Judge sets Facebook hearing status to 'private'--hmm

Kicking the public out of a courtroom is an option that should be used rarely, and extremely judiciously, which is what makes U.S. District Judge James Ware's decision Monday disappointing.

Ware shuttered the doors to a San Jose, Calif., hearing pitting Facebook and Mark Zuckerberg, probably the world's youngest self-made billionaire, against Harvard University classmates who claim Zuckerberg stole ideas and source code from a similar venture called ConnectU. Ware took this extraordinary step without notice, without a formal request from either side, and without even specifying why it was necessary.

This is at odds with the law of the land--it views courtroom closings as extraordinary events--which is why CNET News.com is evaluating whether to file papers seeking access. Not only should the courtroom not have been closed, but any audio recording or transcript of the proceedings should be released.

It is long-established precedent in the 9th U.S. Circuit Court of Appeals, which is binding in San Jose, that two requirements be met before the public can be barred. First, the public and the press must be given "a reasonable opportunity to state their objections." Second, the "reasons supporting closure must be articulated."

Those requirements were conspicuously absent from Monday's hearing. Neither side formally asked Ware to bar the public. When he asked if there were objections -- and representatives of three different news organizations asked the hearing be delayed to give us a reasonable opportunity to raise them--Ware dismissed the idea. He said only that booting out everyone but the lawyers would be "beneficial" (for whom?).

No less an authority than the U.S. Supreme Court described the presumptive First Amendment right to access court proceedings thusly: "The presumption may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values, and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered."

Ware certainly has experience dealing with complicated technology cases. He showed he was sensitive to civil liberties in his response to the Justice Department's demands to Google. He's presided over spam lawsuits, the RealNetworks case, and the Sex.com lawsuit.

In this case, Facebook got the courtroom closing it wanted, apparently without even having to ask the judge for it. The likely reason for the closure is that ConnectU recently learned of the existence of instant messaging logs from Zuckerberg's computer dating back many years. Facebook attorney Neel Chatterjee of the Orrick law firm has been insistent on keeping these and scores of other documents confidential--the phrase "under seal" now appears no fewer than 234 times in the official court docket.

No doubt Chatterjee is zealously protecting Zuckerberg's interests. But it is unusual for any attorney to claim that so many documents are highly confidential, which prompted ConnectU to request that the judge "limit materials filed under seal." In that and continued public access to proceedings in this case, satisfying the appearance of justice demands no less.

[mrwildman1]

Have you seen what kind of crap the 9th U.S. Circuit Court of Appeals has pulled in the last 20 years? why would this be any different? activist judges!!! kick them out. it's not legal, and they don't hold the law up anyway! corrupt.

[The_Decider]

What are you babbling about? What is not legal? Banning the press? If so you shouldn't slam the very court that set precedence to minimize courts being closed.

[benjaminstraight]

Judge's discretion.

[declan00]

Did you actually read the article? One excerpt:

It is long-established precedent in the 9th U.S. Circuit Court of Appeals, which is binding in San Jose, that two requirements be met before the public can be barred. First, the public and the press must be given "a reasonable opportunity to state their objections." Second, the "reasons supporting closure must be articulated."

[BtmnHatesRbn]

Un-Constitutional, since it's in Federal court. Pull out the Constitution and tell me where is specifies the Marxo-Fascism that these mentally ill (Mike Savage defintion) judges can do this? To quote Tom Jefferson, "If it's not in the Constitution, it can't be done."

[wowza3]

yea...bad example considering the constitution never said he had the right to purchase land to more than double the size of the country, never said he could put an embargo in place either.

[meski.oz]

"a reasonable opportunity to state their objections." - asking for a delay is not stating an objection, however common it might be for lawyers to do this. I say do it more. Making a circus out of courtroom hearings is not what they are for.

[saintseminole]

"Making a circus out of courtroom hearings" is in no way analogous to covering a trial or a hearing. All courts in the U.S. are open to both the public AND by default, the media. As stated in the story above, the judge usually has to have a damn good reason to close a court hearing to the public.

Keep in mind that when the media is kicked out of a court room, then "the public" is kicked out too. When court records are sealed to the press, they're also sealed to average Joe Citizen.

I can't believe anyone honestly wants to live in a country where court proceedings and documents aren't available for public scrutiny. (Other than judges and lawyers, I mean)