Thursday, April 16, 2009

First Circuit rejects District Court webcast in Tenenbaum case; court rules Gertner lacked authority to permit cameras in courtroom

The U.S. Court of Appeals for the First Circuit has thwarted plans for an unprecedented webcast of district court proceedings in the Joel Tenenbaum copyright case, holding that Judge Nancy Gertner lacked the authority to permit Internet broadcasts from her courtroom. In a unanimous 19-page opinion authored by Judge Bruce Selya, the court ruled that the District of Massachusetts Local Rules, as well as policy statements by the First Circuit Judicial Council and the United States Judicial Conference, all pointed toward one inevitable conclusion: no webcast allowed. Or, as Judge Selya put it: "[A]ll roads lead to Rome."

Judge Selya shed a bit of light on the First Circuit Judicial Council's 1996 anti-camera resolution, the existence of which the parties and Judge Gertner were unaware during briefing in the district court and in the first round of briefing in the court of appeals -- until the First Circuit itself located it and asked for further briefing. Explained Judge Selya: "Due to an indexing problem and through no fault of the parties or the district judge, no reference was made to this resolution in the lower court." (Contrast the court's reasonable and benign explanation with anti-label litigator Ray Beckerman's unfounded assertion that the failure of everyone involved to cite the 1996 resolution was evidence of "the RIAA lawyers' incompetence in failing to have brought the 1996 Judicial Council resolution to [Judge Gertner's] attention...")

Judge Kermit Lipez filed a short but powerful concurrence, agreeing with Judge Selya's conclusion that the rules preclude the webcast, but arguing that there is no good policy reason to disallow it:
Indeed, in my view, there are no sound policy reasons to prohibit the webcasting authorized by the district court. Therefore, this case calls into question the continued relevance and vitality of a rule that requires such a disagreeable outcome.
The Local Rule at the center of this controversy was adopted in 1990. Since its adoption, dramatic advances in communications technology have had a profound effect on our society. These new technological capabilities provide an unprecedented opportunity to increase public access to the judicial system in appropriate circumstances. They have also created expectations that judges will respond sensibly to these opportunities. With its sweeping prohibition on the broadcasting or recording of district court proceedings, Local Rule 83.3 prevents such responses in civil cases. So too do the Policy of the Judicial Conference and the Resolution of the Judicial Council of the First Circuit that underlie the Local Rule. As the outcome of this proceeding demonstrates, the Rule, the Policy, and the Resolution should all be reexamined promptly.
All in all, a disappointing result from a policy perspective, for the reasons eloquently articulated by Judge Lipez. But once the 1996 First Circuit Judicial Council resolution surfaced, the legal arguments in favor of Judge Gertner's discretion to permit the webcast went from "quite plausible" to "facing a very uphill battle." (Were I Judge Selya, I might refer to the 1996 resolution as the sockdolager.) Hopefully the First Circuit Judicial Council and those who write and adopt the District of Massachusetts Local Rules will heed Judge Lipez's words and amend the rules to permit webcasts -- and indeed all electronic press coverage -- in the future.

Lastly, keep in mind that the ultimate result simply means that proceedings in the Tenenbaum case will be like all others in federal court: open to the press and public, but with no cameras allowed. Disappointing and unjustified, I think, but not exactly the Star Chamber.

UPDATE: Tenenbaum's counsel, Harvard Law School Professor Charles Nesson, tells the Boston Globe that "
he will try to appeal today's ruling to the US Supreme Court because the issue goes beyond the suit." I think the chances of the Supreme Court taking the case are approximately zero, and the chances of the High Court reversing the First Circuit are considerably less than that.

(Disclosure: I signed on to an amicus brief in support of the webcast.)


  1. The opinion is well-reasoned and comes to the only conclusion that makes sense under the facts by preserving the maximum amount of consistency between the wording in the statute, the pilot program statute, the two judicial conference statements, the practice of virtually every federal district in the country, and the judiciary's testimony before Congress on the matter.

    I'm curious what his grounds are for certiorari given that it has to be something more substantial than just a decision adverse to your position. I can't imagine how the interpretation of a lowly local rule could somehow be novel enough to warrant the attention of the Supreme Court.

    More disturbingly, these sideshow shenanigans reveal an ego-driven defense counsel, who appears to be more concerned about policy than the fate of the actual client. In fact, the most egregious example is the recent filing of a motion for a second amended answer where the only affirmative defense asserted is fair use, which case-watchers have universally panned as untenable.

    But this Harvard counsel is free, and as the maxim goes, you get what you pay for.

  2. There are "trial lawyers" and there are "law professors". This case amply demonstrates why the latter should, as a general rule, stay in the classroom.

    Let's cut out the theatrics and get back to defending what Mr. Tenenbaum has done on the merits. If Mr. Nesson and company want to initiate a public policy debate, they need only venture over to Capitol Hill.

  3. Once again, Beckerman is not, as you say, an "anti-label litigator," he's anti-RIAA label. There is a difference. He is not against record labels. It would be like calling you "anti-defendant litigator Ben Sheffner," or some such.

    As to the ruling, it spends a lot of time ignoring the plain meaning of "or by order of the court." I wonder how many rules are now broken by the First Circuit's ruling that "or by order of the court" means "no exceptions, not even if ordered by the court"

  4. To Anon (11pm) -

    If I read your argument correctly, you believe that the proper reading of "by order of the court" provides the judge with limitless discretion to order broadcasting under any circumstances.

    Proceeding on that assumption, if you were writing the opinion, how would you resolve the inconsistencies between your preferred statutory construction and the following:

    (1) 83.3(c), which seemingly requires a court order for naturalization or ceremonial events because it is written in the permissive "may";
    (2) The effect of the pilot program in 83.3.1, which governed broadcasting of civil hearings, yet that lapsed without any further change to 83.3 after evaluation of the program;
    (3) Two separate judicial conference reports, with concurring testimony before Congress, that broadcasting is to remain banned in the courtroom; and
    (4) that virtually every district in the United States follows a similar policy.



Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.