UPDATED: Resources for Reporting on the Ninth Circuit’s Prop 8 Ruling



Analysis is beginning to pour in.  For a good, meaty explanation of the legal issues, check out Lyle Denniston at SCOTUSBlog.  Another thorough look, including the background, is from Chris Geidner at MetroWeekly.

For a conservative take on the ruling, read Ed Whelan at National Review’s Bench Memos. A quick list of immediate reactions from LGBT and progressive groups was assembled by JoeMyGod.


UPDATE: The Ruling is in. 2-1 finding Prop. 8 is unconstitutional. A link to the decision is here.

The Ninth Circuit will issue its ruling on the challenge to Proposition 8, a voter referendum in California that barred same-sex marriages.  Here is the page that will feature the ruing and previous filings/rulings in the case.

For information on the court case, check out primers created by Chris Geidner at MetroWeekly, Ari Ezra Waldman at Towleroad and Lyle Denniston at SCOTUSblog.

Questions about covering marriage?  Check out NLGJA’s Getting the Marriage Story Right: the History, Current Law & the Future and NLGJA’s Stylebook Supplement.  And take a look at Press Pass Q’s analysis of the use of gay marriage versus same-sex marriage.

Here’s what NLGJA said in 2010 about how to cover the issue, and it is still great advice:

As a result of today’s ruling on Prop 8, the National Lesbian & Gay Journalists Association would like to remind journalists, bloggers, columnists and media analysts the important role they play in giving citizens the information they need to understand the full impact that today’s ruling will have in their communities and across the country.

Journalists covering the issues of same-sex marriage, civil unions and partnership rights should familiarize themselves with specifics of the California case, the history of other cases involving marriage rights for LGBT individuals and the 1996 federal Defense of Marriage Act.

Reporters should note the differences between marriage law and the legal designation of civil unions. Civil unions are presumed to extend marriage benefits and protections; however, they do not include federal benefits available to married couples. Civil unions also have no effect on religious congregations and their option to bless or not bless civil unions registered with these states.

As NLGJA has previously noted, the oft-used term “gay marriage” is both inaccurate and misleading. “Gay marriage” implies the creation of a new set of legal standards and guidelines as opposed to what is being sought by most advocates – the extension of currently existing benefits and responsibilities to include same-sex couples. More appropriate terminology in discussing such legislation would be “marriage rights for same-sex couples.” Or, in those instances where a briefer description is necessary, “same-sex marriage” as “same-sex” is a more accurate and inclusive description than “gay.”

Proper framing of stories is essential when considering potential sourcing. Same-sex marriage remains controversial, and many different sets of opinions may be individually valid, but may be less appropriate when played against one another. For example, legal expertise should be differentiated from religious quotes and opinions. A legal expert’s comments on points of marriage law and civil legislation should not be contrasted with opinions of theologians.

Journalists should also consider diversity of opinion when bringing these stories to readers, viewers and listeners. Look for voices other than the standard “go-to” sources quoted most often, and work to go beyond preconceived ideas regarding who would be the “pro” and “con” sides of the marriage debate. Not all members of the LGBT community are in favor of same-sex marriage; not all members of communities of faith are opposed.


No Release of Prop 8 Trial Recordings

The U.S. Court of Appeals for the Ninth Circuit has reversed a decision by a trial judge to release the supposedly private recordings of the Prop 8 trial that were put under seal.

Here’s what the court said in terms of press freedom in accessing court documents and materials:

Second, our ruling has nothing to do with the freedom of the press to publish, describe, or comment on any information to which it obtains access. Rather, the question here is whether courts are required (or even free) to give to the media information that is not ordinarily available—and specifically whether a recording purportedly made for the sole purpose of aiding the trial judge in the preparation of his opinion, and then placed in the record and sealed, may shortly thereafter be made public by the court.

A coalition of media groups, including the Los Angeles Times, The McClatchy Company, CNN, In Session, The New York Times,  Fox News,  NBC News, Hearst Corporation, Dow Jones, The Associated Press, KQED,  The Reporters Committee for Freedom of the Press, and the Northern California Chapter of Radio & Television News Directors intervened in the lawsuit and pushed for the recordings to be released raising First Amendment challenges. Here is the court’s response:

We conclude, for the reasons we explained above, 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. In short, the recording cannot be released without undermining the integrity of the judicial system.

The Ninth Circuit focused on evidence that Judge Walker has assured the parties that the video would not be released, especially in light of the Supreme Court’s ruling on the issue of broadcasting, and that the First Amendment was balanced against the interest of parties in a judicial proceeding who had received promises from the court.

NLGJA, Journalism, and Proposition 8

After our very successful convention in San Francisco that brought together journalists from the traditional, LGBT, and citizen press, some questions continue to linger about NLGJA’s position on not-taking-a-position on Proposition 8 in California.  That discussion really goes to the core of NLGJA’s mission to encourage fair and accurate coverage of LGBT issues.

Veteran LGBT press journalist Karen Ocamb has raised questions on her own website and Huffington Post about NLGJA’s purpose and mission that are worth exploring.  Her concerns underscore the tension that exists in NLGJA between journalists in the traditional press, the LGBT press, and citizen journalists.

To speak broadly, journalism groups (and journalists in the traditional press) are careful about staking out positions on controversial political issues.  Our 501(c)(3) status prevents lobbying and political activity and good journalism ethics discourages it.  While it is true that some journalism organizations have participated in economic boycotts of states because of voter initiatives, that is different from actually taking a position on a voter initiative.

Some minority journalism groups have also taken positions on political issues when there was a concern that a policy would potentially harm journalists’ ability to do their jobs, jeopardize attempts to diversify the newsroom, or harm journalists’ status in the newsroom.  These decisions by other organizations have not come without controversy from the larger journalism community and from their own members.

In the case of Prop 8, there was no overriding journalism issue and no economic boycott of California by LGBT organizations.  If there had been, then it’s possible that NLGJA may have honored such a boycott after weighing the financial costs.  This is consistent with positions the UNITY groups have taken at various times in terms of honoring economic boycotts linked to voter actions or legislation.

Journalism groups usually don’t stake out positions on issues that go beyond journalism itself because such moves raise questions about the objectivity of journalists who work in traditional newsrooms.  One of the reasons NLGJA was created was because there was the perception that openly LGBT journalists were unable to provide objective coverage of LGBT issues and their credibility was often questioned.

While there is a fascinating intellectual argument about objectivity, that argument doesn’t control newsroom policy and ethical standards.  At least two journalists who sat on the panel about covering the federal Proposition 8 trial at our recent conference said they would be required by the employer (or good ethics) to quit NLGJA or quit covering Prop 8 if NLGJA had taken a position on Prop 8.  That’s how important this debate is in some newsrooms and why NLGJA is loath to jeopardize members’ reputation as journalists.

In terms of criticizing the San Francisco Chronicle’s coverage of Prop 8 and specifically the story about  kids attending a teacher’s wedding, those who reviewed the coverage for NLGJA did not find that story or coverage problematic.  Journalists report what they see.  A story about kids attending their teacher’s wedding is a compelling story in the narrative of same-sex marriage debate in California.

That it was later used by Prop 8 supporters in a very successful advertisement that No on 8 had difficulty countering is not the determination of whether it is good or bad journalism.   As long as reporters are committed to fair and accurate coverage, the story stands on its own and it is then up to the activists and politicians to sort through the repercussions.  Good journalism reports and tells stories, whether it is politically problematic for activists or not.

The fact that the Chronicle’s story was a turning point–in the eyes of some activists–means the reporting was interesting, relevant, and newsworthy.  It wasn’t the Chronicle’s job to pick sides and make editorial decisions based on whether a fair and accurate story could hurt one side or the other. Putting that story on the front page was a defensible editorial decision, as were process stories which raised concerns about No on 8’s tactics and leadership.

Could there have been better reporting with more context on Prop 8 from all media?  Sure.  But that’s pretty much true of every story out there. Should there have been more “follow the money” reporting on both sides of the Prop 8 story?  Sure.  As someone living on the other side of the country, I felt I saw a lot of coverage of the Yes on 8 funding and some, but not as thorough, coverage of the No on 8 side.

But citizen journalists and LGBT press also play a role in this.  If there was too much coverage of the problems with No on 8’s strategy in the Chronicle, some have argued there wasn’t enough coverage from citizen journalists and LGBT journalists who were dependent on the same activists who were pleading with bloggers and LGBT press members to remain on message.  While journalists were busily reporting on Yes on 8 and their financial ties, the No on 8 campaign was struggling– and some would argue imploding– outside of the glare of the media: traditional, LGBT, and citizen.

Could NLGJA have been more involved in aiding journalists in covering the Prop 8 story?  Again, I’d argue sure.  We did issue press releases and the issue was discussed at conferences.  The Prop 8 election came as the organization was dealing with financial trouble plaguing the media industry, which meant we cut staff and resources available to respond and guide. But our Rapid Response Task Force continued to monitor coverage and work with newsrooms when concerns arose.

One of the purposes of this blog has been to create a conversation around better coverage.  Prop 8 and same-sex marriage have been constant themes in our blogging, encouraging journalists to be better at how the same-sex marriage story is told and how the Prop 8 legal battle is reported on.

In introducing our first plenary session at the San Francisco conference, Michelangelo Signorile recounted that first NLGJA conference where “very heated debates” broke out over the issue of “outing.” It is part of our organization’s DNA that there will be disagreements over the direction and focus of NLGJA.

The leaders of NLGJA have always been willing to engage critics both inside and outside our membership and we want to create a conversation as journalism–and specifically journalism on LGBT people–changes. We may not reach agreement or consensus, but there is room for all sides of the journalism debate. We invite critical voices to sit on panels and plenaries year after year, including at this year’s conference in San Francisco.  It’s what good journalists do.

How the Prop 8 Ruling is Being Played: LGBT Print Media

Finishing up our coverage of  how the Prop 8 was played, a look at some of this week’s LGBT print media.

Bay Area Reporter
Washington Blade

Philadelphia Gay News

Dallas Voice

Bay Windows

Gay Lesbian Times (San Diego)

Same-Sex Marriage in DC and Polling

Assuming a last-minute appeal to the Supreme Court isn’t successful, the District of Columbia will become the sixth “state” to allow same-sex marriage on Wednesday.

One of the most talked-about angles is that D.C. is the first place in the country with same-sex marriage where the population is not overwhelmingly white.  In fact, D.C.’s population is 55.6 percent African American and 36.3 percent white.  8.3 percent of DC is Latino and over 10 percent of the population is foreign born, predominately from Africa and Central America.

The AP story about the role of African Americans in DC’s battle for same-sex marriage received some blowback because of AP’s use of its own polling data in California, where it suggested 70 percent of African Americans in California supported the ban on same-sex marriage.

Many activists said the AP (and CNN) exit polling was flawed and pointed to an analysis done by the National Gay and Lesbian Task Force which said the percentage of African Americans supporting Prop 8 was closer to 58 percent.

But the NGLTF study isn’t exactly rock-solid either, as Jim Burroway and Timothy Kincaid at BoxTurtleBulletin have pointed out, raising questions about NGLTF’s analysis and suggesting that NGLTF was spinning their data.

So where does that leave reporters?  There is no doubt the exit-polling number is out there and is going to be repeated, even if the numbers are disputed.  Given questions about the reliability of the NGLTF spin, it may difficult to use those numbers as a low-ball number.

It seems warranted to approach either number with certainty, say there has been some dispute, or even find another angle.  The polling in DC by the Washington Post may be a better measure.  While Whites and African Americans had very different views on same-sex marriage, the poll found 51 percent of African Americans opposed same-sex marriage (compared to 12 percent of Whites) and 70 percent of African Americans wanted a vote on the issues, as opposed to 39 percent of Whites.

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