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First Circuit Rejects Webcasting of Civil Hearing

By Anthony R. McClure, Litigation News Associate Editor – June 25, 2009

The First Circuit Court of Appeals decision in In re Sony BMG Music Entertainment not only underscores the circuit courts’ regard for strict enforcement of local rules but also dealt a blow to proponents of broadcasting civil court proceedings.

Considering whether a federal district judge has the authority to permit webcasting of a hearing in a civil case, the First Circuit held that a local rule prohibited the broadcast.

Background of In re Sony
In re Sony began as a consolidated set of lawsuits filed by record companies under the federal Copyright Act. The plaintiffs alleged that individual defendants illegally used file-sharing software to download and disseminate copyrighted songs. Capitol Records, Inc. v. Alaujan [PDF].One of the individual defendants, Joel Tenenbaum, moved to permit Courtroom View Network to webcast a nonevidentiary motions hearing.

The United States District Court for the District of Massachusetts granted the motion, over the objection of the record-company plaintiffs. Those plaintiffs immediately sought a writ of mandamus or prohibition with the First Circuit, arguing that Rule 83.3 of the district court’s local rules [PDF] prohibited webcasts of civil proceedings. They also claimed that the policy of the Judicial Conference of the United States advocated a ban on such webcasts.

First Circuit Reversal
Initially, the First Circuit considered whether it had subject-matter jurisdiction to consider the mandamus issue. In an opinion authored by Senior Circuit Judge Bruce M. Selya, Providence, RI, the court determined that the case “fits within the contours of our advisory mandamus jurisdiction” because the power of a district court to order webcasting of a proceeding is “systematically important and rife with implications for the public interest.”

The First Circuit then considered how the local rule should apply to webcasts in federal civil proceedings. Local Rule 83.3 provides: “Except as specifically provided in these rules or by order of the court, no person shall take any photograph, make any recording, or make any broadcast by radio, television, or other means, in the course of or in connection with any proceedings in this court.”

The district court interpreted this rule to include a discretionary catchall exception to the general prohibition against broadcasting. The First Circuit reversed, concluding that the district court’s interpretation was “palpably incorrect” and that the local rule unambiguously prohibited the webcast.

The First Circuit also relied, in part, on a policy adopted by the Judicial Conference of the United States, the “principal policymaking body for the federal courts.” In a 1994 version of the policy, the Judicial Conference concluded “that the intimidating effect of cameras” in the courtroom presented “cause for concern.” The court found this policy to be instructive but also cautioned that “this is not a case about free speech writ large, nor about the guaranty of a fair trial, nor about any cognizable constitutional right of public access to the courts.” Rather, the case was about enforcing a rule “properly interpreted.”

Qualified Concurrence
In a concurrence, Circuit Judge Kermit V. Lipez, Portland, ME, agreed that the local rule controlled the issue, but he challenged the policy behind the rule. “[I]n my view, there are no sound policy reasons to prohibit the webcasting authorized by the district court. Therefore, this case calls into question the continued relevance and vitality of a rule that requires such a disagreeable outcome,” the concurrence says.

Judge Lipez also pointed out that the First Circuit makes audio recordings of oral arguments available on its website soon after the proceedings take place. “[T]here is no meaningful difference between the type of oral argument that we make available to the public as a matter of course and the type of argument that would have been broadly accessible under the district court’s Order,” he writes.

Petition for Writ of Certiorari
On June 2, 2009, Tenenbaum filed a petition for writ of certiorari [PDF] with the U.S. Supreme Court, after filing a motion for a stay of all proceedings in the district court. The petition is based on the First and Fifth Amendments of the U.S. Constitution. It asks, among other things, whether the First Circuit’s decision “impermissibly restrict[s] the judicial power vested in federal district court judges by the Constitution and creational statutes?” A response to the petition is due in early July, 2009.

Rule Application vs. Implementing Policy
Reaction to the First Circuit’s decision has varied. Some believe that the First Circuit had no choice but to follow the express language in the local rules.

“I think the court ruled correctly because it is pretty clear under Local Rule 83.3 that webcasting is prohibited,” says Dori Ann Hanswirth, New York, NY, cochair of the ABA Section of Litigation’s Trial Practice Committee. “The First Circuit panel was constrained to follow the rule,” Hanswirth says.

Some legal commentators say that the Judicial Conference of the United States, on the other hand, would agree not only with the First Circuit’s interpretation of the local rule, but also with the policy behind that rule. In 2006, the Judicial Conference presented a written statement to the Senate Judiciary Committee in opposition to Senate Bill 829, which would have created the “Sunshine in the Courtroom Act,” allowing judges the discretion to permit broadcasting of federal trial court proceedings. The current version of the bill, Senate Bill 657, is now pending in the Senate Judiciary Committee.

At the 2006 hearing, the Judicial Conference stated that it “strongly oppose[d]” the bill, adding that “we believe that the intimidating effect of cameras on litigants, witnesses, and jurors has a profoundly negative impact on the trial process.”

Later in October 2007, the Judicial Conference provided similar testimony in opposition to H.R. 2128, another version of the act. U.S. District Court Judge John R. Tunheim, Minneapolis, MN, chair of the Judicial Conference Committee on Court Administration and Case Management, testified that “[t]he Conference is convinced that camera coverage could, in certain cases, so indelibly affect the dynamics of the trial process that it would impair a citizen’s ability to receive a fair trial.”

Policy Debate
Others, such as David A. Soley, Portland, ME, cochair of the Section’s Trial Practice Committee, disagree with the policy advocated by the Judicial Conference. “As Judge Lipez stated unequivocally, the Judicial Conference is wrong. The Judicial Conference should allow access to the courts,” he says.

“The public access to the courts should be almost a constitutional precept and local rule, in my opinion, should be limited to how we are going to apply it in a respectful, non-intimidating manner,” Soley explains.

George Freeman, New York, Section First Amendment and Media Litigation Committee cochair, opines that even if, technically, the First Circuit followed the local rules correctly, “I think as a matter of policy that the court clearly got it wrong.”

The district’s local policy of prohibiting any broadcasting “seems to be terribly old fashioned,” Freeman says.

“The question that really needs to be asked rather than how you interpret the judicial rule of Massachusetts is ‘Is there any reason anymore to have these antiquated rules?’ And I think the answer is a resounding no,” says Freeman.

Keywords: First Circuit, local rules, civil court proceedings, broadcasting

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