FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTIN M. PERRY; SANDRA B.

STIER; PAUL T. KATAMI; JEFFREY J.

ZARRILLO,

Plaintiffs-Appellees,

CITY AND COUNTY OF SAN

FRANCISCO,

Intervenor-Plaintiff-Appellee,

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,

No. 20-16375

D.C. No.

3:09-cv-02292-

WHO

OPINION

* 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-sexmarriage. 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,AttorneyGeneral,

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:

JUDGEHAWKINS: 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 justissued 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 haveArticle 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-lawanalogue 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 fromthe 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 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 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,2id. 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, ChiefJudge 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 posttrial 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 themof 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.5See 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.