From the Boston Bar Journal- (Not) Wired: Electronic Coverage in the Federal Courts

By Judge Nancy Gertner (Ret.)


I supported electronic coverage of court proceedings throughout my career, both as a lawyer — when I tried high profile cases in state court with camera coverage — and during the seventeen years that I was a federal judge — when I did not because of the federal ban on cameras.  I understand the concerns of the opponents, but they pertain to how to implement electronic coverage, not whether.  In fact, there is something quaint about the way some still characterize the debate — “cameras in the courtroom.”  In the 80’s, cases referred to the disruptive “glare” of the television lights and bulky cameras.  Now a handheld video camera, one hidden in the courtroom wall (I had a security camera behind a hollowed out law book), or even a smart phone can do the trick.  In the 80’s, with CourtTV broadcasting “gavel to gavel” coverage of trials, the debate was about televising proceedings.  

Today, we talk about streaming videos over the Internet, or posting them on electronic dockets or court websites, even as the federal court posts transcripts and pleadings.  More stunning, only a short time ago reporters covered court proceedings with paper and pen.  Today they blog or “tweet” minute-by-minute accounts as in the recent trial of James “Whitey” Bulger.  (Gone is the “Perry Mason” moment of my first murder case, when, after a dramatic development, members of the press rushed out to find the public telephones and phone in their stories.)

To say I chafed at the federal ban on cameras in an understatement.  I testified before Congress in favor of legislation giving judges discretion to allow electronic coverage, with representatives of the Judicial Conference of the United States on the other side.  In Sony BMG v. Joel Tenenbaum, believing that the District Court’s rules permitted it, I allowed “narrowcasting” a legal argument to a specific publicly available web site.  The case pitted the record companies against college students accused of illegally downloading copyrighted music from the Internet.  I said: “This case is about the so-called Internet Generation – the generation that has grown up with computer technology in general, and the Internet in particular….  It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if not … exclusively, over the Internet.”  The First Circuit reversed, in part based on a rule buried in the archives of the First Circuit Judicial Council, which no party had noticed before.

Read the full article at the Boston Bar Journal here.