Twitter in the Courtroom: Do You Object?

By Regina Judge

Abstract

Twitter is a powerful communication tool that allows for the instantaneous dissemination of information to millions of people across the globe. Journalists have begun to use it to report on the day-to-day occurrences of trials in courtrooms across America. It provides a faster, more efficient means of transmitting information to the public concerning the judicial system. Some see it, however, as a threat to defendants right to a fair trial. Apprehension stems from the fact that it could be distracting for jurors and other trial participants to view an individual in the courtroom using their cell phone to report on a case. Jurors might be preoccupied with reporters pecking away at their phones or laptop computers rather than with the testimony at hand.

Keywords: Twitter, social media, reporter, microblogging, courtroom, hand-held electronic device

 

  1. INTRODUCTION

Twitter is a social media website that allows people to communicate with others around the world instantaneously. It is a microblogging service that permits one to post information (tweets) up to 280 characters in length, as well as pictures, video, and website links.[1] Users can follow one another to keep abreast of the information the other has tweeted. Tweets can be reposted (retweeted) as well, thereby making the content even widely accessible. Although this is an ingenious way to communicate, it can unfortunately adversely affect the integrity of the courts.[2] Whether the press should be allowed to use Twitter in the courtroom is a critical issue. “Critics are concerned that play-by-play updates from the courtroom could turn a trial into a media circus compromising a defendant’s due process rights.”[3] “Proponents of this type of live, real-time broadcasting believe that allowing journalists to tweet updates from court results in the faster, more efficient transmission of information to the public and enhances the transparency of the criminal justice system.”[4] This paper examines both positions, in an effort to explore this topic.

Public trials are vehicles through which citizens are protected against the abuses of government. Since most people cannot attend these proceedings on a daily basis, the press serves as their eyes, ears, and correspondents. Their role can only be accomplished, however, when trials are accessible. Journalists’ usefulness rests on their ability to be present, observe, document, and relay information. Their job is important because they educate through written accounts of their observations. Technology like Twitter has made reporting much easier. It provides for up-to-the-minute access and dissemination of information. Text or images can easily be uploaded in seconds. The availability of an Internet connection translates into instantaneous access.

The traditional method of news reporting consists of a journalist taking handwritten notes that are combined to produce an article that is later typed on a computer. After editing, the article is published either in print or online. Today, journalists have direct access to the public via social media networks. This means of disseminating news provides moment-by-moment reporting. It also allows readers to comment on what is written and to pass the information along to other social media users, thereby providing the reporter with an even larger audience.

Although the Internet is an efficient method of reporting, it is a method that reporters can only make use of outside of the doors of many courtrooms. Journalists are prohibited from using social media websites like Twitter to report within some courtrooms during a trial’s progression.

The use of Twitter in the courtroom is a matter that touches upon many constitutional issues. It involves the press’s First Amendment right of free speech, a defendant’s Sixth Amendment right to a public trial, and a defendant’s Fifth and Fourteenth due process guarantees. “Even though the trend is becoming more prevalent, the current law does not properly address whether reporters should be allowed to tweet…”[5] Since the United States Supreme Court has not ruled on this matter, judges have discretion as to whether to allow or exclude Twitter use.

 

  1. STATE COURT REVIEW

Live courtroom media coverage using emerging technologies is commonplace in many state courts.[6] Often, judges will consider a set of enumerated guidelines and any other factor they deem relevant when deciding whether to allow broadcasting in their courtroom. In California a jurist must consider some of the following criteria:

  1. The importance of maintaining public trust and confidence in the judicial system;
  2. The importance of promoting public access to the judicial system;
  3. The parties’ support of or opposition to the request;
  4. The nature of the case;
  5. The privacy rights of all participants in the proceeding, including witnesses, jurors, and victims; …”[7]

These standards help ensure that journalists are able to serve as messengers and that the court’s integrity is upheld. This mandate is followed in New York state courts as well: broadcasting is allowed as long as “[it does not] [detract] from the dignity or decorum of the courtroom or courthouse.”[8] No matter the technology, judges retain control at all times and can impose restrictions whenever necessary. The use of Twitter in Pennsylvania, Connecticut, and Maryland courts also demonstrate that the news media can use technology in a reasonable manner to gather news and report on proceedings.[9]

 

III. FEDERAL COURT REVIEW

Broadcasting bans include the use of Twitter as a means of information delivery in many Federal courts.[10] United States v. Shelnutt[11] is a case that involved a Columbus Ledger-Enquirer reporter who requested that he use a handheld electronic device to send tweets via his newspaper’s Twitter page. Federal District Court Judge Clay Land denied his request, citing Rule 53 of the Federal Rules of Criminal Procedure.[12] Rule 53 states, in relevant part, “[T]he court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”[13] Judge Land concluded that the drafters of this rule intended to extend its reach beyond the transmission of trial proceedings through television and radio.[14] Thus, Twitter use was considered broadcasting and therefore prohibited.

The United States Supreme Court has declared that the prohibition against broadcasting, as provided by Rule 53, does not restrict the freedom of the press under the First Amendment,[15] since reporters can always utilize the old pen and paper method to communicate. Conversely, access to the court is still available to them. “[The] First Amendment guarantees that journalists may attend, listen, and report on judicial proceedings[; however], this right does not extend to the right to televise, record, and broadcast trials.”[16] The definition of broadcasting describes the sending of electronic messages from a courtroom that contemporaneously describes the trial proceedings and are instantaneously available for public viewing.[17] “In reaching its decision, the Court determined that, although the term broadcasting is typically associated with the dissemination of information via television or radio, its plain meaning is broader.”[18] It determined that the contemporaneous transmission of electronic messages from the courtroom and the dissemination of those messages in a manner such that they are widely and instantaneously accessible to the general public falls within the definition of broadcasting as used in Rule 53.[19]

Some district court judges have allowed journalists to tweet in their courtrooms despite Rule 53. They apply Rule 57(b) to exercise their discretion and allow reporters to tweet. The rule states that judges may regulate any practices occurring in their courtroom so long as that practice is consistent with federal law and the local rules of the district.[20] Accordingly, district courts in Kansas and Utah have amended their court rules to allow journalists to use cell phones and laptop computers to report from the courtroom.[21] The Utah rule goes so far as to create a presumptive right for news reporters to use electronic media to report on court proceedings.[22] Pursuant to Rule 53(b), Kansas District Court Judge Thomas Marten permitted Wichita Eagle reporter Ron Sylvester to tweet during a trial for racketeering.[23]

More judges have recognized the popularity and effectiveness of the use of cellphone and tablets to report what happens during a trial. For this reason, live blogging has become routine. As early as February 2010, the Judicial Council for the United States Court of Appeals for the Ninth Circuit authorized judges throughout that circuit to allow reporters to provide live blogging and other text transmission in criminal cases.[24] Likewise, United States District Judge for the Northern District of Illinois, James Zagel, has permitted reporters to live blog with Twitter.[25] In the Knox County murder trial of Nicholas Sheley, Circuit Judge James B. Stewart permitted Twitter use. He described the experience as “an enormous success.”[26] Judge Stewart explained that tweeting allowed the public to see the judicial process at work. His remark compliments Twitter advocates who state that microblogging is the equivalent to more traditional means of reporting and that it helps to improve transparency and public access to courts.[27]

 

  1. ARGUMENTS IN FAVOR OF TWITTER USE

One of the overarching reasons that many support the use of Twitter in the courtroom is because it provides immediate access to courts of law. “Live blogging allows citizens instant access to the judiciary, letting them follow and discuss what is happening inside the courtroom and thereby strengthening public trust in the system as envisioned by the First Amendment.”[28] Another reason identifies the educational value provided. “…Tweets effectively [teach] citizens about the judicial process as it unfold[s].”[29]

Another argument in favor of courtroom tweeting is the fact that the Internet has had a negative effect on print media. People now turn to the Internet for news on the judicial system, technology, politics, etc. For this reason, many newspapers have ceased operations.[30] “Their absence therefore necessitates that websites like Twitter be used to fill their void.”[31] Twitter’s unlimited capacity means that reporter scan tweet as much as they like throughout the day or evening. The use of blogging tools like Twitter has provided more trial coverage for readers who are interested in knowing more about a lawsuit, but who previously would have been unable to get that information as traditional newspapers limit the amount a reporter can write about a case.[32]

Twitter supporters say that there is no difference between providing news via traditional print and contemporary electronic methods and therefore journalists should be given the option of deciding how they wish to report trial information. They see no difference between the two and therefore say that each should be provided equal weight since they bring about the same result. Federal Judge Thomas Marten agrees with this assessment and recently commented that he did not “see any difference between [a journalist using Twitter and one sitting in the courtroom taking notes]. In fact, it is surprising how much the Twitter world resembles that of a newspaper…” [33] Judge Marten has allowed reporters to post live Twitter updates straight from several trials over which he has presided. He comments, “The fact that tweets were posted throughout the day allowed the public to follow the trial as it progressed. Through Twitter, people will have the opportunity to follow and discuss what is happening inside our legal system as it is happening.”[34] One judge praises Twitter for lessening the noise and distractions in his court. Judge James B. Stewart explains that tweeting actually lessened disturbances typically associated with reporters’ exiting and entering the courtroom to send communications or make phone calls.[35]

 

  1. ARGUMENTS AGAINST TWITTER USE

Many opposed to broadcasting courtroom proceedings have argued that allowing reporters to tweet will harm participants’ due process and privacy rights. The fundamental concern is that tweeting will result in too much transparency. An individual’s willingness to testify before a judge or jury may be impacted by the scope of media coverage and will therefore affect an individual’s willingness to file a claim or testify.[36] Claimants and witnesses may shy away from coming forward for fear that their name, reputation, or testimony could be the subject of a tweet that results in public ridicule.

Concern over the tweeting of sensitive information during the course of a trial is another argument against its use. This apprehension was apparent during the criminal prosecution of Jerry Sandusky. Presiding Judge John Cleland agreed to allow reporters to tweet news updates. He later reversed that decision after confusion over what he meant in his prohibition against tweeting verbatim testimony.[37] Fearing that improper information would be disseminated, the judge subsequently withdrew his original consent.[38] “Reporters were thereafter allowed to possess and use electronic devices but not to transmit any type of communication from the courtroom, they could not therefore tweet.”[39]

Further criticism against the use of Twitter stems from apprehension that allowing broadcasting during trial will result in the obstruction of justice through juror misconduct.[40] Judges instruct jurors that they are barred from conducting outside research regarding the trial they are reviewing.[41] This research includes watching television news programs or reading an article about the trial they are hearing. In this technological age, that admonition must also include using search engines, websites, or blogs to acquire information as well. Unfortunately, although warned against it, some jurors use the Internet while serving and can be exposed to inappropriate influences. The fear is that jurors will follow reporters and obtain their views of the evidence presented and thereby be persuaded by their opinions and observations and not think independently about the evidence presented during the trial. Twitter could be dangerous in this scenario because additional information about the trial could prejudice the jurors’ opinions, thus jeopardizing the defendant’s due process rights.[42]

Another concern is that witnesses may see news tweets about the trial where they will appear, compromising their ability to testify.[43] In order to cope with the extreme accessibility of Twitter and the possibility that media tweets may be re-tweeted to a juror’s or witness’s Twitter account, judges have either banned live broadcasting via Twitter or tried to restrict its use by jurors and witnesses.[44] With the addictive nature of social media, there is no guarantee that jurors or witnesses will follow a directive to refrain while serving. An illustration is provided with a burglar who was caught because he left a digital trace for police after logging onto his Facebook account from his victim’s computer.[45] A jury consultant commented on this incident by stating, “[If] a burglar can’t resist checking his Facebook status while in the high-adrenaline process of burglarizing your home … what’s to stop a juror or witness during courtroom tedium?”[46]

A fundamental argument against reporters’ use of Twitter in the courtroom identifies the disruption it could cause to the daily proceedings. This argument is similar to the one used against the use of cameras in the courtroom, “Cameras cause physical and psychological disruptions in the courtroom that jeopardize the fair administration of justice.”[47] “Many judges view electronic devices as the same type of threat. Their goal in banning these items mirrors those held with camera bans; preventing members of the press from interfering with the business of the court and with the right to a fair trial.”[48] It could be distracting for jurors and other trial participants to view individuals in the courtroom using their cell phone or other electronic device. Jurors might be preoccupied with reporters pecking away at their phones or laptop computers, rather than with the testimony at hand. For this reason, the Illinois state court judge presiding over the 2012 trial of William Balfour, the defendant accused and later convicted of killing singer-actress Jennifer Hudson’s family members, told reporters they could not tweet or post on Facebook from inside the courtroom.[49] “[A]ccording to a court spokesman, the judge ‘didn’t want constant typing on cell phones to distract jurors and other courtroom participants.’”[50]

 

  1. COMPROMISES

Some judges have identified the effectiveness of Twitter as a communication tool and have therefore allowed its use. They see the need to balance the public’s desire to receive information with the court’s need for decorum. Jurists, therefore, have sought to strike a balance. Federal Judge Federico Moreno of the United States District Court of the Southern District of Florida prohibited reporters from posting live via Twitter while directly in the courtroom but did allow them to step into the hall to tweet and return. This approach serves as a middle ground for judges who advocate for more open courts but are also sensitive to the possible disruption of using electronic devices while in a courtroom.[51] Iowa Federal Judge Mark Bennet allowed a reporter to micro-blog about a tax fraud trial, so long as the reporter sat toward the back of the courtroom. Judge Bennet explained that sitting in the back of the courtroom would ensure that the reporter would cause minimal distraction while typing.[52] Other judges have allowed Twitter use, while imposing some basic restrictions on tweeting, including requiring that any cameras, audio recording, and sound creating functions on the reporters’ devices be disabled.[53]

 

VII. CONCLUSION

The arguments on both sides of this issue are compelling. Advocates for the use of Twitter view it as a vehicle for the public to gain access to the courts and therefore to become educated and informed. It is seen as an instrument that reinforces transparency and promotes public trust. As one Illinois court stated, “what goes on in court is the business of the people. Courts function best and most effectively when they are available for public view. When courts are open, their work is observed and understood, and understanding leads to respect.”[54] Microblogging serves these important goals. Tweeting updates from court results in faster, more efficient transmission of information to the public.

The opposition is concerned that Twitter threatens the fair administration of justice. “Tweeting from within the court may physically disrupt judicial order and decorum, impede proper fact finding, and jeopardize security.”[55] It could lead to juror and witness misconduct, threatening the due process rights of the accused.

Many courts have struck middle ground. They have outlined measures that allow reporters to use Twitter in the courtroom but also protects the privacy interests of court participants and lessens the impact on jurors.

It is abundantly clear that social media tools like Twitter allow people to stay connected and to have instantaneous conversations about what is happening. Whether the courtroom is an appropriate place for this conversation continues to be the subject of debate.

References

[1] Serena Larson, “Welcome to a World with 280-Character Tweets.” CNN Business, Nov. 7, 2017, https://money.cnn.com/2017/11/07/technology/twitter-280-character-limit/index.html

[2] Emily M. Janoski-Haehlen, The Courts Are All A ‘Twitter’: The Implications of Social Media Use in The Courts, 46 Val. U. L. Rev. 43, 44 (2011).

[3] Jamie K. Winnick, A Tweet Isn’t Worth a Thousand Words: The Dangers of Journalists’ Use of Twitter to Send News Updates From the Courtroom, 64 Syracuse L. Rev. 335, 337 (2014).

[4] Id.

[5] Adriana C. Cervantes, Will Twitter Be Following You in the Courtroom? Why Reporters Should Be Allowed to Broadcast During Courtroom Proceedings, 33 Hastings Comm. & Ent L.J. 133, 136 (2010).

[6] As Witnesses Sing, Jurors Twitter Tweets, CBS News, Mar. 6, 2009, https://www.cbsnews.com/news/as-witnesses-sing-journos-twitter-tweets/).

[7] 2019 California Rules of Court. R 1.150. (e)(3).

[8] Winnick, supra, at 345.

[9] Id. at 346.

[10] Validity, Propriety, and Effect of Allowing or Prohibiting Media’s Broadcasting, Recording, or Photographing Court Proceedings, 14 A.L.R. 4th 121, § 3 (2009).

[11] U.S. v. Shelnutt, 2009 U.S. Dist. LEXIS 101427, at *1 (M. D. Ga., Nov. 2, 2009).

[12] Fed. R. Crim. at 53.

[13] Id.

[14] Cervantes, supra, at 142.

[15] Id. at 140.

[16] Unites States v. Hastings, 695 F.2d 1278 at 1280 (11th Cir. 1983).

[17] Shelnutt.

[18] Id.

[19] Id.

[20] Fed. R. Crim. at 57.

[21] Cathy Packer, Should Courtroom Observers Be Allowed to Use Their Smartphones and Computers in Court? An Examination of The Arguments, 36 Am. J. Trial Advoc. 573, 591 (2013).

[22] Id.

[23] As Witnesses Sing, Juror’s Twitter Tweets, supra.

[24] Esther Seitz, #Oyez, #Oyez: Why Judges Should Let Reporters Tweet From the Courtroom, 101 Ill. B.J. 38, 41 (2013).

[25] Id. at 41.

[26] Id. at 42.

[27] Emily Ittner, Technology in the Courtroom: Promoting Transparency or Destroying Solemnity? 22 CommLaw Conspectus 347, 363 (2014).

[28] Id. at 40.

[29] Id. at 41.

[30] Lili Levi, Social Media And The Press, 90 N.C. L. Rev. 1531, 1537 (2012).

[31] Id. at 1540.

[32] Cervantes, supra, at 152.

[33] Nick Bilton, A Tech World That Centers on the User, N.Y. Times, Sep. 13, 2010, at B1.

[34] Cervantes, supra, at 157.

[35] Seitz, supra, at 41.

[36] Cervantes, supra, at 151.

[37] Winnick, supra, at 347.

[38] Id.

[39] Ittner supra, at 367.

[40] Cervantes, supra, at 153.

[41] Daniel J. Ain, The Tweeting Juror: Prophylactic and Remedial Methods for Judges to Manage the Risk of Internet-Based Juror Misconduct, 98 Mass. L. Rev. 16, 16 (2016).

[42] Winnick, supra, at 347.

[43] Id.

[44] Id. at 348.

[45] Id.

[46] Winnick, supra, at 348.

[47] Packer at 578.

[48] United States v. Cicilline, 571 F. Supp. 359, 361-62 (D.R.I. 1983).

[49] Michael Tarm, Jennifer Hudson Family Murders: Jury Selection to Begin, Huffington Post, Apr. 5, 2012, http:// http://www.huffingtonpost.com/2012/04/06/jennifer-hudson-family-mu_n_1405442.html.

[50] Id.

[51] Cervantes, supra, at 155.

[52] Id. at 156.

[53] Seitz, supra, at 41.

[54] Id.

[55] Packer at 584.

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