A few days ago several prominent federal judges and attorneys in the Ninth Circuit participated in a conference to discuss the legal system's evolving relationship with the news media and how new online communication technologies are affecting the administration of justice. BNA's Silicon Valley reporter, Joyce Cutler, was there, and she filed the following story for us. The discussion that took place reflected an acute awareness of the changes taking place in the news industry, the pervasiveness of digital devices and user-generated content, the public's growing desire for more information about the legal system, and the need on the part of the judicial system to resolve new policy questions raised by all of these phenomena. Reading through the story, I was struck by the extent to which each district and sometimes each judge is, by necessity, arriving at his or her own conclusion as to what technologies and public disclosures should be permitted in the courtroom. I thought Joyce's article should reach a wider audience, so I am sharing it here.
Courts, Press Grappling with New Media, New Forms of Journalism
SAN FRANCISCO -- At a time the news industry and even Congress are struggling to arrive at a definition of journalism, the judicial system finds itself faced with that same question and several others. Judges and lawyers, who have not yet fully digested the last wave of communications technologies such as television and radio, must now -- by necessity -- resolve a host of new policy issues raised by the next technological revolution: widespread, cheap and tiny information-capturing devices powered by social media.
UPDATE: A few days after this post was written, but before the panel discussion reported here, a federal district court in Georgia, in United States v. Shelnutt, ruled that twittering from inside a courtroom was "broadcasting" forbidden by Rule 53.
The decades-long debate over whether to increase public access to the courts through use of televised proceedings has thus been fused into a new debate over whether and how to allow live-blogging or real-time filing of 140-character Twitter updates in the courtroom, panelists said Nov. 4 at the Northern California federal courts media conference.
The conference, sponsored by the U.S. District Court for the Northern District of California and the Public Information and Community Outreach Committee (PICO) of the U.S. Court of Appeals for the Ninth Circuit, offered insights into what reporters, bloggers, scholars, and judges are grappling with as communication technologies evolve.
Many on the bench are "blissfully ignorant" of what is going on in the media industry and the processes of getting information out in other means than newspapers, Chief Judge Vaughn R. Walker said. "We need to explain what we do, explain our decisions, explain the entire process in a way that people can understand and can have access to."
The Ninth Circuit is unique among the federal circuits in having a public information committee.
Cell Phones In, Video and Still Cameras Out, Everything Else in Play
While most courts now allow cell phones into the courtroom, the rules are different from district to district, said Judge Susan Illston, in the Northern District. Rules on laptop computers, which allow real-time communication, vary "very much from courtroom to courtroom," Illston said.
Illston added that she has no prohibition about laptops in her courtroom "provided the keys aren't noisy" and disruptive.
Taking photographs is still prohibited across all federal courts.
The variation in rules can be problematic, said Peter Scheer, executive director of the First Amendment Coalition. The federal rule prohibiting broadcast television from courtrooms is so broad that it includes ordinary tape recording, he said. "But politically things are changing in Washington," and there is considerable sentiment to change the rule if the judiciary does not act, Scheer said. He predicted that the ban would be "greatly relaxed" within the next two years. "At the moment, unfortunately, people can't learn nearly as much about important cases as they should be able to," Scheer said.
Federal courts are still where they were 30 years ago when broadcast television at its zenith, he said. Legal blogs, including SCOTUSBLOG and Ninth Circuit Blog, follow the courts and show how quickly information can get to the public, said Melissa Griffin, who runs Sweet Melissa blog covering San Francisco politics and law.
Eric Goldman, a professor at the Santa Clara University Law School, said blogging is "both a complement and a substitute for what law professors have done in the past." Goldman blogs about cases involving the internet and intellectual property. "Really, the point is if we have an open courtroom where people are allowed in, they're all potential bloggers and there is no security through obscurity any more. Those days are over. That information will leak out one way or another, and you'll have to approach the information accordingly," Goldman said. "Kick out the Blackberries, that's fine. I will take my notepad and my pen and I will blog about it after the trial or after the courtroom. The point isn't just how you kick out the technology from the courtroom. That strikes me as really a non sequitur. The real issue is the control of information in the courtroom," Goldman said.
Shrinking Media Presence in Courtroom
Given the current-day realities of the newspaper industry, "we have fewer and fewer people covering the courts, and so the idea that your local newspaper is going to have a reporter in the courtroom covering a proceeding, those days are gone," said Kelli Sager, a partner with Davis Wright Tremaine in Los Angeles and a member of the Ninth Circuit PICO Committee.
The court has to be more proactive about making information available quickly, said Sager, noting that PICO is working on more alternatives to increase availability of information. But, she cautioned, "there is going to be a period of time when we just have less coverage of the courts by the media unless we make it easier."
Even with the decline in newspapers, mainstream media is still the primary presence in the courtroom, Scheer said.
Illston, who is overseeing the Barry Bonds prosecution involving allegations that he lied to a grand jury about steroid use, said that her court worked to ensure the process was "as media friendly as it could be." The court wired audio and video into the ceremonial courtroom down the hall so people could listen and see the proceedings. "The advantage of course there is you're in private effectively so if you want to clatter on your computer that's OK, if you want to be noisy, that's OK, if you even want to second-guess the court's rulings, that's OK as long as you don't put it in your articles," Illston said.
The same system has been used in the Ninth Circuit for high-profile oral arguments. The "nightmare vision" was if more people want to come in than there is space, raising a host of issues, including who is a journalist, she said.
"Those are really tough questions today," Illston said.
Is It Necessary to Define Who is a Journalist?
Access is an issue when police departments provide press passes that allow journalists to cross police lines because not all reporters need to be on the scene of a disaster, Griffin noted. And the distinction of who is a journalist is arbitrary, she said. The problem of defining a journalist arises "when you have to ration space," said Scheer, noting the problems that arose when Scooter Libby was on trial in the case over who leaked CIA operative Valerie Plame's name to the media.
In the Libby case, the court allocated a journalist seat for a blogger, Sager said. "There is no recognized, neutral credentialing authority," Scheer said, "and there are many kinds of people using different kinds of technology who call themselves and are generally viewed as journalists than was the case a few years ago."
"The courts don't want to be in the business and shouldn't be in the business of drawing lines and deciding who is a journalist and who is not," Scheer said. "I would let people decide for themselves whether they're journalists, and the only question is whether they are willing to abide by the basic rules" of the court, Scheer said.
"Credentialing is not the answer," Jennifer Granick, civil liberties director for the Electronic Frontier Foundation, said. "First of all, I don't think credentialing can be constitutionally done." Also, Granick said, courts and lawyers do not have much interest in the job of credentialing journalists.
Blogger Griffin remarked that one possibility might be to credential journalists based on circulation or whether they are regularly engaged in the activity.
"It's going to evolve. It has to evolve. Sadly, the courts are being put in the unfortunate situation," Griffin said. "They may have to be on the forefront of this because of the ability to make reasoned inferences based on multiple pieces of information that other organizations may not be able to do. The court may find itself stuck doing this but I think ultimately there's going to have to be a third way of doing this because it's getting more and more complicated."
A proposed federal shield law (S. 448, awaiting action in the Senate Judiciary Committee) defines journalists as those who are regularly engaged in gathering and disseminating information to the public regardless of whether they are getting paid. This definition covres freelancers and online journalists.
Sager said that her "perfect solution" is to stream the information over the internet or on CSPN and make it available to everyone. "Then you don't have to fight about those issues about who's a journalist and who's not," she said.
News Media Influence on Jurors
Electronic communication has also changed the way the judge admonishes the jury about rules of evidence, said Illston. The warning not to read anything in the newspaper "is now the beginning of a very long paragraph of things they're not supposed to be doing" that includes telling them not to blog or Twitter or search the internet to research the case, Illston said.
"Really, it's an effort to sequester without sequestering the jury," Illston said. "And what we do then is to rely on their good faith in doing what we ordered them to do. And mostly it works."
Judge Jeremy Fogel of the Northern District said that he spends about 10 minutes on the list of prohibited activities, including blogging, e-mailing, Facebook entries, and Twitter. "I think the problem is things are moving so fast that there's so many ways for people to get information that we just can't anticipate all the problems we're going to have," Fogel said.
Judge Howard Matz, of the Central District of California, remarked that no juror in fact reaches a decision in vacuum. "There is no simple solution to immunizing jurors from extraneous influences," Matz said. Without explaining to jurors very specific information about what fairness in a jury trial requires, "I think we're going to have decisions badly warped. This has already begun to happen with jurors twittering about their ongoing experiences. And not necessarily about the evidence but about the dress of the lawyers or whether a particular lawyer is 'hot,' " Matz said.
Judicial Response to Public Access Issues
Four years ago, the Northern District published General Order No. 58, a local rule that defines an electronic device and establishes limitations on their use. The is rule is now "completely obsolete," Fogel said. Having been written before the iPhone, before Twitter and Facebook, the rule "has nothing to do with the world we in which we live," Fogel said.
"Technology has expanded and exploded so fast that while [Order No. 58] is an interesting artifact, it really doesn't mean anything," Fogel said.
Granick praised the Public Access to Court Electronic Records (PACER) system as really making a difference and allowing individuals to follow other people's cases. The downside of PACER, she added, is it is behind a pay wall and has fragmented search that does not allow for tracking of cases by subject matter. Granick commented -- and the panel agreed -- that more documents are filed under seal than ever before out of caution about the material available in the record and fears about what information would be reported upon.
Fogel said that his court, which is based in his San Jose, Calif., regularly deals with disputes involving valuable intellectual property. "If somebody reports on something they're not supposed to report, it can lead to stock price manipulation, the loss of proprietary rights that could cost people hundreds of millions of dollars," he said. "So the stakes are high. And my concern isn't keeping the media out because I'd like the media to be in. It's a question of how to think about the problems in a way that doesn't overly restrict but nonetheless protects the interests of people," Fogel said.
By Joyce E. Cutler
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