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27 Comm. Law. 14 (2010-2011)
The Legal Case for Twitter in the Courtroom

handle is hein.journals/comlaw27 and id is 14 raw text is: The Legal Case for Twitter in the Courtroom

Although Twitter and blogs have rapid-
ly become an important aspect of main-
stream media reporting, some judges
and lawyers are not yet convinced that
either belongs in the courtroom.
Proponents of Twitter have argued
that tweeting in the courtroom is an-
other way of allowing the public to
attend a trial or allowing the reporter
to take notes for an article. Tweeting
and live blogging (where a reporter
can watch a trial and immediately post
impressions, summaries, and comments
about the proceedings) are as much a
part of mainstream media as traditional
newspapers and television broadcasts.
Proponents believe that using this so-
cial media technology increases trans-
parency and further opens the court
process to the public.
But some judges are reluctant to al-
low tweeting or real-time blogging from
the courtroom. They fear that jurors and
prospective witnesses might visit the
Twitter online site or a blog to read the
courtroom posts and, as a result, jeopar-
dize the parties' right to a fair trial.
Courts across the country are reach-
ing different conclusions as to whether
they will allow the media to blog or
tweet from the courtroom. Courts that
have allowed it generally found that
the public interest in immediate ac-
cess to real-time information about a
court proceeding outweighed concerns
of prejudice to the parties. To address
arguments that online posts might bias
jurors and witnesses, some courts have
found less restrictive alternatives than
banning courtroom tweets and blogs.
Richard M Goehler (rgoehler@fbtlaw. com) is
a partner and Monica L. Dias (mdias@fbtlaw.
com) is a senior associate in the Cincinnati
office of Frost Brown Todd LLP David S.
Bralow (dbralow@tribune.com) is an assistant
general counsel for the Tribune Company in its
New York office. A version of this article was
published on the website ofRadio Television
Digital News Association (RTDNA) at www.
rtdna. org/pages/posts/the-legal-case-for-
twitter-in-the-courtroom 704.php.

In some courts where tweeting and
blogging have been allowed, jurors are
instructed not to read online posts about
the daily proceedings, just as they also
are admonished against reading news-
papers or viewing television broadcasts
about the proceedings. In contrast,
courts that forbid live blogging and
tweeting from the courtroom have held
that such news coverage violates pro-
cedural rules against broadcasting court
proceedings or creates a distraction,
poses a security threat, or violates the
sanctity of the courtroom.
Although the following summary
is not inclusive, it represents a cross-
section of judicial views in various ju-
risdictions as this issue develops.
Tweets Allowed
Kansas: In February 2009, a federal
judge allowed a reporter for the Wichita
Eagle to file live Twitter posts from the
courtroom during the racketeering trial
of six accused gang members.' Twitter
is on, U.S. District Judge J. Thomas
Marten reportedly told attorneys in that
case.2 When attorneys raised concerns
that jurors might read the Twitter posts,
Marten said that jurors would be in-
structed to avoid newspaper, broadcast,
and online reports, according to the As-
sociated Press.3 The father of one of the
defendants followed the Twitter posts of
the trial from his home in Texas, dem-
onstrating the increased public access to
courts that real-time blogging provides.'
Iowa: Last year, U.S. District Judge
Mark Bennett of the U.S. District Court
for the Northern District of Iowa al-
lowed a reporter from the Cedar Rapids
Gazette to blog from her laptop in the
courtroom during a criminal tax fraud
trial.' Concerned that the reporter's
typing might be a distraction, the judge
required her to sit toward the back of
the courtroom.'
Colorado: Also in 2009, Boulder Dis-
trict Judge Lael Montgomery allowed
reporters to use cell phones and laptops
in the courtroom to cover a child abuse
trial.' The prosecutor argued that allow-
ing real-time reporting from inside the

courtroom would render separation of
witnesses meaningless and could result
in tainted testimony.' The defense attor-
ney objected on grounds that comments
from readers responding to the reporters'
blogs could influence the jury.'
Rather than forbid electronic news
reporting, Judge Montgomery ordered
witnesses not to read any press ac-
counts, including Internet accounts, of
other witnesses' testimony. [T]hat is a
more appropriate way to proceed than
to shut off the reporting at the front
end, the judge ruled.
Ban on Tweets
First Circuit: In a ruling that relied on
interpretation of a local procedural rule,
the First Circuit held in April 2009 that
a federal district judge did not have
the authority to permit live webcasting
of a hearing in a civil case. The case
involved a copyright infringement claim
by various record companies against in-
dividuals who used file-sharing software
to download and distribute music with-
out payment.2 One of defendants asked
the court's permission to allow Court-
room View Network to webcast a mo-
tions hearing. The network wanted to
record and transmit the proceedings to a
Harvard Law School website from which
the proceedings would be streamed to
the Internet.4 The trial judge allowed the
coverage.I The record companies sought
a writ of mandamus from the First
Circuit, citing a local procedural rule
restricting the photographing, broadcast-
ing, and recording of court proceedings.6
Although the district judge believed
the local rule granted her the discretion
to allow webcasting, the First Circuit
interpreted the local rule to strictly
forbid recording and broadcasting
from the courtroom except for limited
events, such as investitures, ceremo-
nies, or naturalization proceedings.
The appeals court found its interpre-
tation consistent with U.S. Judicial
Conference policy that disapproves of
cameras in federal courtrooms.'
Georgia: Citing Rule 53 of the Federal
Rules of Criminal Procedure, a federal

14 O  Communications Lawyer E April 2010

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