Federal civil practice - local district court rule does not provide judge authority to order "narrowcast" of motion hearing - In re Sony BMG Music Entertainment.

• Author: Schwartz, Jordan K.

Federal Civil Practice-Local District Court Rule Does Not Provide Judge Authority to Order "Narrowcast" of Motion Hearing-In re Sony BMG Music Entertainment, 564 F.3d 1 (1st Cir. 2009)

Since the 1930s, federal courts have expressed great reluctance toward allowing cameras into courtrooms for the purpose of recording or broadcasting proceedings. (1) Although the Federal Rules of Criminal Procedure ban the use of cameras in criminal proceedings, there is no such rule of practice governing civil proceedings. (2) In In re Sony BMG Music Entertainment, (3) the United States Court of Appeals for the First Circuit, addressing a matter of first impression, considered whether a federal district judge had authority to permit "gavel-to-gavel" webcasting of a hearing in a civil case. (4) Forbidding enforcement of the district court's order, the First Circuit determined that the district court abused its discretion by interpreting Local Rule 83.3 to include a "discretionary catchall" exception to the rule's general prohibition against the simultaneous broadcast of court proceedings. (5)

After a group of major record companies, including Sony BMG Music Entertainment, accused Joel Tenenbaum of illegal file-sharing, he sought to allow Courtroom View Network (CVN) to "narrowcast" the non-evidentiary motion hearing in his case. (6) Despite the plaintiffs' implicit desire to deter the public from using peer-to-peer file-sharing software, they asked for a writ of mandamus to block the narrowcast, citing Local Rule 83.3 of the United States District Court for the District of Massachusetts. (7) The court interpreted Local Rule 83.3 to include a grant of judicial discretion, allowing a judge to permit the recording or broadcasting of court proceedings. (8) The court reasoned that the public benefits associated with open courtroom proceedings outweighed any prejudicial effect a narrowcast would have on the parties, courtroom participants, and the judicial system as a whole. (9)

The First Circuit, reviewing the district court's decision to allow the motion, considered the language and structure of Local Rule 83.3, as well as national and local policies concerning the use of cameras in the courtroom. (10) Based on its analysis, the First Circuit prohibited enforcement of the district court's order and held that the district court judge based her perceived authority to permit a gavel-to-gavel narrowcast of a civil motion hearing on a "palpably incorrect" interpretation of Local Rule 83.3. (11)

Scholars, courts, and policymakers have made persuasive arguments for and against permitting the recording and broadcasting of courtroom proceedings. (12) The United States Supreme Court has held that a trial is indeed a public affair, but has stopped short of declaring a constitutional right to view a live broadcast of courtroom proceedings. (13) Despite the Judicial Conference's 1972 federal court ban on recording and broadcasting courtroom proceedings, a majority of states and the American Bar Association (ABA) have adopted policies condoning the use of cameras in courtrooms since the Supreme Court decided in Chandler v. Florida (14) that their presence did not inherently violate a defendant's rights to due process or a fair trial. (15) In response to the groundswell of state action, the Judicial Conference appointed a committee to investigate the possibility of permitting recording devices and broadcasting in federal courtrooms and subsequently authorized a three-year pilot project that would allow electronic media coverage of civil proceedings in select federal trial and appellate courts. (16)

The Judicial Conference eventually rejected the committee's recommendation to extend the project, citing only the "intimidating effect of cameras on some witnesses and jurors" as a reason for its decision. (17) After publishing a slightly revised policy in the Guide to Judicial Policies and Procedures, the Judicial Conference softened its position, recommending that each court of appeals decide for itself whether to permit the use of electronic media devices to record or broadcast appellate arguments within their respective circuits. (18) The suggestion to permit discretion at the appellate level came in response to a decision from the Southern District of New York, which held that Judicial Conference policy was not binding on the district court and thus did not supplant or overrule a local district court rule authorizing a court to televise civil proceedings. (19)

Concurrent to the Judicial Conference pilot project, the United States District Court for the District of Massachusetts adopted Local Rule 83.3, generally prohibiting the use of electronic media devices in the courtroom, except "as specifically provided in [the] rule[]," or "by order of the court." (20) Soon after the Judicial Conference urged circuit councils to action, the First Circuit Judicial Council passed a resolution "to continue to bar the taking of photographs and radio and television coverage of proceedings in the United States district courts within the circuit, except as otherwise provided for ceremonial occasions." (21) While federal policy on the use of electronic media devices to record or broadcast courtroom proceedings has remained unchanged since the mid-1990s, legislators have attempted to pass legislation that would allow broadcast coverage of federal court proceedings. (22)

The United States District Court for the District of Massachusetts has the authority to make rules to govern its courtrooms and the First Circuit may review those rules and make appropriate changes to them. (23) Once the court enacts a local rule, district court judges have broad interpretive latitude. (24) The First Circuit reviews district court interpretations of local rules for abuse of discretion with a particular degree of deference, and has been reluctant to meddle with those interpretations. (25) To aid the interpretive process, judges often rely on familiar canons of construction to interpret a statute or local rule. (26)

In In re Sony BMG Music Entertainment, the First Circuit considered whether a district court judge had the authority to permit a gavel-to-gavel narrowcast of a non-evidentiary motion hearing in a civil case. (27) The court examined the language and structure of Local Rule 83.3, concluding that the district court's interpretation of the rule was "palpably incorrect" because the rule's language prohibiting recording or broadcasting "[e]xcept as provided in these rules or by order of the court" referred specifically and exclusively to the remaining subsections in the rule. (28) The court quickly dismissed the persuasive value of two district court decisions that authorized the broadcast of civil proceedings pursuant to their own local rules, reasoning that those courts interpreted local rules containing grants of "unbounded discretion" not found in Local Rule 83.3. (29)

The First Circuit determined that Judicial Conference policy, though non-binding, should have been afforded substantial weight and was consistent with the court's narrow interpretation of Local Rule 83.3. (30) The First Circuit concluded that the local rule, the Judicial Conference policy, and the Circuit Council's resolution, considered separately and collectively, undermined the district court's assertion of authority to permit the narrowcast. (31) Although Judge Lipez, in his concurring opinion, agreed that the district court's interpretation of Local Rule 83.3 was incorrect, he saw no sound policy reasons to prohibit the type of broadcast authorized by the district court. (32)

The First Circuit arrived at a particularly conservative outcome using a great deal of judicial creativity. (33) The court properly recognized that judicial review of a district court's local rule application carries a special degree of deference, however, the court failed to evaluate the decision according to this standard. (34) The district court based its interpretation of Local Rule 83.3 and the decision to permit a narrowcast of a civil hearing on a logical, thoughtful analysis, devoid of any arbitrariness or fundamental unfairness. (35) The First Circuit's conclusion rests on the implicit assumption that there is a "correct" method of interpretation; because the district court arrived at a different conclusion, it arrived at its conclusion following an "incorrect" interpretation and therefore abused its discretion. (36) Based on its own canons of construction, however, it is far from clear that the First Circuit "correctly" interpreted the language of Local Rule 83.3. (37) Because the rule contains such marked ambiguity, the First Circuit's decision constitutes a break from what has traditionally been a...