In an email request to Chief Judge Mark Wolf, Nesson wrote:
To the Honorable Mark Wolf, Chief Judge:But Chief Judge Wolf wrote Nesson in an email earlier today:
Pursuant to our phone conversation just completed (and not recorded), I send you email urgently requesting that you circulate to the judges of the district court my request on behalf of Joel Tenenbaum and the digital nation of people who want access through internet to the proceedings of his trial that local rule 83.3 be amended to permit a judge of the district court to exercise the discretion shown by Judge Gertner in our case. We request this urgently on our understanding of FRCP 83 and 28 USC 2071(e) that the district court bench is empowered to make its own rule and to defer the required period of notice and comment in cases of immediate need. The immediate need in this case is the hearing scheduled for April 30, 2009 before Judge Gertner on motions challenging the constitutionality of the recording industry's litigation campaign against noncommercial copiers and asserting that the prosecutions are abusive. Restricting our ability to make this judicial process accessible to the digital nation of which Joel is representative irreparably harms our case by encasing it a building that is a fortress and a recording only in text which cannot be immediately accessed and which my client and his digital generation cannot afford. I invite you to visit these links as demonstration of the potential that will be lost if the judges of your court fail to act, and as suggestion of what can be gained by acting.http://joelfightsback.com/
2009/04/first-circuit-hearing- slideshow-with-comments_part- one/
I read the opinion of first circuit panel as an invitation to you to act. I include below Judge Lipez concurring. Please note along side in re providence journal the supreme court opinion in Kleindeinst v. Mandel, 408 U.S. 753 (1972), which recognizes the people's first amendment right to see and hear.
I have circulated your request to my colleagues and received their responses. The District Court has decided not to take any action on the expedited basis that you request. In view of the imminence of the April 30, 2009 in your case, I am providing you this response by email.Tenenbaum's team also announced that they will seek en banc review of the First Circuit's decision, which held that Judge Gertner lacked the discretion to permit the webcast. En banc review appears to be a near-impossibility here. Under Federal Rule of Appellate Procedure 35(a), taking a case en banc requires a vote of a majority of the Circuit's active, non-recused judges. There are only five such judges in the First Circuit, two of whom -- Juan Torruella and Kermit Lipez -- were on the Tenenbaum panel. So, the likeliest scenario to get to a majority would be for all three of Chief Judge Sandra Lynch, Judge Michael Boudin, and Judge Jeffrey Howard to vote for en banc -- a long long-shot. (Even unlikelier would be for either Torruella or Lipez, who just signed on to the no-webcast opinion, to flip.) Almost certainly not going to happen. [Corrected: the original article incorrectly said there were 4 active judges.]
Tenenbaum's team says they will file their en banc petition, as well as a motion to stay the April 30 hearing, on Monday morning.