Public court proceedings aren’t very public, and that’s the way they like them.

May 5, 2009 | By | Reply More

Would you like to monitor our government at work?  What if there’s a really interesting court proceeding in Massachusetts, but you live far from Massachusetts?  But you’d really like to hear the court proceeding live, because this case is about some of the lawsuits that record companies have been bringing under the Copyright Act, 17 U.S.C. § 501, alleging that individual defendants (many of whom were students) were copyright infringers—that they had illegally used file-sharing software to download and disseminate copyrighted songs without paying royalties. The Plaintiffs were a large group of record companies including Sony BMG Music Entertainment, Warner Bros. Records, Inc., Atlantic Recording Corporation, Arista Records, LLC, and UMG Recordings, Inc.

Image by lizjones112 Flickr (Creative Commons)

Image by lizjones112 Flickr (Creative Commons)

In a case styled In re Sony BMG Music Entertainment, 2009 WL 1017505, 7 (1st Circuit, (Mass) 2009), the Court of Appeals recently ruled that I don’t have the right to listen to court deliberations over the Internet, at least in the First District.

In the trial court, Joel Tenenbaum (one of the persons whom the record companies had sued) moved to permit Courtroom View Network to webcast a non-evidentiary motions hearing that was scheduled for January 22, 2009. Presiding Judge Nancy Gertner, citing the keen public interest in the litigation, granted his motion over the objection of the record companies.  She thought it would be a good idea to permit webcasting of the motion hearings. She thought that  anyone interested in the exercise of the Court’s power should have the opportunity to listen in remotely through a computer.  On April 16, 2009, however, the Court of Appeals struck down Judge Gertner’s decision, holding that it was inappropriate to make the inner workings of the private PUBLIC courts easily accessible to the public.

The Court of Appeals said something that a sarcastic lawyer might paraphrase like this:  No more of that webcasting nonsense, Judge Gertner!  Do you want to allow people to know how we decide cases?  We already make sure that no one takes photos or has easy access to the trial transcripts.  We make certain that we tightly control the information that escapes from courtrooms, even though sunshine is the best disinfectant. And, oh yeah . . . we also make certain that if you want to read our concocted reasons for striking down Judge Gertner’s well-considered ruling, you won’t easily find our opinion.  Not unless you have lots of money to BUY our opinion with a subscription to Westlaw.  Or you can purchase our opinion on PACER, the expensive comprehensive federal database that we’ve rigged with a laughably inefficient search function.  Check it out:  PACER:

[T]here is Pacer, the government-run Public Access to Court Electronic Records system designed in the bygone days of screechy telephone modems. Cumbersome, arcane and not free, it is everything that Google is not.

Did someone say “open court”?  That’s true, although the Courts are much more open for some of us than others.

What was the precise justification for barring the webcasting that the trial judge had approved?  Local Court Rule

U.S.Dist.Ct.Rules D.Mass., LR 83.3:

(a) Recording and Broadcasting Prohibited. 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, on any floor of any building on which proceedings of this court are or, in the regular course of the business of the court, may be held. This prohibition shall apply specifically but shall not be limited to the second, third, ninth, eleventh, twelfth, thirteenth, fifteenth, sixteenth, eighteenth, nineteenth and twentieth floors of the John W. McCormack Post Office and Courthouse Building in Boston and the fifth floor of the Courthouse Building in Springfield.

(b) Voice Recordings by Court Reporters. Official court reporters are not prohibited by section (a) from making voice recordings for the sole purpose of discharging their official duties. No recording made for that purpose shall be used for any other purpose by any person.

(c) The court may permit (1) the use of electronic or photographic means for the preservation of evidence or the perpetuation of a record, and (2) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings . . .

But wait!  Look at the bolded language of subsection (a).  Didn’t the trial judge approve of this webcast?  It doesn’t matter, according to the Court of Appeals, because subsection (c) nullifies the common sense reading of subsection (a).   Here’s the heart of the reasoning:

“[W]e forbid enforcement of the challenged order and remand for proceedings consistent with this opinion . . . [T]he limits of the district judge’s discretion were exceeded; her interpretation of Local Rule 83.3 is unprecedented and, in our view, palpably incorrect. [T]he district court’s interpretation of the local rule renders subsection (c) of that rule wholly superfluous. Given the structure of the rule as a whole, it is logical to conclude that the phrase “by order of the court” does not create a free-floating bubble of discretion but, rather, is confined to those situations set out in subsection (c).

That’s not the way I read this local rule.  Hmm.  So what’s really the reason?  Is the Court being anal about the local rule or hamfisted about preventing meaningful public access?  Or is it something else?  Check out more of this uppity and angry language by the Court of Appeals:

We are mindful that good arguments can be made for and against the webcasting of civil cases. We are also mindful that emerging technologies eventually may change the way in which information-including information about court cases-historically has been imparted. Yet, 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. Our purview here is much more confined: this is a society dedicated to the rule of law; and if a controlling rule, properly interpreted, closes federal courtrooms in Massachusetts to webcasting and other forms of broadcasting (whether over the air or via the Internet), we are bound to enforce that rule. In the last analysis, this boils down to a case about the governance of the federal courts.

No, you’re not bound by the local rule. You’re the Court of Appeals!  Just say No.  Just say we construe this local rule such that it conflicts with the ability of the citizens to participate in their system of government.   This is a case about “free speech writ large.”  Note to Court of Appeals: You need to consider more carefully that you judges are our servants.  You are treating us like dogs when you tell us that we have to come crawling all the way to Massachusetts to know what’s going on in our court system.

Consider this gem too (this will go down as a classic, right alongside the Gettysburg Address):

The respondent has an odd rejoinder to the combined force of the local rule, the Judicial Conference policy, and the circuit council resolution. He suggests that reading these offerings together to deny all discretion to a trial judge to permit Internet access to her courtroom unlawfully burdens a litigant’s right to a public trial in the federal courts.

“Odd rejoinder?”  Gad. What is more sacred?  Your piddly local rule (which you spun until we were dizzy) or widespread public access to the exercise of government power.   Yes, you.  You are part of one of our branches of government.  We the People.

I’d write about the rest of this distressing opinion, except that it’s not worth your time.  Actually, I’ll summarize it.  It is a stream of nonsensical words that might look impressive from a distance, just beyond reading distance, all impressively bound into fancy Federal Reporter.  Maybe you’ll find it in a dark corner of your local courtroom’s law library in about four months, if you know where to look. But I’ll bet you’ll never find it.

If you want to know what’s going on in your Court’s you’ll need to burn your vacation time to drive long distances and sit on hard benches.   No use making it easy for you.

And kudos to Judge Nancy Gertner!


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Category: Civil Rights, hypocrisy, Intellectual property, Law, Media, Politics

About the Author ()

Erich Vieth is an attorney focusing on consumer law litigation and appellate practice. He is also a working musician and a writer, having founded Dangerous Intersection in 2006. Erich lives in the Shaw Neighborhood of St. Louis, Missouri, where he lives half-time with his two extraordinary daughters.

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