Harvard prof Charles Nesson will ask the First Circuit Court of Appeals for an en banc review of a panel's refusal to allow webcasting of the Tenenbaum P2P trial -- and a stay of the hearing currently scheduled for April 30.
Last week, a First Circuit panel found that a District Court rule bans the webcasting of trials. Nesson responded by asking for an expedited reconsideration of the rule, which was rejected today:
“I have circulated your request to my colleagues and received their responses,” wrote the Honorable Chief Judge Mark Wolf in an e-mail to Professor Nesson. “The District Court has decided not to take any action on the expedited basis that you request. In view of the imminence of the April 30, 2009 in your case, I am providing you this response by email.”
So now, Nesson is asking for the entire Court of Appeals to consider the argument that the Judge Nancy Gertner had the right to order webcasting of Tenenbaum's trial.
“In the meantime, we are respectfully requesting a stay of this hearing,” said Nesson. “It is in this hearing that Joel’s Constitutional claims will be considered, and it is only right that the public have a right ‘to see and to hear’ as per its own Constitutional right.”
“The public opinion is overwhelmingly in favor of a public webcast of the trial even in spite of differing opinions on file-sharing,” said the Joel Fights Back team. “Between comments on blogs and a petition circulating, we are amazed at the support for this issue.”
Nesson also pointed to the dissenting opinion in the webcasting decision, which called for a revision of the Rule:
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.