Legal Cliff’s Notes: Webcast issues

Law students depend on hornbooks and outline books (think “law school for dummies” or “idiot’s guide to contracts” or “cliff’s notes to criminal law”) on core subjects to help break down thorny legal issues and cases.

It doesn’t escape us that a lot of our supporters are unclear about the minute legal issues in this case.  For that reason, we’re launching a new effort to try to help.

Morris Singer, a student at Suffolk Law and Articles Editor for Suffolk University Law Review, stars as one of the legal issues “cliff’s notes” writer for our blog.  We’re working on a series of blog posts that will hopefully help break down some of the more complex legal issues that we’re approaching in this case.

Let us know if you have questions!  Or if you want to contribute…

–DBR

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Oral argument took place on Wednesday between Joel Tenenbaum and the record labels over whether Judge Nancy Gertner of the United States District Court for the District of Massachusetts (District Court) stepped outside of her authority when she granted Tenenbaum’s request to allow video recording and an Internet broadcast of court proceedings in his case.

(Motion granted document here)

After Judge Gertner granted the order, the record labels petitioned the United States Court of Appeals for the First Circuit (First Circuit) to step in and require her to reverse her order.

Both sides filed several briefs.  The Associated Press (AP), the Electronic Frontier Foundation (EFF), and the Courtroom View Network (CVN) also filed briefs, each as an amicus curae, or “friend of the court.”  Amicus briefs refers to someone, not a party to a particular lawsuit, who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it. [BTW, the AP brief was denied, and the EFF brief was co-signed by Ben Sheffner, our team's favorite critic.]

Argument took place before Judges Juan R. Torruella,  Bruce M. Selya, and Kermit Lipez.  The record labels went first because they were the party asking the First Circuit to reverse Judge Gertner.  They argued against the recordings and the broadcast.

Tenenbaum’s team argued second; splitting its time between Jonathan Sherman, counsel for CVN, and Professor Nesson, who represents the Tenenbaum.

SO THE ISSUE WAS: The Court’s Authority to Allow Recordings

In District Court, the decision of whether or not to allow the Internet broadcast turned on a local rule, Rule 83.3(a). The Rule prohibits audio and video recordings of court proceedings.

1. The rule specifically allows a recording, or
2. The court orders a recording at its discretion.

Our team disagreed with the RIAA as far as how to treat one specific subsection of the rule, Rule 83.3(c).

The RIAA argued that this subsection limited the court’s discretion to issue an order authorizing recording and broadcast.  That is, under the RIAA’s interpretation, Rule 83.3(c) provides a limited set of circumstances for which that second category applies.

Our team and the amicus briefs argued that this subsection contained specifically enumerated situations pertaining only to the first category, and did not limit the court’s discretion to allow recording “by order of the court.”

Each side supported its view using widely accepted methods of interpreting statutes and rules.  Additionally, each side examined the history of the Rule to support their interpretations.

(This is where it gets lawyerly, folks.)

Statutory Interpretation Arguments

The statutory interpretation arguments relied on the idea that every word in a written law should be important.  Legal norms say that an interpretation of a rule is questionable if it leaves any part of a rule meaningless or repetitive “surplus.”

The problem in this case is that both arguments render at least some language surplus.

The RIAA viewed Rule 83.3(c) as specific circumstances in which “an order of the court” can allow recording and broadcast.  As such, all court orders would also have to fall under specifically enumerated circumstances to be valid.  Therefore, the entire “order of the court” category would be redundant.

In contrast, our interpretation treats Rule 83.3(c) as just some more specifically enumerated circumstances under the first category.  The “order of the court” category is entirely separate in our view.

The RIAA counter-argued that this renders the first category surplus because the court can go outside of the specifically enumerated circumstances whenever it wants.

Historical Arguments

The RIAA supported their interpretation of Rule 83.3 by looking at the history of the ban on recordings in the District Court.

In their first brief, the RIAA likened the language of the Rule to a policy statement of the Judicial Conference of the United States, the principal policy-making body of the United States court system.  The policy statement provides that a judge may usually only authorize recordings in five specific scenarios.  (None of these scenarios applied in our case.)

Using the policy statement as a tool for understanding Rule 83.3, the RIAA said that Rule 83.3 cannot allow the court to authorize recording at its non-limited discretion.

Then, in a supplemental brief, the RIAA argued that the First Circuit Judicial Council also acted to ban recordings.  The RIAA also offered evidence of a now-cancelled “pilot program” to allow video recordings and failed legislative efforts to allow video recording.  They suggested that these occurrences demonstrate a ban on video recordings and broadcast.

We argued that the District Court already routinely orders video recordings for reasons outside of the RIAA’s interpretation of Rule 83.3.  For example, when a hearing has an audience that exceeds the capacity of the courtroom, District Court judges can order a recording of the proceeding to be sent to an overflow room for additional viewers.

We contended that when the District Court orders a recording for an overflow room, it does so outside of any circumstance enumerated in the Rule.  It also does so outside of the RIAA’s contention of the limits on judicial discretion for court-ordered recordings, he said.

As such, we argued, the RIAA’s interpretation could not be correct.  Allowing recording “by order of the court” must grant a judge additional authority to order recordings.

Our team also made an alternative argument.  We asserted that the Rule is ambiguous, and that multiple interpretations could make sense.  As such, the District Court is under an obligation to choose the one that effectuates the most constitutional result.

Because the right to a public trial is guaranteed under the Constitution, we contended, the District Court is obligated to choose the interpretation that best allows for that publicity.  In this case, this means that the court must allow video recording and internet broadcast of the court proceedings.

Standard of Review

At oral argument, the judges spent a considerable amount of time asking the RIAA just how wrong Judge Gertner had to be in order for the First Circuit to overturn her.  In legal parlance, this is called the “standard of review” because it is a question of how an appeals court reviews an order from a lower court.

The RIAA requested two different kinds of relief, each one of which has a different standard of review.

In their brief, the RIAA originally requested the First Circuit require Judge Gertner to reverse her decision under their “mandamus” power.  While this power would bind Judge Gertner to take back her decision, the petitioner had to argue their case to a high standard of review.  They had to prove both that their case would suffer “irreparable harm” if Judge Gertner allows the Internet broadcast, and that Gertner’s decision was “palpably erroneous.”

The RIAA argued that they could prove both of these elements.

In subsequent briefs and in oral argument, however, the RIAA requested the First Circuit act under a different power, called “advisory mandamus.”  The courts use this power primarily to assist jurists, parties, and lawyers in future cases by addressing questions that are likely to come up again frequently in court.  An application of the advisory mandamus power is extremely rare, but the petitioners argued for it here because, they contended, it would not require a showing of irreparable harm.

Although the RIAA argued they could meet the standard of review for either form of relief, we argued the opposite.

[update with thanks to B.S.: the labels also filed a plain old appeal (as opposed to writ petition), on the theory that they could do so under the "collateral order" doctrine. If the First Circuit buys that theory, I believe the standard of review would be "abuse of discretion," which would force them to reverse if they determine that Rule 83 and the 1996 Judicial Council resolution simply don't permit the webcast.]

Our team and the amicus briefs asserted that there was no irreparable harm, and that there was no error.  Additionally, at oral argument, we contended that even if the First Circuit disagrees with the order to allow the Internet broadcast, any error in Judge Gertner’s decision does not rise to the level that mandamus and advisory mandamus require.  That is, even if the First Circuit believes that Judge Gertner got it wrong, she did not get it so far wrong that the First Circuit can step in.

Policy Arguments

The amicus briefs put forth a number of reasons why, as a matter of policy, the First Circuit should not step in and force Judge Gertner to change her order allowing the recording and Internet broadcast.  Oral argument echoed and supplemented these contentions.

In its amicus brief, EFF noted that public access is a longstanding and important goal of the court system.  It argued that the use of Internet broadcast facilitates this goal.  In oral argument, we affirmed EFF’s position.  After all, court proceedings are public property, and Internet broadcasting can create a more open courtroom than was possible before the Internet was developed.

Overall

We know that doesn’t explain everything, but we wanted to break down the legal back-and-forth … even just a little bit.  Other bloggers and reporters have also done a good job explaining this issue too.  Additional readings:

• Copyrights & Campaigns
• More from Copyrights & Campaigns