Posing questions for the Supreme Court

Responding to Judge Gertner’s proposed schedule, we filed a motion to stay on Monday. We posed questions for the Supreme Court to review, and asked that all public proceedings be postponed until the Supreme Court has an opportunity to act on the petition.

In our petition, we presented the following questions:

1. Are federal courts constitutionally obligated by the First and Fifth Amendments to reasonably facilitate public access to judicial proceedings by all available means, including use of the Internet and other electronic broadcasting, or is the right of public access restricted to those who can afford the travel and time costs of attending the proceedings in person or the price of copies of official transcripts and notes, while relegating everyone else to such press reports and other second-hand accounts as may be available?

=> We are pointing out that 1) Theoretically, anyone can attend a proceeding, but in reality, not everyone has the time and money to travel to, and attend, a proceeding. 2) People who want a record of the proceeding have to pay for a court transcript, which is expensive. 3) Media coverage is edited material and cannot replace a full account

2. Does the absolute prohibition of Internet and other electronic broadcasting of any open-court sessions of civil actions in federal district courts violate the First and Fifth Amendment rights of the general public and civil litigants to public access to judicial proceedings?

3. Where the court below accepted the district court judge’s finding that Internet broadcasting of the oral arguments in the underlying civil action would reasonably and effectively facilitate public access to the judicial proceedings, does application of the total broadcasting prohibition in this case violate the First and Fifth Amendment public-access rights of the public and petitioner?

4. In totally prohibiting a district court judge from exercising any discretion to facilitate exercise of the constitutional rights of public access by means of Internet or other electronic broadcasting of open-court sessions in civil cases, does the ruling below impermissibly restrict the judicial power vested in federal district court judges by the Constitution and creational statutes?

Our request for the Supreme Court to review these questions was (promptly) denied.

So Joel’s hearing will take place as previously scheduled on Friday at 2:30p.m., without the webcast we were hoping for. It would be great if people in the Boston area could come to the hearing; it is open to the public. If enough people come so that we cannot fit into the courtroom and have to use an overflow room, maybe we can prove our point that the people’s right to a public hearing transcends the notion of a fixed physical space. If a camera is allowed in the courtroom to broadcast the hearing to the room next door, why couldn’t it be used to broadcast the hearing on the Internet for those who want to see  it? (Disclaimer: this is a personal opinion, not one that represents our group)

Here are some excerpts of the petition on our reasons on why the court should grant the petition.

“… By restricting the right of public access to courtroom attendance, or by default, to official transcripts or news and other second-hand reports, the ruling below perpetuates physical, wealth, and other arbitrary barriers against public access that excludes all but a select few from gaining unmediated and unabridged information about the process as well as substance of American judicial proceedings. Internet broadcasting now makes it possible to lower, if not entirely eliminate, those barriers. The essence of the public access right asserted here is that the under the Constitution, the federal courts possess and must exercise discretion to take advantage of the “new technology” as far as necessities of judicial economy, order, and fairness permit.”

“Never since the advent of modern First and Fifth Amendment jurisprudence has this Court accepted a
total ban, such as that imposed by the ruling below, on First and Fifth Amendment rights of public access
to information from judicial and other public forums.”

“Beyond allowing those physically in the courtroom (given adequate space, seats, and acoustics), the ruling allows no one else to hear the parties debate themerits of the legal issues in contest. This constraint on public access is arbitrary; there is no reason for it and none is given, just that a judge-made rule requires it. This rule is sweeping. It absolutely forecloses all broadcasting of open sessions in civil cases, regardless of how the court might tailor the type and format of the dissemination — whether simultaneous or delayed, gavel-to-gavel or selective, whether to arguments on motions, jury selection, witness examination or verdict, whether visual or strictly audio. This flat ban on public access ignores the unobtrusive and efficient nature of current recording technology, in this instance using already installed courtroom equipment. Indeed, the arbitrariness of the prohibition barring the district court from allowing Internet broadcasting of oral arguments on dispositive motions in the underlying civil action is underscored, as Judge Lipez notes in his concurring opinion below, by the fact that the very same arguments, if and when presented to the First Circuit on appeal, would be broadcast over the Internet as a routine matter — as they would in some form if the matter reached this Court.”

“To be sure, the main thrust of this Court’s rulings establishing the right of public access to judicial
proceedings results from efforts of the press to attend judicial proceedings in person. Seeking such access
makes sense for those whose job it is to cover the courts. But the right of public access cannot depend on the interests of the media, or, indeed, any intermediaries, because those interests will not necessarily, for reasons of money, politics, staffing or otherwise, adequately represent the public’s interests in receiving complete, consistent, and reliable coverage. The underlying copyright litigation provides a clear example of why media reportage would carry with it at least the appearance of bias. But even at its best, receipt of second-hand reports can never replace (although they may supplement) receipt of direct, unmediated audio or visual renditions of the actual proceedings….”

-yvette