Thursday, April 9, 2009

Tenenbaum webcast oral argument: arguing in two different worlds

There are two separate and distinct issues in the debate over whether District Court proceedings in the Joel Tenenbaum case should be webcast:

1) Whether the webcast is a good idea as a matter of policy; and

2) Whether the District Court had the discretion to permit the webcast under the relevant court rules.

As to #1, I think the answer is clearly yes. The proceedings are already public (i.e., anyone, including the press, can attend), and the webcast (or indeed regular TV coverage) simply extends the opportunity to observe to those who are not able to attend in person. And the hearing at issue, on various pending motions, raises none of the privacy issues regarding victims, witnesses, or jurors that in certain circumstances may justify courtroom broadcast bans.

As to #2: this is a much closer question. It involves no grand debates about the First Amendment or the nature of what it means to have a "public" proceeding where only a tiny fraction of the public can actually attend in person. Rather, it involves relatively mundane questions about how to interpret District of Massachusetts Local Rule 83.3, one clause of which appears to ban cameras, another of which speaks of permitting cameras "by order of the court." And it requires consideration of the effect of a 1996 First Circuit Judicial Conference resolution appearing to bar cameras in District Court courtrooms, except for "ceremonial occasions." How does that resolution interact with Rule 83.3? Is the resolution even effective, given the apparent lack of evidence that it was ever subject to public comment and promulgation? And in this particular procedural posture -- a petition for writ of mandamus -- must the Court of Appeals reverse if it merely determines that the District Court was wrong? Or only if it was really, really wrong?

Yesterday's oral argument in the First Circuit (warning: volume is frustratingly low; try an enhanced version here) was perhaps most notable for illustrating that the two questions described above are indeed distinct. Daniel Cloherty, counsel for the record label plaintiffs, and Jonathan Sherman, arguing for amicus Courtroom View Network (which would provide the proposed webcast), both focused on Question 2. They demonstrated facility with the statutes, rules, and caselaw, and were both peppered with detailed questions from the panel.

And Professor Nesson? It was all about Question 1: why a case involving the Internet should be broadcast on the Internet; why his client's right to a public trial is allegedly violated by a failure to permit the webcast; why Judge Gertner should be "fully empowered" to run her courtroom as she sees fit. Statutes, rules, resolutions, and case law? Nesson left such trivia to others (as he did in his main appellate brief). As the Boston Globe put it, "At one point, Judge Kermit V. Lipez told Nesson that the 70-year-old professor had made a 'powerful, eloquent argument' about why the local rule banning cameras and recording equipment should be changed but not necessarily about how the rule should be interpreted."

The problem for Nesson (and indeed for all of us who support the webcast on policy grounds) is that the panel itself clearly thought that Question 2 is all that really matters here. And, though predictions are dicey -- and though I thought Sherman was a particularly effective oral advocate -- it did seem to me that the panel was more inclined toward Cloherty's argument that Local Rule 83.3's "by order of the court" language does not grant the court unbridled authority to permit cameras. But, as always, listen to the whole thing and decide for yourself. I expect a quick decision, as the hearing that may be webcast is currently set for April 30.

Recording Industry vs. The People collects the relevant documents here.

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


  1. So I don't think that Nesson's argument was that Tenebaum has a trial right to a webcast; but that he has a right to a trial where a judge has the right to order a webcast. Though there was at least one judge who heard it the same way you did.

  2. I was listening in background...

    Didn't Charlie try to slip in a reference to 1789? Was this to the French Revolution? The guillotine? Open courts? "Let them eat cake"? Sure sounded like policy to me.

    Maybe Charlie will record it himself, put it all on his blog, and apologize later.

  3. 1789 - probably going for the Constitution.

  4. policy considerations and statutory interpretation are in different worlds?

  5. Professor Nesson:

    "Different worlds" may have been a bit of poetic license -- though I did find the different focus of your argument vs. those of Cloherty and Sherman to be rather striking.

    I do think that asking: 1) what is the most plausible reading of the statute? and 2) what is the best policy outcome? are 2 separate questions -- and, from what I gleaned from the oral argument, the members of the panel seemed to agree (see, e.g., Judge Lipez's quote above).

    I don't know how the court will come out on the statutory interpretation question. But I think it's plausible that the court will say something like: "We think there are strong policy reasons for allowing the webcast. But, unfortunately, the rules as currently written don't permit it. The remedy for those who favor cameras in the courtroom is to ask Congress to change the law, or persuade the First Circuit and District of Massachusetts to change the rules."

    Incidentally, Senators Grassley and Schumer recently introduced legislation to "give[] federal judges the discretion to allow cameras or other electronic media access if they see fit":


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