By: L. David Russell
Law.com (February 6, 2017)
On June 28, 2006, Judge William Shubb of the Eastern District of California was presiding over a complicated tax case. Just as a lawyer launched into his argument, the courtroom was filled with a familiar sound: a cell phone ringtone. Many of us can under- stand what the judge did next. “[H]is robes just flying in the wind,” he descended from the bench, seized the offending phone and hurled it out the door.[1]
Cell phones obviously have tremendous potential to frustrate court proceedings. But thanks to mass communications platforms like Twitter and WordPress, they—and simi- lar devices like iPads and Chromebooks— can also inform thousands of followers simultaneously about the legal process and the latest substantive developments in cases of interest. Surprisingly, court rules about the permissibility of Tweeting in court differ greatly, even within the same state or county. These differences come from a lack of clarity about how old rules of “media coverage” translate to the Twitter Age and a narrow (and arguably outdated) view of what cell phones can or should be used for. But they also reflect the enduring conflict between the public’s right to know and the obtrusiveness of newsgathering in the courtroom.
“Broadcasting” and Twitter
Nearly every court in California prohibits “broadcasting” in the courtroom. California Rule of Court 1.150 forbids media coverage—including broadcasting—without special court permission in all state courts. Likewise, Federal Rule of Criminal Procedure 53 bars “the broadcasting of judicial proceedings from the court- room.” And local rules in the federal Northern, Southern, and Eastern Districts of California extend the broad- casting ban to the civil side. But all of this raises the fundamental question: What is “broadcasting”?
“Broadcasting” almost certainly doesn’t cover Tweeting in state court. The California Rules of Court define the term as “a visual or aural transmission or signal … of the court proceedings.” Thus, the broadcasting proscription is aimed at things like television coverage, which can be distracting and intimidating to participants. Tweets that are merely text are not covered by this definition, although Tweets containing videos are probably banned. Note that because “media coverage” is defined by the California Rules in terms of activities (i.e., photographing, taping or broadcasting), rather than affiliation (e.g., ABC, New York Times), professional journalists do not need special
permission to Tweet.
Because the term “broadcasting” is not defined in Rule 53, there is more ambiguity at the federal level. In fact, two courts have already faced the question of Tweeting dur- ing proceedings, coming to opposite conclusions on different bases. In United States v. Shelnutt, No. 4:09-CR-14 (CDL), 2009 WL 3681827 (M.D. Ga. Nov. 2, 2009), a district court judge in Georgia held that broadcast- ing is not limited to aural and visual repre- sentations and includes textual Tweets. On the other hand, a Kansas district court had no issue with a Tweeting reporter, basing its decision on Federal Rule of Criminal Procedure 57(b), which gives the district court judge discretion to run his courtroom in the absence of controlling Rules or law.[2] Some federal judges have taken a more ad hoc route in responding to Twitter use. In 2009, Iowa district court judge Mark Bennett allowed tweeting from the courtroom at the request of a reporter covering a tax fraud trial, emphasizing the public’s “right to know” and transparency concerns.[3] Others have moved to limit courtroom cell phone use on their own. South Carolina district court judge David C. Norton signed an order banning all wireless communication devices in 2011.[4]
Shelnutt notwithstanding, there is a strong chance that future courts analyzing Rule 53 would find that it does not encom- pass Tweeting. The rule originally proscribed “radio broadcasts,” but a non-substantive edit in 2002 deleted “radio” to reflect court decisions that had expanded the prohibi- tion to TV broadcasts and tape recordings. Broadcasting, then, does not necessarily refer to the timing of the transmission, because tape recordings are prohibited. Instead, it appears to address perfect recordings of the proceedings. This reading of Rule 53 would bar livestreaming a criminal trial, but not Tweeting about it—which is the same result achieved by California state-court rules. And because the federal local civil rules, outside the Central District of California, all use the term “broadcasting,” the same result should apply for civil trials.
No court has yet fleshed out the distinction between text and video/aural transmissions. The justifications for distinguishing them, however, make sense:
• The ban on broadcasting protects the privacy of witnesses—a concern that might be especially pressing in criminal cases, where testifying could put a witness in physi- cal danger. Text generally should not present the same risks as video or audio recordings of witnesses.
• There is little basis to distinguish between: (a) Tweeting about legal proceed- ings; and (b) taking notes and then walking outside the room and posting a blog.
• A Tweet is inherently editorial: Even if she is merely summarizing the proceedings, the author frames the discussion with her word choice and her decisions on what to focus on in her 140 characters.
No Cell Phones Allowed
Several California courts take a different tack, simply banning cell phones in court. Rule 3.42 of the Los Angeles Superior Court local rules bars “us[ing] a cell phone, while court is in session.” The Second District of the California Court of Appeal, which includes Los Angeles County, is even stricter, prohibit- ing laptops and tablets in court unless they’re being used by counsel, and excluding non- counsel cell phones “and other electronic devices” from the courtroom at all times.[5] The Central District of California has a similar rule, prohibiting all “cell phones that have video or sound recording or photographic capabilities … in all court spaces.”[6]
These prohibitions appear to have more to do with the distracting nature of cell phones than worries about the privacy of witnesses. Banning cell phones outright made sense when all they were good for was phone calls, but these rules seem outdated in the era of the smartphone. Tweeting takes little motion and makes no noise; indeed, it may even be less distracting than someone taking hand- written notes. And anyone live-Tweeting a trial has a strong incentive to make sure her phone is on silent, as her job depends on not being ejected from the courtroom or having her phone seized.
Until these rules are brought up to date, however, intrepid reporters could likely attack their applicability on textual grounds. Is Tweeting “us[ing]” a cell phone within the meaning of the Los Angeles Superior Court local rules? While cell phones must be turned off in the Central District, does that go for iPads and Chromebooks? The California Court of Appeal’s rule, however, appears to have closed any loopholes.
The Outlier: The Ninth Circuit
The Ninth Circuit lives up to its billing as Silicon Valley’s court of appeals, going further than any other court in California. In the Ninth Circuit, cell phones are not banned in court and the court livestreams all oral arguments via its website. Thus, even if phones were banned, a commentator could still live-Tweet from her home. With public briefs and without witnesses, appellate practice is especially well-suited to livestreaming. But it is worth pondering whether the Ninth Circuit has found a better path, or just a different one.
Livestreaming minimizes the potential for distractions like the one that opened this arti- cle. And it gives the audience a true choice: watch a perfect representation of the proceed- ings or have a Tweeting commentator filtering and explaining what is happening (or watch the argument and follow Twitter at the same time). The circuit court’s broadcasts have not caused a collapse in public faith in the courts. And perhaps most importantly, they have cre- ated a visual record of momentous oral argu- ments like Perry v. Hollingsworth. But despite its virtues, livestreaming remains unique to the Ninth Circuit; elsewhere, interested par- ties will have to settle for live Tweets. As for the Tweeters: just make sure your phone is on silent.
[1] This account comes from Cosmo Garvin, “Short Fuse,” Sacramento News & R. (July 6, 2006), https://www.newsreview.com/sacramento/short-fuse/ content?oid=69205.
[2] As Witnesses Sing, Journo’s Twitter Tweets, CBS News (March 6, 2009), http://www.cbsnews. com/news/as-witnesses-sing-journos-twitter-tweets/. For an in-depth discussion of Rule 53 and these cases, see Jacob E. Dean, Comment, “To Tweet or Not to Tweet: Twitter, “Broadcasting,” and Federal Rule of Criminal Procedure 53,” 79 U. Cin. L. Rev. 769 (2010).
[3] Nicole Lozare, “More reporters tweeting from courtroom,” Reporters Committee (Fall 2011), https://www.rcfp.org/browse-media-law-resources/ news-media-law/news-media-and-law-fall-2011/ more-reporters-tweeting-court.
[4] Id.
[6] https://www.cacd.uscourts.gov/news/ cell-phones-courthouse.
—By L. David Russell, Christopher Chiou, and Sean Nelson, former attorneys at Jenner & Block LLP
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