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71 Baylor L. Rev. 421 (2019)
Social Media, Venue, and the Right to a Fair Trial

handle is hein.journals/baylr71 and id is 443 raw text is: SOCIAL MEDIA, VENUE, AND THE RIGHT TO A FAIR TRIAL Leslie Y. Garfield Tenzer* Judicial failure to recognize social media's. influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant's change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant's motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants' introduction of negative social media in support of their claims, these same courts have yet to include social media in their evaluation of pretrial publicity bias. But social media is media, and as this article demonstrates, trial court judges faced with deciding change of venue motions have a constitutional obligation to include social media in their evaluations. The collective refusal to treat social media the same as biased television, radio, or print media, suggests an erroneous assumption on the part of lower courts that social media is somehow different. This article identifies three reasons as justification for dismissing social media: social media is too recent a medium to fully understand and analyze, social media is not a legitimate news source, and social media is opinion based. Application of pretrial social media publicity to long-standing Supreme Court change of venue doctrine, coupled with its exploration ofscientific and social research on social media influence, debunk these lower court rationalizations. This article demonstrates that the reluctance of courts to consider social media evidence when deciding whether to grant a motion for a change of venue is a violation of any defendant's Sixth Amendment right to a fair trial. On a larger scale, the article demands that courts embrace our new reality. 'Professor of Law, Elisabeth Haub School of Law at Pace University. I gratefully acknowledge the thoughtful advice and keen insights of participants of the Elisabeth Haub School of Law Faculty Colloquium Series. I would especially like to thank Professor Wendy Tenzer for her attention to this piece, and Richard Montalvo for his outstanding research assistance.

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