In Re Sony BMG Music Entertainment

United States Court of Appeals
For the First Circuit

No. 09-1090

IN RE SONY BMG MUSIC ENTERTAINMENT ET AL.,

Petitioners.

____________________

PETITION FOR A WRIT OF MANDAMUS OR PROHIBITION TO THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Torruella, Selya and Lipez, Circuit Judges.

Daniel J. Cloherty, with whom Victoria L. Steinberg, Dwyer &
Collora, LLP, Eve G. Burton, Timothy M. Reynolds, Laurie J. Rust,
and Holme Roberts & Owen, LLP were on brief, for petitioners.
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.

April 16, 2009
 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 rule, 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 challenged order

implicate nascent technologies. To furnish context to the latter,

we sketch the factual background of the former.

1
"Narrowcasting" and "webcasting" are two different things.
Narrowcasting is the recording and live transmission of ongoing
events over the Internet to a selected audience. Webcasting is the
recording and live transmission of ongoing events over the Internet
to a broad, undefined audience. Here, Courtroom View Network
proposes to record and transmit the proceedings to a Harvard Law
School site (narrowcasting) from which the proceedings will be
streamed to a broader, undefined audience (webcasting). The
district court's order sanctions this procedure.
Despite the technical difference between narrowcasting and
webcasting, we use the terms interchangeably for ease in
exposition.

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 Some time ago, certain record companies began to file

infringement actions under the Copyright Act, 17 U.S.C. § 501,

alleging that individual defendants (many of whom were students)

had illegally used file-sharing software to download and

disseminate copyrighted songs without paying royalties. This

proceeding arises out of a consolidated set of such lawsuits. In

those cases, an array of record companies, including the

petitioners here — Sony BMG Music Entertainment, Warner Bros.

Records, Inc., Atlantic Recording Corporation, Arista Records, LLC,

and UMG Recordings, Inc. — sued a number of individuals as putative

copyright infringers.

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 January 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

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stated policy of the Judicial Conference of the United States

advocated a ban on the use of recording devices in federal

courtrooms (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.

2
We also received and placed on file a letter dated January
29, 2009 from Congressman William D. Delahunt. We greatly
appreciate the insights offered by the amici and by Representative
Delahunt.
3
To be sure, the respondent purports to "adopt" all the
arguments set out in the amicus briefs without making the arguments
himself. But the respondent makes only a cursory, broad-brush
allusion to this effect. We have held that this type of
generalized reference is insufficient to place the putative
adopter's weight behind the argument. See R.I. Dep't of Envtl.
Mgmt. v. United States, 304 F.3d 31, 47 n.6 (1st Cir. 2002); see
also Mass. Food Ass'n v. Mass. Alcoholic Bev. Control Comm'n, 197
F.3d 560, 568 (1st Cir. 1999).

-4-
 The issue is this: some of the amici contend that

narrowcasting (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 a threat

of irreparable harm, and the underlying order is palpably

erroneous); United States v. Horn, 29 F.3d 754, 769 (1st Cir. 1994)

(same). Because this argument is couched in jurisdictional terms,

we must confront it.

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, rather, 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

4
Advisory mandamus is different than supervisory mandamus.
Supervisory mandamus "is used when an appellate court issues the
writ to correct an established trial court practice that
significantly distorts proper procedure." Horn, 29 F.3d at 769
n.19.

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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 and, 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

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proscribed in federal criminal cases, see Fed. R. Crim. P. 53, but

that prohibition does not apply here.

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 broadcasting 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.

The district judge in this case made exactly that kind of

ad hoc, case-specific determination. The petitioners vigorously

contest the expansive construction of the rule that underlies this

free-flowing discretion.

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, 129 S. Ct. 1328

-7-
(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.

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 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 voice recordings

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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.

The second exception — "by order of the court" — refers

to the discretionary orders described in subsection (c); that is,

orders relating to the preservation of evidence, the perpetuation

of records, and the communication or memorialization of investitive,

ceremonial, or naturalization proceedings. Authorization of actions

in these situations requires specific approval by the district judge

on a case-by-case basis. The more expansive construction favored

by the district judge would blur these lines.

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

5
The decision in Chevron U.S.A. Inc. v. Echazabal, 536 U.S.
73 (2002), is not to the contrary. There, the Court interpreted
the term "may include" expansively, in part because the "statutory
language suggesting exclusiveness [was] missing. . . ." Id. at 81.
Here, the rule contains prohibitory language indicating that the
discretion afforded by the rule is limited.

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two districts — two out of the 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

6
At oral argument, some counsel suggested that the routine
use of broadcasting techniques to allow viewing of court
proceedings in "overflow rooms" within the courthouse opens the
door for webcasting. We believe that such usages, within the
courthouse and wholly under the control of the court, are easily
distinguishable from webcasting. A real extension of the physical
dimensions of the courtroom within the courthouse is materially
different than a virtual extension of the courtroom to include a
limitless outside audience located throughout the world.

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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,

the Judicial Conference concluded "that the intimidating effect of

cameras" in the courtroom presented "cause for concern." Report,

Sept. 20, 1994, at 46. The Conference previously had adopted a

policy hostile to the use of cameras in the courtroom at about the

same time as the District of Massachusetts adopted Local Rule 83.3

(in September of 1990).

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.

7
To implement the pilot program, the United States District
Court for the District of Massachusetts adopted Local Rule 83.3.1
(now expired). That "pilot program" rule was adopted simultaneous
with Local Rule 83.3 (albeit with a later effective date). This
sequence of events reinforces our interpretation of Local Rule
83.3, as there would have been no need for the adoption of a
separate "pilot program" rule if the district court had unbounded
discretion to allow telecasting and recording.

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 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

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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.

28 U.S.C. § 2071 governs the rulemaking power of the

district courts. Any rule prescribed by a district court "shall

remain in effect unless modified or abrogated by the judicial

council of the relevant circuit." Id. § 2071(c)(1). The commentary

to the Judicial Conference's policy on broadcasting "urges" circuit

councils to adopt measures reflecting the Conference's flat

prohibition of broadcasting and to abrogate any district court rule

antithetic to that policy.

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 aim of the resolution is explicit: the broadcasting

of court proceedings is prohibited. That aim is fully consistent

with Local Rule 83.3 as we interpret it.

8
Due to an indexing problem and through no fault of the
parties or the district judge, no reference was made to this
resolution in the lower court. We rectified this oversight and
issued a supplemental briefing order to enable the parties and the
amici to submit their views about it.

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 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 28 U.S.C. § 332(d)(1). The record is unclear as to whether

there was notice and comment. Assuming for argument's sake that

there was none, the assertion nonetheless misses the mark.

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 28 U.S.C. § 332(d)(4),

which mandates that a circuit council "shall periodically review"

the local rules of the district courts within the circuit and

"modify or abrogate any such rule" where necessary. There is no

requirement that the results of such a review must be put out for

public comment if the review itself does not purpose to modify or

abrogate the rule(s) reviewed. The council's resolution in this

instance did not seek to modify or abrogate any local rule but,

rather, endorsed existing practice in the districts within the

circuit (including the District of Massachusetts). It follows that

the passage of the resolution did not require prior notice, an

opportunity for public comment, or any exercise of the circuit

council's powers under section 332(d)(1).9

9
The respondent and the amicus suggest that the resolution
modifies or abrogates the local rule because it omits any reference
to certain permitted or potentially permitted uses (e.g., the
deployment of security cameras; the photographing of naturalization
proceedings). We reject this suggestion. The resolution is a

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 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 resolution 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

broad statement that approves and endorses the way in which
district courts within the circuit were then (and are now) handling
the sensitive issue of the threatened intrusion of television and
radio technologies into the courtroom. There is no indication that
the resolution was in any way aimed at altering existing practice.

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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 (1980). That decision confirms the public's right to attend

trials, id. at 574 (opinion of Burger, C.J., joined by White and

Stevens, JJ.). While the new technology characteristic of the

Information Age may call for the replotting of some boundaries, the

venerable right of members of the public to attend federal court

proceedings is far removed from an imagined entitlement to view

court proceedings remotely on a computer screen. Because there is

no hint here that any portion of the proceedings will be closed to

the public, the Richmond Newspapers right is not in jeopardy.

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 resolution 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 televison 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

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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

specific 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 policy

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

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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 access 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 on a palpably incorrect interpretation of D. Mass.

R. 83.3. Consequently, we exercise our advisory mandamus authority,

prohibit enforcement of the challenged order, and remand the case

for further proceedings consistent with this opinion.

Petition granted.

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 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 or 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.

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 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, only:

(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.

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 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.

- Concurring Opinion Follows -

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 LIPEZ, Circuit Judge, concurring. For the reasons set

forth so clearly in Judge Selya's opinion, I agree with my

colleagues that the district court palpably erred in its application

of Local Rule 83.3 of the District of Massachusetts to the request

of respondent Tenenbaum that Courtroom View Network be permitted to

webcast the non-evidentiary motions hearing that was scheduled for

January 22, 2009. Given the language of the rule, and the

unmistakable grounding of that language in a policy adopted by the

Judicial Conference of the United States, that request should have

been denied.

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

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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, Inc. v.

Alaujan, 593 F. Supp. 2d 319, 322 (D. Mass. 2009) (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 judicial system fosters the important values of quality, honesty

and respect for our legal system.'" In re Providence Journal Co.,

293 F.3d 7, 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

1
Rule 53 of the Federal Rules of Criminal Procedure prohibits
"the taking of photographs in the courtroom during judicial
proceedings or the broadcasting of judicial proceedings from the

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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 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.

courtroom." Fed. R. Crim. P. 53 (emphasis added).

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