“Her interpretation of [the discretion granted under a local rule] is unprecedented and, in our view, palpably incorrect,” the appellate panel wrote. “We add, moreover, that a narrow interpretation of [the rule] is strongly supported by a policy adopted by the Judicial Conference of the United States,” which has frowned on permitting cameras in federal courtrooms. “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,” the First Circuit concluded.
Over the objections of the record companies’ lawyers from Dwyer & Collara and Holme Roberts & Owen, Judge Gertner had granted Courtroom View the right to webcast the illegal downloading trial of Boston University student Joel Tenenbaum, at the request of Tenenbaum’s attorney, Harvard Law School professor Charles Nesson. Gertner said she had the discretion, under a local rule, to permit the webcast, which would have been the first time a federal court outside of New York permitted cameras to tape an adversarial proceeding against the wishes of one of the parties.
Although the First Circuit appellate panel said it had considered Judge Gertner’s interpretation of the local rule, which was supported by an amicus brief filed by Courtroom View’s lawyer, Jonathan Sherman of Boies, Schiller & Flexner, it concluded that a 1996 resolution of First Circuit Judicial Panel made the circuit’s wishes clear: “The broadcasting of court proceedings is prohibited. That aim is fully consistent with [the local rule] as we interpret it.”