Appeals Court Says: No Webcasting in Massachusetts Federal Court

by Joshua Auriemma on April 16, 2009

75432958_0c1ed6de27_oIn re Sony BMG Music Entertainment: The 1st Circuit recently wrote an opinion interpreting a Massachusetts local rule to exclude webcasts of federal court proceedings except in certain enumerated circumstances.  In overturning the lower court’s allowance of a trial webcast, the Circuit Court interpreted the language of Local Rule 83.3 of the United States District Court for the District of Massachusetts, which reads:

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.

The court focused much on the “or by order of the court” language within section (a).  The petitioner argued that “by order of the court” referred to the exception provided under section (c) while the respondent argued that if the drafters had meant that to be the case, they would have added language such as “as permitted in subsection (c).”  That reading, however, “demands too much of the rule’s drafters.”

The court also examines the history of the rule and determines that it was enacted with only the enumerated exceptions in mind.

Click here to see the entire decision.

{ 2 comments }

GregSJ April 16, 2009 at 5:17 pm

If I am reading your post right, and I think that I am, the court is reading “by order of the court” to mean section c?

What ever happened to using the plain meaning of the statute …
As far as I am aware by order of the court means by order of the court. And except as explicitly provided by these rules OR by order … (Note rules plural and conjunctive or.) I may not be the best grammatician(word?) in the world but pretty sure plain meaning would imply that there are exceptions in the rules (thus including the other subsets of the rule) and that court order is an additional exception. If it is not an additional exception then there is no reason for that language in that position in the text (if at all in the text.)

Joshua Auriemma April 16, 2009 at 5:56 pm

I have to admit that I’m a bit confused by the holding as well. Especially since “or by order of the court” is prefaced with, “Except as specifically provided in these rules . . . .” It seems to me that an OR after calling attention to the rules indicates that there are possible non-enumerated exceptions.

Comments on this entry are closed.

Previous post:

Next post: