January 06, 2010
Courtroom Coverage in the Internet Era--a Conference Recap
By Eric Goldman
In November 2009, I spoke at an interesting and unusual event sponsored by the Ninth Circuit Public Information and Community Outreach Committee, a group I'd never heard of before. The group regularly sponsors a conference called the "Northern California Federal Courts Media Conference," which brings together journalists, judges and court administrators to talk about media coverage of the federal courts. This year's event was entitled "New Media in the Courtroom: How Blogs, Twitter and Social Media Are Changing Legal Reporting." You can watch some of the conference proceedings here.
Broadcasting Courtroom Proceedings
The OJ Simpson trial in the early 1990s reshaped media coverage in the courtroom. The trial was documented exhaustively by the cameras and left many with the perception that the judge and attorneys mugged for the in-courtroom cameras (although Kelli Sager's position is that the mugging did not decrease when the cameras were off). Shortly after the OJ trial, the federal courts (and many state courts) adopted ruled prohibiting recording and broadcasting of events within the courtroom. The federal rules even take the discretion out of district court judges' hands to waive the rule if they choose.
As an example of the anti-broadcasting rules, Federal Rules of Criminal Procedure 53 says:
Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.
This rule is fairly easily applied to Big Media representatives who show up with bulky TV or still cameras and are repeat players known to court administrators. But what does it mean to "broadcast" courtroom proceedings in an era where cheap and ubiquitous technological devices have turned every courtroom audience member into a potential broadcaster? In some courtrooms, judges are excluding cellphones and potentially even laptops (Judge Illston says she allows computers unless the typing noise is too distracting). Even more extreme, in November, a district court judge barred a journalist from live-Twittering the proceedings via his Blackberry because the judge took the position (wrongly, IMO) that Twittering is a prohibited "broadcasting" of the event. See US v. Shelnutt, 2009 WL 3681827 (M.D .Ga. Nov. 2, 2009). The judge said:
the contemporaneous transmission of electronic messages from the courtroom describing the trial proceedings, 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. Therefore, this type of broadcasting is prohibited under Rule 53.
The illogic of this rule is overwhelming. Is one Twitter post enough? Does it matter if the poster has no followers? What if the posts are impressions and not factual descriptions? More importantly, does it change the analysis if the reporter writes his posts contemporaneously and then uploads them at the breaks or the end of the day? It seems like it would in the Shelnutt case, but this is silly--it's the exact same content, just posted on a delay.
I don't want to speak for others, but my impression is that none of the conference attendees supported the current categorical ban against courtroom broadcasting. Obviously the journalists and First Amendment types don't like it; but neither did the judges, who would rather have discretion over administrating their courtrooms. Further, a comprehensive recording of trial proceedings could help appellate review as well as future researchers trying to understand a case's context.
There was some hope expressed at the conference that the no-broadcasting rule would be relaxed in the next year or two. In my opinion, the rule has long outlived any usefulness it had. However, Judge Illston sounded a cautionary note when she said that the court reporter lobby is "a force to be reckoned with." Perhaps economic protectionism will make the deregulation process harder than it should be.
We discussed the allocation of scarce resources among potential media sources, such as courtroom seats when audience demand exceeds room capacity. Where encountering scarcities, judges inevitably draw lines between "credible" journalists and other media representatives, even though they don't want to make those distinctions--and no one else wants them to make those distinctions either. For now, my impression is that judges treat Big Media better than bloggers when doling out scarce resources, although as Big Media fades away and citizen journalists continue to prove their credibility and become repeat players, I could see this changing. Obviously the better solution is to eliminate scarcity when possible so every media representative can get equal treatment. Live broadcasting of courtroom proceedings would be a huge step forward in alleviating any seat scarcity issues.
Juror Exposure to Case Information
We also discussed juror exposure to case information. The rule is simple--jurors are supposed to consider only evidence presented in court. In practice, this rule is out-of-sync with modern information flows and people's temptation to self-educate by doing their own research. Certainly that's how I usually proceed when I'm trying to learn something new. I do Google searches and often look through multiple search results, and when I can't do that, I feel bereft. So walling off judicial proceedings both from modern life and people's normal learning processes is fundamentally anachronistic. Evan Brown has more to say on this topic (and supports the anachronism).
Nevertheless, judges are trying to restrict the infoglut by giving jurors increasingly long lists of things they cannot do while in a trial. Not only does this include restrictions on seeking out case information, but it also includes enjoying technological devices that may passively expose the juror to case information. Taken to an extreme, this could include reading one's email, because someone might inadvertently email case information to the juror. As Judge Illston described it, the restriction lists are like trying to sequester jurors without sequestering them--in other words, cut off their information flows without physically restraining them, Jennifer Granick suggested that judges may need to designate more alternate jurors so that the inevitable juror slip-ups don't require a complete process restart.
The de facto info-sequestration raises some interesting questions about whether depriving jurors of their normal tools actually degrades jurors' decision-making. It reminds me a little of the mental confusion that can occur when law professors force law students to take law school exams using hand-written bluebooks when all of the students spent the entire semester learning the material and expressing themselves via computer. Carol Williams from the LA Times also pointed out that info-sequestration poses problems for potential jurors who need to use the Internet for professional and personal reasons. Ultimately, these folks may be removed from the jury pool, directly or because they try to wiggle out of the obligation, and either way this change in the jury pool could have other unwanted consequences.
This discussion suggested a sure-to-work way to get kicked off a jury or avoid being empaneled in the first place--simply search for case information using your mobile device while you're waiting, and off you go. Of course, if they judge instructs you not to do that, it would be inappropriate and potentially punishable to disregard the judge's instructions.
A related issue: In many cases, testifying witnesses are not supposed to monitor trial proceedings. However, with the advent of real-time reporting on cases, it's possible to do so remotely--and frequently judges do not have a chance to admonish witnesses until they appear in the courtroom, which might be too late. Judges can tell lawyers to instruct their witnesses not to monitor the trial proceedings, but lawyers might drop the ball or witnesses might not heed the warning (especially if the witness is adverse or would give more credit to a warning directly from the judge). Lawyers cross-examining a witness might increasingly ask the witness what research he/she has done to learn more about the trial proceedings.
The interplay between court administration and media/blogger coverage is an interesting, rich and multi-faceted topic. The conference covered a lot of ground but left many questions open. For more reading about the conference, see Joyce Cutler's BNA recap and John Steele's live-blogging of the first session.
Some recent topically related articles include Rachel Lee, "Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era" and the recently issued and very useful CMLP Guilde to Live-Blogging and Tweeting from Court.
Media Alerts Initiative
In a separate but related announcement, Judge McKeown previewed the new Media Alerts on Federal Courts of Appeals, where academics will select and summarize key federal appellate court rulings. The site describes its mission as:
This website is designed to provide reporters, lawyers, educators, and the public with prompt, accurate, unbiased information about newsworthy and legally significant cases pending in and decided by the Federal Courts of Appeals. Our goal is to assist the media’s efforts to provide timely and extensive reporting about federal court decisions.
I think this is a great objective, although I wonder how useful media folks will find the website, especially given that it is effectively competing with existing blog coverage. I also wonder how invested the academics and their students will be in this endeavor. For example, just looking at the Ninth Circuit roster, the featured "upcoming cases" have an argument date of Dec. 14. Hmm....
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