Commentary
Judge: Tweeting Is Broadcasting, So Courtroom Tweets Are Out
- by Wendy Davis , Staff Writer @wendyndavis, November 9, 2009
In a remarkably expansive interpretation of rules banning broadcasts of criminal cases, U.S. District Court Judge Clay Land found that tweeting was a form of broadcasting because it "would result in casting to the general public and thus making widely known the trial proceedings."
"The contemporaneous transmission of electronic messages from the courtroom describing the trial proceedings, and the dissemination of those messages in a manner such that they are widely and instantaneously accessible to the general public, falls within the definition of 'broadcasting,' " Land wrote.
Land's decision might be linguistically defensible, but it's hard to see the logic in a ruling that bans text-only updates. At least it can be argued that photos, radio, TV, streaming video, or other rich media might distract participants from concentrating on the trial. But a reporter's silent filing of a Twitter update doesn't seem likely to affect witnesses, lawyers, jurors or anyone else in the courtroom.
In fact, other federal judges have allowed reporters to Twitter updates from the courtroom. In one high-profile case, U.S. District Judge J. Thomas Marten in Wichita ruled earlier this year that a reporter for the Wichita Eagle could tweet updates about a trial of six alleged gang members.
Despite the ruling, Land did offer a partial compromise. He said the courthouse will have a media room near the entrance, where members of the press "can use their electronic reporting devices near but outside of the courtroom."
That's better than requiring journalists to leave the building to tweet, but still inconvenient for reporters who are trying to get information to the public as quickly as possible.
Posting updates via Twitter is one way that newspapers -- currently fighting for survival -- are attempting to remain relevant. Unlike questionable proposals to give newspapers government subsidies, or to rewrite copyright law, allowing reporters to tweet doesn't have a downside.
Wendy Davis is a Senior Writer at MediaPost. You can reach Wendy at wdavis@mediapost.com
I disagree with the characterization of the ruling as "expansive" - as I understand it, the ruling has less to do with copyright law or inconvenience to reporters and more to do with the traditional debate over the constitutional issues arising from courtroom broadcasts.
While the public has a right to some transparency, broadcasting information about witnesses arguably leads to risk of intimidation and endangers fair trials. Previous safeguards to balance constitutional issues have included using illustrators to convey courtroom scenes rather than photographers. But today, if you've gone to a conference that has been live tweeted, it's an experience that shares many characteristics with courtroom stenographers. Livetweeting information about trials could provide easily-searchable information about witness addresses, work history etc.
Your column seems to suggest that judges sets precedents that others must abide by. When it comes to electronic media, it's my understanding that each judge is generally able to make their own ruling as to what is and is not permissible at the onset.
Tweeting is another way to deliver your message, and not allowing a reporter to tweet in a courthouse would be like not allowing them to take notes (IMHO).
What does the justice system have to hide if it won't allow this?
Oddly enough, I find myself on the side of the judge with this one. Texting IS instantaneous communication (well duh, that's the whole point of Twitter!) and NOT the same as taking notes at all. Effectively you are allowing a blow by blow live transmission of a case (and also allowing tweets to come BACK to the reporter).
I'm not convinced that any court case is so critical that waiting until you get out of the room is too much to ask. The "public interest" can hold out until the judge says "dismissed" and the "need" to tweet live is no more than the desire to be first to report.
Judge Land's ruling is correct. The technology is irrelevant. If there is a credible threat to the integrity of the trial caused by reporting in real-time, the court has an obligation to prevent it. On the other hand, if the court hasn’t barred “real-time” reporting (or the use of any and all means of transmitting the proceedings in real-time beyond the boundaries of the courtroom) then, tweeting, or any means, should be permitted. We are supposed to have public trials in this country as a means of assuring justince. If a claimant, prosecutor or defendant feels ‘real-time’ transmission could harm their ability to get a fair and just trial, let them show cause, and let the judge make a decision. It’s not about technology. Imagine the real-time transmission of a divorce proceeding. In the age of “social networks” it wouldn’t take much to get scores of “followers” tuned into the juicy details of your neighbor’s marital problems, or tens of thousands following the trial of a celebrity divorce.) Courts exist to render justice, not generate “media hype” or satisfy prurient interests.
Props to David, Brian, Russell and Paula! The courtroom -- and the integrity of due process, which incorporates checks, balances, transparency, the jury of peers and the public (if asynchronous) record -- should not intersect in realtime with the "court of public opinion." No matter how many pageviews might be lost, or tinyurls untinyurled.