Last April, the First Circuit barred the live webcast of proceedings in the major record labels' copyright case against Joel Tenenbaum. The Court of Appeals' decision rested not on the wisdom of courtroom broadcasts, but on its interpretation of District of Massachusetts Local Rule 83.3, which addresses "recording, or mak[ing] any broadcast" from a courtroom. While he concurred in the decision overturning a previous order by Judge Nancy Gertner permitting the webcast, Judge Kermit Lipez urged that the rule prohibiting courtroom broadcasts "be reexamined promptly."
The District of Massachusetts has now taken up Judge Lipez's suggestion, and on February 17 distributed for public comment a proposed new Rule 83.3, which would allow any judge to permit "the photographing, recording, or transmission of any civil proceeding" in his or her courtroom, "after notice and an opportunity to interested persons or entities to be heard."
District of Massachusetts proposed new L.R. 83.3
The new proposed Rule 83.3 does include a number of restrictions, including prohibitions on photographing jurors and sidebar conferences, and it grants any witness or party the right to opt out of allowing "photographing, recording, or transmission of that person’s recognizable images." The proposal also provides that judges "may impose such limitations and restrictions on the use or further dissemination of recordings or images." That power (found in proposed Rule 83.3(d)(2)) concerns me; once a recording has been lawfully made, it seems awfully invasive of First Amendment interests to allow a judge to unilaterally decide how that recording may be "use[d]" or "disseminate[d]." Could a court order that a webcast be shown only in its full, unedited state? Or only played on TV, but not on that pesky Internet? Would its orders bind others who might take the raw footage, and edit it for their own purposes?
But overall, the new rule would be a giant step forward, and I hope it is adopted. I don't know the process for the promulgation of new rules in the District of Massachusetts, but the Court is inviting public comment on the proposed amendment; comments are due April 16 (but, unfortunately, seem to be accepted only by snail mail).
Disclosure: I signed on to an amicus brief in the First Circuit in support of the webcast.