Despite Boston federal District Court Judge Nancy Gertner’s best efforts, as of yesterday the First Circuit has ensured that no one’s listening in¹ for the Tenenbaum file-sharing battle.

In a sort of gratuituously comprehensive 25-page opinion released only eight days after oral argument on this question, the First (via the charmingly and “incurably lexiphanic” Selya, J.) came down unanimously yesterday against permitting Joel Tenenbaum’s District Court proceedings from being broadcast live over the Internet.

For as much as I’d expected this outcome, I was also amused to see that the First was not immune to the influence of the unstoppable craziness that has plagued this case.

It all starts, as so many appeals must, with

JURISDICTION

For the second time of which I’m aware, it appears that a party has failed to properly argue a major issue in this case. Last time it was the plaintiffs’ failure to cite a 1st Circuit rule which was directly on point; here, Selya directly suggests that the defendants forgot to raise the tiny little matter of the Court’s actual authority to issue a writ of mandamus in the first place.²

Writs of mandamus³ are, as Selya himself notes, “strong medicine,” to be prescribed only when absolutely necessary. Courts which step in to issue these orders are inevitably taking a kind of offensively parental role in the proceedings, which is why plaintiffs generally must show that they are facing “irreperable harm” if the court doesn’t act.

Here, there was a strong argument to be made that the plaintiffs would suffer no such harm were the Court to deny the request, but this was only raised in a couple of amicus briefs submitted by interested third parties.⁴ For as unusual as it is for an appellate court to address arguments raised in non-party briefs, the Court found this particular argument to be significant enough to notice for exactly the amount of time that it took to dodge it entirely.

See, it turns out that the appropriate relief here was not a writ of plain old “general mandamus,” but rather a super-special writ of “advisory mandamus.”

Don’t feel bad: I’d never heard of “advisory mandamus” either.⁵ Maybe we both missed Civil Procedure that day?

Whether we’ve heard of them or not, writs of “advisory mandamus” may be issued in any matter which presents any “systemically important issue as to which this court has not yet spoken.”⁶, and the “irreperable harm” standard is not required for this highly unusual form of relief.⁷ Having whipped out this procedural trump card, the First breezily finds that it “inexorably” has authority to consider issuing such an order, and moves on to

THE DISTRICT COURT RULE

Pursuant to Massachusetts District Court Rule 83.3 [fair warning: link goes to sizable PDF], no cameras or recording devices of any kind may be allowed into the court “except as specifically provided in these rules or order of the court.” While I (and, apparently, Judge Gertner) would basically read this language to mean “except for specific circumstances enumerated within the text of this rule⁸, or at any time at the discretion of the presiding judge,” the First sees it otherwise. After several long pages of statutory construction and analysis, the Court conclusively determined that the phrase “or order of the court” is not a generalized “catchall” which would grant the District Court the kind of discretion that it exercised here, especially given that this rule was further strenghtened and augmented by a written policy adopted by the First Circuit in 1996 which prohibits the broadcasting of any court proceedings in federal courts under the jurisdiction of the First.

In light of all of this, the District Court’s decision to permit webcasting of the proceedings was held to have been “palpably erroneous,” and webcasting was prohibited accordingly. Which brings us to

THE CONCURRENCE

For as inevitably disappointed as Tenenbaum’s legal team were by this ruling, they can still take some hope from Justice Lipez’s concurrence. He reluctantly agreed with the majority that the proposed webcast was not legally permissible, but added the following eminently reasonable caveat:

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.

Lipez further points out a ridiculous irony that I’d meant to mention earlier: the oral arguments from this appeal were broadcast on the First’s website in MP3 format within 24 hours of the hearing for anyone to listen to. (”Disagreeable outcome,” indeed!)

Oh, and there’s

ONE FINAL IRONY

that I’ve got to mention before I can let all of this go, although I’m certainly not the first to notice it.

Throughout this fun little drunken punchup of an interlocutory appeal, the plaintiffs have been working directly against their own stated interests in this case. Given that the industry has as much as told us that they are throwing everything they’ve got at Joel Tenenbaum and his co-defendants for the express purpose of making an example of them for the unwashed music-thieving masses, what conceivable reason could they possibly have to turn down a chance for more free publicity from this already very-public trial?

1. Until manager Brian Message is taken off the witness list, every post on this case will be packt like sardines with Radiohead references. Token apologies to non-fans. [↩]
2. Okay, I’m taking his word on this one: I haven’t actually read Tenenbaum’s brief. Was this a fair assessment? [↩]
3. Latin, I believe, for “shut up and take it” [↩]
4. The music industry’s “best” argument toward this particular point, raised in its original briefing, was that “[t]he broadcast will be readily subject to editing and manipulation by any reasonably tech-savvy individual.” Translation: “Oh noes! They’re gonna make us look silly on YouTube!” [↩]
5. And neither has Wikipedia, for what that’s worth. [↩]
6. Proposed future advisory mandamus topics: Compelling McDonald’s to bring the Butterfinger McFlurry to New England, firing all those whiny Mass Pike tollbooth operators who skipped work on Easter, slashing ticket prices at Fenway, and acting quickly to prevent the looming national disaster presently posed by Limp Bizkit’s impending reunion and comeback tour. [↩]
7. ”…[p]roper occasions for employing advisory mandamus are hen’s-teeth rare: it is reserved for blockbuster issues, not merely interesting ones.” In Re Bushkin Associates, 864 F2d 241 (1st Cir. 1989)(Selya, J.)(Nancy Gertner, Esq. for petitioners) [↩]
8. There aren’t many. [↩]

1st Circuit

Radiohead always has a show or two in the Boston area on every international tour, and I’ve seen and thoroughly enjoyed them here (among other places) more than once. So I was particularly excited to hear that we may be treated to a free spoken-word performance from Radiohead manager Brian Message in our neighborhood federal district court later this year.

Yes, word is that the first major band to use file-sharing as a business model¹ has agreed to step up on behalf of the defense in the whole  Sony (et al) v. Joel Tenenbaum (et 100+) mess. I would have preferred to see Tchocky himself personally called to the stand to quietly mumble the opinion of the collective into the mic, but it’s still nice to see that the band is willing to send a consistent Message on this issue.² Even non-fans have to acknowledge that everything is in its right place on this one.

And this six-ring circus of a trial already had just about everything that regular court-watchers like to see even before the single best quasi-mainstream international rock and/or roll band to break out in my lifetime got involved.  There’s the modest and likable lead defendant and his sympathetic Josef K.-style predicament, the federal judge with an unusual willingness to extrajudicially engage³ the media, and the colorful, ‘radically transparent’ lead attorney who has teamed up with a plucky cadre of Harvard Law students with their own family squabbles to face the veritable firehose of overpriced lawyering available on demand to the American music industry. (And more! So much more!)

Oh, and this might finally be the case that will call the industry out for its unrelenting and shamefully disproportionate civil prosecutions of casual downloaders.⁴ So there’s that.

Joel Tenenbaum allegedly obtained and shared out seven (7) MP3 audio files in 2003 at the age of sixteen, for which the Recording Industry Association of America (”RIAA”) subsequently demanded its pound of flesh in the form of $12,000. Tenenbaum, now a student at Boston University, has been fighting the case ever since.

For as personally interested as I may have been in the subject matter, the case didn’t present any appellate issues until January, when District Court Judge Nancy Gertner sent the plaintiffs into myxomatotic spasms by granting Tenenbaum’s request to permit a live audio-visual webcast of the proceedings to be streamed through a non-profit website.

And then it got weird.

Judge Gertner subsequently realized that neither party had mentioned an obscure 1996 local court order regulating the use of cameras in the courtroom in their initial arguments, and strongly suggested that the plaintiffs further brief the issue in a motion to reconsider, for which she set a filing deadline. In a puzzling “notice” filed with the court soon after this deadline had passed, the plaintiffs stated their intent to ignore the judge’s request and take the issue up with the First Circuit in order to “resolve the broadcasting issue expeditiously without additional briefing or further appeals.”⁵

Why go running to the First Circuit? Because the plaintiffs had already sought review from the First of the judge’s order permitting the use of cameras back before anyone had realized that there was already a rule about the use of cameras. This was done by way of something they called a “Petition for Writ of Mandamus or Prohibition.”⁶ As Ray Beckerman notes, it appears that a writ of prohibition was actually what they were after in this context—in spite of the confusing title and the text of the petition itself, which repeatedly refers to mandamus as the sole form of relief sought. Additional briefs were filed in support of this further appeal (so much for that theory, I guess), and oral argument on this issue has been scheduled for tomorrow, April 8th.

This wacky procedural sideshow was so entertaining that I just about forgot that the actual subject of this dispute—worldwide, instantaneous dissemination of federal courtroom proceedings over the Internet—is unprecedented, at least as far as anyone I’ve read on this so far seems to know. These arguments should be available online in the next couple of days, so more then.

1. Harvey Danger actually did it first, not that anyone noticed. [↩]
2. As it were. [↩]
3. And even occasionally join the ranks of… [↩]
4. Maybe. [↩]
5. In the absence of further explanation, this justification alone seems both totally oxymoronic and… well, the other kind, as well as more than a little rude. But this thing was already such a mess by this point that no doubt this course of action made sense to someone. [↩]
6. Given that these two forms of relief are both distinct and definitionally antonymical, not simply requesting one or the other of them is kind of like asking your waitress for either a veggie platter or a triple cheeseburger, and leaving it up to her which one to actually serve you. [↩]

1st Circuit

The following actually kind of makes sense in the context of the opinion… but who needs context?

It is true that foreign language documents are normally required to be accompanied by an English translation and that illegible documents are often useless. In this case, however, the fact that the relevant evidence was not translated or entirely legible did not preclude it from [the trial or appellate court's] consideration…

Nadal-Ginard v. Holder, No. 08-1550 (Feb. 25, 2009)

1st Circuit

There’s this amusing phenomenon which may be observed when those with no prior exposure to the weird social/legal/historical/political realities of the Commonwealth first innocently wander into them. I call it Mass Confusion, and it has reigned in the blawgosphere in the last couple of weeks since the First Circuit’s Friday the 13th ruling in Noonan v. Staples, Inc., No. 07-2159 (2009).

I’m just going to voice my respectful dissent on this right up front. This is all just one kid’s opinion, but whatever else this decision may be, it is not “the most dangerous libel decision in decades.” It has not “turned libel law on its head,” it is not a “bizarre twist,” it has not held that “truth is no longer an absolute defense” to libel, and it doesn’t “threaten to overturn” anything.

The boring truth is that in Noonan the First Circuit has merely glancingly condoned (as opposed to having definitively upheld) a highly questionable state law on reasonable procedural grounds. Somehow all of the critics of this opinion seem to have lost sight of the fact that the standard here was not that which would have been used had the court reviewed the case on the merits after trial, but only in terms of a motion for summary judgment: was there a “triable issue of fact” under existing Massachusetts law? Sadly, there was.

This is not to say that I agree with the outcome: At the end of the day, I’m a public-interest attorney, a progressive voter, an ACLU member, and an uncompromising defender and fan of the First Amendment. But this is an appellate, and not a First Amendment, blawg, so the following analysis is conducted accordingly.

The facts are far simpler than the law, so let’s begin at the beginning. Plaintiff Noonan was a Staples employee who engaged in some shady accounting (not a lot, but enough to get noticed) on his expense accounts and such during the course of his employment there. Staples caught Noonan, fired him, and made an example of him in a mass email sent out to all 1,500 of his former colleagues in the company’s North American division. Noonan did not seriously contend that the email as published was not true, but sued Staples anyway on the theory that it was libelous. In Noonan, the First Circuit (Tourella, J.) has agreed that it is possible that a reasonable person could have found the email to have been libel under Massachusetts law, and has remanded to the district court for further proceedings.

This, of course, is the part where every American law school graduate’s head explodes. How could a statement which is empirically true ever constitute libel? Truth is the “absolute defense” to libel, right? Yes. Yes, it is. Everywhere but the Commonwealth.

That’s right: You’re in the jungle now. Welcome to the jungle.

Let’s get to the law: Read more…

1st Circuit, massachusetts, stupid laws

The right to seek asylum from persecution is one of medieval law’s greatest contributions to modern international jurisprudence. Asylum is a good and necessary provision—one of those basic legal principles that can be traced back to the Greeks and Romans—and one of the essential benchmarks of a civilized, compassionate society.

The First Circuit releases an average of maybe about 2-3 immigration-related decisions per week, the majority of which relate to asylum proceedings. The merits of these asylum appeals vary pretty widely, but often trend toward the weaker end of the spectrum. After a quick read through the facts, you can acknowledge that there was probably a pretty good reason for the initial denial by the immigration judge (”IJ”), despite any meritorious appellate issues that may have been raised in the process.

But every few months, there’s an asylum appeal that can get you thinking a little more about the state of our system. About the kind of country we want to be, and how our immigration policies could better reflect that. Read more…

1st Circuit, Immigration Appeals

As much as I love this paragraph as it is, it’s even more fun if you read it out in the stentorian brogue of Dr. Henry Jones:

“It is not the business of the courts to tell Congress what to do about public policy choices, but we are entitled to warn when the machinery that we help administer is breaking down.   The current structure of deportation law, greatly complicated by rapid amendments and loop-hole plugging, is now something closer to a many-layered archeological dig than a rational construct.   The regime is badly in need of an overhaul.”

Kim v. Gonzales, 468 F.3d 58 (1st. Cir. 2006)(emphasis added).

The First Circuit’s evident disenchantment with immigration appeals (may I offer you the paltry near-beer of a fresh half-pint of Justice Lite?) is understandable, especially given the explosion of BIA appeals they’ve had to endure since the passage of the 2002 reforms ostensibly designed to “streamline” the immigration appellate process. (I’m not up for putting together recent numbers tonight, but try here for a comprehensive look at the growing phenomenon as it stood a couple of years ago.) So this we-can’t-tell-you-to-do-something-about-this-but-please-seriously-guys-just-DO-SOMETHING kinda sentiment had to come out sometime.

To be fair, there’s no doubt what it was about this argument that had the First reaching for their revolvers:

“Kim’s first claim–that no crime of violence occurred even though Kim approached the victim with a cocked gun and shot him in the head as the victim fled–might seem frivolous to one not acquainted with immigration law…” (emphasis added)

Couldn’t have snarked it better myself. That last phrase tells you pretty much everything you need to know about what the First Circuit thinks about the current state of the Immigration and Nationality Act, the Executive Office of Immigration Review, the Board of Immigration Appeals, and the immigration bar at large.

But, more importantly, you read that argument correctly: The petitioner claimed that manslaughter should not constitute a “crime of violence” that should be classified as an “aggravated felony” for immigration purposes.

Again: Shooting a man in the back of the head did not constitute a felony in which there was a “substantial risk that physical force may be used… in the course of its commission.”

One more once? Intentional gun violence does not equal a “crime of violence.” Try saying it out loud out a few more times. Pace around the room a little, if that helps. I’ll be here.

Thing is, I have no doubt that counsel stood up and argued this with a straight face and a clean conscience. As the First has to acknowledge, it’s a good argument.

If you think this is all some kind of stupid joke, let me assure you that it is not—and to be the first to welcome you to Immigrationland! Double Scotch?

Of course, we can all agree right here that it’s a crazy argument, or at least that it sounds like one.

See, now, if you came up to me on the street and asked “Hey, would you say that manslaughter is a crime of violence?” my reasoned response would likely be a grunted affirmative just before I politely requested that you step away from my car with that squeegee–because, really, sorry man, but I’m really just all out of change–and rolled up the window and locked all my doors.

Yes, it sounds crazy that anyone would even try to litigate this issue. Squeegee crazy. But the truly insane takeaway is that this is a perfectly acceptable argument that actually passes the laugh test–thanks to some eminently-fixable vagaries of  both the relevant Rhode Island statute and the controlling federal law which defines “crimes of violence”–and that it may very well work next time around if it is properly raised earlier in the proceedings.

(Full disclosure: I recently asked the First Circuit if they might maybe like to consider an appeal which raised a similar question which kind of sounds about 75% as ridiculous as this one when you say it out loud, but I still stand by my argument in that one and will be happy to discuss its merits further with anyone who really wants to know. Plus, it’s not like we were talking about, y’know, manslaughter.)

1st Circuit, Immigration Appeals 1st Circuit, appeals, immigration