Request for Rule Change Denied

Forethought: The fact that Judge Wolf’s opinion was emailed and that the hearing itself was audiocast only attest to the pervasive nature of the internet, a nature which we hope the legal system will recognize as having been artificially constrained.

NESSON’S TEAM WILL SEEK STAY AFTER FIRST CIRCUIT RULING AGAINST WEBCAST & FEDERAL JUDGES DENY EXPEDITED REQUEST FOR RULE CHANGE

In the fight for Joel’s Right to a Public Trial,

Charles Nesson & Harvard Law team seek to exhaust all avenues

Cambridge, MA (April 2009) – Today, Professor Charles Nesson and his team of Harvard Law students have decided to file a petition for rehearing en banc and request for stay of next week’s long-awaited trial hearing on Joel Tenenbaum’s challenge to the Constitutionality of the million dollar complaint brought against him.  The documents will be filed first thing Monday morning, but all relevant parties have been notified.  Back in January, Federal Judge Nancy Gertner approved a motion to permit the hearing to be streamed live over the internet.  The music companies appealed, and the decision was overturned by the First Circuit earlier this month.

As per Circuit Judge Lipez’s concurring opinion, we reached out to the Federal judges this week requesting that the district court judges expedite a consideration to amend local rule 83.3 to permit a district court judge the ability to exercise his/her discretion.  Our informal request to the court is below.

“Under our understanding of FRCP 83 and 28 USC 2071(e), we believe 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,” wrote Nesson.

The expedited request was denied this morning.

“I have circulated your request to my colleagues and received their responses,” wrote the Honorable Chief Judge Mark Wolf in an e-mail to Professor Nesson. “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.”

It is unclear if the judges will consider making its own rule in the future.

“In the meantime, we are respectfully requesting a stay of this hearing,” said Nesson. “It is in this hearing that Joel’s Constitutional claims will be considered, and it is only right that the public have a right ‘to see and to hear’ as per its own Constitutional right.”

“The public opinion is overwhelmingly in favor of a public webcast of the trial even in spite of differing opinions on file-sharing,” said the Joel Fights Back team.  “Between comments on blogs and a petition circulating, we are amazed at the support for this issue.”

From: Charles Nesson

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.

http://joelfightsback.com/2009/04/first-circuit-hearing-slideshow-with-comments_part-one/
http://joelfightsback.com/2009/04/first-circuit-hearing-part-2/
http://joelfightsback.com/2009/04/first-circuit-slideshow-part-3/

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.

LIPEZ, Circuit Judge, concurring. For the reasons set forth so clearly in Judge Selya’s opinion, I agree with my colleagues that the district court palpably erred in its application of Local Rule 83.3 of the District of Massachusetts to the request of respondent Tenenbaum that Courtroom View Network be permitted to webcast the non-evidentiary motions hearing that was scheduled for January 22, 2009. Given the language of the rule, and the unmistakable grounding of that language in a policy adopted by the Judicial Conference of the United States, that request should have been denied.

However, this inescapable legal conclusion does not discredit the policy concerns that animated, at least in part, the district court’s decision. Indeed, in 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.

When the motions hearing at issue occurs, only those physically present in the courtroom will hear the parties debate the merits of the motions before the district court. Ironically, however, almost immediately after the oral argument in this First Circuit mandamus proceeding ended, anyone with an internet connection could access a recording of that argument from our website. There 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. See Capitol Records, Inc. v. Alaujan, 593 F. Supp. 2d 319, 322 (D. Mass. 2009) (limiting the applicability of the Order in this case permitting narrowcasting to a motion hearing that would have “involve[d] only legal argument”). There are significant losses in this discrepancy.

“Courts have long recognized ‘that public monitoring of the judicial system fosters the important values of quality, honesty and respect for our legal system.’” In re Providence Journal Co., 293 F.3d 7, 9 (1st Cir. 2002) (quoting Siedle v. Putnam Inv., 147 F.3d 7, 10 (1st Cir. 1998)). In our democratic society, “the knowledgeable tend to be more robustly engaged in public issues,” and “[i]nformation received by direct observation is often more useful than that strained through the media. Actually seeing and hearing court proceedings, combined with commentary of informed members of the press and academia, provides a powerful device for monitoring the courts.” Hamilton v. Accu-Tek, 942 F. Supp. 136, 138 (E.D.N.Y. 1996).

Moreover, webcasting the legal arguments of counsel in a civil motions hearing does not implicate the concerns raised by televised trials. Footnote Many judges worry that the presence of cameras in the courtroom and the enhanced publicity that cameras bring changes the nature of the trial process itself. Those fears do not realistically apply to a civil motions hearing where the judge considers and responds to the arguments of counsel. Also, there is no reason to fear the impact of webcasting on any future jury trial in this case. Trial judges can assure the seating of a fair and impartial jury with the application of familiar jury selection practices.

The Local Rule at the center of this controversy was adopted in 1990. Since its adoption, dramatic advances in communications technology have had a profound effect on our society. These new technological capabilities provide an unprecedented opportunity to increase public access to the judicial system in appropriate circumstances. They have also created expectations that judges will respond sensibly to these opportunities. With its sweeping prohibition on the broadcasting or recording of district court proceedings, Local Rule 83.3 prevents such responses in civil cases. So too do the Policy of the Judicial Conference and the Resolution of the Judicial Council of the First Circuit that underlie the Local Rule. As the outcome of this proceeding demonstrates, the Rule, the Policy, and the Resolution should all be reexamined promptly.

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Thank you for allowing me to send this to you by email and for prompt response to my request.
Respectfully submitted,
Charles Nesson