Friday, April 24, 2009

District court rebuffs effort to alter local rule on cameras; Tenenbaum will seek en banc review and stay of hearing

The federal judges of the District of Massachusetts have decided, at least for now, to keep in place their local rule banning cameras in the courtroom, rejecting an entreaty by Harvard Law School professor Charles Nesson that they amend the rule in advance of an important April 30 motion hearing in the Joel Tenenbaum case. The court's refusal follows an April 16 ruling by the First Circuit that reversed an order by District Judge Nancy Gertner permitting a webcast of the upcoming hearing, where the court will hear argument on legal issues including the constitutionality of the Copyright Act's statutory damages provisions.

In an email request to Chief Judge Mark Wolf, Nesson wrote:

To the Honorable Mark Wolf, Chief Judge:

Pursuant to our phone conversation just completed (and not recorded), I send you email urgently requesting that you circulate to the judges of the district court my request on behalf of Joel Tenenbaum and the digital nation of people who want access through internet to the proceedings of his trial that local rule 83.3 be amended to permit a judge of the district court to exercise the discretion shown by Judge Gertner in our case. We request this urgently on our understanding of FRCP 83 and 28 USC 2071(e) that the district court bench is empowered to make its own rule and to defer the required period of notice and comment in cases of immediate need. The immediate need in this case is the hearing scheduled for April 30, 2009 before Judge Gertner on motions challenging the constitutionality of the recording industry's litigation campaign against noncommercial copiers and asserting that the prosecutions are abusive. Restricting our ability to make this judicial process accessible to the digital nation of which Joel is representative irreparably harms our case by encasing it a building that is a fortress and a recording only in text which cannot be immediately accessed and which my client and his digital generation cannot afford. I invite you to visit these links as demonstration of the potential that will be lost if the judges of your court fail to act, and as suggestion of what can be gained by acting.

I read the opinion of first circuit panel as an invitation to you to act. I include below Judge Lipez concurring. Please note along side in re providence journal the supreme court opinion in Kleindeinst v. Mandel, 408 U.S. 753 (1972), which recognizes the people's first amendment right to see and hear.
But Chief Judge Wolf wrote Nesson in an email earlier today:
I have circulated your request to my colleagues and received their responses. The District Court has decided not to take any action on the expedited basis that you request. In view of the imminence of the April 30, 2009 in your case, I am providing you this response by email.
Tenenbaum's team also announced that they will seek en banc review of the First Circuit's decision, which held that Judge Gertner lacked the discretion to permit the webcast. En banc review appears to be a near-impossibility here. Under
Federal Rule of Appellate Procedure 35(a), taking a case en banc requires a vote of a majority of the Circuit's active, non-recused judges. There are only five such judges in the First Circuit, two of whom -- Juan Torruella and Kermit Lipez -- were on the Tenenbaum panel. So, the likeliest scenario to get to a majority would be for all three of Chief Judge Sandra Lynch, Judge Michael Boudin, and
Judge Jeffrey Howard to vote for en banc -- a long long-shot. (Even unlikelier would be for either Torruella or Lipez, who just signed on to the no-webcast opinion, to flip.) Almost certainly not going to happen. [Corrected: the original article incorrectly said there were 4 active judges.]

Tenenbaum's team says they will file their en banc petition, as well as a motion to stay the April 30 hearing, on Monday morning.


  1. The ironic part about this whole thing is that Nesson, through his self-indulgent theatrics resulting from being drunk on his own psuedo-popularity, is demonstrating exactly why courts have consistently banned broadcasts.

    I think Nesson needs to take a long, hard look into the mirror before throwing around the term irrevocable harm. Having free audio coverage and textual opinions available within a week of the hearing hurts no one. In contrast, the consistent and futile waste of efforts on a topic that is so completely removed from the merits of the case creates a real and cognizable harm...not for the amorphous "digital nation" buzzword, but for your know, the guy who is destined to lose because counsel is too busy using the case for lesson plans than with advancing the client's defense(s).

    This whole thing comes off as a thinly veiled attempt to stay an oral argument for which they are unprepared.

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  5. Anonymous @April 25, 2009 3:37 AM wrote:

    "Having free audio coverage and textual opinions available within a week of the hearing hurts no one."

    You are misunderstanding the issue it seems.

    There will be no audio coverage of that hearing. "Team Tenenbaum" is fighting that there will be so that the proceedings in that courtroom can be followed en large.
    And transcripts of court sessions are expensive and only when you filthy rich like the Plaintiffs are, you can afford to have "express delivery of those" (and even then Plaintiffs have shown in other cases to refuse the courtesy to provide opposing counsel with a copy). So having the ability of an audiorecording available for the interested but poor public seems important, specially given Plaintiffs publicly communicated position that those suits are a piece in their education efforts for the public.
    So having them now claiming that a free and fast access to those "educational infos" is hurting them is In my opinion totally hypocrite.

  6. I believe the First Circuit has five, not four, active judges -- unless Judge Howard has gone inactive since I last checked.

  7. Anonymous 1:43:

    You are correct; I missed Judge Howard, who is still active. I corrected this in the post. In any event, en banc rehearing is still a very unlikely scenario.

  8. In the en banc review, they're not seeking a reinterpretation (indeed, Nesson concedes that the appellate court's interpretation was correct); they're seeking a change of the rule itself, which it seems Lipez was already in favor of. Why do you think the en banc hearing is doomed?

  9. To Anonymous 2:11:

    I start with the fact that FRAP 35(a) says rehearing en banc is "not favored."

    Then, it's only supposed to happen where: 1) "necessary to secure or maintain uniformity of the court’s decisions" or 2) "the proceeding involves a question of exceptional importance." It's very tough to argue that the decision conflicts with a prior First Circuit decision. And, as much as I'd like there to be a webcast, I think it's a stretch to say that this is a "question of exceptional importance." Remember: the courtroom will still be open to the public and press, and cameras are virtually never allowed in federal courtrooms, so the First Circuit's decision does not represent a departure from normal practice.

    Given Judge Lipez's concurrence, and the strong policy arguments in favor of cameras in the courtroom (especially for hearings with no witnesses, victims, or jurors), I would not be surprised if the judges of the D. Mass. do revisit Rule 83 at some point.

  10. Alter_Fritz:

    What is hypocritical is Nesson's sudden insistence on a courtroom being opened to the entire world when, in his entire history, he has no apparent scholarship on the subject nor any similar stances in cases that carried much greater public repurcussions. The Supreme Court has, time and again, noted that a right to a public civil trial (which isn't mentioned in the Constitution by the way) is satisfied by allowing the press to cover it and through the court's provision to the public of an opinion without charge.

    The generation and certification of an official court transcript involves hours of time and effort by the court reporter. Given that the defendant is charged with the wholesale taking and distributing of the work of others, I wouldn't expect them to place much of a premium on the reporter's time and effort by demanding it to be disseminated for free.

    As for the plaintiffs in the case, their enforcement of the local rules and their positions on educating the public are mutually exclusive. The news of a favorable judgment with statutory damages is all the information they will require to educate the relevant public on the matter.


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