By Morris A. Singer

Starting next week, the United States District Court for the District of Massachusetts will consider whether to modify its local court rule prohibiting electronic recording and webcasting of civil proceedings. This would be a step toward a more democratic federal judiciary. Additionally, the modification would empower judges of the District Court to make decisions that should be left to their discretion.

It is sometimes said that evolution of the law keeps pace with the speed of geological transformation. That was certainly a sentiment felt by many a year ago this month, when the United States Court of Appeals for the First Circuit overturned (.pdf) Judge Nancy Gertner’s decision (.pdf) to allow webcasting of civil proceedings in the Joel Tenenbaum copyright infringement case.

That First Circuit decision was a frustration for just about everyone but the plaintiffs, who stood to gain from silencing publicity of their controversial and unpopular copyright infringement litigation practice. Even the First Circuit justices who heard the argument sympathized with the pro-webcasting arguments, but confined their reasoning and decision to an application of the District Court local rule, which prohibits the practice.

This Friday marks the closing of the period for public comment to the District Court regarding a proposed modification to Local Rule 83.3, which prohibits webcasting. Only time will tell what arguments will be put forth in public comment, but this author expects the most compelling arguments to center on democratic values and judicial discretion. After a brief background of the issue, the following will examine each of these arguments.

History of Prohibited Electronic Recording in District of Massachusetts

The courts are often averse to electronic recordings of court proceedings. The rule currently prohibiting electronic recording in the District of Massachusetts is Local Rule 83.3.

The Rule provides that electronic recording can only take place if the rule specifically allows a recording, or if the court orders the recording at its discretion.

That last part — the court’s discretion — would seem to allow a judge in the District of Massachusetts to order a recording at his discretion. The First Circuit disagreed a year ago, however, holding instead that the court has discretion only in specific situations set forth later in the rule, at 83.3(c). Those circumstances are:

  1. The use of electronic or photographic means for the preservation of evidence or the perpetuation of a record, and
  2. The broadcasting,televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings.

Other than for these reasons, the District of Massachusetts does not have discretion to order electronic recording of court proceedings. For a summary of the arguments for and against this interpretation, see my blog post at Joel Fights Back.

Policy Guidance

The Judicial Conference of the United States, the policy-making body of the federal courts, has stated that electronic recording of court proceedings are usually allowed only in five very limited circumstances:

  1. The presentation of evidence,
  2. The perpetuation of the record of the proceedings,
  3. Security purposes,
  4. Other purposes of judicial administration, and
  5. The photographing, recording or broadcasting of appellate arguments.

The policy of the Judicial Conference of the United States is not binding on the District of Massachusetts, meaning the courts in the District can set other policies. However, the District treats the policies as persuasive.

Additionally, the First Circuit Judicial Council had experimented with video recordings of civil proceedings within the First Circuit through a pilot program. The program was cancelled, and video recordings were again prohibited.

Here are 10 reasons why webcasting promotes a more democratic judiciary:

  1. Webcasting helps the public to know what is going on in the courts. The Internet is highly effective at distributing content to a wide audience. When the Internet distributes gavel-to-gavel coverage of court proceedings, more people know what is happening in the courts. See Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 920 (1950).
  2. Webcasting is an acknowledgment that what transpires in the court room is public property. Because court proceedings are public property, the public should be able to have access to them. Webcasting facilitates this access. See Craig v. Harney, 331 U.S. 367, 374 (1947).
  3. Webcasting is in accordance with the First Amendment, which provides the right of access to court proceedings. The First Amendment provides a right of access to court proceedings, in the absence of competing privacy concerns. Webcasting facilitates access. See Richmond Newspapers v. Virginia, 448 U.S. 555 (1980).
  4. Webcasting provides publicity, the most powerful check on misconduct. When people see what is happening in the courts, those in power are on their best behavior.  See id. at 569.
  5. Webcasting court proceedings affords citizens a form of legal education. When more people have access to court proceedings, they can observe the goings on of the court, and can learn how the legal system works.  See id. at 569-73.
  6. Webcasting promotes confidence in the administration of justice and fosters respect for the legal system. We can learn to trust our judiciary by seeing it in action.  See id.
  7. Webcasting enhances the performance of all involved. When people know their conduct is exposed to the public, they may just do a better job and be on their best behavior.  See id.
  8. Webcasting protects judges and litigants from false allegations of dishonesty. When people can see the proceedings of court, it is harder to make out a case of dishonesty in the court because the public record will not substantiate it.  See id.
  9. Webcasting provides an outlet for community hostility and emotion. Public proceedings provide a form of communal vindication for having experienced a wrong.  See id.
  10. Webcasting permits observance of court proceedings in the most convenient manner possible. While it may be difficult for a person to travel to the court to observe a proceeding, especially during work hours, the ability to watch a proceeding at home at any time over the Internet makes observation more convenient.  See id.

Empowering Judges to Make Discretionary Decisions

There are two ways of reading the current version of Rule 83.3. One of them allows electronic recording at the open discretion of the judge. The other limits judicial discretion to the following two circumstances (see above):

  1. The use of electronic or photographic means for the preservation of evidence or the perpetuation of a record, and
  2. The broadcasting,televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings.

The First Circuit sided with the latter interpretation last year, when Sony appealed Judge Gertner’s order allowing electronic recording and webcasting of proceedings in the Joel Tenenbaum case. For a summary of the arguments supporting both interpretations, see my blog post at Joel Fights Back.

What is important here is that the First Circuit overturned Judge Gertner’s order from the District of Massachusetts. Judge Gertner based her order on her interpretation of the local rule governing her own court.

This was a mistake.

The First Circuit was required to afford Judge Gertner “a special degree of deference — above and beyond the traditional standards of decisionmaking and appellate oversight — [when evaluating the] court’s interpretation of its own local rule[].”  In re Jarvis, 53 F.3d 416, 422 (1st Cir. 1995).

It did not seem like the First Circuit afforded that level of deference to the District of Massachusetts and to Judge Gertner. In essence, the First Circuit decision in the Joel Tenenbaum case tied the hands of the judges in the District of Massachusetts. They were no longer free to interpret their own local rule in either of the two competing ways.

The revision of Local Rule 83.3 will give the District of Massachusetts a chance to reassert itself, and allow electronic recording and webcasting at the discretion of its judges.

Further Reading

Morris is a third-year Suffolk University Law School student and publisher of the blog, LawAndContent.com.