Courts Still Wary About Webcasts, Live-Blogs, Tweets at Trials

    by Jeffrey D. Neuburger
    February 23, 2010
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    One of the most watched television events in U.S. history was the announcement of the verdict in the O.J. Simpson murder trial in October 1995. By the time that trial was televised, the public had become accustomed to watching footage of both civil and criminal proceedings in state courts, and such proceedings continue to be broadcast today.

    But shortly after the O.J. verdict, the United States Judicial Conference, the administrative body that oversees the operations of federal courts, formally approved a recommendation against broadcasting federal court proceedings. As a result of that policy and the various court rules adopted in response, with a handful of exceptions, cameras have been kept out of federal courtrooms.

    The emergence of new channels of communication via the Internet has prompted some recent efforts to use new technologies to expand access to proceedings in federal courts. In two civil cases involving controversial subjects of great public interest, federal District Court judges approved plans to stream the proceeding via the Internet. But both plans were successfully challenged on appeal in opinions that cited the 1996 Judicial Conference policy, calling into question the potential for new technologies to bring federal court proceedings into greater public view.


    The Prop. 8 Trial

    In the most recent failed effort to stream a federal court civil proceeding, the U.S. Supreme Court on January 13 halted plans to provide live streaming of audio and video of the controversial “Prop. 8” trial in California.

    The Prop. 8 lawsuit, Perry v. Schwarznegger, is just one chapter in the ongoing political and legal struggle over same-sex marriage. The plaintiffs are proponents of same-sex marriage who are seeking to establish that the repeal of California’s same-sex marriage law by the Proposition 8 ballot measure violates the federal constitutional rights of same-sex couples. Because the named defendants in the case refused to defend Prop. 8 (including state officials such as Governor Arnold Schwarznegger), defense of Prop. 8 is being undertaken by a group of defendant-intervenors that includes the organization that campaigned successfully for its adoption.

    Due to the enormous public interest in the case, District Court Judge Vaughn R. Walker approved a plan to stream live video and audio of the non-jury trial to an overflow courtroom in the same courthouse, as well as to several other federal courthouses throughout the country. The broadcast plan was fashioned as part of a pilot program approved by the Chief Judge of the Ninth Circuit Court of Appeals.


    The defendant-intervenors objected, arguing that broadcast of the proceedings would violate their due process rights to a fair trial, because all of their witnesses declared that they would refuse to testify if the proceedings were broadcast. The intervenors cited the 1996 Judicial Conference policy, which was based upon a study recommendation against allowing such broadcasting on the basis that “the intimidating effect of cameras on some witnesses and jurors [is] cause for concern.”

    Hollingsworth v. Perry


    The defendant-intervenors ultimately went to the U.S. Supreme Court to stop the broadcasting plan, where the witness intimidation argument was well-received. In Hollingsworth v. Perry, No. 09A640 (U.S. Jan. 13, 2010), the Court ruled that the process that led to the approval of the broadcast experiment was flawed, and that the defendant-intervenors had established that irreparable harm would result if it was allowed to take place. In an unsigned (“per curiam”) ruling, the Supreme Court delved into the minute details of the rules and policies governing federal courts. The Court concluded that under those dictates there was insufficient notice and opportunity for public comment before the court rules were changed to allow the pilot program under which the plan was approved.

    But the Court didn’t stop at disapproval of the procedure by which the broadcast plan was put in place.

    Even if the relevant court rules had properly been amended, the Court commented, “questions would still remain” about the District Court’s exercise of its discretion to allow broadcasting in a trial in which witnesses had “stated concerns for their own security.” That the case was a “high-profile” one was a reason not to allow the broadcasting on an experimental basis, the Court found, because no studies had been conducted to analyze “the effect of broadcasting in high-profile, divisive cases.”


    The Court’s decision was not unanimous, and revealed a split on the issue of courtroom broadcasting along partisan lines that are familiar in other contexts. A dissent authored by Associate Justice Steven Breyer vigorously challenged the legal basis for countermanding the District Court’s decision. On the question of potential harm to the witnesses, he pointed out that the witnesses were not anonymous, that each of them had already been “publicly identified” with the Prop. 8 cause by appearing on television and Internet broadcasts, touring California to support its adoption, or because they had “already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another courtroom.”

    Justice Breyer also pointed to the extensive public coverage of the impending trial, which had drawn the attention of “literally hundreds of national and international newspapers.” Associate Justices Stevens, Ginsburg and Sotomayor joined in the dissent.

    The Tenenbaum Trial

    Preceding the Supreme Court ruling in Hollingsworth v. Perry, a similar controversy arose over plans to allow Internet streaming of a hearing in a high-profile, peer-to-peer file-sharing case in federal court in Massachusetts. In January 2009, District Court Judge Nancy Gertner approved a plan proposed by the defendant to “narrowcast” the hearing to a single location in Boston, where it would then be made publicly available via a further webcast.

    Although existing Court of Appeals and local District Court rules prohibited broadcasting, Judge Gertner concluded that she nevertheless had the discretion to approve broadcasting in individual cases. She rejected the arguments of the record company plaintiffs that the potential jury pool for the impending trial on the merits would be prejudiced by the broadcasting plan. On the contrary, Judge Gertner concluded, “the public benefit of offering a more complete view of these proceedings is plain, especially via a medium so carefully attuned to the Internet Generation captivated by these file sharing lawsuits.”

    The recording companies appealed, and in a ruling that presaged the Supreme Court in Hollingsworth v. Perry, the First Circuit Court of Appeals disapproved the plan. In this case, the appeals court concluded that Judge Gertner had misinterpreted the District Court’s local rule, and that there was no “discretionary catch-all” exception to the general prohibition against broadcasting civil proceedings. The appeals court also rejected the defendant’s argument that the blanket prohibition in the local rule violated his right to a public trial.

    With a nod to the emergence of new technologies for providing access to trials, the court commented: “While the new technology characteristic of the Information Age may call for the [change] of some boundaries, the venerable right of members of the public to attend federal court proceedings is far removed from an imagined entitlement to view court proceedings remotely on a computer screen.”

    Circuit Judge Lipez dissented, echoing Judge Gertner’s conclusion that there were “no sound policy reasons” not to allow the broadcasting plan. He emphasized that the proceeding that would be broadcast was not a trial on the merits, only the oral arguments of the attorneys. He, too, referenced the impact of new technologies on access to the court, but drew a different conclusion from the majority opinion.

    “Since [the adoption of the District Court rule], dramatic advances in communications technology have had a profound effect on our society,” Lipez wrote. “These new technological capabilities provide an unprecedented opportunity to increase public access to the judicial system in appropriate circumstances. They have also created expectations that judges will respond sensibly to these opportunities.” Accordingly, Judge Lipez called for an immediate re-examination of the blanket prohibition in the local rule.

    Live Blogging and Tweeting

    Are the federal courts closed to all new reporting technologies? Not completely. Although the broadcasting plan in the Prop. 8 trial had to be scuttled, the District Court did allow live blogging, apparently without much comment or disagreement on the part of the parties to the litigation. See, for example, the Prop. 8 live-blog archives at firedoglake.com, and the San Jose Mercury News.

    But there is disagreement on the issue of whether live blogging is a form of “broadcasting” that must be evaluated under the same standards as a live video or audio feed. The issue was addressed in United States v. Shelnutt, a criminal case in the Middle District of Georgia, in which the District Court based its decision on Federal Rule of Criminal Procedure 53. While broadcasting may be allowed under some local federal rules in civil cases, under the federal rule the prohibition against “broadcasting” in criminal cases apples to all federal district courts nationwide.

    In Shelnutt, a reporter for the Columbus Ledger-Enquirer newspaper who was covering the trial, made an application to the court to be permitted to use a handheld device to live blog the trial via the newspaper’s Twitter account. In declining the reporter’s request, the District Court relied upon a 2002 amendment to the federal rule that replaced the prohibition against the “taking of photographs” and “radio broadcasting” with the more general term “broadcasting,” for the express purpose of covering “modern technology capabilities.”

    The District Court in Shelnutt ruled that “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” fell within the definition of “broadcasting” in Fed. R. Civ. P. 53. Thus, no live blogging was permitted.

    Reporters in other jurisdictions around the country have met with mixed results on their requests to live blog court proceedings. For example, reporters were permitted to live blog from the Scooter Libby criminal trial in 2007, although they did so from an overflow courtroom to which the proceedings were broadcast by live television feed.

    The Citizen Media Law Project guidelines on Live-Blogging and Tweeting from Court cite a number of other state and federal courts that have allowed live blogging in the past. They wisely suggest that such reporting not be attempted without advance court permission, and provide helpful tips on how to make an appropriate request.

    The Future of New Media in the Courtroom

    While some lower federal courts have shown flexibility in allowing new communications channels access to their courtrooms, they are doing so against the grain of long-standing negative views in the federal judiciary on the issue of live reporting. These negative views have deep roots in U.S. Supreme Court rulings such as Sheppard v. Maxwell, in which the Court found that intrusive press presence in the courtroom in the sensational murder trial of Dr. Sam Sheppard was a factor in depriving him of his right to a fair trial.

    The ruling in Hollingsworth v. Perry is also a reminder of the Supreme Court’s historic, arms-length relationship with both the press and the larger public. The Court has famously refused to allow either live or delayed television broadcasting of its own proceedings, and although audio tapes of the arguments are made, they are not released to the public until the end of each term. The Court began making exceptions to this policy on a case-by-case basis in the litigation following the 2000 presidential elections, to allow same-day release of audio tapes. But television broadcasting remains completely off-limits, and some justices, most notably Justice Antonin Scalia, have publicly expressed their strong opposition to any change in that policy.

    With the departure of Justice David Souter, who declared in 1996 that cameras would roll in the U.S. Supreme Court “over my dead body,” it was thought that the Court might warm up on the subject. Souter’s replacement, Associate Justice Sotomayor, expressed her positive experience with cameras in the courtroom during her nomination hearings. But the ruling in Hollingsworth v. Perry seems a likely signal against change at the Supreme Court level.

    Without a change in the prevailing attitude at the U.S. Supreme Court or a widespread move on the part of federal appeals courts and local district courts to modify their rules, live reporting via new media channels is likely to be limited to the courtrooms of individual judges with more liberal attitudes toward access to the courts, and to cases in which none of the parties is motivated to challenge a court’s decision allowing it.

    Jeffrey D. Neuburger is a partner in the New York office of Proskauer Rose LLP, and co-chair of the Technology, Media and Communications Practice Group. His practice focuses on technology and media-related business transactions and counseling of clients in the utilization of new media. He is an adjunct professor at Fordham University School of Law teaching E-Commerce Law and the co-author of two books, “Doing Business on the Internet” and “Emerging Technologies and the Law.” He also co-writes the New Media & Technology Law Blog.

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