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.

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.

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)

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:

American libel law as we know it was invented in 1735 when John Peter Zenger was tried on charges of  ”seditious libel” arising from certain articles his newspaper had published regarding one William Cosby, the sitting colonial governor of New York. (One might assume, if one is too lazy to go looking for it, that the objectionable content had something to do with Mr. Cosby’s tastelessly colorful sweaters and unholy love of Jell-O.) Zenger’s attorney argued to the jury that no matter how scandalous the content of his publication may have been, Zenger simply should not be found guilty of libel because it was all true. The jury agreed to effectively ignore the law on Zenger’s behalf, making him the first—and perhaps still the most famous—American beneficiary of an act of jury nullification.

Strange as it seems today, this was an unprecedented development in Western libel jurisprudence. Our British colonial overlords had no problem spelling “libel” without the letters L-I-E, and it was a basic point of law that truthful statements could be libelous if made with “actual malice.” The American concept of truth as an “absolute defense” to libel can be directly traced to the popular belief in the justice of Zenger’s acquittal, and nearly every American jurisdiction has adopted it.

Every American jurisdiction but one. Cue the Mass Confusion.

Massachusetts has never recognized an “absolute” truth-based defense to libel.  It has instead effectively carried on the legacy of the colonial English law in G. L. c. 231, Section 92, under which truthful statements made with “actual malice” (in the “popular sense” of “hatred and ill-will“) may still constitute libel. Given that Sec. 92 (first codified in 1855; more on the history of the statute in the 1903 case which affirmed it) is still technically valid, the First’s holding in Noonan that summary judgment in the trial court was improperly granted because there was still an open question under Massachusetts law as to the “actual malice” of Staples’s actions was not really all that radical.

To be fair, not all of the confusion here is Mass-based. The Supreme Court’s landmark 1964 decision in New York Times Co. v. Sullivan provided a new Constitutional definition for the common-law phrase “actual malice” in libel cases involving public figures. Under this standard, “actual malice” may only be found in statements made about public figures if these statements were made either with actual knowledge that the statement was false or with “reckless disregard” as to whether or not the statement was true. (Libel: Barack Obama is a “radical Muslim” who “pals around with terrorists.” Not libel: George W. Bush is a convicted drunk driver. See how that works?) So there’s inevitably going to be some confusion now between what all First Amendment lawyers know about “actual malice” in the Sullivan context, and the actual common-law definition which still controls for the purpose of the “actual malice” exception to the truth defense against claims of libel involving private individuals in Massachusetts.

Noonan was not, of course, a public figure at the time that the email went out, and no one is arguing that he should be viewed as one now. Although the SJC casually suggested more than three decades ago that it may someday address the Constitutionality of truth-based libel suits involving private persons, there has never been a direct ruling on this issue. (As far as I’m aware, the closest they’ve come since then was in a case involving my favorite series of budget travel guides and an Israeli hostelier with a groping problem, and that decision held for the defendants only because the plaintiff was a private person who happened to be involved in a matter of nominal “public concern.”) So for as stupid and anachronistic and un-American as this statute undoubtedly is, the “actual malice” bit which ultimately controls here has never been directly challenged nor struck down by a state court as it pertains to private individuals, and it is still therefore the law of the Commonwealth. Not great (or even good) law, but it’s still the law. (Now that the case has been remanded for further proceedings, it would be nice if the federal district court would be kind enough to certify this mess to the SJC for review of the Constitutionality of Sec. 92, but I really don’t see that happening.)

In light of all of this, the most surprising thing to come out of this whole decision, for me, anyway, is that Staples’s expensive appellate counsel—from a notable national law firm which will remain unnamed in the interest of keeping myself from the receiving end of my very own truth-based libel suit—appears to have dropped the Constitutional ball:

In the rehearing proceedings, Staples has suggested that this exception to the truth defense may never be constitutional. But this argument is not developed now and was not raised in the initial briefing. Accordingly, we do not consider it at this time.

Of course, Justice Tourella was not so much surprised as relieved, as blaming counsel for failing to properly raise the issue gave him an easy out from having to address the obvious Constitutional questions at hand. (Like most appellate courts, the First can dodge Constitutional bullets faster than Neo on amphetemines.)

Which brings me to my final point.

The First Circuit is a pretty reliably conservative collection of judges. As a body, they have spent many lovely afternoons in Boston (as well as their summer home two weeks out of the year in Puerto Rico) wandering the pleasant, well-worn contours of the path of least resistance, taking plenty of time to savor the sweet scent of that peculiar breed of American beauty we call stare decisis along the way. If you’re looking for an appellate court that will spontaneously raise issues that have not been properly brought before it just to strike down a state law as un-Constitutional, get thee to the crazy hippies of the Ninth. I hear those dudes will do anything.

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.

So onward, to the  sack of coal left on the immigration bar’s doorstep this Christmas Eve by the First Circuit in Amilcar-Orrellana v. Mukasey, No. 08-1563. I’ve been thinking about it a lot this week.

The facts, in brief: Jose Amilcar-Orellana crossed the border in 1994 as a refugee from El Salvador and made a life for himself with family in East Boston. About six years later, he witnessed gang members pour a liquid into his apartment building’s entryway and light a match. Amilcar-Orellana immediately called the police, warned his neighbors, and helped to save several children as the building burned. As the only witness to the arson, he then assisted the police in identifying and locating the perpetrators, one of whom came by several days later to threaten him. Despite this obvious danger to himself, Amilcar-Orellana eventually testified in grand jury proceedings against the arsonists (neither of whom were prosecuted for the crime for reasons not mentioned on the record). Several days after his grand jury testimony, the gang sent men to look for him—at which point Amilcar-Orellana prudently decided that it was time to return to El Salvador.

Amilcar-Orellana lived for several months without incident in El Salvador until the arsonists were deported, at which point they sent the gang (never named in the opinion, but it is fair to assume that MS-13 had at least a cameo in all of this) around to look for him. (Gangs have a way of doing that in a country which–size-and-elsewise–is the New Jersey of Central America.) Amilcar-Orellana and his new, newly-pregnant wife fled to Mexico, and then on to the US. They eventually found themselves in asylum proceedings before an IJ in Boston who ruled that they had not been targeted by any particular gang, but only by two individuals with a “grudge.” And “grudges,” of course, do not an asylum case make.

The Board of Immigration Appeals agreed with the IJ on appeal, and further held that “non-confidential informants who have identified gang members, and given information regarding specific criminal activity to law enforcement officials” were not members of a properly-identifiable social group for asylum purposes, especially given that there was no evidence on the record that known informants suffer higher rates of violence in gang-ridden El Salvador than anyone else. (Also not on the record: the color of the sky in El Salvador. How can we be sure?) The First Circuit upheld all of this, as well as the BIA’s earlier finding that his decision to participate in the prosecution did not amount to any kind of a political opinion. He was, after all, only risking his life in an attempt to be sure that justice was done because he believed that it was, in his words, “the correct thing to do.”

As an immigration practitioner, I know that the immigration bar has continued to try to push the edges of asylum based on “social group,” especially as it relates to victims of gang activity, with little success. I can understand why denial was reasonable here under existing asylum standards, even if I respectfully disagree with both the ruling and the outcome; there’s nothing new here.

As an East Boston resident and homeowner, this precedent gives me serious cause for concern. While Eastie’s gang problem has been significantly reduced since the time of these events, it has not been fully eliminated. I do not want my neighbors to have any reason to pause before picking up the phone to report any crime—let alone brazen acts of gang violence—or to feel that our local, state, and/or federal government will not protect them during and subsequent to the prosecution (and possible deportation) of the perpetrators.

But my larger concern is as an American. I simply can’t believe that it is beyond the ability of my government to extend even the most basic protection to a decent man who put his life at risk because “it was the correct thing to do.”

There was an argument (raised for the first time on appeal) that Amilcar-Orellana’s decision to assist law enforcement officials was made due to a fundamental opposition to gang activity (which, sadly, amounts to a political opinion in El Salvador these days), as well as a belief in the superiority and fundamental efficacy of the American legal system and the rule of law. This argument is a stretch (and hasn’t gone over so well when I’ve tried it with IJs in the past), but it’s a solid backup to the social group proposed here.

Beyond these tenuous asylum grounds, the “S” (”a.k.a. ‘Snitch’) visa is the only other potential safe harbor for most people like Amilcar-Orellana who have put themselves at risk due to voluntary participation in most kinds of criminal prosecutions. (T and U visas are also available for victims and witnesses of certain delineated types of crimes not relevant to this post, but that’s another dicussion.) The S is pretty much just what it sounds like: a basic legal status for those who have been or may be materially helpful to  criminal prosecutions which may be permitted to later serve as the basis for adjustment of status to permanent residency.

Unfortunately, as I was once memorably informed by a DHS trial attorney, actually getting an S visa is “climbing Everest.” There’s no application—referrals are made internally by law enforcement—and only 200 may be awarded per year nationally. (Only an additional 50 [!] are allotted for the S-6, a variant specifically available only for anti-terror cases.) Given this limited pool, S visas are by necessity prioritized for the most prominent federal cases–and almost never for state-based prosecutions, even if state law enforcement agents are technically permitted to apply for them.

As interesting a policy discussion as all of this may be, Jose Amilcar-Orellana is a real person with a real decision to make: to voluntarily return to an ugly death in his home country or to rejoin the undocumented underground in East Boston (or, if he’s as smart as I think he is, elsewhere) and wait for ICE to catch up with him and execute an outstanding removal order which will almost certainly amount to a death sentence. He is not the first person to risk his life to do the “correct thing” in the belief that our government would be able to protect him from retaliation, and he may not be the last to die for this mistake.

“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.)