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Anita Ramasastry

Should Courtroom Proceedings Be Covered Via Twitter? Why the Better Answer is "Yes"


Tuesday, December 29, 2009

Celebrities, journalists, and ordinary people alike now use Twitter to keep others informed about their lives and activities. Twitter allows us to get small doses of messaging and up-to-the-minute accounts about our friends, and to reach our "fans" — if we have some.

The appeal of Twitter in the courtroom is natural: Journalists and other court-watchers can instantly report on what is happening in a trial, from the dramatic testimony of a witness, to the behavior of attorneys sparring with a judge.

Yet while some judges allow Twitter, others have banned it. In this column, I will argue that the better approach is to allow this new technology to be used by court watchers. (Notably, the issue of whether jurors should be able to use Twitter and similar applications is separate, and very different; I have commented on that issue in a prior column on jurors' use of Facebook and other applications.)

Over time, I believe that judges will see that there is a significant difference between live courtroom broadcasts — which are generally banned — and the work of journalists, bloggers, and others who are reporting on what they see via Twitter.

Indeed, allowing the use of Twitter in the courtroom is not very different from the status quo: Already, court watchers can transcribe their notes, leave the courtroom, and email what they have seen to a large list of recipients or to a newspaper, or post their reportage directly to a blog.

For these reasons, I believe that in most courtrooms, and in most cases, court watchers should be allowed to use Twitter.

A Tale of Two Federal Courts

Wichita, Kansas-based U.S. District Judge Thomas Marten recently allowed reporter Ron Sylvester, of the Wichita Eagle, to report via Twitter on court proceedings in a trial of six defendants alleged to be Crips gang members. Judge Marten even told the Associated Press, "The more we can do to open the process to the public, the greater the public understanding."

This fall, in contrast, Georgia-based U.S. District Judge Clay Land refused a request by a reporter to use Twitter to give updates on a corruption trial. Judge Land interpreted Rule 53 of the Federal Rules of Criminal Procedure to prohibit the use of Twitter. Rule 53 states: "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."

Judge Land explained his ruling in a short order: "The Court finds that the term 'broadcasting' in Rule 53 includes sending electronic messages from a courtroom that contemporaneously describe the trial proceedings and are instantaneously available for public viewing. Although 'broadcasting' is typically associated with the dissemination of information via television or radio, its plain meaning is broader than that. The definition of 'broadcast' includes 'casting or scattering in all directions' and 'the act of making widely known.'"

In my view, however, Judge Land got it wrong. I believe "broadcasting," in Rule 53, refers to the direct, unmediated audio or video communication of a proceeding's sights and sounds - not of a journalist's own comments, notes, and reflections. Thus, I believe Judge Land's interpretation of Rule 53 is overly broad.

Australia Leaves It To Judges to Decide Whether Twitter Coverage Is Permitted

Australia's court system, too, has weighed in on the use of Twitter in court cases. As of late October 2009, Australia's Federal Court leaves it to individual judges to decide if particular court cases can be covered live on Twitter.

The issue arose after two technology journalists — one from The Australian and another from ZDNet Australia — used Twitter to publish ongoing coverage of a high stakes copyright case brought by 34 content-creating companies against iiNet, a western Australian Internet Service Provider. During the trial, lawyers questioned four senior film executives from the plaintiff businesses - which was very newsworthy.

The Twitter reporting was a first for Australia: The reporters used their own Twitter "feeds" (where they self-identify as journalists). They "tweeted" via laptops, as mobile phones are prohibited in court. Justice Dennis Cowdroy allowed the Tweets once he learned of them: "On the basis that Twittering does not distract or interfere with the conduct of my court, I personally have no objection to its use," he told The Australian.

The Federal Court of Australia also became aware of the situation. Court Chief Executive Warwick Soden then announced that each judge would be able to make his or her own decision on whether or not to allow Twitter reporting

Courts Should Generally Allow Twitter Reporting

As I noted above, my view is that the use of Twitter should be permitted. There is little difference between this kind of virtually-instant communication, and the permitted practices of sending emails and Tweets during court breaks. And there is a significant difference between using Twitter and conveying a live audio feed or webcast of a trial, which is generally banned.

Granted, there may be special circumstances where Tweets should be prohibited — just as certain types of testimony are given "in camera" (in the judge's chambers) away from the public's view. But this should be the exception, rather than the rule.

Let's hope that judges become more comfortable as time progresses. As judges become increasingly comfortable with the use of Facebook, many may also move on to Twitter themselves, and may accept the use of the service in their courtrooms, just as they do in their homes.

Anita Ramasastry, a FindLaw columnist, is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns.

Ramasastry is currently on leave from the University to work for the federal government. Theviews expressed in this column aresolely those of Ramasastry in her personal capacity anddo not necessarily represent the views of any of her employers, past or present.

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