1 CAMERAS IN THE COURTROOM 2.0: HOW TECHNOLOGY IS CHANGING THE WAY JOURNALISTS COVER THE COURTS By CHRISTINA LOCKE FAUBEL A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT O F THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2013
2 2013 Christina Locke Faubel
3 To Harris
4 ACKNOWLEDGMENTS I have had the benefit of a wonderful mentor and adviser Professor Sandra Chance for nearly 10 years. She has seen me through my first days in graduate school, fresh from a reporting job and eager to learn all I could about freedom of information, through law school and to this current milestone in my career I relied on her encouragement and support to make the leap from law firm life back to school, and have never looked back. In the doctoral program, I was able to gain invaluable s lead. She has led me through the dissertation process and I am so thankful for all of her time, energy, and amazing ideas. Likewise, the rest of my committee Dr. Johanna Cleary, Professor Lyrissa Lydsky, and Dean John Wright have made this process a su ccess and I am forever grateful for their time and attention to my humble work. I would also like to thank the other support system I found in Weimer Hall, a group of friends and colleagues whose support and knowledge has made completion of this goal po ssible: Ana Klara Anderson, Courtney Barclay, Wendy Allen Brunner, Jody Hedge, Alana Kolifrath, Kimberly Lopez, and Kristen Rasmussen. I am also indebted to my colleagues at the Northern District of Florida, who have encouraged me while working full time and completing my dissertation: the Hon. Gary R. Jones, Liz Brown, Amisha Sharma, and Lita Tinaya Miller. Finally, I thank my family and friends who have seen me through this journey, especially my husband, Harris, and my mother, Stephanie Locke. Along with my in laws Jim and Shell e y Faubel and best friends Amy Saavedra, Judy Keebler, Miriam Hill, and Stephanie Gocklin, they stuck by my side this past year as I juggled dissertation
5 writing and wedding planning. I am truly lucky to have such an amazing s upport system.
6 TABLE OF CONTENTS page ACKNOWLED GMENTS ................................ ................................ ................................ .. 4 LIST OF TABLES ................................ ................................ ................................ ............ 9 LIST OF FIGURES ................................ ................................ ................................ ........ 10 ABSTRACT ................................ ................................ ................................ ................... 11 CHAPTER 1 INTRODUCTION ................................ ................................ ................................ .... 13 New Technology and the Courts ................................ ................................ ............. 14 Statement of Purpose and Research Questions ................................ ..................... 15 Methodology ................................ ................................ ................................ ........... 17 Dissertation Outline ................................ ................................ ................................ 19 2 FREE PRESS, FAIR TRIAL AND CAMERAS IN THE COURTROOM ................... 21 What is a Free Press? ................................ ................................ ............................ 21 Freedom from Prior Restraints ................................ ................................ ......... 25 Freedom from Compelled Content ................................ ................................ ... 27 Freedom to Gather News ................................ ................................ ................. 28 Freedom to Criticize the Government ................................ ............................... 30 What is a Fair Trial? ................................ ................................ ................................ 33 Cameras in the Courtroom ................................ ................................ ...................... 45 The State of the Law Today ................................ ................................ .................... 52 3 LITERATURE REVIEW ................................ ................................ .......................... 55 Social Sciences Approaches to Media Coverage of the Co urts .............................. 55 Legal Approaches to Media Coverage of the Courts ................................ .............. 6 0 Technological Change and Live Coverage of Court Proceedings ........................... 68 4 TRADITIONAL CAMERAS IN THE COURTROOM ................................ ................ 76 50 State Survey of Cameras in the Courtroom ................................ ....................... 76 Cameras in Federal Courts ................................ ................................ ..................... 96 5 MOBILE TECHNOLOGIES IN THE COURTROOM ................................ ............... 99 State Law and Mobile Technology in th e Courts ................................ ................... 100 Arkansas ................................ ................................ ................................ ........ 100 California ................................ ................................ ................................ ........ 100
7 Connecticut ................................ ................................ ................................ .... 101 Delaware ................................ ................................ ................................ ........ 104 District of Columbia ................................ ................................ ........................ 104 Florida ................................ ................................ ................................ ............ 104 Hawaii ................................ ................................ ................................ ............. 114 Maine ................................ ................................ ................................ .............. 114 Michigan ................................ ................................ ................................ ......... 114 Nevada ................................ ................................ ................................ ........... 115 New Hampshire ................................ ................................ .............................. 115 Pennsylvania ................................ ................................ ................................ .. 116 Rhode Island ................................ ................................ ................................ .. 120 Utah ................................ ................................ ................................ ................ 121 Vermont ................................ ................................ ................................ .......... 121 Federal Law and Mobile Technolo gy in the Courts ................................ ............... 122 In re Sony BMG Music Entertainment: Webcasting Motions Hearing ............. 122 Hollingsworth v. Perry : Streaming of the Proposition 8 Civil Trial ................... 125 United States v. Shelnutt : Tweet Coverage of a Federal Criminal Trial .......... 127 Instances of Permitted Electronic Coverage in Federal Courts ...................... 128 United States v. Libby (D.D.C.) ................................ ................................ 129 United States v. Nacchio (D. Colo.) ................................ ......................... 131 United States v. Miell (N.D. Iowa) ................................ ............................ 133 United States v. Fumo (E.D. Pa.) ................................ ............................. 136 United States v. Harris et al. (D. Kan.) ................................ ..................... 139 United States v. White (W.D. Va.) ................................ ............................ 140 6 ANALYSIS AND CONCLUSION ................................ ................................ ........... 142 Research Foundations ................................ ................................ .......................... 143 Summary of Findings and Answers to Research Questions ................................ 150 Research Question 1: How do current laws treat mobile technology tools that enable the contemporaneous dissemination of photos and information captured by journalists in a legal proceeding? .......................... 150 Research Question 2: What would a model court policy on mobile technology use by journalists in trial courts look like? ................................ 151 Best Practices for Journalists ................................ ................................ ......... 154 Conclusions and Recommended Future Research ................................ .............. 157 APPENDIX A: MODEL POLICY ................................ ................................ .................. 159 APPENDIX B: BEST PRACTICES FOR JOURNALISTS ................................ ............ 161 LIST OF REFERENCES ................................ ................................ ............................. 162 Articles ................................ ................................ ................................ .................. 162 Books ................................ ................................ ................................ .................... 166 Cases and Related Material ................................ ................................ .................. 167 Internet Sources ................................ ................................ ................................ ... 170
8 Periodicals and Reports ................................ ................................ ........................ 171 Statutes and Related Material ................................ ................................ ............... 174 BIOGRAPHICAL SKETCH ................................ ................................ .......................... 180
9 LI ST OF TABLES Table page 6 1 Overview of state law of cameras in the courtroom ................................ ........ 148
10 LIST OF FIGURES Figure page 5 1 Excerpt from the Time Union ......... 108 5 2 Excerpt from the Orlando Sentinel ny trial. .......... 112 5 3 Screenshot from the Orlando Sentinel the day of the verdict. ................................ ................................ ..................... 113 5 4 Feb. 20, 2007 screenshot from firedog trial. Full post available at http://firedoglake.com/2007/02/20/libby live zeidenbergs prosecution summation two/. ................................ ..................... 130 5 5 Screenshot from the TheRacetot heBottom.org blog during the Nacchio trial. 132 5 6 ................................ .. 135 5 7 Screenshot o via blog and Twitter showing that deliberations resumed at 10;41 a.m. and by 11:27 a.m., a verdict had been reached. ................................ ................................ ................................ .......... 138
11 Abstract of Dissertation Presented to the Graduate School of the Univ ersity of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy CAMERAS IN THE COURTROOM 2.0: HOW TECHNOLOGY IS CHANGING THE WAY JOURNALISTS COVER THE COURTS By Christina Locke Faubel May 2013 Chair: Sandra F. Chance Major: Mass Communication issue has recently expanded to include handheld image dissemination and real time reporting using cell phones, laptops and third party platforms such as Twitter. This new s ystem of technology is often referred to The judiciary and the press constantly face new legal and ethical issues related to the use of such technology, and this study is one of the first comprehensive scholarly analyses of this legal proble m. While every state permits some type of camera coverage and has a law on the subject, few states have laws that specifically address the use of electronic devices to send information (text, audio, video, photo) directly from the courtroom. The result i s an area of the law with few published court opinions and great uncertainty. This study examined the legal status of live reporting with mobile devices in state and federal courtrooms across the country. Using court opinions, examples of successful live reporting, and existing laws, a snapshot of this evolving and understudied area was created. From this data a model policy for courts on the use of electronic devices and list of best practices for journalists was developed. The model
12 policy combined th e experiences in different jurisdictions to offer a tool for courts to use in dealing with the increased demand for permission to live report with mobile devices. The policy presumes that coverage is permitted a presumption supported by the historical an d legal foundations of the law in this area, but also considers the logistical requirements of managing a court and the essential need for respect for the court and the judge. The best practices approach the issue from the perspective of journalists, prov iding a framework for practicing journalists that will aid them in educating court professionals and enhancing their chances for initial and continuing permission to report live from courtrooms.
13 CHAPTER 1 I NTRODUCTION The controversy over press access to courtrooms, especially with cameras in tow pits the right of the press to monitor the halls of justice against the fundamental tenets of fairness that underlie the judicial system. 1 High profile cases, such as O.J. 2 draw attentio n to the pros and cons of televised justice. Television coverage can increase public knowledge of the legal system 3 and encourage dialogue on matters of public concern. 4 But such intense scrutiny can also result in a biased jury and courtroom pandering t o the camera. 5 Despite the conflict, all state courts permit some sort of electronic coverage of court proceedings. 6 The same is not true in federal courts, though, where a longstanding ban on televised coverage remains in effect, despite continued attem judiciary. 7 1 See, e.g., George Gerbner, Cameras on trial: The `O.J. Show' turns the tide 39 J. B ROAD & E LEC M EDIA 562 (1995); Trial Secrecy and the First Amendment Right of Public Access to Judicial Proceedings 91 H ARV L. R EV 1899 (1978). The First Amendment of the U.S. Constitu tion guarantees a free press; the Sixth Amendment guarantees a fair trial for criminal defendants. 2 days, 126 witnesses, 20 attorneys, 1105 pieces of e vidence, and 45,000 pages of transcript, plus many more episodes kept from the jury as potentially prejudicial, irrelevant, or inflammatory, but all seen by the supra ras can transform, prolong, and make a travesty of a trial, we had it in the O.J. Simpson Show's spectacular run for over a year. It has begun to turn the tide that threatened to make high profile justice a captive of show Id. 3 See, e.g., Sandra F. Chance, Considering cameras in the courtroom 39 J. B ROAD & E LEC M EDIA 555 (1995). 4 Id. 5 See Gerbner, supra note 1 6 Cameras in the Court: A State by State Guide R ADIO T ELEVISION D IGITAL N EWS A SSOCIA TION http://rtdna.org/article/cameras_in_the_court_a_state_by_state_guide_updated (last visited Feb. 20, 2013 ). 7 Id.
14 1935 trial of Bruno Hauptmann, accused of the kidnapping and murder of aviator pted the American Bar Association to disapprove of cameras in the courtroom, and this was the status quo until the 1970s, when less obtrusive broadcast technology and a pilot program in Florida (which led to a key U.S. Supreme Court decision ) opened the wa y for the many states to allow broadcast coverage of the judiciary. The federal system conducted a pilot program in the 1990s and began a second test study in 2011 but has resisted broadcast coverage. New Technology and the Courts Camera technology has c hanged dramatically over the course of the 20 th century, and today anyone can fit a camera capable of broadcasting video coverage in the palm of her hand. This has produced what might be a paradigm shift in the cameras in the courtroom debate, as both pri nt and broadcast journalists have the ability to provide live coverage of legal proceedings with minimal or no interruption of the proceedings. J ournalists can use unobtrusive ca meras to broadcast proceedings via television or the internet. They can also proceedings from the courtroom using the internet and platforms such as Twitter or blogs. lauded participatory Internet spaces consisting mainly of user generated content (UGC) 8 The dramatic increase in the ability of journalists to expose the inner workings of the courtroom has provided a myriad of new problems to presiding judges. 8 What is Web 2.0? EILLY R ADAR (Sept. 30, 2005), http://radar.oreilly.com/2005/09/what is web 20.html
15 In Florida, for example, an app two camera limit to laptop technology was incorrect. 9 In California, live blogging helped bridge the gap in coverage when the to sex marriage. 10 As technology continues to saturate all levels of society, these incidents will only increas e. 11 Statement of Purpose and Research Questions This study issues to include handheld image dissemination and real time reporting using cell phones and laptops, often with third party platfor ms such as Twitter. The judiciary and the press constantly face new legal and ethical issues related to the use of such technology, and this study is one of the first comprehe nsive scholarly analyses of this emerging area of the law S pecifically, this r esearch look s at the use of such technology by journalists to communicate news to the public. The use of Web 2.0 technologies by judges, attorneys jurors, and spectators is beyond the scope of this 9 Co. v. State, 38 Media L. Rep. 1245 (Fla. 1 st Dist. Ct. App. 2010); Steve Patterson, Appea ls court tosses court blogging order against Jacksonville.com, J ACKSONVILLE COM Jan. 21, 2010. 10 Jeffrey D. Neuburger, Courts Still Wary About Webcasts, Live Blogs, Tweets at Trials, PBS.org (Feb. 23, 2010). 11 Statistics from the Pew Internet & American Life Project indicate that as of December 2012, 45% of American adults have a smartphone. Joanna Brenner, Pew Internet: Mobile P EW I NTERNET & A MERICAN L IFE P ROJECT Jan. 31, 2013. http://pewinternet.org/Commentary/2012/February/Pew Internet Mobile.aspx In a 2011 study, 47% of Americans reported getting at least some local news on a cellphone or tablet computer. Kristen Purcell et al., How mobile devices are changi ng community information environments, P EW I NTERNET & A MERICAN L IFE P ROJECT Mar. 14, 2011, http://pewinternet.org/Reports/2011/Local mobile news.aspx
16 dissertation. 12 Journalist use of these technologies is unique because they are not participants in the legal process and so do not have the restrictions inherent in being a judge, attorney, juror, or party. However, unlike mere spectators, journalists have the power to widely disseminate information in a way that can influence public perception of specific proceedings a nd the legal system as a whole. The research questions this study investigate s are: RQ1 : How do current laws treat mobile technology tools that enable the contemporaneous dissemination of phot os and information captured by journalists in a legal proceeding? RQ2 : What would a model court policy on mobile technology in trial courts look like? Defining a journalist has become increasingly problematic as the internet has given a voice to many non t raditional and individual sources. For the purposes of this study, a journalist is defined as a person engaged in information gathering with the intent to disseminate it to the public. This functional definition includes members of the traditional press as well as nontraditional news gatherers who publish online. 13 For the 12 T he problems presented by the use of technology in the courtroom are not limited to journalists. Incidents of jurors using Wikipedia and Google to look up information abo ut evidence or vet attorneys have caused mistrials. Tony Mauro, Are judges using Facebook? N AT L L .J. Aug. 3 1, 2010. Lawyers are increasingly using the internet to conduct on the spot background inquiries, often using social media profiles to learn more about potential jurors. Julie Kay, Vetting jurors via MySpace, N AT L L .J Aug. 11, 2008. Social media and th e internet also raise issues for judges such as using the internet for trial research, anonymously posting comments on newspaper websites Eric P. Robinson, Using the Internet During Trial: What About Judges? C ITIZE N M EDIA L AW P ROJECT Mar. 29, 2010, www.citmedialaw.org/print/3399 13 Shield laws and related literature on who is entitled to their protection offers extensive analysis of the difficulties of defining a journalist in the age of new media. See, e.g., Bulow v. von Bulow, 811 F. 2d 136 evidence, the intent to use material sought, gathered or received to dis seminate information to the public Restoring the Ideal Marketplace: How Recognizing Bloggers as Journalists Can Save the Press 9 N.Y.U. J. L EGIS
17 purposes of this study, mobile technology is defined as the various portable electronic devices that permit wireless transmission of text, images, audio, or video. Examples include sma rtphones, laptops, netbooks, and tablet computers. Legal proceedings, as contemplated in these research questions, are events associated with litig ation at the trial level in both criminal and civil settings. The trial court is where evidence is presente d and findings of fact are made, while appellate courts rely solely on the f, but bond hearings, pre trial su ppression hearings, evidentiary hearings, jury selection, and other relevant proceedings Methodology Legal research methods are the most appropriate to answer the questions posed by this study. Primary sources include the U.S. Constitution, rules promulg ated by the federal and state judiciaries, state statutes, and court decisions. A compilation prepared by the Radio Television Digital News Association (RTDNA) was a starting point to & P UB P OL Y 751, 752 (2006 ) employed or the medium by through which they communicate, but by the function they serve. This cuits and should be adopted [A] person regularly engaged in collecting, photog raphing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or independent contractor for, a newspaper, news journal, news agency, press associati on, wire service, radio or television station, network, or newsmagazine. Book authors and others who are not professional journalists, as defined in this paragraph, are not included in this provision. F LA S TAT Â§ 90.5015 (2012).
18 identify relevant sources of legal authority. 14 These citations were re trieved using the source was analyzed for citing sources such as court decisions, other statutes or rules, legal briefs and legal periodicals. These citing sources were reviewed for relevancy to he courtroom was obtained from the United States Courts website 15 and then retrieved from the LexisNexis legal database. The relevant rules were ana lyzed for citing sources Although some laws relevant to mobile technology and coverage of the courts were obtained through the aforementioned process, because this is an emerging area of the law, additional methods were us ed to identify cases and controversies. The secondary scholarly literature, articles from the popular press and resources from interested o rganizations ( such as the Conference of Court Public Information Officers and Citizen Media Law Project) were revi ewed to find cases. These served as key sources of initial inquiry because individual courts may have applicable standing o rders or rules that might not be easily accessible in a legal research database. Relevant legal authority identified in secondary sources was then accessed in the LexisNexis legal database and a citation check was performing using Shepards. arch type, the 14 Cameras in the Court: A State by State Guide R ADIO T ELEVISION D IGITAL N EWS A SSOCIATION http://rtdna.org/article/cameras_in_the_court_a_state_by_state_guide_updated (last visited Feb. 20, 2013 ). 15 Cameras in Courts U NITED S TATES C OURTS http://www.uscourts.gov/Multimedia/Cameras.aspx
19 blog OR Facebook OR Twitter w/p reporter OR media OR news 16 The results were refined for only those cases involving press use of mobile devices to disseminate information about cour t proceedings. Relevant cases were Shepardized for additional citing sources. Another OR b 17 The results were refined for relevancy to the study and then Shepardized. The legal authorities obtained through these methods were analyzed to answer the research questions. For Research Question 1, the legal authorities were examined for the rul e of law that would govern the use of mobile electronic devices during court articulated therein, were u sed to answer Research Question 2, resulting in a proposed model court po l icy on mobile electronic device use by journalists as well as a discussion of best practices for journalists covering the courts. Dissertation Outline Following the current intro ductory chapter, Chapter 2 examine s the theoretical, historical and legal ba ses for access to courts, touching on general First Amendment theory and exploring the evolution of law relating to cameras in the courtroom. Major historical and legal events such as the Bruno Hauptmann and coverage of the 2000 election re count are also presented. Chapter 3 examines the current body of literature on cameras in the courtroom, drawing from legal, mass 16 17 endings, such as broadcaster and broadcasting.
20 communications and social science literature. Studies and reports on social media and its use in the cour troom are examined Next, Chapter 4 analyzes the laws governing cameras in the courtroom in the traditional sense i.e., television cameras at both the state and federal levels. A parallel analysis of state and federal laws on mobile t echnology i.e., live blogging, t weeting in the courtroom is presented in Chapter 5. Chapter 6 discusses the findings presented in Chapters 4 and 5 and proposes a model court policy on mobile technology use by journalists and a list of best practices for journalists. Chapter 6 also offers study conclusions and suggestions for future research
21 CHAPTER 2 FREE PRESS, FAIR TRIAL AND CAMERAS IN THE COURTROOM The controversy surrounding press coverage of legal matters and access to ss Amendment of the U.S. Constitution guarantees a free press, and the Sixth Amendment guarantees criminal defendants a fair trial. If press coverage of a case prejudices jurors, a judge may consider various remedies to comb at jury bias and preserve the fair trial. This chapter first explore s is defined, with a focus on U.S. Supreme Court case law on prejudicial publicity and the various remedie s available to judges to combat bias. Finally, the historical and legal background of cameras in the courtroom, and their place in the free press fair trial debate, is discussed. What is a Free Press? The First Amendment to the U.S. Constitution was ratif ied in 1791and establish ed several freedoms: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances. 18 18 U.S. C ONST AMEND I. For a discussion of the development of ideas of frees speech and the First Amendment, see Justice William J. Brennan, Jr., The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 H ARV L. R EV 1 (1965), D avid M. Rabban, The Emergence of Modern First Amendment Doctrine, 50 U. C HI L. R EV 1205 (1983); L EONARD W. L EVY E MERGENCE OF A F REE P RESS 6 (19 85); David Yassky, Eras of the First Amendment, 91 C OLUMB L. R EV 1699 (1991); and Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. P A L. R EV 459 (2012).
22 The meanings of the speech and press freedoms guaranteed in the 45 word First Amendment have been developed by philosophers, legal theorists and U.S. Supreme Court jurisprudence and include the following theories 19 I NDIVIDUAL A UTONOMY The freedom of the individual to form thoughts by unrestricted listening and reading and then to express them is an essential aspect of human dignity. 20 D ISCOVERY OF T RUTH Ideas exist in a marketplace, where g ood ones will survive and bad ones not. A diversity of ideas in the marketplace helps us find the truth. 21 S ELF G OVERNANCE In a democracy, the ultimate political responsibility lies in individuals. Free speech and deliberation are key to effective self g overning. 22 C HECK ON THE G OVERNMENT The First Amendment guarantee of a free press branch of government providing checks and balances on the other three. 23 19 Although the text of the F applies to state and local government action as well. This was established in 1925, when the U.S. Supreme Court applied the First Amendment to the states via the 14 th Amendment due proce ss clause. Gitlow v. New York, 268 U.S. 652 (1925). In that case, Socialist Benjamin Gitlow was convicted under upheld his conviction, reasoning that i t was a reasonable exercise of state police power. The Court stated: It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, w ithout responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. 20 See, e.g., T HOMAS E MERSON T OWARDS A G ENERAL T HEO RY OF THE F IRST A MENDMENT 12 (1996). 21 injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever kne w Truth put to the worse, in J OHN M ILTON A REOPAGITICA (1644). 22 A LEXANDER M EIKLEJOHN F REE S PEECH AND I TS R ELATION TO S ELF G OVERNMENT purposes of the First Amendment is, then, that all the citizens shall so far as possible, understand the issues which bear upon our common life. That is why no idea, no opinion, no doubt, no belief, no counterbelief, no relevant information, may be kept from them. Under the compact upon which the Constitution rests, it i s agreed that men shall not be governed by others, that they shall govern Id. 23 primary purpose of the constitutional guarantee of a free press was the Government as an additional check on the three offi The Checking Value in First Amendment Theory ," A M B, F OUND R ES J. 523 (1977).
23 Many of these theor ies, most notably the marketplace of ideas, 24 have guided the U.S. Supreme Court in its interpret ation of the First Amendment. In 1919, t he Court decided Schenck v. United States 25 In Schenck Charles Schenck and other members of the Socialist Party were convicted of espionage after publishing 15,000 leaflets critical of the U.S. involvement in World War I. 26 Schenck and his co defendants argued that their First Amendment rights of free speech and a free press were violated by the prosecution. 27 The U.S. S upreme Court, however, rejected these claims, finding that 28 Holmes in Schenck was eventually replaced wi th the current standard for assessing government punishment of advocacy speech 29 Other legal tests used in determining whether government restrictions on speech are protected by the First Amendment include strict scrutiny, 30 inter mediate scrutiny 31 and the time, 24 Wat Hopkins, The Supreme Court Defines the Marketplace of Ideas, J & M ASS C OMM Q. Vol. 73, No. 1, 1996, at 40 52. 25 249 U.S. 47 (1919). In 1907, the U.S. Supreme Court considered free speech and press provisions in Patterson v. Colorado. In that case, a Denver newspaper publisher was convi articles and a cartoon criticizing the state supreme court. However, the U.S. Supreme Court held that it 26 249 U.S. 47 (1919). 27 Id 28 Id. 29 Brandenburg v. Ohio, 395 U.S. 444 (1969). 30 Under the doctrine of strict scrutiny, content based regulations on speech must: 1) advance a compelling government interest, and 2) be narrowly tailored. See, e.g., Ragland, 481 U.S. 221, 231 (1987). 31 Intermediate scrutiny applies when the speech regulation is content neutral or the speech is of low value It requires the government to have a substantial interest and that the regulation is essential to the furtherance of that intere 77 (1968).
24 place, manner test. 32 The doctrines of overbreadth 33 and vagueness 34 are also bases for deeming a speech restriction to be unconstitutional. The next section uses U.S. Supreme Court caselaw to describe f our broad identified by the author that characterize a free press: Freedom from prior restraints Freedom from compelled content Freedom to gather news Freedom to criticize the government e none of these freedoms granted to the press are absolute. 35 Some speech receives lower or no protection 36 However the type of speech that is often implicated in free press cases receives the most protection. 37 32 neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of Perry Educ, 33 its applications are unconstitutional, judged i United States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (citing Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008)). 34 If a regulation is so vague that those potentially s ubject to its provisions are unsure of its applicability, it may be declared invalid under the First Amendment. See, e.g ., Keyishian v. Bd. of Regents, 385 U.S. 589, 604 (1967) (quoting N.A.A.C.P. v. Button, 371 U.S. 415, 433 (1963)) (citing Stromberg v. California 283 U.S. 359, 369 (1931); Cramp v. Bd. of Pub. Instruction 368 U.S. 278 (1961); Baggett v. Bullitt, 377 U.S. 360 (1964)). 35 Under circumstances, explaine d in detail later in this C hapter, prior restraints, compelled content, restrictions on ne wsgathering and punishment for criticizing government officials coul d potentially be constitutional. 36 See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (finding no protection for certain types of are of such slight social value as a ste p to truth that any benefit that may be derived from them is clearly outweighed by the social Central Hudson Gas & Elec. Corp. v. Public Se But see R.A.V. v. City of St. Paul, 505 U.S. 377, 382 84 (1992) (clarifying that certain types of speech, such as content discrimination unrelated to their d 37 See, e.g., Meyer v. Grant 486 U.S. 414 (1998); Buckley v. Valeo, 424 U.S. 1 (1976); Tinke r v. Des Moines Indep. Comty. Sch. Dist., 393 U.S. 503 (1969).
25 Freedom from Prior Restraints Perhaps the most clearly established doctrine of a free press is the presumption against prior restraints. Two modern Sup reme Court cases solidified this presumption against prior restraints on publication: Near v. Minnesota 38 and New York Times v. United States 39 At issue in Near was a Minnesota law that allowed the government to enjoin Semitic publisher Saturday Press wish gangster was in control of gambling, bootlegging and racketeering in Minneapolis, and that law enforcing 40 A trial court enjoined Near from further publication of similar material The Minnesota Supreme Court upheld the injuction but the U.S. Supreme Court declared the injunction an unconstitutional prior restraint. Chief Justice Charles Evan Hughes, writing for the majority in the 5 4 opinion, drew upon the tradition of disfavor for prior restraints in holding that prior restraints were presumptively unconstitutional: The fact that for approximately one hundred and fifty years there has been almost an entire absence of attempts to impose previous restraints upon publications rela ting to the malfeasance of public officers is significant of the deep seated conviction that such restraints would violate constitutional right. Public officers, whose character and conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals. The general principle that the constitutional guaranty of the liberty of the press 38 283 U.S. 697, 704 (1931). 39 N.Y. T imes Co. v. United States, 3 54 U.S. 298 (1971). 40 283 U.S. 697, 704 (1931).
26 gives immunity from previous restraints has been approved in many decisions under the provisions of state constitutions. 41 The presumption against prior restraints established in Near was dramatically tested some 40 years later in New York Times v. U nited States often called the Pentagon Papers case. 42 Former Pentagon analyst Daniel Ellsberg secretly leaked classified documents a study of the Vietnam War known as the Pentagon Papers to The New York Times and the Washington Post. 43 Publication of the 47 volumes began on June 13, 1971 in the Times 44 President Richard Nixon ask ed the Justice Department to enjoin further publication to protect national security and diplomatic relations. 45 In New York, the U.S. Court of Appeals for the Second Circuit enjo ined the Times from public ation, but in Washington, the D.C. Circuit refused to keep the Post from publishing. 46 The U.S. Supreme Court agreed to review the case and temporarily stopped publication at the Post. Within a week of oral arguments in the case, the Court ruled that an injunction would violate the First Amendment. 47 per curiam opinion stated : heavy presumption against its constitutional validity." 48 Government "thus 41 Id. at 718 19. 42 N.Y. Times Co. v. United States, 354 U.S. 298 (1971). 43 Id. 44 Id. 45 Id. 46 Id. 47 Id. at 48 403 U.S. 713, 714 (1972) (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) and citin g Near v. Minnesota, 283 U.S. 697 (1931) ).
27 carries a heavy burden of showing justification for the imposition of such a restraint." 49 The Court held that the government had not met its burden for enjoining publication. 50 Freedom from Compelled Content Another characteristic of a fre e press is the freedom from government compelled speech. 51 The seminal case in this area is the 1974 decision in Miami Herald Publishing Co. v. Tornillo 52 In Tornillo a candidate for state office sued the Herald after it refused to print his responses to 53 Pat Tornillo invoked a demand, at no charge, space in the new spaper to print replies. 54 The trial court ruled in favor of the Heral d but the Florida Supreme Court reversed, declaring the statute constitutional and in furtherance of the "broad societal interest in the free flow of information to the public." 55 A unanimous U.S. Supreme Court rejected the arguments that forced access to the press was necessary in an era of increasingly concentrated news ownership. It held that the statute was unconstitutional because it intruded on the editorial functions of the press: 49 Id. (quoting Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971)). 50 403 U.S. 713, 714 (1972). The nine justices each wrote separate opinions in the case, with six finding the injunction would be an imp (mostly objecting to the swift pace of the case). 51 A general exception from the idea of a prohibition on government compelled speech can be found in some of the programming requireme nts of broadcasters. Justification for these requirements is based on the idea of a scarcity of the spectrum as described in R ed Lion Broad. v. FCC, 395 U.S. 367 (1969). 52 g Co. v. Tornillo, 418 U.S. 241 (1974). 53 Id. at 244. 54 Id. 55 Id. at 245 (quoting Torn Co., 287 So.2d 78, 82 (1973)).
28 A newspaper is more than a passive receptacle or conduit for news, c omment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials -whether fair or unfair -constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. 56 Thus, freedom from compell ed content and the ability for the press to independently exercise its editorial processes is a hallmark of a free press. Freedom to Gather News reedom to gather news is the most tenuous. Neither the Constitution nor the U.S. Supreme Court has established a general right of the press to gather news. The most affirmative statement of the Court in support of newsgathering came in the 1972 landmark case Branzburg v. Hayes when Justice White wrote fo 57 Branzburg involved the cases of three different reporters who refused to testify before grand juries. Reporters Paul Branzburg, Earl Caldwell and Paul Pappas argued that the First Amendment protected them from being compelled to testify before grand juries. The Court framed grand juries abridges the freedom of speech and press guaranteed by the First 56 Id. at 258. But see Red Lion Broad. v. F.C.C., 395 U.S. 367, 400 (1969) (upholding requirement for television and radio broadcasters to discuss public issues and give each legitimate claims of those unable without government assistance to gain access to those frequencies for expression of thei requiring cable television to carry local broadcast stations). 57 Branzburg v. Hayes, 408 U.S. 665, 681 (1972).
29 58 A 5 4 majority of the Court rejected the First Amendment privilege to refuse to testify before grand juries. 59 Justice Potter Stewart, in a dissenting opinion, 60 Stewart articulated a three part test the government must meet in order to compel information from journalists: (1) show that there is probabl e cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information. 61 This test has been utilized by lower courts and state legislators in crafting privileges for reporters to defend themselves against government requests for information and sources. 62 The ability to protect sources is only one aspect of an overarching press freedom to gather news. Access to sources is also critical. The U.S. Supreme Court has right of access which is generally no greater than that of the general public 63 on several occasions. The Court has upheld restrictions on access 58 Id. at 667. 59 Id. at 708. 60 Id. at 738 (Potter, J., dissen ting). 61 Id. at 743 62 See, e.g., Monica Langley & Lee Levine, Branzburg Revisited: Confidential Sources and First Amendment Values 57 G EO W ASH L. R EV 13 (1989). 63 Branz burg v. Hayes, 408 U.S. 665, 684 Amendment does not guarantee the press a constitutional right of special access to information not avail able to the
30 to prisons 64 but struck down restrictions on access to trials, 65 jury selection 66 and pretrial hearings. 67 Freedom to Criticize the Government The landmark 1964 decision in New York Times Co. v. Sullivan protects the news media against defamation claims from public off s proved. 68 gave rise to the kind of investigative journalism and cultural inquiry that helped topple 69 64 Pell v. Procunier, 417 U.S. 817 (1974) (rejecting claims of a First Amendment right of reporters to interview prisone rs); Saxbe v. Washington Post, 417 U.S. 843 (1974) (upholding federal policy restricting inmate interviews); Houchins v. KQED, Inc., 438 U.S. 1 (1978) (upholding policy restricting prison interviews). Houchins noted the ne cessity of cameras and sound equipment for a television reporter: That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgement of the critical role played by the press in Ame rican society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively. A person touring Santa Rita jail can grasp its reality with his own eyes and ears. But if a television reporter is to who cannot personally visit the place, he must use cameras and sound equipment. In short, terms of access that are reasonably imposed on individual members of the public may, if they impede effective reporting without sufficient justification, be unreasonable as applied to journalists who are there to convey to the general public what visitors see. Houchins 438 U.S. at 17 (Stewart, J., concurring). 65 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (d eclaring an implicit First Amendment right of the public to attend criminal trials) (discussed in detail in this Chapter, infra) 66 Press En terprise Co. v. Riverside Cnty. Superior Court, 464 U.S. 501, 508 (1984) (also referred to as 67 Press Ent erprise Co. v. Riverside Cnty. 68 N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). 69 M ASS C OMMUNICATION AND A MERICAN S OCIAL T HOUGHT supra note 22, at 269.
31 While once a criminal offense, press criticism of the government is the capstone o f the modern press, and, many argue, the essential function of the press. 70 Times v. Sullivan arose at the height of the Civil Rights Movement in the South. 71 The speech at issue was an editorial advertisement in The New York Times paid for by ci vil rights activists who hoped t o garner support for the movement and for Dr. Martin Luther King Jr. 72 The ad, title d protests of those seeking equal rights. 73 Incidents throughout the South were described, including one in Montgomery, Alabama: the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear gas ringed t he Alabama State College Campus. When the entire student body protested to state authorities by refusing to re register, their dining hall was padlocked in an attempt to starve them into submission. 74 Police commissioner L.B. Sullivan, who was not named in the ad, unsuccessfully demanded a retraction from the Times. 75 Sullivan and four other government officials sued the newspaper for defamation, winning a $500,000 award from the jury. 76 The Alabama Supreme Court upheld the award, which was based on a stric t liability theory 70 See, e.g., Vincent Blasi, Th e Checking Value in First Amendment Theory 1977 A M B. F OUND R ES J. 521, 539 42 (1977). 71 New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 72 Id. at 256. 73 Id. at 256 57. 74 Id. at 257. 75 Id. at 258, 261. 76 Id. at 256.
32 of libel where the intent or diligence of the publisher was not considered. 77 The U.S. Supreme Court unanimously voted to reverse the judgment. 78 The Court acknowledged that there were falsities in the ad. 79 For example, the students were expelled for deman ding service at a lunch counter, not for singing; the surround the campus. 80 erroneous statement is inevitable in f ree debate, and that it must be protected if the freedoms of expression a re need to survive. 81 national commitment to the principle that debate on public issues should be uninhibite d, robust, and wide open, and that it may well include vehement, caustic, and sometimes 82 the Court held that public officials must demonstrate that defendants in libel suits acted with actual m alice. 83 Thus, unless a public official plai ntiff proves that the press acted with knowledge of falsity or reckless disregard for the truth, the press will be protected from liability. The actual malice requirement was subsequently extended to public figu res 84 77 Id. at 267. 78 Id. at 292. 79 Id at 254. 80 Id. at 259. 81 Id. at 271 72 (1964) (quoting NAACP v. Button, 371 U.S. 415 433 (1963 ) ). 82 Id. at 270. 83 Id. at 280. 84 See g Co. v. Butts, 388 U.S. 130 (1967); Gertz v. Welch, 403 U.S. 29 (1971). See also Martin H. Redish, The V alue of Free Speech, 130 U. P A L. R EV 591 (1982) (discussing extension of the actual malice standard to other cases and noting that defamation can foster the self realization value of free speech).
33 individuals of public importance not necessarily affiliated with government thereby affirming the freedom of the press to criticize individuals of public concern. What is a Fair Trial? The freedom of the press is only one side of the story. In any fr ee press fair trial controversy, the value of First Amendment protections are necessarily weighed against the competing value of the Sixth Amendment right to an impartial jury. The Sixth Amendment : In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assi stance of Counsel for his defens e. 85 The potential for media coverage of a case to affect the impartiality of jurors is at the heart of the free press fair trial debate. The U.S. Supreme Court has, on several occasions, addressed the circumstances in which media coverage of a case might 86 In Marshall v. United States decided in 1959, the Court granted a new trial to a man convicted of dispensing drugs without a prescription. 87 Jurors were exposed to unlicensed practice of medicine. 88 Marshal l reportedly prescribed pills to the late 85 U.S. C ONST ., AMEND VI. 86 The cases in this discussio n deal more generally with prejudicial publicity. Camera specific cases are discussed in the next section in this Chapter on cameras in the courtroom. 87 Marshall v. United States, 360 U.S. 310 (1959). 88 Marshall, 360 U.S.at 311 12.
34 country singer Hank Williams. 89 The Court, in an 8 1 decision jurors to information of a character which the trial judge ruled was so prejudicial it could not be directly offered as evidence 90 The defendant in the 1961 case Irvin v. Dowd convicted of a murder and sentenced to death. 91 In addition to the death for which Irvin was convicted, five other murders occurred near the rural Indiana cou nty where Irvin was prosecuted. 92 Shortly after his arrest for a December 1954 killing, prosecutors and police issued press releases stating that Irvin had confessed to all six murders. 93 the judge denied several motions to change venire and continue the trial. 94 Irvin challenged his conviction on the grounds that he was denied his Sixth Amendment right to a fair trial and impartial jury. In its constitutional claim, the Court firs t expounded on the fine line between an informed juror and a biased juror : It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an impor tant case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. 89 Id. at 312. 90 Id. 91 I rvin v. Dowd, 366 U.S. 717, 719 (1961). 92 Id. 93 Id. at 719 20. 94 Id. at 720.
35 It is s ufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. 95 lines, articles, cartoons and pictures was 96 wa s enough to warrant a new trial In addition to the government press releases declaring Irvin confessed to six murders, other problematic facts g ave al rights were violated: court martial charges during the war and alleged parole violations; police statements that he was identified in a line up and failed a lie detector test; and 90% of the hundreds of potential jurors thought Irvin was guilty. 97 The Court un animously grant ed Irvin a new trial -and accounting for the frailties of human nature -we can only say that in the light of the circumstances here the finding of impartiality 98 Just two years after the decision in Irvin, the Court overturned another murder conviction due to prejudicial publicity. 99 In Rideau v. Louisi ana Wilbert Rideau was accused of robbing a bank, kidnapping three bank employees and killing one of them. 100 Police arrested Rideau 95 Id. at 722 23 (citing Spies v. Illinois 123 U.S. 131 ; Holt v. United States 218 U.S. 245 ) 96 Id. at 725. 97 Id. at 727. 98 Id. at 727 28. 99 Rideau v. Louisiana, 373 U.S. 723 (1963). 100 Id. at 724.
36 with the sheriff, he confessed. 101 The local television station b roadcast the with more than 100,000 of the 150,000 residents of Calcasieu Parish watching. 102 In addition to the prejudicial effects of the broadcasts, the jury selected for Rideau nd two local sheriff deputies. 103 Further, the trial judge denied a motion for change of venue. 104 The Court in a 7 2 opinion, granted Rideau a new trial, concluding that the televised interrogation of Rideau by law enforcement served as and proceedings in a community so pervasively exposed to such a spectacle could be but a 105 Perhaps the most famous case involving prejudicial publicity is Sheppard v. Maxwell in which the Court overturned the convict ion of physician Sam Sheppard. 106 At his 1954 trial, a jury convicted Sheppard of bludgeoning his pregnant wife to death in a hideous uproar, what the New York Times would 107 Prior to the trial, intense media coverage ensued, including editorials with headlines 108 and news stories emphasizing evidence 101 Id. 102 Id. 103 Id. at 725. 104 Id. 105 Id. at 726. 106 Sheppard v. Maxwell, 384 U.S. 333 (1966). 107 G REAT A MERICAN T RIALS : F ROM S ALEM W ITCHCRAFT TO R ODNEY K ING 472 (Edward W. Knappman, ed., 2003). 108 Sheppard, 384 U.S. at 341.
37 that tended to incriminate Sheppard. 109 The atmos phere at trial was no better for Sheppard, with a courtroom filled to capacity and journalists moving in and out of the room to the extent that hearing testimony was difficult and confidential conversations between Sheppard and his attorneys was nearly imp ossible. 110 While photography was not permitted while court was in session, it was allow ed during recesses, and photos were commonplace. 111 And, while jurors were sequestered during deliberations, they were permitted to make daily telephone calls without sup ervision of what information they were receiving during the calls. 112 Sheppard was convicted of second degree murder. 113 The Court prefaced its 8 1 traditional watchdog role the press has played in criminal proceedings: A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. 114 the Court found that the nature of the intense media coverage, combined with the denial of a change of venue, jurors 109 Id. at 340. 110 Id. at 344. 111 Id. at 345. 112 Id. at 349. 113 Id. at 335. 114 Id. at 350.
38 u ntlet of reporters and 115 Measures the trial judge could have taken to ensure a fair trial included granting the change of venue, permitting defense counsel to question potential jurors regarding their exposure to news coverage of the trial, adopting stricter rules for press conduct in the courtroom (i.e., limiting the number of press representatives, placing them f urther away from the bar, and prohibiting them from handling evidence), insulating witnesses from press coverage, and restricting statements by witnesses and law enforcement. 116 After a second trial in 1966, Sheppard was acquitted. He died four years later 117 involving former Enron CEO Jeffrey Skilling. 118 In Skilling v. United States a 6 3 Court found that Skilling was not deprived of his Sixth Amendment right to an imparti al jury due to pretrial publicity. Enron went bankrupt in 2001 and the federal government prosecuted financial results. 119 Prior to his trial on charges of securities fraud, wire fraud insider trading and misrepresenting Enron to auditors, Skilling requested the trial be moved 115 Id. at 355. 116 Id. at 3 55 60. See also James Robertson, A Distant Mirror: The Sheppard Case From the Next Millenium 49 C LEV S T L. R EV 391 (2001). 117 G REAT A MERICAN T RIALS : F ROM S ALEM W ITCHCRAFT TO R ODNEY K ING 472 (Edward W. Knappman, ed ., 2003). Id. claim was denied due to lack of standing. 118 Skilling v. United States, 130 S. Ct. 2896 (2010). 119 Skilling, 130 S. Ct. at 2900.
39 from Houston due to pretrial publicity and community hostilities toward him. 120 The trial court denied the motion, finding that coverage had been largely objecti ve and impartial jury. 121 The Court held that Skilling failed to demonstrate a presumption of juror prejudice and that the size of the Houston community (the fourth larges t city in the nation) permitted a diverse jury pool. 122 The Court distinguished the Skilling trial and news coverage from that in Irvin and Rideau where the circumstances warranted a new trial. 123 As the onstrated, 124 there are a variety of remedies available to judges to safeguard fair trial rights. These remedies include a change of venue (moving the trial), change of venire (bringing in jurors from another community), continuing the trial to allow public ity to die down, weeding out biased jurors during voir dire, sequestering the jury and instructing jurors to base verdicts solely on evidence presented in court. More drastic measures include issuing gag orders and closing proceedings. Judges wishing to gag the press or close 120 Id. 121 Id. 122 Id. 123 Id. 124 In addition to the cases discussed in detail above, other cases relevant to prejudicial publicity jurisprudence include Stroble v. California, 343 U.S. 181 (1952) (affirming conviction and death sentence where publicity receded in weeks prior to tri al, defendant did not seek change of venue and voir dire was thorough); Murphy v. Florida, 421 U.S. 794 (1975) (declining to declare an unfair trial where news n v. Yount, 467 U.S. 1025 (1984) (refusing to order a new trial for defendant convicted of rape and murder 991) (affirming murder conviction and refusing to order new trial based on assertion that trial court should be required to question jurors on specific news reports).
40 courtrooms must meet stringent requirements in order to comport with the First Amendment. However, while a gag order is a remedy available to judges hoping to protect a d a restriction ability to publish information This is a prior restraint and is therefore presumptively Nebraska Press Association v. Stuart n publication of news gathered during public, pretrial proceedings violated the First Amendment. 125 The case stemmed from the murders of a family of six in the tiny Nebraska town of Sutherland. A neighb or confessed to the murders the next day. Three days later, a county judge issued an order pro hibiting anyone in attendance authoriz[ing] the release for public dissemination in any form or manner whatsoever any 126 The order al so required the press to abide by the voluntary Nebraska Bar Press Guidelines. 127 The order was largely upheld by the Nebraska Supreme Court, and the defendant was convicted of murder in 1976. 128 The U.S. Supreme Court unanimously struck down the publicatio n ban as a prior restraint, finding that while the trial judge was justified in concluding that intense pretrial other measures available to mitigate the effects of publicity The Court established a 125 427 U.S. 539 (1976). See also M ARK R. S CHERER R IGHTS IN THE B ALANCE : F REE P RESS F AIR T RIAL AND N EBRASKA P RESS A SSOCIATION V S TUART (2008) (providing an in depth historical analysis of the case). 126 Neb. 427 U.S. at 542. 127 Id. 128 Id. at 546.
41 test that must be met if a prior restraint to prevent prejudicial publicity is justified. Specifically, the trial judge must conduct a hearing and make findings on the record based on evidence of: (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger. 129 Applying these factors to the Nebrask a trial, the Court found that there was little in the record reflecting a determination of whether other measures might be effective. 130 The reaffirm[ed] that the guarantees of freedom of expression are not an absolute prohibition under all circumst ances, but the barriers to prior restraint remain high, and 131 While Nebraska Press Association met for a judge to prohibit the press from reporting on court proce edings, a case decided four years later established a qualified First Amendment right to attend trials. 132 That decision, Richmond Newspapers v. Virginia arose from a murder case that went to trial three times, the first conviction overturned due to new ev idence and the latter two declared mistrials due to juror problems. 133 Prior to the fourth trial of John Stevenson 129 Id. at 562 130 Id. at 563. 131 Id. at 570. 132 Richmond Newspapers v. Virginia, 448 U. S. 555 (1980). Prior to the Richmond case, the Court in Gannett Co. v. DePesquale 443 U.S. 368 (1979) had rejected a bid by the press for access to a pretrial suppression hearing. 133 Richmond Newspapers 448 U.S. at 559.
42 for the murder of a hotel manager, the trial judge closed the trial. 134 Richmond Newspapers unsuccessfully fought the closure, arguing that the trial judge failed to make any evidentiary findings warranting the closure and did not consider less drastic means of ensuring a fair trial. 135 when the new courthouse was constructed, the rules might change. 136 Stevenson was 137 Nearly two years after Stevenson was cleared of the charge and set free, the reversed. Although reversal of the closure order would have no practical effect on the Stevenson case, the Court still considered the case appropriate for review because the 138 In holding that the closure was unconstitutional, a plurality of the Court noted the lack of findings by the trial court judge and the failure to consider alternative measur Amendment rights. 139 In crafting a qualified First Amendment right of the public to attend criminal trials, the Court drew on the long history of open access to criminal trials 140 From the days before the Norman 134 Id. 135 Id. at 560 61. 136 Id. a t 561. 137 Id. at 562. 138 Id. at 563 (quoting S, Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)). 139 Id. at 580 140 Id. at 564.
43 Conquest to the evolution of the jury system in England, criminal trials have traditionally been open to the public: [One] of the most conspicuous features of English justice, that all judicial trials are held in op en court, to which the public have free access, appears to have been the rule in England from time immemorial. 141 The American legal system, which grew out of the English system, carried on the tradition of open trials. Guarantees of openness were exp licit in some colonies, such as in the 1677 Concessions and Agreements of West New Jersey: person or persons, inhabitants of the said Province may freely come into, and att end the said courts, and hear and be present, at all or any such tryals as shall be there had or passed, that justice may not be done in a corner nor in any covert manner." 142 The Court went on to recognize the numerous benefits of an open court system, inc luding assuring that proceedings were conducted fairly; discouraging misconduct and perjury; increasing public confidence; 143 144 increasing public understanding of and respect for the judicia l system; acting as a restraint on judicial abuse of power; aiding accurate factfinding; and even providing a public pastime that functions as a form of legal education. 145 From this iminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such 141 Id. at 566 67 (quoting E. J ENKS T HE B OOK OF E NGLISH L AW 73 74 (6 th ed. 1967 ) ). 142 Id. at 567 (quoting S OURCES OF O UR L IBERTIES 188 (R. Perry ed. 1959)). 143 Id. at 569. 144 Id. at 571. 145 Id. ility from their institutions, but it is
44 trials, which people have exercised for centuries, important aspects of freedom of 146 ight is technically no greater than the right of the public to attend criminal trials, the Court did point out, in not every person who wishes to attend can be accommodat ed. In such situations, reasonable restrictions on general access are traditionally imposed, including 147 The Court continued its support of access to Courts in a series of cases decided within a few years of Richmond Newspapers v. Virginia In Globe Newspaper Co. v. Superior Court the Court 6 2, struck down a Massachusetts statute that called for automatic exclusion of the public during testimony of minor victims of sex offenses was unconstitutional. 148 Two years later, in Press Enterprise I the Court unanimously ruled that jury selection is presumptively open. 149 In Press Enterprise II decided in 1986, the Court 7 2, held that pretrial hearings should also be open. 150 The Court has established a First Amend ment right of the public and press to attend criminal trials, voir dire trials is not limited to observations by journalists; the desire for audio visual coverage of 146 Id. at 580 (quoting Branzburg v. Hayes, 408 U.S. at 681 (1972)). 147 Id. at 581, n. 18. 148 Globe Newspaper Co. v. Superior Court, 457 U.S. 596 609 protecting minors could be served by case by right of the press and public to gain access to criminal trials will not be restricted except where n ecessary There are several types of proceedings where access is commonly limited to protect competing interests, such as cases of minor victims, victims of sex offenses, juvenile proceedings, terrorism proceedings, and domestic relations cases. 149 Press Enterprise Co. v. Riverside County Superior Court, 464 U.S. 501 150 Press Enterprise Co. v. Riverside County Superior Court, 478 U.S. 1
45 proceedings raises additional concerns. The distinct issue of whether cameras are permitted in courtroom s is discussed in the next section. Cameras in the Courtroom While the historical and First Amendment right to attend trials and other legal proceedings is well established, t he ri ght of the press to record courtroom proceedings is grounded in statutory law and varies among jurisdictions. The U.S. Supreme Court has, however, ruled that the presence of cameras in the courtroom is not inherently prejudicial. 151 The debate over whethe r to allow cameras in the courtroom dates back as early as 1917, when photographic coverage of a trial was prohibited by the Illinois Supreme Court. 152 But it was the aftermath of the 1935 trial of Bruno Hauptmann, accused of kidnapping and murdering aviato shift in attitudes towards cameras in the court. 153 Media coverage of the trial was intense, with almost 700 journalists covering the trial in Flemington, New Jersey. 154 The chaos inside the courtroom and on the courthouse steps was perhaps prompted more by the notorious publicity surrounding the case and the sheer number o f observers rather than the presence of cameras. 155 American Bar Association (ABA) conv ened a special committee to analyze the case. The head of the committee, former Minnesota Supreme Court Justice Oscar Hallam, 151 Richmond Newspapers v Vi rginia, 448 U.S. 555 (1980). 152 S USANNA B ARBER N EWS C AMERAS IN THE C OURTROOM : A F REE P RESS F AIR T RIAL D EBATE 1 (1987). 153 Id. at 2 3. 154 Id. at 4. 155 Id. at 7.
46 excessive publicity, never a case more prov ocative of trial out of court, never a case 156 In 1937, the ABA passed Canon 35 of its Canons of Professional and Judicial Ethics which called for a ban on photography and radio broadcasts in the courtroom The ABA later revised t he Canon to specifically prohibit television cameras. 157 While the ABA Can ons are not laws (the ABA is a private, non profit organization of attorneys), they are influential and were observed by some, but not all courts. 158 As tele vision became a staple in American hou seholds, camera coverage increase d In 1956, Colorado was the first state to allow cameras in the courtroom on a permanent basis, giving the trial court judge ultimate discretion but still allowing jurors or witnesses to object to coverage. 159 Supreme Court, 160 who in Estes v. Texas constitutional rights were denied due to camera coverage. 161 Texas grain dealer Billy Sol Estes was ac cused of swindling farmers into buying nonexistent fertilizer equipment. 162 broadcast coverag e of the trial. During a two day motion hearing: 156 Id. at 8 (quoting Oscar Hallam, Some Object Lessons on Publicity in Criminal Trials 24 M INN L. R EV 453, 454 (1940). 157 Id. at 9. Canon 35, ABA Canons of Prof. & Judicial Ethics. 158 Id. at 10. 159 Id. at 12. 160 Id. at 14 (citing Estes v. Texas, 381 U.S. 532 (1965)). 161 Estes v. Texas, 381 U.S. 532 (1965). 162 Id. at 535.
47 [T]he picture presented was not one of that judicial serenity and calm to which petitioner was entitled. Indeed, at least 12 cameramen were engaged in the courtroom throughout the hearing taking motion and still pictures and televising the proceedings. Cables and wires were snaked across the courtroom floor, three micr ophones were on the judge's bench and others were beamed at the jury box and the counsel table. It is conceded that the activities of the television crews and news photographers led to considerable disruption of the hearings. 163 However, a t the trial, liv e broadcasts were prohibited, with the exception of opening and closing arguments and the return of the jury verdict. 164 In ruling whether televised proceedings do not con [ s ] 165 Televised proceedings could bias and distract jurors, 166 impair the quality of witness testimony, 167 distract the judge 168 and harass t he defendant. 169 The television camera, according to the Court, 170 A 5 4 violated, with f our declaring that mere presence of cameras was an inhere nt violation of his rights. The Court did, however, leave open the possibility that technological advances c ould change the analysis noting 163 Id. at 536. 164 Id. at 537. 165 I d. at 544. 166 Id. at 545 47. 167 Id. at 547 48. 168 Id. at 548 49. 169 Id. at 549. 170 Id.
48 ever advancing techniques of public communication and the adjustment of the public to its presence may bring about a change in the effect of telecasting upon the 171 Estes v Texas the American Newspaper Publishers Association published Free Press and Fair Trial, a report that was the result of a two year study. 172 The special committee of the ANPA reached several conclusion s during its research : There is no real conflict bet ween the First Amendment guaranteeing a free press and the Sixth Amendment which guarantees a speedy and public trial, by an impartial jury. The presumption of some members of the Bar that pretrial news is intrinsically prejudicial is based on conjecture a nd not on fact. There are grave and inherent dangers to the public in the restriction or censorship of the source of news, among t hem secret arrest and secret trial. The press is a positive influence in assuring fair trial. The press has a responsibility t o allay public fears and dispel rumors by the disclosure of fact. No rare and isolated case should serve as cause for censorship and violation of constitutional guarantees. peopl e to know is one of our most fundamental rights, and neither the press nor the Bar has the right to sit down and bargain it away. The report attached a comprehensive review of relevant case law and proposed press guidelines for covering courts. 173 While the findings of the ANPA committee 171 Id. at 551 52 172 A MERICAN N EWSPAPER P UBLISHERS A SSOCIATION F REE P RESS AND F AIR T RIAL ( 1967). 173 Id. See also S.L. A LEXANDER C OVERING THE C OURTS (1999) and S.L. Alexander, Media and American Courts (2004). In Covering the Courts: A Handbook for Journalists Alexander offers a primer to the legal system and the free press/fair trial debate as well as a source of practical advice for journalists covering
49 next decade, cameras became more acceptable, despite the ruling in Estes. As cameras became more common and less intrusive, states be came more receptive to allowing them in courtrooms. In the mid 1970s, during the aftermath of the Watergate scandal, 174 the press began to lobby for increased electronic coverage of court proceedings. 175 At the same time, many states began allowing cameras in the courtroom, sometimes on a trial basis. Florida initiated a yearlong pilot program in without the c onsent of witnesses, jurors or defendants. 176 Former Florida Supreme Court Chief Justice Gerald Kogan recalled the fears present in those early days: the legal beat. She utilizes interviews with experienced legal journalists to illustrate the various aspects of the legal system and access issues. 174 In 1973, the major networks pooled their resources to air 37 days of hearings before Congress in the Watergate Scandal (a pol itical scandal involving criminal conduct in the White House that led to President comparison to previous coverage of Congressional hearings. Millions of Americans tuned in for gavel to See, e.g., Michael J. Robinson, The Impact of the Televis ed Watergate Hearings, 24 J. C OMM Issue 2 (June 1974). 175 Dean Emeritus of the University of Florida College of Journalism and Communications Ralph Lowenstein recalled these efforts in a 2000 interview: Florida is one of the most liberal states in the Unit ed States, one of the most open states. We have what is called the Sunshine Law, which not only [requires] open meetings but really open records as well. Florida was actually the first to get cameras in the courtroom. That happened after I came, and peo ple worked with FSNE and the Florida Association of Broadcasters on that. Interview with Ralph Lowenstein (Aug. 30, 2000), Samuel Proctor Oral History Collection, University of Florida, available at www.ufdc.ufl.edu 176 Barber, supra note 152 at 20. See also Petition of Post Newsweek Stations, Florida, Inc., 370 So. 2d 764, 781 (Fla. 1979) ( of the pilot p rogram, and supported by the limited empirical data developed through the surveys, it is our judgment that Canon 3A(7) should be amended to permit access to the courtrooms of this state by electronic media subject to standards adopted by this Court and sub ject also to the authority of the
50 [W]hen we decided to start broadcasting these things, I am talking now not only in appellate arguments but also trials in Florida, I had the same misgiving that the U.S. Supreme Court has today. But over the years, I realize that these were not horribles, that the benefits far outweighed what we thought were problems. Most of the problems never really came to fruition at all. We were afraid, for example, that judges would start playing to the cameras. We also were afraid that the attorneys would do the same thing. We were afraid [that] in jury trials, it would have a chilling effect on jurors, a chilling e ffect on witnesses that testified at the trial. We discovered over a period of time that none of this came about. We also developed a technique to the point where the cameras literally in most courtrooms were almost invisible. People did not even know t hat they were there. The judges and the attorneys became so used to them being there that it really did not affect us at all. 177 Florida was a leader in the movement to allow cameras in the courts not only by way of its pilot program and the groundbreaki ng access it permitted thereafter, but also trial. 178 In Chandler v. Florida th e defendants, like Billy Sol Estes, argued that the broadcast of their trial against their objections violated their rights to a fair trial. 179 The defendants were Miami Beach police officers arrested for burglary. 180 Less than three minutes of the trial wer e broadc ast 181 The officers appealed their convictions, alleging that television coverage deprived them of a fair trial. 182 The Court, in a unanimous presiding judge at all times to control the conduct of the proceedings before him to ensure a fair trial to 177 Interview with Justice Gerald Kogan (Nov. 27, 2001), Samuel Proctor Oral History Collection, U niversity of Florida, available at www.ufdc.ufl.edu 178 Chandler v. Florida, 449 U.S. 560 (1981). 179 Id. at 568. 180 Id. at 567. 181 Id. at 568. 182 Id.
51 decision, noted that in Estes, only four J ustices ruled that cameras were per se unconstitutional. The Cha ndler Court held that states were permitted to experiment with cameras in the courtroom: An absolute constitutional ban on broadcast coverage of trials cannot be justified simply because there is a danger that, in some cases, prejudicial broadcast accounts of pretrial and trial events may impair the ability of jurors to decide the issue of guilt or innocence uninfluenced by extraneous matter. The risk of juror prejudice in some cases does not justify an absolute ban on news coverage of trials by the printed media; so also the risk of such prejudice does not warrant an absolute constitutional ban on all broadcast coverage. A case attracts a high level of public attention because of its intrinsic interest to the public and the manner of reporting the event. Th e risk of juror prejudice is present in any publication of a trial, but the appropriate safeguard against such prejudice is the defendant's right to demonstrate that the media's coverage of his case -be it printed or broadcast -compromised the ability of t he particular jury that heard the case to adjudicate fairly. 183 The Court decided Chandler in 1981, noting that increases in technology made cameras less intrusive and distracting than ever before. 184 After that ruling, states (and the American Bar Associatio n) began a departure from the general ban on cameras in the courtroom that existed for the previous forty years. In 1982, the ABA changed its position on cameras, favoring discretion for news camera coverage to be exercised by er than a blanket ban. 185 Shortly after the Chandler decision, many states made experimental coverage permanent, and states with no coverage initiated pilot programs. 186 183 Id. at 574 75. 184 Id. 185 Barber, supra note 152 at 19. 186 Barber, supra note 152 at 17 19.
52 The State of the Law Today T hrough changing attitudes of courts, states and the ABA, came ras have now become commonplace in courtrooms. Although federal and state laws on cameras in the courtroom will be discussed in detail in Chapter 4 a brief overview is helpful in contextualizing the literature presented in Chapter 3. The law governing ac cess to state courts varies from state to state and comes in the form of statutes and judicial rules. Judicial rules (sometimes called canons) are functionally the same as statutes but are often developed and adopted by the judiciary, not the legislature. 187 The Radio Television Digital News Asso ciation (RTDNA) maintains a web 188 RTDNA categorized 189 Tier I states allow the most coverage. 190 Florida is a Tier I state; i ts rule allows exclusion of electronic media only if demonstrated. 191 Prohibition of coverage of important cases or large categories of Tier II states, such as Virginia. Virginia law prohibits electronic coverage of, among other types of cases, sexual offense trials. 192 187 See Rulemaking and Administrative Orders N ATIONAL C ENTER FOR S TATE C OURTS http://www.ncsconline .org/WC/CourTopics/FAQs.asp?topic=RuleAd (last visited Dec. 11, 2010). 188 Cameras in the Court: A State by State Guide R ADIO T ELEVISION D IGITAL N EWS A SSOCIATION http://rtdna.org/article/cameras_in_the_court_a_state_by_state_guide_updated (last visited Feb. 20, 2013 ). 189 In the newest version of its cameras in the court guide issued in November 2012, RTDNA did not categorize the states into tiers. However, the tie rs and their descriptions are still helpful in getting oriented to the area of law and for that reason are still described in this section. 190 Id. 191 Id. See also Fla. Rule. J. Admin. 2.170; Florida v. Palm Beach Newspapers, 395 So. 2d 544 (1981). 192 V A C OD E A NN Â§ 19.2 266 (1992).
53 Finally, Tier III states allow appellate coverage only or their rules are so restrictive that trial coverage is virtuall y impossible. 193 Alabama, for example, permits coverage only if all parties agree; even then, if a witness, juror, attorney or party to the case objects, the camera coverage must stop. 194 In addition to statutes, rules and canons, case law also comprises body of court decisions interpreting the applicable statute, rule or canon. At the federal level cameras are not allowed in trial courts. Federal appellate judges have discreti on to allow cameras, but only two U.S. Courts of Appeal, the Second and Ninth Circuits, have permitted coverage of oral arguments. 195 The U.S. Supreme Court does not permit television coverage of appellate arguments, though it does release audio recordings of oral arguments. 196 193 Cameras in the Court: A State by State Guide R ADIO T ELEVISION D IGITAL N EWS A SSOCIATION http://rtdna.org/article/cameras_in_the_court_ a_state_by_state_guide_updated (last visited Feb. 20, 2013 ). 194 Id. See also Canon 3A (7), 3A(7A), and 3A(7B), Ala. Canons of Judicial Ethics, A LA C ODE Â§ Vol. 23A. 195 Cameras in Courts, United States Courts, http://www.uscourts.gov/Multimedia/Cameras.aspx 196 Since the Bush v. Gore case in 2000, the U.S. Supreme Court will release oral recordings on the same day in certain high profile cases. Ahnalese Rushmann, Supreme Court grants rare access t o oral arguments audio Reporters Committee for Freedom of the Press, Apr. 21, 2009, available at http://www.rcfp.org/newsitems/index.php?i=10719. See also Robert L. Brown, Just a Matter of Time? Video Cameras at the United States Supreme Court and the S tate Supreme Courts 9 J. A PP P RAC & P ROCESS 1(2007); Bruce G. Peabody "Supreme Court TV": Televising the Least Accountable Branch? 33 J. L EGIS 144 (2007); Bruce D. Collins C SPAN'S Long and Winding Road to a Still Un Televised Supreme Court, 106 M ICH L. R EV F IRST I MPRESSIONS 12 (2007); Eric B. Easton, The Press as an Interest Group: Mainstream Media in the United States Supreme Court 14 UCLA E NT L. R EV 247 (2007); Stephen J. Wermiel, Conference: News Media Coverage of the United States Supreme Co urt 42 S T L OUIS L.J. 1059 (1998); Elizabeth M. Hodgkins, Court System Panel: Throwing Open a Window on the 4 K AN J.L. & P UB P OL Y 89 (1995); Todd Piccus, Note, Demystifying the Least U nderstood Branch: Opening the Supreme Court to Broadcast Media 71 T EX L. R EV 1053 (1993).
54 In the 1990s, federal courts conducted a three year experiment with cameras in the courtroom. 197 Even though judges participating in the experiment supported its continuation and research by the federal judiciary dispelled many concerns expressed by judges, the judiciary declined to allow cameras in federal courts. 198 The predominant 199 Judg es w ere also concerned with soundbite clips used in broadcasts. 200 These concerns have persisted In October 2009, a federal trial judge was reprimanded for allowing cameras in his court. 201 In his memorandum reprimanding the lower court judge, J udge Frank Easte rbrook wrote: courtroom is a subject of ongoing debate in the legislative and judicial branches, and 202 Th is debate continues, and in 2011 the federal judiciary launched another trial program to stud y cameras in the courts. 203 197 See Chance, supra note 3 See also Michael T. Martinez, Cameras in the Courts: A Case for Increased Judicial Transparency Paper P resented at the American Journalism Historians Conference, Oct. 7 1991 1994 experiment with cameras in the courtroom). 198 Chance, supra note 3 199 Chance, supra note 3 200 Chance, supra note 3 201 Rory Eastburg, Judge reprimanded for allowing cameras in courtroom N EWS M EDIA U PDATE available at http://www.rcfp.org/newsitems/index.php?i=11052 202 Id. 203 See Chapter 5, infra, for a discussion of the current federal pilot program.
55 CHAPTER 3 LITERATURE REVIEW Scholars have devoted extensive attention to the issue of pretrial publicity and cameras in the courtroom. 204 P sychology and legal scholars produce much of the literature, with the former focused on t he effects pretrial publicity and the latter focused on the tensions between First and Sixth Amendment rights. Within the legal approach to cameras in the courtroom, scholars have just begun to address the implications of new technology on access to court s. 205 Social Sciences Approaches to Media Coverage of the Courts At the heart of the free press/fair trial debate is an assumption that exposure to news accounts of a crime by jurors can prejudice them and therefore detract from the Sixth Amendment guarantee of an impartial jury. While jurors are not expected to be completely ignorant of alleged crimes, they cannot be so biased that they cannot set 204 See, e.g., Gary A. Hengstler, The Court of Public Opinion: The Practice and Ethics of Try ing Cases in the Media: Sheppard v. Maxwell Revisited Do the Traditional Rules Work for Nontraditional Media? 71 L AW & C ONTEMP P ROB 171 (2008); Elizabeth A. Stawicki, The Future of Cameras in the Courts: Florida Sunshine or Judge Judy 8 PGH. J. T ECH L. & P OL Y 4 (2007); Audrey Maness, Comment, Does the First Amendment's "Right of Access" Require Court Proceedings to be Televised? A Constitutional and Practical Discussion 34 P EPP L. R EV 123 (2006); Daniel Stepniak, Technology and Public Access to Au dio Visual Coverage and Recordings of Court Proceedings: Implications for Common Law Jurisdictions 12 W M & M ARY B ILL OF R TS J. 791 (2004); C. Danielle Vinson & John S. Ertter, Entertainment or Education: How Do Media Cover the Courts? 7 H ARV I NT L J. P RESS /P OLITICS 80 (2002); Ryan Brett Bell & Paula Odysseos, Sex, Drugs, and Court TV? How America's Increasing Interest in Trial Publicity Impacts Our Lawyers and the Legal System 15 G EORGETOWN J. L. E THICS 653 (2002); V.P. Hans & J.L. Dee, Media coverage of law 35 A MERICAN B EHAVIORAL S CIENTIST 136 (1991); Edith Greene & Elizabeth F. Loftus, What's New in the News? The Influence of Well Publicized News Events on Psychological Research and Courtroom Trials 5 B ASIC & A PPLIED S OC P SYCHOL 211 (1984). 205 Alt hough not discussed in this review of the literature, several scholars have taken a comparative international approach to the issues. See, e.g., Joanne Armstrong Brandwood, Trial s 75 N.Y.U. L. Rev. 1412 (2000). Simone Monasebian, Lessons from the Saddam Trial: Media Matters: Reflections of a Former War Crimes Prosecutor Covering the Iraqi Tribunal 39 C ASE W. R ES J. I NT L L. 305 (2007). Giorgio Resta, Trying Cases in the Media: A Comparative Overview 71 L AW & C ONTEMP P ROBS 31 (2008). Daniel Stepniak, A Comparative Analysis of First Amendment Rights and the Televising of Court Proceedings 40 I DAHO L. R EV 315 (2004).
56 aside preconceived notions of guilt. The line between mere knowledge of the issues surrounding a case and irreversible bias is one that can be hard to draw. A rich body of literature exists that examines the effects of publicity on trial outcomes. The American Jury (1966) was the result of the University of Chicago Law School Jury Project, which applied behavioral science methods to study the modern jury. Researchers recorded actual jury deliberations interviewed jurors after deliberations and surveyed judges (in addition to other techniques such as simula ted juries, public opinion surveys and statistical analysis of existing court records ) The results showed that most criminal cases are not decided during jury deliberations, but during the trial itself. 206 The study also found that juries and judges came to the same conclusion about 80% of the time. 207 The study did not specifically deal with the impact of publicity on jurors. However, Kalven would later by either a 208 Geof frey P. Kramer, Norbert L. Kerr, and John S. Carroll examined the effectiveness of three judicial remedies to combat jury bias from pretrial publicity. The authors first divided publicity into two cate gories: factual and emotional. Factual 206 Broeder The University of Chicago Jury Project, 38 N EB L. R EV 744, 747 (1959). 207 H ARRY K ALVEN J R & H ANS Z EISEL T HE A MERICAN J URY 63 (1966). 208 Donald Gillmor, Free Press v. Fair Trial: A Continuing Dialogue Sciences, 41 N.D L. R EV 156 (1965) (quoting Letter from Harry Kalven, Jr. to Hon. Herbert F. Goodrich, Director of the American Law Institute, Sept. 16, 1960). See also Rita Simon, in Nebraska Press Association Fit the Research Evidence on the Impact on Jurors of News Coverage? 29 S TAN L. R EV 515, 528 (1977) (analyzing behavioral science research to date on the effects of pretrial and base their decisions on the evidence. The results show that when ordinary citizens become jurors, they assume a special role in which they apply different standards of proof, more vigorous reasoning and
57 publicity contained incriminating information; emotional publicity did not contain incriminating information but did have information likely to arouse negative emotions. Of the three judicial remedies examined jud icial instructions, deliberation, and continuance only continuance served as an effective remedy. The authors studied 791 mock jurors, and using content analysis of deliberation and social decision scheme analysis, concluded that a delay of several days b etween exposure to publicity and the trial served to lessen the effects of factual publicity but not emotional publicity. 209 Edith Greene and Elizabeth F. Loftus studied the potential influence of unrelated but well publicized news events on trials. In two experiments, student subjects were given a booklet containing judicial instructions and descriptions of major pieces of evi dence in the hypothetical crime and a questionnaire indicating a verdict and demographic information. During the first experiment, a high profile case involving a man mistakenly identified and convicted of rape, but later exonerated, had captured headlines in the area where the students attended school. During the second experiment, a similar booklet was distributed, but the researche rs looked at whether the subjects read which had recently featured a story about another wrongly convicted man. The authors concluded that subjects in the first experiment who participated in the study while the news story was prominently featured (as opposed to three months before or afterward) were less likely to convict; in the second 209 Geoffrey P. Kramer et al., Pretrial Publicity, Judicial Remedies, and Jury Bias, 14 L AW & H UMAN B EHAV 409 (1990).
58 experiment, subjects who had read the magazine article were also less likely to convict. 210 Perhaps the most recent comprehensive look at the impact of pret rial publicity is Role in Trial Outcomes (2004). 211 Bruschke and Loges review ed all of the existing social science literature on pretrial publicity less than 50 studies a n umber the authors 212 Expanding on the data, 213 The theory that pretr ial publicity 214 Some types of publicity actually benefit defendants. The authors identify four conditions that must exist before pretrial publicity might material ly damage the interests of a defendant: juror exposure to publicity; all remedies (i.e., voir dire, judicial admonitions, continuances, trial evidence, and deliberations) fail at the same time; the evidence is close; and finally, the pretrial information is of probative value. 215 The authors conclude that the absence of pretrial 210 Edith Greene & Elizabeth F. Loftus, What's New in the News? The Influence of Well Publicized News Events on Psychological Research and Courtroom Trials 5 B ASIC & A P PLIED S OC P SYCHOL 211 (1984). 211 See also Jon Bruschke & William E. Loges Relationship between pretrial publicity and trial outcomes 49 J. C OMMC N 104 (1999); Robert G. Ridell II, Effects of pretrial publicity on male and female jurors and judges in a m ock rape trial 73 P SYCHOLOGICAL R EPORTS 819 (1993); Jonathan L. Freedman & Tara M. Burke, The effect of pretrial publicity: The Bernardo case 38 C ANADIAN J. C RIMINOLOGY 253 (1996). 212 J ON B RUSCHKE & W ILLIAM E. L OGES F REE P RESS V F AIR T RIALS : E XAMINING P UBLICITY S R OLE IN T RIAL O UTCOMES 150 (2004). 213 Id. at 134 35. 214 Id. at 136. 215 Id. at 136 37.
5 9 publicity effects is largely due to remedies in place to combat bias, and encourage r dire and judicial instructions. These remedies are effective and much less costly than remedies such as change of venue. 216 In addition to studies of pretrial publicity, social scientists have tested the effects of cameras in the courtroom, primarily thro ugh experimental research. In a study that focused on the effects of cameras in the courtroom on witness testimony and juror perceptions, Eugene Borgida, Kenneth G. DeBono and Lee A. Buckman used undergraduate students to serve as witnesses or jurors in three different types of trials: one where a video camera was present, one where a reporter was present, and one where neither a media representative nor equipment was present. The authors determined that witnesses and jurors in the trial where a camera w as present had significantly more favorable attitudes toward electronic media coverage of trials. Though witnesses and jurors in the camera trial reported more witness nervousness, distraction and awareness than the trial with just a reporter, the camera 217 Saul Kassin conducted an experiment with mock jurors who deliberated either in the presence or absence of a came ra. Kassin 216 Id. at 150. 217 Eugene Borgida et al., Cameras in the Courtroom: The Effects of Media Coverage on Witness Testimony and Juror Perceptions 14 L AW & H UMAN B EHAV 4 89 (1990). See also E RNEST H. S HORT E VALUATION OF C ALIFORNIA S EXPERIMENT WITH EX TENDED MEDIA COVERAG E TO THE COURTS 228 (1981) coverage] causes significa Slater & V.P. Hans, 39 C OMM Q. 376 380 (1982); V.P. Hans & J.L. Dee, Media coverage of law 35 A M B EHAV S CI 136 (1991); M.E. K ATSH T HE ELECTRONIC MEDIA AND THE TRANSFORMATI ON OF LAW (1989).
60 concluded that although the mock jurors were at first nervous and distracted, the distracting effect diminished over time. 218 Legal Approaches to Media Coverage of the Courts The conflict between the First Amendment right to a free press and the Sixth Amendment right to a fair trial has often been the subject of analysis for scholars and practitioners. 219 Much of the available free press/fair trial literature, especially since the 1980 Richmond Newspapers decision finding a First Amendment right o f the public and press to attend trials, is grounded in First Amendment theory and jurisprudence. Though not discussed in detail in this literature review, this researcher would note that within the body of literature on cameras in the courtroom, two sign ificant sub categories have emerged one wave of inquiry prompted by the 1995 murder trial of O.J. 218 S. Kassin, TV cameras, public self consciousness, and mock jury performance, 20 J. E XPERIMENTAL S OC P SYCHOL 336 349 (1984). 219 See also Jennifer L. Johnson Empowerment lawyering: The role of trial publicity in environmental justice 23 B.C. E NVTL A FF L. R EV 567 (1996); Hon. Gilbert S. Merritt, Courts, Media and the Press 41 S T L OUIS L.J 505 (1997); Travis L. Dixon & Daniel Linz, Television News, Preju dicial Pretrial Publicity, and the Depiction of Race 46 J. B ROAD & E LEC M EDIA 112 (2002); C. Danielle Vinson & John S. Ertter, Entertainment or Education: How Do Media Cover the Courts? 7 H ARV I NT L J P RESS /P OLITICS 80 (2002); Catherine Stehlin, Note, Profile Celebrity Trials, 12 V ILL S PORTS & E NT L.J. 297 (2005); Samuel A. Terilli, et. al, Lowering the Bar: Privileged Court Filings as Substitutes for Press Releases in the Court of Public Opinion 12 C OMMC N L AW & P OL Y 143 (2007); Gary A. Hengstler, The Court of Public Opinion: The Practice and Ethics of Trying Cases in the Media: Sheppard v. Maxwell Revisited Do the Traditional Rules Work for Nontraditional Media? 71 L AW & C ONTEMP P ROB 171 (2008); M.A. "Mike" Kautsch, Press Freedom and Fair Trials in Kansas: How Media and the Courts Have Struggled to Resolve Competing Claims of Constitutional Right s 57 K AN L. R EV 1075 (2009).
61 Simpson 220 and another devoted to the somewhat notorious aversion to cameras in the federal courts, especially the Supreme Court. 221 In Justice and the Media: Reconciling Fair Trials and a Free Press, Matthew D. Bunker analyzes the free press/fair trial debate from a traditional First Amendment perspective. Bunker suggests a categorical approach to protecting speech about the criminal justice system, placing su 222 Bunker argues that some precedent for such a categorical approach exists in Cox Broadcasting v. Cohn 223 and Nebraska Press Association v. Stuart. 224 Bunker articulates his categorical rule : 220 See generally P AUL T HALER T HE W ATCHFUL E YE : A MERICAN J USTICE IN THE A GE OF THE T ELEVISION T RIAL (1994); George Gerbner, Cameras on Trial: The `O.J. Show' turns the tide 39 J. B ROAD & E LEC M EDIA 562 (1995); Sandra F. Ch ance, Considering cameras in the courtroom 39 J. B ROAD & E LEC M EDIA 555 (1995); Steven Fein, et. al, Hype and Suspicion: The Effects of Pretrial Publicity, Race, and Suspicion on Jurors' Verdicts 53 J. S OC I SSUES 487 (1997); P AUL T HALER T HE S PECTACLE : M EDIA AND THE M AKING OF THE O.J. S IMPSON S TORY (1997); T HE O.J. S IMPSON T RIALS : R HETORIC M EDIA AND THE L AW (1999). 221 N.Y. T IMES Mar. 30, 1996, http://www.nytimes.com/1996/0/30/us /on cameras in supreme court souter says over my dead body.html See generally Elizabeth M. Hodgkins, Court Television 4 K AN J.L. & P UB P OL Y 89 (1995 ); Stephen J. Wermiel, Conference: News Media Coverage of the United States Supreme Court 42 S T L OUIS L.J. 1059 (1998); Robert L. Brown, Just a Matter of Time? Video Cameras at the United States Supreme Court and the State Supreme Courts 9 J. A PP P RAC & P ROCESS 1(2007); Eric B. Easton, The Press as an Interest Group: Mainstream Media in the United States Supreme Court 14 UCLA E NT L. R EV 247 (2007); Bruce D. Collins C SPAN'S Long and Winding Road to a Still Un Televised Supreme Court, 106 M ICH L. R EV F IRST I MPRESSIONS 12 (2007); Bruce G. Peabody "Supreme Court TV": Televising the Least Accountable Branch? 33 J. L EGIS 144 (2007); Diarmuid F. O'Scannlain, Covering the Appellate Courts: Some Reflections on Cameras in the Appellate Courtroom 9 J. A PP P RAC & P ROCESS 323 (2007); Richard J. Peltz, Covering the Appellate Courts: Bringing Light to the Halls of Shadow 9 J. A PP P RAC & P ROCESS 291 (2007); Robert Craig Waters, Technological Transparency: Appellate Court and Media Relations after Bush v. Gore 9 J. A PP P RAC & P ROCESS 331 (2007); T IMOTHY R. J OHNSON & J ERRY G OLDMAN A G OOD Q UARREL : A MERICA S T OP L EGAL R EPORTERS S HARE S TORIES FROM I NSIDE THE S UPREME C OURT (2009). 222 M ATTHEW D. B UNKER J USTICE AND THE M EDIA : R ECONCILING F AIR T RIALS AND A F R EE P RESS 140 (1997). 223 Cox Broad. v. Cohn 420 U.S. 469 (1975). 224 B UNKER supra note 222 at 140 41; 427 U.S. 539 (1976).
62 The First Amen dment compels press and public access to all judicial proceedings involving a criminal defendant, regardless of countervailing considerations. Moreover, prior restraints of any duration and post publication criminal sanctions against speech related to the criminal justice system violate the First Amendment, unless that speech is of a sort that would result in direct, immediate, and inevitable harm to national security. In addition, civil sanctions against reasonably accurate speech directly pertaining to criminal proceedings, as well as to pretrial events such as arrests, searches, interrogations, and the like, violate the First Amendment. These principles also apply to quasi criminal proceedings that enforce ethics or disciplinary codes against public of ficials, including judges. 225 Bunker rejects a balancing approach in favor of categorical protections for media coverage of the criminal justice system. 226 Communications scholar Peter E. Kane uses five famous court cases to illustrate the tensions between the First and Sixth Amendments in his book Murder, Courts, and the Press: Issues in Free Press/Fair Trial (1986). 227 Kane focuses on the responsibilities of the trial judge to employ various techniques to guarantee a fair trial by an impartial jury. As descri bed by the U.S. Supreme Court in Sheppard v. Maxwell these techniques include : issuing orders controlling conduct of officers of the court; postponing the trial; granting a change of venue; thorough voir dire examination of jurors; and sequestering jurors to prevent outside influence. 228 Kane notes that these techniques do not interfere with the First Amendment rights of the press and public, and 225 B UNKER supra note 222 at 143. 226 Id. at 14 5. 227 P ETER E. K ANE M URDER C OURTS AND THE P RESS : I SSUES IN F REE P RESS /F AIR T RIAL (1986). Kane uses the cases of Sam Sheppard ( Sheppard v. Maxwell ), Charles Manson and his followers, Erwin Simants ( Nebraska Press Association v. Stuart ), Wayne Clapp ( Gann ett v. DePasquale ), and John Paul Stevenson ( Richmond Newspapers v. Virginia ). 228 Id. at 64 65.
63 229 However, Kane acknowledg es that problems still remain, especially because First Amendment rights will generally remain intact regardless of whether the media acts responsibly. 230 As Kane points out, individual trial judges play a powerful role in managing media access and activity. The access law of many states affords judges a great degree of discretion in allowing cameras in courtrooms Attorney and First Amendment Center one has recognized a right to broadcast a trial. Rather, the courts most receptive of cameras allow judges broad discretion in deciding whether 231 of great importance, and w hy studies of their attitudes are helpful. S ome surveys of state judges show resistance to cameras in the courtroom. 232 A cameras in the courtroom, showed that 36% of judges felt that television coverage of criminal trials should not be permitted; 43% thought coverage should be denied unless the defendant consented. 233 An overwhelming majority, 80%, thought television 229 Id. at 67. 230 Id. at 68. 231 Douglas Lee, Cameras in the Courtroom F IRST A MENDMENT C ENTER Sept. 13, 2002, http://www.firstamendmentcenter.org/cameras in the courtroom 232 See, e.g., An Open Courtroom: Cameras in New York Courts 1995 1997 N EW Y ORK S TATE C OMMITTEE TO R EVIEW A UDIO V ISUAL C OVERAGE OF C OURT P ROCEEDINGS Apr. 4, 1997. 233 Id
64 coverage would be a source of entertainment rather than educ ation for the public. 234 Ano ther survey of state supreme court justices found that cameras in the courtroom garnered the least support from justi ces among the nine free speech subjects studied. 235 Interestingly, access to courts gained the most support from the surveyed judges 236 As the author of that study noted, state attitudes are important because most press issues involve state courts interpreting state law. 237 When trial judges are presented with a high profile case that might garner throngs of reporter s and spectators, both legal and non legal techniques can be employed to manage the proceedings. David A. Sellers, Assistant Director for Public expeditiously and thoroughl y addressing cameras in court, advancing technology, and media seating the three areas with the greatest potential for court and media confrontation 238 Sellers asserts that to balance the various interests at play during a high profile trial the 234 Id. 235 Dennis Hale, 22 N EWSPAPER R ES J. 33 (2001). The nine subject areas were: media protection against libel suits; media protection against privacy suits; reporters privilege, access to gover nment meetings and records; cameras in the courtroom; access to trials; high school student freedom of speech; pamphleteering; and possession of erotic materials. See also F. Dennis Hale, 5 V I SUAL C OMMC N Q Issue 1 (1998). 236 Hale, 237 Id. at 28. 238 David A. Sellers, The Circus Comes to Town: The Media and High Profile Trials 71 L AW & C ONTEMP P ROBS 181, 181 (2008).
65 there are a wide var iety of options available to judges and court administrators. 239 Sellers first recommends a court media plan addressing logistical issues such as parking and access to evidentiary exhibits. The plan can be used as an outline for a decorum order the judge can issue to manage media access. 240 Trial courts should make available online their rules for camera coverage of court proceedings. Courts can require pooling of cameras, a written application by the media to gain access, and restrict movement of camera o perators during court. 241 Sellers notes that while almost every court has an established camera policy, policies regarding laptops, cell phones, and other electronic devices are less clear. 242 Finally, because courtroom seating is commodity a court possesses during a high managing seat assignments can be a difficult task. Sellers recommends working with a representative of the media to negotiate reserved seating for the media, and notes that defining a member of the bloggers and citizen journalists who do not work for traditional media organizations. 243 Within the broader debate over free press and fair trial, the question of whether to even permit te levised court proceedings often looms large. In her 1987 book News Cameras in the Courtroom: A Free Press Fair Trial Debate, Susanna Barber concludes that televised trials usually fail to fulfill a true public education function because the 239 Id. at 184. 240 Id. 241 I d. 242 Id. at 191. 243 Id. at 197 98.
66 sensational na ture of trials that are chosen for broadcast offers a distorted view of the legal system. 244 those relating to the impact of televised trials on the defendant. Barber concludes that futur e research should focus on the comparative effects of newspaper versus broadcast coverage. 245 Furman University professors Danielle C. Vinson and John S. Ertter came to similar conclusions as Barber in regards to the potential for distorted perceptions of the legal system. Vinson and Ertter concluded that their content analysis of coverage judicial process through the media, especially newspapers. 246 However, they are likely to learn the most about the unusual cases that have the least significance to the 247 The public education aspect of televising courtroom proceedings is one often cited by proponents of cameras in the courtroom. Chief Judge of the U.S. Court of Appeals for the Ninth Circuit Alex Kozinsk i recently co authored a law journal article wherein he urged opponents to rethink their aversion to cameras in the court, calling t goes on inside 244 S USANNA B ARBER N EWS C AMERAS IN THE C OURTROOM : A F REE P RESS F AIR T RIAL D EBATE 119 20 (1987). 245 Id. at 122. See also R ONALD L. G OLDFARB TV OR N OT TV: T ELEVISION J USTICE AND THE C OURTS ( 1998); Gary A. Hengstler, The C ourt of Public Opinion: The Practice and Ethics of Trying Cases in the Media: Sheppard v. Maxwell Revisited Do the Traditional Rules Work for Nontraditional Media? 71 L AW & C ONTEMP P ROB S 171 (2008); Elizabeth A. Stawicki, The Future of Cameras in the C ourts: Florida Sunshine or Judge Judy 8 PGH. J. T ECH L. & P OL Y 4 (2007). 246 C. Danielle Vinson & John S. Ertter, Entertainment or Education: How Do Media Cover the Courts? 7 H ARV I NT L J. P RESS /P OLITICS 80, 95 (2002). 247 Id.
67 248 Chief Judge Kozinski and co author Robert Johnson posit that increased public scrutiny can improve the trial process if judges, attorneys, and trial participants are motivated to act more conscientiousl y. 249 The authors also point to surveys of jurors and witnesses that demonstrate that cameras neither affected nor distracted them. 250 Advocating transparency, the authors state that hange the 251 The authors use new technology such as the ability to cover trials in real time via Twitter to illustrate that the public has no way to evaluate such coverage (or statements from the public posted to Twitt er) when cameras are prohibited. 252 248 Alex Kozinski & Robert John son, Of Cameras and Courtrooms, 20 F ORDHAM I NTELL P ROP M EDIA & E NT L.J. 1107, 1109 (2010). 249 Id. at 1114. 250 Id. at 1115. See F ED J UDICIAL C TR ., E LECTRONIC M EDIA C OVERAGE OF F EDERAL C IVIL P ROCEEDINGS : A N E VALUATION OF THE P ILOT P ROGRAM IN S IX D ISTRICT C OURTS AND T WO C OURTS OF A PPEALS (1994); M ARJORIE C OHN & D AVID D OW C AMERAS IN THE C OURTROOM : T ELEVISION AND THE P URSUIT OF J USTICE 62 coverage gener 251 Id. at 1119. In 2001, CourtTV (now TruTV) Chairman and CEO Henry Schlieff wrote that allowing al so increase accountability. As former U.S. Supreme Court Justice Louis Brandeis said about Cameras in the Courtroom: A View in Support of More Access H UMAN R IGHTS Fall 2001, at 14, available at http://www.abanet.org/irr/hr/fall01/schleiff.html 252 Kozinski & Johnson supra note 248 at 1126 27. For additional scholarly commentary on telev ision access to court proceedings, see generally, Ryan Brett Bell & Paula Odysseos, Sex, Drugs, and Court TV? How America's Increasing Interest in Trial Publicity Impacts Our Lawyers and the Legal System 15 G EORGETOWN J. L EGAL E THICS 653 (2002); Daniel St epniak, Technology and Public Access to Audio Visual Coverage and Recordings of Court Proceedings: Implications for Common Law Jurisdictions, 12 W M & M ARY B ILL OF R TS J. 791(2004); Audrey Maness, Comment, Does the First Amendment's "Right of Access" Requi re Court Proceedings to be Televised? A Constitutional and Practical Discussion 34 P EPP L. R EV 123 (2006); Daniel H. Erskine, An Analysis of the Legality of Television Cameras Broadcasting Juror Deliberations in a Criminal Case 39 A KRON L. R EV 701 (20 06); Shelly Rosenfeld, Will Cameras in the Courtroom Lead to More Law and Order? A Case for Broadcast Access to Judicial Proceedings 6 C RIM L. B RIEF 12 (2010).
68 Technological Change and Live Coverage of Court Proceedings Kozinski and Johnson touched on some of the new dimensions that electronic devices are adding to the traditional debate over cameras in the courtroom. The body of literature devoted to newer technologies such as streaming audio and courtroom blogging and tweeting is scarce a gap this study is intended to fill. The LexisNexis legal database of law reviews and journals was used to identify and retrieve relev ant scholarly work. Because this an emerging area of scholarship, student notes and case comments were included for review. In addition to scholarly articles, a report on the issue of new media and the courts prepared by the Conference of Court Public In formation Officers is also examined. Elizabeth A. Stawicki, an attorney and longtime legal affairs correspondent for Minnesota Public Radio, asserts that electronic broadcasting devices both audio and video are not just desirable on an abstract level but o n a practical level are necessary due to the decline of the newspaper industry. 253 the public if it relies solely on print journalists to detail what occurs in America's 254 Public education is the strongest reason for opening up the judicial branch to electronic broadcast coverage, according to Stawicki. If coverage is not available, the public will turn to other sources for an understanding of the legal system namely, rea lity shows such as Judge Judy and legal 253 Elizabeth A. Stawicki, The Future of Cameras in the Courts: Florida Sunshine or Judge Judy 8 PGH. J. T ECH L. & P OL Y 4 (2007). 254 Id. at 28.
69 talk shows by the likes of Nancy Grace which will serve as a poor substitute for the real thing. 255 The ability of individuals with mobile electronic devices to capture images and recordings in public and broadly diss 256 Kreimer contends: With the diffusion of digital image technology in the last decade, pervasive image capture and sharing has become an increasingly "salient" medium of expression both in public and in private. In public, pervasive image capture grants authority to a range of unofficial voices; it provides a means of holding the conduct of the powerful to account. it foll ows that the First Amendment protects the right to record images we observe as part of the right to form, reflect upon, and share our memories. 257 extension of First Amendment protectio ns in the context of courtroom activity, his public at court proceedings. Kreimer asserts that this now commonplace technology is a foundation of public discourse and 258 Adriana C. Cervantes makes t he case for tweets in the courtroom in her Note addressing the variety of legislative an d judicial responses to reporters who wish to use 255 Id. at 30 31. 256 Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. P A L. R EV 335 (2011). 257 Id. at 408 09. 258 Id. at t 344.
70 Twitter as a means of covering court proceedings instantly. 259 Cervantes contends that existing laws restricting broadcasting are overbroad and do not take into account new technologies such as Twitter. 260 Be cause a complete ban on mobile electronic devices is unrealistic, Cervantes proposes that judges: [R]equir[e] reporters who want to broadcast during trial to make a written media request to the judge, indicating the scope and type of broadcasting coverage sought. This written request will allow the judge to address any potential broadcasting problems, such as a parties who do not want the trial broadcast or trials in which witnesses are uncomfortable with their testimony being broadcast. Most importantly, t he judge will know whether an individual wants to take pictures, video, or tweet. A judge who is opposed to cameras can still allow the broadcasting of notes. While this middle ground would still allow judges to restrict cameras in the courtroom, it will m ake news regarding trials available instantly and in larger quantities than ever before. 261 The request can serve as an agreement between the judge and the media and lay ground rules for courtroom behavior. 262 In the end, Cervantes argues, Twitter can help in crease both public understanding of the legal system and transparency in the courts, benefits that justify careful consideration before prohibiting its use. 263 In a real world example of how Twitter served to inform the public of court proceedings when camer as were banned, the U.S Supreme Court stayed the Northern District of California from broadcasting proceedings related to a challenge to Proposition 8, an initiative narrowly passed by California voters which outlawed same sex marriage 259 Adriana C. C ervantes, Note, Will Twitter be Following You in the Courtroom? Why Reporters Should be Allowed to Broadcast During Courtroom Proceedings, 33 H ASTINGS C OMM & E NT L.J. 133 (2010). 260 Id. at 157. 261 Id. at 156. 262 Id. at 156 57. 263 Id. at 157.
71 in that state. The challenge to the constitutionality of the law was initiated in federal court, and the district judge permitted live audio and video streaming of the trial. In staying broadcasts of the trial, the Supreme Court determined that the district court did not am end its local rules in compliance with federal law. 264 Attorney Matthew E. Feinberg analyzed the Proposition 8 decision, and in a law impose a rebuttable presumption that video broadcasting of civil court proceedings is 265 Feinberg asserts that the Supreme Court, if properly presented with the issue, would be likely to impose such a presumpt 266 If his rule were applied in the Proposition 8 case, broadcast coverage would have been permitted, Feinberg states. 267 According to Feinberg With the technological advances of the YouTube age that allow video cameras and instant Internet uploads in the palm of one's hand, video access to courtrooms is not the disruption it once was. These cases will shape the lives of the American people. The c 268 264 Hollingsworth v. Perry, 130 S. Ct. 705 (2010). This researcher will analyze the Hollingsworth v. Perry cas e in depth in Chapter 5 of this study 265 Matthew E. Feinberg, The Prop 8 Decision and Courtroom Drama in the YouTube Age: Why Camera Use Should be Permitted in Co urtrooms During High Profile Civil Cases 17 C ARDOZO J.L. & G ENDER 33 (2010). 266 Id. at 51. 267 Id. at 62. 268 Id. at 63. See also Jordan K. Schwarz, Comment, Local District Court Rule Does Not Provide Judge In re Sony BMG Music Entertainment, 564 F. 3d 1 (1 st Cir. 2009) 43 S UFFOLK U. L. R EV 787, 795 take action to update the policy concerning electronic media coverage of federal civil cases, decis ions
72 The Conference of Court Public Information Officers (CCPIO) released its New Media and the Courts: The Current Status and a Look at the Future in August 2010. 269 The project was the result of an inf o rmal idea sharing site on Ning.c om 270 as well as a national survey of judges, magistrates and court administrators. 271 The report identified seven categories of new technologies that impact the courts: 1. Social Media Profile Sites (e.g., Facebook, MySpace, Li nkedIn, Ning) 2. Microblogging (e.g., Twitter, Tumblr, Plurk) 3. Smart Phones, Tablets & Notebooks (e.g., iPhone, Droid, Blackberry) 4. Social Search, Quantcast) 5. News categorizing, sha ring and syndication (e.g., blogs, RSS, Digg, Reddit, del.iciou.us) 6. Visual media sharing (e.g., YouTube, Vimeo, Flikr) 7. Wikis 272 The National Center for State Courts administered the online survey to 16,000 individuals in the court community during June 2010 273 Approximately 810 respondents completed the entire survey while 789 submitted partially completed surveys. 274 Highli ghts of the survey : Of the judges surveyed, 40% reported use of a proceedings] will strike the public as an impractical impediment to the use of technology for the 269 C ONFERENCE OF C OU RT P UBLIC I NFORMATION O FFICERS N EW M EDIA AND THE C OURTS : T HE C URRENT S TATUS AND A L OOK AT THE F UTURE (2010 ). A copy of the executive summary is available here: http: //www.ccpio.org/documents/newmediaproject/CCPIO_newmedia_execsumm.pdf A copy of the full report is available here: http://www.ccpio.org/documents/newmediapro ject/New Media and the Courts Report.pdf 270 271 C ONFERENCE OF C OURT P UBLIC I NFORMATION O FFICERS N EW M EDIA AND THE C OURTS : T HE C URRENT S TATUS AND A L OOK AT T HE F UTURE (2010). 272 Id. 273 Id. 274 Id.
73 social media profile, mostly Facebook. 275 This mirrors the percentage o f the U.S. adult population using social media profile sites. 276 More than half of judges responding reported using routine juror instructions that included references to using new media during the trial. 277 Slightly less than 10% of judges reported seeing j urors use new media in the courtroom. 278 Few courts reporting using social media, microblogging or visual media sharing sites. 279 About 25% of respondents reported that new media are necessary for public outreach. 280 The report predicted that in the future, more courts would create official social media profiles ; judges would increasingly use social media sites for professio nal and personal use; courts would continue to provide primary content, often multimedia content; and PIOs and information technology o fficers would form stronger partnerships. 281 The recommendations of the report included continuation of the CCPIO New Media Ning site; more collaboration among national judicial associations; administration of the survey as a longitudinal study to monitor trends; development of a survey for the general public; and development of tools such as best practices and 275 Id. 276 Id. 277 Id. 278 Id. 279 Id. 280 Id. 281 Id.
74 checklists to assist courts in responding to new media while balancing free speech and access to courts. 282 CCPIO conducted similar studies in 2011 an d 2012 for comparison. In 2011, CCPIO found that an increasing number of judges used jury instructions with a provision on the use of electronic devic es 283 Institutional social media profiles gained acceptance by the respondents in comparison to 2010, and there was a 5.1% increase in respondents who reporting working at a court with a profile on a social media site 284 The 2012 study found that judges were more willi ng to participate in the survey and reported increased used of the technologies surveyed. 285 The percentage of judges who strongly agreed that their personal use of social media did not threaten professional ethics doubled since the first year of the survey, as did the percentage of judges who strongly agreed that courts as institutions can use te chnology without compromising their ethics and that new media are necessary for public outreach. 286 In summary, the extant literature on media coverage of the courts has focused on the effects of pretrial publicity and the tensions between the First and Sixt h Amendments. Other areas of focus include the repercussions of the O.J. Simpson trial and the tradition in the federal courts of an aversion to televised proceedings. A handful 282 Id. 283 C ONFERENCE OF C OURT P UBLIC I NFORMATION O FFICERS 2011 CCPIO N EW M EDIA S URVEY N EW M EDIA AND THE C OURTS : T HE C URRENT S TATUS AND A L OOK AT THE F UTURE available at http://ccpio.org/blog/2011/08/11/2011 survey repor/ 284 Id. 285 C ONFERENCE OF C OURT P UBLIC I NFORMATION O FFICERS 2012 CCPIO N EW M EDIA S URVEY N EW M EDIA AND THE C OURTS : T HE C URRENT S TATUS AND A L OOK AT THE F UTURE available at http://ccpio.org/publications/reports/ 286 Id.
75 of scholars have begun to tackle the problems posed by new technology and ac cess to courts, but further analysis is warranted. This study seeks to fill the gaps in the literature related to new media and coverage of the courts.
76 CHAPTER 4 TRADITIONAL CAMERAS IN THE COURTROOM While the ultimate goal of this study is to identify th e law of mobile technology in courtroom the type of technology that shaped most of the major jur isprudence in this area. This C hapter examines the law of cameras in the co urtroom in the traditional broadcasting context, typically by television news media outlets. A 50 state survey of the law of cameras in the courtroom is presented, followed by a discussion of the federal law on the issue. As discussed in Chapter 1, the m ethodology for identifying this area of the law involved using the Radio Television Digital News Association (RTDNA) 287 This source is well regarded in the field and was most recently updated in the fall of 20 12. Using this compilation as a starting point, the relevant law was further researched using the LexisNexis legal database. The laws of cameras in federal courtrooms was initially identified at the U.S. Courts website and then further analyzed, also usi ng the LexisNexis legal database. 50 State Survey of Cameras in the Courtroom Before launching into the 50 state survey of the law of cameras in the courtroom, it is helpful to identify some of the common issues that the laws address. First, states that p ermit covera ge often have different rules for different types of court. The broadest distinction would be between trial courts (where witnesses testi fy, evidence is presented, and factfinding occurs ) and appellate courts (where the facts of the case are e stablished and appellate judges review cases based on paper records and sometimes 287 Cameras in the Court: A State by State Guide R ADIO T ELEVISION D IGITAL N EWS A SSOCIATION http://rtdna.org/article/cameras_in_the_court_a_state_by_state_guide_updated (last visited Feb. 20, 2013 ).
77 oral argument by attorneys). Many of the concerns raised by opponents of camera coverage are applicable only in the trial context, where the effects on witnesses, jurors, an d defendants have greater potential to jeopardize the fairness of the proceeding. At the appellate level, there are no witnesses, and if a case does come before the appellate judges for oral arguments, the process generally consists of attorneys making ti me limited arguments interspersed with questions by the judges. Accordingly, there is usually little real or perceived harm that can come from televising appellate proceedings, although in high profile cases courtroom decorum can be problematic. In add ition to the trial/appellate distinction, some states also allow different types of coverage depending upon the type of proceeding i.e., probate, family, juvenile court, administrative proceedings, jury selection, and cases involving m inors or sex offenses Another factor the state laws often address is the number of devices permitted, such as one television camera and one still photographer. A lthough they will not be addressed in detail below nearly all stat es who permit coverage have these limitations and generally limit the press to 1 2 each still cameras, television cameras, and audio recording systems. These restrictions give rise to the common practice of mak ing pooling arrangements. Finally, the laws often outline who must provide consent for coverage (i.e., the judge and parties) and who may object to coverage. Alabama allows cameras in trial and appellate courts in both criminal and civil proceedings if a plan for coverage 288 has been approved by the Supreme Court of 288 o describe electronic coverage, audio and visual.
78 all parties and their attorneys must provide written consent. The same standard applies in appellate courts Trial court coverage must be halted any time a witness, party, juror, or attorney objects. 289 Alaska courtrooms but anywhere in a state court facility. However, the press must fi rst obtain the consent of the presiding judge, at least 24 hours prior to the proceeding. All parties must also consent in family 290 proceedings. The law prohibits p hotographing or filming juror s in the courtroom Similar prohibitions apply to sex crime v ictims unless the victim and court consent. Coverage privileges can be suspended for up to a year if the media coverage plan is violated. 291 Arizona permits cameras at all court levels. Judges have discretion to keep cameras out, but only if the likelihood of harm outweighs the benefit to the public. The media can use personal audio recording devices that are not distracting to others in the courtroom. The media should request coverage two days prior to a proceeding unless the proceeding is scheduled o n short notice. Artificial lighting is prohibited absent the consent of the judge Coverage is not permitted in juvenile court proceedings, though there is specific exception in the rule for adoption proceedings where the parties agree to coverage for pur poses of memorializing the event 292 289 A LA C ODE Â§ Vol. 23A; Canon 3A(7), 3 A(7A), and 3A(7B) of the Ala. Canons of Judicial Ethics. 290 la ws to cover a variety of matters that are often expressly described in the statute, i.e., adoption, paternity, divorce, custody, and domestic violence. 291 Rule 50, R. Governing the Admi n. Cts., Alaska R. Ct. 292 Rule 122, R. Ariz. S. Ct.; A RIZ R EV S TAT Â§ Vol. 17A.
79 Arkansas will not be distracted. If a party objects, all coverage is excluded, but if a witnes s objects, only coverage of that witness will be banned. Juvenile, probate, drug court, and dome stic matters cannot be covered Prohibitions also exist on coverage of jurors, minors without consent, sex crime victims, undercover law enforcement, and info rmants. 293 California home to many high profile, televised legal proceedings, such as the trials of O.J. Simpson and Michael Jackson, has a cameras in the courtroom law that permits coverage by written order of the judge. The request must be made five days prior to the proceeding on an official form provided by the courts. There are prohibitions on coverage of jury selection, in chamber proceedings, attorney conferences, and proceedings closed to the public. Coverage of jurors and spectators is also prohi bited. 294 Of note, Los Angeles Superior Court has a local rule (2.17) that bans anyone inside a courtroom from using a camera or broadcasting device without express permission. Restrictions extend beyond the courtroom, with coverage only permissible in des ignated media areas or with prior permission. 295 In Colorado cameras are allowed in all courts, and if judges want to prohibit coverage, they must make a finding that there is a substantial likelihood that the coverage will interfere with a fair trial, a re asonable likelihood it will detract from the 293 Admin. Order No. 6, Rules of Civil Procedure, Appendix, Arkansas Code of 1987 Annotated (Court Rules). 294 Rule 1.150, Cal. R. Ct. 295 Rule 2.17, L.A. Super. Ct. Local R. See also San Francisco Superior Court Standing Order (prohibiting coverage i n hallways and public areas of the courthouse), available at http://www.sfsuperiorcourt.org/sites/default/files/pdfs/Media%2BCCC%2BStanding%2BOrder.pdf
80 dignity of the court, or that it will create unique harm that is different from other types of media. Written requests for coverage must be submitted at least a day in advance. No coverage of jury selection is allowed, and most pretrial hearings are not subject to camera coverage. 296 Connecticut permits camera coverage in trial and appellate courts, with appellate court proceedings (except sex offense or family cases) presumed open to such coverage. Appellate j so, there are no reasonable alternatives to such limitations, and the limitation is no 297 In trial courts media organizat ions who want to cover proceedings must be approved by the Office of 298 Coverage is not allowed in cases relat ed to family relations, juvenile matters, sexual assault, or trade secrets. Notably, coverage in jury trials is limited to when the jury is present in the courtroom, though coverage of jury selection is not allowed. Connecticut law also has rules specifi c to the type of trial court proceeding criminal or civil. Criminal coverage requires written notice three days in advance, and the court has the discretion to limit or exclude coverage. Equipment should not be distracting and must remain stationary duri ng proceedings. 299 296 Ch. 38, R. 2, Colo. S. Ct. R. 297 Â§Â§ 70 9, 70 10, Conn. R. App. Proc. 298 Â§Â§ 1 10, 1 11, Conn. R. Super. Ct. 299 Id.
81 The Supreme Court of Delaware permits appellate coverage, which is allowed in the form of an indefinite extension of an appellate experiment initiated in 1982. Limited coverage is permitted in some trial courts, which began in 2004 with a six month experiment. The trial court experiment was also extended indefinitely, but only permits coverage of non confidential, non jury, civil proceedings in specified courts and counties. The rules of the trial criminal, family, and justice of the pea ce courts all forbid coverage. 300 The District of Columbia does not allow camera coverage. Exceptions may be federal rules. 301 It is not surprising that Florida whose cameras in the courts pilot program and resulting U.S. Supreme Court decision in Chandler v. Florida helped pave the way for widespread state adoption of laws allowing coverage, has a camera friendly law. Cameras are permitted in both appellate and trial courts, subject to the approval of the presiding judge. Coverage can be prohibited only if a showing is made that there is a forms of coverage. 302 Coverage equipmen t must not be distracting and artificial lighting is prohibited, though changes can be made to the existing lighting i n the courtroom. The court choose s where to place the cameras. 303 300 Rule 53, Del. Super. Ct. Crim. R.; Rule 53, Del. Fam. Ct. Crim. R.; Rule 53, Crim. R. Del. Cts. Justics of the Peach; Admin. Directive No 155, Del. S. Ct. (Nov. 29, 2005 amendment). 301 Del. Super. Ct. R. Civ. Proc. 203 (b), Del. Super. Ct. R. Crim. Proc. 539b), Del. Fam. Ct. R. 45(e). 302 Florida v. Palm Beach Newspapers 395 So. 2d 544 (1981). 303 Fla. R. J. Admin. 2.450.
82 Camera coverage is allowed in Georgia trial and appellate courts, with t he various levels of courts (i.e., municipal, superior, intermediate appellate, and supreme court) each customizing the guidelines for access in the rules of court. The main trial court, for example, requires that coverage be granted without preference to a particular writing. Photos of children in juvenile proceedings are prohibited. In the Court of Appeals, written requests for coverage must be received at least a week in ad vance, and radio and television media must provide the court with a tape of all proceedings covered. In the Georgia Supreme Court, the media does not need prior consent for coverage, but the court maintains authority over the coverage. 304 In Hawaii cameras consent is required in trial courts but not in the appellate courts. Requests for trial coverage will be granted unless there is good cause to prevent it i.e., those involving child witnesses, det erminations of admissibility of evidence, trade secrets, or testimony of undercover officers. Juvenile, grand jury, and family law proceedings are exempt from coverage. Individuals, even non media, can also request to record proceedings. 305 Idaho allows ca meras in trial and appellate courts as long as advance permission is obtained from the presiding judge. Juror coverage, as well adoption and mental health proceedings, is prohibited. No artificial lighting is permitted, and any television 304 Ga. S. Ct. R. 75 90; G a. Super. Ct. R. 22; Ga. Juvenile Ct. R. 26.1 and 26.2; Ga. Mun. Ct. R. 11; Ga. Probate C t. R. 10.2 and 10.10. 305 Rules 5.1 and 5.2, R. S. Ct. Haw.
83 cameras must no limit or prohibit coverage are non appealable. 306 In Illinois cameras are only permitted in appellate courts. However, a pilot program announced in 2012 also allows coverage in tria l courts. To participate in the pilot program, trial courts must apply to enter the program. Media can then request, at least two weeks prior to proceedings, to cover events in participating courts. Decisions to deny coverage are non appealable. Judges have the discretion to permit or exclude cameras, but witnesses and victims can object to the coverage. Excluded from the pilot program are cases involving juveniles, family law, evidence suppression, and trade secret s Coverage is not allowed during ju ry selection. In appellate courts, consent is not required, although the presiding officials may limit coverage. The media must notify the appellate court of intent to cover at least five business days in advance. 307 In announcing the pilot program, Illi nois Chief Justice Thomas L. Kilbride noted that the system. 308 He also nicely summed up the competing interests at stake: The provisions of this new policy keep discretion in the chief circuit judge and the trial judge to assure that a fair and impartial trial is not compromised, yet affords a closer looks at the workings of our court system to the public through the eyes of the electronic news media and news photographers. 309 306 Idaho Ct. Admin. R. 45 and 46. 307 I LL R EV S TAT Ch. 735 Â§ 8 701; Ill. S. Ct. R. 63(A)(7). See also Exte nded Media Coverage Pilot Project Order, available at http://state.il.us/court/SupremeCourt/Announce/2012/012412.pdf 308 Illinois Opens the door for cameras in its trial courts C ONNECTED Jan. 2012, www.ncsc.org/Newsroom/Connected/2012/0112 Connected.aspx 309 Id.
84 In diana only allows coverage in appellate courts, with requests to cover made 24 hours in advance at the Indiana Supreme Court and 48 hours in advance the Indiana Court of Appeals. Limited pilot projects experimenting with cameras in trial courts were condu cted in 1997 (ending with less than 10 test cases) and again in 2012. The 2012 program is projected to last 18 months and permits one media organization to webcast from three trial courtrooms. The webcasts will have a two hour delay and some types of pro ceedings i.e., those involving informants, jury selection, family relations can not be webcast. 310 Coverage is permitted in all Iowa courts, provided coverage is requested at least two weeks in advance. Parties who object to coverage must show good cause as to why coverage should be disallowed. In sexual abuse trials, however, the consent of witnesses and parties must be obtained prior to coverage. Jury selection may not be covered. Supplemental lighting is prohibited and equipment must meet certain specif ications. In the Supreme Court of Iowa, coverage is not subject to objections by witnesses or parties. 311 Appellate and trial courts in Kansas are subject to camera coverage, but coverage is allowed only by the press and educational television stations for purposes are restrictions on coverage of jurors, undercover agents, juvenile witnesses, family law proceedings, 310 2.17 Ind. Code Jud. Conduct ; Order 94S00 9705 MS 290: Standards Governing Electronic Media and Still Photography of Oral Arguments Before the Indiana Court of Appeals: http://www.in.gov/judiciary/files/media appeals broadcast coverage.pdf ; Order 94S00 0 605 MS 166: 2007 Pilot Project for Electronic News Coverage in Indiana Trial Courts: http://www.ai.org/judiciary/opinions/pdf/05090601ad.pdf ; Order 94S00 1201 MS 46: 2012 Pilot Proj ect for Webcasting: http://www.in.gov/judiciary/files/order other 2012 94S00 1201 MS 46.pdf 311 Ch. 25, Iowa Ct. R
85 suppression motions, and trade secrets. Criminal defendants cannot be pho tographed in restraints prior to the return of a verdict. 312 In Kentucky coverage is allowed in trial and appellate courts. The parties are not required to consent, but the presiding judge has discretion over coverage. Juvenile proceedings are not subject to coverage. Media interested in covering proceedings must make a request with the judge. 313 Appellate coverage is permitted in Louisiana but the rules mostly prohibit coverage at the trial level. At the trial level, coverage will generally only be perm itted for ceremonial proceedings or educational purposes, is consented to, and is not broadcast until the matter is finalized. In Louisiana appellate courts, judges have discretion to allow coverage, with no consent of the parties required. Requests for coverage should be submitted at least 20 days in advance. 314 Maine allows coverage in trial and appellate courts, subject to the sole discretion of the judge. Orders regarding coverage are non appealable. In the Supreme Judicial Court, a notice of intent t o cover is required but not prior approval. Civil proceedings at the trial level are permitted except for those involving family relations, sexual assault or misconduct, or trade secrets. Victims and people with detectable disabilities may choose to be e xcluded from coverage. Jury coverage is prohibited. In criminal proceedings, coverage must be approved in advance and only non testimonial portions of pre and post trial matters are allowed. At trial, jury coverage and witness testimony 312 Rule 1011, Kan S. Ct. 313 Rules 1 7, La. Standards o f Conduct and Technology Governing Electronic Media and Still Photography Coverage of Judicial Proceedings. 314 Canon 3A(9), La. Code of Judicial Conduct & Appendix; L a. Dist. Ct. R. 6.1 (e) (f).
86 are prohibited. Written notice of intent to cover a proceeding is required. Equipment should not be distracting or bear any display of affiliation. 315 In Maryland coverage is permitted at the trial and appellate levels, but only for civil proceedings and only if all pa rties consent. Consent is not needed from government parties. Coverage requests should be submitted at least five days in advance. Jurors and courtroom spectators are not allowed to be covered. It is presumed that good cause exists to exclude coverage when the case invol ves family relations, relocated witnesses, minors, or trade secrets. 316 Massachusetts allows coverage of most public proceedings. Jury selection and hearings on mot ions to suppress, dismiss, or probable cause are not subject to coverage. Close up shots of jurors are generally not permitted. Media must request to cover proceedings in advance. Notably, before a party or witness can move to limit media coverage, it must notify the Bureau Chief, Newspaper Editor, or Broadcast Editor of the Associated Press In 2012 National Public Radio (NPR) received permission from the Massachusetts Supreme Court to launch a pilot program called OpenCourt, which broadcasts proceedings in the Quincy Division trial court live on the internet. 317 All courts in Michigan permit coverage. Requests for coverage must be submitted at least three days prior. Judges may end or modify coverage if a finding is made that the coverage rules have been violated or that the interests of justice require it. These decisions are non appealable. Jury coverage is prohibited. Coverage of 315 Admin. O. JB 05 15 (A. 9 11), Cameras an d Audio Recording in the Courts (Maine). 316 Md. R. Proc. 16 109. 317 Rule 1:19, S. Jud. Ct. Mass ; Commonwealth v. Barnes 461 Mass. 644 (Mass. 2012).
87 certain witnesses, such as sex crime victims and undercover agents, is at the sole discretion of the judge. 318 Minnesota l level all parties must consent to coverage. A two year pilot program was initiated in July 2011 that authorized recording of criminal proceedings with the consent of all parties and civil proceedings without the consent of all parties. Courtroom covera ge must take place only when the presiding judge is present. Coverage of jurors and objecting witnesses is prohibited, as are hearings that take place when the jury is not present. Family relations cases, hearings on evidence suppression, and proceedings involving police informants, undercover agents sex crimes, trade secrets, or relocated witnesses cannot be covered. The media must give notice at least 10 days in advance, and any objecting party must make the objection at least three days before the st art of the the proceedings have concluded. Equipment should not be distracting. In appellate courts, consent of parties and witnesses is not required. Intent to cover should be provided at least 24 hours in advance. 319 Mississippi courts at all levels allow cameras. Presiding judges maintain discretion over coverage and m a y limit or terminate if necessary to control the conduct of the proceedings, maintain decorum, pre vent distraction, or ensure fairness. Parties 318 Mich. Ct. R. 8.115. 319 Rule 134.10, Minn. R Civ. App. Proc.; Rule 4.01 4.03, Minn. Gen. R. Practice; Pilot Project Order (March 2011): http://www.mncourts.gov/Documents/0/Public/Court_Information_Office/Media%20Resources/Order_re_c ame ras_in_civil_proceedings_110311.pdf ; Pilot Project Order (Apr. 2011): http://www.mncourts.gov/Doc uments/0/Public/Court_Information_Office/Media%20Resources/Revised_ Order_re_cameras_in_civil_proceedings_110421.pdf
88 can object to coverage but must do so at least 15 days in advance. Media who plan to cover proceedings should notify the clerk of court at least 48 hours in advance. Several types of witnesses and parties ar e not permitted to be covered, such as police informants, undercover agents, minors, relocated witnesses, sex crime victims and their families, and jurors. Coverage is prohibited in family relations cases, suppression hearings, proceedings involving trade secrets, and in camera proceedings. If media cannot agree to a pooling arrangement, they will all be excluded. Coverage should not be distracting and artificial lighting is prohibited. 320 In Missouri coverage is permitted at trial and appellate levels. Family relations cases, juvenile cases, and jury selection, however, are not subject to coverage. Coverage requests should be made in writing at least five days prior to the proceeding. notify the parties and t he judge If participants are crime victims police informants, undercover agents, relocated witnesses, or juveniles, coverage is prohibited if the individual objects. 321 Montana courts are open to coverage at trial and appellate levels. Coverage can be and materially interfere with the primary function of the court to resolve disputes fairly 322 Nebraska allows coverage in appellate courts, but trial co urt coverage is generally prohibited. However, some trial courts allow coverage under an experimental 320 Miss. R. Elec. & Photographic Coverage of Judicial Proceedings. See also In re WLBT, Inc., 905 So. the complete exclusion of cameras should be resorted to only after 321 Admin. Rule 16, Mos. S. Ct. R. 322 Canon 35, Mont. Canons of Judicial Ethics.
89 policy. Requests for coverage must be made two weeks in advance, and trial judges will generally grant requests unless it is determined that coverage wo uld interfere with a however, for family, juvenile, or trade secrets cases unless all parties consent. Witnesses may object to coverage of their particular testimony, and good cause is presumed to exist for witnesses who are police informants, undercover agents, or relocated witnesses. Jury coverage is prohibited, although the judge may allow coverage of the return of the verdict. 323 Nevada courts have broad rules permittin g coverage in trial and appellate courts, but reporters must first obtain permission from the judge by submitting a written request at least 24 hours in advance. Factors the judge will consider are the right to a fair trial, the right of privacy, the well being of parties and witnesses, the likelihood that coverage permission from the court in order to be eligible to participate in the media pool. Recordings of court p roceedings cannot be used for advertising purposes. 324 In New Hampshire coverage is allowed at both th e trial and appellate levels. P rior notice to the court is required. Persons requesting coverage do not have to be members of the established media. At the trial level, parties and interested parties may request that coverage be prohibited or limited. In that case, the court must hold a 323 Rules 2 117 and 2 118, Neb. Ct. R. App. Practice; Rules for Expanded Coverage in Nebraska Trial Courts, available at http://supremecourt.ne.gov 324 Nev. S. Ct. R. Part IV: Rules on Cameras and Electronic Media Coverage in the Courts (2012), avai lable at http://www.leg.state.nv.us/CourtRules/SCR.html
90 overriding public interest that is li kely to be prejudiced if the relief is not granted; (2) that the relief sought is not broader than necessary to protect that interest; and (3) that no devices are prohi bited. 325 New Jersey The judicial canon allowing coverage is geared towards openness, but judges have some discretion in limiting coverage, especially if coverage might result in a substantial likelihood of harm to parties or witnesses. The media has the right to appeal orders regarding coverage. Juror coverage is prohibited, as is coverage of juvenile, family law, and sex crime proceedings. 326 New Mexico allows coverage at both the trial and appellate l evels. Judges maintain wide discretion over the breadth of coverage. No coverage of jurors or jury selection is permitted. Coverage requests should be submitted 24 hours prior to the proceeding. Prior to limiting coverage, judges must provide the media with advance notice and an opportunity to object. Judges must consider the competing interests of the parties and the public and should also consider reasonable alternatives to restricting coverage. 327 Only appellate coverage is permitted by New York law. Consent is not required, but parties can object and must show good cause for limitation of coverage. Prior to 325 Rule 19, N.H. S. Ct. R. ; Rule 78, N.H. Super. Ct. R. & Directory; Rule 1.4, N.H. Dist. & Mun. Ct. R. 326 Canon 3A(9), N.J. Code of Judic ial Conduct. 327 Rule 23 107, N.M. S. Ct. Gen. R.
91 1997, another provision in state law allowed coverage of trials in limited circumstances, but the legislature failed to renew the provision when it expired. 328 All North Carolina courts allow coverage. Equipment and personnel must be permit coverage without use of the booth/partition, if it would not be distr acting. These requirements may be waived by judges at the appellate level. Juror coverage is prohibited, as is coverage of juvenile, family, or trade secret cases. Coverage of witnesses such as sex crime victims minors, and police informants is not all owed. 329 North Dakota allows coverage in all courts, and a judge can deny or limit trial. A judge can also deny or limit coverage if a witness or party objects and shows good cause. Coverage of jury selection is prohibited, as is close up photography of jurors. Coverage requests to the Supreme Court must be made 72 hours in advance, by regular mail, with fax copies to counsel if possible. Requests at the trial lev el must be made at least a week in advance, with notice also given to counsel and any pro se parties. The notice should be in writing and must be filed, with proof of service, with the clerk of court. 330 Ohio permits coverage at the trial and appellate leve ls, and the law requires judges to allow coverage of public proceedings, with some exceptions. At trial, the judge must inform victims and witnesses of their right to object to coverage, and if they 328 22 N.Y.R.R. Â§Â§ 29.1 29.2; N.Y. CLS Standards & Administrative Policies Â§ 231. 329 Rule 15, Gen. R. Practice Super. & Dist. Cts. N.C.; North Carolina Rules of Court; North Carolina Courts: Cameras in the Court room, http://www.nccourts.org/Courts/CRS/Councils/Forum/Cameras.asp 330 Admin. R. 21, N.D. Ct. R.
92 object, the coverage will be prohibited. Coverage reque sts must be submitted in advance to the presiding judge. 331 Oklahoma currently does not have a rule on cameras in the courtroom. Coverage was previously governed by Oklahoma Judicial Code of Conduct Canon 3, which prohibited coverage without express permiss ion from the judge. The Canon was superseded in 2011 and has not yet been replaced. 332 Oregon permits coverage in its trial and appellate courts. At the appellate level, a judge may deny coverage to maintain decorum, ensure fairness, and limit distractions coverage would interfere with fair trial rights, a ffect the presentation of evidence, or rohibited in family or trade secret cases. Victims in sex offense proceedings can request exclusion of coverage. The court can require those covering a proceeding to provide a copy of the coverage to the court, and if actual copying expenses are paid to any other person who requests it. 333 Coverage in Pennsylvania is largely prohibited, with recording only allowed in civil, non jury trials. Within this narrow scope of proceedings, coverage of family law cases is prohibited, as is coverage of objecting wit nesses. Coverage requests should be made in advance and require the consent of the presiding judge. Proceedings of the Pennsylvania Supreme Court are recorded by Pennsylvania Cable Network but may 331 Rule 12, R. Superintendence Cts. Ohio. 332 Canon 3B(10) ,. Okla. Jud. Code of Con duct (superseded on April 15, 2011). 333 Or. Unif. Trial Ct. R. 3.180
93 only be broadcast after approval; only robotic cameras ca n be used, and the broadcast to 334 Coverage is permitted in the courts of Rhode Island with judge s granted sole discretion to grant or deny coverage. Coverage of proceedings in juvenile or family be photographed after a jury is impaneled. 335 In South Carolina coverage is permitted in all courts, with great disc retion afforded to the presiding judge. Coverage requests should be made to the judge reasonably beforehand. Coverage of perspective jurors is prohibited, and jurors may not be photographed unless they happen to be in the background. Equipment must not 336 If all parties and the judge consent, coverage is permitted in South Dakota courts. Jurors cannot be photographed, and proceed presence are prohibited. The court is entitled to copies of any recordings. The rules for coverage in the Supreme Court are similar. 337 All Tennesse e courts allow coverage. Coverage requests must be made in writing at le ast two days in advance. Coverage of minors and jurors is prohibited. If 334 Canon 3A(7), Penn Code of Judicial Conduct; Section 11, Internal Operating Procedures of the Supreme Court; Rule 112, Publicity, Broadcasting, and Recording of Proceeding, Penn. R. Cri m. Proc. (prohibiting coverage). 335 R.I. S. Ct. R., Article VII Media Coverage of Judicial Proceedings 336 Rule 605 and Part 6, Appendix B, Form 1, S.C. App. Ct. R., S.C. R. Ct. 337 S.D. Code of Judicial Conduct, S.D. C ODIFIED L AWS Â§ 15 24 6; S.D. S. Ct. R. 1 0 08 and 10 09.
94 coverage is requested in a juvenile court proceeding, the court will notify the parties of the request and their right to object. If a defendant in a juvenile criminal case or any party in a juvenile civil action objects, coverage is prohibited in its entirety. 338 Coverage of civil proceedings is expressly allowed in Texas which permits coverage so long as the judge, parties, and witnesses consent to coverage. At the appellate level coverage requests should be filed five days in advance. The Supreme Court of Texas provides live and archived webcasts of oral arguments. Coverage of criminal tria ls in Texas is not governed by a particular law or rule, but does occur on a case by case aspects of a case. 339 Current Utah rules governing cameras in the court only allow coverage at the appellate level. However, on April 1, 2013, new rules take effect that will ex pand tri al coverage to the trial courts. If a judge wishes to restrict coverage, she must articulate a compelling reason to do so. Coverage requests must be in writing and submitted 24 hours in advance. 340 Vermont courts permit coverage in appellate and trial c ourts. Coverage of the Supreme Court is subject to the consent of the Chief Justice. In trial courts, the presiding judge has discretion to limit or exclude coverage either sua sponte 341 or upon 338 Rule 30, Tex. S. Ct. R. 339 Rule 18c, Tex. R. Civ. Proc.; Rule 14, Tex. R. App. Proc. ; Graham v. State 96 S.W.3d 658, 660 (Tex. Ct. App. 2003); F REEDOM OF I NFORMATION F OUNDATION OF T EXAS : C AMERAS IN THE C OURTROOM available at http://www.foift.org/foihandbook/index.php?page=chapter&ch=11 340 Rule 4.01, Utah R. Jud. Admin. ; New Rule 4 401.01, Electronic Media Coverage, effective Apr. 1, 2013, available at http://www.utcourts.gov/resources/rules/comments/2012 08/CJA04 401.01.pdf 341 Sua sponte is a Latin term describes an act taken by the court on its own, without prompting b a pa rty.
95 the motion of a party or witness. Juror coverage, other than unavoidable background coverage, is prohibited. N otes accompanying the pertinent rule suggest that it may be inappropriate to cover family law, sex offense, minor victim, or trade secret cases. The trial judge has discretion to evaluate coverage in thes e cases on an individual basis. Decisions to prohibit or limit coverage are non appealable. 342 Coverage is allowed in all Virginia courts. Coverage of jurors, police informants, undercover agents, minors, and sex offense victims and their families is prohi bited. Proceedings involving family law, sexual offenses, trade secrets, or suppression motions are not subject to coverage. 343 Washington state allows cameras at appellate and trial levels. Coverage requests must be made in advance to the presiding judge. The judge is obligated to take measures to ensure that coverage is not distracting and does not impair the dignity of the proceedings. Judges who find coverage should be limited must make specific sed to justify coverage limitations. 344 Trial and appellate coverage is permitted in West Virginia with great discretion afforded to the presiding judge. Coverage requests must be made a day in advance. that coverage will impede justice 342 Rule 35, Vt. R. App. Proc. ; Rule 53, Vt. R. Crim Proc. ; Rules 79.2 and 79.3, Vt. R. Civ. Proc. ; Rule 79.2, V t. R. Probate Proc. 343 V A C ODE A NN Â§ 19.2 266. 344 Rule 16, Gen. R., Wash. Ct. R.
96 consent of the juror. 345 All Wisconsin courts allow coverage. The trial judge has sole discretion to limit or exclude the media. C overage objections by participants in cases involving victims of crimes, police informants, undercover agents, juveniles, relocated witnesses, family law, suppress ion motions, or trade secrets is presumed to b e valid. Identifying close up coverage of juro rs is prohibited unless prior permission is obtained from the juror. Orders on coverage are non appealable. 346 Finally, in Wyoming coverage is permitted at the trial and appellate levels. Coverage requests must be submitted at least 24 hours in advance. Close up coverage of jurors is prohibited. Equipment must remain stationary during the proceeding. Objections to coverage in cases involving victims of crimes, confidential informants, undercover agents, and suppression motions carry a presumption of val idity. 347 Cameras in Federal Courts Coverage is prohibited in federal courts, especially in criminal proceedings. Rule 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 348 The rule and policymaking body for the federal courts, the Judicial 345 Canon 3(B)(12), W. Va. Code Jud. Conduct; Rule 42, W. Va. R. App. Proc. ; Rule 8, W. Va. Trial Ct. R. ; Rule 6, W. Va. R. Practice & Proc. Fam. Ct. 346 Ch 61, S. Ct. R. 347 Rule 804, Unif. R. Dist. Cts. Of Wyo.; Rul e 53, Wyo. R. Crim. Proc. 348 F ED R. C RIM P. 53.
97 Confer ence of the United States, has a policy on cameras that prohibits coverage in both criminal and civil cases. Circuit courts of appeal have discretion to allow coverage of appellate arguments; only the Second and Ninth Circuits allow camera coverage. The U.S. Supreme Court does not allow camera co verage, but does release audio recordings of its oral arguments at the end of each week, with speedier release in high profile cases. 349 The federal judiciary experimented with cameras in civil proceedings, first in a three year pilot program that began in 1 991. At the conclusion of the pilot program, the Court Administration and Case Management Committee recommended that the Judicial Conference authorize coverage in federal civil proceedings, at both the trial and concluded that the intimidating effect of cameras on some witnesses and jurors was cause for concern, and the Conference 350 tempt at experimentation with cameras in its courtrooms took the form of another three year pilot project, which launched in June 2011. The pilot program authorized coverage of civil cases in 14 federal courts, with more than 100 U.S. district judges part icipating. 351 After the first year, 39 proceedings 349 Cameras in Courtrooms D IGITAL J OURNALIST S L EGAL G UIDE R EPORTERS C OMMITTEE FOR F REEDOM OF THE P RESS http://www.rcfp.org/browse media law resources/digital journalists legal guide/cameras co urtrooms 350 History of Cameras in the Federal Courts U.S. C OURTS http://www.uscourts.gov/Multimedia/Cameras/history.aspx (lat visited Jan. 3, 2013). 351 The courts participating in t he 2011 2014 pilot program are: Middle District of Alabama; Northern District of California; Southern District of Florida; District of Guam; Northern District of Illinois; Southern District of Iowa; District of Kansas; District of Massachusetts; Eastern Di strict of Missouri; District of Nebraska; Northern District of Ohio; Southern District of Ohio; Western District of Tennessee; and
98 352 The guidelines for the pilot program specify that only the court can cover its proceedings, and only in civil proceedings where the parties consen t. The media can request that a proceeding be covered, but the presiding judge actually selects cases for the pilot. Recordings made 353 At the conclu sion of the most recent pilot program in 2014, the Conference will have another opportunity to consider permitting coverage in civil cases, though it seems unlikely, based on the scope of the pilot program, that any relaxing of the current policies would i nclude allowing the media to record proceedings. Western District of Washington. Courts Selected for Federal Cameras in Court Pilot Study The Third Branch, June 2011, http://www.uscourts.gov/News/TheThirdBranch/11 06 01/Courts_Selected_for_Federal_Cameras_in_Court_Pilot_Study.aspx 352 Cameras Pi lot One Year Later The Third Branch News, July 31, 2012, http://news.uscourts.gov/cameras pilot one year later 353 will not be permitted to create J UDICIAL C ONFERENCE C OMMITTEE ON C OURT A DMINISTRATION AND C ASE M ANAGEMENT G UIDELINES FOR THE C AMERAS P ILOT P ROJECT IN THE D ISTRICT C OURTS available at http://www.uscourts.gov/uscourts/News/2011/docs/CamerasGuidelines.pdf
99 CHAPTER 5 MOBILE TECHNOLOGIES IN THE COURTROOM It is on the foundation of the diverse body of law discussed in the previo us C hapter that the courts rely in order resolve disputes arising from the introducti on of newer, mobile technologies into courtrooms. This C hapter offers a snapshot of the current landscape of the law of mobile technologies in the courts circa 2013 This is an emerging area of the law that is constantly changing both as the disputes ar ise and as technology changes. While the law in this C hapter will likely change before this study is complete, the overview is helpful in identifying patterns in the law, common disputes, and best practices for all parties involved. The notion of examin ing the state of the law in o ther jurisdictions in order to develop law in a particular jurisdiction is common in American jurispru dence, and in that sense the data presented in this C hapter might also be of help to judges as they face new laws and technol ogies. As discussed in Chapter 1, the methods used to identify the state of the law in this area were somewhat more flexible than traditional methods of legal research because the area is relatively new. Articles from the popular press, white papers and r eports from legal and media organizations, and scholarly literature were all used to supplement legal research in online databases. It is worth noting that this area of the law is somewhat unique in that relevant rules, policies, and statutes that may have using mobile technology may have been written from an entirely different perspective to prevent disruption by the various noises that these devices make. The potential for disruption has increased as most p eople carry at least a cell pho ne on their person at all times The relevant policies identified below are a mix of general electronic device
100 policies and policies geared specifically toward the med though the analysis focus es on the effect of policies on journalists. State Law and Mobile Technology in the Courts If a pertinent, broadly applicable law or a court decision was not identified during research that state was omitted. 354 The omission of a state does not mean, howev er, that individual courts do not have their own individual policies; a collection of individual policies from the every court in the country is beyond the scope of this study. Arkansas casting, electronic devices. The provision, which applies in all court s: Electronic devices shall not be used in the courtroom to broadcast, record, photograph, e mail, blog, tweet, text, post, or transmit by any other means except as may be allowed by the court. 355 California Many high profile cases originate in Los Angeles Superior Court, and i ts Local Rule 2.17 provides: No one may carry any camera, microphone, or recor ding equipment, or activate the image or sound capturing feature of any computer, mobile telephone, watch or other similar equipment in a courtroom without express written permission from the appropriate judicial officer. 356 354 Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. 355 Admin. Order, No. 6(d)(7), Ark. S. Ct. 356 Local R. 2.17, L.A. Super. Ct.
101 Coverage is also prohibited outsi de the courtroom including entrances, exits, hallways, elevators, escalator s, and parking garages unless it occurs in a designated media area or with prior permission from a judge. Los Angeles Superior Court also has hauled be for e a judge immediately to face sa will be deleted from the device. 357 While cell phone use in the courtroom is strictly prohibited, laptops may be used, depending upon the policy of the judge, but they must run on battery power. 358 The rules also sta and other electronic devices are not permitted for use in the courtroom unless 359 A standing order in the San Francisco Superior Court issued February 2, 2102 specifically includes ce may only be used in designated media areas in the courthouse. 360 Connecticut The rules of the Superior, Appellate, and Supreme Courts of Connecticut all address the use and possession of elect ronic devices. In Superior Courts, cell phones 357 Rules Regarding Filming in the Courthouses and in Courtrooms L OS A NGELES S UPERIOR C OURT available at http://www.lasuperiorcourt.org/courtnews/Uploads/1420129281042RulesRegardingFilming.htm 358 Id. 359 Id. 360 Standing Order (Photography, Broadcasting and Recording in the Civic Center Courthouse), S an Francisco Superior Court (Feb. 2, 2012), available at http://www.sfsuperiorcourt.org/sites/default/files/pdfs/Media%2BCCC%2BStanding%2BOrder.pdf
102 and computers can be take n into the courtroom but are not permitted to take photos or video and personal computers can only be used for not e taking. 361 In the appellate courts, cell phones, PDAs, personal com puters, and other electronic devices can be taken into the courtroom but cannot be used to photograph, record, or broadcast. 362 State v. Komisarjevsky : The issue of new technology as a reporting tool came to a head in the triple homicide trial of Joshua Kom isa rjevsky, a New Haven case that aroused intense media interest. 363 The case stemmed from the July 2007 kidnapping and murder s of 48 year old Jennifer Hawke Petit and her two daughters, ages 17 and 11, at their home in Cheshire, Connecticut Two parolees were arrested shortly after fleeing the home, which had been set on fire. Joshua Komisarjevsky and Steven J. Hayes were arrested on July 23, 2007 and charged with capital murder in connection with the deaths. 364 The pair was tried separately, and it was Ko that prompted a ruling on Twitter in the courtroom. In addition to the murder charges of which he was convicted and ultimately sentenced to death Komisarjevsky was also ac cused of sexually assaulting on e of the victims. Because of the sexual assault charge, Connecticut law prohibited 365 The media sought to 361 The Use and Possession of Electronic Devices in Superior Court Facilities, available at http://www.jud.ct.gov/Publications/ES230.pdf 362 Supreme and Appellate Courts Guidelines for the Possession a nd Use of Electronic Devices, available at http://www.jud.ct.gov/external/supapp/electronicdevices_supapp.pdf 363 State v. Komisarjevsky, 2011 Conn. Super. LEXIS 403, 39 Media L. Rep. 1727, *1 (Conn. Super. Ct. Feb. 22, 2011). 364 William Glaberson, Death Penalty is Challenged Before a Trial in 3 Killings N.Y. T IMES July 28, 2010, at 19. See also Timeline: Deadly Cheshire Home Invasion C OURANT COM http://www.courant.com/news/connecticut/hc petit cheshire home invasion timeline,0,3135848.htmlstory 365 C ONN P RACTICE B OOK Â§ 1 11(b).
103 use Twitter to report from the trial. The defendant responded by filing a motion seeking electronic devices by spectators during the course of all court 366 He claimed that Twitter was a form of broadcasting and was therefore prohibited by Connecticut law 367 gricultural term describing seed being scattered, the trial court declined to extend the categorical prohibition on broadcasting to Twitter. 368 It emphasized the caution that courts should demonstrate in extending old legislation to new technologies, sugges ting that the rulemaking process would be a more appropriate venue to extend the ban to Twitter and similar technology. The court also declined restrict electronic devices in the courtroom pursuant to its discretionary authority under a separate rule. I t rejected the The short answer to this contention is that control of the substanc e of courtroom reporting is not an appropriate exercise of the judicial function in a free society. Jurors are routinely instructed to avoid media reports concerning the case. The court should ignore such reports as well. This limited judicial role is r ecognized throughout the English speaking world Although the court retains the ability to restrict disruptive activity, the content of electronic or other reporting cannot be considered in making this determination. 369 366 Komisarjevsky, 2011 Conn. Sup er. LEXIS 403, *1 2. 367 Id. at *2. 368 Id. at*10. 369 Id. at *11 12 (internal citations and quotations omitted).
104 Delaware Policies on personal ele ctronic devices vary among the types of courts and the locations. In Superior Courts in Delaware, cell phones, PDAs, notebooks and any other type of personal electronic devices are prohibited. 370 Some authorized individuals are allowed to bring electronic devices into courtrooms at Justice of the Peace locations. 371 District of Columbia Although Superior Court rules prohibit the use of electronic devices in D.C. officer to use 372 Even with permission, no photographs, recordings, or transmissions are permitted. 373 There may, however, be some opportunities to live blog at the discretion of the presiding judge. 374 Florida W hile the rules relating to cameras in the courtroom in Florida do not specifically address mobile technology, the law does not preclude it. In fact, Florida has both an appellate decision on the issue as well as a high profile trial that recently illustra ted the utility of mobile technology to journalists. 370 Superior Court Electronic Device Prohibition, available at http://courts. delaware.gov/superior/jury/jury_security.stm 371 Justice of the Peace Court Cell Phones and Communications Devices Policy, available at http://courts.delaware.gov/policy%20d irectives/download.aspx?ID=39688 372 Admin. Order 11 17, The Possession and Use of Electronic Devices in the Superior Court Courtrooms and Hearing Rooms, Super. Ct. D.C. (Nov. 9, 2011), available at http://www.dccourts.gov/internet/documents/11 17_Possession_and_Use_of_Electronic_Devices.pdf 373 Id. 374 J OURNALISTS H ANDBOOK TO THE C OURTS IN THE D ISTRICT OF C OLUMBIA C OUNCIL FOR C OURT E XCELLENCE availabl e at http://www.dccourts.gov/internet/documents/JournalistsHandbook.pdf
105 Morris Publishing Co. v. Florida : Despite previous success in live blogging from high profile murder trials, the Florida Times Union was booted from the courtroom on the second day of a murder trial. 375 Brothers Tajuan, Terrell, and Rasheem Dubose faced first degree murder charges in the death of an 8 year old girl killed in a drive by shooting in Jacksonville. 376 The 2006 murder was compelling not only for its circumstances protectively dove on top of them but also because it wa for a community weary of having the highest murder rate in the state of Florida. 377 It was no surprise the n that the live blog of the trial was popular with readers. 378 The blog not only provided updates on the trial, but had an interactive component that allowed online users to ask questions about the proceedings or notify the newspaper of technical difficulties. 379 Times Union repor ter Bridget Murphy blogged from the back of the courtroom near an electrical outlet. To her surprise, on the afternoon of the second day of trial, the judge order ed Murphy and another reporter to leave the courtroom. The judge said the comput er was dist racting for the jury and violated rules on the number of cameras permitted in a courtroom. 380 375 Florida Times Union Emergency Petition for Review of Order Denying Motion to Allow Access of Reporte available at http://www.citmedialaw.org/threats/circuit court v florida times union 376 Id. 377 Id. 378 Id. 379 Id. 380 Id. See also Fla. R. Jud. Admin. 2.450.
106 argued that Murphy should be allowed to stay but Haddock denied the request The newspaper appealed, arguin g that tria l court failed to consider less restrictive alternatives when it prohibited the reporter from blogging and engaging in newsgathering, especially in a Florida courtroom that is presumptively open. The Times Union ict interpretation of Rule 2.450 of the Florida Rules of Judicial Administration as allowing no more than two transmitting devices in courtroom was in error. In i ts short unpublished opinion on the matter, the First District Court of Appeal granted the T imes Union remanding the issue to the trial court. 381 not apply to the use of laptop computers, regardless of whether the device is used to transm 382 The trial court, did however, retain the discretion to prohibit any device it found to be disruptive or distractive to the proceedings. 383 Because the trial court initially claimed the laptop was distracting but late r issued an order relying on Rule 2.450, the First District sent the issue back to the trial judge the courtroom unless the court finds a specific factual basis to conclude th at such use 384 381 2010). 382 Id. 383 Id. 384 Id.
107 the judge continued the restrictions, resulting in the reporter and a photographer for the newspaper working shifts to cover the trial they were not permitted to use the camera and laptop at the same time. 385 However, when one of the brothers went on trial again the following month the first trial resulted in a hung jury the judge agreed to let the Times Union blog from the courtroom at all tim es. 386 The judge the s coverage and how it answered 387 385 Steve Patterson, Appeals court tosses cou rt blogging order against Jacksonville.com F LA T IMES U NION Jan. 21, 2010, available at http://jacksonville.com/news/met ro/2010 01 20/story/appeals_court_tosses_court_blogging_order_against_jacksonvillecom 386 Paul Pinkham, Jacksonville judge says T U can blog from Dubose trial, F LA T IMES U NION Feb. 2, 2010, available at http://jacksonville.com/news/metro/2010 02 02/story/jacksonville_judge_says_t_u_can_blog_from_dubose_trial 387 Id. An estimated 15,000 people viewed the trial blog. The newspaper e ven brought together some of the more active participants on the blog to meet, with an appearance by the prosecutor. Bridget Murphy, Bloggers unmasked: Dubose murder trial junkies meet face to face, F L A T IMES U NION Mar. 17, 2010, available at http://jacksonville.com/news/metro/2010 03 18/story/bloggers_unmasked_dubose_murder_trial_junkies_meet_face_to_face
108 Figure 5 1 Excerpt from the Time Union 388 State v. Casey Ant hony : While the Dubose trial was high profile in the Jacksonville community, the 2011 trial of Casey Anthony garnered inter national attention. Anthony was accused of the murder of her 2 year old daughter, and the 36 da y trial of the young Orlando mother was one of the most intensely watched in recent 388 The full trans appendix to the Times Union http://www.citmedialaw.org/threats/circuit court v florida times union
109 legal history. Coverage of the Anthony trial is remarkable in that despite the throngs of spectators and members of the press, the intense scrutiny, and the high stakes of the trial, there were no major disp ut es over coverage. The trial was televised, tweeted, live blogged, and covered in print. Demand for coverage was so great that users of iPhone, iPad, or iPod could download an app to watch a live stream of the trial. 389 At one point during the trial, th ranked 64 th overall. 390 Coverage of the Anth ony trial proceeded under an order governing members of the press. 391 Governing Speci al Interest/High Profile Proceedings. 392 The order recognized the changing nature of the media, and for the purposes of issuing media credentials defined : An online organization which was a previously established, independent site that contains regularly updated original news content above and beyond links, forums, troubleshooting tips and reader contributions; said content is thoroughly reviewed by an independent editor before publication; has a readership of more than 1,000 hits per month; and has previously 389 Sarah Anne Hughes, Casey Anthony trial live stream now available as an app on iPod, iPad, W ASH P OST B LOG P OST July 1, 2011, http://www.washingtonpost.com/blogs/blogpost/post/casey anthony trial live stream now available as an app/2011/06/30/AG7Bta tH_blog.html (last visited Jan. 3, 2013). 390 Id. https://itunes.apple.com/us/app/casey anthony trial live stream/id440967817?mt=8&ls=1 391 Order Establishing Rules Governing Members of the Media, State v. Anthony, Case No. 48 2008 CF 015606 O (Fla. 9 th Circuit, Orange C ounty, Florida, May 1, 2011), available at www.ninthcircuit.org/news/High Profile Cases/Anthony/index.shtml 392 Ninth Judicial Circuit Court Admin. Order 07 96 10 01, available at www.ninthcircuit.org/news/High Profile Cases/Anthony/index.shtml
110 covered the judicial branch. Fan sites, w eb logs and personal web sites d o 393 courtroom for sending and receiving written, electronic in 394 Membe rs of the press not seated in designated media seat s (available on a first come, first serve basis) were required to adhere to rules governing the public, which include d a prohibition on use of cell phones, laptops, or other electronic devices. 395 396 The Orlando Sentinel which covered the case before it made national headlines, covered t he trial in a variety of ways, including a live chat on its website and frequent Twitter updates. The live chat on the Orlando Sentinel website featured updates on courtroom events combined with questions and comments by readers. The reporter often answe red questions about the legal process. In Figure 5 2, the reporter explains why a Miranda 397 issue did not pose a problem in the case. The live chat was powered and boas ts clients such as ESPN, USA Today, the NFL, BBC, ABC, and Mattel. 398 The 393 Order Establishing Rules Governing Members of the Media, State v. Anthony, Case No. 4 8 2008 CF 015606 O (Fla. 9 th Circuit, Orange County, Florida, May 1, 2011), available at www.ninthcircuit.org/news/High Profile Cases/Anthony/index.shtml 394 Id. 395 Id. 396 Id. 397 In Miranda v. Arizona, 384 U.S. 436 (1966), the U.S. Supreme Court established the right of criminal suspects to be advised of their rights prior to criminal interrogation. Suspects must be notified of their right to counsel and their protection a gainst self incrimination. 398 C OVERIT L IVE www.coveritlive.com
111 Twitter feed provided periodic updates on courtroom events, often describing interactions between participants in addition to descriptions of the testimony (see Figure 5 3 for an exc erpt of the Twitter page). According to the Orlando Sentinel revolutionized the 36 day Casey Anthony trial by casting a far reaching net of news across the globe, bringing minute to minute updates directly into p 399 controversial 34,000 times on Twitter. 400 most searched term in the world shortly after the verdict was handed down. On a local level, more than 75,000 subscribers to Orlando Sentinel electronic alerts received word that the verdict had been reached. 401 399 Walter Pacheco, Casey Anthony Trial: Social media revolutionized coverage, O RLANDO S ENTINEL July 5, 2011, available at http://articles.orlandosentinel.com/2011 07 05/news/os casey anthony twitter facebook 20110704_1_casey anthony trial anthon y case social media 400 Id. 401 Id.
112 Figure 5 2 Excerpt from the Orlando Sentinel s live chat during the Anthony trial. 402 402
113 Figure 5 3 Screenshot from the Orlando Sentinel the day of the verdict.
114 Hawaii including non media members o f the public The person must use in microphone and 403 Maine A statewide administrative order requires that cell phones, computers, and other electronic devices be turned off in the courtroom. Devices with cameras that are not authorized for use could be subject to confiscation. 404 Michigan Use of electronic devices in Michigan courtrooms is governed by Michigan Court Rule 8.115, which authorizes individual court facilities to determine policies outside the courtroom and the chief judge to determine policies inside the courtroom. The chief [N]o photographs may be taken inside any courtroom without permis sion of the court. The policy regarding the use of cell phones or other por table electronic communication devices shall be posted in a conspicuous lo cation outside and inside each courtroom. Failure to comp ly with this section or with the policy established by the chief judge may result in a fine, includi ng confiscation of the device, incarceration, or both for contempt of court. 405 403 Rule 5.2(a)(2), R. S. Ct. Haw. 404 Admin. Order JB 05 16 (A. 5 08), Use of Cellular Phones, Pagers, Computers, and Other Electronic Devices in Courthouses, available at http://www.courts.state.me.us/rules_adminorders/adminorders/JB 05 16%20(A.%205 08)%20Cell%20Phones.pdf 405 M ich. C. R. 8.115, Courtroom Decorum; Policy Regarding Use of Cell Phones or Other Portable Electronic Communications Devices, available at http://courts.michigan.gov/Courts/MichiganSupremeCourt/CurrentCourtRules/1Chapter8AdministrativeRul esofCourt.pdf
115 Nevada Portable electronic devices such as cell phones and laptops can be used if a judge permits it. If a member of the press wants to use a portable electronic device to record or broadcast proceedings, he would need to go through the same procedures set forth for traditional cameras. Electronic devices can be used in the courtr oom to transmit and receive data communications (pres umably covering live blogging, t weeting, etc.) but not for phone calls. 406 Rule 246 of the Nevada Supreme Court, titled 1. Unobtrusive tape recorders or other electronic devices such as cellular phones, personal digital assistants (PDAs), laptop computers or other similar functioning devices used to take notes located on or near the news reporter may be allowed by the judge. It will be understood that these devices will be used on ly for accurate transcriptions of the court proceedings, and are not to be used for broadcast. 2. Electronic devices may be used in the courtroom to transmit and receive data communications, provided that the equipment does not make any disruptive noise o r interfere with court equipment. Electronic devices may not be used for telephone calls in the courtroom. 3. Notwithstanding the provisions of Rule 230, tape recorders or other electronic devices may be used as described in this rule. Electronic devices may not be used for photography, or audio or video recording for broadcast or transmission, however, unless permission is obtained pursuant to Rule 230. Use of an electronic device without permission, other than as described in this rule, may result in the confiscation of the device. 407 New Hampshire Cell phones, laptops and other portable electronic devices can be carried in New Hampshire courtrooms but must be put on silent mode. Photographic or recording 406 Part IV (Rules 229 246), Rules on Electronic Coverage of Court Proceedings, Nev. S. Ct. R. available at http://www.leg.state.nv.us/Division/Legal/LawLibrary/CourtRules/SCR.html 407 Id. at Rule 246.
116 capabilities in electronic devices can only be us ed in compliance with traditional cameras in the courtroom law. 408 Pennsylvania While there is no statew ide policy directly addressing electronic devices in courtrooms, the practice does occur. 409 Th e high profile trial of Jerry Sandusky, a former Penn sylvani a State University (Penn State) assistant football coach who was convicted in 2012 of dozens of counts o f molesting children, is a good example of how a trial judge struggled with the new technology in the courtroom. Commonwealth v. Sandusky : The trial County, Pennsylvania, was covered intensely by the press, as the nation wondered if the one time beloved football coach and founder of a charity for underprivileged children would be convicted of molesting 10 children. 410 The Sandusky investigation also resulted in criminal charges against Penn State officials for covering up earlier allegations, the firing of head coach Joe Paterno in 2011, and the vacating of all of Penn 408 Order, N.H. S. Ct. (Jan. 11, 2008), available at http://www.courts.state.nh.us/supreme/orders/order011108.pdf 409 f mobile technology in the courtroom. Commonwealth v. Sandusky, Case No. CP 14 CR 2421 2011 and CP 14 CR 2422 2011, Memorandum and Order (Court of Common Pleas of Centre County, June 4, 2012), available at http://www.co.centre.pa.us/media/sandusky.asp See also Derrick Nunnally, No tweeting in court? Pa. reexamining law that protects trials but impedes news P HILADELPHIA I NQUIRER Jun. 27, 2010. ; Brad Bumsted, during Veon trial P ITTSBURGH T RIBUNE R EVIEW Jan. 26, 2010. 410 Jerry Sandusky: Recent Developments N.Y. T IMES Oct. 9, 2012, http://topics.nytimes. com/top/reference/timestopics/people/s/jerry_sandusky/index.html?8qa
117 411 Sandusky, 68 at the time of the trial, was convicted and sentenced to 30 60 years in prison. 412 Cameras are not permitted in Pennsylvania criminal proceedings (and only in limited civil proceedings), 413 so the media looked to text based transmissions such as live bloggi ng and Twitter to provide real time coverage. Presiding Judge John Cleland issued a decorum order governing jury selection and trial on May 30, 2012, wherein members of the public were prohibited from bringing in electronic devices, but an exception was m ade for the press : Only reporters with proper credentials, as determined by the Sheriff, will be permitted to possess or use in Courtroom 1 or the satellite courtroom any cell phone, laptop computer, smart phone, or similar electronic device. Such devices may be used during trial for electronic based communications. However, the devices may not be used to take or transmit photographs in Courtroom 1 or the satellite courtroom; or to record or broadcast any verbatim account of the proceedings while court is in session. 414 The prohibition on sending concerns among members of the press, who questioned whether the language of the decorum order permitted direct quotations in their courtroom dispatches. 415 As a result several media entities moved to intervene for the limited purpose of seeking clarification of the 411 Id. 412 Id. (emphasis in original). 413 Canon 3A(7), Penn. Code Jud. Conduct ; Section 11, Internal Operating Procedures of the Supreme Court; Rule 112, Publicity, Broadcasting, and Record ing of Proceedings, Penn. R. Crim. Proc. (prohibiting coverage). 414 Commonwealth v. Sandusky, Case No. CP 14 CR 2421 2011 and CP 14 CR 2422 2011, Memorandum and Order (Court of Common Pleas of Centre County, June 4, 2012), available at http://www.co.centre.pa.us/media/sandusky.asp (emphasis in original). 415 Commonwealth v. Sandusky, Case No. CP 14 CR 2421 2011 and CP 14 CR 2422 2011, Expedited Motion to Intervene and to Clarify Decorum Order, (Co urt of Common Pleas of Centre County, June 1, 2012), available at http://www.co.centre.pa.us/media/sandusky.asp
118 decorum order. 416 The media intervenors argued that they understood the provision only prohibited transmitting photos, audio, and video, but they were advise d by a court administrator that the order barred the press from using direct quotations in text based report s sent from inside the courtroom. 417 The media argued that interpretation was inconsistent with the order, which permitted direct quotations on its f ace, and that several other reasons warranted unrestricted transmissions of direct quotes. 418 A prohibition on direct quotes would result in less accurate coverage, impose an impractical burden on reporters, and would be unconstitutional the media argued in its motion. 419 Furthermore, direct quotes published during the trial would not prejudice any interest at stake in the trial or impede the judicial process. 420 Judge Cleland ultimately decided to relieve the press of the burdens of a res triction on sending direct quotations from the courtroom, albeit not in the way t he 416 Id. The media entities were: ABC, Inc. (on behalf of WPVI TV); Advanced Publi cations, Inc. (publisher of the Harrisburg Patriot News ), The Associated Press, CNN, The Daily Collegian, Dow Jones & Company, inc. (publisher of The Wall Street Journal ), ESPN, NBCUniversal, Inc. (on behalf of WCAU TV), The New York Times Co. (publisher o f The New York Times ), Philadelphia Media Network, Inc. (publisher of the Philadelphia Inquirer ); The Scranton Times, L.P. (on behalf of and Standard Speaker ) and Tribune Company (on behalf of The Morning Call ). Id. 417 Id. 418 Id. 419 Id. In discussing the difficulties of implementing a restriction on direct quotations, the media wrote: Would a 140 question be prohibited? There is sim ply no workable way for reporters to avoid using any direct quotes in their text based reports, and there is no clear line that can be drawn to inform them about what is permissible and what is prohibited, which will possibly subject them to serious sancti ons. 420 Id.
119 press intended. 421 In response to the motion for clarification, Judge Cleland still allowed credential ed reporters to have electronic devices in the courtroom, but with the following restriction: Such devices shall not be used during trial for electronic based communications, and shall not be set in a mode that permits transmission of any form of communication to any person or device either in or out of the Courthouse or Cou rthouse Annex. 422 As the proceedings moved forward, reporters would be able to use devices as taking purposes, but not as tools to provide real time coverage. 423 In explaining the change, Judge Cleland first explained how he came to the initial conclusion that text based, non verbatim reports would be permitted under Pennsylvania law. 424 He explained that he initially interpreted the controlling authority Rule 112 of the Pennsylvania Rules of Criminal Procedure and Cano n 3(7) of the Pennsylvania Code of Judicial Conduct to permit courtroom updates. Judge 421 Commonwealth v. Sandusky, Case No. CP 14 CR 2421 2011 and CP 14 CR 2422 2011, Memorandum and Order, (Court of Common Pleas of Centre County, June 4, 2012), available at http://www.c o.centre.pa.us/media/sandusky.asp 422 Commonwealth v. Sandusky, Case No. CP 14 CR 2421 2011 and CP 14 CR 2422 2011, Order, (Court of Common Pleas of Centre County, June 4, 2012), available at ht tp://www.co.centre.pa.us/media/sandusky.asp (emphasis in original). 423 amended to specifically provide that while credentialed reporters admitted to Cou rtroom 1 or the satellite be set in a mode that permits transmission of any form of communication to any person or device either in or out of the Cour 14 CR 2421 2011 and CP 14 CR 2422 2011, Memorandum and Order, (Court of Common Pleas of Centre County, June 4, 2012), available at http://www.co.centre.pa.us/media/sandusky.asp 424 Id.
120 425 He also pointed to a report by the Criminal Procedural Rules Committee that described these communications as a misinterpretation of the Rule : Permitting reports from the courtroom while court i s in session did not, in as long as the reports did not contain simultaneous verbatim quotations. It is readily apparent from the my definition is confusing to reporters, unworkable, and therefore, likely unenforceable. If reporters are permitted to electronically transmit reports from the courtroom while court is in session and wh ich contain verbatim accounts of the proceedings, it cannot be considered anything other than exactly the kind of broadcasting explicitly prohibited by the Rule. paragraph 7 of the Decorum Order. While I will permit reporters to bring c ourtroom, they must not be in a mode that permits transmission of any form of communication to any person or device either in or out of the Courthouse or Courthouse Annex. 426 While real time coverage of the Sandusky trial ultimat ely failed to occur, the iss ues highly illustrative of the obstacles posed by the application of current law to new technology. 427 Rhode Island C ell phone use is strictly prohibited in Rhode Island courtrooms. This includes the use of cell phones for audio recording, video recording, or photography. 425 Id. 426 Id. See also Proposed rules changes in Pennsylvania address tweeting in court, C ONNECTED Feb. 2012, www.nc sc.org/Newsroom/Connected/2012/0212 Connected.aspx The rules committee proposed tablets during court proceedings. Id. 427 See generally Barry Petchesky, Twi tter Banned From Jerry Sandusky Trial, Which Starts Next Week, D EADSPIN June 4, 2012, http://deadspin.com/5915574/twitter banned from jerry sandusk y trial which starts next week
121 Courthouse rules also prohibit any type of photographic or audio visual equipment other than that television camera per trial court). 428 Utah 2013, addresses portable electronic devices. Their use i n courtrooms is allowed if done so quietly, and the rule appears to permit live blogging and t weeting without additional permissions. However, requests to use the portable electronic device to record or transmit images or sound must be made 24 hours in ad vance and are subject to approval by the presiding judge. The rule allows the judge to further restrict usage of not to impose further restrictions unless use of a portable electronic device might interfere with the administration of justice, disrupt the proceedings, pose any threat to safety or security, compromise the integrity of the proceedings, or threaten the interests of a minor. 429 Vermont Electronic devices can be carried into Vermont courthouses but must be powered off before the person enters the courtroom. The judge may grant permission, however, to use the devices in the courtroom. Image recording or photographing capabilities in 428 Art. VII, Media Coverage of Judicial Proceedings, R.I. S. Ct. R. available at http://www.courts.ri.gov/Court s/SupremeCourt/Supreme%20Court%20Rules/Supreme Rules Article7.pdf ; R.I. Courthouse R., available at http://www.courts.ri.gov/PublicResources/PDF/Court_House_Rules.pdf 429 R ule 4.401.02, Possession and Use of Portable Electronic Devices, (effective April 1, 2013), proposed rule is available at http://www.utcourts.gov/resources/rules/comme nts/2012 08/CJA04 0401.02.pdf See also Final Report: Judicial Council Study Committee on Technology Brought into the Courtroom, Utah State Courts, April 10, 2012, available at http://www.rcfp.org/sites/default/files/docs/20120501_130338_utah_camerasreport.pdf
122 electronic devices can be used only if the subject consents to being pho tographed or recorded. 430 Federal Law and Mobile Technology in the Courts There is published case law in the area of mobile technology in the federal courts. This case law evolved in the context of Rule 53 of the Federal Rules of Criminal Procedure, which p as well as prohibitio n on coverage in criminal and civil trials Accordingly, live blogging and t weeting simultaneous coverage of federal proceedings offers a new and unique opportunity to cover th is part of the judiciary. 431 In re Sony BMG Music Entertainment : Webcasting Motions Hearing When record companies went after individuals who downloaded songs for free, a consolidated set of the lawsuit s made its way to the District of Massachusetts. In Dece mber 2008, defendant Joel Tenenbaum asked the court to allow the webcast of a non evidentiary motions hearing. Courtroom View Network would record and transmit the proceedings to a Harvard Law School site 432 and from there the proceedings would be streamed to the general public. Despite the objections of the record companies, District Court Judge Nancy Gertner granted the motion. 433 In response, the record 430 Admin. Directive No. 28, Electronic Devices in a Courthouse, V t. S.Ct.., Oct. 2008 term, available at http://www.vermontjudiciary.org/MasterDocument/AdministrativeDirectiveNo28electronicdevicesincourtho use.pdf 431 Charles D. Tobin, Federal Courts Greet TV, Blogs and Tweets With M ixed Enthusiasm H OLLAND & K NIGHT M EDIA AND C OMM N EWSLETTER January/February 2010, at p. 4, available at http://www.hklaw.com/pub lications/Federal Courts Greet TV Blogs and Tweets With Mixed Enthusiasm 01 20 2010/ 432 Anthony R. McClure, First Circuit Rejects Webcasting of Civil Hearing, L ITIGATION N EWS June 25, 2009, available at http://apps.americanbar.org/litigation/litigationnews/top_stories/first circuit sony webcastin g.html 433 Capitol Records, Inc. v. Alaujan, 593 F. Supp. 2d 319 (D. Mass. 2009).
123 companies asked the First Circuit Court of Appeals to intervene, arguing that the district al rule prohibited the webcasting, 434 as did the stated policy of the Judicial Conference of the United States. 435 T he First Circuit recognized that it must address a question of first impression: el to gavel webcasting of a 436 Local Rule 83.3, [e] xcept as specifically provided in these rules or by order of the court 437 Judge Gertner granted the motion for coverage based on this proviso, interpreting catchall provision that permitted an ad hoc, case specific determination of whether broadcasting should be permitted. The Fir st Circuit rejected Judge interpretation. The court reasoned if that interpretation, based on subsection (a) of Rule 83.3, were allowed to persist, s ubsection (c) of the same Rule would be rendered 438 Subsection (c) only per mits the court to allow photography, recording, and broadcasting to preserve evidence, perpetuate the record, or in connection with investitive, ceremonial, or naturalization proceedings. 439 The c ourt also determined that the narrow interpretation of the loc al rule was 434 At issue was Local Rule 83.3 for the U.S. District Court for the District of Massachusetts. 435 In re Sony BMG Music Ent 564 F.3d 1 (1 st Cir. 2009). 436 Id. at 2. 437 Id. a t Appendix A; Local R. 83.3, Photographing, Recording and Broadcasting, D. Mass. Local R. 438 Id. at 5. 439 Id. at Appendix A.
124 broadcasting. A second source of support was found in the archives of the First Circuit Judicial Council, which in 1996 in response to the urging of the Judicial C onference television coverage of proceedings in the United States district courts within the circuit, 440 Accordingly, the c ourt held, the local rule, Judicial Conference Policy, and t he circuit council resolution, 441 In a concurring opinion, Circuit Judge Lipez wrot conclusion does not discredit the policy concerns that animated, at least in part, the 442 Judge Lipez pointed out the irony that only those physically present in the courtroom will be able to hear the parties argue the merits of the motion in district court, but almost immediately after oral argument in the First Circuit ended, the public would be able to access a recording. Judge Lipez noted the importance of public access to court proceedings, and r ecommended that the rule, policy, and provide an unprecedented opportunity to increase public access to the judicial system in 443 440 Id. at Appendix C. 441 Id. at 8. 442 Id. at 10 11 (Lipez, J., concurring). 443 Id. at 11 12.
125 Hollingswor th v. Perry : Streaming of the Proposition 8 Civil Trial A di spute over streaming coverage of civil trial proceedings made its way to the U.S. Supreme Court, which prohibited the coverage on other grounds but still took the opportunity to voice concerns abo ut cameras and technology in the court. The case, Hollingsworth v. Perry 444 originated in the Northern District of California, where two same sex couples challenged the constitutionality of Proposition 8, an amendment to the California C onstitution that re stricted the recognition of marriage to opposite sex couples. The amendment was adopted in 2008 and in 2009 became the subject of a federal lawsuit. 445 The District Court issued an order allowing the nonjury trial to be broadcast live by way of streaming a udio and video. The order was made possible by an amendment to the local rules that occurred shortly before trial. The live broadcast would not be on the internet but rather to viewing areas in federal courthouses around the country. 446 The broadcasts wou ld be made available online after a delay. 447 violated a federal statute by promulgating the amendment to its local Rule without sufficient opportunity for notice and comment and that the public broadcast would be 444 Hollingsworth v. Perry, 558 U.S. 183 (2010 ). 445 Id. 446 Id. Closed circuit feeds were utilized in the 1997 trial of Timothy McVeigh, who was convicted and eventually executed for his role in the 1995 bombing of a federal building in Oklahoma City that left 168 dead and more than 500 injured. Congres s passed a law requiring the closed circuit feeds when a criminal trial was moved out of state or more than 350 miles so that survivors could follow the arguments that Congress was impermissibly exerting power over the judiciary. Steven K. Paulson, Judge Rules To Allow Closed Circuit Coverage of Bombing Trial Assoc. Press., July 15, 1996, available at http:/ /www.apnewsarchive.com/ See also Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104 132, Â§ 235, 110 Stat. 1214 (1996); 42 U.S.C. Â§ 10608 (2000). 447 Id.
126 448 The Ninth Circuit denied the l ock the streaming of the trial, so the defendants requested that Supreme Court stay the order permitting stre aming. The Supreme Court in a per curiam opinion, began its discussion of the case by w s of the propriety of broadcasting court to of whether the District Court complied with federal law in amending its local rules. The eleventh hour to treat this case differently th an other trials in the district 449 In discussing the importance of notice and the opportunity for public comment on the broadcasting rule changes, the Court emphasized the irreparable harm that could come to trial participants: The trial will involve various witnesses, including members o f same sex couples; academics, who apparently will discuss gender issues and gender equality, as well as family structures; and those who participated in the campaign leading to the adoption of Proposition 8. This Court has recognized that witness testimo ny may be chilled if broadcast. See Estes v. Texas 381 U.S. 532, 547 (1965); id. at 591 (Harlan, J., concurring). Some is broadcast, and they have substantiated their co ncerns by citing incidents of past harassment. These concerns are not diminished by the fact that There are qualitative differences between making public appearances regarding an issue a country And witnesses subject to harassment as a result of broadcast of their testimony might be less likely to cooperate in any future proceedings. 450 448 Id. 449 Id. 450 Id.
127 Justice Breyer, joined by Justices Stevens, Gi nsburg, and Sotomayor, authored a dissent, arguing that there was in fact adequate notice and opportunity for public comment on the rule changes. Justice Br e yer defendants and witnesses would suffer irreparable harm if the broadcasts took place, mere presence of the broadcast media inherently has an adverse effect on [the judicial] 451 Justice Breyer also rejected the Cou irreparably harmed, especiall y where the witnesses had not asked the Court to set and had appeared on television or internet broadca sts. 452 Justice Breyer noted that the broadcasts would only be delivered to five other courtrooms, coverage which paled in comparison to the hundred of news outlets already covering the trial. 453 United States v. Shelnutt : Tweet Coverage of a Federal Criminal Trial In United States v. Shelnutt 454 decided in 2009, a reporter for the Columbus Ledger Enquirer in Columbus, Georgia requested to use his cell phone during the criminal trial of an attorney accused of laundering money from a drug organization The rep orter wanted to send t weets directly from the courtroom. 455 The court refused the 451 Id. (Breyer, J., dissenting) (citing Chandler v. Florida, 449 U.S. 560, 57879 (1981) and M. C OHN & D. D OW C AMERAS IN THE C OURTROOM : T ELEVISION AND THE P URSUIT OF J USTICE 62 64 (1998) (canvassing camera, provided answers that w 452 Id. 453 Id. 454 United States v. Shelnutt, 2009 U.S. Dist. LEXIS 101427, 2009 WL 3681827 (M.D. Ga. Nov. 2, 2009). 455 Id.
128 The court to ok a broad view of the term broadcasting, pointing out that the word also meant asting to the general public and thus making wid ely known the trial proceedings, the opinion stated. 456 The court also looked to the legislative history of Rule 53, finding that drafters intended to take a broad view of the term and the technology it cove red. A the trial. The room would be close to the courtroom r electronic 457 Instances of Permitted Electronic Coverage in Federal Courts In Re Sony, Hollingsworth, and Shelnutt illustrate instances where federal courts rejected various types of live coverage. In Re Sony and Hollingsworth both involved trial court judges who were open to the idea and higher courts who disapproved the plans based on court rules. However, the cases discussed below illustrate cases where federal district court judges successfully exp erimented with live coverage from federal 456 Id. The Court described Twitter and its process as: Twitter is a social networking and micro blogging service that invites its users to answer the pho ne several ways, including via the Twitter website. Id. 457 Id. at n. 2.
129 courts, findin g a way to reconcile Rule 53 with the requests of modern journalists to use mobile technology in the courts. United States v. Libby (D.D.C.) One of the earliest forays into live blogging in federal co urts occurred in the 2007 458 Libby was allegedly lying to government agents and a grand jury during an investig ation of the leak of covert CIA s identity 459 Libby was indicted in 2005 and went to trial in early 2007. For the first time in federal court, two of the 100 seats in the federal courthouse reserved for the press were reserved for bloggers. 460 The press credentials were the result of lengthy efforts by the Media Bloggers Association to gain access for bloggers. 461 blog directly from the courtroom, they were able to watch video of the procee dings in a nearby room and make blog posts wireless internet connection. 462 458 The Washington Post maintains a special section on its website dedicated the Plame investigation. Background on the Plame Investigation W ASH P OST http://www.washingtonpost.com/wp dyn/content/linkset/2005/09/29/LI2005092901976.html (last visited Jan 3, 2013). 459 Id. 460 Alan Sipress, Too Casual to Sit on Press Row? W ASH P OST Jan. 11, 2007, available at http://www.washingtonpost.com/wp dyn/content/arti cle/2007/01/10/AR2007011002424.html "Bloggers can bring a depth of reporting that some traditional media organizations aren't able to achieve because of space and time limitations," said Sheldon Snook, administrative ass istant to Chief Judge Thomas F. Hogan. Id. 461 Id. 462 Thomas Pierce, Bloggers Join Frenzy at Media Saturated Libby Trial, NPR, Feb. 1, 2007, available at http://www.npr.org/templates/story/story.php?storyId=709818 8
130 Figure 5 4 Feb. 20, 2007 s creenshot trial. Full post available at http://firedoglake.com/2007/02/20/libby live zeidenbergs prosecution summation two/
131 United States v. Nacc h io (D. Colo.) Live coverage was permitted in the trial of Joseph Nacchio, former CEO of tel ecommunications company Qwest, who was indicted on 42 counts of illegal insider trading. 463 Nacchio went to trial in March 2007, before Judge Edward Nottingham in the District of Colorado. Real time coverage was permitted from jury selection through the 20 day trial and sentencing. 464 In addition to live online coverage by newspapers the Denver Post and the Rocky Mountain News other organizations also live blogged from the courtroom. TheRacetotheBottom.org a collaboration of students and faculty at the Un iversity of Denver Sturm College of Law, provided daily coverage of the trial 465 Jeralyn Merritt, a Denver criminal defense attorney and author of the blog TalkLeft: The Politics of Crime also live blogged the proceedings for Denver magazine 5280 466 Earli er in the year, Merritt also blogged from the Libby trial in Washington, D.C. 467 463 United States v. Nacchio, Case No. 05 cr 00545 EWN (D. Colo.). Full coverage of the case can be found at the Denver Post http://www.denverpost.com/nacchio 464 See Dave Kopel, Kopel: Interne t humming with Nacchio trial coverage R OCKY M OUNTAIN N EWS Mar. 24, 2007, available at http://m.rockymountainnews.com/news/2007/mar/24/bkopelb int ernet humming with nacchio trial/ 465 J. Robert Brown, Jr. Blogging the Nacchio Trial, H ARVARD L AW S CHOOL F ORUM ON C ORPORATE G OVERNANCE AND F INANCIAL R EGULATION Mar. 16, 2007, http://blogs.law.harvard.edu/corpgov/2007/03/16/blogging the nacchio trial/ 466 Jeralyn Merritt, Praise for our Live Blogging on Nacchio Trial 5280. COM Mar. 25, 2007, http://www.5280.com/blogs/2007/03/25/praise our live blogging nacchio trial 467 Id.
132 Figure 5 5 Screenshot from the TheRacetotheBottom.org blog during the Nacchio trial.
133 United States v. Miell (N.D. Iowa) savvy judge in a district with high tech co Cedar Rapids Gazette reporter Trish Mehaffey the perfect opportunity to try her hand at posting live blog updates from a trial in January 2009 468 The judge was Judge Mark Bennett of the Northern District of Iowa in Sioux City, and the tr i al was that of a local landlord a ccused of tax fraud. 469 Mehaffey emailed Judge Bennett for permission to use a laptop in the courtroom to post live updates. Judge Bennett granted permission for the reporter to live blog, on the condition she sit farther back in the courtroom so her typing would not create a distraction. 470 Ben from his daily reading of make his small firm the first in t he state to have desktop computers, and his status as arguably the first federal judge to have an email address. 471 Mehaffey viewed the coverage as a reflection of changes in the newspaper industry. 472 ABA Journal 473 468 Debra Cassens Weiss, Judge Explains Why He Allowed Reporter to Live Blog Federal Criminal Trial, ABA J OURNAL Jan. 16, 2009, available at http://www.abajournal.com/news/article/bloggers_cover_us_trials_of_accused_terrorists_cheney_aide_an d_iowa_landlor/ See also United States v. Miell, Case No. CR07 101 MWB (N.D. Iowa). 469 Weiss supra Mehaffey was also allowed to live blog during hearings in the same case before Chief Magistrate Judge Paul Zoss, under the same terms as Judge Bennett. Live Blogging and Tweeting From Co urt: Experiences from the Field C ITIZEN M EDIA L AW P ROJECT http://www.citmedialaw.org (last visited Jan. 3, 2013). 470 Weiss, supra. 471 Id. 472 Id. 473 Id.
134 474 For his part Judge Bennett though t goes on in federal court and the transparency that would be given the proceedings by live blogging outweighed any potential prejudice to the defe the ABA Journal. 475 474 Id. 475 Id.
135 Figure 5 6
136 United States v. Fumo (E.D. Pa.) When Philadelphia politician Vincent Fumo, a former Democratic state senator, went on trial for corruption in October 2008, it provided the perfect opportunity for The Philadelphia Inquirer to live blog a trial. 476 The paper used the CoveritLive platform as well as Twitter. 477 Judge Ronald Buckwalter presided over the four month trial, which resulted in convictio ns on all 137 counts and approved the live blogging The I nquirer told the Knight Di gital Media Center. 478 During jury deliberations, one of the jurors made posts to Facebook and Twitter 479 attorneys sought to remove the juror and halt the deliberations, w hich had b een ongoing for two weeks. As the judge and parties met to determine what would happen as a result of the posts, the cause of the chaos Twitter also became the solution for reporter Moran as he was forced to stay on the move while the situation was resolv ed Moran posted updates on Twitter from his cell phone, and when the jury returned to the courtroom to deliver the verdict, Fumo swit ched back to live blogging on Coverit Live 480 Chris Krewson, executive editor of online news for The Inquirer later wrot 476 United States v. Fumo, Case No. 06 319 (E.D. Pa. ). 477 Coverage is available at http://www.philly.com/philly/news/special_packages/inquirer/fumo/ 478 Michele McClellan, In Philly, trial by Twitter N EWS L EADERSHIP Mar. 17, 2009, http://archive.knightdigitalmediacenter.org/leadership_blog/comments/in_philly_twittering_a_trial/ 479 Id. 480 Id.
137 blog provided us with an edge in posting this type of news that other local media could not match. While nearly every TV station broadcast news of the verdict shortly after we 481 In fact, a television news anchor was spotted outside the courthouse reading the live blog on camera, noting that it came from philly.com. 482 Editor Krewson concluded that sroom break a story. 483 481 Id. 482 Id. 483 Id.
138 Figure 5 7 via blog and Twitter showing t hat deliberations resumed at 10: 41 a.m. and by 11:27 a.m., a verdict had been reached.
139 United States v. Harris et al. (D. Kan.) One of the earliest print reporters to seize the opportunity to provide live updates from the courtroom via Twitter was Ron Sylvester of the Wichita Eagle in Kansas. 484 Kansas federal court, Sylves ter had been using Twitter for more tha n a year to cover state court proceedings. 485 When he asked District Judge J. Thomas Marten for permission to use Twitter during the trial, Judge Marten obliged. Although some attorneys were concerned that jurors migh that jurors are always admonished to avoid newspaper, broadcast, and online reports, 486 phone: 487 savvy update the federal courthouse in Wichita to include wireless internet connections in courtrooms. 488 484 www.twitter.com/rsylvester Sylvester is currently a gaming reporter at the Las Vegas Sun. 485 A SSOC P RESS Mar. 6, 2009, available at http://www.cbsnews.com/stories/2009/03/06/tech/main4847895.shtml?source=related_story 486 Id. 487 Id. 488 Ron Sylvester, W H AT THE J UDGE A TE FOR B REA KFAST Feb. 23, 2009, available at http://blogs.kansas.com/courts/2009/02/23/federal judge says twitter is on/
140 public understanding the more legitimacy the public system will have in the eyes of told The Associated Press 489 Sylvester was one of the first reporters on the legal beat to adopt Twitter as a News Media and t he Law in 2011. 490 the industry formerly known as newspapers. All my life we were a second day news source and people would get their breaking news from broadcast. But now (Twitter) puts all news 491 Un ited States v. White (W.D. Va.) Just as Sylvester sought unprecedented access to federal court in Kansas, Laurence Hammack of The Roanoke Times broke new ground with his coverage of the trial of William White. 492 White, leader of a Roanoke neo Nazi group, s pent eight days on trial in federal court for a campaign of racial harassment against people from Virginia Beach to Canada. He was eventually convicted of four of the seven charges against him. The Roanoke Times sought special permission from Judge Jam es Turk of the Western District of Virginia to use an internet connected netbook and cell phone in the 489 T HE A SSOCIATED P RESS Mar. 6, 2009, available at http://www.cbsnews.com/stories/2009/03/06/tech/main4847895.shtml?source=related_story 490 Nicole Lozare, More reporters tweeting from courtroom T HE N EWS M EDIA AND THE L AW Fall 2011, at p. 6, available at http://www.rcfp.org/br owse media law resources/news media law/news media and law fall 2011/more reporters tweeting court 491 Id. 492 United States v. White, Case No. 7:08 CR 00054 (W.D. Va.).
141 courtroom. 493 Judge Turk granted the request, and the result was a blog dedicated to the trial, which contained several daily updates on the proceed ings. Though the initial plan was to blog directly from the courtroom, technical issues apparently resulted in a different process, where the reporter emailed reports to the newsroom and they were then posted to the blog, usually within minutes. The same newsr oom producer would then tweet the posts. 494 The newspaper was happy with the end result of the coverage, 495 493 Jordan Fifer, Approach to trial coverage a first for The Roanoke Times, F ROM THE NEWS ROOM (blog), Dec. 22, 2009, http://blogs.roanoke.com/newsroom/2009/12/22/approach to trial coverage a first for the roanoke times/ 494 I d. 495 Id. See also Laurence Hammack, Jury finds White guilty on 4 counts, T HE R OANOKE T IMES Dec. 19, 2009, available at http://www.roanoke.com/news/roanoke/wb/230282
142 CHAPTER 6 ANALYSIS AN D CONCLUSION The purpose of this study was to examine the current state of reporting in real time from courtrooms using mobile technology. e as the traditional cl assifications of news outlets are bl urred by digital convergence Most current laws were written before the widespread adaptation of technologies such as Twitter, Facebook, smartphones, and blogs. The laws were written with televis ion cameras and radio stations in mind, not iPads and live chats. As a result, when a dispute arises over reporting in the courtroom using mobile devices, judges are often forced to reconcile old laws with new technology. This process itself might create new law in the form of a written opinion. This area of the law is constantly evolving, and c omprehensive analysis is scant. This study seeks to fill the gap in the literature by presenting a thorough examination of the law of mobile technology in the cou rtroom as used by the press in the 50 states and at the federal lev el. This final C hapter of the study first summarizes the theory, literature, and law that provides the foundation for a discussion of how this area of the law is evolving. Next, the key f indings of this st udy are discussed, using the research questions identified in Chapter 1 as a guide. RQ1 asks how current laws treat mobile technology tools that enable the contemporaneous dissemination of information captured by journalists in legal pro ceedings. The examples and law identified in Chapter 5 are summarized in an attempt to answer RQ1. Next, RQ2 asks what a model court policy on mobile technology use by journalists in trial courts would look like. Using the research gathered in Chapter 5 as well as extant court policies, this model policy is
143 presented and discussed. To complement this model policy for courts, the findings in Chapter 5 were used to create a list of best practices for journalists who cover the courts. Finally, study conc lusions and suggestions for future research are presented. Research Foundations In discussing pres s coverage of the court system and the competing interests at between the First Amendment guarantee of a free press and the Sixth Amendment right of a criminal defendant to a fair trial. A discussion of the feasibility or fairness of mobile technologies in the courtroom would be incomplete without consideration of the law and p rinciples implicated by the free press fair trial debate. Chapter 2 presented the theories and law underlying this debate What is a free press? The idea has evolved since prior to the existence of the First Amendment, with various values at play, such as autonomy, the free flow of ideas, self Court case law on press freedoms resulted in free press: freedom from prior restraints, freed om from compelled content, freedom to gather news, and freedom to criticize the government. While none of these freedoms are absolute, they are freedoms to be considered any time government restric tions on the press are involved. The freedom from prior re straints is well established in American jurisprudence In fact, prior restraints are presumptively unconstitutional, as established in Near v. Minnesota 496 and confirmed 40 years later in New York Times v. United States. 497 Just 496 283 U.S. 697 (1931).
144 as the government cannot gen erally tell the press what not to print, it al so cannot tell the press what it must print. This freedom from compelled content was articulated in Miami Herald Publishing Co. v. Tornillo 498 The freedom to gather news is the most tenuous of the four broad f reedoms identified by the author of this study, but it is still a value that has been recognized by the Supreme Court and is important for journalists seeking to gather news in the courtroom. 499 Finally, the freedom to criticize the government is a freedom the press enjoys and one that plays a role in the importance o f press coverage of the legal system Government parties and the judicial system are subject to the o f a free press. What is a fair trial? press coverage. Jurors can be biased as a result of exposure to in flammatory coverage. Sheppard v. Maxwell is perhaps the epitome of prejudicial publicity, where a media circus ensued surrounded U.S. Supreme Court t responsible press has always been regarded as the handmaiden of effective judicial 500 While the press can certainly be a source of prejudicial publicity, trial judges must consider the vari ety of remedies available to them to ensure a fair trial, such as change of venue, continuance, jury 497 498 418 U.S. 241 (1974). 499 Branzburg v. Hayes, 408 U.S. 665 (1972). 500 Sheppard v. Maxwell, 384 U.S. 333, 350 (1966).
145 questionnaires, sequestration, and jury instructions These remedies should be considered before closing proceedings or issuing gag orders. These alterna tives help Cameras in the courtroom have themselves been subject to several instances of Supreme Court scrutiny in the past hundred years, with the disdain for cameras expresse d in Estes v. Texas 501 eventually giving way to the conclusion in Chandler v. Florida 502 that the mere presence of cameras does not automatically result in an unfair trial. The literature on cameras in the courtroom is generally produced by either psychology meta analysis of existing social science literature on the issue resulted in the conclusion that 503 Legal approaches to the issue focus on the autonomy of trial judges, 504 the array of legal and logistical tools to effectively manage proceedings, 505 and the public education aspect of televised proceedings, 506 among oth er topics. However, the body of literature devoted to the use of mobile technologies in the courtroom 507 is still scarce, though this study should narrow the gap. 501 381 U.S. 532 (1965). 502 449 U.S. 560 (1981). 503 B RUSCHKE & L OGES F REE P RESS V F AIR T RIA LS supra note 212 at 134 35. 504 Kane, supra note 227 505 Sellers, supra note 238 506 See Barber, supra note 244 ; Vinson & Ertter, supra n ote 246 ; and Koszinsky & Johnson, supra note 248 507 See Stawicki, supra note 253 ; Kreimer, supra note 256 ; Cervantes, supra note 259 ; Feinberg, supra note 265 ; and Schwarz, supra note 268
146 In Chapter 4, the law of traditional cameras in the courtroom in the 50 states and at the fede ral level was examined. This law applies not only to traditional cameras, but in many instances where more specific law is unavailable, has also been crafted to apply to questions regarding the propriety of using mobile technology to report live from the courtroom. Cameras are permitted in all states (the District of Columbia does not permit cameras), with varying degrees of openness. 508 In five states Alabama, Maryland, Minnesota, South Dakota, and Tex as consent of the parties is required, which poses a s ignificant obstacle to coverage because the media is at the mercy of the whim s of the parties. Some states, such as Delaware, Illinois, Indiana, Louisiana, Nebraska, and New York only permit coverage in the appellate courts, which eliminates what is argua bly the level at which cases are the most newsworthy the trial level In Maryland, Pennsylvania, and Texas, cameras are not permitted in criminal proceedings, though the majority of states do allow criminal coverage. 509 At the federal level, cameras are pro hibited, especially in criminal proceedings. Judicial Conference, which advocates a prohibition of coverage in both civil and criminal trials. Circuit courts of appeal have the discretion to allow co verage of appellate arguments. O nly the Second and Ninth Circuits have done so. The U.S. Supreme 508 Oklahoma currently does not have a rule on cameras in the courtroom coverage was previously governed by the Okl ahoma Judicial Code of Conduct Canon 3, which prohibited coverage without express permission from the judge. The Canon was superseded in 2011 and has not yet been replaced. 509 Although Texas does not expressly permit coverage of criminal trials, it does oc cur on a case by case
147 Court does release audio recordings of its oral arguments, prompted by press demand during the Bush v. Gore case in 2000. The federal courts have experimented with camera in civil proceedings, first with a 3 year pilot program in the early 1990s and again with another 3 year pilot program set to conclude in 2014. The recent pilot takes place in 14 federal courts, but only permits coverage by the court itself, not the media.
148 Table 6 1 Overview of state law of cameras in the courtroom Trial Appellate Civil Crim inal Party c onsent r equired Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware D.C. Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Monta na Nebraska Nevada New Hampshire
149 Table 6 1. Continued Trial Appellate Civil Criminal Party c onsent r equired New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington Wes t Virginia Wisconsin Wyoming
150 Summary of Findings and Answers to Research Questions Building upon the law presented in Chapter 4, Chapter 5 addressed case law and case studies of mobile technology being used (or its attempt ed use) by the press to report from the courtroom. To answer the research questions, legal research methodology was used Primary sources were gathered using the guide to cameras in the courtroom produced by the Radio Television Digital News Association (RTDNA), law review and journal articles, keyword searches on the LexisNexis legal database, and the websites/reports of relevant organizations (i.e., Citizen Media Law Project, Conference of Court Public Information Officers). Articles from the popular p ress were also key in identifying relevant developments in this area of the law. Research Question 1: How do current laws treat mobile technology tools that enable the contemporaneous dissemination of photos and information captured by journalists in a leg al proceeding? Overall, only a handful of states have statewide laws or rules specific to the use of mobile electronic devices. 510 In federal courts, policies on reporting from the o the practice and her interpretation of the existing rules. There are three written decisions from federal courts, and in all three, live coverage has been denied. 511 Despite those three federal cases where live coverage was not permitted there have been several 510 Arkansas, Connecticut, Hawaii, Maine, Michigan, Nevada, New Hampshire, Rhode Island, Utah, Vermont. 511 In re Sony BMG Music Entmt., 564 F.3d 1 ( 1 st Cir. 2009); Hollingsworth v. Perry, 558 U.S. 183 (2010); United States v. Shelnutt, 2009 U.S. Dist. LEXIS 101427, 2009 WL 3681827 (M.D. Ga. 2009).
151 instances of reporters successfully covering federal criminal trials using mobile technology. 512 In analyzing the current state of the law on mobile technology and press coverage from the courtroom, it is clear that there is little guiding preced ent on the matter. As a result, trial judges are forced to interpret old rules and apply them to new technologies. If the judge is familiar with technology and open to the coverage, he can often justify allowing text based transmissions from the courtroo m, crafting an interpretation of existing law that would permit the practice. However, if a judge is cautious of the practice and takes a more conservative approach to interpreting existing law, a case can just as easily be made against allowing li ve cov erage from the courtroom Accordingly, the uncertain state of the law in this area is a double edged sword. It leaves plenty of leeway for judges to push the envelope but can also cultivate a fear of the unknown that might lead to blanket bans on mobile technology. Either way, in the absence of a clear statutory mandate, these judges have the power to craft the law through their inherent powers to control the courtroom. Research Question 2: What would a model court policy on mobile technology use by jour nalists in trial courts look like? A model court policy is one that would fairly take into account the variety of competing interest s at play information about the judicial maintaining order and decorum in the court. 512 United States v. Libby (D. D.C.), United States v. Nacchio (D. Colo.), United States v. Miell (N.D. Iow a), United States v. Fumo (E.D. Pa.), United States v. Harris (D. Kan.), United States v. White (W.D. Va.)
152 The model policy addresses these factors: What are the relevant laws and rules? What level o f discretion is afforded to the judge? Is there a presumption that coverage, or certain types of coverage, are permissible? What are the co mpeting policy concerns at play ? Are credentials required? rocess? Is prior permission required? What types of mobile technology are contemplated by the policy? Where can journalists use mobile technology for live coverage ? When can journalists use mobile technology for live coverage ? How can mobile technology be used inside the courtroom ( i.e., note taking, transmitting text based reports, sending photos ) ? What t ypes of keyboards are permitted? How will y infrastructure affect the policy? How will the policy be publicized? How will court perso nnel be trained on use of mobile technology? The policy is intended as a guideline for individual cou rts to adopt and then adapt to any jurisdictional requirements are needed. As fitting with the scope of this study, the policy is limited to the use of electronic devices by journalists in trial courts A separate, media specific policy is beneficial because it can serve to (1) preserve and enhance the profile cases as they arise; and (2) it lessens the risk that a broad ban on electronic devices will also apply to journalists. A separate policy is also appropriate because many of the security and decorum concerns that underlie policies
153 for the general public are less relevant to media use of devices, which is mor e likely to raise concerns of fairness and publicity that might impact the fairness and integrity of the proceeding. The model policy: 513 Guiding Principles : Transparency in the courts has numerous benefits. It can increase public knowledge of the courts, enhance confidence in the system, and promote more unbiased and truthful proceedings. Transparency also extends the historical tradition of open courts that underlies our legal system. The media plays a key role in exposing the public to the judicial sy stem. Just as technology h as changed the way courts operate, it has also influenced the way in which the media disseminates and citizens receive information. Mobile technologies such as smartphones and laptops enable instant, on demand news, and as the p ublic rapidly adopts these technologies, the media works to supply coverage as quickly as possible. With these factors in mind, the use of mobil e technology in this Court is presumptively permitted, subject to the guidelines explained below. However, reg ardless of any general policy adopted by the Court, a presiding judge has the inherent authority to control activities in his or her courtroom. Accordingly, electronic device usage may be prohibited or restricted at th e usage might interfere with the integrity of the proceedings, is disruptive, or poses a security threat. Defining Media : New technology has blurred the lines between the traditional news media and regular citizens, as internet access and software make it p ossible for a single person, with very low overhead, to create content that is available globally. For the purposes of this policy, the Court adopts a broad and adaptable definition of journalist : a person engaged in information gathering with the intent to disseminate it to the public. Credentials are not required to use mobile technology to transmit text based coverage of court proceedings unless space limitations and demand necessitate pooling or reserved seating. Compliance with Applicable Laws : Noth ing in this policy should be construed in contravention to applicable state and federal laws or judicial rules, including Usage Guidelines : Inside courtrooms, members of the media may use electronic devices to takes notes and/or transmit text based communications without seeking prior permission from the presiding judge or judicial officer. Electronic devices may not be used inside courtrooms to capture or send photos, videos, audio, or any other form of non text based transmiss ion without prior permission from the presiding judge or judicial officer. Electronic devices must 513 See also U.S. C OURT OF A PPEALS FOR THE N INTH C IRCUIT P RINCIPLES AND P RACTICES FOR E LECTRONIC D EVICES (Feb. 25, 2010); M EDIA L AW R ESOURCE C ENTER M ODEL P OLICY ON A CCESS AND U SE OF E LECTRONIC P ORTABLE D EVICES IN C OURTHOUSES AND C OURTROOMS & M EMORANDUM IN S UPPORT FOR S M ODEL P OLICY ON E LECTRONIC D EVICES ( July 2010).
154 be muted, and their use should be as minimally disruptive as possible. Use of a keyboard specifically designed to minimize noise disruption is highly recom mended. Media use of electronic devices outside the courtroom (i.e., lobbies, hallways) is permitted without restriction as to the types of capture or transmission, subject to reasonable restrictions on use incidental to safety and decorum concerns. This policy is subject to the discretion of the presiding judge or judicial officer, who may prohibit or restrict the use of electronic devices as part of his or her inherent authority to control activities in the courtroom. Administration of this Policy : The feasibility of using mobile technology in the Adequate wireless communication capabilities should be maintained for the benefit of not only the media but also the court, litigants and observers. This policy shall be distributed to all court personnel and displayed prominently in the interior of th e courthouse as well as on the C Any questions regarding the administration of this policy should be directed to the Co Information Officer or equivalent administrator. This policy serves as a guide for the courts and the media as the y navigate new coverage scenarios. It is intended to complement the best practices for journalists discussed below, and may be h elpful to journalists as they advocate for the right to report live from the courtroom using electronic devices. Best Practices for Journalists As this study demonstrated, because there is a lack of statutory law directly addressing mobile technology as a live where much of the law is currently being made. As such, journalists would be well advised to consider adopting best practices to optimize their chances of being permitted to report live with mobile te chnology Even if laws were adopted in all jurisdictions regarding the courtroom use of mobile technology by journalists judges will still retain the inherent authority to regulate conduct in their courtrooms. As such, one best practice that reporters covering legal affairs should adopt is to attempt to develop a professional relationship, rapport even, with the judges they are likely to encounter on their beat. While judges might be
155 resistant at first for fear of any appearance of impropriety if the judge and reporter are at least acquainted, the lines of communication may be more open. For example, Trish email to Judge Bennett and asked permission to send live upda tes from the court. Court personnel, especially public information officers, are more likely to be a first point of contact for journalists and may also be the primary contact with the judge on issues of media access. A good working relationship with cou rt personnel can also go a long way toward effecting permission to live report with electronic devices. In addition to developing relationships with judges and court personnel when possible, journalists should also be prepared to educate them on the issue s surrounding live reporting from the courtroom. To counteract the negative court opinions currently live coverage has successfully occurred locally or elsewhere Thi s could help assuage any fears judges and court personnel have about coverage, especially if it will be the be well before a high profile event might call for the coverage. This could put journalists in a good position to help develop court policies on live coverage in advance, before the pressures of a high profile case come into play. If journalists are granted permission to cover proceedings live especially wh ere occur the press should The Roanoke Times for dge Turk in allowing it to live re port the White trial. In contrast, the coverage of the Sandusky trial was curtailed after the
156 opinion, Judge Cleland explained that he was already taking a risk with his i nterpretation of the criminal rule. Rather than turning that leeway into a First Amendment battle, he eventually decided to reverse his original position and prohibit live reporting. A commonsense best practice worth repeating is a dhering to the rules as set out by the court regarding usage of mobile technology. These rules might be onerous and even repugnant to the reporter, but while the rules are in place, they must be followed. Journalists should assume that the judge (and parties) will read the cove rage at some point, and if anything is out of the scope of coverag e, penalties could be imposed. ermit live coverage. Though incidents like that in Kansas where a mistrial was declared after a reporter tweeted a photo of a juror after the judge had ordered no photos of jurors could be taken are rare, they can be devastating. 514 A related best practice is for journalists to be as minimally disruptive as possible. Even if the rules do not specifically require it, the use of touchpads or silent keyboards is recommended. The sound on devices should be set to mute. Devices should not require charging whil e in the courtroom, but if they do, it is advisable to sit near an electrical outlet to avoid having to move locations in the middle of the proceeding. Journalists should also be as self contained as possible. While courtrooms might offer 514 Kansas journalist tweets juror photo, causes mistrial C ONNECTED Ap r. 2012 ( re porter for the Topeka Capital Gazette inadvertently posted a profile photo of a juror to Twitter, resulting in a mistrial in a murder case).
157 wireless connec tions and plenty of outlets, journalists should prepare for the worst and if possible have an internet connection (by cell phone, for example) and back up devices available. Journalists covering the courts should also consider the feasibility of incorpora ting a chat function into their live coverage. In this way, the reporter is serving two functions, reporting the events and educating the public. This approach was used in the Dubos e murder trial in Jacksonville, the Casey Anthony trial, and the Fumo tri al in Philadelphia Because public education is a value often cited in favor of increased transparency in the courts, journalists who incorporate it into their coverage may find that it helps them gain access to the courts and expands their live reporting opportunities. Conclusions and Recommended Future Research The ability for reporters to provide real time coverage from the courtroom with a handheld device has the potential to revolutionize legal reporting. The line is continually blurred between print and broadcast journalism as these distinctions carry less meaning in an era of digital journalism. Accordingly, the cameras in the courtroom issue is no longer only of interest to broadcast journalists. It is an issue that is important for all journali sts, and at a time where the law is unclear, there is great opportunity to shape its course through advocacy, responsible reporting, and if necessary, legal challenges. As courts struggle with this uncertainty, consideration of the policies and procedures that will ensure the competing interests are fairly balanced is also important. These policies will also inevitably be developed by individual judges, as they inject their own viewpoint s and values into the rules governing their courtrooms. A well infor med and proactive press is key in urging the judiciary to permit coverage.
1 58 The constantly changing state of the law is a limitation of this study, and any future research should assess any new case law and develop new instances of successful use of mobile technology reporting in the courts. Future research should focus on perhaps the key players in this game the judges and journalists. Anonymous surveys and qualitative interviews of judges and journalists will bring a depth that was not within the scope o f this study Research on how consumers use live coverage of court proceedings is also recommended, and favorable results could be used to bolster future arguments for live coverage. Research on specific technologies (i.e., Twitter, CoveritLive) and thei r utility and effectiveness could help determine what type of coverage works best. Research on the potential for a pilot program involving live coverage from the courts could also help promote coverage, especially for hesitant courts. A limitation of thi s study that could be remedied by future research is exploration of media committees and their roles in developing policies related to live coverage.
159 APPENDIX A: MODEL POLICY Guiding Principles : Transparency in the courts has numerous benefits. It can in crease public knowledge of the courts, enhance confidence in the system, and promote more unbiased and truthful proceedings. Transparency also extends the historical tradition of open courts that underlies our legal system. The media plays a key role in exposing the public to the judicial system. Just as technology h as changed the way courts operate, it has also influenced the way in which the media disseminates and citizens receive information. Mobile technologies such as smartphones and laptops enable instant, on demand news, and as the public rapidly adopts these technologies, the media works to supply coverage as quickly as possible. With these factors in mind, the use of mobile technology in this Court is presumptively permitted, subject to the gui delines explained below. However, regardless of any general policy adopted by the Court, a presiding judge has the inherent authority to control activities in his or her courtroom. Accordingly, electronic device usage may be prohibited or restricted at t h e proceedings, is disruptive, or poses a security threat. Defining Media : New technology has blurred the lines between the traditional news media and regular citizens, as internet access and software make it possible for a single person, with very low overhead, to create content that is available globally. For the purposes of this policy, the Court adopts a broad and adaptable definition of journalist: a person engaged in information gathering with the intent to disseminate it to the public. Credentials are not required to use mobile technology to transmit text based coverage of court proceedings unless space limitations and demand necessitate pooling or reserved seating. Compliance with Applicable Laws : Nothing in this policy should be construed in contravention to applicable state and federal laws or judicial rules, including Usage Guidelines : Inside courtrooms, members of the media may use ele ctronic devices to takes notes and/or transmit text based communications without seeking prior permission from the presiding judge or judicial officer. Electronic devices may not be used inside courtrooms to capture or send photos, videos, audio, or any other form of non text based transmission without prior permission from the presiding judge or judicial officer. Electronic devices must be muted, and their use should be as minimally disruptive as possible. Use of a keyboard specifically designed to min imize noise disruption is highly recommended. Media use of electronic devices outside the courtroom (i.e., lobbies, hallways) is permitted without restriction as to the types of capture or transmission, subject to reasonable restrictions on use incidental to safety and decorum concerns. This policy is subject to the discretion of the presiding judge or judicial officer, who may prohibit or restrict the use of electronic devices as part of his or her inherent authority to control activities in the courtroo m.
160 Administration of this Policy : The feasibility of using mobile technology in the Adequate wireless communication capabilities should be maintained for the benefit of not only t he media but also the court, litigants, and observers. This policy shall be distributed to all court personnel and displayed prominently in the regarding the administration of th Information Officer or equivalent administrator.
161 APPENDIX B: BEST PRACTICES FOR JOURNALISTS Cultivate relationships with judges and court personnel. Be prepared to educate judges and court personnel on th e issues surrounding live reporting from the courtroom. Be proactive in advocating for live coverage opportunities, and do so before the pressures of a high profile case come into play. Follow the rules on live coverage while they are in place. Minimiz e disruptions by using silent keyboards or touchpads, muting devices, using devices with lengthy battery power, and arranging for a backup source of internet connectivity. Incorporate a chat function into coverage if possible. This will help educate the p ublic and give valuable insight into readership/viewership.
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170 United States v. Nacchio, Case No. 05 cr 00545 EWN (D. Colo.). Full coverage of the case can be found at the Denver Post http://www.denverpost.com/nacchio 77 (1968) United States v. Shelnutt, 2009 U.S. Dist. LEXIS 101427 (M.D. Ga. Nov. 2, 2009). United States v. Stevens 130 S. Ct. 1577, 1587 (2010). United States v. White, Case No. 7:08 CR 00054 (W.D. Va.). U.S. Court of Appeals for the Ninth Circuit, Principles an d Practices for Electronic Devices (Feb. 25, 2010). Va. State Bd. of Pharmacy v. Va. Citizens Consum er Council, 425 U.S. 748 (1976). Internet Sources Background on the Plame Investigation W ASH P OST http://www.washingtonpost.com/wp dyn/content/linkset/2005/09/29/LI2005092901976.html J. Robert Brown, Jr. Blogging the Nacchio Trial, H ARVARD L AW S CHOOL F ORUM ON C ORPORATE G OVERNANCE AND F INANCIAL R EGULATION Mar. 16, 2007, http://blogs.law.harvard.edu/corpgov/2007/03/16/blogging the nacchio trial/ Cameras in the Court: A State by State Guide R ADIO T ELEVISION D IGITAL N EWS A SSOCIATION http://rtdna.org/article/cameras_in_the_court_a_state_by_state_guide_updated (last visited Mar. 31, 2013 ). Cameras in Courtr ooms D I GITAL J OURNALIST S L EGAL G UIDE http://www.rcfp.org/browse media law resources/digital journalists legal guide/cameras courtrooms C ONFERENCE OF C OURT P UBLIC I NFORMATION O FFICERS N EW M EDIA AND T HE C OURTS : T HE C URRENT S TATUS AND A L OOK AT THE F UTURE (2010) http://www.ccpio.org/documents/newmediaproject/New Media and the Courts Report.pdf C ONFERENCE OF C OURT P UBLIC I NFORMATION O FFICERS 2011 CCPIO N EW M EDIA S URVEY N EW M EDIA AND THE C OURTS : T HE C URRENT S TATUS AND A L OOK AT THE F UTURE available at http://ccpio.org/publications/reports/ C ONFERENCE OF C OURT P UBLIC I NFORMATION O FFICERS 2012 CCPIO N EW M EDIA S URVEY N EW M EDIA AND THE C OURTS : T HE C URRENT S TATUS AND A L OOK AT THE F UTURE available at http://ccpio.org/publications/reports/
171 History of Cameras in the Federal Courts U .S. C OURTS http://www.uscourts.gov/Multimedia/Cameras/history.aspx Jerry Sandusky: Recent Developments, N.Y T IMES Oct. 9, 2012, http://topics.nytimes.com/top/reference/timestopics/people/s/jerry_sandusky/inde x.html?8qa Douglas Lee, Cameras in the Courtroom, F IRST A MENDMENT C ENTER Sept. 13, 2002, http://firstamendmentcenter.org/cameras in the courtroom L ive Blogging and Tweeting From Court: Experiences from the Field C ITIZEN M EDIA L AW P ROJECT http://www.citmedialaw.org (last visited Jan. 3, 2013). Rulemaking and Administrative Ord ers N ATIONAL C ENTER FOR S TATE C OURTS http://www.ncsconline.org/WC/CourTopics/FAQs.asp?topic=RuleAd Timeline: D eadly Cheshire Home Invasion C OURANT COM http://www.courant.com/news/connecticut/hc petit cheshire home invasion timeline,0,3135848.htmlstor y Periodicals and Reports A SSOC P RESS Mar. 6, 2009, available at http://www.cbsnews.com/stories/2009/03/06/tech/main4847895.shtml?source=rel ated_story Joanna Brenner, Pew Internet: Mobile, P EW I NTERNET & A MERICAN L IFE P ROJECT Jan. 31, 2013, http://www.pewinternet.org/Commentary/2012/February/Pew Internet Mobile.aspx Brad Bumsted, P ITTSBURGH T RIBUNE R EVIEW Jan. 26, 2010. Cameras Pilot One Year Later, T HE T HIRD B RANCH N EWS July 31, 2012, http://news.uscourts.gov/cameras pilot one year later Rory Ea stburg, Judge reprimanded for allowing cameras in courtroom, N EWS M EDIA U PDATE available at http://www.rcfp.org/newsitems/index.php?i=11052 F ED J UDICIAL C TR ., E LECTRONIC M EDIA C OVERAGE OF F ED ERAL C IVIL P ROCEEDINGS : A N E VALUATION OF THE P ILOT P ROGRAM IN S IX D ISTRICT C OURTS AND T WO C OURTS OF A PPEALS ( 1994). Jordan Fifer, Approach to trial coverage a first for The Roanoke Times, F ROM THE NEWSROOM (blog), Dec. 22, 2009,
172 http://blogs.roanoke.com/newsroom/2009/12/22/approach to trial coverage a first for the roanoke times/ William Glaberson, Death Penalty is Challenged Before a Tri al in 3 Killings N.Y. T IMES July 28, 2010, at 19. Laurence Hammack, Jury finds White guilty on 4 counts, T HE R OANOKE T IMES Dec. 19, 2009, available at http://www.roanoke.com/news/roanoke/wb /230282 Sarah Anne Hughes, Casey Anthony trial live stream now available as an app on iPod, iPad, W ASH P OST B LOG P OST July 1, 2011, http://www.washingtonpost.com/blogs/blogpost/post/casey anthony trial live stream now available as an app/2011/06/30/AG7BtatH_blog.html Interview with Justic e Gerald Kogan (Nov. 27, 2001), Samuel Proctor Oral History Collection, University of Florida, available at www.ufdc.ufl.edu Interview with Ralph Lowenste in (Aug. 30, 2000), Samuel Proctor Oral History Collection, University of Florida, available at www.ufdc.ufl.edu Julie Kay, Vetting jurors via MySpace N AT L L.J. Aug. 11, 2008. Dave Kopel, Kopel: Internet humming with Nacchio trial coverage R OCKY M OUNTAIN N EWS Mar. 24, 2007, available at http://m.rockymountainnews.com/news/2007/mar/24/bkopelb internet humming with nacchio trial/ Nicole Lozare, More reporters tweeting from courtroom T HE N EWS M EDIA AND THE L AW Fall 2011, at p. 6, a vailable at http://www.rcfp.org/browse media law resources/news media law/news media and law fall 2011/more reporters tw eeting court Ernest Luning, Judge orders Twitter in the court, lets blogger cover infant abuse trial C OLO I NDEP Jan. 5, 2009. Tony Mauro, Are judges using Facebook?, N AT L L.J. Aug. 31, 2010. Michele McClellan, In Philly, trial by Twitter N EWS L E ADERSHIP 3.0 Mar. 17, 2009, http://archive.knightdigitalmediacenter.org/leadership_blog/comments/in_philly_t wittering_a_trial/ R. McClure, First Circuit Rejects Webcasting of Civil Hearing, L ITIGATION N EWS June 25, 2009, available at http://apps.americanbar.org/litigation/liti gationnews/top_stories/first circuit sony webcasting.html
173 M EDIA L AW R ESOURCE C ENTER M ODEL P OLICY ON A CCESS AND U SE OF E LECTRONIC P ORTABLE D EVICES IN C OURTHOUSES AND C OURTROOMS & M EMORANDUM IN S UPPORT FOR S M ODEL P OLICY ON E LECTRONIC D EVICES (July 2010). Jeralyn Merritt, Praise for our Live Blogging on Nacchio Trial 5280. COM Mar. 25, 2007, http://www.5280.com/blogs/2007/03/25/praise our live blogging nacchi o trial Bridget Murphy, Bloggers unmasked: Dubose murder trial junkies meet face to face, F L A T IMES U NION M AR 17, 2010, available at http://jacksonville.com/news/metro/2010 03 18/story/bloggers_unmasked_dubose_murder_trial_junkies_meet_face_to_face N EW Y ORK S TATE C OMMITTEE TO R EVIEW A UDIO V ISUAL C OVERAGE OF C OURT P ROCEEDINGS A N O PEN C OURTROOM : C AMERAS IN N EW Y ORK C OURT S 1995 1997, Apr. 4, 1997. J effrey D. Neuburger, Courts Still Wary About Webcasts, Live Blogs, Tweets at Trials PBS. ORG (Feb. 23, 2010). Derrick Nunnally, No tweeting in court? Pa. reexamining law that protects trials but impedes news P HILADELPHIA I NQUIR ER Jun. 27, 2010. N.Y. T IMES Mar. 30, 1996, http://www.nytimes.com/1996/0/30/us /on cameras in supreme court souter says over my dead body.html Walter Pacheco, Casey Anthony Trial: Social media revolutionized coverage, O RLANDO S ENTINEL July 5, 2011, available at http://articles.orlandosentinel.com/2011 07 05/news/os casey anthony twitter facebook 20110704_1_casey anthony trial anthony case social media Steve Patterson, Ap peals court tosses court blogging order against Jacksonville.com F LA T IMES U NION Jan. 21, 2010, available at http://jacks onville.com/news/metro/2010 01 20/story/appeals_court_tosses_court_blogging_order_against_jacksonvillecom Steven K. Paulson, Judge Rules To Allow Closed Circuit Coverage of Bombing Trial Assoc. Press, July 15, 1996, available at http://www.apnewsarchive.com Barry Petchesky, Twitter Banned From Jerry Sandusky Trial, Which Starts Next Week, D EADSPIN June 4, 2012 http://deadspin.com/5915574/twitter banned from jerry sandusky trial which starts next week ( last visited Jan. 3, 2013). Thomas Pierce, Bloggers Join Frenzy at Media Saturated Libby Trial NPR, Feb. 1, 2007, available at http://www.npr.org/templates/story/story.php?storyId=7098188
174 Paul Pinkham, Jacksonville judge says T U can blog from Dubose trial, F L A T IMES U NION Feb. 2, 2010, available at http://jacksonville.com/news/metro/2010 02 02/story/jacksonville_judge_says_t_u_can_blog_from_dubose_trial Kristen Purcell et al., How mobile devices are c hanging community information environments P EW I NTERNET & A MERICAN L IFE P ROJECT Mar. 14, 2011, http://www.pewinternet.org/Reports/2011/Local mobile news.aspx Eric P. Robinso n, Using the Internet During Trial: What About Judges? C ITIZEN M EDIA L AW P ROJECT Mar. 29, 2010, www.citmedialaw.org/print/3399 Ahnalese Rushmann, Supreme Court grants rare access to oral arguments au dio, Reporters Committee for Freedom of the Press Apr. 21, 2009, available at http://www.rcfp.org/newsitems/index.php?i=10719 Henry Schlieff, Cameras in the Courtroom: A View in Support o f More Access H UMAN R IGHTS Fall 2001, at 14, available at http://www.abanet.org/irr/hr/fall01/schleiff.html Alan Sipress, Too Casual to Sit on Press Row? W ASH P OST Jan. 11, 2007, availa ble at http://www.washingtonpost.com/wp dyn/content/article/2007/01/10/AR2007011002424.html Ron Sylvester, W HAT THE J UDGE A TE FOR B REAKFAST Feb. 23, 2009, available at http://blogs.kansas.com/courts/2009/02/23/federal judge says twitter is on/ Charles D. Tobin, Federal Courts Greet TV, Blogs and Tweets With Mixed Enthusiasm H OLLAND & K N IGHT M EDIA AND C OMMUNICATIONS N EWSLETTER January/February 2010, at p. 4, available at http://www.hklaw.com/publications/Federal Cou rts Greet TV Blogs and Tweets With Mixed Enthusiasm 01 20 2010/ Debra Cassens Weiss, Judge Explains Why He Allowed Reporter to Live Blog Federal Criminal Trial, ABA J OURNAL Jan. 16, 2009, available at http://www.abajournal.com/news/article/bloggers_cover_us_trials_of_accused_te rrorists_cheney_aide_and_iowa_landlor/ Statutes and Related Material A LA C ODE Â§ Vol. 23A. Ala. Canons of Judicial Ethics Canon 3A(7), 3A(7A), and 3A(7B), Alaska R. Ct Rule 50, R Governing the Administration of All Courts, Ariz. S. Ct. Rule 122 A RIZ R EV S TAT Â§ Vol. 17A.
175 Ark. S. Ct Admin. Order No. 6(d)(7 ). Cal. R. Ct. Rule 1.150 Colo. S. Ct. R., Ch. 38, R 2. Conn. R. App. Proc. Sections 70 9 and 70 10. Conn. R. Super. Ct. Sec tions 1 10 and 1 11. Conn.: The Use and Possession of Electronic Devices in Superior Court Facilities, available at http://www.jud.ct.gov/Publications/ES230.pdf Conn: Supreme and Appellate Courts Guidelines for the Possession and Use of Electronic Devices, available at http://www.j ud.ct.gov/external/supapp/electronicdevices_supapp.pdf Conn.: State v. Komisarjevsky, 2011 Conn. Super. LEXIS 403, 39 Media L. Rep. 1727, *1 (Conn. Super. Ct. Feb. 22, 2011). Conn. P.B. Â§ 1 11(b). D el. Super. Ct. Crim. R. 53. Del. Fam. Ct. Crim. R. 53. D el. S. Ct. Admin. Directive No. 155, (Nov. 29, 2005 amendment). Del.: Superior Court Electronic Device Prohibition, available at http://courts.delaware.gov/superior/jury/jury_security. stm Del.: Justice of the Peace Court Cell Phones and Communications Devices Policy, available at http://courts.delaware.gov/policy%20directives/download.aspx?ID=39688 D.C. : Admin. Order 11 17, The Possession and Use of Electronic Devices in the Superior Court Courtrooms and Hearing Rooms, Superior Court of the District of Columbia (Nov. 9, 2011), available at http://www.dccourts.gov/internet/documents/11 17_Possession_and_Use_of_Electronic_Devices.pdf D.C.: J OURNALISTS H ANDBOOK TO THE C OURTS IN THE D ISTRICT OF C OLUMBIA C OUNCIL FOR C OURT E XCELLENCE available at http://www.dccourts.gov/internet/documents/JournalistsHandbook.pdf F ED R. C RIM P. 53. Federal: Judicial Conference Committee on Court Administration and Case Management Guidelines for the Cameras Pilot Project in the District Courts,
176 available at http://www.uscourts.gov/uscourts/News/2011/docs/CamerasGuidelines.pdf Fla. R. Jud. Admin. 2.170, 2.4 50. Ga. S. Ct. R. 75 90 Ga. Super. Ct. R. 22 Ga. Juvenile Ct. R. 26.1 and 26.2 Ga. Mun. Ct. R. 11. Ga. Probate Ct. R. 10.2 and 10.10. Haw. R. Ct. Rules 5.1 and 5.2, Idaho C t. Admin. R. 45 and 46. I DAHO : T HE M EDIA G UIDE TO THE I DAHO C OURTS I DAHO S UPREM E C OURT M EDIA /C OURTS C OMMITTEE (revised June 22, 2012), available at http://www.isc.idaho.gov/problem solving/media guide I LL R EV S TAT Ch. 735, Â§ 8 701 Ill. S. Ct. R. 63(A)(7). Ill. : Extended Media Coverage Pilot Project Order, available at http://state.il.us/court/SupremeCourt/Announce/2012/012412.pdf Ind. Code of Judicial Conduct Rule 2.17 Ind.: Order 94 S00 9705 MS 290: Standards Governing Electronic Media and Still Photography of Oral Arguments Before the Indiana Court of Appeals: http://www.in.gov/judiciary/files/media appeals broadcast coverage.pdf Ind.: Order 94S00 0605 MS 166: 2007 Pilot Project for Electronic News Coverage in Indiana Trial Courts: http://www.ai.org/judiciary/opinions/pdf/050906 01ad.pdf Ind.: Order 94S00 1201 MS 46: 2012 Pilot Project for Webcasting: http://www.in.gov/judiciary/files/order other 2012 94S00 1201 MS 46.pdf Iowa Cts. R., Chapte r 25. Kan. S. Ct. Rule 1011. L.A. Super. Ct. Local Rule 2.17.
177 La.: Rules 1 7, La. Standards of Conduct and Technology Governing Electronic Media and Still Photography Coverage of Judicial Proceedings. La. Code. J. Conduct, Canon 3A(9). La. Dist. Ct. R. 6.1 (e) (f). Me.: A dmin. Order JB 05 15 (A. 9 11), Cameras and Audio Recording in th e Courts Me.: Admin. Order JB 05 16 (A. 5 08), Use of Cellular Phones, Pagers, Computers, and Other Electronic Devices in Courthouses, available at http://www.courts.state.me.us/rules_adminorders/adminorders/JB 05 16%20(A.%205 08)%20Cell%20Phones.pdf Md. R. Proc. 16 109. Mass S. Jud. Ct.. Rule 1:19 Mich. Ct. R 8.115, Courtroom Decorum; Policy Regarding Use of Cell Phones or Other Portable Electronic Communications Devices, available at http://courts.michigan.gov/Courts/MichiganSupremeCourt/CurrentCourtRules/1C hapter8AdministrativeRulesofCourt.pdf Minn. R. App. Proc. R. 134.10. Minn. Gen. R. Practice Rules 4.01 4.03. Miss. R. for Electronic and Photographic Coverage of Judicial Proceedi ngs. Mo. S. Ct. R. 16. M ont. Canons of Judicial Ethics, Canon 35. N eb. Ct. R. App. Practice R. 2 117 and 2 118. Nev. S. Ct. R Part IV: Rules on Cameras and Electronic Media Coverage in the Courts (2012), available at http://www.leg.state.nv.us/CourtRules/SCR.html N.H. S. Ct. R.19. N .H. Super. Ct. R. & Directory. R. 78. N.H. Dist. & Mun. Ct. R. 1.4. N.H. S. Ct. Order (Jan. 11, 2008), available at http://www.courts.state.nh.us/supreme/orders/order011108.pdf N .J. Code of Judicial Conduct Canon 3A(9)
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179 V t. R. Civ. Proc. 79.2 & 79.3. V t. R. Probate Proc. 79.2. Vt.: Admin. Directive No. 28, Electronic Devices in a Courthouse Vt. S. Ct., October 2008 available at http://www.vermontjudiciary.org/MasterDocument/AdministrativeDirectiveNo28el ectronicdevicesincourthous e.pdf V A C ODE A NN Â§ 19.2 266 Wash. Ct. Gen. R.16. W. Va. Code Jud. Conduct, Canon 3(B)(12). W. Va. R. App. Proc. 42 W. Va. Trial Ct. R.8. W. Va. R. Practice & Proc. Fam. Ct. 6. Wis S. Ct. R. Chapter 61 Wyo. U nif. R. Dist. Cts. 804. Wyo. R. Crim. Proc. 53.
180 BIOGRAPHICAL SKETCH Christina Locke Faubel received her law degree from the University of Florida Levin College of Law in 2007 and doctorate in mass communication from the UF College of Journalism and Communications in 2013. She previously received her in English in 2002, also from UF During her graduate studies, she was a research assistant and editor at the Brechner Center for Freedom of Information as well as an i nstructor of record and teaching assistant for the undergraduate law of mass communication course. She has presented her research at national conferences of the Association for Education in Journalism and Mass Communications (AEJMC) and has been invited to speak on m edia law topics at Loyola Law School Los Angeles and the University of Central Florida. She was a managing editor of the Florida Law Review and executive research editor for the University of Florida Journal of Law and Public Policy.