiry in this appeal begins and
ends with “injury in fact, the first and foremost of standing’s
three elements.” Spokeo, 136 S. Ct. at 1547 (cleaned up). To
satisfy this element, Appellants must demonstrate “an injury
that is both ‘concrete and particularized.’” Id. at 1545
(emphasis omitted) (quoting Friends of the Earth, Inc. v.
Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–81
(2000)). To be “particularized,” the injury must affect
Appellants “in a personal and individual way.” Id. at 1548
(quoting Lujan, 504 U.S. at 560 n.1). To be “concrete . . .
[the injury] must actually exist.” Id.
Appellants’ theory of standing is rooted in an analogy to
breach of contract. See TransUnion, 141 S. Ct. at 2204
(explaining that the injury in fact requirement may be
satisfied where the burdened party has “identified a close
historical or common-law analogue for their asserted injury”).
In their view, releasing the trial tapes amounts to a breach of
Judge Walker’s “promise” that the recordings were not made
“for purposes of public broadcasting or televising,”
interpreting his assurance as extending into perpetuity. They
claim to have relied on this assurance in deciding not to seek
additional injunctive relief from the Supreme Court.
Appellants contend that this alleged breach of Judge Walker’s
“promise” by Judge Orrick’s order is alone sufficient to
establish injury in fact. They write in their supplemental
brief:
PERRY V. HOLLINGSWORTH 19
Appellees begin by faulting us for failing to
establish by “declarations or other evidence”
that Proponents stand to suffer some tangible
harm “resulting from the unsealing,”—such as
threats of violence or retaliation—but as we
have explained, our standing is not based on
any such resulting injury, but rather on the
intangible (but critically significant and
concrete) harm that breach of Judge Walker’s
promises would cause to “the sanctity of the
judicial process.”
Appellants do not claim, and cite no authority for the
proposition, that a statement—even a “promise”—made by a
judge to litigants in the course of litigation is an enforceable
contract. An analogy to a traditionally recognized cause of
action does not relieve a complainant of its burden to
demonstrate an injury. See, e.g., Carlsen v. Gamestop, Inc.,
833 F.3d 903, 909 (8th Cir. 2016) (“[I]t is crucial . . . not to
conflate Article III’s requirement of injury in fact with a
plaintiff’s potential cause of action, for the concepts are not
coextensive.” (quotation marks and citation omitted)). To
carry their burden, Appellants must plausibly allege a
concrete and particularized injury. Even assuming, contrary
to their statement to our court in 2011, that Judge Walker told
Appellants that the video recordings would remain sealed in
perpetuity, they do not have Article III standing to appeal the
district court’s order.
Appellants allege two kinds of injuries that would result
from unsealing the recordings. First, the unsealing would
result in a “palpable injustice” to Appellants themselves.
Second, the unsealing would harm future litigants’ ability to
rely on judicial “promises,” and would thereby injure both the
20 PERRY V. HOLLINGSWORTH
judicial system and future litigants. Neither alleged injury is
sufficiently concrete and particularized for purposes of
Article III standing. We address each alleged injury in turn.
A. “Palpable Injustice” to Appellants
Although not raised in their supplemental briefing
addressing Article III standing, Appellants’ prior briefing
alleged that concrete injury to Appellants, in the form of
“palpable injustice,” will result if the tapes are unsealed. We
are willing to construe this allegation of injury broadly, as an
allegation of injury not only to Appellants personally, but also
to those who have been closely associated with them and who
may have depended on them to protect their interests.
Only one of the original Proponents, Hak-Shing William
Tam, testified at the bench trial. See Schwarzenegger, 704
F. Supp. 2d at 940. Although Tam was a named intervenor-
defendant in the bench trial, he was called by Proponents to
testify as an adverse witness during their case in chief. Id. In
2009, Tam submitted a declaration to the district court stating
that he had experienced harassment because of his support of
Proposition 8 and did not want the trial recorded. However,
Tam has given no indication since then that he has reason to
fear the release of the recordings.
Further, there is no reason to believe that Appellants now
represent Tam’s interests. Even before the beginning of the
bench trial in January 2010, Tam had separated himself from
Proponents’ joint representation and had obtained his own
counsel. As far as the record before us reveals, Tam never
joined a motion or petition filed by the Proponents after
hiring separate counsel. And while Tam’s name appears on
the caption in the 2011 appeals concerning both these
PERRY V. HOLLINGSWORTH 21
recordings and the merits of Proposition 8, he was not listed
on the notices of appeal filed by the other Proponents or on a
single filing in those actions. Tam was not a party to the
2018 and 2020 proceedings before Judge Orrick, and he is not
a party to this appeal. There is thus no evidence in the record
that Tam now fears an injury if the recordings are released,
and no evidence that Proponents are acting on his behalf in
this appeal.
There is also no evidence of any threatened injury to the
remaining Proponents if the video recordings are unsealed.
None of them testified at the trial. Further and critically,
none of them has submitted a declaration that they fear
harassment or reprisals if the recordings are unsealed.
Appellants called only two witnesses at trial, David
Blankenhorn and Professor Kenneth Miller. See
Schwarzenegger, 704 F. Supp. 2d at 945. Neither witness has
ever submitted a declaration or given any indication in the
record that he fears injury if the recordings are released.
Indeed, Blankenhorn has been explicit that he does not fear
harassment if the recordings are made public. See Oral
Argument at 9:50–10:24, Brown, 667 F.3d 1078 (No. 11-
17255), https://www.ca9.uscourts.gov/media/video/?20111
208/11-17255 (Appellants’ counsel explaining that
Blankenhorn “has said candidly that he was not concerned
about harassment of himself”). Miller has never indicated
that he fears any injury if the recordings are released, even
though a portion of his testimony was used by Judge Walker
in a 2011 televised presentation and has been available online
since that time. See Judge Vaughn Walker, History of
Cameras in the Courtroom at 33:15–36:55, C-SPAN
(Mar. 22, 2011), www.c-span.org/video/?298109-3/judge-v
aughn-walker-cameras-courtroom.
22 PERRY V. HOLLINGSWORTH
Appellants argue that not only they, but also their
attorneys, “reasonably relied on Judge Walker’s assurances”
that the recordings would not be released. To the extent
Appellants are relying on possible injury to their attorneys,
we seriously question their ability to make such an argument
on the attorneys’ behalf. But we need not address this
argument because none of Appellants’ attorneys submitted
any declarations or other evidence to the district court that
they fear injury if the recordings are disclosed.
Finally, even if we were to allow Proponents to assert the
interests of Proposition 8 general supporters, there is no
evidence in the record that they have reason to fear
harassment if the recordings are released now. The record
shows that during and prior to 2009, Proposition 8 supporters,
including the original individual Proponents, experienced
harassment. But Appellants never supplemented this
evidence with anything after 2009, despite opportunities to do
so in both the 2018 and 2020 proceedings before the district
court.
In short, Appellants have provided no evidence showing
harm or threat of harm to themselves from the release of the
video recordings. Only three people aligned or potentially
aligned with Appellants—Tam, Blakenhorn, and
Miller—were witnesses at trial. Tam is not a party to this
appeal, is not represented by Appellants, and has expressed
no concern about the release of the recordings. Blakenhorn
has explicitly stated that he has no concern about their
release. Miller has never indicated that he fears harassment
if video recordings of his testimony are released, and parts of
the recordings have been available to the general public for a
decade. The entire trial has been publicly available in
transcript form since 2010, and there is no evidence in the
PERRY V. HOLLINGSWORTH 23
record that Appellants, their witnesses, or indeed any
Proposition 8 supporter, have been harassed during the period
since the release of the transcript. Simply put, the record is
devoid of the “factual showing of perceptible harm” required
to establish an injury in fact. Lujan, 504 U.S. at 566. That is,
Appellants have failed to show that an injury or threat of
injury “actually exist[s].” Spokeo, 136 S. Ct. at 1548; see
also TransUnion, 141 S. Ct. at 2200 (“No concrete harm, no
standing.”).
B. Injury to the Judicial System and Future Litigants
We next consider Appellants’ general allegation that harm
to “the sanctity of the judicial process” and to “future
litigants” will result from the release of the video recordings.
In Appellants’ view, releasing the recordings would result in
diminished trust in the judicial system and would require
future litigants “to refuse to accept trial judges’ assurances,
inducing the filing of seemingly pointless appeals to guard
against the possibility that the court might one day go back on
its word.” We consider these two alleged injuries in turn.
First, in asserting injury to the judicial system, Appellants
acknowledge that they allege an injury shared by everyone.
They concede in their supplemental briefing, “To be sure, the
interest in preserving respect for our system of justice . . . is
one shared by the public as a whole.” The Supreme Court
has long admonished that a party “raising only a generally
available grievance . . . does not state an Article III case or
controversy.” Lance v. Coffman, 549 U.S. 437, 439 (2007)
(quoting Lujan, 504 U.S. at 573–74). A purported injury is
an impermissible “generalized grievance” when the interest
of the party asserting it “is plainly undifferentiated and
common to all members of the public.” Id. at 440–41
24 PERRY V. HOLLINGSWORTH
(quotation marks omitted) (quoting United States v.
Richardson, 418 U.S. 166, 176–77 (1974)).
Appellants argue, however, that as parties to whom Judge
Walker’s “promise” was made, they “would suffer in a
particular and individual way if those promises are breached.”
But as we explained above, Appellants have provided no
evidence that they, or anyone whose interests are potentially
aligned with them, would suffer any injury if the tapes are
released. Accordingly, they have alleged no interest beyond
that common to all of society, and they are “seeking relief
that no more directly and tangibly benefits [them] than it does
the public at large.” Id. at 439 (quotation marks and citation
omitted). This generalized grievance therefore lacks the
particularity to constitute an injury in fact under Article III.
Second, nothing in the record indicates that Appellants
will themselves be among the future litigants allegedly
harmed by the release of the recordings. Article III requires
that the party invoking federal jurisdiction have a “personal
stake in the outcome of the controversy.” Susan B. Anthony
List v. Driehaus, 573 U.S. 149, 158 (2014) (citation omitted).
For an injury to be sufficient for standing, “the party seeking
review [must] be [it]self among the injured.” Lujan, 504 U.S.
at 563 (quoting Sierra Club v. Morton, 405 U.S. 727, 734–35
(1972)). Appellants have not alleged that they are currently
engaged in other litigation or have plans to litigate in the
future. The purported injury to future litigants, if it even
exists, is unrelated to Appellants and insufficient for Article
III standing.
PERRY V. HOLLINGSWORTH 25
V. Conclusion
While Appellants may feel strongly about the release of
the recordings, “[t]he presence of a disagreement, however
sharp and acrimonious it may be, is insufficient by itself to
meet Art. III’s requirements.” Hollingsworth, 570 U.S.
at 704 (quoting Diamond v. Charles, 476 U.S. 54, 62 (1986)).
Appellants have failed to establish a particularized and
concrete injury sufficient to constitute “injury in fact” as the
Supreme Court has defined that term. We therefore lack
jurisdiction over their appeal from the district court’s order.
APPEAL DISMISSED.
IKUTA, Circuit Judge, dissenting:
This is yet another sad chapter in the story of how the
judiciary has been willing to bend or break its own rules and
standards in order to publicize the proceedings of a single
high-profile trial. The urge to broadcast has continued
despite the Supreme Court’s unprecedented intervention to
prevent the district court and our court from violating rules
precluding such a broadcast, Hollingsworth v. Perry
(Hollingsworth), 558 U.S. 183, 196 (2010) (per curiam), and
our subsequent intercession to prevent the district court from
reneging on a judge’s “solemn commitments” not to do so,
Perry v. Brown (Perry), 667 F.3d 1078, 1081 (9th Cir. 2012).
And here we are again: the majority bends the principles of
Article III standing in order to deprive proponents of the
opportunity to argue that the court should not breach its
binding obligations.
26 PERRY V. HOLLINGSWORTH
I
The story began in 2009 when a group of plaintiffs
challenged a ballot initiative, Proposition 8, which overruled
a California Supreme Court ruling that legalized same-sex
marriage. The official proponents of Proposition 8 intervened
to defend the lawsuit after state officials declined to do so. 1
The trial was scheduled for January 2010. The
proponents were understandably concerned about the impact
of unwanted publicity. At the time, “numerous instances of
vandalism and physical violence [were] reported against
those who [were] identified as Proposition 8 supporters,”
Hollingsworth, 558 U.S. at 185–86, and supporters were
subjected to death threats, boycotts, or loss of employment,
id. at 185. The proponents therefore objected to publicly
broadcasting the trial, id. at 184–85, relying in part on the
district court’s Local Rule 77-3, which for years had barred
the broadcast of court proceedings,2 id. at 191–92.
1
The proponents here are all the official proponents in the original
trial regarding Proposition 8 (Dennis Hollingsworth, Gail Knight, Martin
Gutierrez, and Mark Jansson) with the exceptions of Hak-Shing William
Tam and Protectmarriage.com.
2
Local Rule 77-3 provided:
Unless allowed by a Judge or a Magistrate Judge with
respect to his or her own chambers or assigned
courtroom for ceremonial purposes, the taking of
photographs, public broadcasting or televising, or
recording for those purposes in the courtroom or its
environs, in connection with any judicial proceeding, is
prohibited. Electronic transmittal of courtroom
proceedings and presentation of evidence within the
confines of the courthouse is permitted, if authorized by
PERRY V. HOLLINGSWORTH 27
Despite this local rule, the district judge presiding over
the case, former Chief Judge Vaughn R. Walker, began a
persistent effort to ensure that the trial would be broadcast to
the public. Id. at 186. The judge first floated his interest in
broadcasting the trial at a pre-trial hearing in September
2009, but the proponents strongly opposed it. Id. A month
later, Chief Judge Walker joined a three-judge committee
(appointed by the Ninth Circuit Judicial Council) to consider
whether to initiate a “pilot program” to broadcast trial
proceedings. Id. Not surprisingly, the committee
recommended such a pilot program. Id. As Judge Walker
acknowledged, in making this recommendation, the
Proposition 8 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.” Id. (citation
omitted).
In December 2009, the Ninth Circuit Judicial Council
rushed through a new pilot program allowing “the limited use
of cameras in federal district courts within the circuit.” Id. at
187 (citation omitted). Concurrently, the district court began
an effort to amend Local Rule 77-3 so as to allow recording
trials “for participation in a pilot or other project authorized
by the Judicial Council of the Ninth Circuit.” Id. (citation
omitted). The proponents again strongly objected. Among
other arguments, they claimed that any such changes to Ninth
the Judge or Magistrate Judge. The term ‘environs,’ as
used in this rule, means all floors on which chambers,
courtrooms or on which Offices of the Clerk are
located, with the exception of any space specifically
designated as a Press Room. Nothing in this rule is
intended to restrict the use of electronic means to
receive or present evidence during Court proceedings.
28 PERRY V. HOLLINGSWORTH
Circuit and local rules required a sufficient
notice-and-comment period. Id.
In response, the district court posted a new
announcement, giving the public five business days to
comment on the amended rule. Id. But even before the five
business days had passed, the district court abruptly revised
its website again, and announced that the revised rule was
adopted pursuant to 28 U.S.C. § 2071(e), which allows courts
to implement rules without prior public notice and
opportunity for comment if there is an “immediate need” for
the rule. Id. at 187–88.
After the district court “revise[d] its rules in haste,
contrary to federal statutes and the policy of the Judicial
Conference of the United States . . . to allow broadcasting of
this high-profile trial,” Hollingsworth, 558 U.S. at 196, Chief
Judge Walker informed the parties that he intended to record
and broadcast the upcoming trial, and obtained the Ninth
Circuit’s approval to allow “real-time streaming of the trial to
. . . federal courthouses in San Francisco, Pasadena, Seattle,
Portland, and Brooklyn,” id. at 188. The Ninth Circuit
indicated it could also approve streaming the trial over the
internet, if the technical difficulties could be worked out. Id.
at 189.
Having failed to prevent the hasty amendment to the
protective local rule, the proponents rushed to file an
emergency motion with the Supreme Court to prevent the
broadcast. The Supreme Court immediately issued a
temporary stay to prevent the trial from being broadcast to
other courthouses. See Hollingsworth v. Perry, 558 U.S.
1107 (2010).
PERRY V. HOLLINGSWORTH 29
But still, Chief Judge Walker continued recording the trial
over the proponents’ objection, “on the basis that the
Supreme Court might decide to lift the temporary stay.”
Perry, 667 F.3d at 1082.
Two days later, the Supreme Court extended the stay
“pending the timely filing and disposition of a petition for a
writ of certiorari or the filing and disposition of a petition for
a writ of mandamus.” Hollingsworth, 558 U.S. at 199. The
Court made clear that it was wrong for the district court to
“change its rules at the eleventh hour to treat this case
differently from other trials in the district,” in order “to
broadcast a high-profile trial that would include witness
testimony about a contentious issue.” Id. The Court
emphasized that courts must comply with their own rules and
standards. “By insisting that courts comply with the law,
parties vindicate not only the rights they assert but also the
law’s own insistence on neutrality and fidelity to principle.”
Id. at 196.
But even with the Supreme Court behind them, the
proponents could not make Chief Judge Walker stop filming.
The proponents requested the district court halt further
recording of the trial in light of the Court’s order. But Chief
Judge Walker declined to do so. Implicitly acknowledging
the Supreme Court’s order (and the possibility that the
proponents could obtain further relief from the Court), Chief
Judge Walker assured the proponents that any recordings
would not be publicly broadcasted. Rather, Chief Judge
Walker stated that a recording would be helpful to him in
preparing the findings of fact, and pledged unequivocally:
“So that’s the purpose for which the recording is going to be
made going forward. But it’s not going to be for purposes of
public broadcasting or televising.” The next day, Chief
30 PERRY V. HOLLINGSWORTH
Judge Walker memorialized this assurance in a publicly filed
notice that stated as follows: “Transmission of the
proceedings to other locations solely within the San Francisco
courthouse will continue along with recording for use in
chambers, as permitted in Civ LR 77-3.” Later, in his post-
trial opinion, Chief Judge Walker stated that “the potential for
public broadcast in the case had been eliminated.” Perry v.
Schwarzenegger, 704 F. Supp. 2d 921, 944 (N.D. Cal. 2010)
(emphasis added). In that same opinion, Chief Judge Walker
directed the clerk of the court to file the trial recording under
seal as part of the record. Id. at 929.
We subsequently held that these statements by Chief
Judge Walker constituted “binding obligations” and “solemn
commitments” that “there was no possibility that the
recording would be broadcast to the public in the future.”
Perry, 667 F.3d at 1086–87. The proponents “reasonably
relied on Chief Judge Walker’s commitments in refraining
from challenging his actions” by seeking further relief from
the Court. Id. at 1088.
Less than a year later, Chief Judge Walker reneged on
these “solemn commitments,” id. at 1081, by playing portions
of the trial recording during his public appearances, id.
at 1083. Again, the proponents rushed to object, and moved
the Ninth Circuit to order the return of all copies of the trial
recording. Id. We referred the motion to the district court.
Id. A group of media outlets that included Appellee KQED
intervened to move the court to unseal the trial recording.
Over the proponents’ objection, the district court declined
to enforce Chief Judge Walker’s commitment, and issued an
order to unseal the recording. Id. The district court
concluded that the common-law right of public access applied
PERRY V. HOLLINGSWORTH 31
to the recording and that the proponents had made no
showing sufficient to justify its sealing in the face of the
common-law right. Id.
We strongly disagreed, and reversed. We held that “the
district court abused its discretion by ordering the unsealing
of the recording of the trial notwithstanding the trial judge's
commitment to the parties that the recording would not be
publicly broadcast.” Id. at 1081. “The trial judge on several
occasions unequivocally promised that the recording of the
trial would be used only in chambers and not publicly
broadcast. He made these commitments because the Supreme
Court had intervened in this very case in a manner that
required him to do so.” Id. Even assuming the common-law
right of access applied to the trial recording, “the interest in
preserving the sanctity of the judicial process is a compelling
reason to override the presumption in favor of the recording’s
release.” Id.
One might think this would be the end of the proponents’
years of effort to prevent the public broadcast of the trial. But
that would underestimate the apparently insatiable appetite to
publicize the trial. In response to yet another motion from
KQED to unseal the trial recording, the district court
concluded that Chief Judge Walker’s solemn commitment
had an expiration date. The court reasoned that our holding
in Perry applied only until the local rules of the district
court—under which sealed records are presumptively
unsealed after ten years, see Northern District of California
Local Rule 79-5—kicked in. Therefore, the district court
held that the recording could be unsealed in August 2020.
The proponents protested this ruling, but we dismissed their
appeal for lack of jurisdiction because the decision was
neither a final order nor an appealable collateral order. See
32 PERRY V. HOLLINGSWORTH
Perry v. Schwarzenegger, 765 Fed. Appx. 335 (9th Cir. 2019)
(mem.).
In April 2020, again over the proponents’ objections, the
district court concluded that the interest in judicial integrity
that we emphasized in Perry was no longer a “compelling
justification requiring indefinite sealing of the trial
recordings,” and held that the trial recordings prepared solely
for Chief Judge Walker’s private use, and subject to a
commitment that eliminated their public broadcast, should be
released to the public. We stayed the district courts’ order
pending the proponents’ appeal.
II
No one reading this saga of the proponents’ efforts to
prevent the public broadcasting of the trial proceedings could
doubt that the proponents have a personal stake in enforcing
Chief Judge Walker’s promise. Yet the majority remarkably
concludes that the proponents—who for ten years have been
trying to stop the unlawful broadcast of the trial
proceedings—cannot sufficiently show they will be injured
by a breach of the trial judge’s “binding obligations.” Perry,
667 F.3d at 1087. According to the majority, the proponents
do not have enough of a stake in stopping the district court’s
breach of its “solemn commitments,” id. at 1081, to even
have Article III standing to bring this case. As explained
below, this is nothing more than another distortion of our
rules and standards to ensure that this single high profile trial
is broadcast, notwithstanding the compelling “interest in
preserving the sanctity of the judicial process.” Id.
PERRY V. HOLLINGSWORTH 33
A
Article III of the Constitution confines the federal judicial
power to the resolution of cases and controversies. “For there
to be a case or controversy under Article III, the plaintiff
must have a ‘personal stake’ in the case—in other words,
standing.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190,
2203 (2021) (cleaned up). “To demonstrate their personal
stake, plaintiffs must be able to sufficiently answer the
question: ‘What’s it to you?’” Id. (quoting Antonin Scalia,
The Doctrine of Standing as an Essential Element of the
Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983))
(cleaned up). The only element of standing at issue here is
whether the proponents can show they suffered an injury in
fact that is concrete and particularized. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992).3
A “concrete” injury must be “real, and not abstract.”
TransUnion, 141 S.Ct. at 2204 (citation omitted).
“‘Concrete’ is not, however, necessarily synonymous with
‘tangible,’” Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016),
and “[v]arious intangible harms can also be concrete.”
TransUnion, 141 S. Ct. at 2204. “Chief among [such
intangible harms] are injuries with a close relationship to
harms traditionally recognized as providing a basis for
lawsuits in American courts.” Id.
One of these “traditionally recognized” harms is a
violation of private rights, including contract rights, whether
or not the violation of such rights resulted in economic
damage or other injury. Common law courts in the Founding
3
There is no dispute that the injury here—i.e., unsealing the trial
video—is actual and imminent.
34 PERRY V. HOLLINGSWORTH
era “reasoned that every legal injury necessarily causes
damage,” Uzuegbunam v. Preczewski, 141 S. Ct. 792, 798
(2021), including “the fact of breach of contract by itself,” id.
(citing Marzetti v. Williams (1830), 109 Eng. Rep. 842, 845
(K.B.)); see also Springer v. Cleveland Clinic Emp. Health
Plan Total Care, 900 F.3d 284, 292 (6th Cir. 2018) (Thapar,
J., concurring) (collecting common law cases establishing
that courts historically “entertained breach-of-contract claims
even when ‘no real loss be proved’” (citation omitted)).
Common law courts heard breach of contract claims and
awarded nominal damages even when “there was no apparent
continuing or threatened injury.”4 Uzuegbunam, 141 S. Ct.
at 798; see also Marzetti, 109 Eng. Rep. at 845 (noting that in
case “substantially founded on a contract . . . the plaintiff,
though he may not have sustained a damage in fact, is entitled
to recover nominal damages”); Restatement (First) of
Contracts § 328 (Am. L. Inst. 1932) (“Where a right of action
for breach exists, but no harm was caused by the breach, . . .
judgment will be given for nominal damages, a small sum
fixed without regard to the amount of harm.”). As Justice
Thomas summed it up, “[h]istorically, common-law courts
possessed broad power to adjudicate suits involving the
alleged violation of private rights, even when plaintiffs
alleged only the violation of those rights and nothing more.”
Spokeo, 578 U.S. at 344 (Thomas, J., concurring).
Federal courts continue to follow this common law
principle that a breach of contract is itself a concrete injury
4
To this day, California allows for an award of nominal damages in
breach of contract cases where the plaintiff suffered no actual damages.
See Cal. Civ. Code § 3360 (“When a breach of duty has caused no
appreciable detriment to the party affected, he may yet recover nominal
damages.”).
PERRY V. HOLLINGSWORTH 35
for purposes of Article III standing, regardless of whether a
plaintiff suffers actual damages. See Springer, 900 F.3d at
287 (finding insured who was denied benefits but suffered no
financial loss nevertheless sustained concrete injury because,
“[l]ike any private contract claim, his [Article III] injury does
not depend on allegation of financial loss. His injury is that
he was denied the benefit of his bargain.”); Mitchell v. Blue
Cross Blue Shield of N.D., 953 F.3d 529, 536 (8th Cir. 2020)
(“Traditionally, a party to a breached contract has a judicially
cognizable injury for standing purposes because the other
party’s breach devalues the services for which the plaintiff
contracted and deprives them of the benefit of their bargain.”)
(cleaned up); J.P. Morgan Chase Bank, N.A. v. McDonald,
760 F.3d 646, 650–51 (7th Cir. 2014) (“When one party fails
to honor its commitments, the other party to the contract
suffers a legal injury sufficient to create standing even where
that party seems not to have incurred monetary loss or other
concrete harm.”); Katz v. Pershing, LLC, 672 F.3d 64, 72 (1st
Cir. 2012) (“[W]hen a plaintiff generally alleges the existence
of a contract, express or implied, and a concomitant breach of
that contract, her pleading adequately shows an injury to her
rights.”); cf. Fleming v. Charles Schwab Corp., 878 F.3d
1146, 1151 (9th Cir. 2017) (explaining plaintiffs’ potential
inability to prove damages in breach of contract case does not
negate standing).
Common law courts held that promises were enforceable
as contracts where the promisee relied on the promise, and as
a result was “deluded and diverted from using any legal
diligence to pursue” other remedies. Pillans v. Van Mierop
(1765), 97 Eng. Rep. 1035, 1037 (K.B.); see also Kevin M.
Teeven, A History of Promissory Estoppel: Growth in the
Face of Doctrinal Resistance, 72 Tenn. L. Rev. 1111,
1112–13 (2005) (explaining Pillans summarized “the
36 PERRY V. HOLLINGSWORTH
justifications for common law promissory liability as they
had existed since the sixteenth century”). Early American
courts likewise enforced promises that induced justifiable
reliance. See, e.g., King’s Heirs v. Thompson, 34 U.S. 204,
218–20 (1835); Barzilla Homes v. Dana, 12 Mass. 190, 192
(Mass. 1815); Trs. of Farmington Acad. v. Allen, 14 Mass.
172, 176 (Mass. 1817); Trs. of Parsonage Fund in Fryeburg
v. Ripley, 6 Me. 442, 445–46 (Me. 1830). As summed up in
the 1932 edition of the Restatement of Contracts, “[a]
promise which the promisor should reasonably expect to
induce action or forbearance of a definite and substantial
character on the part of the promisee and which does induce
such action or forbearance is binding if injustice can be
avoided only by enforcement of the promise.” Restatement
(First) of Contracts § 90 (Am. L. Inst. 1932). Today, federal
courts continue to entertain claims based on promissory
estoppel. See, e.g., Hass v. Darigold Dairy Prods. Co.,
751 F.2d 1096, 1100 (9th Cir. 1985) (applying rule of
promissory estoppel stated in Restatement (Second) of
Contracts § 90 (Am. L. Inst. 1979)).
In sum, the breach of a contract or binding promise is an
injury traditionally recognized as a violation of a private
right, whether or not the injured party suffers economic or
other damage.
B
Given this background, the proponents have a vigorous
response to the question: “what’s it to you.” TransUnion,
141 S. Ct. at 2203 (cleaned up).
First, we are bound by our precedent to hold that Chief
Judge Walker made a binding, enforceable promise. Perry,
PERRY V. HOLLINGSWORTH 37
667 F.3d at 1087. Chief Judge Walker’s promises not to
broadcast the trial recording publicly were “solemn
commitments,” “binding obligations,” and constraints on
other judges’ discretion to unseal the recording. Id. We held
that Chief Judge Walker “promised the litigants that the
conditions under which the recording was maintained would
not change,” and identified the “legal consequence” of that
promise: “there was no possibility that the recording would
be broadcast to the public in the future.” Id. at 1086. And
this conclusion that Chief Judge Walker made a binding
promise wasn’t a close call: “No other inference could
plausibly be drawn from the record.” Id.
Further, “[t]here can be no question that [the proponents]
reasonably relied on Chief Judge Walker’s explicit
assurances” that the recording would not be publicly
broadcast. Id. As we explained, because the local rules did
not allow for public broadcasting of trials, “Chief Judge
Walker could not lawfully have continued to record the trial
without assuring the parties that the recording would be used
only for a permissible purpose.” Id. at 1087. Accordingly,
“[h]ad Chief Judge Walker not made the statement he did,
[the proponents] would very likely have sought an order
directing him to stop recording forthwith, which, given the
prior temporary and further stay they had just obtained from
the Supreme Court, they might well have secured.” Id.
at 1085. And because Chief Judge Walker’s assurances were
“compelled by the Supreme Court’s ruling in this very case,”
they were “even worthier of the parties’ reliance.” Id.
at 1087. Even the majority notes that the proponents relied
on Chief Judge Walker’s promises to keep recordings private
not only for themselves, but also for the attorneys, witnesses,
and supporters who “depended on them to protect their
interests.” Majority Op. at 20.
38 PERRY V. HOLLINGSWORTH
Because Chief Judge Walker made a clear and
unambiguous promise that resulted in reasonable, foreseeable,
and detrimental reliance by the proponents and those who
depended on them, a violation of that promise would be a
violation of the proponents’ legal rights.5 See supra,
at 33–36. Such a violation is a traditionally recognized harm
providing a basis for lawsuit, whether or not it resulted in
economic injury. Therefore, publicly broadcasting the trial
today constitutes a concrete injury for purposes of Article III
standing, see, e.g., TransUnion, 141 S.Ct. at 2204, regardless
of whether the proponents or other individuals associated
with them alleged a fear of harassment or reprisals if the
broadcast is released.
The proponents’ injury is also “particularized.” An injury
is particularized if it “affect[s] the plaintiff in a personal and
individual way.” Lujan, 504 U.S. at 560 n.1. Here, there can
be no question that unsealing the trial recording would do so.
Chief Judge Walker’s promise was made directly to the
5
The appellees here assert that the proponents were aware that Chief
Judge Walker’s promise would not last indefinitely. But that argument
relates to the merits of proponents’ claim. The proponents need not
definitively prove the existence or scope of a contract or binding promise
to establish Article III standing. “Whether the elements of breach of
contract, including the existence of a contract, are satisfied . . . goes to the
merits, not to a court’s power to resolve the controversy. SM Kids, LLC
v. Google LLC, 963 F.3d 206, 212 (2d Cir. 2020) (citing Perry v. Thomas,
482 U.S. 483, 492 (1987)). Accordingly, “a party that alleges harm due
to another’s breach of a contract has a justiciable controversy with the
other party,” and “courts have jurisdiction to resolve the controversy.”
Id.; see also Novartis Seeds, Inc. v. Monsanto Co., 190 F.3d 868, 871 (8th
Cir. 1999) (finding plaintiff alleging breach of contract had Article III
standing and rejecting argument that merits defense defeats standing
because “the distinction between such a defense and subject-matter
jurisdiction is a vital one”).
PERRY V. HOLLINGSWORTH 39
proponents; it was a promise about a recording of the
proponents’ trial specifically; and it was a promise that the
proponents relied on. Indeed, in Perry, we emphasized that
Chief Judge Walker’s “solemn commitments” were
“representations to the parties,” and they “could not have
been more explicitly directed toward the particular recording
at issue.” 667 F.3d at 1081 (emphasis added).
C
The majority’s arguments to the contrary fail. First, the
majority argues that the proponents have failed to establish
that any harm will result from the release of the recordings.
Majority Op. at 22–23. But, as explained above, the breach
of a binding promise (here, a promise not to release the
recording) is itself a concrete harm sufficient to establish an
injury in fact for purposes of Article III standing. See supra
at 33–36.
Second, the majority argues that we are not bound by
Perry’s holding that Chief Judge Walker made a binding
commitment, because when the proponents previously
appealed Chief Judge Ware’s order unsealing the recordings,
“they plausibly alleged potential harm from their release.”
Majority Op. at 16. In the majority’s view, the plausible
harm was that, if the recording were unsealed, prospective
witnesses might refuse to testify at a re-trial for fear of
harassment. Majority Op. at 16. But our reasoning in Perry
was not based on the conclusion that the proponents had
plausibly alleged a fear of harassment. Indeed, Perry never
addressed the question whether the proponents had standing,
and so did not consider any question of the proponents’
injury. Instead, focusing on the binding nature of Judge
Walker’s statements and the proponents’ reliance on those
40 PERRY V. HOLLINGSWORTH
statements, we held that the “compelling reason” that
required maintaining the trial recording under seal was that
the “breach of reliance interests” constituted a “grave threat
to the integrity of the judicial system.” Perry, 667 F.3d at
1087. We explained that “the explicit assurances that a judge
makes—no less than the decisions the judge issues—must be
consistent and worthy of reliance.” Id.
Finally, the majority argues that the proponents’ injury is
not particularized because any injury to the integrity of the
judicial system is “an injury shared by everyone.” Majority
Op. at 23. But Chief Judge Walker did not promise the public
as a whole that the trial recording would not be publicly
broadcasted. Rather, he made that promise to the proponents
specifically. And a breach of that promise will impact the
proponents in particular because the recording is of the
proponents’ trial. Moreover, a breach of judicial integrity can
concretely injure specific litigants even if it also undermines
the public’s trust in the justice system. Cf. Spokeo, 578 U.S.
at 339 n.7 (“The fact that an injury may be suffered by a large
number of people does not of itself make that injury a
nonjusticiable generalized grievance.”). Thus, the fact that a
breach of Chief Judge Walker’s promise would undermine
trust in the judicial system does not mean that the
proponents—i.e., the specific recipients of that
promise—would not suffer a particularized injury.
III
For the past ten years, the proponents have gone to
extraordinary lengths to prevent the public broadcast of these
trial proceedings, including a successful trip to the Supreme
Court and multiple appeals to our court. Whether Chief
Judge Walker’s promise not to publicly broadcast the trial
PERRY V. HOLLINGSWORTH 41
recording is an enforceable contract or merely closely
analogous to one, the breach of that promise is a concrete and
particularized injury sufficient to confer Article III standing
upon the proponents. Accordingly, the issue of Article III
standing does not provide a basis to depart from our prior
ruling “that the integrity of the judicial process is a
compelling interest that in these circumstances would be
harmed by the nullification of the trial judge’s express
assurances, and that there are no alternatives to maintaining
the recording under seal that would protect the compelling
interest at issue.” Perry, 667 F.3d at 1088. I therefore
respectfully dissent from the majority’s holding.