FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

KR I S T I N M. P E R

R Y ; S A ND R A B. S T I E R ; P A

UL T

. K ATAMI ; J E F F R

EY J. Z AR R I LL O , Plaintiffs-Appellees
,

C I TY A ND C O U N TY O F S A

N F R A N C I S C O , Intervenor-Plaintiff-Appellee
, KQED, I N C ., Intervenor-Appellee
,

v

.

G A VI N N EW S O M , Governor; R O B B ON TA , Attorney General; T O M Á S J. A R A G ÓN , * in his official capacity as Director of the California Departm ent of Public Health & State Registrar of Vital Statistics; L I NE T T E S C O T T , in her official capacity as Deputy Director of Health Inform ation & Strategic Planning for the California Departm ent of Public Health, Defendants-Appellees
, No. 20-16375

D.C. No. 3:09-cv-02292- WHO

OPINION

* Under Fed. R. App. P 43(c)(2), Rob Bonta and Tom as Aragón have been substituted for their predecessors, Xavier Becerra an d Ma rk B. Horton.P E R R Y V

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D E N NI S H O L L I

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T H ; GAI L J. K NI GH T ; M AR

T I N F. G UT I ER

R EZ ; M AR K A. JA N S S ON , Intervenor-Defendants-Appellants
,

and

P AT R I C K O’C ON

NE L L , in his official capacity as Clerk-Recorder for the County of Alam eda; D EA N C

. L O G A N , in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, D efendants.

Appeal from

the United States District Court for the Northern District of California W illiamHorsley Orrick, District Judge, Presiding

Argued and Subm itted December 7, 2020 San Francisco, California

Filed Novem

ber 18, 2021

Before: Carlos F. Lucero, * * W illiam A. Fletcher, and

Sandra S. Ikuta, Circuit Judges.

** The Honorable Carlos F. Lucero, United States Circuit Judge f o r the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.P E R R Y V

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Opinion by Judge W . Fletcher; Dissent by Judge Ikuta

S UMMARY * * *

C ivil Rights

The panel dism issed, for lack of j urisdiction, an appeal from the district court’s order re l easing to the public the video recordings o f th e district court bench trial in the landm ark ca se striking down California’s Proposition 8 forbidding sam e-sex m arriage.

Ju d g e W alker recorded the trial for u se in cham bers, pursuant to a l o c a l rule in effect at the tim e. Wh en proponents of Propositi on 8 (“Proponents”) o bjected, he assured them that the recording was not going to be used for purposes of public broadcasting o r t elevising. The video recordings were offered to the parties for use in their closing argum ents and were later entered into the record under seal. In 2011, after Judge W alker’s retirem ent and while the appeal of Judge W alker’s order perm anently enjoining Proposition 8

was pending, then-Chief Judge W are ordered the video recordings to be unsealed. Proponents appealed, explaining that they had understood Judge W alker’s assurance to m ean that the recordings would not be m ade public, although d urin g o ral argum ent , th e atto r n ey s a ck n o w ledged that neith er they nor their clients believed the re c o r d i n gs would rem ain perm anently sealed. On appeal, this court r e v e r sed the district court, holding that it had abused its di s c r e t i on in

*** This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.P E R R Y V

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ordering the re c or d i ngs unsealed in light of Judge W alker’s sp ecif ic assu ran ces th at the recordings would not be b roadcast to the public, at least in the foreseeable future. In an am ended footnote, the court cited local Rule 79-5(f), which p rovides that any docum ent filed under seal in a civil cas e shall be open to the public 10 years f rom the date the case was closed, unles s g o o d c ause could be shown to extend the seal. In 2020, Proponents a s k ed the district court to extend the seal. The district court d eclined the request, in part because Proponents failed to subm it any evidence that any Proponent or witness who testified on behalf of Proponents wanted the recordings to rem ain under seal or fe ared retaliation o r harassm ent if the recordings were released.

Th e p anel held that Appellants, a subset of the origi n al Proponents, failed to estab l i s h a particularized and concrete injury sufficient to constitute “injury in fact” as the Suprem e Court has defined that term

. Ap pe l lants did not claim
, and cited no authority for the proposition, that a statem ent—even

a “prom ise”— m ade b y a judge to litigants in the course o f litigation is an enforceable contract. The panel held that even
assum ing, contrary to their statem ent in the 2011 appeal, that Ju d g e W alker told Appellants that the v ideo recording s w o u ld

rem ain sealed in perpetuity, they fa i le d to plausibly allege a concrete and particularized injury. The panel rejected Appellants’ contentions th at the unsealing would result in a “palpable injustice” to Appellants them selves or would harm future litigants’ ability to rely o n judic i al “prom ises,” 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.P E R R Y V

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Dissenting, Judge Ikuta stated that for the past ten years, the P roponents have gone to extraordinary lengths to prevent the public broadcast of these trial proceedings, including a successful trip to the Suprem e Court and m u ltiple appeals to this court. Whether Chief Judge W alker’s prom ise n ot to p ub licly broadcast the trial recording is an enforceabl e contract or m erely closely analogous to one, the breach o f that prom ise is a concrete and particularized injury sufficient to confer Article III standing u pon the Proponents. Accordingly, the issue of Article I II standing does not provide

a basis to depart from this court’s p r ior ruling “that the integrity o f the judicial process is a com pelling i n t erest that in these circum stances would be h arm ed by the nullification of the trial judge’s express assurances, and that there are no alternativ e s to m aintaining the recording under seal that would protect the com

pell i n g i n terest at issue.” Perry v. Brown
, 667 F.3d 1078, 1081 (9th Cir. 2012).P E R R Y V

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C OUNSEL

John D. Ohlendorf (argued), Charl e s J

. Cooper, David H

. Thom pson, Peter A. Patterson, Cooper & Kirk PLLC, W ashington, D.C., for Intervenor-Defendants-Appellants.

Christopher D. Dusseault (argued), Theodore J. Boutrous Jr., Theane Evangelis, Abbey J. Hudson, and Jillian N. L ondon, Gibson D unn & C rutcher LLP, Los Angeles, C alifornia; Theodore B. Olson, Ma tth e w D. McGill, Am ir C. Tayrani, and Andrew W ilhelm
, Gibson Dunn & Crutcher LLP, W ashington, D.C.; Ethan Dettm er and Elizabeth A. Dooley, Gibson D unn & Crutcher LLP, S an F rancisco, C alifornia; David Boies, B oies Schi ll e r & Flexner L LP, Arm onk, New York; for Intervenor-Plaintiffs-Appellees.

Seth E. Go ld s tein, Deputy Attorney General; Benjam in M. Glickm an, Supervising Deputy Attorney General; Thom as S. Patterson, Senior Ass i s tant Attorney General; Rob Bonta, Attorney General; Attorney Ge neral’s Office, Sacram ento, California; for Defendants-Appellees.

Dennis J. Herrera, C ity Attorney; Ronald P. Fl ynn , Chief Deputy City Attorney; Jeremy M. Goldm an, Co-Chief o f Appellate Litig at i o n ; Office of the City Attorney, San Francisco, California; for Intervenor-Plaintiff-Appellee.

Thom as R. Burke (argued) and Kelly M. Gorton, D avis Wright Trem aine LLP, S an Francisco, California; Rochelle L. W i lcox, Davis Wright Trem aine LLP, Los Angeles, California; for Intervenor-Appellee.

Katie Townsend, Caitlin V. Vogus, and Shannon A

. J ank owski, Reporters Comm ittee for Freedom of the P ress ,P E R R Y V

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W ash in g to n , D

. C

. , for Am ici C uriae Reporters Comm ittee f o r Freedom of the Press and 32 Media Organizations.

OPINION

W . FLETCHER, Circuit Judge:

W e are once again asked to decide whether either the First Am endm en t or comm on-law right of access requires public release of video recordings of the district court bench trial in the landm ark case striking down California’s Pro p o s ition 8 forbidding sam e-sex m arriage. See Perry v. Schwarzenegger
, 704 F. Supp. 2d 921 (N.D. Cal. 2010). Lo n g a ft er the trial, the district court o rdered release of the recordin g s

. Appellants are a subset of the o riginal proponents of ballot Proposition 8. W e conclude that Appel lants have failed to dem onstrate sufficient injury for Article III s t an d ing. W e therefore dism iss their appeal for lack of jurisdiction.

I. Background

In 2008, California voters p assed Proposition 8 am ending California’s C onstitutio n to provide that “[o]nly m arriage between a m an an d a wom an is valid or recognized in California.” Cal. Const. art. 1, § 7.5. T w o sam e-sex couples who wished to m arry (“Plaintiffs”) f iled suit in the Northern District of C alifornia against the Govern o r, Atto r n ey G en eral, and other California officials. Holling s worth v. Perry
, 570 U.S. 693, 7 02 (2013). Plaintiffs argued that Proposition 8 violated their due process and equal protection rights under the f ederal Constitution. Id. The California State defendants refu s e d t o defend Proposition 8, though they continued to enforce it. Id. Proposition 8’s official proponents who wereP E R R Y V

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r e s p o n s i b l e f

o r p u t t i n g i t o n th e b a l l o t

— D e n n i s Hollingsworth, Gail Kni g ht, Martin Gutierrez, Hak-Shing W illiam Tam
, Mark Jansson, and Protectm arri a g e.com (“original Proponents”)—were perm itted to int e rvene as defendants. Schwarzenegger
, 704 F

. Supp. 2d. at 954. T am split off before trial, leaving a group we wi l l r e fe r to as “Proponents” or “rem aining Proponents.”

A b ench trial was scheduled for January 2 010 before then-Chief Judge Vaughn W alker. As that tim e grew closer, Judge W alker discussed with the part ies the possibility o f livestream ing the trial to other courthouses. Hollingsworth v. Perry
, 55 8 U.S. 183, 200 (2010) (per curiam ) (Breyer, J., dissenting). T he prim ary o bstacle to such broadcastin g was the local rules of the Northern District. In p art i c ular, Local Rule 77-3 read in relevant part:

Unless allowed by a Judge or a M a gistrate Judge with respect to his or her own cham bers

or assigned courtroom for cerem onial purposes, the taking of photographs, public broadcasting or televising, or recording for tho se purposes in the courtroom or it s
e nvirons, in connection with any judicial pro c e e d i n g , i s p r oh i b i t ed

. El ectronic transm ittal of courtroo m proceedings and presentation of evidence w ithin the c onfines of the courthouse is perm itted, if authorized by the Judge or Magistrate Judge.

Perry v. Brown , 667 F.3d 1078, 1082 n.1 (9th Cir. 2012).

In Decem

ber 2009, the Ninth Circuit Judicial Council authorized a pilot program “perm itting the use o f vi d eo inP E R R Y V

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nonjury civil cases.” Hollingsworth
, 558 U.S. at 201 (Breyer, J., d issenting). A f

ew days later, the No rth ern District

am ended its l o c a l ru les in order to participate in the pilot p ro g ram

. Id. The rule change would have allowed th e Proposition 8 trial to be broadcast to other courthouses.

Proponents challen g e d this change of rules. In January 2010, they p etitioned our court fo r a writ of m andam us that would have prevented the district court from participating in the p ilot program

. Id. at 188. W e d enied the petition. On the

m orning of the first day of trial, the Suprem e Court issued a tem porary stay o f 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 am endm ent of its local rules lik ely violated 28 U.S.C. § 2071, which requires that courts g enerally provide “appropriate public notice and opportunity for

comm ent” when c h an ging their rules. See Brown
, 667 F.3d at 1082 (citing Hollingsworth , 558 U.S. at 191).

Judge W alker h ad video recorded ( b ut not broadcast beyond the courthouse) the f irst two days of trial in the event that the S uprem e Court lifted the tem porary stay. Id

. After the stay was extended, Propo nents asked that the trial no longer be recorded. Judge W alker responded:

The local rul e perm its the recording for purposes

. . . of u se i n cham bers and that is custom arily done when we have these rem ote courtroom s or the overflow courtroom s. And I think it would be qu i te h elpful to m e in preparing the findings of fact to have that recording. So that’s the purpose for which the recording is going to be m ade going forward.P E R R Y V

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But it’s not g oing to b e for purposes of public broadcasting or televising.

After this assurance fr o m Judge W alker, Proponents dropped their objection to recording the trial. Perry
, 667 F.3d at 1082

. Proponents called only two witnes s e s at the trial. Proponents exp l a in e d
, wi th o ut p r o v iding supporting evidence, th at t

h eir o th er w i tn esses declined to testify because they “were extrem ely concerned about their personal safety, and did not want to app e ar with any recording of any sort.” Schwarzenegger , 704 F. Supp. 2d at 944.

W ithout objection, the video recordings of the trial were offered to the parties f

or us e in their closing argum ents, and

were later entered into the record un d e r seal. Brown
, 667 F.3d at 1082. Judge W alker 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

. S u pp. 2d at 929. He also a l lowed the parties to keep partial copies o f the recordings, subject to a protective order. Id. On August 4, 2010, Judge W alker e n t ered an order perm anently enjoining the enforcem ent of Proposition 8, holding that it violated the Equal Protection and Due Process Clauses of the Fourteenth Am endm ent. See id. at 1004.

Proponents appealed. Perry v. Brown
, 671 F.3d 1052 (9th Cir. 2012). They did not challenge, as part of their ap peal, Judge W alker’s decision to enter the video recordings into the record under seal, or his decision to provide partial copies o f the recordings to the parties. Brown , 667 F.3d at 1083.

Less th an a year after deciding the case, Judge W alker retired. Id. Both before and after retiring, Judge W alker used clips of the r e c ordings in p ublic appearances. Id. InP E R R Y V

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response, the Proponents—whose m erits appeal was th en pending before us—m oved this court to order the return of all copies of the recordings to the d i s trict court. Id. Plaintiffs, joined by a coalition of m edia com panies, c r o ss-m o ved to unseal the recordings. Id. W e transferred the m otions to the district court for that court to address them i n the first instance.

Then-Chief Judge Jam es W are had taken ov e r the case following Judge W alker’s retirem ent. After determ ining that the comm on-law right of access applied and that Proponents had failed to dem onstrate a com pelling reason to continue the seal, the court ordered that the video recordings be unsealed. Pe rry v. Schwarzenegger
, No. C 09-02292, 2011 WL 4527349 (N.D. Cal. Sept. 1 9, 2011). P roponents appealed, explaining that they had understo o d Judge W alker’s

assuranc e t o mean that the recordings would not be m ade public. T hey contended, further, that thei r witnesses would likely b e harassed if the recordi n g s we re released, and that fear of harassm ent w oul d make it m o re difficult to retry the case if Proponents succeeded in their m erits appeal.

In 20 1 1
, dur ing oral argum ent in the appeal from the court’s order unsealing the records, P roponents’ co un s el acknowledged that neither they nor their clients believed the recordings would rem ain perm anently sealed:

JU D GE H AW

K I N S : W ere your clients under the im pression that these tapes would be forever sealed?

C O U N S E L : No Your H onor, I b elieve that a seal l a s ts for—not necessarily, I guess, is the better answer, is the seal lasts for ten ye arsP E R R Y V

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un d er the local rules of the N orthern Distr i ct of California and at the end of the trial—at the end of the pr oc e e dings—at the end of the
case, then we would be enti t l e d to g o in and ask for an extension of that tim e to a specific date. But it would be a m inimum of ten years, Your Honor.

JU D GE H AW

K I N S : An d it’s clear from the record that y our client under s tood that and acted on that basis?

C O U N S E L : T h e record, I don’t beli e v e has anything one way or the other on that, but yes
we were aware of the local rules, Your Honor, that it was a m inimum of ten y ear s an d that

we would have the opportunity to ask for an extended seal if we could m ake a good cause showing of that.

Oral Argum ent at 07:04–07:58, Bro wn , 6 67 F.3d 1078 (No. 11-17255), https://www.ca9.uscourts.gov/m edia/video /? 20111208/11-17255.

W e reversed the d istrict court, holding that it h ad abused its d iscretion in ordering the recordings un s e a led. Brown
, 6 67 F.3d at 1081. W e concluded, even assum ing that th e First Amendm ent and comm on-law right of access applied, that there was a com

pe l l i n g r eason not to release the recordings at that tim e. Id. at 1084. W e wrote, “The reason is that P roponents reasonably relied on Chief Judge W alker’s specific assurances—compelled by the Suprem e Court’s ju stissued opinion—that the recording would not b e broadcast to the public, at least in the foreseeable future.” Id. at 1084–85.P E R R Y V

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In an appended footnote, we cited and quoted Local Rule 79- 5(f), to which P roponents’ counsel had referred in his answer during oral argum ent. Id. at 1085 n.5. Our footnote explained that Rule 79-5(f)

provides that “[a]ny d ocum ent filed under seal in a c i v i l c ase shall be open to public inspection without further action by the Court 10 years f

rom the date the case is closed,” with the proviso th at “a p arty that subm itted docum ents that the Court placed under seal in

a case m ay, upon sh o wi ng good cause at the

c on clusion of the case, seek an order th at would continue the seal until a specifi c d ate beyond the 10 years provided by this rule.”

Id. (alteration in original) (quoting Local Rule 79-5(f)).

In the separate m erits appeal, we affirm ed Judge W alker’s ruling that Proposition 8 violated the Fourteenth Am endm ent of the Constitution. Brown
, 671 F. 3d 1052. The Suprem e Court granted certiorari and ultim ately concluded that while Proponents had standing to defend Proposition 8 in th e trial before the district court, they lac k ed Article III standing to appeal the district court’s decision striking down Proposition 8. Hol l in g

s worth
, 5 70 U .S. at 715. T wo years later, in Obergefell v. Hodges
, 5 76 U .S. 644 (2015), the Court held that sam e-sex m arriage is protected under the F ourteenth Am endm ent.

In 2017, m edia intervenor KQED asked the district court to unseal the video recordings of the trial

. Proponents opposed the unsealing. By this tim e, Judge W are had retiredP E R R Y V

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an d the case had again been reassigned, this tim e to Ju d g e W illiamOrrick.

In 2018, the district court held that the comm on-law right of access applied to the trial recordings. The co urt held, further, that the reliance interest w e had id e ntified in 2012

rem ai n e d a com

pelling reason to m aintain the recording’s seal until its presum

p tive expiration after ten years, p ursuant to th e court’s local rules. The court ordered that the trial recordings be released after the seal’s p resum ptive expiration in 2020, unless Proponents dem onstrated a “com pelling reason” to extend the seal. P roponents appealed. W e dism issed the appeal for lack of jurisdiction, holding that the decision was n either a final order nor an appealable collateral order. Perry v. Schwarzenegger
, 765 F. App’x 335 (9th Cir. 2019).

In 2 020, Proponents asked the d istrict court to extend the seal. For the firs t t i me , the California S tate defendants actively supported r e l ease o f the video recordings to the public. The court declined to extend the seal, in part because “the Proponents again faile d t o subm it any evidence by declaration that any Proponent or witness who testified on behalf of the Proponents want [ed] the trial recordings to

rem ain under se a l

. . . [or] fear[ed] retaliation or harassm ent if the recordings are released.” T h e court also f o und that Proponents’ acknowledgm ent during o ral argum ent in 20 1 1

was “a significant indication th at even Proponents’ counsel contem poraneously understood that sealing is typically lim ited in tim e and that it was n ot reasonable to rely solely on Jud ge W alker’s statem ents to insist that sealing be perm anent.” On August 12, 2020, the court ordered that the recordings be m ade public.P E R R Y V

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Proponents tim ely appealed. A d ivided m otions p anel o f this court stayed the district court’s o r d e r e d release of the recordings p ending a h earing be fo re the m erits panel. Following o r a l argum ent, our m erits panel requested supplem ental b r i efing addressing the question whether Proponents have Article III standing to bring this appeal.

II. Standard of Review

Even when not raised b y th e parties, we are o bliged to determ ine whether we have subject matt e r jurisdiction. Article III standing is an essential ingredient of subject m atter jurisdiction. Whitaker v. Tesla Mo to rs Inc.
, 9 85 F.3d 1173, 1178 (9th Cir. 2021).

III. Article III Standing

Appellants are a l l of the original Proponents except for Hak-Shing W illiam Tam and Protectm arriage.com

. W ith the appeal in its current posture, the thresh o l d (and d etermin ative) question is wh e th er A p p ellan ts h av e Article III stan d i n g. As the p arties seeking federal review, Appellants bear the burden of showing that they have standing.

Under Art icle III of the Constitution, our jurisdiction is lim ited to “Cases” and “Controversies.” U.S. C onst. Art. III, § 2. “For th e re to be such a case or controversy, it is not enough that the party invoking the p o wer of the court h ave a keen interest in the issue. That party m ust also have ‘standing

. . . .’” Hollingsworth
, 570 U .S. at 700. The S uprem e Court has explained that the “‘irreducible constitutional m inimum ’ of [Article III] standing consists o f three elem ents.” Spokeo

v. Robins
, 136 S. Ct. 1540, 1 547 (2016) (quoti n g Lu jan v. Defs. of Wildlife
, 504 U .S. 5 55, 560 (1992)). Those elem entsP E R R Y V

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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
, 5 04 U.S. at 560–61). The Court has explained that “under Article III,

a federal court m ay resolve only a real controversy with real im pact on real persons.” TransUnion LLC v. Ramirez
, 141 S. Ct. 2190, 2 203 (2021) (quotation m arks and citation om itted).

Although questions of standing often arise early in a case, “Art ic le III dem ands that an ‘actual controversy’ persist throughout all stages of litigation.” Hollingsworth
, 570 U.S. at 705. “That m eans that stand i n g ‘ mu s t be m et by persons seeking appellate review, just as it m ust be m et by pe r sons appearing in courts of first instance.’” Id. (quoting Arizonans for Off. English v. Arizona , 520 U.S. 43, 64 (1997)).

The current appeal com es to us in a different posture from Appellants’ p rior appeals. When Appellants appealed Judge W are’s order unsealing the recordings in 2011, they plausibly alleged potential harm from their release. At that tim e, their

m erits appeal was still pending. If they had succeeded in that appeal, the c a s e m ight well have been retried. Appellants introduce d evidence that they and others had been h arassed for supporting Proposition 8 aroun d the tim e o f its passage. Based on this evidence, Appellan ts plausibly alleged that their prospective witnesses m ight refuse to testify for fear o f h ar assm ent 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 orde r. The d is trict court had d enied imm ediate relief but had provide d Appellants the option of establishing a com pelling reason toP E R R Y V

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m aintain the seal prior to the recordings’ release in 2020. W e

a ccordingly dism issed the appeal for lack of an appea l ab le final order.

Unlik e i n 2011, there is n ow no prospect of a retrial. Further, Appellants do not allege or rely on any f ear of h arassment, as indicated by comm ents b y Ap p ellan ts’ co u n s el to the district court in 2020:

I very m u c h ap p reciate that Your Honor h ad invited and perhaps expected som e additional kind o f argum entati on about threats to the witnesses’ safety or harassm ent, or that sort o f thi n g , but the truth is, Your Honor, that’s

never been the m otivating factor or the basis for which we’ve opposed disclosur e of these videotapes.

Unlike in 2019, th e district court’s ruling in 2020 is an appealable final order.

In denying Pr o p o nents’s request to keep the video recordings sealed, the district court concluded in 2020:

Proponents again failed to subm it any evidence by declaration that any Proponent o r witness who testified on behalf of Proponents

want s the trial recordings to rem ain under seal. There is no evidence that any Proponent

or trial witness fears retaliation or harassm ent if the recordings are released. No r is there any e v i dence that any Proponent or trial witness o nbehalf of the Proponents believed at the tim e or believ e s now that JudgeP E R R Y V

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W alker’s c o mm itm ent to personal use of the recordings m eant that the trial recordings would rem ain 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 forem ost of standing’s three elem ents.” Spokeo
, 1 36 S. Ct. at 1547 (cleaned u p). T o satisfy this elem ent, Appellants m ust dem onstrate “an injury th at is both ‘concrete and particularized.’” Id. at 1545 (em p hasis o m itted) (quoting Friends of the E arth, Inc. v. Laidlaw Env’t Servs. (TOC)

, Inc.
, 528 U.S. 167, 180–81 (2000)). To be “particularized,” the injury m u st affect Appellants “in a personal and individual way.” I d

. at 1548 (qu o ting Lujan
, 504 U.S. at 560 n.1). To be “concrete

. . . [the injury] must actually exist.” Id.

Appellants’ theory o f standing is rooted in an analogy to breach of contract. See TransUnion
, 141 S. Ct. at 2204 (explaining th at the injury in fact requirem ent m ay be satisfied where the burdened party has “identified a close h isto rical o r co m

m o n -law an alogue for their asserted in ju ry ”). In their view, releasing the trial tapes am ounts to a b reach o f Judge W alker’s “prom ise” that the recordings were not m ade “for purposes of pub l i c 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 Suprem e Court. Appellants conten d th at th is alleged breach of Judge W alker’s “prom ise” by Judge Orrick’s order is a l o ne sufficient to estab l i s h injury in fact. T hey write in their supplem ental brief:P E R R Y V

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Appellees begin by faulting us for failing to establish by “declarations o r other evidence” that Proponents stand to suffer som e tangible h arm “resulting f

rom the un sealing , ”— su ch a s threats of violence or retaliation—bu t a s we hav e explained, our standing is not based on any such resu l ti n g injury, but rather on the intangible (but critica l ly significant and concrete) harm that b reach of Judge W alker’s p rom ises w ould cause to “the sanctity of th e judicial process.”

Appellant s d o n o t claim
, and cite no authority for the proposition, that a statem ent—even a “prom ise”—m ade by a judge to litigants in the course of litigation is an enforceable

con tr ac t

. An analogy to a traditionally recognized cause o f action does n o t relieve a com plainant of its b urden to dem onstrate an injury. See
, e.g. , Carlsen v. Gamestop, Inc.
, 833 F .3d 9 0 3, 909 (8th Cir. 2 016) (“[I]t is c ru c i a l

. . . not to conflate Article I II’s requirem ent of injury in fact with a plaintiff’s potential cause of action, for the concepts are not coextensive.” ( qu otation m arks and citation om itted)). T o carry their burden, Appellants m ust plaus ibly allege a concrete and particularized injury

. Even assum ing, contrary to their statem ent to o ur court in 2011, that Judge W alker told Appellants that the video recordings would rem ain 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 wo u l d result in a “palpable injustice” to Appellants them selves. Second, the unsealing would harm future litigants’ ability to rely on judicial “prom ises,” and would thereby injure both theP E R R Y V

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judicial system and future litigants. Neither alleged injury is sufficiently concrete and parti c u larized for purposes o f Article III standing. W e address each alleged injury in turn.

A. “Palpable Injustice” to Appellants

Although not r a ised in their supplem ental briefing addressing Article III standing
, Ap pellants’ prior briefing alleged that concrete injury to Appellan t s , in the form o f “palpable injustice,” will result if the tapes are unsealed. W e
are willing to construe this allegation of injury broadly, as an allegation o f injury not only to Ap p ellants personally, but also to those who have been closely associated with them and who

m ay have depended on themto protect their interests.

Only o ne of the original Proponents, Hak-Shing W illiam Tam
, testified at the bench trial. S e e S chwarzenegger
, 704 F. Supp. 2d at 940. Although T am was a nam ed intervenordefendant in the bench trial, he was called by Proponents to testify as an adverse witness during their case in chief. Id. In 2009, Tam subm itted a declaration to the district court stating that h e had experienced harassm ent b ecause of his support o f 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 n ow represent Tam ’s interests. Even before the beginning of the bench trial in January 2010, Tam had separated him self from Proponents’ joint representation and had o b t a ined his o wn counsel. As far as the record before us reveals, T am never joined a m otion or petition filed by the Pro ponents after hiring separate counsel. And while T am ’s nam e appears on the caption in the 2 011 appeals concerning both theseP E R R Y V

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recordings and the m erits of Proposition 8, he was n ot listed

on the notices of appeal filed b y the other Proponents o r on a si n g l e 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 T am now fears an injury if the recordi n g s ar e released, and no evidence that P roponents are a cting on his behalf in this appeal.

There is also no evidence of any threatened injury to the

rem aining Proponents if the v ideo recordings are unsealed. None o f them testified at th e trial. Further and critically,

none of them has subm itt e d a declaration that they fear harassm ent or reprisals if the recordings are unsealed.

Appellants called o nly two witnesses at trial, David Bl ank e nh orn and P rofessor Kenneth Miller. S e e Schwarzenegger
, 704 F. Supp. 2d at 945. Neither witness has

ever subm itted a declara t i o n or given any indication in the record that h e fears injury if the recordings are released. Indeed, Blank e nh orn has been explicit that h e does not fear har a s s me nt if the recordings are m ade public. See Oral Argum ent at 9 :50–10: 2 4
, Brown
, 667 F.3d 1078 (No. 11- 17255), https://www.ca9.uscourts.gov/m edia/video/? 20111 2 0 8 / 1 1

- 1 7 2 5 5 ( Ap p e l l a n t s ’ c o u n s e l e x p l a i n i n g th at Blankenh o rn “has said candidly that h e was not concerned abo ut h ar assm ent of him self”). Miller has never indicated that he fears any injury if the recordings are released, even though a portion of his testim ony was used by Judge W alker in a 2011 televised p resentation and h as been available online since that tim e. See Judge Vaughn W alker, History of Cameras in the Courtro o m at 33:15–36:55, C-SPAN (Mar. 22, 2011), www.c-span.org/video/? 298109-3/judge-v aughn-walker-cam eras-courtroom

.P E R R Y V

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Appellants argue that not only they, b ut also their attorneys, “reasonably relied o n Judge W alker’s assurances” that the recordings would not be released. To th e extent Appellants ar e relying on possible injury to their attorneys,

we seriously question their ability to m ake such an argum ent

on the att o rn eys’ behalf. But we need not address this argument because none of Appellants’ attorneys subm itted any declarations o r 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 genera l supporters, there is no evidence in the record that they have reason to fear harassm ent if the recordings are released now. The record shows that during and prior to 2009, Proposition 8 supporters, including th e original individual Proponents, experienced harassm ent. But Appellants never supplem ent ed this evidence with anyth in g af ter 2009, despite opportunities to do so in both the 2 018 and 2020 proceedings b efore the district court.

In short, Appellants have p rovided n o evidence showing harm or threat of harm to them selves fromthe release of the video recordings. O nly three people aligned or poten t i a lly

a l i g n e d w i t h A p p e l l a n t s

— T a m , B l a k e n h o r n , a n d Miller—were witnesses at trial. Tam is n ot a p arty to this appeal, is n ot represented by Appel lants, and has expressed

no concern about the release of the recordings. Blakenhorn has explicitly stated tha t he has no concern about their release. Mill e r h as never indicated that he f ears harassm ent if video recordings of his testim ony are released, and p arts o f the recordings have been available to the general public f or a decade. The entire trial has been publicly avail able in transcript form since 2010, and there is no evidence i n theP E R R Y V

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rec o r d that Appellants, their witnesses, or indeed any Proposition 8 supporter, have b een h arassed d uring the period

s in c e the release of the transcript. Sim ply put, the reco r d i s devoid o f the “factual showing of p erceptible harm ” required to establish an injury in f

act. Lujan
, 504 U.S. at 566. T hat is, Appellants have failed to show that an injury or threat o f injury “actually exist[s].” Spok eo , 1 36 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

W e next co n sid er A

p p ellan t s’ g en eral alleg atio n that harm to “the sanctity of the judicial process” and t o “ future litigants” will result f

rom the release of the video recordings. In Appellants’ view, releasing the recordings would result in dim inished tru s t i n the judicial system and would require future litigants “to refuse to accept trial j u dges’ assurances, inducing the filing of s eem ingly pointless appeals to guard against the possibility that the court m ight one day go back on its word.” W e consider these two alleged injuries in turn.

First, in asserting injury to the judicial system , Appellants acknowled g e that they allege an injury shared b y everyone. They concede in their supplem ental briefing, “To b e sure, the interest in preserving respect for our system of justice . .

. is

one shared by th e p ub l ic as a whole.” The Suprem e Court h as l o n g adm onished that a party “raising only a g enerally available grievance

. . . does n ot state an Article I II case o r controversy.” Lance v. Coffman
, 549 U.S. 4 3 7, 4 39 (2007) (quoting L u

jan , 504 U.S. at 573–74). A purported injury is

an im p erm issible “generalized grievance” when the i n t e rest of the party asserting it “is plainly undifferent i at ed and

comm on to all m em

bers of the public.” I

d. at 440–41P E R R Y V

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(quotation m arks om itted) (quoting Un ited States v. Richardson , 418 U.S. 166, 176–77 (1974)).

Appellants argue, however, that as parties to whom Judge W alker’s “prom ise” w as m a d e , th ey “would suffer in a p articular and individual w ay if those prom ises are b reach ed

. ” But as we explained above, Appell an t s have p rovided no evidence that they, or anyone whose interests are potentially aligned with them
, would s u ffe r any injury if the tapes are released. Accordingly, they have alleged no interest b eyond that comm on to a ll o f society, and they are “seeking relief that no m ore directly and tangibly benefits [them ] than it does the public at large.” Id. at 439 (quotation m arks and citation

om itted)

. This generalized grievance therefore lacks the particularity to constitute an injury in fact under Article III.

Second, n o th i ng in the record indicates that Appellants will them selves be am o n g the future litigants allegedly harm ed by the release of the recordings. Article III requires that the p arty invoking federal jurisdiction have a “personal stake in the o utcom e of the controversy.” S usan B

. Anthony List v. Driehaus
, 5 73 U .S. 149, 158 (2014) (citation om itted). For an injury to be sufficient for standing, “the party seeking review [m ust] be [it]self am ong the injured.” Lujan
, 5 0 4 U.S. at 5 6 3 (quoting Sierra Club v. Morton
, 405 U.S. 7 2 7, 734–35 (1972)). Appellants have not alleged that they are currently engaged in oth e r l i tigation 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.P E R R Y V

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V. Conclusion

While Appellants m ay feel strongl y ab o ut the release o f the recordings, “[t]he presence o f a disagreem ent , however sharp and acrim onious it m ay be, is insufficient by itself to

m eet Art

. III’s requirem ents.” Hollingsworth
, 570 U.S. at 704 (quoting Diamond v. Charles
, 4 76 U.S. 54, 62 (1986)). Appellants h ave failed to establish a particularized and concrete injury sufficient to constitute “injury in fact” as the Suprem e Court has defined that term

. W e therefo r e l a ck jurisdiction over their appeal from the district court’s order.

APPEAL DISMISSED.

IKUTA, Circuit Judge, dissenting:

Thi s is yet another sad chapter in the story of how the judiciary has been willing to bend or break its o wn rules and standards in o rder to p ublicize the procee d i n g s of a single high-profile tr i a l. T h e urge to broadcast has continued d es p ite the Suprem e Court’s unprecedented intervention t o preven t the district court and our court from violating rules precluding such a broadcast
, Ho llingsworth v. Perry ( H ollingsworth ), 558 U.S. 183, 1 96 (2010) (per curiam ), and

our subsequent intercession to prevent the district court from

r eneging on a judge’s “solemn comm itm ents” not to d o s o , Perry v. B rown (Perry ), 6 67 F .3d 1078, 1081 (9th Cir. 2012). And here we are again: the m ajority bends the p rinciples o f Article III standing in o r d e r to deprive proponents of the opportunity to argue that the court should not breach its binding obligations.P E R R Y V

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I

The story began in 2009 when a group o f pla i n tiffs challenged a b allot initiative, Proposition 8, which overruled

a California S uprem e Court ruling that legalize d sam e-sex

m arriage. The official proponents of Proposition 8 interv en ed 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 im pact of unwanted pub l i c ity. At the tim e, “num erous instances o f vandalism and p hysical violence [were] reported against those wh o [were] identified as Proposition 8 supporters,” Hollingsworth
, 558 U.S. at 185–86, and supporters were subjected to d e ath threats, boycotts, or loss of em ploym ent, id. at 185

. The proponen t s th er efore objected to publicly broadcasting th e trial, id. at 184–85, relying in part on the district court’s Local Rule 77-3, which f or years had barred the broadcast of court proceedings, 2 id. at 191–92.

1 The proponents here are all t he official p rop o n ents in t he original trial r egarding Proposition 8 (Dennis H ollingsworth, Gail Knight, Martin Gutierrez, and Mark Jansson) with t he exceptions of Hak-Shing W illiam Tam and Protectm arriage.com

.

2 Local Rule 77-3 provided:

Unless allowed by a Judge or a Magistrate Judge with respect to his o r her own cham b ers o r assigned courtroom for cerem o ni a l purposes, the taking o f photograph s , public broadcasting or televising, o r recording for tho se purposes in the courtroom or its environs, i n connection with any judicial proceeding, is prohibited. Electronic transm ittal of courtro om proceedings and p re s e ntation of evidence within the confines of t

he courthouse i s perm itted, i f authorized b yP E R R Y V

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Despite this local rule, the district judge presiding over the case, form er Chief Judge Vaughn R. W alker, b egan a persistent effort to ensure that the trial would be broadcast to the public. Id. at 1 86. The judge first floated his interest in broadcasting the trial at a pre-trial hearing i n Septem ber 2009, but the proponents strongly opposed i t

. I d

. A m onth later
, Chief Judge W alker joined a three-judge comm ittee (appointed by the Ninth Circuit Judicial Council) to consider whether to initia te a “pilot program ” to broadcast trial proceedings. Id. Not surprisingly, the comm ittee

rec o mmended such a pilot program

. Id. As Judge W alker acknowledged, in m aking this recomm endation, the Propositi o n 8 case “was very m uch in m ind at that tim e because it had com e to prom inence then and was thought to b e an ideal candidate for consideration.” Id. (citat i o n
om itted).

In Decem

ber 2009, the Ninth Circuit Judicial Council rushed through a new pilot program allowing “the lim ited use of cam eras in federal district courts within the circuit.” Id. at 187 (citation o m itted). Concurrently, the district court began

an effo rt to am end Local Rule 77-3 so as to allow recording trial s “ fo r participation in a pilot or other project authorized by the Judicial Council of the Ninth Ci r c u i t

. ” Id. (citation

om itted). T he proponents agai n s trongly objected. Am ong other argum ents, they claim ed that any such changes to Ninth

the Judge or Magistrate Judge. The term ‘environs,’ as used in this rule, m eans all floors o n w h ich cham bers, courtroom s or on which Offices of the C l e rk are located, with the exception of any space specifically designated as a Press Room

. No th ing in this rule is intended to restri c t the use of electronic m eans to receive or present evidence during Court proceedings.P E R R Y V

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C i r c u i t a n d l o c a l r u l e s r e q u i r e d a s u f f i c i e n t notice-and-comm ent period. Id.

In response, the district court posted a ne w
announcem ent, giving the public five business days to

comm ent o n the am ended rule. Id. But even before the five business days had passed, the d i s trict court abruptly revised its website again, and announced that the r e v i s ed rule was adopted pursuant to 28 U .S.C. § 2071(e), which allows courts to i mp l em ent rules without prior public notice and opportunity for comm ent if there is an “imm ediate need” for the rule. Id. at 187–88.

After the district court “revise[d] its rules in haste, contrary to f

ederal statutes and the policy of th e Judicial Conference of the United States

. . . to allow broadcasting o f this high-profile trial,” Hollingsworth
, 558 U.S. at 196, Chief Judge W alker inform ed the p arties that he intended to record and b roadcast the upc o mi n g trial, and obtained the Ninth Circuit’s approval to allow “real-tim e stream ing of the trial to

. . . f ederal courthouses in San Francisco, Pasadena, S eattle, Port l an d, and Brooklyn,” id. at 188. The Ninth Circuit indicated it could also approve stream ing the trial o ve r the internet, if the technical difficulties could be worked out. Id. at 189.

Having f ailed to prevent the hasty am endm ent to th e protecti v e l o cal rule, the proponents rushed to file an
em ergency m otion wi th the Suprem e Court to prevent the bro a d c a s t. The Suprem e Court imm ediately issued a tem porary s tay t o prevent the trial f rom being broadcast to other courthouses. See H ollingsworth v. Pe rr

y , 558 U.S. 1107 (2010).P E R R Y V

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But still, Chief Ju d g e W alker continued recording the trial

over the proponen t s’ objection, “on the basis that the Suprem e Court m ight decide to lift th e tem porary stay.” Perry , 667 F.3d at 1082.

Two days late r , the Suprem e Court extended the stay “pending the tim ely filing and d i sp o s ition of a petition for a writ of certiorari or the filing and disposition of a p etition for a writ of m andam

us.” Hollingsworth , 558 U.S. at 199. The Court m ade clear that it was wrong for the district court to “change its rules at the eleventh h our to treat this case differently from other trials in the distri c t , ” in order “to broadc a s t a high-profile trial that would include witness testim ony about a c ontentious issue.” Id. The Court

em phasized that courts m

ust com ply with their own rules and standards. “By insisting th at courts com p ly with the law, parties v indicate not o nly the rights they assert but also the law’s own insistence o n neutrality and fidelity to principle.” Id. at 196.

But even with the S uprem e Court behind them
, the proponents could not m ake Chief Judge W alker stop film ing. The proponents requested the d istrict court halt further recording o f the trial in light of the Court’s order. But Chief Judge W alker declined to do so

. I m plicitly acknowledging the Suprem e Court’s order (and the possibil i ty that the proponents could obtain further relief from the Court), Chief Judge W a l ke r assured the proponents that any recordings would not be publicly broadcasted. Rather, Chief Judge W alker stated that a recording would be h e l p fu l to him in preparing the findings of fact, and pledged unequivoc a l ly: “So that’s the purpose for which the recording is going to be

m ade going forward. But it’s not going to be for purposes of
p ub lic b roadcasting or televising.” The next day, Chie fP E R R Y V

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Judge W alker m em orialized this assurance in a p ublicly filed notice that s t ated as follows: “Transm ission of the proceedings to other locations solely w ith in th e S an F r an cisco courthouse will continue along with recordi n g f or use in chambers
, as perm itted in Civ LR 77-3.” Later, in hi s p o s t

trial opinion, C hief Judge W alker stated that “the potential for public broadcast in the case had b ee n eliminated

. ” Perry v. Schwarzenegger
, 7 04 F. Supp. 2d 921, 944 (N.D. C al. 2 010) (em phasis added). In that sam e opinion, Chief Judge W alker directed the clerk of the court to file the trial recording under seal as part of the record. Id. at 929.

W e subsequently h eld that these statem ents by Chief Judge W alker constituted “binding obligations” and “solemn
comm itm ents” that “there w as no possi b ility that the recording w ould be broadc a s t to the public in the f uture.” Perry
, 6 6 7 F.3d at 1 086–87. The proponents “reasonably relied on Chief Ju d ge W alker’s comm itm ents in refraining from challenging his actions” by s ee king further relief from the Court. Id. at 1088.

Le s s than a year later, Chief Judge W alker reneged on these “solemn comm itm ents,” id. at 1 081, by playing p o rtions of the trial recording durin g h is public appearances, id. at 1083. Again, the proponents rushed to object, and m oved the Ninth Circuit to order the return of all copies o f the trial recording. Id. W e referred the m otion to th e d i strict court. Id. A g roup o f m edia o utlets that i n c l u ded Appellee KQED intervened to m ove the court to unseal the trial recording.

Over the pro ponents’ objection, the d istrict court declined to enforce Chief Judge W alker’s comm itm ent, and issued an ord e r t o unseal the recording. Id. The district court

con clu d ed th at the comm on-law right o f public access appliedP E R R Y V

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to the recording and that the proponents ha d m ade no showing sufficient to j u s ti fy its sealing in the face of the

comm on-law right. Id.

We s trongly disagreed, and reversed. W e held that “th e district court abused its discretion by ordering the unsealing of the recording of the trial notwithstanding the trial judge' s
comm itm ent to the parties that the recording would n o t be publicly broadcast.” Id. at 1081. “The trial judge on several occasions unequivocally prom ised that th e recording of the trial would b e u s ed only in cham bers and not publicly broad cast. H e m ade these comm itm ents because the Suprem e Court had intervened in th i s very case in a m anner that required him to do so.” Id. Even assum ing the comm on-law right of access appli e d t o th e trial recording, “the interest in preserving the sanctity of the judicial process is a com pelling

reason to override the presum ption in favor of the recording’s release.” Id.

One m ight think this would b e the end of the proponents’ years o f effort to prevent the public b roadcast of the trial. B ut that would underestim ate the apparently insatiable appetite to publicize the trial. In response to yet another m oti o n from KQED to unseal the trial recording, the district court

con c l uded that Chief Judge W alker’s solemn comm itm ent 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 presump tively unsealed after ten years, se e No rthern District of California Local Rule 79-5—kicked in. Therefore, th e d istrict court held that the recording could be unsealed in August 2020. The proponents protested this ruling, but we dism issed their appeal for lack of jurisdiction because the decis i o n was neither a final order n or an appealable c o l lateral order. SeeP E R R Y V

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Perry v. Schwarzenegger
, 765 Fed. Appx. 335 (9th Cir. 2 019) (m em .).

In April 2 020, again over the proponents’ objections, the district court concluded that the interest in judicial integrity that we emp ha sized in Perry was no longer a “com pelling justification requ i r i ng indefinite sealing of the trial recordings,” and held that the trial recordings prepared solely for Chi e f Judge W alker’s private use, and subject to a
comm itm ent that elim inated their public broadcast, should be released to the public. W e stayed the d istrict courts’ order pending the proponents’ appeal.

II

No o n e reading this saga of the proponents’ efforts t o prevent the public broadcasting of the trial proceedings could doubt that the proponents have a personal stake in enforcing Chief Judge W alker’s prom ise. Yet the m ajority rem arkably concludes that the proponents—who for ten years have been trying to stop the unlawful b road c a s t of the trial proceedings—cannot suffi c iently show they will b e injured by a breach of the trial judge’s “binding o bligations.” Perry
, 667 F.3d at 1087. According to the m ajority, the p roponents do not have enough of a stake in stopping the district court’s breach of its “solemn comm itm ents,” id. at 1081, to even have Article III standing to b ring this case. As explained b elow, this is nothing m ore than another distortion of our rules and standards to ensure that this single high profile trial is broadcast, notwithstanding the com pelling “interest in preserving the sanctity of the judicial process.” Id.P E R R Y V

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A

Article III of the Constitution confines the f ederal judicial power to the resolution of cases and controversies. “For there to be a case or controversy under Article III, the pl a i n tiff

m ust have a ‘personal stake’ in the case—in other w ords
, standing.” TransUn i o n LLC v. Ramirez
, 141 S. Ct. 2190, 2 203 (2021) (cleaned up). “To dem onstrate their pers o n al stake, p laintiffs m

ust be able to sufficiently answer the que s tion: ‘What’s it to y ou? ’” Id. (quoting Antonin S calia, 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 elem ent o f s t an ding at issue here is whether the proponents can sh ow they suffered an injury in fact that is co n c rete and p articularized. Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61 (1992). 3

A “concrete” injury m

ust be “real, an d n o t abstract.” TransUn ion , 141 S.Ct. at 2204 (citation om itted). “‘Concrete’ is not, however
, n ecessarily synonym ous with ‘tangible,’” S

pokeo, Inc. v. Robins
, 578 U.S. 330, 340 (2016), and “[v]arious intangible h arms can also be concrete.” Tra nsUnion
, 1 41 S. C t. at 2 2 04. “Chief am ong [s u c h intangible harm s] are injuries with a close relations h i p to harm s traditionally recognized as p r o v iding a basis for lawsuits in Am erican courts.” Id.

One o f these “traditionally recognized” harm s is a violation of private rights, including contract rights, whether

or not the violation of such ri g h t s resulted in econom ic dam age or other injury. Comm on law courts in the F ounding

3 There is no dispute that the i nj ury h ere— i.e. , unsealing the trial video—is actual and imm inent.P E R R Y V

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era “reasoned that every legal injury necessarily causes dam age,” U

zuegbun am v. Preczewski
, 141 S. Ct. 7 92, 798 (2021), including “the fact of breach of contract by itself,” id. ( c i ting Marzetti v. Williams (1830), 109 Eng. Rep. 842, 8 4 5 (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 comm on law cases establishing that courts h isto rically “entertaine d b reach-of-contract claim s
even when ‘no real loss be proved’” (citation om itted)). Co mmon law courts heard breach of contract claim s an d awarded nom inal dam ages even when “there was no apparent continuing or threatened injury.” 4 Uzuegb unam , 1 41 S. Ct. at 798; see also Marzetti
, 109 Eng. Rep. at 845 (noting that in

case “substantially founded o n a contract

. . . the plaintiff, though he m ay not have sustained a dam age in fact, is entitled to reco v er nom inal dam ages”); Restatem ent (First) o f Contracts § 328 (Am

. L. Inst. 1932) (“Where a right of action for breach exists, b ut no harm was caused by the breach,

. . . judgm ent will be given for n o mi n al dam ages, a sm all sum fixed without reg ard to the am o unt of harm .”). As Justice Thom as summ ed it up, “[h]istorically, comm o n-law courts possessed b road power to adjudicate suits involving the alleged violation of priva t e rights, even when plaintiffs alleged only the violation of those rights and nothing m ore.” Spokeo , 578 U.S. at 344 (Thom as, J., concurring).

Federal courts continue to follow this comm on law principle th at a b r e ach of contract is itself a concrete injury

4 To this day, California allows for an award of nom i nal dam ages in breach of contract cases where the plaintiff suffered no actual dam ages. See Cal. Civ. Code § 3 3 6 0 (“When a breach of duty has caused n o appreciable detrim ent to the party a ffe cted, he m ay yet recover n om i nal dam ages.”).P E R R Y V

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for purposes o f Article III standing, regardless of wh e th er a plaintiff suffers actua l d ama g es. See S pringer , 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 h i s b ar g ain.”); Mitchell v. Blue Cross Blue Shield ofN.D.
, 953 F.3d 529, 536 (8th Cir. 2 020) (“Traditionally, a party to a breached contract has a judicially

c o g n i zable injury for standing purposes because the other party’s breach devalues the services for which the pl aintiff contracted and deprives them of the benefit of their bargain.”) (cleaned u

p); J.P. Morgan Chase Bank, N.A. v. McDonald
, 760 F.3d 646, 650–51 (7th Cir. 2014) (“When one party fails to honor i t s c o mm itm ents, the other party to the contract suffers a legal injury sufficient to create standing even where that party seem s not to have incurred m onetary loss or other concrete h arm .”); Katz v. Pershing
, LLC
, 672 F.3d 6 4, 72 (1st Cir. 2012) (“[W ]hen a p laintiff g enerally alleges the existence of a contract, express or im p lied, and a concom itant breach o f that contract, her pleading adequately shows an injury to her rights.”); cf. Fleming v. Charles Schwa b Corp.
, 878 F.3d 1146, 1 151 (9th Cir. 2017) (explaining plaintiffs’ po tential inability to prove dam ages in breach o f contract case does not negate standing).

Comm on law courts held that prom ises w ere enforceable

as contracts where the prom isee relied on the prom ise, and as

a result was “delu d ed and diverted f rom using any legal diligence to purs ue ” o ther rem edies. Pillans v. V an Mierop (1765), 97 Eng. R ep. 1035, 1037 (K.B.); se e a ls o Kevin M. Teeven, A History of Promissory Estoppel: Growth in the Face of Doctrinal Res is tance , 72 Tenn. L. Rev. 1111, 1112–13 (2005) (explaining Pillans summ arized “theP E R R Y V

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j ustifications f

or comm on law prom issory liability as th e y had existed since the sixteenth century”). Early Am e r i c an courts likewise enforced prom ises that induced just ifiable rel i ance. See, e.g. , King’s Heirs v. Thompson
, 34 U.S. 204, 218–20 (1835); Barzilla Homes v. D ana , 12 Mass. 190, 192 (Mass. 1815); Trs. of Farmington Acad. v. Allen
, 14 Mass. 172, 176 (Mass. 1817); Trs. ofParsonage Fund in Fryeburg

v. Ripley
, 6 Me. 442, 445–46 (Me. 1830). As summ ed up in the 1932 edition of the Restatem ent of C ontracts, “[a] prom ise which the p ro mi sor should reasonably expect to induce action or forbearance of a d efinite and substantial character on the part of the prom isee and which does induce such a c t i on or forbearance is binding if injustice can be avoided o n l y by enforcem ent o f the prom ise.” R estatem ent (First) of Contracts § 90 (Am

. L. Inst. 1932). Today, federal

c o urts continue to entertain claim s based on prom isso ry estoppel. See, e.g. , Hass v. Darigold Dairy Prods. Co.
, 751 F.2d 1096, 1100 (9th Cir. 1985) ( applying rule o f p ro missory estoppel stated in Restatem ent (Second) o f Contracts § 90 (Am . L. Inst. 1979)).

In sum , the breach of a contract or b inding p rom ise is an injury traditionally recognized as a violation of a private right, whether or not the injured party suffers econo mi c o r other dam age.

B

Given this background, the proponents h ave a vigorous

r esponse to the question: “what’s it to you.” TransUni o n , 141 S. Ct. at 2203 (cleaned up).

Fir st, we are bound by our precedent to hold that Chief Judge W alker m ade a b inding, enforceable prom ise

. Perry
,P E R R Y V

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667 F .3d at 10 8 7

. C hief Judge W alker’s prom ises not to broadcast th e trial recording publicly were “solemn
comm itm ents,” “binding obligation s,” and constraints on other judges’ discretion to unseal the recording. Id. W e held that Chief Judge W alker “prom ised the litigants that the conditions under which the recording was m aintained would
not change ,” and identified the “lega l consequence” of that prom ise: “there was no possibil ity that the recording would be broadcast to the public in the future.” Id. at 1086. And this conclusion that Ch i e f Judge W alker m ade a binding prom ise wasn’t a close call: “No o ther inference could plausibly be drawn fromthe record.” Id.

Further, “[t]here can be n o question that [the proponents]

rea s o nably relied on C hief Judge W alker’s explicit assurances” that the recording would not be publicly broadcast. I

d

. As we explained, because the local rules did not allow for pub lic broadcasting of trials, “Chief Judge W alker could not lawfully have continued to record the trial without assuring the parties that the recording w ould b e used only for a pe rmissible purpose.” Id. at 1087. Accordingly, “[h]ad Chief Judge W alker not m ade the s tatem ent he did, [the proponents] would very likely have sought an order d irecting him to stop recording forthwith, which, giv e n th e prior tem porary and further stay they had just obtained from the Suprem e Court, they m ight well have secured.” Id. at 1085. And because Chief Judge W alker’s assurances were “com p elled by the Suprem e Court’s ruling in this very case,” they w ere “even worthier o f th e parties’ reliance.” Id. at 1087. Even the m ajority notes that the p r o p onents relied

on Chief Judge W alker’s p rom ises to keep recordings private not only for them selves, but also for the attorneys, witnesses, and supporters who “depended on them to p r o t ect their interests.” Majority Op. at 20.P E R R Y V

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Because Chief Judge W alker m ade a clear and

un am b igu o u s p ro m ise th at resulted in r ea s o n a b l e , f o reseeab l e , and detrim ental reliance by the propo ne n t s and those who depended on them
, a violation of that prom i s e would be a violation of the proponents’ legal rights. 5 S ee supra , at 33–36. Such a violation is a traditionally recognized harm providing a basis for lawsuit, wh e th e r o r not it resulted in

econom ic injury. There fo r e, publicly broadcasting the trial today constitutes a concrete injury for purposes of Article III standing, see, e.g. , TransUnion
, 1 41 S .Ct. at 2204, regardless of whether the proponents o r other individuals associated with them alleged a fear of h aras s me n t 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. Ch i ef Judge W alker’s prom ise was m ade directly to the

5 The appellees here assert that the proponents were aware that Chief Judge W alker’s prom ise would not last indefinitely. But that argum ent relates to the m erits of proponents’ claim

. The proponents need not definitively prove the existence or scope of a contract or binding prom ise to establish A rt i c l e III standing. “Whether the elem ents of b reach o f contract, including the existence of a contract, are satisfied

. . . goes t o the

m erits, not t o a court’s power to resolve the controversy. SM Kids, LLC

v. Google L

LC
, 963 F.3d 206, 212 ( 2d Cir. 2020) (citing Perry v. T homas
, 482 U.S. 483, 492 (1987)). A c c o rdingly, “a party that alleges harm d ue to another’s breach o f a contract has a justiciable controversy with the other party,” and “courts have j urisdiction t o resolve the controv e rs y

. ” Id. ; see also Novartis S

eeds, Inc. v. Monsanto Co.
, 190 F.3d 868, 8 7 1 (8th Cir. 1999) (finding plaintiff a l leging breach of contract had Article I II standing and rejecting argum ent that m erits defense defeats s tanding because “th e distinction between such a defense and subject-m atter jurisdiction is a vital one”).P E R R Y V

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proponents; it was a prom ise about a recording o f the proponents’ trial specifically; and it wa s a p r om ise that the proponents relied on. Indeed, in Perry
, we em phasized that Chief Judge W alker’s “solemn comm itm ents” were “representations to the parties ,” and they “cou l d n o t have been m ore explicitly directed toward the particular recording at issue.” 667 F.3d at 1081 (emphasis added).

C

The m ajority’s argum ents to the con tr ary f ail. First, the

m ajority argues that the p roponents h ave fa i l e d to establish that any h arm will result from the release o f the recordings. M a jority Op. at 22–23. But, as explained above, the b re a c h of a binding prom ise (here, a prom ise 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 m ajority argues that we are not b o und by Perry ’s holdi n g th at Chief Judge W alker m ade a binding

comm itm ent, b e c au se when the proponents previously appealed C h ief Judge W are’s o rder unsealing the recordings, “they plausibly alleged p o tential harm from their rel e as e .” Majorit y Op

. at 16. In the m ajority’s view, the plausible harm was that, if the recording were unsealed, prospective witnesses m ight refuse to testify at a r e

- trial for f ear o f harassm ent. Majority O p. at 16. But our reasoning in Perry

was not based on the conclusion that the proponents h ad plausibly alleged a fear of harassm ent. In d e e d
, Perry never addressed the question whether the proponents had standing, and so did n o t consider any q uestion of the prop o ne n ts’ injury. Instead, focusing on the binding natur e of Judge W alker’s statem ents and the proponents’ reliance on thoseP E R R Y V

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statem ents, we held that the “com pelling reason” th at required m aintaining th e trial recording under seal was that the “breach of reliance interests” consti tut e d a “grave threat to the integ r i ty o f the judicial system .” Perry
, 667 F .3d at 1087. W e explained that “the explicit assurances that a judge

m akes—no less than the decisions the judge issues—must be consistent and worthy of reliance.” Id.

Finally, the m ajority argues that the proponents’ injury is not particularized because any injury to the integ r i ty o f the judicial system is “an injury shared by everyone.” Majority Op. at 2 3. But Chief Judge W alker did not prom ise the public

as a wh ol e that the trial recording w ould n ot be publicly broadcasted. Rather, he m ade that prom ise to the p roponents specifically. And a breach of that p rom ise will i mp a c t the pro ponents in particular because the recording is of the proponents’ trial. Moreover, a b reach of judicial integrity can concretely injure specific litigants even if it also underm ines the public’s trust in the justice system

. Cf. Spokeo
, 578 U.S. at 339 n .7 (“The fact that an injury m ay b e suffered b y a large

num ber of peo p l e d oe s not of itself m ake that injury a nonjusticiable generalized grievance.”). Thus, the fact that a breach of Chief Judge W alker’s prom ise wo u ld underm ine trust in the judicial s y s t e m d oes not m ean that the p r o p o n e n t s

— i

. e

. , t h e s p e c i f i c r e c i p i e n t s o f t h a t prom ise—would not suffer a particularized injury.

III

For the past ten years, the p roponents have gone to extraordinary lengths to prevent the public broadcast of these trial proceedings, including a successful trip to the Suprem e Court and m

ultiple appeals to our court. Whether Chief Judge W alker’s prom ise not to publicly broadcas t th e trialP E R R Y V

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rec o r di n g is an enforceable contract or m erely closely analogous to one, the breach of that prom ise 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 d epart fro m o ur p rior ruling “th at th e integrity of the judicial process is a
com pe lling interest that in these circum stances would be harm ed by th e nullification of the trial judge’s express
ass ur ances, and that there are no alternatives to m aintaining the recording under seal that w ould p ro t ect the com pelling interest at issue.” Perry , 667 F.3 d at 1088. I therefore respectfully dissent fromthe m ajority’s holding.