On Wednesday, April 8, the First Circuit Court of Appeals in Boston heard oral argument (mp3) on whether a trial of a Boston University student sued for music downloading, Sony BMG Music v. Tenenbaum, should be allowed to be webcast live. Federal district judge Nancy Gertner had agreed to allow the webcast, but the recording industry plaintiffs appealed.

Update: On April 14, the 1st Circuit issued its opinion barring the webcast. The court held that Local Rule 83.3 (discussed below) must be read in its entirety, and in light of the Judicial Conference and 1st Circuit directives on the issue, and thus limits broadcasting of court proeccedings for preservation of evidence, perpetuation of a record, or to broadcast investitive, ceremonial, or naturalization proceedings.

Court rules regarding coverage of trials were written prior to the advent of the Internet, and were written with still and video cameras in mind. (There are also varying rules -- many of more recent vintage -- on other devices in courtrooms, such as cell phones. Those rules are a topic for another day.)

First, a short history: There were generally no official rules on use of cameras to record court proceedings until the 1930s. In 1934, however, the trial of Bruno Hauptmann for the kidnapping and murder of the baby of aviator Charles A. Lindbergh attracted extensive media attention, including disruptive flash photography and a snuck-in movie camera. The debacle led the American Bar Association in 1937 to adopt Judicial Canon 35, which recommended that both still and movie cameras be banned from courtrooms. In 1962, the ABA amended Canon 35 to also ban television cameras.

All but two states -- Texas and Colorado -- adopted such a ban. At the same time, Congress banned cameras in federal court. The U.S. Supreme Court endorsed these bans in Estes v. Texas, 381 U.S. 532 (1965), in which it reversed a conviction for swindling because of the disruptions caused by cameras in the Texas courtroom. The following year, in Sheppard v. Maxwell, 384 U.S. 333 (1966), the Court reversed a murder conviction because of extensive coverage and disruptive behavior of print, radio and television reporters, mostly outside the courtroom.

But even in Estes the Court was open to the possibility of allowing cameras if the technology became less obtrusive. "When the advances in these arts permit reporting by printing press or by television without their present hazards to a fair trial," the Court wrote, "we will have another case." Estes, 381 U.S. at 540.

These changes in technology came in the 1970s, with smaller, less intrusive cameras. In 1978, the ABA considered changing its rule to allow each court to decide for itself, but ultimately decided not to change the 1937 canon. But the same year, the Conference of State Chief Justices voted that each state should create its own policy towards cameras in state courts. Several states then began to experiment with allowing such coverage, and the U.S. Supreme Court endorsed these experiments in Chandler v. Florida, 449 U.S. 560 (1981), refusing to reverse a murder conviction and holding that Estes did not entirely prohibit camera use in courtrooms, as long as they were unobtrusive.

Now, most states allow for some form of cameras in the courtroom, according to a May 2007 compilation by the Radio-Television News Directors Association. Five states
(Delaware, Illinois, Louisiana, New York and South Dakota) allow coverage in appellate courts only and prohibit all camera coverage of trials. Ten other states have strong limitations on cameras in courts. The District of Columbia bans cameras entirely from all local court proceedings.

The federal courts conducted a limited test of camera coverage of civil trials in several federal district courts from 1991 through 1994. At the conclusion of the test, the committee examining the issue unambiguously recommended that federal courts allow televised proceedings. But the federal Judicial Conference as a whole rejected this recommendation, and concluded that “the intimidating effect of cameras on some witnesses and jurors was a cause for serious concern.”

Despite this conclusion, in 1996 some judges of the Southern and Eastern districts of New York allowed camera coverage of particular cases. See Marisol A. v. Giuliani, 929 F. Supp. 660 (S.D.N.Y. 1996); Katzman v. Victoria’s Secret Catalogue, 923 F. Supp. 580 (S.D.N.Y. 1996); Sigmon v. Parker Chapin Flanau & Kimpl, 937 F. Supp. 335 (S.D.N.Y. 1996); Hamilton v. Accu-Tek, 942 F. Supp. 136 (E.D.N.Y. 1996).

In reaction to the Marisol decision, in March 1996 the Judicial Conference passed a resolution allowing each federal Circuit to decide the issue for itself, while strongly urging the Circuits to follow the Conference’s 1994 policy and to “abrogate any local rules of court that conflict with this decision.”

This remains the official policy of the Conference, and its Journalist’s Guide to the Federal Courts states -- incorrectly (see below) -- that "[n]o federal trial court ... permits broadcasting of its proceedings" and that "[n]o such motion [by news organizations to allow broadcasting of a trial] ever has been granted."

The result is that camera coverage of federal criminal trials is still generally prohibited, except to allow remote viewing by victims in criminal cases under 42 U.S.C. 10608. See Fed. R. Crim. Pro. 53; see also United States v. Hastings, 695 F.2d 1278, 1279, n. 5 (11th Cir. 1983), reh’g denied, 704 F.2d 559 (11th Cir. 1983).

The situation regarding civil trials in federal courts is more mixed, with the policy in a particular court determined by whether the federal appeals court to which a particular district court is assigned has taken action under the Judicial Conference policy to invalidate any district court rules allowing such coverage. If the applicable appeals court has not taken such action, the district court's rule on the issue, if any, applies.

It is clear that the Second Circuit (covering Connecticut, New York, and Vermont) has not acted to ban cameras in its district courts. The result is that the district courts within the 2nd Circuit have varying policies, under their own local rules. UPDATE: In December 2009, the Ninth Circuit -- which has allowed filming of appellate arguments -- approved the limited use of cameras district courts in non-jury civil cases, on a trial basis (press release).  The following month the U.S. Supreme Court, while not directly deciding the issue, questioned the validity of the Ninth Circuit trial in a decision barring broadcast of a trial in the Northern District of California on the validity of anti-gay marriage measure Proposition 8.

It was a bit unclear whether the First Circuit has acted, which was the major point of contention in the oral argument. If the First Circuit had not acted in response to the Judicial Conference policy, the issue would have been controlled by Rule 83.3(a) of the Local Rules of the United States District Court for the District of Massachusetts, which generally prohibits recording and broadcasting "except ... by order of the court."

The First Circuit's opinion barring the webcast held that Circuit had acted in response to the Judicial Conference policy, and that Local Rule 83.3 of the U.S. District Court for the District of Massachusetts only allows broadcasting of court proeccedings for preservation of evidence, perpetuation of a record, or to broadcast investitive, ceremonial, or naturalization proceedings. One judge of the three-judge panel, in a concurring opinion, stated that "in my view, there are no sound policy reasons to prohibit the webcasting authorized by the district ourt. Therefore, this case calls into question the continued elevance and vitality of a rule that requires such a disagreeable outcome."

Several bills have been introduced in Congress in the past several years to require federal courts -- except for the Supreme Court, which sets its own rules -- to allow cameras to cover trials. The current bill, S. 657, is pending in the Senate Judiciary Committee. Last year, that committee approved a prior version of the bill, but the full Senate did not vote on it.

Camera technology clearly has changed since the Lindbergh baby days, allowing for unobtrusive recording and broadcasting -- via television, cable, satellite, or the web -- of trials. In light of these changes, states that limit coverage of trials, and the federal Judicial Council, would be well advised to revisit their current, archaic rules on these issues.

(Note: The CMLP is hosted at the Berkman Center. While Berkman Center co-founder Charles Nesson represents Joel Tenenbaum in this litigation, neither the Center itself nor its Cyberlaw Clinic are involved in that representation. Pursuant to Judge Gertner's order, the Berkman Center may help host the webcast described above if it ultimately takes place.)