First Circuit reveals panel for Tenenbaum webcast hearing; ghost of 'Boston's Children First' looms

The U.S. Court of Appeals for the First Circuit, which is set to hear oral argument April 8 in the record labels' appeal of Judge Nancy Gertner's order permitting the webcast of an upcoming District Court motion hearing in the Joel Tenenbaum case, has made public the panel of judges that will hear the case. Circuit Judges Juan Torruella and Kermit Lipez, and Senior Circuit Judge Bruce Selya, have given each side 20 minutes to argue whether Judge Gertner had the discretion under First Circuit and District of Massachusetts rules to permit the webcast, which was requested by Tenenbaum and strongly opposed by the labels. (Irony of ironies, the First Circuit's oral argument will be available on the web. Update: I'm told it usually takes 24-48 hours from argument to audio posting.)

There is history here. Almost a decade ago, Judges Torruella and Lipez sat on a panel in an unusual and controversial case called In re Boston's Children First, 244 F.3d 164 (1st Cir. 2001) -- a case that also happened to involve Judge Gertner and the media. Here's the story: Judge Gertner was presiding over the case -- a challenge to Boston's race-based school assignment system -- in the District Court. During the litigation, the Boston Herald ran a story in which plaintiffs' counsel criticized Judge Gertner's refusal to certify a class at that particular stage. Judge Gertner, believing that the Herald article (and particularly plaintiffs' counsel's comments) did not accurately reflect what had occurred, wrote a letter to the editor, seeking to correct the record. She also granted an interview to the Herald, which quoted her explanation of her class certification ruling.

Plaintiffs, evidently upset that Judge Gertner had disagreed with them in this public, extrajudicial forum, moved for her disqualification. Judge Gertner refused to recuse herself, and plaintiffs sought relief in the First Circuit. The Court of Appeals, in an opinion authored by Judge Torruella, held that Judge Gertner's comments, however well-intended, were improper under 28 U.S.C. § 455(a) (requiring recusal "in any proceeding in which [the judge's] impartiality might reasonably be questioned"), and ordered her off the case:

[I]n newsworthy cases where tensions may be high, judges should be particularly cautious about commenting on pending litigation. Interested members of the public might well consider Judge Gertner's actions as expressing an undue degree of interest in the case, and thus pay special attention to the language of her comments. With such public attention to a matter, even ambiguous comments may create the appearance of impropriety that 455(a) is designed to address. In fact, the very rarity of such public statements, and the ease with which they may be avoided, make it more likely that a reasonable person will interpret such statements as evidence of bias.

(The court was careful to point out that its decision "in no way indicates a finding of actual bias or prejudice, nor does it suggest that the trial judge abdicated any of her ethical responsibilities.")

In normal circumstances, it's probably unwise to focus on the identities of the District Court and Court of Appeals judges. But this is different. Boston's Children First was the rare case that involved the personal conduct of a judge outside of her courtroom (as opposed to the usual case that solely involves legal reasoning as expressed in official rulings). And both Boston's Children First and Tenenbaum concern Judge Gertner's relationship with the media -- a relationship with which the First Circuit was clearly not comfortable in that former case. Judge Gertner, much to her credit, I believe, favors a much more open approach by the federal judiciary (she blogs herself; see examples here) -- but it is probably not a view shared by the majority of her colleagues (and in fact Judge Selya expressed his skepticism about judicial blogging to the Boston Globe). All three judges on the Tenenbaum panel will surely have this history in mind as they approach this case. (And I'd be remiss if I didn't point out that Judge Torruella authored, and Judge Lipez joined, the First Circuit's recent decision in Noonan v. Staples, Inc. -- a decision that has First Amendment lawyers in high dudgeon over its holding that truth is not necessarily a defense to a libel claim, at least as to matters of only private concern.)

Recording Industry vs. The People collects the documents relevant to the webcast issue here.

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