How 2009 is technologically more like 1789 than 1989

Last Wednesday morning found out team before a panel of the Court of Appeals for the First Circuit, defending the decision of our federal trial judge, Judge Gertner, to broadcast an important pre-trial hearing over the internet, unedited and gavel-to-gavel. Judge Gertner had ordered the internet broadcast of the hearing on several grounds, most significantly the because the public benefit of enabling those most affected by the case, the “Internet Generation,” to be able to see the hearing was strong and compelling.

Of course the record companies, who have long declared how important it is to educate the public about how “filesharing = stealing,” flipped out. They went to the Court of Appeals seeking an order stopping Judge Gertner from exercising her own discretion about the internet broadcast of the hearing. I can’t overstate how unusual it is to ask the Court of Appeals to intervene in a case before the trial has even started. Indeed, intervention by the Appeals Court would be formally known as an “extraordinary remedy”; it would require convincing the Appeals Court that Judge Gertner is very wrong and obviously wrong, and that if no one stops her, she is going to damage the record companies irreparably.

By allowing people to see the hearing on the internet.

They really argued that.

So I’ve been thinking a lot about this issue of banning or allowing internet broadcasting of court proceedings, talking it over with Joel and Charlie and the team, and working through some of the legal issues. We and others have argued that the rules governing the federal trial court give Judge Gertner discretion over whether or not to allow broadcasting out of the courtroom. The recording companies dispute this, and I’m not going to get into the technical details of how to interpret the rules of the court here. What I’d like to talk about instead is the connection between technology and the American right to a trial that is as open as possible.

Now, I’m not willing to argue that every aspect of a trial should be broadcast on every medium available. Jury deliberations should be private. There are kinds of evidence, such as evidence that the judge finds inadmissible, or the testimony of a rape victim, that do not need to be seen or heard even by folks who can make it to the courthouse. Further, there are problems with our media technology and the way they operate. Commercial television, for example, is generally uninterested in showing any part of a trial in its entirety: it gets edited down and modified in ways that viewers cannot know about. These are very real problems, and are excellent reasons for limiting the access of television cameras, for example, and – above all – leaving a trial judge with discretion about when to shut parts of a public trial off from public view.

But if we go back to the time of our nation’s founding, to the trials taking place in the colonies and even to trials taking place in England before then, we find that the ideal of a public trial was absolutely held sacred. As the United States Supreme Court has observed, trials in England were originally held town meeting-style: everybody in town with an interest (and, let’s just say it, who was a white guy of a certain class) took part in the trial. Juries developed as the number of interested people got to be too large: the jury was meant to stand in for the community as a whole, and to render justice on behalf of that community. But generally, going into the 18th century, courts in many communities were large enough to accommodate all of the members of community who had an interest the administration of justice at a particular trial.

It was considered essential to that administration of justice that the community be present and that the trial be open. And as long as everyone could fit into the courtroom, everybody who was interested in the trial could watch it, unedited, in its entirety. When this nation was formed in 1789, the right to a trial as open as possible was palpable in the American legal consciousness. And, like all other rights enjoyed by the colonists then, it has been preserved by the Ninth Amendment to the U.S. Constitution.

But obviously courtrooms can only be so big, and soon there was no way it could be possible for all interested individuals to attend a trial. The technology available for designing and building a physical courtroom space became less and less capable of meeting the needs imposed by a rapidly growing and increasingly dispersed community of interested persons. The right to an open trial – though still present and protected by the Constitution – became softened by the fact that it was technologically impossible to give it its full expression.

New technologies came along, such as radio and television, that seemingly promised to restore the right to an open trial. (These are what I mean by the technology of 1989.) But there were and are serious compromises inherent in broadcasting trial proceedings this way, as opposed to witnessing them in person. The information feed is controlled by commercial parties, like TV stations, that have their own interests. Censorship and editing in support of a bias are a real possibility. Editing to accommodate commercial breaks and other scheduling constraints is a simple necessity. It is completely understandable why any court would be wary of its proceedings being broadcast through these media, where the happenings of the courtroom would be chopped up, edited, and then presented to the public as something like reality.

In recent years, however, the internet has emerged as a potential medium for the broadcast of courtroom proceedings. Given proper implementation, an internet broadcast is freely available to anyone who is interested in participating in a justice event, and that broadcast may be transmitted without any editing. If the ideal of a trial at the time of our nation’s founding was that anyone and everyone with an interest in a trial should have the opportunity to be present, to be a real part of the administration of justice by society, then an internet broadcast allows us to recover that ideal once again.

In terms of its effects, the technology of broadcasting a trial on the internet, viewable by anyone at her convenience, in any location (and in a case like Sony v. Tenenbaum, that includes a lot of folks outside of Boston), is remarkably similar to the technology of an open courtroom large enough to contain all of the townspeople interested in the case. For this reason, when we’re thinking about whether or not Joel’s trial ought to be available for free on the internet to anyone who wishes to watch it, whether in real time or after the fact, it makes much more sense to look for guidance to how we felt about technologies of courtroom access in 1789 than in 1989. The right to a trial as open as possible was virtually inviolable in 1789. As the right became technologically impossible to enforce, we forgot about it, but it never really went away. And now that we have the technology to implement it correctly – not the edited TV and radio of 1989, but the freely available internet feeds of 2009 – we are absolutely obligated to honor and enforce that right. In 2009, we are on the cusp of rediscovering and once again truly respecting a right that was of extraordinary importance when our nation was founded. Judge Gertner clearly recognized this, and her decision ought to be respected.

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By the way, since this is my first posting, I ought to introduce myself. I’m Jimmy Richardson, and I’m one of the student lawyers on Joel’s defense team. I’m wearing an orange tie in the homepage photo, and I my favorite album for the foreseeable future is Grace Jones’ _Hurricane_.