From United States v. Shelnutt (M.D. Ga. Nov. 2):
A reporter for the Columbus Ledger-Enquirer newspaper has requested that he be allowed to use his handheld electronic device (e.g., a BlackBerry or cellular telephone) during the trial of the above-captioned criminal case to send electronic messages describing the court proceedings directly from the courtroom to his newspaper’s “Twitter” website. The messages, called “tweets,” would then be available to any member of the general public who accessed the newspaper’s Twitter website....The Court finds that Rule 53 of the Federal Rules of Criminal Procedure prohibits “tweeting” from the Courtroom and that Rule 53 does not unconstitutionally restrict the freedom of the press under the First Amendment to the Constitution....
Rule 53 states in relevant part: “[T]he 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 finds that the term “broadcasting” in Rule 53 includes sending electronic messages from a courtroom that contemporaneously describe the trial proceedings and are instantaneously available for public viewing. Although “broadcasting” is typically associated with the dissemination of information via television or radio, its plain meaning is broader than that. The definition of “broadcast” includes “casting or scattering in all directions” and “the act of making widely known.” Webster’s Third New International Dictionary (Unabridged) 280 (1993). It cannot be reasonably disputed that “twittering,” as previously described, would result in casting to the general public and thus making widely known the trial proceedings. Moreover, it appears clear that the drafters of Rule 53 intended to extend the Rule’s reach beyond the transmission of trial proceedings via television and radio.
Prior to the 2002 Amendments to Rule 53, the Rule specifically prohibited the “taking of photographs” and “radio broadcasting.” The 2002 Amendments eliminated the modifier “radio” from broadcasting, leaving a prohibition against “broadcasting” generally and not just “radio broadcasting.” This change was purposeful, and although the Advisory Committee’s notes state that the Committee did not consider the change to be substantive, the notes do reveal that the Committee made the change with the intention that additional types of broadcasting would be covered by the Rule. See Fed.R.Crim.P. 53 advisory committee’s note (“Given modern technology capabilities, the Committee believed that a more generalized reference to ‘broadcasting’ is appropriate.”)
Based on the foregoing, the Court finds 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, falls within the definition of “broadcasting” as used in Rule 53. Therefore, this type of broadcasting is prohibited under Rule 53, unless the application of Rule 53 is unconstitutional because it unduly restricts the freedom of the press under the First Amendment.
It is well settled that the restrictions contained in Rule 53 do not restrict the freedom of the press in an unconstitutional manner. The press certainly has a right of access to observe criminal trials, just as members of the public have the right to attend criminal trials. In this case, the press will be able to attend, listen and report on the proceedings. No restriction is being placed upon their legitimate right of access to the proceedings. Accordingly, the Court finds that its application of Rule 53 in this case does not violate the First Amendment.
GM Roper says:
What would prevent the reporter from sitting in the rear of the courtroom, stepping out occasionally and “tweeting?” That should be ok I would think. Of course, the reporter would have to sit in the rear of the court and may lose his seat... Oh the sacrifices our intrepid journalists risk.
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November 9, 2009, 12:15 pmNo Tweeting in Federal Court, and why I think the Supreme Court should get on Twitter « Josh Blackman's Blog says:
[...] to Federal Rule of Criminal Procedure #53. From United States v. Shelnutt (M.D. Ga. Nov. 2) (H/T Volokh), A reporter for the Columbus Ledger-Enquirer newspaper has requested that he be allowed to use his [...]
Tweets that mention The Volokh Conspiracy » Blog Archive » Federal Rules Interpreted as Barring Twitter Coverage of Trial from Inside Courtroom -- Topsy.com says:
[...] This post was mentioned on Twitter by Aaron Hockley and Moshe Glickman, Heather Hope. Heather Hope said: RT @mglickman: Federal Rules Interpreted as Barring Twitter Coverage of Trial from Inside Courtroom http://ff.im/-bcvRE [...]
bob says:
“What would prevent the reporter from sitting in the rear of the courtroom, stepping out occasionally and “tweeting?” That should be ok I would think.”
In the jurisdiction where I practice, use of cellular phones is prohibited anywhere inside the Fed. Ct. house. And, during the last case in which I was involved, everyone entering the courtroom had to check their cell phones with the Marshall.
It’s just more petty pompousness from the bench.
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November 9, 2009, 12:39 pmAnderson says:
Anyone know the purpose of Rule 53 in the first place? I am puzzled what public interest is served by this rule.
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November 9, 2009, 12:40 pmuberVU - social comments says:
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This post was mentioned on Twitter by ahockley: Federal rules interpreted as barring Twitter from the courtroom: http://bit.ly/4nccR7...
ray_g says:
“And, during the last case in which I was involved, everyone entering the courtroom had to check their cell phones with the Marshall.
It’s just more petty pompousness from the bench.”
Perhaps it is a (IMO) reasonable reaction to the fact that there are always a few who won’t turn them off or set them to silent ring. I’ve had this problem with business meetings.
I think it is pretty petty when some folks complain that they can’t live without their phones for a couple of hours.
Interesting aside — once I was the person who had to take custody of the surrendered cell phones. I asked people to turn them off so they would not ring. Few did. The next day I stated that if a phone rang, I would answer it. They were all turned off then.
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November 9, 2009, 1:01 pmTechnically Legal » Blog Archive » No Tweeting in Federal Court says:
[...] Federal Court has found that live tweeting courtroom events violates Rule 53 of the Federal Rules of Criminal Procedure, which prohibits [...]
richard says:
“And, during the last case in which I was involved, everyone entering the courtroom had to check their cell phones with the Marshall.
In the USDC for the Central District of California, they had a rule until very recently where cell phones would be allowed in the building but not if the cell phones had a camera and they wouldn’t check the phones at the security desk. I arrived at the court for a hearing not knowing of the rule and was told that I couldn’t bring my cell phone in because it had a camera (the marshall didn’t accept my excuse that I didn’t know how to operate the camera) and that they wouldn’t check the phone for me. I was told to go back to my car and leave the phone there. I told the marshall that I had taken a commuter bus the six blocks from my office to the court and didn’t have time to return to my office and make it back in time for the hearing. His response was “too bad”. I ended up burying my phone in a planter just outside the courthouse and retreiving it after the hearing. An absolutely nonsensical rule.
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November 9, 2009, 1:14 pmbob says:
Ray-g–
Like many people, my “cell phone” contains thousands of e-mails (and documents) containing confidential client information.
How would you feel handing that over to some stranger for safekeeping for a couple of hours?
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November 9, 2009, 1:30 pmOren says:
Bob, any cell phone capable of receiving email can be locked with a password of arbitrary complexity.
As to the case at hand, tweeting is obviously narrowcasting, not broadcasting, and should be permitted under a highly-technical (read: pedantic) reading of Rule #53.
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November 9, 2009, 1:38 pmray_g says:
Bob — then don’t bring the phone to the courthouse or meeting, expecially when you know ahead of time that they are not allowed. Simple really.
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November 9, 2009, 1:46 pmCristiano says:
Can and should. I continue to be amazed at the number of lawyers who fail to properly safeguard their clients’ information by password-protecting access to their email devices. There is, in my mind, no legitimate excuse for failing to do so.
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November 9, 2009, 1:55 pmTweets that mention The Volokh Conspiracy » Blog Archive » Federal Rules Interpreted as Barring Twitter Coverage of Trial from Inside Courtroom -- Topsy.com says:
[...] This post was mentioned on Twitter by Larry King, Social Lattice. Social Lattice said: #analytics The Volokh Conspiracy » Blog Archive » Federal Rules Interpreted ...: S.. http://bit.ly/1r8xql #facebook #twitter [...]
SuperSkeptic says:
Fairly good “evolving interpretation.”
We may still have issues with the underlying nature of the rule, but the 9 have spoken on the First Am. issue, so: *shrug*
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November 9, 2009, 1:59 pmKenvee says:
Seems reasonable to me. The reporter can step outside to Tweet, just like to email or phone in updates. It seems like an acceptable compromise between allowing public access and minimizing disruptions.
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November 9, 2009, 2:01 pmSteve says:
In the SDNY you can’t have any sort of cell phone or Blackberry inside the courthouse, you have to check it at the door. Unless there’s some kind of exception for the media, I always assumed the constitutional issue would have been argued and decided long ago. This was a rule even pre-9/11 if I remember correctly.
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November 9, 2009, 2:10 pmegd says:
The only reason I can think of is the possibility of prejudicial or secret evidence that is inadmissible or otherwise to be kept out of the public eye.
With delayed reporting, the judge has an opportunity to order the evidence kept secret, something not possible with instant recording or broadcasting.
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November 9, 2009, 2:22 pmBruce Hayden says:
I think that the distinction between narrow casting and broadcasting is weak. The antenna still broadcasts a radio signal. And, realistically, a radio broadcast from a courthouse doesn’t actually “broad” cast from the courthouse, but rather, is relayed to a radio tower where it is transmitted indiscriminately. But until then, any radio transmission from within the courthouse would be just as narrowly cast as a cell call or a Twitter. Plus, not all Twittering is that narrow, and, indeed, may have a coverage or distribution far greater than that of some radio broadcasts.
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November 9, 2009, 2:23 pmRyan says:
It’s not quite as simple as you make it out to be. Plenty of us carry a cell phone/Blackberry for plenty of different purposes. For instance, a friend of mine carries his everyone over the last month or so because his wife is pregnant. There are plenty of parents who have theirs with them in case of an emergency with their child at school/daycare. It’s easy to say, “don’t bring your cell phone” but the reality is, life is more complex than that. Lawyers may not like to admit it, but there are some things more important than the case at hand or their client. Family emergencies, for instance, trump any issue a client may be having. Maybe others will disagree with that, but, my family will, without question, always come first.
And, just for good measure, see Richard’s comment.
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November 9, 2009, 2:39 pmbob says:
Great, thanks, why didn’t I think of that?
Let me pull out a 8 1/2x14 legal pad and write that down.
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November 9, 2009, 3:15 pmDavid Schwartz says:
The “rationale” that I’ve always heard is that broadcasting the proceedings may cause witnesses (and perhaps even counsel) to focus more on how they’ll play to the broadcast audience than in advocacy, the truth, and basically how they’ll affect justice.
Personally, while I agree that this is a legitimate concern, I believe the public’s right to not have its access to things that are supposed to in fact be public outweighs this concern. I’m open to special rules in unusual cases where there are unusual concerns. But, IMO, the default should be maximum public access.
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November 9, 2009, 4:09 pmlls says:
Ryan and Richard,
What happened to pagers? Are they also banned? Are they available? Seems to me a pager would resolve your availability (need to be in touch) issues...
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November 9, 2009, 4:38 pmThe Volokh Conspiracy » Blog Archive » Federal Rules Interpreted … says:
[...] Read More Here… Share and Enjoy: [...]
Steve says:
I’m pretty sure pagers are also banned at the SDNY... although it wouldn’t shock me to find out the court makes exceptions for expectant fathers and the like.
As for the more garden-variety case of people whose kids have cell phones to call them in case of emergency... sheesh. How did we ever survive, back in the day, without any cell phones at all to call mommy in case of emergency? Now apparently nothing less than 24/7 contact is sufficient. Come on.
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November 9, 2009, 6:06 pmGeorgia Judge Bans Twitter From Courtroom | Social Media Law Student says:
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Rebelyell says:
My cell phone also contains my calendar, calculator, dictionary and many of my notes. It contains all my emails, may of which have important documents attached. I use it to jot down “to do” items as well as make my grocery list. I use it to look things up on the Web, which is quite helpful.
I don’t want it taken away for two minutes, much less two hours. It has nothing to do with my wanting to make or receive calls.
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November 10, 2009, 8:50 amQOTD [Digital Daily] | Technology startup news GeekoPedia says:
[...] U.S. District Judge Clay Land bans Twitter from his [...]
Federal rules bar Twitter in courtroom? « Schaffer Law Library Blog says:
[...] You can read more about Rule 53 at the Volokh Conspiracy. [...]
Rex Gradeless says:
We’ve already seen a Kansas federal judge allow Tweeting inside the courtroom. — http://socialmedialawstudent.com/twitter/kansas-federal-judge-allows-twittering-media-in-courtroom/
And they have allowed tweeting in Colorado courtrooms — http://socialmedialawstudent.com/twitter/colorado-judge-allows-twitter-in-courtroom/
England has allowed court order to be served via Twitter — http://socialmedialawstudent.com/twitter/court-order-tweeted-instead-of-served/
Just a matter of time before this is allowed. Agree nothing prevents reporters from walking outside of the courtroom to send tweets.
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November 10, 2009, 12:23 pmThe Volokh Conspiracy » Blog Archive » Federal Rules Interpreted … « Blogging says:
[...] More here: The Volokh Conspiracy » Blog Archive » Federal Rules Interpreted … [...]
The Volokh Conspiracy » Blog Archive » “Twitter Allowed in the [Maryland State] Courtroom …. for Now” says:
[...] Media Consulting blog has a report, with links to journalist tweets on the subject. Compare this federal case barring Twitter reporting of a trial, though that one is under federal rules that generally ban broadcasting of trials. Categories: [...]
bob says:
The cell phone camera rules are there so people can’t take pictures of jurors.
Yes, it’s that simple, and it’s very important.
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January 25, 2010, 12:24 am