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

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. 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!

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

Iowa becomes the third state to allow gay marriage

Based on a unanimous ruling by the Iowa Supreme Court, Iowa has become the third state in the nation to allow gay marriage (joining Connecticut and Massachusetts). The following excerpt is from the Desmoine Register:

Iowa’s gay marriage ban “is unconstitutional, because the county has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage,” Cady wrote in the 69-page opinion that seemed to dismiss the concept of civil unions as an option for gay couples.

“A new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution,” Cady wrote.

The ruling, however, also addressed what it called the “religious undercurrent propelling the same-sex marriage debate,” and said judges must remain outside the fray. . .

“Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring that government avoids them,” the opinion says.

The ruling explicitly does not affect “the freedom of a religious organization to define marriage it solemnizes as unions between a man and a woman,” the justices stressed.

Although I haven't yet read the opinion, it sounds like the Justices are pointing to a common-sense compromise to the gay marriage dispute: The civil ceremony applies to any two people and the state must not discriminate as to sex by requiring those two people to be of the opposite sex. The state-sanctioned marriage will endow all couples equally with all of the legal benefits of marriage. On the other hand, religions are free to define marriage as they would like. A conservative church would be free to reject an application to marry same sex couples. I think that this is the best way to approach the national divide. If your religion is really important to you, go ahead and let your religion (not your government) define marriage. In the meantime, don't try to deny government benefits to others based upon sex differences. When I read the opinion, I'm interested in knowing how the Court found discrimination. After all, the traditional government definition is not anti-woman or anti-man. In a sense, it's even-handed. From the perspective of any gay person seeking to be married, though, that definition trods on what I would agree to be fundamental liberties such as the right to associate. After I review the opinion, I'll add a comment.

Continue ReadingIowa becomes the third state to allow gay marriage