In re SONY BMG MUSIC ENTERTAINMENT et al., Petitioners.
No. 09-1090.
United States Court of Appeals, First Circuit.
Heard April 8, 2009. Decided April 16, 2009.
564 F.3d 1
Charles R. Nesson, for respondent Joel Tenenbaum.
Jonathan Sherman, with whom Dean Kawamoto, Melissa Felder, and Boies, Schiller & Flexner LLP were on brief, for Courtroom View Network, amicus curiae.
Matthew H. Feinberg, Feinberg & Kamholtz, Cindy Cohn, and Kurt Opsahl on brief, for Electric Frontier Foundation, Public.Resource.Org, Inc., Media Access Project, Internet Archive, Free Press, California First Amendment Coalition, and Ben Sheffner, amici curiae.
Before TORRUELLA, SELYA and LIPEZ, Circuit Judges.
SELYA, Circuit Judge.
This mandamus proceeding requires us to address a question of first impression: does a federal district judge have the authority to permit gavel-to-gavel webcasting of a hearing in a civil case?1 The district court thought that it had that authority. Capitol Records, Inc. v. Alaujan, 593 F.Supp.2d 319, 324-25 (D.Mass.2009). After careful consideration, we hold that a local rulе, applicable in this case, when read in conjunction with an announced policy of the Judicial Conference of the United States and a resolution of the First Circuit Judicial Council, precludes such an action. Accordingly, we forbid enforcement of the challenged order and remand for proceedings consistent with this opinion.
I. BACKGROUND
Both the underlying case and the chal
Some time ago, certain record companies began to file infringement actions under the Copyright Act,
On December 23, 2008, the respondent, Joel Tenenbaum (one of the persons whom the record companies had sued), moved to permit Courtroom View Network to webcast a non-evidentiary motions hearing that was scheduled for Januаry 22, 2009. The district court, citing the keen public interest in the litigation, granted the motion over the objection of the record company plaintiffs. Capitol Records, 593 F.Supp.2d at 324-25.
The petitioners reacted to this order by asking this court to grant a writ of mandamus or prohibition. They argued, among other things, that (with certain exceptions not applicable here) Rule 83.3 of the Local Rules of the United States District Court for the District of Massachusetts prohibited webcasts of civil proceedings. As a supporting argument, they noted that a stated policy of the Judicial Conference of the United States advocated a ban on the use of recording devices in federal courtroоms (other than for the preservation of trial evidence and the like). We invited the respondent to reply to the petition, accepted amicus briefs,2 and assigned the matter for oral argument.
In a cooperative spirit, the district court stayed its narrowcasting order pending this court‘s review. The motions hearing is currently scheduled to take place on April 30, 2009.
II. APPELLATE JURISDICTION
We ordinarily do not entertain arguments raised by amici and not by parties.3 See Lane v. First Nat‘l Bank, 871 F.2d 166, 175 (1st Cir.1989). Here, however, that precept does not apply. When an issue relates to subject-matter jurisdiction, we are duty bound to address the issue even if the parties have eschewed it. See Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 5 (1st Cir.2007). As we explain below, this is such a case.
The issue is this: some of the amici contend that narrowcаsting (and, thus, the challenged order) does not threaten the petitioners with any irreparable harm. On that basis, they posit that relief in the nature of a prerogative writ is unavailable. See, e.g., In re United States, 426 F.3d 1, 5 (1st Cir.2005) (explaining that supervisory mandamus is traditionally available where judicial power has been exceeded, there is
Having reached the issue, we can dispatch it with ease. The jurisdictional argument, whatever its provenance, is without merit.
This case does not involve our general mandamus jurisdiction but, rаther, fits within the contours of our advisory mandamus jurisdiction. Under that rubric, we may entertain a petition that “presents a systemically important issue as to which this court has not yet spoken.” In re Atlantic Pipe Corp., 304 F.3d 135, 140 (1st Cir.2002) (citing In re Prov. Journal Co., 293 F.3d 1, 9 (1st Cir.2002)).4 The power of a district court to order narrowcasting of a hearing in a civil case is such an issue: it is systemically important and rife with implications for the public interest. In the absence of definitive guidance from this court, the issue is increasingly likely to recur within the district courts of this circuit. These circumstances counsel in favor of an exercise of our advisory mandamus jurisdiction. See, e.g., In re Sterling-Suarez, 306 F.3d 1170, 1172 (1st Cir.2002).
In making this determination, we are cognizant that prerogative writs are strong medicine аnd, as such, should be dispensed sparingly. In re Pearson, 990 F.2d 653, 656 (1st Cir.1993). But even while subscribing to that tenet, we believe that this is an appropriate case in which to consider granting the writ. Both the rapidity of technological change and the widespread interest that this proceeding has attracted argue persuasively for a prompt and authoritative resolution of the systemically important issue that lies at the epicenter of this dispute.
Our conclusion that this case falls within the compass of advisory mandamus answers the jurisdictional question. When advisory mandamus is in play, a demonstration of irreparable harm is unnecessary. In re Sterling-Suarez, 306 F.3d at 1172. It follows inexorably that we have jurisdiction over this petition.
III. ANALYSIS
Our task here is limited to the use of webcasts in federal civil proceedings. All forms of broadcasting are expressly proscribed in federal criminal cases, see
In order to determine whether webcasts of civil proceedings are permissible in a federal district court, the logical starting point is the district court‘s local rules. Here, there is a controlling rule: Local Rule 83.3 of the United States District Court for the District of Massachusetts. The text of that rule is reprinted in Appendix A.
In the court below, the district judge interpreted this rule as creating a discretionary catchall exception to the rule‘s general prohibition against the broadсasting of court proceedings. This interpretation would allow a district judge in an individual case to determine, as a matter of discretion, whether to permit the broadcasting of all or any part of the proceedings. That discretion would have no text-based restrictions. In that sense, it would be limitless.
We are reluctant to interfere with a district judge‘s interpretation of a rule of her court, especially one that involves courtroom management. See, e.g., Sánchez-Figueroa v. Banco Popular, 527 F.3d 209, 213 (1st Cir.2008), cert. denied, U.S., 129 S.Ct. 1328, 173 L.Ed.2d 601 (2009). Our standard of review reflects this deferential approach: the “application of a district court‘s local rule[s] is reviewed for abuse of discretion” but with “a special degree of deference.” Crowley v. L.L. Bean, Inc., 361 F.3d 22, 25 (1st Cir.2004).
Be that as it may, deference cannot be equated with a total abdication of an appellate court‘s responsibility to undertake a meaningful review of a lower court decision. Here, we think that the limits of the district judge‘s discretion were exceeded; her interpretation of Local Rule 83.3 is unprecedented and, in our view, palpably incorrect.
To begin, the district court‘s interpretation of the local rule renders subsection (c) of that rule wholly superfluous. If, as the court‘s discussion suggests, a district judge has wide-ranging discretion to permit civil proceedings to be broadcast, there would be no reason for the inclusion of a proviso which, like subsection (c), states that the court may permit broadcasting in certain enumerated instances (e.g., during ceremonial proceedings, for the preservation of evidence, for perpetuation of a record). It is a familiar canon of construction that every word and phrase in a statute or rule should, if possible, be given effect. See, e.g., Aguilar v. United States ICE, 510 F.3d 1, 10 (1st Cir.2007); United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir.1985). We think that canon has great force here.
The respondent‘s principal riposte is that a narrower interpretation of Rule 83.3, one that effectively limits a district judge‘s discretion to a few enumerated types of occurrences, adds words to the rule. This argument rests on the premise that if the drafters intended to restrict the broadcasting of civil proceedings to those settings, the phrase “or by order of the court” would in all likelihood have been cabined further, such as by adding a subordinate clause like “as permitted in subsection (c) below.”
That argument demands too much of the rule‘s drafters. Without any additional restriction, the narrower interpretation yields a sensible and coherent construction of the rule, with all of its parts fitting seamlessly together. This construction is fully consistent with the title of the rule‘s first subsection, which reflects an intention broadly to prohibit the “[r]ecording and [b]roadcasting” of civil proceedings. D. Mass. R. 83.3(a). A court may consider a rule‘s title in fixing its meaning, see E. Mt. Platform Tennis, Inc. v. Sherwin-Williams Co., 40 F.3d 492, 499 (1st Cir.1994) (stating a similar principle with respect to statutory construction), and we deem it appropriate to do so here.
The structure of Rule 83.3 also favors a narrow interpretation. After formulating a broad prohibition, the rule sets out two exceptions, followed by a reaffirmation of the overall prohibition. The first exception—“[e]xcept as specifically provided in these rules“—refers to such things as vоice recordings by court reporters and the use of dictation equipment in the clerk‘s office. Characteristically, these situations are not subject to pre-approval by the district judge.
Given the structure of the rule as a whole, it is logical to conclude that the phrase “by order of the court” does not create a free-floating bubble of discretion but, rather, is confined to those situations set out in subsection (c).5
The respondent and the amici rely on the practice in two other districts. Specifically, they advert to the allowance of webcasting by district courts in those districts. In our view, this analysis is beside the point. Both of the courts to which we have been referred permit webcasting under a local rule, common to the two districts—two out of thе ninety-four districts in the federal system—that differs substantially from D. Mass. R. 83.3. That exogenous rule, as interpreted locally, allows the broadcasting of proceedings on order of a district judge. See S.D.N.Y. R. 1.8; E.D.N.Y. R. 1.8; see also In re Zyprexa Prods. Liab. Litig., No. 04-MD-1596, 2008 WL 1809659, at *1 (E.D.N.Y. Mar.4, 2008). Because Local Rule 83.3 contains no comparable grant of unbounded discretion, the practice in those courts does not bolster the respondent‘s cause.6
We add, moreover, that a narrow interpretation of Local Rule 83.3 is strongly supported by a policy adopted by the Judicial Conference of the United States. The Judicial Conference is the principal policymaking body for the federal courts. Although the Conference‘s policies are generally not binding ex proprio vigore on individual district courts, those policies are at the very least entitled to respectful consideration. United States v. Merric, 166 F.3d 406, 412 (1st Cir.1999). In other words, when the Judicial Conference promulgates a policy, that policy, even if not binding in the strictest sense, is not lightly to be discounted, disregarded, or dismissed.
So it is here. In October of 1988, the Judicial Conference launched an investigation into the advisability of allowing cameras in the courtroom. See Report of the Proceedings of the Judicial Conference of the United States (Report), Mar. 14, 1989, at 34. Pilot programs were inaugurated in several courts (including the District of Massachusetts).7 When the dust settled,
Then, it adopted a slightly modified version of the policy in 1996. The Conference published that iteration of the policy in the Guide to Judiciary Policies and Procedures (Guide), Vol. 1, Ch. 3, Pt. E.3. This version of the policy, which remains in effect, is reprinted in Appendix B.
The commentary to the policy is instructive. It leaves no doubt but that, apart from the enumerated exceptions, “the Conference policy does not authorize the contemporaneous photographing, recording, or broadcasting of proceedings from the courtroom to the public beyond the courthouse walls.” Id. Pt. E.4. To emphasize this point, the commentary adds that “[t]he Judicial Conference remains of the view that it would not be appropriate to require ... non-ceremonial proceedings to be subject to media broadcasting.” Id.
The publication of the policy in the Guide is itself significant. The Guide “is the official medium by which direction as to courtroom procedures and other information are provided to the Federal Judiciary in support of its day-to-day operations.” Kitzmiller v. Dover Area Sch. Dist., 388 F.Supp.2d 484, 486-87 (M.D.Pa.2005). It also codifies the policies that are approved by the Judicial Conference of the United States.
In construing Local Rule 83.3, the Judicial Conference‘s unequivocal stance against the broadcasting of civil proceedings (save for those few exceptions specifically noted in the policy itself), is entitled to substantial weight. A narrow interpretation of the local rule is consistent with this policy. Conversely, an expansive interpretation of the local rule is at war with the policy. Under these circumstances, we believe that the district court, institutionally, would construe its rule to avoid a head-on clash with the national standard. In all events, we interpret the local rule that way.
A second source of support for a narrow interpretation of Local Rule 83.3 derives from the archives of the First Circuit Judicial Council. Some background is needed to put the circuit council‘s action into perspective.
In furtherance of the Judicial Conference‘s exhortation, the First Circuit Judicial Council adopted a resolution in June of 1996. The text of the resolution is reprinted in Appendix C.8
The respondent and the amicus Courtroom View Network assert that the resolution is impuissant because it was passed without either prior notice or an opportunity for public comment. See
The circuit council reviewed Local Rule 83.3. It obviously read the local rule as we read the rule today. That review presumably was conducted pursuant to
We add a coda. At the very least, the resolution unambiguously declares the sentiment of the circuit council and demonstrates its reading of Local Rule 83.3. Thus, even if the resolution was deficient in some technical sense, its existence nonetheless would support a narrow interpretation of Local Rule 83.3.
Either way, the resolution is powerful evidence of the meaning and purport of the local rule. The First Circuit Judicial Council followed the Judicial Conference‘s lead and made its position abundantly clear. We hardly think that a district court within the circuit would have stood silently by if it believed that the circuit council had misread its local rule.
In this case, then, all roads lead to Rome. It is perfectly clear that the local rule, the Judicial Conference policy, and the circuit council rеsolution are cut from the same cloth. We think that they must be construed in pari materia. Separately and collectively, the three statements undermine the district judge‘s assertion of authority to allow webcasting.
The respondent has an odd rejoinder to the combined force of the local rule, the Judicial Conference policy, and the circuit council resolution. He suggests that reading these offerings together to deny all discretion to a trial judge to permit Internet access to her courtroom unlawfully burdens a litigant‘s right to a public trial in the federal courts.
The respondent bases this suggestion on the Supreme Court‘s decision in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). That decision confirms the public‘s right to
Next, we must examine a possible semantic loophole, emphasized by the respondent during oral argument. At first blush, it is not obvious that either the Judicial Conference policy or the First Circuit Judicial Council rеsolution covers the situation at hand. After all, the policy speaks pertinently in terms of “televising” and the resolution speaks pertinently in terms of “radio and television coverage” of district court proceedings. Because neither of them say anything about Internet transmittals, the respondent posits that webcasting is different in kind from the array of proscribed techniques (and, thus, not affected by either the policy or the resolution).
On close perscrutation, that contention comes to naught. The difference between televising and webcasting is one of degree rather than kind. Both are broadcast mediums. The absence of a specifiс reference to webcasting is not telling; both at the time when the policy was promulgated and at the time when the resolution was adopted, Internet webcasting had not attained the ubiquity that currently prevails. What is more significant is that the intention of both the Judicial Conference, and the circuit council is transparently clear. That intention is to forbid all broadcasting of federal district court proceedings in civil cases, save only for the enumerated exceptions. The webcasting that the district court authorized contravenes that intention.
The sockdolager lies in the text of D. Mass. R. 83.3. The local rule is broader in its prohibitions than either the pоlicy or the resolution. In terms, it forbids the making of “any broadcast by radio, television, or other means ....” D. Mass. R. 83.3(a) (emphasis supplied). Thus, the rule bars more than conventional television broadcasting. Webcasting plainly falls within its scope.
IV. CONCLUSION
We are mindful that good arguments can be made for and against the webcasting of civil cases. We are also mindful that emerging technologies eventually may change the way in which information—including information about court cases—historically has been imparted. Yet, this is not a case about free speech writ large, nor about the guaranty of a fair trial, nor about any cognizable constitutional right of public aсcess to the courts. Our purview here is much more confined: this is a society dedicated to the rule of law; and if a controlling rule, properly interpreted, closes federal courtrooms in Massachusetts to webcasting and other forms of broadcasting (whether over the air or via the Internet), we are bound to enforce that rule. In the last analysis, this boils down to a case about the governance of the federal courts.
We need go no further. For the reasons elucidated above, we conclude that the district court‘s order of January 14, 2009, which purposed to permit webcasting of a motions hearing in a civil case, was based оn a palpably incorrect interpretation of D. Mass. R. 83.3. Consequently, we exercise our advisory mandamus authority, prohibit enforcement of the challenged order, and
Petition granted.
APPENDIX A
Rule 83.3 Photographing, Recording and Broadcasting
(a) Recording and Broadcasting Prohibited. Except as specifically provided in these rules or by order of the court, no person shall take any photograph, make any recording, or make any broadcast by radio, television, or other means, in the course of or in connection with any proceedings in this court, on any floor of any building on which proceedings of this court are or, in the regular course of the business of the court, may be held. This prohibition shall apply specifically but shall not be limited to the second, third, ninth, eleventh, twelfth, thirteenth, fifteenth, sixteenth, eighteenth, nineteenth and twentieth floors of the John W. McCormack Post Office and Courthouse Building in Boston and the fifth floor of the Courthouse Building in Springfield.
(b) Voice Recordings by Court Reporters. Official court reporters are not prohibited by section (a) from making voice recordings for the sole purpose of discharging their official duties. No recording made for that purpose shall be used for any other purpose by any person.
(c) The court may permit (1) the use of electronic or photographic means for the preservation of evidence оr the perpetuation of a record, and (2) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings.
(d) The use of dictation equipment is permitted in the clerk‘s office of this court by persons reviewing files in that office.
APPENDIX B
A judge may authorize broadcasting, televising, recording, or taking photographs in the courtroom and in adjacent areas during investitive, naturalization, or other ceremonial proceedings. A judge may authorize such activities in the courtroom or adjacent areas during other proceedings, or recesses between such other proceedings, оnly:
(a) for the presentation of evidence;
(b) for the perpetuation of the record of the proceedings;
(c) for security purposes;
(d) for other purposes of judicial administration; or
(e) for the photographing, recording, or broadcasting of appellate arguments.
When broadcasting, televising, recording, or photographing in the courtroom or adjacent areas is permitted, a judge should ensure that it is done in a manner that will be consistent with the rights of the parties, will not unduly distract participants in the proceeding, and will not otherwise interfere with the administration of justice.
APPENDIX C
It is hereby resolved by the Judicial Council of the First Circuit, in response to the urging of the Judicial Conference of the United States at its March 1996 Meeting, 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.
LIPEZ, Circuit Judge, concurring.
For the reasons set forth so clearly in Judge Selya‘s opinion, I agree with my
However, this inescapable legal conclusion does not discredit the policy concerns that animated, at least in part, the district court‘s decision. 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.
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. See Capitol Records, 593 F.Supp.2d at 322 (limiting the applicability of the Order in this case permitting narrowcasting to a motion hearing that would have “involve[d] only legal argument“). There are significant losses in this discrepancy.
“Courts have long recognized ‘that public monitoring of the judiсial system fosters the important values of quality, honesty and respect for our legal system.‘” In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir.2002) (quoting Siedle v. Putnam Inv., 147 F.3d 7, 10 (1st Cir.1998)). In our democratic society, “the knowledgeable tend to be more robustly engaged in public issues,” and “[i]nformation received by direct observation is often more useful than that strained through the media. Actually seeing and hearing court proceedings, combined with commentary of informed members of the press and academia, provides a powerful device for monitoring the courts.” Hamilton v. Accu-Tek, 942 F.Supp. 136, 138 (E.D.N.Y.1996).
Moreover, webcasting the legal arguments of counsel in a civil motions hearing does not implicate the concerns raised by televised trials.1 Many judges worry that the presence of cameras in the courtroom and the enhanced publicity that cameras bring changes the nature of the trial process itself. Those fears do not realistically apply to a civil motions hearing where the judge considers and responds to the arguments of counsel. Also, there is no reason to fear the impact of webcasting on any future jury trial in this case. Trial judges can assure the seating of a fair and impartial jury with the application of familiar jury selection practices.
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