As Bob Ambrogi reports, on February 19, 2013, Massachusetts Superior Court Justice Peter Lauriat held a hearing in the case of Commonwealth v. Fujita, a first-degree murder case going to trial in Middlesex County, Massachusetts. The purpose of the hearing was to give representatives of the media an opportunity to voice their objections to Judge Lauriat’s limitations on reporting on the trial. The judge had previously approved a panoply of reporting and recording techniques in the courtroom itself, including a video feed, a still camera, blogging, and (in the judge’s words) the “pencil press.” However, he prohibited the use of Twitter or other social media “other than the blogosphere” to transmit live updates during the trial from the courtroom or anywhere else within the courthouse.

So, the natural question is, what’s the difference? What exactly is the “blogosphere” in Judge Lauriat’s mind, and why does he draw the line at Twitter and whatever other social media tools are not within that sphere?

The Court Rule at Issue

For context, it is necessary to take a closer look at Massachusetts Supreme Judicial Court Rule 1:19, the court rule that governs use of cameras and electronic devices in Massachusetts courtrooms. Section (2) of the rule states:

A judge shall permit photographing or electronic recording or transmitting of courtroom proceedings open to the public by the news media for news gathering purposes and dissemination of information to the public, subject to the limitations of this rule. Subject to the provisions of paragraph (d), the news media shall be permitted to possess and to operate in the courtroom all devices and equipment necessary to such activities. Such devices and equipment include, without limitation, still and video cameras, audio recording or transmitting devices, and portable computers or other electronic devices with communication capabilities.

Rule 1:19 was amended (effective September 17, 2012) to expand the definition of the news media to include private individuals who “regularly gather, prepare, photograph, record, write, edit, report or publish news or information about matters of public interest for dissemination to the public in any medium, whether print or electronic.” Critically, however, those individuals are still required to register as members of the “news media” with the courts to gain the benefits of the rule; it does not generally allow attendees to use electronic communication devices in the courtroom.

Is Twitter “Necessary” in Court?

During the course of the February 19 hearing, Judge Lauriat at first appeared to be questioning whether Twitter was in fact “necessary” to the function of gathering and disseminating information to the public. The judge had the following conversation with Christina Findikyan, counsel for WCVB, in response to her suggestion that Twitter was broadly accepted as a tool for dissemination of the news (full transcript available here):

THE COURT: … [W]hy don’t you give me some examples of the broad acceptance of Twitter in the courtroom either in Massachusetts or elsewhere in the country.

MS. FINDIKYAN: Well, right now in the United States District Court, in the district of Mass., they are allowing the use of Twitter in the [Whitey] Bulger trial. And our journalists at WCVB are in fact using Twitter as a mechanism for disseminating the news in that case.

THE COURT: And what is it that [is] disseminate[d] in what I understand to be a hundred and forty character maximum amount with Twitter?

MS. FINDIKYAN: Well, Your Honor, I believe that a good journalist, as I believe that our journalists are, [is] able to in that short amount of time get out the necessary information in short tweets.

THE COURT: Why don’t you read me an example of some information that a news media person would tweet to the world or at least to his or her followers, for example in the Bulger trial which you’ve indicated there is some tweeting allowed.

While WCVB’s attorney looked up examples in response to the judge’s request, Timothy Madden, counsel for CBS Radio and WBZ-AM, countered the suggestion that the 140-character limit was insufficient to provide accurate information about the trial in comparison to other media:

MR. MADDEN: …The issue that my client is concerned with, Your Honor, is with respect to tweeting and posting to social media sites, … is that it views those activities as no different that blogging from the courtroom, which people can log on and read if they choose, it is simply a form of communication that I think has been, is sort of ubiquitous in our society today and … is relied upon by some folks to see short snippets of both personal and, you know, more national information or international information.

THE COURT: Who in the context of a case like this is it relied on by and what short snippets do you envision would be sent in a hundred and forty characters or less?

MR. MADDEN: Well, I can see – well, just, you know, people who are local to the area who are generally interested in the case.

THE COURT: What’s conveyed in a hundred and forty characters or less?

MR. MADDEN: Wanting to know or having access to information that, you know, this person just testified, this expert just testified – not necessarily the full extent of what they testified to but the fact that they testified, and certainly conveyed, it’s certainly newsworthy in some instances. Or Your Honor may grant a motion that is immediately newsworthy to the folks who are interested following the trial. And I just don’t see the distinction, Your Honor, between allowing someone to type a paragraph, or two paragraphs, or five paragraphs, that may fully convey – or may not, depending on the skill of the reporter – fully convey what’s happened in the courtroom with, on the other hand, not allowing an individual or reporter to send shorter snippets which of course are limited by the character lines and maybe multiple snippets, but obviously it’s not going to be a full article but it’s going to be still information that is newsworthy.

At this point, Judge Lauriat more directly asked why access to Twitter was necessary when other modes of access had been provided.

THE COURT: And [newsworthy information is] not available from any other source?

MR. MADDEN: Well, I don’t think that’s the standard, Your Honor. I think Rule –

THE COURT: Answer my question, Mr. Madden.

MR. MADDEN: The information may ultimately become available from other sources, but that’s also part of the problem. There are news media represented here who have access to websites through their news organizations that allow for them to sit here in this courtroom and to type real-time and to have that information conveyed to their readers or their subscribers. And then there are others who don’t. And some of those folks who don’t have to rely on social media websites.

THE COURT: Who are all of these folks since we’re all talking only about credentialed media. …

MR. MADDEN: My client, the representatives who are here from WCRB. If they were to send –

THE COURT: They have no access to get their message out other than by tweeting?

MR. MADDEN: In a real-time way, my client is here to confirm that, that in a real-time way that that’s the only means by which they … can get the information out in real time.

THE COURT: Not by watching the stream that’s being done in real time of the entire trial, except for certain limitations such as sidebar conferences, conferences between counsel and client, and the jury.

MR. MADDEN: But it’s the only means, Your Honor, my position is that it’s the only means that this particular news organization has to get information out to its audience.

THE COURT: It has full access to the feed, right? … My understanding is that it has full access to the feed, that the feed is available to all media. So that in terms of there being a source independent of sitting here in the courtroom and tweeting. They can watch the feed and tweet from elsewhere. They can do something else with the feed if they’d like. I’m not prohibiting them from access to what’s happening in court.

From Judge Lauriat’s questioning in these exchanges, it appears that he at least initially believed that Twitter access in the courtroom would be unnecessary (and thus subject to prohibition under Rule 1:19) for two reasons: first, that tweeting could not properly report the events of the trial; and second, that access to Twitter would be cumulative given that another mode of real time access (the video feed) was available.

The first reason raises serious concerns to the extent that it depends upon a judge’s opinion of the adequacy of a reporter’s coverage. Although there may be no constitutional right to use electronic devices in court, there are still First Amendment problems when a court imposes its own editorial judgment on whether a particular communications platform is appropriate for certain subject matter. And as Mr. Madden correctly pointed out, there are a number of events that can be reported during a trial within the length of a single tweet that are newsworthy in real time.

The second reason is facially more plausible, particularly in light of the judge’s suggestion that someone could tweet from off-site while watching the real-time feed. Of course, there are arguments that watching a live feed is not the same as being present in the courtroom, and that reliance on a feed presents additional risks in terms of potential technical difficulties. However, a more fundamental issue is that Rule 1:19 addresses the question of whether particular devices or equipment are necessary, not whether particular ways of communicating are necessary. “Portable computers or other electronic devices with communication capabilities” are explicitly included in the definition of necessary equipment.

The only stated limitation on the manner in which these devices are used is set forth in Section 2(d) of the rule, which states: “All equipment and devices shall be of a type and positioned and operated in a manner which does not detract from the dignity and decorum of the proceeding.” In context, it is clear that this section of the rule is directed at placement of devices and noise created by their operation, as the section goes on to discuss the requirement that cameras be mechanically silent and that photographers stay in a fixed position and keep movement to a minimum. Interpreting this rule to apply to the nature of the content shared by means of a given device runs into the editorial control issues discussed above.

A judge may also limit the use of any newsgathering devices or equipment in order to protect the rights of the parties and the functioning of the tribunal, as discussed in Section 2(b) of the rule. However, if such devices are allowed into a courtroom and are operated in a manner that does not physically interfere with the proceeding, the court should not interject itself into the manner in which the media (broadly defined to include citizen journalists) shares information with the community.

Unauthorized Use of Devices

Following the colloquy above, Judge Lauriat raised a third issue with respect to the use of Twitter, namely that it might encourage those not authorized to use electronic devices to do so:

THE COURT: …What is difficult and what I need to determine in the exercise of my discretion is how best to manage the courtroom during a first-degree murder trial, with in addition to sixteen jurors, lawyers, the defendant, the witnesses, the staff, and the court officers, we have roughly between forty and sixty spectators sitting in the gallery at various points during a trial. They come and they go so we probably have a larger number in total.

We have three court officers assigned to this first-degree murder case; that’s all there are available. We have three court officers to ensure the safety of the jury, the attention of the jury, the safety and attention of the parties, the if you will organization of the Court. And what [we] don’t have quite frankly because we don’t have money is a court officer to sit and full time monitor the audience, and to determine who of the fifty people in the audience is, one, and authorized representative of a news media with credentials; two, doing something appropriate that the news media is authorized to do under Rule 1:19, or none of the above but nonetheless – for example, an individual who decides the person next to me is tweeting; I think I’ll tweet. One is in your view by rule allowed to tweet in the courtroom, the other one is not.

I don’t have the staff, we don’t have the personnel to sit with each person in the back of the courtroom and decide who may appropriately tweet, if that were to be allowed, and who may not because they’re not a member of the credentialed news media. …

…I have concluded that it’s necessary, and I believe appropriate under the circumstances to try to draw the line at some point where I can make or exhibit some measure of control over what happens in this very open and very public trial, and that is the point that I have at this stage, and in the absence of any explicit direction from the Supreme Judicial Court, either in Rule 1:19 or otherwise, to direct the trial court to allow tweeting and postings to social media in addition to blogs and t.v. cameras and the pencil press, and those who may wish to take notes and still cameras.

Judge Lauriat then proposed “reducing the scope of the exclusion zone” to the floor on which the courtroom was located (rather than the entire courthouse), and, in response to a suggestion by counsel for WCVB, indicated that he would not prevent tweeting from a media overflow room in which members of the media watched the live feed from the courtroom.

There is no question that courts might face practical issues in effecting Rule 1:19, particularly as it is expanded to include citizen media and electronic devices. I am also sympathetic to the fact that the trial courts of the Commonwealth are underfunded. That said, the concern voiced by the judge seems speculative. Moreover, even if a member of the audience might spontaneously decide to tweet based on what their neighbors are doing, it is not clear why this would be inherently harmful in a way that justifies denial of use of electronic devices to registered media as provided by Rule 1:19.

It is also not clear that denying access to Twitter would be effective to prevent the problem of unauthorized use, given that authorized users could still be in the audience using electronic devices to work on blogs. An unregistered member of the audience would be unlikely to recognize the distinction between a blog and Twitter in thinking that audience use of electronic devices was permitted. A much less restrictive solution (if also imperfect) would be for the judge to instruct audience members at the beginning of each session that use of electronic devices is limited to those registered by the court.

Conclusion

In a criminal trial, particularly a capital felony case, the judge has the grave duty to protect the constitutional rights and safety of all participants. To that end, judges correctly believe that it is important to exercise strict control over what happens in the courtroom. However, the judge must also carefully balance those concerns against the importance of keeping the criminal justice system as open to public view as possible, a duty which entails yielding significant control over perception of what happens in the courtroom to the press and the interested public.

Judge Lauriat was clearly struggling with the proper balance in this case. Although I do not believe that he got it entirely right, he did acknowledge that he was operating without clear guidance from higher courts. He encouraged the media to seek review of his order if they were dissatisfied, so that the Superior Court might have the benefit of an appellate court’s guidance. Although the docket does not indicate that anyone took Judge Lauriat up on his suggestion in this particular case (the defendant was convicted on March 7, 2013, without any further docketed rulings or notices of appeal on the social media issue), there will hopefully be an opportunity to clarify these issues in the future.

Jeff Hermes is the Director of the Digital Media Law Project.

(Image courtesy of Flickr user bondidwhat pursuant to a Creative Commons CC BY-NC-ND 2.0 license.)