Monday, June 1, 2009

Tenenbaum asks Supreme Court to permit webcast; seeks stay of proceedings pending review

Joel Tenenbaum wants the district court proceedings in the record labels' copyright suit against him broadcast on the Internet. He really, really wants them webcast. So much so that today he asked the Supreme Court to step in and declare that not allowing the webcast would violate his and the public's rights under the First and Fifth Amendments to the U.S. Constitution:
By restricting the right of public access to courtroom attendance, or by default, to official transcripts or news and other second-hand reports, the ruling below perpetuates physical, wealth, and other arbitrary barriers against public access that excludes all but a select few from gaining unmediated and unabridged information about the process as well as substance of American judicial proceedings. Internet broadcasting now makes it possible to lower, if not entirely eliminate, those barriers. The essence of the public access right asserted here is that the under the Constitution, the federal courts possess and must exercise discretion to take advantage of the “new technology” as far as necessities of judicial economy, order, and fairness permit.
Tenenbaum has also asked the district court "for a stay of all further public proceedings in this case until the Supreme Court has opportunity to act on his petition." Those proceedings include an important motion hearing this Friday, as well as the trial currently set for July 20.

While I support the webcast as a matter of policy, I consider the likelihood of the Supreme Court granting cert. here (or reversing the First Circuit, which held that the webcast is not permitted under District of Massachusetts local rules) to be exceedingly low. Tenenbaum's cert. petition identifies no circuit split, and it relies chiefly on Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), which established the right of the public and press to attend criminal trials -- but said nothing about the presence of cameras or recording equipment in the courtroom. And given the Supreme Court's deep and long-standing hostility to cameras in its own courtroom, I think it's virtually inconceivable that it would find that barring cameras from any courtroom to be a violation of anyone's constitutional rights. The justices evidently don't think the Constitution requires that cameras be permitted in the Supreme Court; I can't imagine they would believe the Constitution nonetheless requires that they be permitted in the courtroom of District Judge Nancy Gertner.

Disclosure: I signed on to an amicus brief in the First Circuit in support of the webcast (though not on constitutional grounds).

(h/t Recording Industry vs. The People)

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