The popularity of Twitter and live-blogging has introduced a new dimension into a journalist's coverage of court proceedings. The use of these real-time communications technologies has been met with a mixture of both acceptance and criticism from judges and lawyers.
Note that this section discusses coverage of court proceedings by observers who are not involved in the actual proceedings. Different rules apply to trial participants: in many situations, those involved in a court proceeding -- as a party, a lawyer, a court official, a juror or a witness -- may be prohibited from discussing the proceeding, or limited in what they can say about it, especially while it is pending. If you are involved in a court proceeding, make sure that you understand any restrictions that may apply.
For those not directly involved in a proceeding, various court rules may affect the ability of a journalist or member of the public to live-blog or tweet from the courtroom. In particular, a court's administrative or local rules may prohibit or limit the use of electronic devices within a courthouse or courtroom. In some jurisdictions, the local rules allow electronic devices only at the discretion of the presiding judge. Rules of civil or criminal procedure—such as Rule 53 of the Federal Rules of Criminal Procedure — have been interpreted as prohibiting or limiting live-blogging and tweeting from certain proceedings. Ultimately, the application of many of these rules rests in the judge's discretion, and they may not be applied evenly within a jurisdiction.
Many judges are concerned that live-blogging or tweeting from inside the courtroom may adversely impact the administration of justice. They believe access by witnesses to real-time posting about a trial may taint testimony and undermine the fairness of the trial. Clicking noises from keyboards and beeping from electronic devices may be unwanted physical distractions during proceedings. Certain types of sensitive subject matter, such as testimony from a minor during a custody proceeding, may also give a judge pause before consenting to real-time coverage.
Despite these concerns and potential legal limitations, many judges are slowly warming to the idea. Some even welcome the use of computers and cell phones in the courtroom as a way to make the judicial system more accessible and transparent to the public. For example, Judge Mark Bennet of the United States District Court for the Northern District of Iowa said in an interview with the ABA Journal, "I thought the public's right to know what goes on in federal court and the transparency that would be given the proceedings by live-blogging outweighed any potential prejudice to the defendant. . . . I allowed it because of my belief that we are the most mysterious branch of federal government and we need to find ways to be more transparent." Similarly, Judge Thomas Marten of the United States District Court for the District of Kansas told the Associated Press (as reported in the New Mexico Independent), "[t]he more we can do to open the process to the public, the greater the public understanding—the more legitimacy the public system will have in the eyes of the public."
Below are guidelines to help you avoid legal trouble if you intend to provide live coverage of court proceedings through Twitter, live-blogging or other social media tools.
Guidelines for Tweeting and Live-Blogging From Court
Finding Information About Court Rules and Asking for Permission
1. Start by determining where the proceeding you are interested in covering will be held and which judge will be presiding.
2. Check the local rules of the courthouse and/or jurisdiction in question. You usually can find local rules on the courthouse's website. The local rules may list special provisions concerning the use of computers and other electronic devices in the courthouse or courtroom. For instance, the local rules might say that the general public cannot bring a computer or cellphone into the courthouse without the permission of a judge. Or, the rules might provide that electronic devices may not be used inside a courtroom without permission, but may be used in the hallways outside the courtrooms. Many variations exist.
3. Check the court's standing orders, free-standing electronic device policies, and the judge's individual preferences. Courthouse-wide standing orders and electronic device policies will be located on the courthouse's website, and an individual judge's standing orders and preferences will be on a page dedicated to that judge. These materials may provide additional information not addressed in the local rules, such as special limitations on the use of electronic devices in a particular judge's courtroom or information on how to get permission to use a device. For an example, see United States District Court for District of New Jersey Standing Orders.
4. If the local rules or standing orders do not include any information concerning the use of electronic devices, look for information on whom to contact with questions, and whether the court has a specific procedure for obtaining journalist credentials.
5. If you're confused about how the rules apply to live-blogging or tweeting, or about press credentials, try contacting the court's Public Information Officer (or "PIO"). The PIO generally responds to media inquiries and processes credential requests. You can find contact information for many court PIO's at the Conference of Court Public Information Officers website.
6. Lastly, try contacting the judge and/or the judge's staff. We say lastly only because the judge is generally very busy and often does not deal with media requests directly. As a result, your request may be overlooked, or you may anger the judge. Successful live-bloggers have told us that, unless you have an established relationship with a particular judge, you will have better success bringing the request to a bailiff, PIO, or other member of the judge's staff who can then bring the matter to the judge's attention.
Additional Tips When Asking for Permission
1. Give the judge or PIO a good reason to approve your request. Successful requests for permission have generally focused on:
- The nature and public benefit of blogging or tweeting;
- The public interest in the case;
- The reporter's professional experience or credentials; and
- An explanation of how the technology works.
2. Use your connections. Many of those bloggers and reporters who have previously obtained permission to live-blog a trial already had an established relationship with the judge, bailiff, or PIO. A friendly ear goes a long way. The Media Bloggers Association (MBA) has been advocating for the admittance of bloggers in courtrooms since 2004 and has established relationships with PIOs across the country. The MBA may be able to use its connections to help bloggers who have had trouble bringing their requests to the attention of a PIO or judge. You can contact the MBA for more information.
3. Search online to see if anyone else has live-blogged a trial in the courthouse in question or before the judge in question. If so, try contacting that blogger/journalist to learn what steps he or she took. Below is a list of some judges that have previously allowed live-blogging in their courtrooms. [Note: the fact that these judges have allowed live-blogging in the past does not guarantee that they will allow it in the future]:
- California: Superior Court of California, County of Alameda, Judge Larry Goodman (coverage)
- Colorado: Colorado State Judcial Branch, 20th District, Boulder County, Judge Lael Montgomery (coverage)
- Florida: United States District Court for the Southern District of Florida, Chief Judge Federico Moreno (coverage)
- Iowa: United States District Court for the Northern District of Iowa, Judge Mark Bennett (coverage)
- Kansas: United States District Court for the District of Kansas, Judge Thomas Marten (coverage)
- Michigan: Ottawa County, 20th Circuit Court, Chief Judge Edward Post (coverage)
- Pennsylvania: United States District Court for the Eastern District of Pennsylvania, Judge Ronald Buckwalter (coverage)
- Washington, DC: United States District Court for the District of Columbia, Judge Reggie Walton (coverage)
- Massachusetts: United States District Court for the District of Massachusetts, Judge Nancy Gertner (coverage)
4. Remember to conduct yourself in a professional and respectful manner. An overly aggressive request may not be given priority, especially in a busy courthouse.
5. Finally, where you have not been expressly forbidden from bringing a computer or phone into the courthouse, you may consider just showing up the day of the trial with your computer or smart phone and letting the chips fall where they may, but recognize that this approach may anger the judge, and could even result in confiscation of the electronic device or fines. Use your judgment, be cautious, and certainly do not ignore a judge's decision or a court rule directly on point.
To make the process of getting permission more concrete for you, we've created a page featuring input we received from bloggers and journalists about their experiences live-blogging or tweeting from court proceedings. See Live-Blogging and Tweeting from Court: Experiences From the Field.
In United States v. Shelnutt, 4:09-cr.-14 (M.D. Ga. Nov. 2, 2009), a federal district court in Georgia ruled that Rule 53 of the Federal Rules of Criminal Procedure prohibits tweeting from criminal proceedings in federal court and that Rule 53 does not unconstitutionally restrict the freedom of the press under the First Amendment to the U.S. Constitution. Rule 53 provides:
Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.
The court interpreted "broadcasting" in Rule 53 to include "sending electronic messages from a courtroom that contemporaneously describe the trial proceedings and are instantaneously available for public viewing."
This district court opinion has no precedential effect on other courts, and it remains to be seen whether other federal courts will adopt this interpretation of Rule 53. Regardless of how influential the Shelnutt case ends up being, Rule 53 only applies to criminal proceedings, and it only applies in federal—as opposed to state—courts.