1st Circuit Rules Against Courtroom Webcasts in a Specific Case, but Throws Open Access Proponents a Bone

Lately I have been posting mostly about PACER, but today we had an interesting decision from the 1st Circuit that also addresses fundamental issues of public access to the courts. The back-story is complicated and interesting in its own right, but the relevant facts are:

• Generally, federal district courts do not allow proceedings to be video or audio recorded or broadcast
  
• Joel Tenenbaum, a defendant in the District Court of Massachusetts, requested that a hearing in his trial be webcast
  
• The judge, Nancy Gertner, granted his request
• The plaintiffs appealed (petitioned) the 1st Circuit, claiming that she did not have that authority under local rules (specifically 83.3). Plaintiffs also made some silly arguments about how people on the internet would make fun of them, which nobody took seriously.
• There are some additional complications due to non-binding policies of the Judicial Conference, and a previously obscure statement from the 1st Circuit Judicial Council. Ultimately these are not dispositive but (according to the 1st Circuit) lend credence to plaintiff/petitioners' claim

At oral argument, the debate focused on very specific details about how to read those local District of Massachusetts rules. Tenenbaum's lawyer, Charlie Nesson (who I know, and who is also at the Berkman Center), also made a high-level argument for why the ban on recording and broadcasting was bad policy (for more detail on the history of these policy issues, see this excellent CMLP blog post).

The court sided with petitioners, explaining that the Judge Gertner's decision "was based on a palpably incorrect interpretation" of the rule. In doing so, the court explicitly side-stepped the question of whether or not this was good policy -- its task was to decide whether the rule as written had been followed. The decision was a blow to the specific goal of webcasting the upcoming district court hearing, and unless the rules are changed it will be binding in other cases. This is where Judge Lipez, in his concurrence, throws open access proponents a bone or two:

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.

In short, the rules are dumb. Indeed, he noted the same irony that I had been pointing out to my colleagues in the weeks leading up to oral argument: the circuit courts themselves have implemented a program in which they record oral arguments and make them immediately available as MP3 podcasts on the internet. Lipez continues:

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.

Judge Lipez thinks that the rules simply don't take into account the internet:

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.

It seems like it's time to change the rules.


More coverage:

• Ars Technica
• Computerworld
  
• Boston Globe
• MediaPost
• Wired
• Recording Industry vs. the People
• AmLaw Litigation Daily
  

Ars: The case against PACER: tearing down the courts' paywall

I'm quoted in this new Ars Technica article by Tim Lee
The case against PACER: tearing down the courts' paywall

In this feature, Ars takes stock of online access to federal court records in the United States. We'll discuss how the system got where it is today, look at where there's room for improvement, and talk to two experts on open government about the prospects for reform. The bottom line is that the courts deserve credit for the progress they made in the 1990s, but a lot more work is needed to bring PACER into the 21st century.
[...]
Schultze and Grimmelmann agree that the solution to PACER's problems is for the courts to make court records available for free download. Schultze points to a recent paper from Princeton's Center for Information Technology Policy arguing that governments should stick to releasing raw information and allow private parties to build organization and search tools. Schultze predicts that if private parties were given free access to the raw PACER documents, they would quickly build websites that surpass PACER in functionality and ease-of-use.

In the time since I was interviewed for this article, I had a conversation with one of the attorneys for the Administrative Office of the Courts. He was very friendly and candid, answering my questions to the best of his ability. I got the impression that the AO is passionate about access to court records, but struggles with the practicalities of no-fee access. This makes me hopeful that we can constructively work toward a solution.