That date complicates matters in the District Court, which had set the potentially-webcast motion hearing for Feb. 24 and the trial date for March 30. Of course, the First Circuit's decision on the webcast order would be moot if the District Court proceeded with those dates. Recognizing that, the First Circuit stated:
We stay the district court's order of January 14, 2009 (already temporarily stayed by the district court) permitting narrowcasting, pending disposition of this mandamus petition or further order of this court, whichever first occurs. We recognize that a hearing is currently scheduled in the district court for February 24, 2009 and that trial is scheduled to commence on March 30, 2009. The district court may either stay its proceedings pending our decision on the petition or it may permit the presently scheduled hearing and/or other proceedings in the case to go forward, but without being narrowcast.
In other words, the First Circuit has told Judge Gertner: you may keep to your current schedule if you'd like, but you may not permit the webcast unless and until we tell you it's OK.
I may be reading too much into this procedural order, but it does not strike me as particularly good news for those of us who favor the webcast. It seems to me that the First Circuit thinks there is at least some reasonable chance that it will overturn Judge Gertner's webcast order, and it doesn't want her to proceed with the webcast before it has the chance to stop it in its tracks. The interesting question is whether Judge Gertner will now stick to her schedule, or push it back for several months, all over the webcast issue. While I do favor the webcast, I must concede that it's an ancillary issue, and that the Court's primary focus should be on resolving the substantive legal issues at hand. The worst that can happen is that the oral argument proceeds in an open courtroom, where anyone is allowed to attend, only with no webcast -- in other words, exactly like every other hearing in federal court. Not exactly what I want, but not the end of the world, either.
(Recording Industry vs. The People characterizes the First Circuit's order as a stay of "proceedings," but that's not right. The First Circuit merely stayed the District Court's webcast order, the proceedings may...proceed; it's just that they can't be webcast unless and until the court of appeals gives its go-ahead.)