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.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.
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.
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.)