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Fall 2013 / Winter 2014

Reynolds Courts & Media Law Journal

Modern Media Devices in the C ourtroom Camer as

in the

C ourtroom 2.0:

How Technology is Changing the Way Journalists Cover the Courts ������������������������������ By Christina Locke Faubel

Summary Guide to C ourts and Media

the

A Basic Guide for Judges ���������������������������� Condensed by Eric P. Robinson Updated by Christal P. Keegan, Katheryn Yetter and Irene Hart

A ppendix A: Jury Instructions Cautioning Against Use of the Internet and Social Networking ��������������������������������������Developed by The American College of Trial Lawyers

A ppendix B:

Model Social Media Jury Admonition with Short Form Version��������������������������������������������������������������Developed by Judge Dennis M. Sweeney, ret., Maryland Circuit Court Judge

U.S. $13.00

www.courtsandmedia.org


Fall 2013 / Winter 2014Volume 3, Issue 1

Reynolds Courts & Media Law Journal

donald w. reynolds national center for

COURTS&MEDIA


Reynolds Courts & Media Law Journal Volume 3, Issue 1 Fall 2013 / Winter 2014

William F. Dressel, Publisher Ben Holden, Editor Elizabeth Conner Stephens, Copy Desk Chief Nicole Scott, Research Editor Stephanie Kruger, Jim Cooper, Layout Editors Christina Nellemann, Manager of Graphic & Web Services

Universit y of Nevada Prof. Nancy Rapoport A rizona S tate Universit y Prof. Rick Rodriguez Universit y of Georgia Gr ady C ollege of Journalism Dean Charles N. Davis

and

M ass C ommunication

Washington and L ee Universit y Prof. Toni Locy

Cover: Photo Illustration by Aspen Kuhlman

Š 2013, Donald W. Reynolds National Center for Courts and Media and the The National Judicial College. All rights reserved. Material in publications of the Donald W. Reynolds National Center for Courts and Media, including our web site, may be copied or downloaded for personal, noncommercial use only. Otherwise, this material may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of the Donald W. Reynolds National Center for Courts and Media, or, in the case of materials owned by third parties, the owner of that content. The opinions expressed in this publication are those of the author(s), and are not necessarily those of The National Judicial College; the University of Nevada, Reno; the Donald W. Reynolds National Center for Courts and Media; or the Donald W. Reynolds Foundation.

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Affiliated Institutions Universit y of Nevada Donald W. Reynolds School of Journalism, Reno William S. Boyd School of Law, Las Vegas National Judicial C ollege A rizona S tate Universit y Walter Cronkite School of Journalism and Mass Communication C onference

of

C ourt P ublic I nformation O fficers

Universit y of M issouri University of Missouri School of Law Missouri School of Journalism

Board of Editors Hon. William Dressel, President, National Judicial College Charles Davis, University of Georgia Toni Locy, Washington and Lee University Nancy B. Rapoport, University of Nevada Rick Rodriguez, Arizona State University Christina Wells, University of Missouri

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Call for Papers The Reynolds Courts and Media Law Journal is seeking legal and scholarly articles on the interaction of the courts and the media, and the impact and implications of this interaction.  Examples of possible article topics include, but are not limited to: • • • • •

Media access to court proceedings (including cameras, new media in the courtroom) Conflicts between First Amendment and Sixth Amendment principles and values Impact of social and new media on court proceedings Process and implications of online access to court records and proceedings Analysis of specific examples and cases of court-media conflict situations

Judges, attorneys, journalists and professors are invited to submit (via e-mail) ideas, proposals or drafts for articles of up to 30,000 words (including text and footnotes).  The journal is published both in print and online. Electronic submissions in Microsoft Word format strongly preferred. Blue Book or Association of Legal Writing Directors (ALWD) legal citation format is strongly preferred; other social science citation formats are also accepted, but citations must be in footnotes, not endnotes or parentheticals. Submissions, ideas and questions should be sent to courtsandmedia@unr.edu.

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Reynolds Courts & Media Law Journal Contents Modern Media Devices in the Courtroom Cameras in the Courtroom 2.0: How Technology is Changing the Way Journalists Cover the Courts Christina Locke Faubel������������������������������������������������������������������������������ 3

Summary Guide to the Courts and Media A Basic Guide for Judges Condensed by Eric P. Robinson Updated by Christal P. Keegan, Katheryn Yetter and Irene Hart������������������������������������������������������������ 33

Appendix A: Jury Instructions Cautioning Against Use of the Internet and Social Networking American College of Trial Lawyers ���������������������������������������������������� 103

Appendix B: Model Social Media Jury Admonition with Short Form Version Developed by Judge Dennis M. Sweeney, ret., Maryland Circuit Court Judge ������������������������������������������������������������� 117 Letter from the Editor ������������������������������������������������������������������������������������� xi Authors�����������������������������������������������������������������������������������������������������������������1 For Further Reading���������������������������������������������������������������������������������������119 Board of Editors ���������������������������������������������������������������������������������������������121

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(1906-1993)

D onald W. R eynolds

M

D onald W orthington R eynolds was born in 1906 and spent his childhood in Oklahoma City often “hawking” copies of the Oklahoma News at the railroad depot. He soon realized the newspaper business was in his blood, and set his sights on the University of Missouri’s School of Journalism, working at a meat packing plant to pay for his studies. Upon graduation in 1927, Mr. Reynolds worked in a variety of newspaper-oriented positions. He purchased and then sold his first newspaper, using the proceeds to launch the Donrey Media Group. During World War II, Mr. Reynolds served as the officer in charge of the Pacific and London editions of YANK. He received the Legion of Merit, Purple Heart and Bronze Star before being honorably discharged in 1945 as a major. After the war, Mr. Reynolds expanded his business, ultimately owning one of the nation’s largest privately held media companies. Upon Mr. Reynolds’ death in 1993, the Donrey Media Group was sold, resulting in a substantial bequest from the Reynolds estate to provide for the Donald W. Reynolds Foundation to continue his philanthropy, focusing on journalism; aging and quality of life; cardiovascular research; and general nonprofit programs in the states of Arkansas, Nevada and Oklahoma. These grants often include a capital component, reflecting Mr. Reynolds’ life-long passion for building. edia entrepreneur

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Donald W. Reynolds National Center for Courts and Media

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he Donald W. Reynolds National Center for Courts and Media is a national center for research and scholarship on the interaction between the courts and the media, particularly the conflicts between free speech rights under the First Amendment and the fair trial rights of the Sixth Amendment. By providing a forum for debate and discussion of the inherent tension between an independent judiciary and the freedoms of speech and of the press, and Center’s goals are to propose solutions to these conflicts, and to help judges and journalists develop insight into their respective roles in safeguarding American democracy and freedom. In its research, publications and programs, and through its affiliations with the National Judicial College and the Donald W. Reynolds School of Journalism at the University of Nevada, Reno, the Center works with a wide variety of individuals with roles in the courts and the media, as well as observers of their interactions. These include judges, court clerks, court information officers and current and future attorneys; current and future journalists, editors and other creators of media content; and academics, organizations and other observers concerned with these issues. By working with these various stakeholders, the Center hopes to give the judiciary a better understanding of and appreciation for the vital role played by the media in establishing an informed citizenry, while also allowing journalists and other content creators to better understand and appreciate the judiciary’s ethical and legal obligations to ensure the fundamental fairness of court proceedings. More journalists also need to realize their First Amendment freedoms exist solely because judges interpret the Constitution to protect freedom of the press. And more judges need to realize that their independence rests on the public’s confidence in the fundamental fairness and integrity of the judicial system; a trust that is directly dependent on the information the public receives from the media.

A

s part of this effort, the Center is pleased to publish the Reynolds Courts & Media Law Journal, which highlights legal and scholarly articles on the interaction between the courts and the media, and the impact and implications of this interaction. By helping to reduce the conflict between the independent judiciary and the free press, the Reynolds Center seeks to promote and reinforce both of these crucial pillars of our democratic society.

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National Advisory Council The National Advisory Council is the administrative oversight unit for the Center. It is composed of both the judiciary and the media, print and electronic. The Council sets the focus of the Center and establishes its policies. Floyd Abrams—Partner, Cahill Gordon & Reindel LLP, New York, N.Y. Hon. Janet Berry—Judge, District Court, Second Judicial District, Reno, Nev. Walter H. Bush—Shareholder, Carlton Fields, Atlanta, Ga. Dave Busiek—News Director, KCCI-TV, Des Moines, Iowa Linda C. Deutsch—Legal Affairs Reporter, The Associated Press, Los Angeles, Cal. Hon. William F. Dressel—President, The National Judicial College, Reno, Nev. Mark Hinueber—General Counsel, Stephens Media Group, Las Vegas, Nev. Hon. Richard A. Jones—Judge, U.S. District Court, Seattle, Wash. Warren L. Lerude—Professor, Reynolds School of Journalism, University of Nevada, Reno, Nev. Samuel S. Lionel—Shareholder, Lionel, Sawyer & Collins, Las Vegas, Nev. Karole Morgan-Prager—Vice President, General Counsel & Corporate Secretary, McClatchy Newspapers, Inc., Sacramento, Cal. Kelli L. Sager—Partner, Davis Wright Tremaine, LLP, Los Angeles, Cal. Alexander M. Sanders, Jr.—former Chief Judge, South Carolina Court of Appeals (retired), President Emeritus, College of Charleston, Charleston, S.C. David A. Sellers­—Assistant Director of Public Affairs, Administrative Office of the U.S. Courts, Washington, D.C. Alan G. Stavitsky—Dean, Reynolds School of Journalism, University of Nevada, Reno, Nev. Barbara Wall—VP & Associate General Counsel, Gannett Co. Inc., McLean, Va.

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From The National Judicial College

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s I reviewed the proposed content for this Journal for the final time (I will be retiring from the NJC on December 31), many thoughts came to my mind. First, the premise for the creation of the Reynolds National Center for Courts & Media -- that these two professions (judges and journalists) are indeed bound together by the First and Sixth Amendments -- is valid. Thus, it is important to explore the relationship between courts and media and there remains a lot to explore in this area. Hon. William Second, I salute the great work done by RNCCM, including its Dressel NJC classes for judges, workshops for journalists on issues such as covering courts, symposia addressing First or Sixth Amendment issues such as confidentiality for both entities, the project to establish and facilitate “Bench/Bar/Media” workshops, and the Rollan Melton Judges in Journalism Schools program. Third, I stand in awe of the immense impact technology is having on both the courts and the attendant media coverage of justice and judicial proceedings. Fourth, I find myself reflecting back to the day RNCCM director Hon. Chad and editor, professor Ben Holden, declared that a central misSchmucker sion of RNCCM should be creating this Journal. There were a few questioning looks, but to the journalism school dean and me, it seemed not only a natural but an essential undertaking. We wish to thank the Donald W. Reynolds Foundation for providing the initial funding to make the Journal a reality and to Ben for his commitment to this idea that has become a meaningful resource. The NJC has made the commitment to ensure that the important work of the Journal continues. This edition continues the tradition of covering timely and challenging subjects: (a) an update of an early collaborative series of articles initially edited by Eric Robinson; (b) the informative article by Dr. Christina Locke Faubel that ties together the ongoing debate on “cameras in the courtroom” to 21st century devices, technology and resources; (c) inclusion of a model instruction created by the American College of Trial Lawyers to address jurors’ use of devices to communicate or seek information; and (d) the inclusion for comparison to the ACTL instruction of the fine work previously produced for this Journal by the Hon. Dennis Sweeney (Maryland Circuit Judge, ret.). Once again Ben has put together an edition of the Journal that will be a resource to judges, journalists, academics and a myriad of professionals who work in the justice system. Future editions will be introduced by NJC’s eighth president, the Honorable Chad Schmucker (see NJC’s website for his background) who comes to the Judicial College with more than 23 years as a Michigan circuit judge and who currently serves as Michigan’s State Court Administrator. If you have thought of submitting an article or know of someone who is working on an issue in the 1st or 6th Amendment area, please contact Ben at bholden@unr.edu to discuss having it submitted for consideration. It has been an honor to have been associated with The National Judicial College and all those who look to this marvelous institution for Education – Innovation – Advancing Justice.   

William Dressel President, National Judicial College

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L etter F rom

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the

E ditor

efore summarizing the highlights of the current issue of the Journal, I’d like to share an apology, wrapped inside an exciting international adventure. This edition is our eighth publication (Volume 3 Issue 1), and it is late coming off the press. We had hoped to publish during the summer. Unfortunately (or maybe fortunately, depending on one’s perspective), I spent the summer in Eastern Europe working on a short-notice courts and media project for the Organization for Security and Co‑Operation in Europe. You may recall that late in the presidency of Bill Clinton, our nation bombed strongman Slobodan Milosevic and the Serbian army, expelling them from the region of Kosovo. With the aid of the international community, Kosovo has become an independent state, recognized by the U.S. and many of its allies, though not by Russia and China. This summer, folks who know well the work of the OSCE and the National Judicial College reached out to NJC president William Dressel. Judge Dressel contacted me about the possibility of spending the summer in Kosovo working with journalists and judges for the purpose of improving judicial transparency and the public’s confidence in the courts. It is exactly what I do here at the Center and at the Judicial College. The assignment was twofold: First, plan and execute a workshop for judges and journalists, along the lines of those the Center has done here in the states in Houston, Washington, Santa Clara and Las Vegas. Next, prepare a handbook for journalists on covering the courts, which is to be translated into Albanian and Serbian. The bottom line is that Kosovo, which became a nation in 2008, is experiencing many of the growing pains of a new Democracy. Its challenges are remarkably similar to those faced by a young United States of America in the late 18th Century. The country just decided that libel should be a civil rather than a criminal matter, and journalists struggle with objectivity and accuracy. The courts are just becoming comfortable with allowing journalists, particularly TV journalists, in the courtroom. The project involved meetings with the chief judge, or high-ranking designee, of every Basic Court in Kosovo. Basic Courts are more or less like our federal circuits, with no overlay of a state court system. There were also meetings with every major journalist or media owner in the country. About 50 meetings in 33 days, thanks primarily to the tireless staff (notably, Atdhetar Ajvazi and Zamire Kelmendi) of the Kosovo office of the OSCE’s Legal System Monitoring Section or LSMS. Special thanks to my host and LSMS section chief Ralph Bunche, who carries with great dignity the name of his Nobel prize-winning grandfather, while quietly extending the family legacy of making the world a better and safer place. Now on to this edition, which is packed with useful information. We re-publish our most-requested article, a Summary Guide for Judges on the First Amendment. Every footnote was checked and updated as of September 2013, making it an invaluable and current reference for every judge who faces a First Amendment or courtsand-media issue.

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Letter from the Editor (continued) Also, Dr. Christina Locke Faubel takes us beyond the “Cameras in the Courtroom” debate to look at the use of electronic devices as tools to cover the courts. Is Tweeting the functional equivalent of broadcasting under the federal rules? Can a judge ban the sending of 140-character messages on his own motion if the jurisdiction is silent on the matter? Should he? Judge Clay Land, a thoughtful federal judge from the Middle District of Georgia has at least twice wrestled with this dilemma. He is referenced by Dr. Faubel in connection with the 2009 case of U.S. v. Shelnutt. However, the issue is so “cutting edge” that following production of the Faubel article (but before we went to press), the same issue re-emerged in Judge Land’s courtroom – raised by the same reporter. In 2009 Judge Land disallowed Tweeting from his courtroom; in 2013, he gave the reporter the OK. And what about the age-old debate on cameras? Is it time that the federal courts caught up with the technological realities of our day and allowed cameras? Kosovo does. Finally, a jury charge for the modern age. We share side-by-side the modern model jury admonition developed by our author, Judge Dennis Sweeney in a previous edition of the Journal, and the admonition of the American College of Trial Lawyers, developed by an All-Star cast of legal scholars on behalf of the ACTL. We welcome your feedback at courtsandmedia@unr.edu or bholden@unr.edu.

Ben Holden Associate Professor, Reynolds School of Journalism and Director, National Center for Courts and Media

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Authors Christina Locke Faubel  (How Technology is Changing the Way Journalists Cover the Courts) is a law clerk to a U.S. Magistrate Judge. She holds a Ph.D. in Media Law & Policy and a J.D. from the University of Florida. She previously worked in private practice and served as interim assistant director of the Brechner Center for Freedom of Information at the University of Florida. She intends to enter academia upon completion of her clerkship and continue her research in the areas of news gathering, freedom of information, and the First Amendment.

Eric P. Robinson  (“Summary Guide to the Courts and Media: A Basic Guide for Judges”) is the co-director of the Press Law and Democracy Project at Louisiana State University’s Manship School of Mass Communication. He was formerly the Deputy Director of the Donald W. Reynolds National Center for the Courts and Media. He was also a Staff Attorney at the Media Law Resource Center, and previously worked at the Reporters Committee for Freedom of the Press and in staff positions for federal, state and local elected officials. He has written articles for various professional and academic publications and at www.bloglawonline.com.

Dennis M. Sweeney  (Model Social Media Jury Admonition with Short Form Version, and Worlds Collide: The Digital Native Enters the Jury Box, The Reynolds Courts and Media Law Journal Volume 1, Issue 2), served for 17 years as a trial judge on Maryland’s Circuit Court, handling a variety of civil and criminal matters. Since retiring from the bench in 2007, Judge Sweeney has continued to preside as a recalled judge (a retired judge approved for recall for temporary service) over cases in in Baltimore City and Howard, Montgomery, Anne Arundel, and Carroll counties, Maryland; this included a series of high-profile political corruption cases in Baltimore City involving various city officials and real estate developers. He also currently serves as a private mediator or arbitrator with JAMS, as a mediator for the Maryland Court of Special Appeals Mediation Pilot Program, and as an Alternate Land Commissioner for the U.S. District Court for the District of Maryland. He also writes a monthly column on jury trials for the Maryland Daily Record legal newspaper, ansd continues as chair of the Jury Use and Management Committee of the Maryland Judiciary. Prior to joining the bench, Judge Sweeney served as an assistant federal public defender and in various positions with the Baltimore Legal Aid Bureau, Inc., and the Maryland Attorney General’s office. He has received numerous awards, including being named as among the 2010 “Influential Marylanders” by the Daily Record.

Summary Guide to the Courts and Media: A Basic Guide for Judges  was shepardized and updated by Katheryn Yetter (Academic Director at the National Judicial College), Irene Hart and Christal Keegan (Program Attorneys at the National Judicial College):

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Authors (continued) Irene Q. Hart  joined The National Judicial College in August 2013 as a program attorney. Prior to joining the NJC, Ms. Hart worked primarily as a bankruptcy attorney with the law firm of Laub and Laub where she assisted clients in filing Chapter 7 and Chapter 13 bankruptcies, as well as assisting with lien strip and loan modification actions. She also practiced in the area of civil litigation as an insurance defense attorney. Ms. Hart received her bachelor’s degree in biology from the University of Nevada, Reno and Juris Doctor from the Florida Coastal School of Law in Jacksonville, Florida. She is licensed to practice in the state of Nevada and the Federal District Courts of Nevada. She is a member of the Washoe County Bar Association, the Northern Nevada Women Lawyers Association, and the American Bar Association. Ms. Hart volunteers as a clinic presenter and workshop facilitator at Nevada Legal Services where she assists low income and pro se clients with various legal issues.

Christal Park Keegan  joined The National Judicial College in August 2013 as a program attorney. Prior to joining the NJC, she practiced law in Honolulu, Hawaii, at Burke McPheeters Bordner & Estes where she managed an insurance defense caseload focused on medical malpractice, products liability, premises liability, and automobile negligence. Upon moving to Reno in 2013, she practiced law at Chapman Law Firm, P.C. focusing on real estate, eminent domain, common-interest communities, and general civil litigation. Previously, she was the former Assistant Director of Compliance at The University of Hawaii, Manoa. She received her certification as a facilitator in domestic violence issues in 2009. Ms. Keegan received her bachelor’s degree in economics from San Diego State University, San Diego, California, and Juris Doctor from Vermont Law School, South Royalton, Vermont. She served as editor-in-chief of “The Forum,” Vermont Law School’s newspaper, and was an active member of the Asian Pacific American Law Student Association, Sports and Entertainment Law Society, and Women’s Law Group. Ms. Keegan is a member of the Hawaii State Bar, Nevada State Bar, and American Bar Association. She is licensed to practice law in Nevada and Hawaii, including the United States Court of Appeals for the Ninth Circuit.

Katheryn Yetter  became the academic director for The National Judicial College in 2012. Before joining NJC, she was the senior attorney for the National Council of Juvenile and Family Court Judges. Before that, Ms. Yetter was a policy analyst for the Oregon Judicial Department in the areas of juvenile, criminal, and family law. Ms. Yetter co-authored the publication A Judicial Guide to Child Safety in Custody Cases, the first national comprehensive tool for judicial decision making in custody and visitation cases when domestic violence is a factor. Other publications include Moving Beyond “Failure to Protect” in West Virginia (2010), Judicial Decision Making in Custody and Visitation Cases (2008), Responding to Allegations of Parental Alienation Syndrome (2008), and Data Warehouse “JOIN’s” Oregon’s Court and Agency Systems (2006). She has written curricula and given presentations on behalf of the National Center for State Courts, the California Administrative Office of Courts, the Oregon Judicial Department, the Nevada Bar Association, the Battered Women’s Justice Project, and Futures Without Violence, among others. She is a member of the Oregon State Bar and the American Bar Association, and is a graduate of Willamette University College of Law and the University of Oregon.

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Cameras in the Courtroom 2.0: How Technology is Changing the Way Journalists Cover the Courts By Christina Locke Faubel

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he “cameras in the courtroom” legal issue has recently expanded to include handheld image dissemination and real-time reporting using cellphones, laptops, and third-party platforms such as Twitter. The judiciary and the press constantly face new legal and ethical issues related to the use of such technology, and this article is one of the first comprehensive scholarly analyses of this legal problem. This article examines the legal status of live-reporting with mobile devices in state and federal courtrooms across the country. Using court opinions, examples of successful live reporting, and existing laws, a snapshot of this evolving and understudied area was created. Taking a practical approach to the research, the article offers a model policy for courts on the use of electronic devices and list of best practices for journalists. The controversy over press access to courtrooms, especially with cameras in tow, pits the right of the press to monitor the halls of justice against the fundamental tenets of fairness that underlie the judicial system.1 High profile cases, such as the criminal trials of O.J. Simpson,2

1. See, e.g., George Gerbner, Cameras on trial: The ‘O.J. Show’ turns the tide, 39 J. Broad. & E lec . M e dia 562 (1995); Trial Secrecy and the First Amendment Right of Public Access to Judicial Proceedings, 91 H arv. L. R ev. 1899 (1978). The First Amendment of the U.S. Constitution guarantees a free press; the Sixth Amendment guarantees a fair trial for criminal defendants. The U.S. Supreme Court has found that the public has a First Amendment right to attend criminal trials. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). 2. Football player and actor O.J. Simpson was tried for the murder of his wife and her friend “through 266 days, 126 witnesses, 20 attorneys, 1105 pieces of evidence, and 45,000 pages of transcript, plus many more episodes kept from the jury as potentially prejudicial, irrelevant, or inflammatory, but all seen by the television audience.” Gerbner, supra note 1. “If there ever was a need to demonstrate that cameras can transform, prolong, and make a travesty of a trial, we had it in the O.J. Simpson Show’s spectacular run for over a year. It has begun to turn the tide that threatened to make high-profile justice a captive of show business,” Gerbner wrote. Id.

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Cameras in the Courtroom 2.0

Casey Anthony,3 and Conrad Murray,4 draw attention to the pros and cons of televised justice. Television coverage can increase public knowledge of the legal system5 and encourage dialogue on matters of public concern.6 But such intense scrutiny can also result in a biased jury and courtroom pandering to the camera.7 Despite the conflict, all state courts permit some sort of electronic coverage of court proceedings.8 The same is not true in federal courts, though, where a longstanding ban on courtroom broadcasting remains in effect, despite continued attempts at injecting some “sunshine” in the federal judiciary.9 Camera technology has changed dramatically over the course of the 20th century, and today anyone can fit a camera capable of broadcasting video coverage in the palm of her hand. This has produced what might be a paradigm shift in the cameras in the courtroom debate, as both print and broadcast journalists have the ability to provide live coverage of legal proceedings. In addition to camera coverage, they can “broadcast” instant written accounts of proceedings from the courtroom, using the internet and platforms such as Twitter or blogs. The dramatic increase in the ability of journalists to expose the inner workings of the courtroom has posed a myriad of new problems to presiding judges. In Florida, for example, an appellate court overturned a trial judge’s decision to ban live blogging from proceedings, ruling that the judge’s application of a two-camera limit rule to laptop technology was incorrect.10 In California, live-blogging helped bridge the gap in coverage when the U.S. Supreme Court blocked a federal district court’s attempt to broadcast arguments in a trial on the constitutionality of the state’s ban on same-sex marriage.11 As technology continues to saturate all levels of society, these incidents will only increase. This article focuses on the expansion of the “cameras in the courtroom” debate to include handheld image dissemination and real-time reporting using cellphones and laptops, often with third-party platforms such as Twitter. The judiciary and the press constantly 3. Florida woman Casey Anthony was tried and acquitted in 2011 of the murder of her 2-year-old daughter. Her trial was broadcast and covered intensely on social media sites. See, e.g., Walter Pacheco, Casey Anthony Trial: Social media revolutionized coverage, O rl a ndo S entinel , July 5, 2011, available at http://articles.orlandosentinel.com/2011-07-05/news/os-casey-anthony-twitterfacebook-20110704_1_casey-anthony-trial-anthony-case-social-media. 4. Dr. Conrad Murray was convicted of involuntary manslaughter in connection with the 2009 death of pop star Michael Jackson. His trial, as well as Casey Anthony’s, was broadcast on HLN. See, e.g., Brian Stelter, For HLN, Trial of Jacksons’s Doctor Is a Chance for More Saturation Coverage, M edia D ecoder (N.Y. Times blog), Sept. 27, 2011, http://mediadecoder.blogs. nytimes.com/2011/09/27/for-hln-trial-of-jacksons-doctor-is-a-chance-for-more-saturationcoverage/?ref=conradmurray. 5. See, e.g., Sandra F. Chance, Considering cameras in the courtroom, 39 J. Broad. & E lec . M edia 555 (1995). 6. Id. 7. See Gerbner, supra note 1. 8. Cameras in the Court: A State-by-State Guide, R adio Television D igital News A ssociation, http:// rtdna.org/article/cameras_in_the_court_a_state_by_state_guide_updated (last visited Sept. 15, 2013). 9. Id. Nearly two decades after the federal courts’ first three-year pilot study of broadcasting from federal courtrooms, the judiciary initiated a second pilot study in 2011. The study will conclude in the summer of 2014. Courts Selected for Federal Cameras in Court Pilot Study, The Third Br a nch , June 2011, http://www.uscourts.gov/News/TheThirdBranch/11-06-01/Courts_Selected_for_Federal_ Cameras_in_Court_Pilot_Study.aspx. 10. Steve Patterson, Appeals court tosses court-blogging order against Jacksonville.com, Jan. 21, 2010. See also Morris Publ’g Co. v. State, 38 Media L. Rep. 1245 (Fla. 1st. Dist. Ct. App. 2010). 11. Jeffrey D. Neuburger, Courts Still Wary About Webcasts, Live-Blogs, Tweets at Trials, PBS.org (Feb. 23, 2010).

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by Christina Locke Faubel

face new legal and ethical issues related to the use of such technology, and this study is one of the first comprehensive scholarly analyses of the law of mobile technology as a live-coverage tool in the courtroom.12 Specifically, this article looks at the use of such technology by journalists to communicate news to the public.13 Part I discusses the history of cameras in the courtroom and the legal foundation that dictates legal reactions to new technologies in the court. Part II presents the current state of the law on mobile technology tools that enable the contemporaneous dissemination of photos and information14 captured by journalists15 in trial courts. Finally, Part III concludes that at this unique juncture in the state of the law, the press has the opportunity to promote increased coverage by educating the courts, promoting model policies on live coverage, and incorporating best practices for coverage.

I. Camer as

in the C ourtroom he debate over whether to allow cameras in the courtroom dates back as early as 1917, when photographic coverage of a trial was prohibited by the Illinois Supreme Court.16 But it was the aftermath of the 1935 trial of Bruno Hauptmann, accused of kidnapping and murdering aviator Charles Lindbergh’s young son, that marked a strong shift in attitudes towards cameras in the court.17 Media coverage of the trial was intense, with almost 700 journalists covering the trial in Flemington, New Jersey.18 The chaos inside the courtroom and on the courthouse steps was perhaps prompted more by the notorious pre-trial publicity surrounding the case and the sheer number of observers rather than

T

12. See also Cathy Packer, Should Courtroom Observers Be Allowed to Use Their Smartphones and Computers in Court? An Examination of the Arguments, 36 Am. J. Trial Advoc. 573 (2013); Stacy Blasiola, Say “Cheese!” Cameras and Bloggers in Wisconsin’s Courtrooms, 1 Reynolds Cts. & Media L.J. 197, 207 (2011); Adriana C. Cervantes, Note, Will Twitter be Following You in the Courtroom? Why Reporters Should be Allowed to Broadcast During Courtroom Proceedings, 33 Hastings Comm. & Ent. L.J. 133 (2010); Matthew E. Feinberg, The Prop 8 Decision and Courtroom Drama in the YouTube Age: Why Camera Use Should be Permitted in Courtrooms During High Profile Civil Cases, 17 Cardozo J.L. & Gender 33 (2010); Jordan K. Schwarz, Comment, Local District Court Rule Does Not Provide Judge Authority to Order “Narrowcast” of Motion Hearing – In re Sony BMG Music Entertainment, 564 F. 3d 1 (1st Cir. 2009), 43 Suffolk U. L. REV. 787, 795-96 (2010). 13. The use of Web 2.0 technologies by judges, attorneys, jurors, and spectators is beyond the scope of this paper. Journalist use of these technologies is unique because they are not participants in the legal process and so do not have the restrictions inherent in being a judge, attorney, juror, or party. However, unlike mere spectators, journalists have the power to widely disseminate information in a way that can influence public perception of specific proceedings and the legal system as a whole. See Tony Mauro, Are judges using Facebook?, Nat’l L.J., Aug. 31, 2010; Julie Kay, Vetting jurors via MySpace, Nat’l L.J., Aug. 11, 2008; Dr. Genelle I. Belmas, That’s What “Friend” is For? Judges, Social Networks and Standards for Recusal, Reynolds Cts. & Media L.J. Vol. 1, Iss. 2 269 (2011), Vol. 2, Iss. 3 297 (2012) (discussing state standards for prohibiting or discouraging judges from Facebook activity). 14. For the purposes of this study, mobile technology is defined as the various portable electronic devices that permit wireless transmission of text, images, audio, or video. Examples include smartphones, laptops, netbooks, and tablet computers. 15. Defining who is a journalist has become increasingly problematic as the internet has given a voice to many non-traditional and individual sources. For the purposes of this study, a journalist is defined as a person engaged in information with the intent to disseminate it to the public. This includes members of the traditional press as well as nontraditional news gatherers who publish online. 16. Susanna Barber, News Cameras in the Courtroom: A Free Press – Fair Trial Debate 1 (1987). 17. Id. at 2-3. 18. Id. at 4.

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the mere presence of cameras.19 Still, following Hauptmann’s guilty verdict, the American Bar Association (ABA) convened a special committee to analyze the case. The head of the committee, former Minnesota Supreme Court Justice Oscar Hallam, remarked: “There never was a case that lent itself to greater temptation to lurid or excessive publicity, never a case more provocative of trial out of court, never a case beset with greater menace of disorderly procedure.”20 In 1937, the ABA In 1937, ABA Canon 35 of passed Canon 35 of its Canons of Professionits Professional and Judicial al and Judicial Ethics, which called for a ban Ethics called for a ban on both on both photography and radio broadcasts in photography and radio broadcasts the courtroom. The Canon was later updated to specifically ban television cameras.21

... later updated to specifically ban television cameras.

While the ABA Canons are not laws (the ABA is a private, non-profit organization of attorneys), they are influential and were observed by some, but not all courts.22 As television became a staple in American households, camera coverage increased. In 1956, Colorado was the first state to allow cameras in the courtroom on a permanent basis, giving the trial court judge ultimate discretion but still allowing jurors or witnesses to object to coverage.23 But in 1965, the ABA’s views were bolstered by the U.S. Supreme Court, 24 which in Estes v. Texas ruled that a businessman’s constitutional rights were denied due to camera coverage.25 Billy Sol Estes was a Texas grain dealer accused of swindling farmers into buying nonexistent fertilizer equipment.26 The trial court denied Estes’ motion to exclude broadcast coverage of the trial. During the two-day hearing on the motion (and a motion for continuance, which was granted): [T]he picture presented was not one of that judicial serenity and calm to which petitioner was entitled. Indeed, at least 12 cameramen were engaged in the courtroom throughout the hearing taking motion and still pictures and televising the proceedings. Cables and wires were snaked across the courtroom floor, three microphones were on the judge’s bench and others were beamed at the jury box and the counsel table. It is conceded that the activities of the television crews and news photographers led to considerable disruption of the hearings.27

19. Id. at 7. 20. Id. at 8 (quoting Oscar Hallam, Some Object Lessons on Publicity in Criminal Trials, 24 Minn. L. Rev. 453, 454 (1940). 21. Id. at 9. 22. Id. at 10. 23. Id. at 12. 24. Id. at 14 (citing Estes v. Texas, 381 U.S. 532 (1965)). 25. Estes v. Texas, 381 U.S. 532 (1965). See also Marshall v. United States, 360 U.S. 310 (1959) (granting new trial after juror exposure to defendant’s prior felony convictions); Irvin v. Dowd, 366 U.S. 717 (1961) (granting new trial where the “build-up of prejudice” prior to trial violated defendant’s Sixth Amendment rights); Rideau v. Louisiana, 373 U.S. 723 (1963) (granting new trial where “interview” with police wherein defendant confessed was aired on television); Sheppard v. Maxwell, 384 U.S. 333 (1966) (granting new trial where trial judge did not take alternative measures to ensure fairness); Skilling v. United States, 130 S. Ct. 2896 (2010) (denying new trial where defendant failed to show a presumption of juror prejudice and a large city permitted a diverse jury pool). 26. Estes, 381 U.S. at 535. 27. Id. at 536.

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At the trial, live broadcasts were actually prohibited, with the exception of opening and closing arguments and the return of the jury verdict.28 In ruling whether cameras impaired Estes’ right to a fair trial, the Court stated that televised proceedings do not contribute to ascertaining the truth and instead “amounts to the injection of an irrelevant factor into court proceedings.”29 Televised proceedings could bias and distract jurors, impair the quality of witness testimony, distract the judge, and harass the defendant.30 A 5-4 Court held that Estes’ due process rights were violated, with four of the five Justices in the majority declaring that the mere presence of cameras was an inherent violation of his rights. The Court did leave open the possibility that technological advances could change the analysis, noting that “the ever-advancing techniques of public communication and the adjustment of the public to its presence may bring about a change in the effect of telecasting upon the fairness of criminal trials.”31 As cameras became more common and less intrusive, states became more receptive to allowing them in courtrooms. In the mid-1970s, during the aftermath of the Watergate scandal,32 the press began to lobby for increased electronic coverage of court proceedings.33 At the same time, many states began experimenting with cameras in the courtroom. Florida initiated a yearlong pilot program in 1977, making it “[o]ne of the forerunners in the fight to gain electronic access to courtrooms.”34 Florida was a leader in the movement to allow cameras in the courts not only by way of its pilot program and the groundbreaking access it permitted thereafter, but also because it was a Florida case that led to the U.S. Supreme Court’s ruling that cameras in the courtroom were not inherently a violation of a defendant’s right to a fair trial.35 In Chandler v. Florida, the defendants argued that the broadcast of their trial against their objections violated their rights to a fair trial.36 The defendants were Miami Beach police officers arrested for burglary.37 Less than three of minutes of the trial were broadcast. The officers appealed their convictions, alleging that television coverage deprived them of a fair trial.38 The Court, in a unanimous decision, noted that in Estes, only four justices ruled that cam 28. Id. at 537. 29. Id. at 544. 30. Id. at 545-49. 31. Id. at 551-52. 32. In 1973, the major networks pooled their resources to air 37 days of hearings before Congress in the Watergate Scandal (a political scandal involving criminal conduct in the White House that led to President Richard Nixon’s impeachment). The major networks, at great expense, aired more than 300 hours of the coverage. A scholar described the coverage as “unprecedented in length, scope, and cost” and paling in comparison to previous coverage of Congressional hearings. Millions of Americans tuned in for gavel-to-gavel coverage of the Senate Judiciary Committee’s hearings. See, e.g., Michael J. Robinson, The Impact of the Televised Watergate Hearings, 24 J. Communication, Issue 2 (June 1974). 33. Dean Emeritus of the University of Florida College of Journalism and Communications Ralph Lowenstein recalled these efforts in a 2000 interview: “Florida is one of the most liberal states in the United States, one of the most open states. We have what is called the Sunshine Law, which not only [requires] open meetings but really open records as well. Florida was actually the first to get cameras in the courtroom. That happened after I came, and people worked with FSNE and the Florida Association of Broadcasters on that.” Interview with Ralph Lowenstein (Aug. 30, 2000), Samuel Proctor Oral History Collection, University of Florida, available at www.ufdc.ufl.edu. 34. Barber, supra note 16, at 20. 35. Chandler v. Florida, 449 U.S. 560 (1981). 36. Id. at 568. 37. Id. at 567. 38. Id.

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eras were per se unconstitutional. The Chandler Court held that states were permitted to experiment with cameras in the courtroom: An absolute constitutional ban on broadcast coverage of trials cannot be justified simply because there is a danger that, in some cases, prejudicial broadcast accounts of pretrial and trial events may impair the ability of jurors to decide the issue of guilt or innocence uninfluenced by extraneous matters. The risk of juror prejudice in some cases does not justify an absolute ban on news coverage of trials by the printed media; so also the risk of such prejudice does not warrant an absolute constitutional ban on all broadcast coverage. A case attracts a high level of public attention because of its intrinsic interest to the public and the manner of reporting the event. The risk of juror prejudice is present in any publication of a trial, but the appropriate safeguard against such prejudice is the defendant’s right to demonstrate that the media’s coverage of his case--be it printed or broadcast--compromised the ability of the particular jury that heard the case to adjudicate fairly.39

Chandler was decided in 1981, with the Court noting that increases in technology made cameras less intrusive and less distracting than ever before.40 After that ruling, states (and the American Bar Association) began a trend away from the general ban on cameras in the courtroom that existed for the previous forty years.41 In 1982, the ABA changed its position on cameras, favoring discretion for news camera coverage to be exercised by each state’s high court rather than a blanket ban.42 Shortly after the Chandler decision, many states made experimental coverage permanent, and states with no coverage initiated pilot programs.43

The State of the Law Today Through changing attitudes of courts, states, and the ABA, cameras have now become commonplace in state courtrooms. The law governing camera access to state courts varies from state to state and comes in the form of statutes and judicial rules. Judicial rules (sometimes called canons) are functionally the same as statutes but are often developed and adopted by the judiciary, not the legislature.44 The Radio Television Digital News Association (RTDNA) maintains a website that links to each state’s law on camera access to courts.45 Until recently, RTDNA categorized the laws into three “tiers.”46 Tier I states allow the most coverage.47 Florida is a Tier I state; its rule allows exclusion of electronic media only if a “qualitative difference” between electronic media and other forms of coverage is demonstrated.48 Prohibition of coverage of important cases or large categories of witnesses are the hallmarks of RTDNA’s Tier II states, such as Virginia. Virginia law prohibits electronic

39. Id. at 574-75. 40. Id. 41. See supra notes 16-34. 42. Barber, supra note 16, at 19. 43. Barber, supra note 16, at 17-19. 44. See Rulemaking and Administrative Orders, National Center for State Courts, http://www.ncsc.org/ Topics/Court-Management/Rulemaking-and-Administrative-Orders/Resource-Guide.aspx (last visited Sept. 15, 2013). 45. Cameras in the Court: A State-by-State Guide, Radio Television Digital News Association, http:// rtdna.org/article/cameras_in_the_court_a_state_by_state_guide_updated (last visited Sept. 15, 2013). 46. In the newest version of its cameras in the court guide issued in November 2012, RTDNA did not categorize the states into tiers. However, the tiers and their descriptions are still helpful in getting oriented to the area of law and for that reason are still described in this section. 47. Id. 48. Id. See also Fla. Rule. J. Admin. 2.170; Florida v. Palm Beach Newspapers, 395 So. 2d 544 (1981).

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coverage of, among other types of cases, sexual offense trials.49 Finally, Tier III states allow appellate coverage only or their rules are so restrictive that trial coverage is virtually impossible.50 In Alabama, for example, coverage is permitted only if all parties agree; even then, if a witness, juror, attorney, or party to the case objects, the camera coverage must stop.51 In addition to statutes, rules, and canons, case law also comprises the “access law” governing a particular proceeding. Each state has its own body of court decisions interpreting the applicable statute, rule, or canon.52 At the federal level, cameras are not allowed in trial courts.53 Federal appellate judges are given discretion to allow cameras, but only two U.S. Courts of Appeal, the Second and Ninth Circuits, have permitted coverage of oral arguments.54 The U.S. Supreme Court does not permit television coverage of appellate arguments, though it does release audio recordings of oral arguments.55 In the 1990s, federal courts conducted a three-year experiment with cameras in the courtroom.56 Even though judges participating in the experiment supported its continuation and research by the federal judiciary dispelled many concerns expressed by judges, federal judges declined to allow cameras in federal courts. The predominant concerns of judges with allowing coverage were “the potential for cameras to intimidate witnesses and jurors,” despite research to the contrary.57 Judges were also concerned with the soundbites used in broadcasts.58 These concerns have persisted. In October 2009, a federal trial judge was reprimanded for allowing cameras in his court.59 In his memorandum reprimanding the lower court 49. Va. Code Ann. § 19.2-266 (1992). 50. Cameras in the Court: A State-by-State Guide, Radio Television Digital News Association, http:// rtdna.org/article/cameras_in_the_court_a_state_by_state_guide_updated (last visited Sept. 15, 2013). 51. Id. See also Canon 3A(7), 3A(7A), and 3A(7B), Ala. Canons of Judicial Ethics, Ala. Code § Vol. 23A (Rules of Alabama Supreme Court). 52. Cameras in the Court: A State-by-State Guide, Radio Television Digital News Association, http:// rtdna.org/article/cameras_in_the_court_a_state_by_state_guide_updated (last visited Sept. 15, 2013). 53. Federal Rule of Criminal Procedure 53 expressly prohibits broadcast coverage in criminal proceedings, and the National Judicial Conference’s official policy also prohibits broadcast coverage of civil proceedings. History of Cameras in the Federal Courts, United States Courts, http://www.uscourts.gov/ Multimedia/Cameras/history.aspx. 54. Cameras in Courts, United States Courts, http://www.uscourts.gov/Multimedia/Cameras.aspx. 55. Since the Bush v. Gore case in 2000, the U.S. Supreme Court will release oral recordings on the same day in certain high profile cases. Ahnalese Rushmann, Supreme Court grants rare access to oral arguments audio, Reporters Committee for Freedom of the Press, Apr. 21, 2009, available at http:// www.rcfp.org/newsitems/index.php?i=10719. See also Robert L. Brown, Just a Matter of Time? Video Cameras at the United States Supreme Court and the State Supreme Courts, 9 J. App. Prac. & Process 1 (2007); Bruce G. Peabody, “Supreme Court TV”: Televising the Least Accountable Branch? 33 J. Legis. 144 (2007); Bruce D. Collins, C-SPAN’S Long and Winding Road to a Still Un-Televised Supreme Court, 106 Mich. L. Rev. First Impressions 12 (2007); Eric B. Easton, The Press as an Interest Group: Mainstream Media in the United States Supreme Court, 14 UCLA Ent. L. Rev. 247 (2007). 56. See Sandra F. Chance, Considering cameras in the courtroom, 39 J. Broad. & Elec. Media 555 (1995). See also Michael T. Martinez, Cameras in the Courts: A Case for Increased Judicial Transparency, Paper Presented at the American Journalism Historians Conference, Oct. 7-11, 2009, Birmingham, Ala. (examining both sides of the debate regarding the federal judiciary’s 1991-1994 experiment with cameras in the courtroom). 57. Chance, supra note 5. 58. Chance, supra note 5. 59. Rory Eastburg, Judge reprimanded for allowing cameras in courtroom, News Media Update, available at http://www.rcfp.org/newsitems/index.php?i=11052.

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judge, Judge Frank Easterbrook wrote that “The role of cameras in the courtroom is a subject of ongoing debate in the legislative and judicial branches, and among members of the public.”60 This debate continues, and in 2011 the federal judiciary launched another trial program to study cameras in the courts, set to run to 2014.61

II. L aw

of Mobile Technology in the C ourts t is on the foundation of the diverse body of law discussed in the previous section that the courts rely upon in order to resolve disputes arising from the introduction of newer, mobile technologies into courtrooms. Part II offers a snapshot of the current landscape of the law of mobile technologies in the courts—an emerging area of the law that is constantly changing both as the disputes arise and as technology changes. It is worth noting that this area of the law is somewhat unique in that the relevant rules, policies, and statutes that may have a great impact on the media’s ability to report using mobile technology may have been written from an entirely different perspective—to prevent disruption by the various noises that these devices make. The potential for disruption has increased as most people carry at least a cellphone on their person at all times. The relevant policies identified below are a mix of general electronic device policies and policies geared specifically toward the media’s use of electronic devices, though the analysis focuses on the effect of policies on journalists.

I

A. State Law The law of mobile technology in the courts as garnered from legal databases, scholarly literature, and secondary sources is categorized by state. If a pertinent, broadly applicable law or a court decision was not identified, that state was omitted.62 The omission of a state does not mean, however, that individual courts do not have their own policies on individual policies; a collection of individual policies from every court is beyond the scope of this study. Arkansas An Administrative Order of the Arkansas Supreme Court contains a provision specific to mobile electronic devices. The provision, effective in 2010 and applies in all courts, states that: Electronic devices shall not be used in the courtroom to broadcast, record, photograph, e-mail, blog, tweet, text, post, or transmit by any other means except as may be allowed by the court.63

60. Id. 61. The courts participating in the 2011-2014 pilot program are: Middle District of Alabama; Northern District of California; Southern District of Florida; District of Guam; Northern District of Illinois; Southern District of Iowa; District of Kansas; District of Massachusetts; Eastern District of Missouri; District of Nebraska; Northern District of Ohio; Southern District of Ohio; Western District of Tennessee; and Western District of Washington. Courts Selected for Federal Cameras in Court Pilot Study, The Third Branch, June 2011, http://www.uscourts.gov/News/TheThirdBranch/11-06-01/Courts_ Selected_for_Federal_Cameras_in_Court_Pilot_Study.aspx. 62. A review (circa 2013) of the relevant state laws and codes revealed no relevant guidance specific to the use of mobile technology in the courts in these states: Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. 63. Admin. Order, No. 6(d)(7), Arkansas Supreme Court.

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California Many high-profile cases originate in Los Angeles Superior Court, and its Local Rule 2.17 provides that “No one may carry any camera, microphone, or recording equipment, or activate the image or sound capturing feature of any computer, mobile telephone, watch or other similar equipment in a courtroom without express written permission from the appropriate judicial officer.”64 Coverage is also prohibited outside the courtroom—including entrances, exits, hallways, elevators, escalators, and parking garages—unless it occurs in a designated area or with prior permission from a judge. Los Angeles Superior Court also has “Rules Regarding Filming in the Courthouses and in Courtrooms” which warn that the prohibition against coverage in public spaces of the courthouse “applies to all devices capable of capturing images, including cellphones” and violators may be hauled before a judge to immediately face sanctions. In addition, “[i]mages captured will be deleted from the device.”65 While cellphone use in the courtroom is prohibited, laptops may be used, depending upon the judge, but must run on battery power.66 The rules also state that “[h]and-held audio recorders, pda’s and other electronic devices are not permitted for use in the courtroom unless permission is given to do so.”67 Connecticut The rules of the Superior, Appellate, and Supreme Courts of Connecticut all address the use and possession of electronic devices. In Superior Courts, cellphones and computers can be taken into the courtroom but are not permitted to take photos or video, and personal computers can only be used for note taking.68 In the appellate courts, cellphones, laptops, and other electronic devices can be taken into the courtroom but cannot be used to photograph, record, or broadcast.69

State v. K omisarjevsky The issue of new technology as a reporting tool in Connecticut came to a head in the triple-homicide trial of Joshua Komisarjevsky.70 The New Haven case stemmed from the July 2007 kidnapping and murders of 48-year-old Jennifer Hawke-Petit and her two daughters, ages 17 and 11, at their home. Two parolees were arrested shortly after fleeing the home, which had been set on fire. Joshua Komisarjevsky and Steven J. Hayes were arrested on July 23, 2007 and charged with capital murder in connection with the deaths.71 The pair was tried separately, and it was Komisarjevsky’s 2011 trial that prompted a ruling on Twitter in the courtroom. 64. Local Rule 2.17, Los Angeles Superior Court. 65. Rules Regarding Filming in the Courthouses and in Courtrooms, Los Angeles Superior Court, available at http://www.lasuperiorcourt.org/courtnews/Uploads/1420129281042RulesRegardingFilmi ng.htm. 66. Id. 67. Id. See also Standing Order (Photography, Broadcasting and Recording in the Civic Center Courthouse), San Francisco Superior Court (Feb. 2, 2012), available at http://www.sfsuperiorcourt.org/ sites/default/files/pdfs/Media%2BCCC%2BStanding%2BOrder.pdf. 68. The Use and Possession of Electronic Devices in Superior Court Facilities, available at http://www.jud. ct.gov/Publications/ES230.pdf 69. Supreme and Appellate Courts Guidelines for the Possession and Use of Electronic Devices, available at http://www.jud.ct.gov/external/supapp/electronicdevices_supapp.pdf 70. State v. Komisarjevsky, 2011 Conn. Super. LEXIS 403, 39 Media L. Rep. 1727, *1 (Conn. Super. Ct. Feb. 22, 2011). 71. William Glaberson, Death Penalty is Challenged Before a Trial in 3 Killings, N.Y. Times, July 28, 2010, at 19. See also Timeline: Deadly Cheshire Home Invasion, Courant.com, http://www.courant.com/ news/connecticut/hc-petit-cheshire-home-invasion-timeline,0,3135848.htmlstory.

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In addition to the murder charges—of which he was convicted and ultimately sentenced to death—Komisarjevsky was also accused of sexually assaulting one of the victims. Due to the sexual assault charge, Connecticut law prohibited “broadcasting, televising, recording or photographing” the trial.72 The media sought to use Twitter to report from the trial. The defendant responded by filing a motion seeking to prohibit “the use of electronic devices by spectators . . . during the course of all court proceedings.”73 He claimed that Twitter was a form of broadcasting and therefore prohibited by Connecticut law.74 Tracing the origins of the term “broadcast” to its beginning as an agricultural term describing seed being scattered, the trial court declined to extend the categorical prohibition on broadcasting to Twitter.75 It emphasized the caution that courts should demonstrate in extending old legislation to new technologies, suggesting that the rulemaking process would be a more appropriate venue to extend the ban to Twitter and similar technology. It rejected the Defendant’s argument that Twitter reports “tend to be either trivial or inaccurate and thus play no useful role in educating the public about the judicial process,” stating: The short answer to this contention is that control of the substance of courtroom reporting is not an appropriate exercise of the judicial function in a free society. Jurors are routinely instructed to avoid media reports concerning the case. The court should ignore such reports as well. This limited judicial role is recognized throughout the English-speaking world . . . Although the court retains the ability to restrict disruptive activity, the content of electronic or other reporting cannot be considered in making this determination.76

Delaware Policies on personal electronic devices vary among the types of courts and the locations. In Superior Courts in Delaware, cellphones, PDAs, notebooks and any other type of personal electronic devices are prohibited.77 District of Columbia Although Superior Court rules prohibit the use of electronic devices in D.C. courtrooms, “members of the media may be given permission by the presiding judicial officer to use electronic devices in the courtroom for official business.”78 Even with permission, no photographs, recordings, or transmissions are permitted. There may, however, be some opportunities to live-blog at the discretion of the presiding judge.79 Florida While the rules relating to cameras in the courtroom in Florida do not specifically address mobile technology, the law does not preclude it. In fact, Florida has an appellate decision on the issue as well as a high-profile trial that illustrated the utility of mobile technology to journalists.

72. Conn. Practice Book, P.B. § 1-11(b). 73. Komisarjevsky, 2011 Conn. Super. LEXIS 403, *1-2. 74. Id. at *2. 75. Id. at*10. 76. Id. at *11-12 (internal citations and quotations omitted). 77. Superior Court Electronic Device Prohibition, available at http://courts.delaware.gov/superior/jury/ jury_security.stm 78. Admin. Order 11-17, The Possession and Use of Electronic Devices in the Superior Court Courtrooms and Hearing Rooms, Superior Court of the District of Columbia (Nov. 9, 2011), available at http:// www.dccourts.gov/internet/documents/11-17_Possession_and_Use_of_Electronic_Devices.pdf. 79. Journalists’ Handbook to the Courts in the District of Columbia, Council for Court Excellence, available at http://www.dccourts.gov/internet/documents/JournalistsHandbook.pdf.

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Morris P ublishing C o. v. F lorida Despite previous experience in live-blogging from high-profile murder trials, a judge halted the Florida Times-Union’s live courtroom coverage on the second day of a murder trial. Tajuan, Terrell, and Rasheem Dubose faced first-degree murder charges in the death of an 8-year-old girl killed in a drive-by shooting in Jacksonville.80 The 2006 murder was compelling not only for its circumstances—the girl was watching “Cat in the Hat” with her younger cousins and protectively dove on top of them—but also because it was in many ways the “final straw” for a community weary of having the highest murder rate in the state of Florida.81 It was no surprise then, that the live-blog of the trial was popular with readers.82 The blog not only provided updates on …the trial court failed to consider the trial, but had an interactive component less restrictive alternatives when that allowed online users to ask questions it prohibited the reporter from about the proceedings and notify the news83 paper of technical difficulties. blogging and … newsgathering. Times-Union reporter Bridget Murphy live-blogged the trial, sitting in the back of the courtroom near an electrical outlet. On the afternoon of the second day of trial, the presiding judge ordered Murphy and another reporter to leave the courtroom. The judge said the computer was distracting for the jury and violated rules on the number of transmitting devices permitted in a courtroom. The newspaper’s attorneys arrived within the hour and argued that Murphy should be allowed to stay, but the judge denied the request. The newspaper appealed, arguing that the trial court failed to consider less restrictive alternatives when it prohibited the reporter from blogging and engaging in newsgathering, especially in a Florida courtroom that is presumptively open. The Times-Union also argued that the judge’s strict interpretation of Rule 2.450 of the Florida Rules of Judicial Administration as allowing no more than two transmitting devices in courtroom was in error. In its short, unpublished opinion on the matter, the First District Court of Appeal granted the Times-Union’s emergency petition for review in part, quashing the order and remanding to the trial court.84 The First District found that Rule 2.450 “does not apply to the use of laptop computers, regardless of whether the device is used to transmit information outside the courtroom.”85 The trial court did retain the discretion to prohibit any device it found to be disruptive or distractive to the proceedings. Because the trial court initially claimed the laptop was distracting but later issued an order relying on Rule 2.450, the First District sent the issue back to the judge “with directions to allow petitioner’s reporter the use of a laptop computer in the courtroom unless the court finds a specific factual basis to conclude that such use cannot be accommodated without undue distraction or disruption.”86 The trial judge continued the restrictions, resulting in the reporter and a photographer for the newspaper working shifts to cover the trial—they were not permitted to use the camera and laptop at the same time.87 80. Id. 81. Id. 82. Id. 83. Id. 84. Morris Publishing Co. v. State, 2010 Fla. App. LEXIS 20255, 38 Media L. Rep. 1245 (Fla. 1st Dist. Ct. App. 2010). 85. Id. 86. Id. 87. Steve Patterson, Appeals court tosses court-blogging order against Jacksonville.com, Fla. Times-

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Figure 1. Excerpt from the Times-Union’s interactive live blog in the Dubose trial.88

State v. A nthony While the Dubose trial was high-profile in the Jacksonville community, the 2011 trial of Casey Anthony garnered international attention. Anthony was accused of murdering her 2-year-old daughter, and the young Orlando mother’s 36-day trial was one of the most intensely watched in recent history. Coverage of the Anthony trial is remarkable in that despite the throngs of spectators and members of the press, the intense scrutiny, and the high stakes of the trial, there were no major disputes over coverage. The trial was televised, tweeted, live-blogged, and covered in print. Demand for coverage was so great that users of iPhones, iPads, or iPods could download an app to watch a live stream of the trial.89 At one point during the trial, the app was the top seller in iTunes’ “News” app category and ranked 64th overall.90 Coverage of the Anthony trial proceeded under an order governing members of the press.91 The order also incorporated the Ninth Judicial Circuit’s standing order Governing

Union, Jan. 21, 2010, available at http://jacksonville.com/news/metro/2010-01-20/story/appeals_ court_tosses_court_blogging_order_against_jacksonvillecom. However, when one of the brothers was re-tried, Judge Haddock agreed to let the Times-Union blog from the courtroom at all times. Paul Pinkham, Jacksonville judge says T-U can blog from Dubose trial, Fla. Times-Union, Feb. 2, 2010, available at http://jacksonville.com/news/metro/2010-02-02/story/jacksonville_judge_says_t_u_ can_blog_from_dubose_trial. 88. A transcript of the blog is available at http://www.citmedialaw.org/threats/circuit-court-v-floridatimes-union. 89. Sarah Anne Hughes, Casey Anthony trial live stream now available as an app on iPod, iPad, Wash. Post BlogPost, July 1, 2011, http://www.washingtonpost.com/blogs/blogpost/post/casey-anthonytrial-live-stream-now-available-as-an-app/2011/06/30/AG7BtatH_blog.html. 90. Id. The app, developed by Progressive Lifestyles, LLC, billed itself as “The most informative Casey Anthony app available.” iTunes Preview, https://itunes.apple.com/us/app/casey-anthony-trial-livestream/id440967817?mt=8&ls=1. 91. Order Establishing Rules Governing Members of the Media, State v. Anthony, Case No. 48-2008-CF015606-O (Fla. 9th Circuit, Orange County, Florida, May 1, 2011), available at www.ninthcircuit.org/ news/High-Profile-Cases/Anthony/index.shtml.

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Special Interest/High Profile Proceedings.92 The order recognized the changing nature of the media, and for the purposes of issuing media credentials defined “new media” as: An online organization which was a previously established, independent site that contains regularly updated original news content above and beyond links, forums, troubleshooting tips and reader contributions; said content is thoroughly reviewed by an independent editor before publication; has a readership of more than 1,000 hits per month; and has previously covered the judicial branch. Fan sites, web logs and personal web sites do not qualify as “new media.”93

A media committee had previously selected In Session and the Orlando Sentinel to provide the video and still pool feeds for coverage, with no additional cameras permitted in the courtroom.94 The media, but not the public, were permitted “to use their cellphones in the courtroom for sending and receiving written, electronic information only,” with the use of cellphone cameras “absolutely prohibited.”95 Members of the press not seated in designated media seats (available on a first-come, The Orlando Sentinel covered the first-serve basis) were required to adhere to trial … a live chat on its website rules governing the public, which included a and frequent Twitter updates. prohibition on use of cellphones, laptops, or other electronic devices. Only “virtual, silent keyboards” were permitted.96 The Orlando Sentinel covered the trial in a variety of ways, including a live chat on its website and frequent Twitter updates. The live chat on the Orlando Sentinel website featured updates on courtroom events combined with questions and comments by readers. In Figure 2, the reporter explains why a Miranda97 issue did not pose a problem in the case. The live chat was powered by CoveritLive, which describes itself as “the leading live-event publishing platform” and boasts clients such as ESPN, USA Today, the NFL, BBC, ABC, and Mattel.98 The Twitter feed provided periodic updates on courtroom events, often describing interactions between participants and their displays of emotion. According to the Orlando Sentinel, “[s]ocial media sites Twitter and Facebook revolutionized the 36-day Casey Anthony trial by casting a far-reaching net of news across the globe, bringing minute-to-minute updates directly into people’s smartphones, tablets and work and home computers.”99 When Anthony’s controversial “not guilty” verdict was handed down on July 5, 2011, the keywords “casey anthony” were used 34,000 times on Twitter.100 On Google, “caylee anthony” was the third-most searched term in the world.101 92. Ninth Judicial Circuit Court Admin. Order 07-96-10-01, available at www.ninthcircuit.org/news/ High-Profile-Cases/Anthony/index.shtml. 93. Order Establishing Rules Governing Members of the Media, State v. Anthony, Case No. 48-2008-CF015606-O (Fla. 9th Circuit, Orange County, Florida, May 1, 2011), available at www.ninthcircuit.org/ news/High-Profile-Cases/Anthony/index.shtml. 94. Id. 95. Id. 96. Id. 97. In Miranda v. Arizona, 384 U.S. 436 (1966), the U.S. Supreme Court held that criminal suspects in custody must be advised of their constitutional rights against self-incrimination and to a court-appointed attorney prior to interrogation. 98. CoveritLive, www.coveritlive.com (last visited Sept. 15, 2013). 99. Walter Pacheco, Casey Anthony Trial: Social media revolutionized coverage, Orlando Sentinel, July 5, 2011, available at http://articles.orlandosentinel.com/2011-07-05/news/os-casey-anthony-twitterfacebook-20110704_1_casey-anthony-trial-anthony-case-social-media. 100. Id. 101. Id.

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Cameras in the Courtroom 2.0 Figure 2. Excerpt from the Orlando Sentinel’s live chat during the Anthony trial.102

Hawaii Hawaii’s rules on cameras in the courtroom expressly permit anyone— including non-media members of the public—to seek permission to “tape record” proceedings. The person must use “a small, handheld recorder with a built-in microphone and operated from the seat of the person who made the request.”103 Maine A statewide administrative order requires that cellphones, computers, and other electronic devices be turned off in the courtroom. Devices with cameras that are not authorized for use could be subject to confiscation.104

Michigan Use of electronic devices in Michigan courtrooms is governed by Michigan Court Rule 8.115, which authorizes individual court facilities to determine policies outside the courtroom and the chief judge to determine policies inside the courtroom. The chief judge’s policy is subject to the following conditions: [N]o photographs may be taken inside any courtroom without permission of the court. The policy regarding the use of cellphones or other portable electronic communication devices shall be posted in a conspicuous location outside and inside each courtroom. Failure to comply with this section or with the policy established by the chief judge may result in a fine, including confiscation of the device, incarceration, or both for contempt of court.105

Nevada Portable electronic devices such as cellphones and laptops can be used if a judge permits it. If a member of the press wants to use a portable electronic device to record or broadcast proceedings, he would need to go through the same procedures set forth for traditional cameras. Electronic devices can be used in the courtroom to transmit and receive data communications (presumably covering live-blogging, tweeting, etc.) but not for phone calls.106 102. Image associated with “Dorothy Famiano” has been obscured by the author of this article. 103. Rule 5.2(a)(2), Rules of the Supreme Court of the State of Hawaii. 104. Admin. Order JB-05-16 (A. 5-08), Use of Cellular Phones, Pagers, Computers, and Other Electronic Devices in Courthouses, available at http://www.courts.state.me.us/rules_adminorders/adminorders/ JB-05-16%20(A.%205-08)%20Cell%20Phones.pdf. 105. Mich. Court Rule 8.115, Courtroom Decorum; Policy Regarding Use of Cellphones or Other Portable Electronic Communications Devices, available at http://courts.michigan.gov/Courts/ MichiganSupremeCourt/CurrentCourtRules/1Chapter8AdministrativeRulesofCourt.pdf. 106. Part IV (Rules 229-246), Rules on Electronic Coverage of Court Proceedings, Nevada Supreme Court

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New Hampshire Cellphones, laptops and other portable electronic devices can be carried in New Hampshire courtrooms but must be put on silent mode. Photographic or recording capabilities in electronic devices can be used with prior permission.107 Pennsylvania While there is no statewide policy directly addressing electronic devices in courtrooms, the practice does occur.108 The high-profile trial of Jerry Sandusky, a former Pennsylvania State University assistant football coach who was convicted in 2012 of dozens of counts of molesting children, is a good example of how a trial judge struggled with the new technology in the courtroom.109

C ommonwealth v. Sandusky The trial of Gerald “Jerry” Sandusky in Centre County, Pennsylvania, was covered intensely by the press, as the nation wondered if the one-time beloved football coach and founder of a charity for underprivileged children would be convicted of molesting 10 children.110 The Sandusky investigation also resulted in criminal charges against Penn State officials for covering up earlier allegations, the firing of head coach Joe Paterno in 2011, and the vacating of all of Penn State’s wins from 1998 through 2011.111 Sandusky, 68 at the time of the trial, was convicted and sentenced to 30-60 years in prison.112 Cameras are not permitted in Pennsylvania criminal proceedings (and only in limited civil proceedings),113 so the media looked to text-based transmissions such as live-blogging and Twitter to provide real-time coverage. Presiding Judge John Cleland issued a decorum order governing jury selection and trial on May 30, 2012, wherein members of the public were prohibited from bringing in electronic devices, but: Only reporters with proper credentials, as determined by the Sheriff, will be permitted to possess or use in Courtroom 1 or the satellite courtroom any cellphone, laptop computer, smart phone, or similar electronic device. Such devices may be used during trial for electronic based communications. However, the devices may not be used to take or transmit photographs in Courtroom 1 or the satellite courtroom; or to record or broadcast any verbatim account of the proceedings while court is in session.114 Rules, available at http://www.leg.state.nv.us/Division/Legal/LawLibrary/CourtRules/SCR.html. 107. Order, New Hampshire Supreme Court (Jan. 11, 2008), available at http://www.courts.state.nh.us/ supreme/orders/order011108.pdf. 108. In a June 4, 2012 order, Judge Cleland, who presided over the Sandusky trial, wrote that “several other Pennsylvania trial judges” had permitted the use of mobile technology in the courtroom. Commonwealth v. Sandusky, Case No. CP-14-CR-2421-2011 and CP-14-CR-2422-2011, Memorandum and Order (Court of Common Pleas of Centre County, June 4, 2012), available at http://centrecountypa. gov/index.aspx?NID=506. See also Derrick Nunnally, No tweeting in court? Pa. reexamining law that protects trials but impedes news, Philadelphia Inquirer, Jun. 27, 2010.; Brad Bumsted, Judge won’t ban courtroom ‘tweets’ during Veon trial, Pittsburgh Tribune-Review, Jan. 26, 2010. 109. See generally, Jerry Sandusky: Recent Developments, N.Y. Times, Oct. 9, 2012, http://topics.nytimes. com/top/reference/timestopics/people/s/jerry_sandusky/index.html?8qa (last visited Jan. 3. 2013). 110. Id. 111. Id. 112. Id. 113. Canon 3A(7), Penn. Code of Judicial Conduct; Section 11, Internal Operating Procedures of the Supreme Court; Rule 112, Publicity, Broadcasting, and Recording of Proceeding, Penn. R. Crim. Proc. (prohibiting coverage). 114. Commonwealth v. Sandusky, Case No. CP-14-CR-2421-2011 and CP-14-CR-2422-2011, Memorandum and Order (Court of Common Pleas of Centre County, June 4, 2012), available at http:// centrecountypa.gov/index.aspx?NID=506. (emphasis in original).

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The prohibition on sending out “any verbatim account of the proceedings” raised concerns among members of the press, who questioned whether the language of the decorum order permitted direct quotations in their courtroom dispatches.115 As a result, several media entities moved to intervene for the limited purpose of seeking clarification of the decorum order.116 The media intervenors argued that they understood the provision only prohibited transmitting photos, audio, and video, but they were advised by a court administrator that the order barred the press from using direct quotations in text-based reports sent from inside the courtroom.117 The media argued that the administrator’s interpretation was inconsistent with the order, which permitted direct quotations on its face, and that other reasons warranted unrestricted transmissions of direct quotes.118 A prohibition on direct quotes would result in less accurate coverage, impose an impractical burden on reporters, and would be unconstitutional, the media argued in its motion.119 Furthermore, direct quotes published during the trial would not prejudice any interest at stake in the trial or impede the judicial process.120 Judge Cleland ultimately decided to relieve the press of the burdens of a restriction on sending direct quotations from the courtroom, albeit not in the way the press intended.121 In response to the motion for clarification, Judge Cleland still allowed credentialed reporters to have electronic devices in the courtroom, but with the following restriction: Such devices shall not be used during trial for electronic based communications, and shall not be set in a mode that permits transmission of any form of communication to any person or device either in or out of the Courthouse or Courthouse Annex.122

As the proceedings moved forward, reporters would be able to use devices as “tools of the trade,” presumably for note-taking purposes, but not as tools to provide real-time coverage.123 In explaining the change, Judge Cleland first explained how he came to the initial 115. Commonwealth v. Sandusky, Case No. CP-14-CR-2421-2011 and CP-14-CR-2422-2011, Expedited Motion to Intervene and to Clarify Decorum Order, (Court of Common Pleas of Centre County, June 1, 2012), available at http://centrecountypa.gov/index.aspx?NID=506 . 116. Id. The media entities were: ABC, Inc. (on behalf of WPVI-TV); Advanced Publications, Inc. (publisher of the Harrisburg Patriot-News), The Associated Press, CNN, The Daily Collegian, Dow Jones & Company, inc. (publisher of The Wall Street Journal), ESPN, NBCUniversal, Inc. (on behalf of WCAU-TV), The New York Times Co. (publisher of The New York Times), Philadelphia Media Network, Inc. (publisher of the Philadelphia Inquirer); The Scranton Times, L.P. (on behalf of The Citizen’s Voice and Standard-Speaker) and Tribune Company (on behalf of The Morning Call). Id. 117. Id. 118. Id. 119. Id. In discussing the difficulties of implementing a restriction on direct quotations, the media wrote: Would a 140-character tweet that contains a single sentence from a witnesses’ testimony be considered a “verbatim account”? Would a blog that contains a quoted phrase from a lawyer’s question cross the line? Would an email from a reporter that uses the single word “overruled” after Your Honor rules on an evidentiary objection, or “yes” or “no” in quoting a response to a question be prohibited? There is simply no workable way for reporters to avoid using any direct quotes in their text-based reports, and there is no clear line that can be drawn to inform them about what is permissible and what is prohibited, which will possibly subject them to serious sanctions. 120. Id. 121. Commonwealth v. Sandusky, Case No. CP-14-CR-2421-2011 and CP-14-CR-2422-2011, Memorandum and Order, (Court of Common Pleas of Centre County, June 4, 2012), available at http:// centrecountypa.gov/index.aspx?NID=506. 122. Commonwealth v. Sandusky, Case No. CP-14-CR-2421-2011 and CP-14-CR-2422-2011, Order, (Court of Common Pleas of Centre County, June 4, 2012), available at http://centrecountypa.gov/index. aspx?NID=506. (emphasis in original). 123. In his order directing that the decorum order be amended, Judge Cleland wrote that the order “shall

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conclusion that text-based, non-verbatim reports would be permitted under Pennsylvania law. 124 He explained that he initially interpreted the controlling authority—Rule 112 of the Pennsylvania Rules of Criminal Procedure and Canon 3(7) of the Pennsylvania Code of Judicial Conduct—to permit courtroom updates. Judge Cleland reasoned that tweets and texts were not equivalent to the “broadcasting” prohibited by the law “as long as the communication did not include a verbatim report.”125 He also pointed to a report by the Criminal Procedural Rules Committee that described these communications as a misinterpretation of the Rule, writing that: Permitting reports from the courtroom while court is in session did not, in my view, constitute “broadcasting” as long as the reports did not contain simultaneous verbatim quotations. It is readily apparent from the allegations in the Media’s motion, however, that the standard I applied in my definition is confusing to reporters, unworkable, and therefore, likely unenforceable. If reporters are permitted to electronically transmit reports from the courtroom while court is in session and which contain verbatim accounts of the proceedings, it cannot be considered anything other than exactly the kind of broadcasting explicitly prohibited by the Rule. Therefore, based on the Media’s own arguments, I am compelled to rescind paragraph 7 of the Decorum Order. While I will permit reporters to bring their electronic “tools of the trade” into Courtroom 1 and the satellite courtroom, they must not be in a mode that permits transmission of any form of communication to any person or device either in or out of the Courthouse or Courthouse Annex.126

While real-time coverage of the Sandusky trial ultimately failed to occur, the issues surrounding Judge Cleland’s initial willingness to push the limits of the controlling authority and his reaction to the media’s pushback are highly illustrative of the obstacles posed by the application of current law to new technology.127 Rhode Island Cellphone use is strictly prohibited in Rhode Island courtrooms. This includes the use of cellphones for audio recording, video recording, or photography. Courthouse rules also prohibit any type of photographic or audio-visual equipment other than that contemplated by the state’s other rules regarding coverage (which limit one television camera per trial court).128

be amended to specifically provide that while credentialed reporters admitted to Courtroom 1 or the satellite courtroom may possess and use specified electronic devices as ‘tools of the trade’ such devices shall not be set in a mode that permits transmission of any form of communication to any person or device either in or out of the Courthouse or Courthouse Annex.” Commonwealth v. Sandusky, Case No. CP-14-CR-2421-2011 and CP-14-CR-2422-2011, Memorandum and Order, (Court of Common Pleas of Centre County, June 4, 2012), available at http://centrecountypa.gov/index.aspx?NID=506. 124. Id. 125. Id. 126. Id. See also National Center for State Courts, Proposed rules changes in Pennsylvania address tweeting in court, Connected, Feb. 2012, http://www.ncsc.org/newsroom/connected.aspx (last visited Sept. 15, 2013). The rules committee proposed changes that would prohibit the “transmission of communications” using cellphones, computers, or tablets during court proceedings. Id. 127. See generally Barry Petchesky, Twitter Banned From Jerry Sandusky Trial, Which Starts Next Week, Deadspin, June 4, 2012, http://deadspin.com/5915574/twitter-banned-from-jerry-sandusky-trialwhich-starts-next-week. 128. Art. VII, Media Coverage of Judicial Proceedings, Rhode Island Supreme Court Rules, available at http://www.courts.ri.gov/Courts/SupremeCourt/Supreme%20Court%20Rules/Supreme-RulesArticle7.pdf; Rhode Island Courthouse Rules, available at http://www.courts.ri.gov/PublicResources/ PDF/Court_House_Rules.pdf.

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Utah Utah’s new rule governing electronic coverage in courtrooms, effective April 1, 2013, addresses portable electronic devices. Their use in courtrooms is allowed if done so quietly, and the rule appears to permit live-blogging and tweeting without additional permissions. However, requests to use the portable electronic device to record or transmit images or sound must be made 24 hours in advance and subject to approval by the presiding judge. The rule allows the judge to further restrict usage of electronic devices, but encourages them “not to impose further restrictions unless use of a portable electronic device might interfere with the administration of justice, disrupt the proceedings, pose any threat to safety or security, compromise the integrity of the proceedings, or threaten the interests of a minor.”129 Vermont Electronic devices can be carried into Vermont courthouses but must be powered off before the person enters the courtroom. The judge may grant permission, however, to use the devices in the courtroom. Image recording or photographing capabilities in electronic devices can be used only the subject consents to being photographed or recorded.130

B. Federal Law Despite the federal judiciary’s history of being less open to coverage than state courts, there is fairly significant case law in the area of mobile technology in the federal courts. This case law evolved in the context of Rule 53 of the Federal Rules of Criminal Procedure, which prohibits broadcasting, as well as the Judicial Conference’s general prohibition on coverage in civil trials. Accordingly, live blogging and tweeting simultaneous coverage of federal proceedings offers a new and unique opportunity to cover this part of the judiciary.131

P ublished Feder al Opinions In re Sony BMG Music Entertainment: Webcasting a Motion Hearing When record companies sued individuals who downloaded songs for free, a consolidated set of the lawsuits were heard in the District of Massachusetts. In December 2008, defendant Joel Tenenbaum moved the court to allow the webcast of a non-evidentiary motions hearing. Courtroom View Network would record and transmit the proceedings to a Harvard Law School site,132 and from there the proceedings would be streamed to the general public. Despite the objections of the record companies, District Court

129. Rule 4.401.02, Possession and Use of Portable Electronic Devices, (effective April 1, 2013), proposed rule is available at http://www.utcourts.gov/resources/rules/comments/2012-08/CJA04-0401.02. pdf. See also Final Report: Judicial Council Study Committee on Technology Brought into the Courtroom, Utah State Courts, April 10, 2012, available at http://www.rcfp.org/sites/default/files/ docs/20120501_130338_utah_camerasreport.pdf. 130. Admin. Directive No. 28, Electronic Devices in a Courthouse, Vermont Supreme Court, October 2008, available at http://www.vermontjudiciary.org/MasterDocument/AdministrativeDirectiveNo28electr onicdevicesincourthouse.pdf. 131. Charles D. Tobin, Federal Courts Greet TV, Blogs and Tweets With Mixed Enthusiasm, Holland & Knight Media & Comm. Newsletter, January/February 2010, at p. 4, available at http://www.hklaw.com/ publications/Federal-Courts-Greet-TV-Blogs-and-Tweets-With-Mixed-Enthusiasm-01-20-2010/. 132. By way of Harvard’s Berkman Center for Internet and Society. For an overview of the case, see Anthony R. McClure, First Circuit Rejects Webcasting of Civil Hearing, Litigation News, June 25, 2009, available at http://apps.americanbar.org/litigation/litigationnews/top_stories/first-circuit-sonywebcasting.html.

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Judge Nancy Gertner granted the motion.133 In response, the record companies asked the First Circuit Court of Appeals to intervene, arguing that the district court’s local rule prohibited the webcasting,134 as did the stated policy of the Judicial Conference of the United States.135 The First Circuit recognized that it must address a question of first impression: “does a federal district judge have the authority to permit gavel-to-gavel webcasting of a hearing in a civil case?”136 The court started its analysis by looking at the disThe Court determined the narrow trict court’s Local Rule 83.3, which prohibited recording or broadcasting “[e]xcept as interpretation of the local rule specifically provided in these rules or by was “strongly supported” by the order of the court.”137 Judge Gertner granted Tenenbaum’s motion for coverage based Judicial Conference of the United on this proviso, interpreting “by order of States’ policy on broadcasting. the court” as a discretionary catchall provision that permitted an ad hoc, case-specific determination of whether broadcasting should be permitted. The First Circuit rejected Judge Gertner’s interpretation. The Court reasoned that if that interpretation, based on subsection (a) of Rule 83.3, were allowed to persist, that subsection (c) of the same Rule would be rendered “wholly superfluous.”138 Subsection (c) only permits photography, recording, and broadcasting to preserve evidence, perpetuate the record, or in connection with investitive, ceremonial, or naturalization proceedings.139 The Court also determined that the narrow interpretation of the local rule was “strongly supported” by the Judicial Conference of the United States’ policy on broadcasting. A second source of support was found in the archives of the First Circuit Judicial Council, which in 1996—in response to the urging of the Judicial Conference—passed a resolution “to continue to bar the taking of photographs and radio and television coverage of proceedings in the United States district courts within the circuit, except as otherwise provided for ceremonial occasions.”140 The Court held that the local rule, Judicial Conference Policy, and the circuit council resolution, “[s]eparately and collectively . . . undermine the district judge’s assertion of authority to allow webcasting.”141 In a concurring opinion, Circuit Judge Lipez wrote that “the inescapable legal conclusion does not discredit the policy concerns that animated, at least in part, the district court decisions.”142 Judge Lipez noted the importance of public access to court proceedings, and recommended that the rule, policy, and resolution all be promptly reexamined in light of “new technological capabilities [that] provide an unprecedented opportunity to increase public access to the judicial system in appropriate circumstances.”143

133. Capitol Records, Inc. v. Alaujan, 593 F. Supp. 2d 319 (D. Mass. 2009). 134. At issue was Local Rule 83.3 for the U.S. District Court for the District of Massachusetts. 135. In re Sony BMG Music Entertainment, 564 F.3d 1 (1st Cir. 2009). 136. Id. at 2. 137. Id. at Appendix A; Local Rule 83.3, Photographing, Recording and Broadcasting, U.S. District Court for District of Massachusetts Local Rules. 138. Id. at 5. 139. Id. at Appendix A. 140. Id. at Appendix C. 141. Id. at 8. 142. Id. at 10-11 (Lipez, J., concurring). 143. Id. at 11-12.

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Hollingsworth v. Perry: Streaming of the Proposition 8 Civil Trial A dispute over streaming coverage of civil trial proceedings made its way to the U.S. Supreme Court, which prohibited the coverage on other grounds but still took the opportunity to voice concerns about cameras and technology in the court. The case, Hollingsworth v. Perry, originated in the Northern District of California, where two same-sex couples challenged the constitutionality of Proposition 8, an amendment to the California Constitution that restricted the recognition of marriage to opposite-sex couples.144 The amendment was adopted in 2008 and in 2009 became the subject of a federal lawsuit.145 The District Court issued an order allowing the nonjury trial to be broadcast live by way of streaming audio and video.146 The order was made possible by an amendment to the local rules that occurred shortly before trial.147 The live broadcast would not be on the internet but rather to viewing areas in federal courthouses around the country.148 The defendants challenged the streaming, “arguing that the District Court violated a federal statute by promulgating the amendment to its local Rule without sufficient opportunity for notice and comment and that the public broadcast would be violate their due process rights to a fair and impartial trial.”149 The Ninth Circuit denied the defendants’ bid to block the streaming of the trial, so the defendants requested that the U.S. Supreme Court stay the order permitting streaming. The Supreme Court, in a per curiam opinion, began its discussion of the case by noting that it would not “express any views of the propriety of broadcasting court proceedings generally” but would instead confine its review the “narrow legal issue” of whether the District Court complied with federal law in amending its local rules.150 The Court concluded that it had not, and instead “attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district.”151 In discussing the importance of notice and the opportunity for public comment on the broadcasting rule changes, the Court emphasized the irreparable harm that could come to trial participants: The trial will involve various witnesses, including members of same-sex couples; academics, who apparently will discuss gender issues and gender equality, as well as family structures; and those who participated in the campaign leading to the adoption of Proposition 8. This Court has recognized that witness testimony may be chilled if broadcast. See Estes v. Texas, 381 U.S. 532, 547 (1965); id., at 591 (Harlan, J., concurring). Some of applicants’ witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment. These concerns are not diminished by the fact that some of the applicants’ witnesses are compensated expert witnesses. There are qualitative differences between making public appearances regarding an issue and having one’s testimony broadcast throughout the country . . . And witnesses subject to harassment as a result of broadcast of their testimony might be less likely to cooperate in any future proceedings.152

Justice Breyer, joined by Justices Stevens, Ginsburg, and Sotomayor, authored a dissent, arguing that there was in fact adequate notice and opportunity for public comment on the 144. Hollingsworth v. Perry, 558 U.S. 183, 184 (2010). 145. Id. at 185. 146. Id. at 184. 147. Id. 148. Id. 149. Id. 150. Id. 151. Id. 152. Id.

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rule changes. Justice Breyer also rejected the Court’s conclusion that defendants and witnesses would suffer irreparable harm if the broadcasts took place, noting that “[n]either the applicants nor anyone else ‘has been able to establish that the mere presence of the broadcast media inherently has an adverse effect on [the judicial] process.’”153 Justice Breyer also rejected the Court’s claim that witnesses would be irreparably harmed, especially where the witnesses had not asked the Court to set aside the District Court’s order and were “already publicly identified with their cause” and had appeared on television or internet broadcasts.154 Justice Breyer noted that the broadcasts would only be delivered to five other courtrooms, coverage which paled in comparison to the hundred of news outlets already covering the trial.155

United States v. Shelnutt: Tweet Coverage of a Federal Criminal Trial In United States v. Shelnutt, decided in 2009, a reporter for the Columbus Ledger-Enquirer in Columbus, Georgia, requested to use his cellphone during the criminal trial of an attorney accused of laundering money from a drug organization. The reporter wanted to send tweets directly from the courtroom.156 The court refused the reporter’s request, finding that Rule 53 of the Federal Rules of Criminal Procedure, which prohibits “broadcasting” from criminal proceedings, did not permit it. The court took a broad view of the term broadcasting, pointing out that the word also meant “casting or scattering in all directions” and “the act of making widely known.” “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,” the opinion stated.157 The court also looked to the legislative history of Rule 53, finding that drafters intended to take a broad view of the term and the technology it covered. A footnote to the opinion pointed out that due to the media interest in the case, a “media room” would be available during the trial. The room would offer members of the press the opportunity to “use their electronic reporting devices near but outside of the courtroom.”158

Instances of Permitted Electronic Coverage in Federal Courts In Re Sony, Hollingsworth, and Shelnutt illustrate instances where federal courts rejected various types of live coverage. In Re Sony and Hollingsworth both involved trial court judges who were open to the idea and higher courts who disapproved the plans based on court rules. However, the cases discussed below illustrate cases where federal district court judges successfully experimented with live coverage from federal courts, finding a way to reconcile Rule 53 with the requests of modern journalists to use mobile technology in the courts.

153. Id. (Breyer, J., dissenting) (citing Chandler v. Florida, 449 U.S. 560, 57879 (1981) and M. Cohn & D. Dow, Cameras in the Courtroom: Television and the Pursuit of Justice 62-64 (1998) (canvassing studies, none of which found harm, and one of which found that witnesses “who faced an obvious camera, provided answers that were more correct, lengthier and more detailed.”)). 154. Id. 155. Id. 156. United States v. Shelnutt, 2009 U.S. Dist. LEXIS 101427, 2009 WL 3681827 (M.D. Ga. Nov. 2, 2009). 157. Id. The Court described Twitter and its process as: “Twitter is a social networking and micro-blogging service that invites its users to answer the question: “What are you doing?” Twitter’s users can send and read electronic messages known as ‘tweets.’ A tweet is a short text post (up to 140 characters) delivered through Internet or phone-based text systems to the author’s subscriber.” Id. 158. Id. at n. 2.

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United States v. Libby (D.D.C.) One of the earliest forays into live-blogging in federal courts occurred in the 2007 trial of I. Lewis “Scooter” Libby for perjury and obstruction of justice. Libby was former Vice President Dick Cheney’s Chief of Staff and was indicted for allegedly lying to government agents and a grand jury during an investigation of the leak of covert CIA agent Valerie Plame Wilson’s identity. 159 Libby was indicted in 2005 and went to trial in early 2007. For the first time in federal court, two of the 100 seats in the federal courthouse reserved for the press were reserved for bloggers. The press credentials were the result of lengthy efforts by the Media Bloggers Association. 160 While the bloggers weren’t able to live-blog directly from the courtroom, they were able to watch video of the proceedings and make blog posts in a nearby room.161

Figure 3. Feb. 20, 2007 screenshot from firedoglake.com’s live blogging at the Libby trial. Available at http://firedoglake.com/2007/02/20/libby-live-zeidenbergs-prosecutionsummation-two.

United States v. Nacchio (D. Colo.) Live coverage was permitted in the trial of Joseph Nacchio, former CEO of telecommunications company Qwest, who was indicted on 42 counts of illegal insider trading.162 Nacchio went to trial in March 2007, before Judge Edward Nottingham in the District of Colorado. Real-time coverage was permitted from jury selection through the 20-day trial

159. The Washington Post maintains a special section on its website dedicated the Plame investigation. Background on the Plame Investigation, Wash. Post, http://www.washingtonpost.com/wp-dyn/ content/linkset/2005/09/29/LI2005092901976.html (last visited Sept. 15, 2013). 160. Alan Sipress, Too Casual to Sit on Press Row? Wash. Post, Jan. 11, 2007, available at http://www. washingtonpost.com/wp-dyn/content/article/2007/01/10/AR2007011002424.html. 161. Thomas Pierce, Bloggers Join Frenzy at Media-Saturated Libby Trial, NPR, Feb. 1, 2007, available at http://www.npr.org/templates/story/story.php?storyId=7098188. 162. United States v. Nacchio, Case No. 05-cr-00545-EWN (D. Colo.). Full coverage of the case can be found at the Denver Post’s site: http://www.denverpost.com/nacchio.

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and sentencing.163 In addition to coverage by newspapers the Denver Post and the Rocky Mountain News, other organizations also live-blogged from the courtroom. TheRacetotheBottom.org, a collaboration of students and faculty at the University of Denver Sturm College of Law, provided real-time coverage of the trial.164 Jeralyn Merritt, a Denver criminal defense attorney and author of the blog TalkLeft: The Politics of Crime, also live-blogged the proceedings for Denver magazine 5280.165 Earlier in the year, Merritt had also blogged from the Libby trial in Washington, D.C.166 Figure 4. Screenshot from the

TheRacetotheBottom.org blog during the

Nacchio trial.

United States v. Miell (N.D. Iowa) A “tech-savvy judge in a district with hightech courtrooms” offered Cedar Rapids Gazette reporter Trish Mehaffey the perfect opportunity to try her hand at posting live blog updates from a trial in January 2009. 167 The judge was Judge Mark Bennett of the Northern District of Iowa in Sioux City, and the trial was that of a local landlord, Robert Miell, accused of tax fraud.168 Mehaffey emailed Judge Bennett for permission to use a laptop in the courtroom to post live updates. Judge Bennett granted permission for the reporter to live-blog, on the condition she sit farther back in the courtroom so her typing would not create a distraction.169

163. See Dave Kopel, Kopel: Internet humming with Nacchio trial coverage, Rocky Mountain News, Mar. 24, 2007, available at http://m.rockymountainnews.com/news/2007/mar/24/bkopelb-internethumming-with-nacchio-trial/. 164. J. Robert Brown, Jr. Blogging the Nacchio Trial, Harvard Law School Forum on Corporate Governance and Financial Regulation, Mar. 16, 2007, http://blogs.law.harvard.edu/corpgov/2007/03/16/ blogging-the-nacchio-trial/. 165. Jeralyn Merritt, Praise for our Live-Blogging on Nacchio Trial, 5280.com, Mar. 25, 2007, http:// www.5280.com/blogs/2007/03/25/praise-our-live-blogging-nacchio-trial. 166. Id. 167. Debra Cassens Weiss, Judge Explains Why He Allowed Reporter to Live Blog Federal Criminal Trial, ABA Journal, Jan. 16, 2009, available at http://www.abajournal.com/news/article/bloggers_cover_ us_trials_of_accused_terrorists_cheney_aide_and_iowa_landlor/. See also United States v. Miell, Case No. CR07-101-MWB (N.D. Iowa). 168. Weiss, supra. Mehaffey was also allowed to live-blog during hearings in the same case before Chief Magistrate Judge Paul Zoss, under the same terms as Judge Bennett. Live-Blogging and Tweeting From Court: Experiences from the Field, Citizen Media Law Project, http://www.citmedialaw.org (last visited Sept. 15, 2013). 169. Weiss, supra. Bennett’s “tech-savvy” status stemmed from his daily reading of blogs, willingness as practicing attorney to pay an “outrageously expensive” amount to make his small firm the first in the state to have desktop computers, and his status as the first federal judge to have an email address.

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Mehaffey viewed the coverage as a reflection of changes in the newspaper industry.170 “Times are changing, and it’s all about the digital industry. It’s a way for us to meet the demands of our readers,” she told the ABA Journal. 171 The defendant’s attorney didn’t find the coverage disruptive but was concerned about jurors accessing Mehaffey’s subjective analysis during the trial.172 For his part, Judge Bennett thought the scales tipped in favor of transparency: “I thought the public’s right to know what goes on in federal court and the transparency that would be given the proceedings by live-blogging outweighed any potential prejudice to the defendant,” Judge Bennett told the ABA Journal.173 Figure 5. Screenshot of Mehaffey’s live coverage of sentencing.

United States v. Fumo (E.D. Pa.) When Philadelphia politician Vincent Fumo, a former Democratic state senator, went on trial for corruption in October 2008, it provided the perfect opportunity for The Philadelphia Inquirer to live-blog a trial.174 The paper used the CoveritLive platform as well as Twitter.175 Judge Ronald Buckwalter presided over the four-month trial, which resulted in convictions on all 137 counts, and OK’d the live-blogging. “Cameras are not allowed in federal courtrooms, so this was the closest thing to ‘live’ coverage that anyone could offer,” reporter Bob Moran, who covered the trial for The Inquirer, told the Knight Digital Media Center.176 During jury deliberations, one of the jurors made posts to Facebook and Twitter, including: “Stay tuned for a big announcement on Monday everyone!”177 Fumo’s attorneys moved to remove the juror and halt the deliberations, which had been ongoing for the previous two weeks. As the judge and parties met to determine what would happen as a result of the posts, the cause of the chaos—Twitter—also became the solution for reporter Moran as he was forced to stay on the move while the situation was being resolved. Moran posted updates on Twitter from his cellphone, and when the jury returned to the court-

170. Id. 171. Id. 172. Id. 173. Id. 174. United States v. Fumo, Case No. 06-319 (E.D. Pa.). 175. Coverage is available at http://www.philly.com/philly/news/special_packages/inquirer/fumo/ 176. Michele McClellan, In Philly, trial by Twitter, News Leadership 3.0 (Knight Digital Media Center blog), Mar. 17, 2009, http://archive.knightdigitalmediacenter.org/leadership_blog/comments/in_philly_ twittering_a_trial/ 177. Id.

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room to deliver the verdict, Fumo switched back to live-blogging on CoveritLive.178 Chris Krewson, executive editor of online news for The Inquirer, later wrote that the “live blog provided us with an edge in posting this type of news that other local media could not match. While nearly every TV station broadcast news of the verdict shortly after we did, Moran’s rolling updates were far superior to every other report available.”179 In fact, a television news anchor was spotted outside the courthouse reading the live blog on camera, noting that it came from philly. com.180 Editor Krewson concluded that philly. com’s “users were hooked” and that Twitter helped the newsroom break a story.181 Figure 6. Screenshot of Moran’s live coverage—via blog and Twitter— showing that deliberations resumed at 10:41 a.m. and by 11:27 a.m., a verdict had been reached.

United States v. Harris et al. (D. Kan.) One of the earliest print reporters to seize the opportunity to provide live updates from the courtroom via Twitter was Ron Sylvester of the Wichita Eagle in Kansas.182 Prior to the early 2009 trial of six “Crips” gang members on racketeering charges in Kansas federal court, Sylvester had already been using Twitter for more than a year to cover state court proceedings.183 When he asked District Judge J. Thomas Marten for permission to use Twitter during the trial, Judge Marten obliged. Although some attorneys were concerned that jurors might read Sylvester’s posts, Judge Marten noted that jurors are always admonished to avoid newspaper, broadcast, and online reports, and “[y]ou either trust your jurors to live with the admonishment or you don’t.”184 Among Sylvester’s tweets sent from his cellphone: “Judge Marten is talking to reluctant witness in chambers with a court reporter transcribing the conversation.” “The witness who was yelling in the hallway earlier has not returned to the courthouse.” “Defendants are chatting and laughing among themselves.” “Exhibits are shown electronically. Every juror has a monitor in the box. There is a monitor at each lawyer’s table and one for the gallery.”185

178. Id. 179. Id. 180. Id. 181. Id. 182. www.twitter.com/rsylvester. Sylvester is currently a gaming reporter at the Las Vegas Sun. 183. As Witnesses Sing, Journo’s Twitter Tweets, The Associated Press, Mar. 6, 2009, available at http:// www.cbsnews.com/stories/2009/03/06/tech/main4847895.shtml?source=related_story. 184. Id. 185. Id.

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Judge Marten, who Sylvester described on his blog as “tech-savvy,” led efforts to update the federal courthouse in Wichita to include wireless internet connections in courtrooms.186 “The more we can do to open the process to the public, the greater the public understanding – the more legitimacy the public system will have in the eyes of the public,” Marten told The Associated Press.187 Sylvester was one of the first reporters on the legal beat to adopt Twitter as a standard tool for courtroom reporting. “If you say no to tweeting, you might as well say no reporting allowed,” Sylvester told News Media and the Law in 2011.188 “I come from the industry formerly known as newspapers. All my life we were a second day news source and people would get their breaking news from broadcast. But now (Twitter) puts all news organizations on equal footing,” he added.189

United States v. White (W.D. Va.) Just as Sylvester sought unprecedented access to federal court in Kansas, Laurence Hammack of The Roanoke Times broke new ground with his coverage of the trial of William White.190 White, leader of a Roanoke neo-Nazi group, spent eight days on trial in federal court for a campaign of racial harassment against people from Virginia Beach to Canada. He was eventually convicted of four of the seven charges against him. The Roanoke Times sought special permission from Judge James Turk of the Western District of Virginia to use an Internet-connected netbook and cellphone in the courtroom.191 Judge Turk granted the request, and the result was a blog dedicated to the trial, which contained several daily updates on the proceedings. Though the initial plan was to blog directly from the courtroom, technical issues apparently resulted in a different process, where Hammack emailed reports to the newsroom and they were then posted to the blog, usually within a few minutes. The same newsroom producer would then tweet the posts.192 The newspaper was happy with the end result of the coverage, despite technical difficulties, and acknowledged that “it would not have been possible without Judge Turk’s gracious approval.”193

III. C onclusion

T

he purpose of this article was to examine the current state of reporting in real-time from courtrooms using mobile technology. What at one time was a “cameras in the courtroom” debate reserved for broadcast journalists has become a broader issue as the traditional classifications of news outlets are blurred by digital convergence. Most current laws were written before the widespread adaptation of technologies such as Twitter, Face 186. Ron Sylvester, Federal judge says ‘Twitter is on,’ What the Judge Ate for Breakfast (blog), Feb. 23, 2009, available at http://blogs.kansas.com/courts/2009/02/23/federal-judge-says-twitter-is-on/. 187. As Witnesses Sing, Journo’s Twitter Tweets, The Associated Press, Mar. 6, 2009, available at http:// www.cbsnews.com/stories/2009/03/06/tech/main4847895.shtml?source=related_story. 188. Nicole Lozare, More reporters tweeting from courtroom, The News Media and the Law, Fall 2011, at p. 6, available at http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-andlaw-fall-2011/more-reporters-tweeting-court. 189. Id. 190. United States v. White, Case No. 7:08-CR-00054 (W.D. Va.). 191. Jordan Fifer, Approach to trial coverage a first for The Roanoke Times, From the newsroom (blog), Dec. 22, 2009, http://blogs.roanoke.com/newsroom/2009/12/22/approach-to-trial-coverage-afirst-for-the-roanoke-times/. 192. Id. 193. Id. See also Laurence Hammack, Jury finds White guilty on 4 counts, Roanoke Times, Dec. 19, 2009, available at http://ww2.roanoke.com/news/roanoke/wb/230282/.

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book, smartphones, and blogs. The laws were written with television cameras and radio stations in mind, not iPads and live chats. As a result, when a dispute arises over reporting in the courtroom using mobile devices, judges are often forced to reconcile old laws with new technology. This process itself can create new law in the form of a written opinion. This area of the law is new enough that comprehensive analysis is scant. This article seeks to fill the gap in the literature by presenting a thorough examination of the law of mobile technology in the courtroom—as used by the press—in the 50 states and at the federal level. Overall, only a handful of states have statewide laws or rules specific to the use of mobile electronic devices.194 In federal courts, policies on reporting from the courtroom vary widely, and often hinge on the presiding judge’s openness to the practice and her interpretation of the existing rules. There are three written decisions from federal courts, and in all three, live coverage has been denied.195 Despite those three federal cases where live coverage was not permitted, there have been several instances of reporters successfully covering federal criminal trials using mobile technology.196 In analyzing the current state of the law on mobile technology and press coverage from the courtroom, it is clear that there is little guiding precedent on the matter. As a result, trial judges are forced to interpret old rules and apply them to new technologies. If the judge is familiar with technology and open to the coverage, he can often justify allowing text-based transmissions from the courtroom, crafting an interpretation of existing law that would permit the practice. However, if a judge is cautious of the practice and takes a more conservative approach to interpreting existing law, a case can just as easily made against allowing live coverage from the courtroom, especially where the coverage would be prohibited if a traditional camera were involved. Accordingly, the uncertain state of the law in this area is a double-edged sword. It leaves plenty of leeway for judges to push the envelope but can also cultivate a fear of the unknown that might lead to a blanket ban on mobile technology. Either way, in the absence of a clear statutory mandate, these judges have the power to craft the law through their inherent powers to control the courtroom.

Model Court Policy In light of the transitional nature of this area of the law and the power judges have over its development, a pre-existing court policy is one way to ensure a more uniform application of standards. A model court policy is one that would fairly take into account the variety of competing interests at play, which include: the media’s interest in providing coverage in as timely a manner as possible; the public’s interest in receiving information about the judicial system; the parties’ interest in a fair legal proceeding; and the judge’s interest in maintaining order and decorum in the court. The policy below was drafted by the author based on the results of this research and is intended as a guideline for individual courts to adopt and then adapt to any jurisdictional requirements are needed. As fitting with the scope of this article, the policy is limited to the use of electronic devices by journalists in trial courts. A separate, media-specific policy is beneficial because it can: (1) preserve and enhance the media’s ability to cover high-profile cases as they arise; 194. Based on a review of relevant laws circa 2013, he following states have statewide laws or rules specific to the use of mobile technology in courtrooms: Arkansas, Connecticut, Hawaii, Maine, Michigan, Nevada, New Hampshire, Rhode Island, Utah, and Vermont. 195. In re Sony BMG Music Entertainment, 564 F.3d 1 (1st Cir. 2009); Capitol Records, Inc., v. Alaujan, 593 F. Supp. 2d 319 (D. Mass. 2009); Hollingsworth v. Perry, 558 U.S. 183 (2010); United States v. Shelnutt, 2009 U.S. Dist. LEXIS 101427, 2009 WL 3681827 (M.D. Ga. Nov. 2, 2009). 196. United States v. Libby (D.D.C.), United States v. Nacchio (D. Colo.), United States v. Miell (N.D. Iowa), United States v. Fumo (E.D. Pa.), United States v. Harris (D. Kan.), United States v. White (W.D. Va.).

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(2) lessen the risk that a broad ban on electronic devices will also apply to journalists. A separate policy is also appropriate because many of the security and decorum concerns that underlie policies for the general public are less relevant to media use of devices, which is more likely to raise concerns of fairness and publicity that might impact the fairness and integrity of the proceeding. The model policy is as follows:197 Guiding Principles: Transparency in the courts has numerous benefits. It can increase public knowledge of the courts, enhance confidence in the system, and promote more unbiased and truthful proceedings. Transparency also extends the historical tradition of open courts that underlies our legal system. The media plays a key role in exposing the public to the judicial system. Just as technology has changed the way courts operate, it has also influenced the way in which the media disseminates and citizens receive information. Mobile technologies such as smartphones and laptops enable instant, on-demand news, and as the public rapidly adopts these technologies, the media works to supply coverage as quickly as possible. With these factors in mind, the use of mobile technology in this Court is presumptively permitted, subject to the guidelines explained below. However, regardless of any general policy adopted by the Court, a presiding judge has the inherent authority to control activities in his or her courtroom. Accordingly, electronic device usage may be prohibited or restricted at the presiding judge’s discretion where usage might interfere with the integrity of the proceedings, is disruptive, or poses a security threat. Defining Media: New technology has blurred the lines between the traditional news media and regular citizens, as internet access and software make it possible for a single person, with very low overhead, to create content that is available globally. For the purposes of this policy, the Court adopts a broad and adaptable definition of journalist: a person engaged in information gathering with the intent to disseminate it to the public. Credentials are not required to use mobile technology to transmit text-based coverage of court proceedings unless space limitations and demand necessitate pooling or reserved seating. Compliance with Applicable Laws: Nothing in this policy should be construed in contravention to applicable state and federal laws or judicial rules, including this Court’s local rules. Usage Guidelines: Inside courtrooms, members of the media may use electronic devices to takes notes and/or transmit text-based communications without seeking prior permission from the presiding judge or judicial officer. Electronic devices may not be used inside courtrooms to capture or send photos, videos, audio, or any other form of non-text based transmission without prior permission from the presiding judge or judicial officer. Electronic devices must be muted, and their use should be as minimally disruptive as possible. Use of a keyboard specifically designed to minimize noise disruption is highly recommended. Media use of electronic devices outside the courtroom (i.e., lobbies, hallways) is permitted without prior permission. This policy is subject to the discretion of the presiding judge or judicial officer, who may prohibit or restrict the use of electronic devices as part of his or her inherent authority to control activities in the courtroom and adjacent areas.

197. Previous model policies on technology in the courtroom include: Principles and Practices for Electronic Devices, U.S. Court of Appeals for the Ninth Circuit, (Feb. 25, 2010); Model Policy on Access and Use of Electronic Portable Devices in Courthouses and Courtrooms & Memorandum in Support for MLRC’s Model Policy on Electronic Devices, Media Law Resource Center (July 2010).

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Administration of this Policy: The feasibility of using mobile technology in the courts relies upon the quality of the court’s technological infrastructure. Adequate wireless communication capabilities should be maintained for the benefit of not only the media but also the court, litigants, and observers. This policy shall be distributed to all court personnel and displayed prominently in the interior of the courthouse as well as on the Court’s website. Any questions regarding the administration of this policy should be directed to the Court’s Public Information Officer or equivalent administrator. This policy serves as a guide for the courts and the media as they navigate new coverage scenarios. Journalists might consider presenting it to courts which do not currently have such a policy. It is intended to complement the best practices for journalists discussed below, and may be helpful to journalists as they advocate for the right to report live from the courtroom.

Best Practices for Journalists As this study demonstrated, because there is a lack of statutory law directly addressing mobile technology as a live-reporting tool, individual judges’ decisions are where much of the law is currently being made. As such, journalists would be well advised to consider adopting best practices to optimize their chances of being permitted to report live with mobile technology. Even if laws were adopted in all jurisdictions regarding the courtroom use of mobile technology by journalists, judges will still retain the inherent authority to regulate conduct in their courtrooms. As such, one best practice that reporters covering legal affairs should adopt is to attempt to develop a professional relationship, rapport even, with the judges they are likely to encounter on their beat. While judges might be resistant for fear of appearing not impartial, if the judge and reporter are at least acquainted, the lines of communication may be more open. For example, Trish Mehaffey’s coverage of a tax fraud trial in Iowa federal court began when she sent an email to Judge Bennett and asked permission to send live updates from the court. Court personnel, especially public information officers, are more likely to be a first point of contact for journalists. A good working relationship with court personnel can also go a long way toward effecting permission to live-report with electronic devices. In addition to developing relationships with judges and court personnel when possible, journalists should also be prepared to educate them on the issues surrounding live-reporting from the courtroom. To counteract the negative published court opinions, journalists should keep a “portfolio” of instances where live coverage has successfully occurred, locally or elsewhere. This could help assuage any fears judges and court personnel have about coverage, especially if it will be the court’s first experience with the process. The best time to present this “portfolio”—and a model policy if one doesn’t currently apply—would be well before a high-profile event might call for the coverage, before the pressures of a high profile case come into play. If journalists are granted permission to cover proceedings live—especially where it is apparent that the judge may be “pushing the envelope” in order to let the coverage occur—the press should consider informally acknowledging the judge’s actions. The Roanoke Times, for example, recognized the “gracious approval” of Judge Turk in allowing it to live-report the White trial. In contrast, the coverage of the Sandusky trial was curtailed after the press questioned the parameters of the trial judge’s order allowing tweets. In his opinion, Judge Cleland explained that he was already taking a risk with his interpretation of the criminal rule. Rather than turning that leeway into a First Amendment battle, he eventually decided to reverse his original position and prohibit live reporting. R ey nolds C ourts & M edia L aw Jour nal

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A commonsense best practice worth repeating is adhering to the rules as set out by the court regarding usage of mobile technology. These rules might be onerous or even repugnant to the reporter, but while the rules are in place, they must be followed. Journalists should assume that the judge (and parties) will read the coverage at some point, and if anything is out of the scope of coverage, penalties could be imposed or coverage halted. Beyond penalties to the specific reporter or media outlet, the “bad press” that might result from one reporter’s misstep could make judges more hesitant to permit live coverage. Though incidents like that in Kansas—where a mistrial was declared after a reporter tweeted a photo of a juror after the judge had ordered no photos of jurors could be taken—are rare, they can be devastating.198 A related best practice is for journalists to be as minimally disruptive as possible. Even if the rules don’t specifically require it, the use of touchpads or silent keyboards is recommended. The sound on devices should be set to mute. Devices should not require charging while in the courtroom, but if they do, it is advisable to sit near an electrical outlet to avoid having to move locations in the middle of the proceeding. Journalists should be as “self-contained” as possible. While courtrooms might offer wireless connections and plenty of outlets, journalists should prepare for the worst and if possible have an internet connection (by cellphone, for example) and back up devices available. Journalists covering the courts should also consider the feasibility of incorporating a chat function into their live coverage. In this way, the reporter is serving two functions, reporting the events and educating the public. This approach was used in the Dubose murder trial in Jacksonville, the Casey Anthony trial, and the Fumo trial in Philadelphia. Because public education is a value often cited in favor of increased transparency in the courts, journalists who incorporate it into their coverage may find that it helps them gain access to the courts. The ability for reporters to provide real-time coverage from the courtroom with a handheld device has evened the playing field in many ways for those covering the courts. The distinctions between print and broadcast journalism carry less meaning in an era of digital journalism. Accordingly, the cameras in the courtroom debate is no longer only of interest to broadcast journalists. It is an issue that is important for all journalists, and at a time where the law is unclear, there is great opportunity to shape its course through advocacy, responsible reporting, and if necessary, legal challenges. As courts struggle with this uncertainty, consideration of the policies and procedures that will ensure the competing interests are fairly balanced is also important. These policies will also inevitably be developed by individual judges, as they inject their own viewpoints and values into the rules governing their courtrooms. A well-informed and proactive press is key in urging the judiciary to permit live coverage.

198. National Center for State Courts, Kansas journalist tweets juror photo, causes mistrial, Connected, Apr. 2012 reporter for the Topeka Capital-Gazette inadvertently posted a profile photo of a juror to Twitter, resulting in a mistrial in a murder case).

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Timely Updates Have Been Added to This Article Since First Appearing in WINTER / 2011 - Volume 1, Issue 1

Summary Guide to the Courts and Media A Basic Guide for Judges Condensed by Eric P. Robinson, updated by Katheryn Yetter, Irene Hart and Christal Keegan

L

ater this year, the Donald W. Reynolds National Center for Courts and Media will release Bridging the Gap: A Media Law Bench Book for the Third and Fourth Estates, a comprehensive, ready reference to issues such as First Amendment/Sixth Amendment conflicts; gag orders; judges as public figures; planning for high-profile trials; and judicial outreach to the media. The book, produced in cooperation with the National Judicial College and the Conference of Court Public Information Officers, is a collection of explanatory essays by leading First Amendment practitioners and experts meant to be used by judges, journalists and attorneys. While the entire publication will be available soon, this article will provide a short, ready reference guide to these issues.

The News Media: Who A re These P eople , A nyway?1

W

hile the courts and the media have often found themselves in conflict, it is better for them to work together to explain the judiciary’s role in the democratic process, Supreme Court reporter Tony Mauro argues in his kickoff chapter, “The News Media: Who are these people, anyway?” “Judges and journalists are going through rough times, but we are in it for the long haul,” Mauro writes. “The Constitution guarantees that, by assigning us indispensable duties. We may as well walk that journey together, and talk along the way.” and Fair Trials 2 he media assume that the First Amendment-protected freedom of the press gives them the right to report comprehensively on court cases. But an article by Professor M.A. “Mike” Kautsch says that judges have a different attitude, and assume that they have a

Press Freedom

T

1. Condensed from a chapter written by legal and U.S. Supreme Court reporter Tony Mauro. 2. Condensed from a chapter by University of Kansas Professor M.A. “Mike” Kautsch.

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high duty to protect defendants’ Sixth Amendment right to a fair trial, in which jurors are impartial and have not been influenced by prejudicial publicity. In the 1960s, the U.S. Supreme Court handed down two significant rulings re- garding trial judges’ responsibility to protect criminal defendants from prejudicial publicity. In the first case, Estes v. Texas,3 Billy Sol Estes had been convicted of swindling.4 After a Texas appellate court affirmed his conviction, Estes appealed to the U.S. Supreme Court, claiming that his right to due process had been denied because of prejudicial, televised news coverage of his case. In a 5-4 decision, the U.S. Supreme Court reversed Estes’ conviction. Writing for the majority, Justice Tom C. Clark took a firm stand against televised trials, writing that if a judge permits television in the courtroom, it becomes an “ever-present distraction.”5 In a concurring opinion, Justice John M. Harlan said that conditions eventually could change, so that television coverage of trials may “be subject to re-examination in accordance with the traditional workings of the Due Process Clause.”6 In a dissent, Justice Potter Stewart strongly cautioned against taking a hard line against television coverage of court proceedings.7 A year after deciding Estes, the U.S. Supreme Court again looked at trial judges’ responsibility for managing newsworthy trials. In Sheppard v. Maxwell,8 the U.S. Supreme Court found that a trial judge had failed to protect the defendant “from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom.”9 The Court, with a lone dissent, held that defendant Sam Sheppard had not received due process, and ordered a new trial. Justice Clark, again writing for the majority, characterized what happens in a courtroom as “‘public property,’”10 but nevertheless stressed that trial judges are responsible for managing proceedings to protect a defendant’s right to a fair trial. As concern about prejudicial publicity increased, the American Bar Association developed standards for the conduct of trials, first published in 1968, which placed heavy emphasis on “safeguarding the interests of a fair trial.”11 As a result, there was “a dra 3. 381 U.S. 532 (1965). People v. Santiago, 185 Misc.2d 138 (N.Y. Co. Ct. 2000) (New York court held statute barring live media coverage of judicial proceedings violated state constitution.) 4. Id. at.534–5, n. 1. 5. Id. at 548. 6. Id. at 596 (Harlan, J., concurring). 7. Id. at 614 (Stewart, J., dissenting). Justice Stewart said that the record made it “crystal clear” that the trial judge had been in command of the Estes case, id. at 613, and that the trial was a “mundane affair.” Id. at 613–14. He also expressed concern that the majority’s reasoning was “disturbingly alien to the First and Fourteenth Amendments’ guarantees against federal or state interference with the free communication of information and ideas.” Id. at 614. 8. 384 U.S. 333 (1966). Jackson v. Houk, 687 F.3d 723, 729 (6th Cir. 2012) cert. denied, 133 S.Ct. 1243, 185 L.Ed.2d 190 (U.S. 2013) (Court replaced the presumption of prejudice based on pervasive publicity and the need for extensive voir dire in such circumstances with a constitutional rule of deference to the trial judge with regard to voir dire and change of venue in accordance with the current standards established in Mu’Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991).) 9. Id. at 363. 10. Id. at 350 (quoting Craig v. Harney, 331 U. S. 367, 374 (1947)). 11. Criminal Justice Standards Committee, American Bar Association, Criminal Justice Fair Trial and Free Press Standards (3d ed. 1992), Introduction, p. ix, available at http://www.abanet.org/crimjust/ standards/fairtrial.pdf.

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matic rise in the number of broad gag orders issued to enjoin any extrajudicial comment on a pending case.”12 In 1975, a Nebraska judge issued a gag order prohibiting the media from releasing information from a preliminary hearing in the case of a man charged with fatally shooting six members of a Nebraska family. The media appealed, and the Nebraska Supreme Court modified the order by somewhat limiting its scope, but otherwise denied the media’s appeal. In the subsequent appeal, however, the U.S. Supreme Court found in Nebraska Press Association v. Stuart 13 that the gag order was an unconstitutional prior restraint. Writing for the majority, Chief Justice Warren E. Burger indicated that a gag order against the media is unconstitutional unless prejudicial publicity poses a clear and present danger to the fairness of a trial.14 Before issuing a gag order against the media, a trial judge must make “express findings” to support issuance of a gag order against the media.15 The courts also explained that while in general “an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings,”16 there could be an exception to the rule for the media. The U.S. Court of Appeals for the First Circuit, for example, held—both initially and upon rehearing en banc—in 1986 that, under certain conditions, the media could disobey “transparently invalid” restraints.17 Nebraska Press made clear that the judges could rarely, if ever, constitutionally restrain the media from reporting what they learned in open court. Thus, the judges turned to an alternative way to prevent prejudicial publicity, which was simply to close courtrooms to the press and public. Media challenges to this approach resulted in an important series of U.S. Supreme Court decisions.

12. Id. 13. 427 U.S. 539 (1976). Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991) (The speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than the “clear and present danger” of actual prejudice or imminent threat standard established for regulation of the press during pending proceedings.) 14. Id. at 562–63. 15. Id. at 563. In an exceptional and controversial 1990 case, a federal judge issued a temporary restraining order without first strictly meeting the requirements of Nebraska Press. The order restrained CNN from broadcasting a recording of privileged lawyer-client communications. The judge reasoned that the restraint was necessary so that he could determine whether a broadcast of a privileged communication would be prejudicial. See United States v. Noriega, 752 F.Supp. 1032 (S.D.Fla.1990); aff’d, United States v. Noriega, 917 F.2d 1543 (11th Cir.1990), cert. denied, Cable News Network, Inc. v. Noriega, 498 U.S. 976 (1990); see also United States v. Noriega, 752 F.Supp. 1045 (S.D.Fla.1990). 16. U.S. v. United Mine Workers of America, 330 U.S. 258, 293 (1947) (upholding a contempt conviction for disobedience of a restraining order in a labor dispute). 17. In re Providence Journal Co., 820 F.2d 1342, 1344 (1st Cir. 1986), modified on hearing en banc, 820 F.2d 1354 (1st Cir. 1987), prior grant of cert. dismissed for want of jurisdiction, U.S. v. Providence Journal Co., 485 U.S. 693 (1988). Matter of Providence Journal Co., 820 F.2d 1354 (1st Cir. 1987) (Opinion modified: publisher must make good faith effort to seek emergency relief from appellate court and, if timely access to appellate court is not available or if timely decision is not forthcoming, publisher may then proceed to publish and challenge constitutionality of order in contempt proceedings.)

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In a 1979 case, Gannett v. DePasquale,18 a judge closed a pre-trial hearing in a highly publicized murder case. The U.S. Supreme Court upheld the trial judge,19 finding that the media and the public “have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials”20 and that the judge’s determination to close the pre-trial suppression hearing was “consistent with any right of access the [media] may have had under the First and Fourteenth Amendments.”21 But the Court did not treat DePasquale as a controlling precedent a year later in Richmond Newspapers, Inc. v. Virginia,22 when the media objected to closure of another criminal trial. In Richmond Newspapers, Chief Justice Warren E. Burger noted that the issue in DePasquale had been whether a judge constitutionally could close a pre-trial proceeding, as opposed to a trial, and that DePasquale had not addressed whether the First Amendment, as opposed to the Sixth, guaranteed a right of the media and the public to attend trials. Because closure of a trial was directly at issue in Richmond Newspapers, Burger seized the opportunity to declare that “the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted.”23 Burger characterized the courtroom as “a public place where the people generally—and representatives of the media—have a right to be present,”24 and said that the presence of the media and the public “gave assurance that the proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of participants, and decisions based on secret bias or partiality.”25 Judges may close a trial, according to Burger, only if they establish, through findings articulated in the record, that alternatives would not be effective and that there is an “overriding interest” in closure.26 Concurring in the judgment, Justice William J. Brennan said that the First Amendment “embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government.”27 In four subsequent cases between 1982 and 1986, the U.S. Supreme Court further established that criminal proceedings generally would be open to the media and the public. In Globe Newspaper Co. v. Superior Court for Norfolk County,28 the Court struck down a state statute that mandated closure of trials during testimony by minor rape victims. Writing for the majority, Justice Brennan said that trial judges may consider closing trials only on a case-by-case basis. 18. 443 U.S. 368 (1979). No negative direct history but see Footnote 3 19. Id., passim. Justice Potter Stewart wrote the majority opinion, with concurrences by others. Justice Blackmun also filed a partial dissent, however, in which three justices joined, essentially taking the position that the Sixth Amendment protects the media and the public’s interest in attending criminal trials. 20. Id. at 391. 21. Id. at 392. 22. 448 U.S. 555 (1980). No negative direct history but see Footnote 3 23. Id. at 579. 24. Id. at 556. 25. Id. at 569. 26. Id. at 581. 27. Id. at 587 (Brennan, J., concurring). 28. 457 U.S. 596 (1982). Not followed on state law grounds, see Footnote 3.

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Then, in Press-Enterprise Co. v. Superior Court of California, Riverside County (PressEnterprise I),29 the majority opinion by Chief Justice Burger held that the closure of a sixweek-long voir dire in the rape and murder of a teenage girl was “incredible,”30 and said the judge’s order and denial of a transcript were unconstitutional. At the same time, a separate case involving the issue of access to suppression hearings reached the Court. In Waller v. Georgia,31 the Court reversed a judge’s closure of a hearing on a motion to suppress evidence, holding that “under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out” in First Amendment-based precedents, such as Press-Enterprise I.32 The Court also ruled broadly in favor of access to preliminary hearings two years later in Press-Enterprise Co. v. Superior Court of California for Riverside County (Press-Enterprise II).33 A magistrate closed a preliminary hearing in a murder case, “because the case had attracted national publicity and ‘only one side may get reported in the media.’”34 But the Supreme Court held that the closure order was unconstitutional. If the interest asserted is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights.35

Gag Orders against Trial Participants Intense coverage of trials by television and other media appears to have led to an increase in judges’ issuance of gag orders.36 But the First Amendment and the presumption of openness require trial judges to follow procedures with care before issuing gag orders against trial participants. As stated by the Ohio Supreme Court, “a gag order cannot issue unless ‘specific, on the record findings’ are made demonstrating that a gag order is ‘ * * * essential to preserve higher values and is narrowly tailored to serve that interest. * * * ’ If the interest asserted is the right of the accused to a fair trial, the gag order may issue only if “specific findings are made demonstrating that, first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that * * * [the gag order] would prevent and, second, reasonable alternatives * * * cannot adequately protect the defendant’s fair trial rights * * *.”37 29. 464 U.S. 501 (1984). Calder v. I.R.S., 890 F.2d 781 (5th Cir. 1989) (Court refused to extend right of access to other governmentally held information.) 30. Id. at 513. 31. 467 U.S. 39 (1984). Sevencan v. Herbert, 316 F.3d 76 (2nd Cir. 2002) (Exclusion of defendant’s wife from trial did not warrant federal habeas relief.) 32. Id. at 47. 33. 478 U.S. 1 (1986). Called into doubt by United States v. Kravetz, 706 F.3d 47 (1st Cir. 2013) (There is no tradition of access to criminal discovery.) 34. Id. at 4. 35. Id. at 14. 36. Krista Gesaman, In the Dark: With Increased 24-hour News Coverage, Judges Lean on Gag Orders to Keep Publicity in Check, QUILL, Sept. 1, 2006. 37. State, ex rel. National Broadcasting Company, Inc., v. Court of Common Pleas of Lake County, 52 Ohio St.3d 104, 108 (quoting Press-Enterprise I, 464 U.S. at 510; Press-Enterprise II, 478 U.S. at 13–14, and Globe Newspaper Co., 457 U.S. at 609, fn. 25 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring))). Part of the opinion in NBC v. Court of Common Pleas

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Federal courts have imposed gag orders against attorneys and other trial participants under various standards. In a 1969 case, the U.S. Court of Appeals for the Tenth Circuit held that a gag order constitutionally may be “based on a ‘reasonable likelihood’ of prejudicial news which would make difficult the impaneling of an impartial jury and tend to prevent a fair trial.”38 Some other circuits are more restrictive, permitting a gag order against trial participants only if there is a “clear and present danger” or a “serious and imminent threat” to fairness of a trial.39 Despite varying standards, the First Amendment can prevent sweeping, judicially imposed restraints on comments by trial participants. For example, a trial judge may try to bar journalists from interviewing jurors after a trial has ended. However, as one court concluded, a trial judge’s “restrictions on post-trial interviews must reflect an impending threat of jury harassment rather than a generalized misgiving about the wisdom of such interviews.”40 The First Amendment may protect speech by pre-trial participants as well. In 1980, the U.S. Supreme Court rejected a Florida law prohibiting a grand jury witness from disclosing his own testimony after the term of the grand jury has ended, as a violation of the First Amendment.41 First Amendment protection may not be available, however, to witnesses who seek to disclose information about grand jury proceedings that they gained in the course of testifying. In Hoffmann-Pugh v. Keenan,42 the Tenth Circuit court supported enforcement of grand jury secrecy rules against the housekeeper for the parents of JonBenet Ramsey,

of Lake County, on a procedural point unrelated to the gag order against trial participants, was overruled in State v. Schlee, 117 Ohio St.3d 153, 156, 882 N.E.2d 431, 433 (2008). Overruled by State v. Schlee, 117 Ohio St. 3d 153, 882 N.E.2d 431 (2008) (Rule of criminal procedure providing that a court shall look to the rules of civil procedure and to the applicable law if no rule of criminal procedure exists permits a trial court in a criminal case to look to the rules of civil procedure for guidance when no applicable rule of criminal procedure exists.) 38. U.S. v. Tijerina, 412 F.2d 661, 666 (10th Cir. 1969) (quoting the original order). This case arose when authorities accused five individuals of assaulting U.S. forest rangers and other crimes. See U.S. v. Tijerina, 407 F.2d 349 (10th Cir. 1969) (appeal of convictions). The judge imposed the gag order against the defendants, as well as attorneys and witnesses for both sides. The defendants were convicted, and two of them challenged the gag order as violative of the First Amendment. U.S. v. Tijerina, 412 F.2d 661 (10th Cir. 1969). 39. U.S. v. Brown, 218 F.3d 415, 426–28 (5th Cir. 2000). The Fifth Circuit Court reviewed the lack of consensus on standards for gag orders against trial participants, noting that the standard embraced in the Fourth Circuit is like that in the Tenth Circuit and that “more stringent tests, requiring either a showing of ‘clear and present danger’ or ‘serious and imminent threat’ of prejudicing a fair trial” are required in the Sixth, Seventh and Ninth circuits. Id. at 427. The Fifth Circuit requires “a lesser showing of potential prejudice,” either a “‘substantial likelihood’” or possibly “merely a ‘reasonable likelihood’” that extrajudicial comments by participants, including lawyers and parties, “will undermine a fair trial …, as long as the order is also narrowly tailored and the least restrictive means available.” Id. at 424–25. 40. U.S. v. Antar, 38 F.3d 1348, 1364 (3d Cir. 1994). Disagreed with by In re Disclosure of Juror Names & Addresses, 233 Mich. App. 604, 620, 592 N.W.2d 798, 805 (1999) (There the court held under the circumstances of the case, we could not read Antar as mandating disclosure of jurors’ names and addresses, absent special circumstances.) 41. Butterworth v. Smith, 494 U.S. 624, 626 (1980). 42. 338 F.3d 1136 (10th Cir. 2003), cert. denied, 540 U.S. 1107 (2004). Distinguished by In re Nat’l Sec. Letter, 2013 WL 1095417 (N.D. Cal. Mar. 14, 2013) (While courts have upheld state law restrictions on grand jury witnesses’ disclosure of information learned only through participation in grand jury proceedings, those restrictions were either limited in duration or allowed for broad judicial review.)

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who planned to write a book about her participation in the grand jury examination of the child’s highly-publicized death. While the housekeeper could disclose information she possessed before her grand jury appearance, the appeals court upheld rules prohibiting her from disclosing matters that she had “learned from her participation in the grand jury process, at least so long as the potential remains for another grand jury to be called to investigate an unsolved murder.”43

Juvenile Court Proceedings States vary in the extent to which they grant the media and the public access to juvenile proceedings.44 Under federal law, meanwhile, decisions are made on a case-by-case basis, by weighing the interests of the juvenile and the public.45

Grand Jury Proceedings The media have not always been successful in their efforts to obtain access to court proceedings. Because of the value historically placed on the secrecy of grand juries, courts have denied access to their deliberations. For example, newspapers were prevented from Without secrecy, the court said, gaining access to a grand jury investigation of a Florida university athletic program in witnesses would hesitate to testify 1988, with the U.S. Court of Appeals for the when subpoenaed and would flee Eleventh Circuit saying that opening the or, upon becoming known, be grand jury procedure to public view would frustrate the investigation, in “direct contrast subject to undue influence. to the advantages public access provides” to criminal trials.46 The U.S. Supreme Court reviewed the reasons for grand jury secrecy in 1979, in the course of considering the conditions under which courts may provide information about grand jury investigations to civil litigants.47 Without secrecy, the court said, witnesses would hesitate to testify when subpoenaed and would flee or, upon becoming known, be subject to undue influence.48 Another reason the Court cited for keeping grand jury deliberations secret was pre-venting public embarrassment of persons who are accused and investigated, but not indicted.49

Bench Conferences Typically, media can do no more than observe when attorneys for the prosecution and defense confer privately with a judge at the bench or in chambers. Even if such a conference may be newsworthy, reporters likely will be unsuccessful if they seek access. 43. Id. at 1140. 44. American Bar Association, The Reporters Key: Access to the Judicial Process (3d ed., 2006), at 11, available at http://www.abanet.org/media/repkey/content.pdf (discussion of ABA Criminal Justice Fair Trial and Free Press Standard 8-1.1(d)). 45. U.S. v. A.D., 28 F.3d 1353, 1360 (3d. Cir. 1994). 46. In re Subpoena to Testify Before Grand Jury, 864 F.2d 1559, 1562 (11th Cir. 1989). 47. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979). (Declined to be followed by People v. Superior Court, 78 Cal. App. 4th 403, 92 Cal. Rptr. 2d 829 (2000) on the basis of California law and decline defendants’ invitation to follow federal law and adopt the balancing test derived from Douglas Oil Co. v. Petrol Stops Northwest (1979) 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156.) 48. Id. at 218–219. 49. Id.

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In U.S. v. Moody,50 the judge at a bond hearing called on the attorneys to meet with him in chambers.51 When reporters made a request for access to the conference, the judge denied it, saying that his meeting with counsel in chambers has not been open historically, and opening it would not have a positive effect, particularly when doing so would result in publicity about inadmissible evidence.52 Even so, the media occasionally have pressed with some success for access to bench or sidebar conferences or other proceedings conducted out of the presence of the jury.53

Jury Deliberations The U.S. Supreme Court reviewed why jury deliberations historically have been secret in Clark v. U.S.54 In the absence of fraud by a juror, however, the Court said that deliberations would be privileged and kept secret to protect jurors’ “[f]reedom of debate” and “independence of thought.”55 Nevertheless, the media have shown interest in gaining access to jury deliberations. In 2002, the Public Broadcasting Service’s Frontline news program obtained permission from a trial judge to videotape a capital murder trial in Texas, including deliberations by the jury, for broadcast after the trial.56 But a Texas appellate court intervened, ruling that the order permitting the videotaping violated a statute that said “[n]o person shall be permitted to be with a jury while it is deliberating.”57 One of the appellate judges dissented: The majority concludes that “each of the millions of viewers of the videotape is a person” and that “the playing of the videotape (live or not) permits these persons to be with the jury while it is deliberating.”’ But this is simply not the case. While each viewer is indeed a person, the viewers will not be with the jury while the jury is deliberating. Instead, the viewers will be viewing the jury long after the jury has deliberated.58

Anonymous Juries Even when presiding over a trial that is open, the judge may shield the jurors from public scrutiny by keeping their identities secret. Anonymous juries are often requested in organized crime cases and in trials of terrorists.59 50. 746 F.Supp. 1090 (M.D.Ga. 1990). 51. Id. at 1091. 52. Id. at 1092. 53. See, e.g., Capital Newspapers Group of Hearst Corp. v. Brown, 429 N.Y.S.2d 749 (N.Y. App. Div., 3d Dept. 1980) (objection to closed hearing following a bench conference); Houston Chronicle Pub. Co. v. Shaver, 630 S.W.2d 927 (Tex.Cr.App. 1982) (media challenge to judge’s consideration, in chambers, of voluntariness of a confession); U.S. v. Smith, 787 F.2d 111 (3d Cir. 1986) (concerning access to transcripts to sidebar and bench conferences); U.S. v. Simone, 14 F.3d 833 (3d Cir. 1994) (regarding in camera examinations of jurors for possible exposure to prejudicial publicity). 54. 289 U.S. 1 (1933) (rejecting argument of juror who had been found in contempt because she falsely had represented her qualifications for jury service, that testimony by other jurors about her conduct during the jury’s deliberations should not have been allowed, because the jury’s deliberations were privileged and should have remained secret). 55. Id. at 13. 56. School of Law, University of Texas at Austin, Court H earing: UT-A ustin to Host O r al A rgu ments in C a mer as in C ourtrooms C ase , January 10, 2003, available at http://www.utexas.edu/law/ news/2003/011003_arguments.html. 57. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 200 (Tex. Crim. App. 2003), citing Tex. C. Crim. Proc., Art 36.22. 58. Id. at 223. 59. Corinna Zarek, Trying blind: Secret juries continue hearing major cases, The News Media & The Law,

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In a 2008 case, U.S. v. Wecht,60 the U.S. Court of Appeals for the Third Circuit reviewed precedents that form a basis for finding that the identities of jurors should be made public. In Wecht, a county coroner had been accused of using his public position for private gain. The trial judge ordered that the jury be anonymous, but the Third Circuit found that the media had a First Amendment right of access to the identities of the jurors under the “experience and logic” test,61 and concluded that the public should know which members of the community hold the power to decide a defendant’s fate62 and be able to help hold the jurors accountable, reducing the potential for jury bias and corruption.63

Jury Records A 1980 report by the Judicial Conference of the United States took into account the possibility that, if jurors serve anonymously in a trial, court records that contain identifying information about them may be withheld.64 But the U.S. Court of Appeals for the Fourth Circuit, held that some information about jurors, including their names and addresses, is “just as much a part of the public record as any other part of the case”65 [T]he risk of loss of confidence of the public in the judicial process is too great to permit a criminal defendant to be tried by a jury whose members may maintain anonymity. If the district court thinks that the attendant dangers of a highly publicized trial are too great, it may always sequester the jury; and change of venue is always possible as a method of obviating pressure or prejudice.66

In 2002, the Supreme Court of Ohio held that voir dire was presumptively open, and that “the First Amendment qualified right to open proceedings in criminal trials extends to prospective juror questionnaires.”67 Access to Civil Proceedings In Richmond Newspapers, the U.S. Supreme Court observed “that historically both civil and criminal trials have been presumptively open.”68 Since then, lower courts have held that civil trials should be no less accessible to the press and public than criminal proceedings.69 Fall 2007, at p. 23, http://www.rcfp.org/newsitems/index.php?i=6459. 60. 537 F.3d 222 (3d Cir. 2008). (Disagreed with by United States v. Blagojevich, 743 F. Supp. 2d 794 (N.D. Ill. 2010) a case relied upon heavily by the Press Intervenors, noting that it contained no specific analysis of the facts before the court.) 61. Id. at 235 (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8–9 (1986) (Press-Enterprise II)). 62. Id. at 238. 63. Id. at 239. 64. Revised Rep. of the Jud. Conf. Comm. on the Operation of the Jury System on teh “Free Press—Fair Trial” Issue, 87 F. R.D. 519 (1980). 65. Revised Rep. of the jud. Conf. Comm. on the Operation of the Jury System on the “Free Press­—Fair Trial” Issue, 87 F.R.D. 519 (1980). 66. In re Baltimore Sun Co., 841 F.2d 74, 75 (4th Cir.1988). (Declined to be followed by Com. v. Long, 592 Pa. 42, 922 A.2d 892 (2007), while our historical survey leads us to conclude that while jurors’ names have commonly been disclosed during trial, the evidence supporting disclosure of addresses is circumspect at best. 67. Beacon Journal Publishing v. Bond, 781 N.E.2d 180, 188 (2002).) (Rejected by Com. v. Long, 2005 PA Super 119, 871 A.2d 1262 (Pa. Super. Ct. 2005) rev’d, 592 Pa. 42, 922 A.2d 892 (2007), while the United States Supreme Court has expanded the types of judicial proceedings which the public and the media are afforded the right to attend, the court has not extended this right beyond physical access to the courtroom.) 68. Richmond Newspapers v. Virginia, 448 U.S. 555, 580 (1980). See Footnote 3, not followed on state law grounds. 69. See, e.g., Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1068 (3d Cir. 1984) (reversing a trial judge’s denial of media access to civil proceedings in a stockholder dispute): “Public access to civil tri-

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In a civil case, the media may seek access to pre-trial discovery proceedings. In Scollo v. Good Samaritan Hosp.,70 a New York appellate court recognized that the presumption of openness in Press Enterprise II applied to civil proceedings, but nevertheless ruled that Newsday was not entitled to attend depositions in a wrongful death action against a hospital.71 The decision in Scollo was based on the U.S. Supreme Court decision in Seattle Times Co. v. Rhinehart,72 in which the newspaper was barred from reporting on discovery materials from a case in which the newspaper was a party. In upholding the restriction, the Supreme Court observed that the judge’s order did not prohibit the paper from publishing information that it gained by means other than discovery, and that the judge had issued the order “to avoid the ‘chilling effect’ that dissemination would have on ‘a party’s willingness to bring his case to court.’”73 The Court’s decision in Rhinehart added that [P]retrial depositions and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law … , and, in general, they are conducted in private as a matter of modern practice … . Much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.74

Bankruptcy A debtor in a 1987 bankruptcy proceeding tried to keep a Baltimore Sun reporter from attending a creditors’ meeting, arguing that the meeting was like discovery and should be kept private. While the U.S. District Court judge recognized the creditors’ concerns, he nevertheless held that the meeting should be accessible to the media and the public.75 The court also said that, in light of the history and law of bankruptcy, a creditors’ meeting is presumptively open “unless, in a given case, there is a showing that a restriction of access ‘is essential to preserve higher values and is narrowly tailored to serve that interest.’”76

Access to Court Records Generally In Cox Broadcasting Corp. v. Cohn, the Supreme Court held that court records are a vital source of information about the judicial system, and that journalists who truthfully report news on the basis of court records generally are protected from prosecution or judicial sanction.77

als, no less than criminal trials, plays an important role in the participation and the free discussion of governmental affairs.” (Not followed on state law grounds by Pincheira v. Allstate Ins. Co., 142 N.M. 283, 164 P.3d 982 aff’d on other grounds, 2008-NMSC-049, 144 N.M. 601, 190 P.3d 322, court need not address the meaning of “clearly defined and serious injury” in the context of trade secrets because they are relying on the language in Rule 11-508, rather than the good cause standard set out in federal Rule 26(c) and in their own Rule 1-026(C).) 70. 572 N.Y.S.2d 730 (N.Y. App. Div., 2d Dept. 1991). 71. Id. at 732 (citing Press Enterprise II, 478 U.S. 1, 8 and finding that discovery was not the kind of proceeding that had “‘historically been open to the press and general public’” and in which “‘public access plays a significant positive role in the functioning” of the process.) 72. 467 U.S. 20 (1984). 73. Id. at 27. 74. Id. at 33. 75. In re Astri Inv., Management & Securities Corp., 88 B.R. 730, 741 (D.Md.,1988). 76. Id. 77. 420 U.S. 469 (1975).

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Three years later, in Nixon v. Warner Communications, Inc.,78 the court recognized a common law right of access to court records, which it said could be “recognized or expanded by statute.”79 But the Court added that under the common law right, a judge has discretion to deny access to court records if they could become “a vehicle for improper purposes.”80 A First Amendment right of access to court records has been claimed with varying degrees of success in lower courts.81 For example, the Tenth Circuit recognized a limited First Amendment access right to records in the criminal proceedings stemming from the 1995 bombing of the Murrah Federal Building in Oklahoma City, holding that access in the specific case was “governed by the analysis articulated in Press-Enterprise II.”82 But after applying this analysis, the court upheld the district judge’s sealing of the records.83

Civil Court Records Although access to court records usually is considered in the context of criminal proceedings, the media also may assert that a presumption of openness applies to records in civil cases. The Seventh Circuit has ruled in favor of media access to records in shareholder actions against corporations, saying that “the policy reasons for granting public access to criminal proceedings apply to civil cases as well.”84

Search Warrant Affidavits Disputes have erupted in many jurisdictions over media access to affidavits that law enforcement authorities file in support of arrest and search warrant applications. Under statutes, common law or the First Amendment, courts may deny media requests for affidavits altogether or grant access only with redaction of sensitive information.85 Federal courts have not uniformly granted access to search warrant affidavits. In the late 1980s, for example, the Baltimore Sun unsuccessfully sought access to an affidavit that an FBI agent had prepared to support the issuance of search warrants during an investigation of the health insurance industry. The U.S. Court of Appeals for the Fourth Circuit held that the news media do not have a First Amendment right of access to search warrant affidavits, 78. 435 U.S. 589 (1978). 79. Id. at 598. 80. Id. 81. See, e.g., Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 90–91 (2d Cir. 2004) (regarding docket sheets); Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 659 (3d Cir.1991) (records of civil proceedings); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177 (6th Cir. 1983) (court documents), cert. denied, 465 U.S. 1100 (1984). These and other cases are listed in Gambale v. Deutsche Bank AG, 377 F.3d 133, 140 n. 4 (2d Cir. 2004). (Distinguished by In re New York Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401 (2d Cir. 2009), in this case, there is no First Amendment right of access under the attendance-atjudicial-proceedings approach because the relevant proceedings—ex parte, like grand jury presentations, and before a district judge in camera—are not public.) 82. U.S. v. McVeigh, 119 F.3d 806, 812 (1997). (Declined to be extended by Valvo v. Freedom of Info. Comm’n, 294 Conn. 534, 985 A.2d 1052 (2010), stating McVeigh does not support the proposition that the newspapers could have filed an independent petition for writ of mandamus in another court seeking to overturn the sealing orders.) 83. Id. 84. Matter of Continental Illinois Securities Litigation, 732 F.2d 1302, 1308 (7th Cir. 1984). 85. For a list of cases with various outcomes in response to media requests for affidavits, see Richard J. Ovelmen, Jason P. Kairalla and David A. Schulz, Access, in Communications Law in the Digital Age 2010 (Practising Law Institute, Nov. 2010), 1028 PLI/Pat 459. In a section titled “Probable Cause” Affidavits/Search Warrant Materials, the co-authors summarize the outcomes of state and federal court decisions from around the United States.

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because the affidavits historically have not been open to the public.86 In addition, warrant papers are not open because “the subject of the search cannot be tipped off to the application for a warrant lest he destroy or remove the evidence.”87 But the Eighth Circuit Court has recognized a qualified First Amendment right of public access to search warrants and supporting documents.88

Criminal History The extent to which a criminal’s history may be publicly disclosed has been controversial, and an effort to restrict access to criminal history information has emerged. An American Bar Association Commission on Effective Criminal Sanctions, concerned about persons who have been convicted of a crime and who have trouble qualifying for housing and employment because their criminal history information is so readily available, proposed to move the burden from the criminal defendant having to prove that a file should be sealed, to the public having to prove that it should be unsealed.89 Charles D. “Chuck” Tobin, a media lawyer in Washington, D.C., explained that the proposed rule “completely reverses the presumption that has been built in four decades of media law.”90

Evidentiary Exhibits Attorneys or judges may oppose making evidence available to journalists on the grounds that public disclosure could unfairly prejudice jurors or invade the privacy of a trial participant. But some courts have ruled otherwise. In 2007, a U.S. district judge in New Orleans refused to seal some trial exhibits in a case that focused on whether the Allstate Insurance Company had wrongfully failed to pay for damage caused by Hurricane Katrina, reasoning that the materials should be disclosed, because “‘[p]ublic access serves to enhance the transparency and trustworthiness of the judicial process, to curb judicial abuses, and to allow the public to understand the judicial system better.’”91 In the trial of Zacarias Moussaoui in Alexandria, Va., a U.S. district court posted 1,202 exhibits online, including photographs and videos related to the 9/11 terrorist attacks on the World Trade Center and recordings of last phone calls made by victims.92

Depositions A court may act to protect a record of a deposition against public disclosure. In a 1999 federal case,93 the defendants wanted to videotape a deposition, and the court found that 86. Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989). 87. Id. at 64. 88. In Re Search Warrant for Secretarial Area-Gunn, 855 F.2d 569 (8th Cir. 1988). A Missouri court cited this decision in ruling partly in favor of a newspaper’s request for access to warrants and supporting documents. See State v. Irvin, 1991 WL 150843 (Mo.Cir. 1991). (Declined to be followed by Times Mirror Co. v. United States, 873 F.2d 1210 (9th Cir. 1989), finding no First Amendment right of access to search warrant proceedings and materials when an investigation is ongoing but before indictments have been returned.) 89. Loren Cochran, Blacking Out the Blotter, The New Media & the Law (Summer 2007), http://www.rcfp.org/news/mag/31-3/prr-blacking.html. 90. Id. 91. Weiss v. Allstate Ins. Co., 2007 WL 2377119, at *4 (E.D. La. Aug. 16, 2007). See also Kevin McVeigh, Andrews Publications, Allstate Hit With $2.8 Million Verdict on Katrina Claim, FindLaw, http://news.findlaw.com/andrews/m/drc/20070419/20070419_weiss.html. 92. Associated Press, 9/11 Trial Exhibits Posted on Website, USA Today, July 31, 2006, at http://www. usatoday.com/news/nation/2006-07-31-moussaoui-exhibits_x.html. 93. Paisley Park Enterprises, Inc. v. Uptown Productions, 54 F.Supp.2d 347 (S.D.N.Y. 1999).

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their motive was “at least in part to generate notoriety for themselves and their business ventures by making non-litigation use of the videotape.”94 The court allowed the videotaping but ordered that it be used solely for purposes of the litigation.

Confidential Settlement Agreements Concern about confidential settlement agreements in products liability cases has mounted in recent years. Such agreements, which effectively prevent future litigants from discovering facts and results from prior cases, have been approved by courts in cases against tire manufacturers,95 and in cases against churches claiming molestation by priests.96 Sandra Baron, executive director of the Media Law Resource Center in New York, a critic of confidential settlements, has said that they result “in a great deal of information about matters that are in the public interest being buried.”97 While noting that “they usually aren’t buried forever,” Baron noted that “They’re buried just long enough for a lot of other people to get hurt.”98 Standing to Intervene News reporters have learned to be alert if they are present when a judge considers a closure order. They have been advised to be prepared to stand, respectfully request to be heard, and voice an objection. In Koch v. Koch Industries,99 a U.S. District Court judge analyzed the conditions under which the media may intervene in federal court on an open courts issue. The media sought to object to the gag order that the judge had issued against trial participants, and the judge acknowledged that the media had a right to intervene under certain conditions.100 In the end, however, the judge ruled that the media did not have standing to intervene, although he made his decision only after balancing “the parties’ and public’s interest in a fair trial against the competing interest in freedom of speech.”101 The media have successfully claimed standing to object to restrictive judicial orders in other federal courts. For example, the U.S. Court of Appeals for the Second Circuit recognized that the media had standing to challenge a gag order issued against the prosecutors, defendants, and defense counsel in a trial on racketeering and other charges.102 In another case, the Third (Distinguished by Condit v. Dunne, 225 F.R.D. 113 (S.D.N.Y. 2004), while the the court pointing out

that while the plaintiff made mention of the case on his website, that listing does not rise to the level of commercial advancement, cited in Paisley Park where many of the case filings were posted on the defendants website and the website was central to the litigation.) 94. Id. at 348. For a similar outcome in a Kansas dispute, see Drake v. Benedek Broadcasting Corp., 28 Med. L. Rptr. 1542 (D. Kan. 2000). Id. 95. Robert Schwaneberg, The Dilemma of the Secret Settlements, The [Newark, N.J.] Star-Ledger, Oct. 19, 2003, http://www.nj.com/specialprojects/index.ssf?/specialprojects/court/court1.html. 96. Id. 97. Id. 98. Id. 99. Koch v. Koch Industries, Inc., 6 F.Supp.2d 1185 (D.Kan. 1998). 100. Id. at 1190. Citing Fed. R. Civil Pro. 24(a)(2), Judge Crow noted that the media may intervene “as of right if: (1) the application is ‘timely’; (2) ‘the applicant claims an interest relating to the property or transaction which is the subject of the action;’ (3) the applicant’s interest ‘may as a practical matter’ be ‘impair [ed] or impede[d]’; and (4) ‘the applicant’s interest is [not] adequately represented by existing parties.’” Id. at 1189, quoting Coalition of Arizona/New Mexico Counties v. DOI, 100 F.3d 837, 840 (10th Cir.1996) (quoting Fed.R.Civ.P. 24(a)(2)). 101. Id. at 1189. 102. Application of Dow Jones & Co., Inc., 842 F.2d 603 (2d Cir.1988).

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Circuit decided that newspapers had standing to challenge a judicial order that had imposed confidentiality on a settlement agreement between a town and its former police chief.103

Secret Dockets The Reporters Committee for Freedom of the Press has reported that “federal courts and many state courts allow for ‘super-secret’ cases, which never appear on the public docket or are hidden using pseudonyms, such as ‘Sealed v. Sealed’ or ‘John Doe v. Jane Doe.’”104 While the Supreme Court declined to review a decision upholding such practices,105 the Second,106 Third,107 Fifth108 and Eleventh109 circuits, and the Florida Supreme Court110 have barred or limited such closed dockets.

Informants and Undercover Agents Although access to court records is widely recognized as being in the public interest, certain data from court records can invade privacy or create security risks. In 2008, for example, the Judicial Conference of the United States studied the dissemination of information gleaned from electronically available federal criminal case files on web sites “whose purpose is to identify undercover officers, informants, and defendants who provide information to law enforcement.”111 One of the Web sites that features such information is called “Who’s a Rat?” and bills itself as the “largest online database of informants and agents!”112 Judicial Conference

(Disagreed with by State ex rel. Missoulian v. Montana Twenty-First Judicial Dist. Court, Ravalli

Cnty., 281 Mont. 285, 933 P.2d 829 (1997), holding that “reasonableness” standard used by the Second Circuit in the Dow Jones decision too lenient a standard to adequately protect the right to know under Article II, Section 9 of the Montana.) 103. Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994). (Disagreed with by United States v. Amodeo, 44 F.3d 141 (2d Cir. 1995), citing First Circuit’s approach in Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st Cir.1986), the court determined that documents must have a role in the adjudication process in order to be accessible and that documents that have no such role, such as those used in discovery, cannot be reached.) 104. Reporters Committee for Freedom of the Press, Secret Justice: S ecret D ockets , Summer 2003, http://www.rcfp.org/secretjustice/secretdockets/index.html (“Courts that maintain these secret dockets will neither confirm nor deny the existence of such cases. As a result, these cases proceed through the court system undetected.”). 105. New York Law Pub. Co. v. Doe, 129 S.Ct. 576, 172 L.Ed.2d 432 (U.S. Nov 10, 2008) (No. 08-330) (denying certiorari in Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358 (3d Cir. May 30, 2008)). 106. The Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir. 2004). 107. Notice to the Bar (3d Cir. Nov. 4, 2008), available at http://www.ca3.uscourts.gov/Public%20Notices/ seal_dockets_webNov08.pdf. 108. U.S. v. Holy Land Foundation, 624 F.3d 685 (5th Cir. 2010). 109. U.S. v. Valenti, 987 F.2d 708 (11th Cir. 1993), reh’g en banc denied, 999 F.2d 1425 (11th Cir. 1993), cert. denied sub. nom. Times Pub. Co. v. U.S. Dist. Court for Middle Dist. of Florida, 510 U.S. 907 (1993). 110. See In re Amendments to Florida Rule of Judicial Administration 2.420—Sealing of Court Records & Dockets, 954 So. 2d 16 (Fla. 2007); and In Re: Amendments to Florida Rule of Judicial Administration 2.420 and the Florida Rules Of Appellate Procedure, 31 So.3d 756 (Fla. 2010). 111. Memorandum, March 20, 2008, from James C. Duff, Director of the Administrative Office of the U.S. Courts, to Chief Judges, U.S. Courts of Appeals; Judges, U.S. District Courts, and U.S. Magistrate Judges, available at http://www.federaldefender.net/Documents/CJA%20Resources/Plea%20 Agreements%20memo%203-20-08.pdf. 112. http://www.whosarat.com.

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committees that studied the problem suggested that each federal court develop local rules to minimize the exposure of sensitive information, including plea agreements.113

Sketch Artists An argument in support of sketch artists is that they should be permitted in the courtroom as long as they are not disruptive.114 But in a 2005 federal trial where the defendants were accused of sexual misconduct against mentally ill persons, the court found that federal law115 proscribed “all forms of identification of the victims” in the case, including “sketching for purposes of television.”116 The court also prohibited sketching of jurors.117

Bloggers For judges, courtroom management now includes responding to requests for access from bloggers.118 In 2007, a federal court took an unprecedented step by allowing bloggers to be present at the trial of Vice President Cheney’s former chief of staff on charges of perjury and obstruction of justice, reserving two of the 100 seats set aside for the media specifically for bloggers.119

Court Premises Rules in many states restrict interviews and use of cameras around courtrooms, and judges who enforce such rules can find themselves locked in First Amendment battles with the media. Journalists are devoted to timely reporting on events of the day, including court cases. They may well focus on the interesting or sensational features of cases and, as a result, report information that damages trial participants. Ideally, the media would report at least as much about the procedural fairness that judges strive to ensure for defendants and private litigants. Nevertheless, under the First Amendment, appellate courts have recognized that the benefits of press freedom to report on the judicial system are presumed to outweigh the costs and that access to courts and records is strongly in the public interest. The trend of judicial decisions clearly has favored media and public access to court proceedings and records. The U.S. Supreme Court has recognized that courts historically have been open and that the benefits of openness are significant. Before imposing a restriction, a trial judge must give interested parties an opportunity to be heard, and may impose a restriction only after making specific findings on the record.

113. Memorandum from the Judicial Conference Committee on Court Administration and Case Management to Judges, United States District Courts, supra, at 2–3 (Nov. 9, 2006). 114. See Carrie Debra Stopek, Gag Orders: Enhancing Fair Trials or Impeding a Free Press?, 26 Ariz. L. Rev. 933, 943 (1984). 115. See 18 U.S.C. §3771.(providing crime victim rights). 116. U.S. v. Kaufman, 2005 WL 2648070, at *5 (D.Kan. 2005). 117. Id. 118. Alan Sipress, Too Casual To Sit on Press Row? Bloggers’ Credentials Boosted With Seats at the Libby Trial, Washington Post, Jan. 11, 2007, http://www.washingtonpost.com/wp-dyn/content/ article/2007/01/10/AR2007011002424.html. 119. See Robert Sox, Judge’s Order Lays Out Groundrules for Blogger Coverage of Libbby Trial, Media Bloggers Assn. Blog, Jan. 17, 2007, http://www.mediabloggers.org/robert-cox/judges-order-lays-outgroundrules-for-blogger-coverage-of-libbby-trial.

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the M edia , and the P rior R estr aints120 he United States Supreme Court repeatedly has recognized that government censorship in the form of prior restraints against the media constitute “the most serious and the least tolerable infringement on First Amendment rights.”121 Although the Court has not unequivocally ruled out the possibility that a prior restraint may be justified in an extraordinary case, to date, the U.S. Supreme Court has never found a competing interest advanced by plaintiffs and the government—including national security interests and a criminal defendant’s Sixth Amendment right to a fair trial—sufficiently compelling to support the imposition of a prior restraint.122 The Court has hypothesized that prior restraints may be justified, if at all, only in the most exceptional circumstances, such as to prevent the dissemination of information about troop movements during wartime,123 or to “suppress[] information that would set in motion a nuclear holocaust.”124 The Court’s historical distrust of prior restraints is rooted in the view that censorship by any branch of the government, including the judiciary, undermines the “main purpose” of the First Amendment, which is “to prevent all such previous restraints upon publications as [have] been practiced by other governments.”125 Because it is widely agreed that “[t]here is, indeed, something peculiarly totalitarian about governmental systems of prior restraint,”126 the U.S. Supreme Court consistently has vacated injunctions and orders barring future speech by the public and the press. Because prior restraints threaten ongoing and irreparable harm to the fundamental constitutional rights of free speech and a free press, the U.S. Supreme Court has held that prior restraints against speech must be held to a stricter standard than even post-publication criminal penalties. Simply put, in order to protect the free speech and free press rights accorded by the First Amendment, “the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.”127

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120. Condensed from an article by Kelli L. Sager, partner and chair of the media practice at Davis Wright Tremaine LLP. 121. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991) (Declined to extend the stringent standard of Nebraska Press Assn.). 122. The court has, however, declined to review some cases involving prior restraints imposed by lower courts. See, e.g., Cable News Network, Inc. v. Noriega, 498 U.S. 976 (1990) (denying certiorari). 123. Near v. Minnesota, 283 U.S. 697, 716 (1931). (Distinguished by Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S. Ct. 1325, 1 L. Ed. 2d 1469 (1957), this facts in this case are concerned solely with obscenity and, as authoritatively construed, it studiously withholds restraint upon matters not already published and not yet found to be offensive.) 124. New York Times Co. v. United States, 403 U.S. 713, 726 (1971) (Brennan, J., concurring). (Declined to be extended by State v. Spano, 2011-Ohio-6026, 197 Ohio App. 3d 135, 966 N.E.2d 908 (2011), in this case there is no government censorship apparent in the application of the zoning resolutions.) 125. Nebraska Press, 427 U.S. at 557 (quoting Patterson v. Colorado, 205 U.S. 454, 462 (1907)). See Footnote 121. 126. Rodney A. Smolla, Smolla & Nimmer on Freedom of Speech § 15:10 (2004) (“Freedom of Speech”); see also New York Times v. U.S., 403 U.S. at 717 (Black, J., concurring) (“the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints”). 127. New York Times, 403 U.S. at 717 (Black, J., concurring). See Footnote 124.

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As a result, the U.S. Supreme Court has acted quickly to grant immediate stays to dissolve prior restraints against the media.128 The first modern prior restraint case, Near v. Minnesota, involved the U.S. Supreme Court’s rejection of a prior restraint against a virulently anti-Semitic publication that was alleged to have disturbed the “public peace” and provoked “assaults and the commission of crime.”129 Chief Justice Hughes, writing for The U.S. Supreme Court never has the majority, declared that an order enjoining approved a specific prior restraint the publication “raise[d] questions of grave against the media,and the lower importance transcending the local interests involved in this particular action,” and prefederal and state courts have done sented an “inquiry … as to the historic conso only on the rarest of occasions. ception of the liberty of the press and whether the statute under review violates the essential attributes of liberty.”130 Justice Hughes instructed that “public officers, whose character and conduct remain open to debate and free discussion in the press, [must] find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals.”131 This country’s historical aversion to prior restraints prompted the Court to require the government to meet an exceptionally onerous burden to support any prior restraint. Such a restraint “comes to th[e] Court with a ‘heavy presumption’ against its constitutional validity,”132 and may be considered only where its proponent demonstrates that the restriction is necessary “to further a state interest of the highest order.”133 Prior restraints must be supported by evidence of a “clear and present danger” of harm to a paramount state interest, and that “speculati[on]” or “factors unknown and unknowable” never are sufficient to justify such an abridgement of the First Amendment. The Court also has held that a prior restraint, if it is allowed at all, must be “narrowly tailored to achieve the pin-pointed objective of the needs of the case.”134 The U.S. Supreme Court never has approved a specific prior restraint against the media,135 and the lower federal and state courts have done so only on the rarest of occasions. Regardless of the interest asserted—whether it is a claim about national security, a 128. See, e.g., CBS, Inc. v. Davis, 510 U.S. 1315, 1316-18; Capital Cities Media v. Toole, 463 U.S. 1303, 1304 (1983) (Brennan, J., in chambers); and Nebraska Press Ass’n v. Stuart, 423 U.S. 1327, 1329 (Blackmun, J. in chambers). 129. 283 U.S. 697, 709 (1931). See Footnote 123. 130. Id. at 708. 131. Id. at 719. 132. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (quoting Carroll v. Princess Anne, 393 U.S. 175, 181 (1968)). Cyr v. Tompkins, 05-93-00850-CV, 1994 WL 110719 (Tex. App. Mar. 30, 1994). (Holding Keefe inapplicable, further noting it was implicitly overruled by Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988), to the extent that Keefe would prevent the State from imposing reasonable, content-neutral restrictions on focused residential picketing. The appellants’ assertions notwithstanding, the Supreme Court held in Frisby that concerns for residential privacy can justify restrictions on speech occurring in public forum. See Frisby, 487 U.S. at 480, 486-88.) 133. Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979). 134. Tory v. Cochran, 544 U.S. 734, 738 (2005). 135. The court has, however, declined to review some cases involving prior restraints imposed by lower courts. See, e.g., Cable News Network, Inc. v. Noriega, 498 U.S. 976 (1990) (denying certiorari).

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criminal defendant’s Sixth Amendment right to a fair trial, privacy of rape victims and minors, or defamatory speech—courts repeatedly have cast a skeptical eye on prior restraints, and have required that the proponents demonstrate that the publication sought to be enjoined would “threaten an interest more fundamental than the First Amendment itself.”136

National Security In Near, Chief Justice Hughes hypothesized that prior restraints might be granted, if at all, in “exceptional” national security circumstances, such as to block the threatened publication of the sailing dates of troop transports, or information about the movement of soldiers during wartime.137 Forty years later, in New York Times Co. v. United States, the U.S. Supreme Court reaffirmed the high constitutional bar against prior restraints even in cases where the government claims that national security is threatened,138 rejecting the government’s request for an order barring two newspapers from publishing information from the “Pentagon Papers,” classified government reports about the United States’ conduct of the Vietnam War. In a concurring opinion, Justice Hugo Black rejected the government’s assertion that “the courts should take it upon themselves to ‘make’ a law abridging freedom of the press in the name of equity, presidential power and national security.”139 Justice Potter Stewart further noted that a prior restraint upon publication always will be unconstitutional, unless it can be shown that publication “will surely result in and irreparable damage to our Nation or its people.”140 In 1979, one federal district court in Wisconsin claimed that such direct, immediate and irreparable damage would result if The Progressive magazine was permitted to run an article titled “The H-Bomb Secret: How We Got It, Why We’re Telling It.”141 In issuing a preliminary injunction stopping publication of the article, the court asserted that publication of this information “could pave the way for thermonuclear annihilation for us all.”142 But before the court could hold hearings on a permanent injunction, other publications ran articles on how the H-Bomb was made, which convinced President Jimmy Carter’s Department of Energy to drop the suit. Even in the post-9/11 world, amid the dangers of terrorism, courts have been reluctant to uphold prior restraints on national security grounds. For example, in one recent decision, the Second Circuit held that a provision of the PATRIOT Act that allowed the Federal Bureau of Investigation to issue National Security Letters forbidding recipients from ever revealing what information had been sought from them, amounted to an unconstitutional restriction of First Amendment rights.143 Although the Second Circuit panel could not agree on which level of scrutiny to apply to this atypical prior restraint, the court concluded that regardless of which standard was applied, the measure was constitutionally infirm because it allowed the government to restrain individual speech indefinitely, without demonstrating any specific justification or providing for any meaningful judicial review.144 136. Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996). 137. Near, 283 U.S. at 716. See Footnote 123. 138. 403 U.S. at 714. See Footnote 124. 139. Id. at 718–19 (Black, J. concurring). 140. Id. at 730 (Stewart, J., concurring). 141. United States v. Progressive, Inc., 467 F. Supp. 990, 991–92 (W.D. Wis. 1979). 142. Id. at 996. 143. Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008). 144. Id.

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Sixth Amendment Fair Trial Rights Concerns that prejudicial pretrial publicity could impair a defendant’s right to a fair trial have caused some courts to consider prior restraints restricting the speech of trial participants and the media. But well-established law severely limits any such orders, particularly against the media. In 1966, the U.S. Supreme Court reversed the conviction of Dr. Sam Sheppard for the murder of his pregnant wife,145 stating that the “massive” and “pervasive” prejudicial publicity that accompanied the trial, combined with a “carnival atmosphere” during the court proceedings, had deprived Sheppard of his Sixth Amendment right to a fair trial. Mindful of the U.S. Supreme Court’s admonitions about the duty to protect defendants’ rights, some courts reacted by imposing prior restraints directly on the media, rather than counteracting potentially prejudicial publicity in other ways. This practice was resoundingly rejected by the U.S. Supreme Court in Nebraska Press Association v. Stuart.146 In a ruling that cleared up any confusion caused by the Sheppard holding, the U.S. Supreme Court in Nebraska Press rejected the use of prior restraints against the media, explaining that “it is … clear that the barriers to prior restraint [must] remain high unless we are to abandon what the Court has said for nearly a quarter of our national existence and implied throughout all of it.”147 The Court noted that the drafters of the Constitution declined to establish any priority between rights under the First Amendment and the Sixth Amendment, and consequently, it would be inappropriate for courts to do so.148 Although the Nebraska Press decision did not absolutely bar prior restraints under all circumstances, the U.S. Supreme Court made clear that such extraordinary orders would be allowed, if at all, only by “showing the kind of threat to fair trial rights that would possess the requisite degree of certainty to justify restraint.”149 Before a trial court can issue an extraordinary order restraining the press, the Supreme Court held that the court must make specific findings as to: (1) the nature and extent of actual pretrial news coverage; (2) whether other measures, including a thorough voir dire of potential jurors or a change of venue, would be likely to mitigate the effects of unrestrained pretrial publicity; and (3) whether a restraining order against publication would in fact prevent the threatened danger of prejudicing the jury pool against the defendant.150 Following Nebraska Press, lower courts around the country have refused in virtually every case to impose prior restraints on the media based on claims of the possible impairment of a criminal defendant’s Sixth Amendment rights. Courts have upheld prior restraints on the basis of fair trial rights only in extremely rare and unusual circumstances. In one such case, United States v. Noriega, the Eleventh Circuit upheld a temporary restraining order against the press playing audio tapes surreptitiously made by the government of conversations between Panamanian dictator Manuel Noriega and his counsel in his high-profile criminal trial.151 The trial court emphasized that in addition to the threat to the defendant’s ability to empanel a jury, disclosure of the communications “could—against all strictures of due process and fairness—reveal to the prosecution the defendant’s trial strategy and protected 145. Sheppard v. Maxwell, 384 U.S. 333 (1966). See reference in Footnote 8 to Mu’Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). 146. 427 U.S. at 563. See Footnote 121. 147. Id. at 561. 148. Id. 149. Id. at 569–70 (emphasis added). 150. Id. at 562. 151. Noriega, 917 F.2d 1543 (affirming 752 F. Supp. 1032 (S.D. Fla. 1990)).

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confidences.”152 The Eleventh Circuit affirmed the trial court’s order granting the temporary restraining order, but made clear its decision was limited to the highly unusual facts presented.153 The U.S. Supreme Court then declined to review the case.154 These unique facts, warranting a temporary restraint until the trial court could take steps to protect the defendant’s rights, have not been viewed as a retreat from the onerous standards needed to justify a prior restraint set forth by the Supreme Court in Nebraska Press.155

Privacy The U.S. Supreme Court’s opposition to prior restraints is especially pronounced when the government seeks to prohibit the press from publishing lawfully obtained information about court proceedings, even when that information relates to the sensitive privacy interests of rape victims and juveniles. For example, in Cox Broadcasting v. Cohn, the U.S. Supreme Court invalidated a Georgia law that prohibited the press from publishing a rape victim’s name.156 Two years later, in Oklahoma Publishing Co. v. District Court, the Court struck down another prior restraint that barred the press from reporting the name of an eleven- year-old charged with murder,157 which it held “abridge[d] the freedom of the press in violation of the First and Fourteenth Amendments.”158 Similarly, in

152. 752 F. Supp. 1032 (S.D. Fla. 1990)). Indeed, defense counsel advised the trial court that the tapes “involved discussion of witnesses, defense investigation, and trial strategy at the core of Noriega’s defense.” Id. at 1034. 153. 917 F.2d at 1552. 154. Cable News Network, Inc. v. Noriega, 498 U.S. 976 (U.S. 1990) (denying certiorari). 155. For example, after the Scott Peterson murder trial, Peterson’s lawyer attempted to enjoin another defense lawyer who had worked on the case, Matthew Dalton, and his publisher from releasing a book about Peterson’s defense, invoking Noriega. The trial court held that the speculative possibility that Dalton’s book might contain information protected by attorney-client privilege was insufficient to justify an order restraining publication of the book, and the Court of Appeal and California Supreme Court denied review. See Geragos & Geragos, APC v. Dalton, Case No. BC343466 (Cal. Super., Los Angeles County 2006), pet. denied, No. B187462 (Cal. App., 2d Dist. Dec. 6, 2005), pet. denied, No. S139433 (Cal. Dec. 9, 2005). 156. 420 U.S. 469, 496 (1975). Cox Broadcasting v. Cohn Declined to extend by Natoli v. Sullivan 159 Misc. 2d 681 N.Y. Sup (1993) (A state may not, consistent with the First and Fourteenth Amendments, impose sanctions on the accurate publication of the name of a rape victim obtained from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection.   U.S.C.A.Const. Amends. 1, 14.) 157. 430 U.S. 308, 309–12 (1977). Oklahoma Publishing Co. v. District Court 158. Id. at 312. Smith v. Daily Pub. Co Not followed as dicta by Barclay’s Capital Inc. v. Theflyonthewall.com 700 F.Supp 2d 310 (2010). (Stating, despite asserted state interest in protecting anonymity of juvenile offenders in order to further rehabilitation, West Virginia statute violated First and Fourteenth Amendments by making it a crime for newspaper to publish, without written approval of juvenile court, name of any youth charged as a juvenile offender, where name was lawfully obtained by monitoring police band radio frequency and interviewing eyewitnesses;  even assuming statute served a state interest of the highest order, it did not accomplish its stated purpose where it did not restrict publication by electronic media or any form of publication except “newspapers.”   U.S.C.A.Const. Amends. 1, 14;  Code W.Va. 49-7-3, 49-7-20.)

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Smith v. Daily Mail Publishing Co., the Court over- turned a West Virginia statute that prohibited the media from publishing the identity of a juvenile defendant without first obtaining a court order.159 Ten years later, the U.S. Supreme Court extended this principle to the post-publication punishment of the media. In Florida Star v. B.J.F., the U.S. Supreme Court held that the State of Florida’s interest in preserving rape victims’ privacy and encouraging rape victims to report crimes, codified in a state statute barring the media from publishing a victim’s identity, did not permit the state to punish a newspaper that published a rape victim’s name that its reporter obtained from a sheriff’s report that was inadvertently made available to the public.160 In a rare case that departed from these accepted constitutional principles, the Colorado Supreme Court affirmed an order preventing further dissemination of the contents of inadvertently disclosed transcripts of a closed two-day hearing in the rape prosecution of basketball player Kobe Bryant.161 The Court stated that protecting the victim’s privacy in rape cases was a compelling state interest, and that the lower court had narrowly tailored the order by limiting it to the inadvertently released materials, and by striking the portion of the order that required the media to destroy the transcripts.162 The media petitioned the U.S. Supreme Court for a stay of the order, but the circuit justice for Colorado, Justice Breyer, denied the petition, stating that the media could file its request again in two days, giving the state courts time “to clarify, perhaps avoid, the controversy at issue here.”163 Bowing to the First Amendment concerns, the trial court then withdrew its order and released all but a few lines of the transcripts, rendering the issue moot.164 In light of this history, the Colorado Supreme Court opinion upholding a limited prior restraint is, at best, of dubious value. It also contradicts several state cases in which courts have held that privacy interests are insufficient to warrant the imposition of prior restraints upon speech.165 Thus, as with other justifications offered for prior restraints, it appears clear that such restrictions will be allowed, if at all, only in rare circumstances.

159. 443 U.S. at 104. 160. 491 U.S. 524, 526, 537, 539 (1989). Florida Star v. BJF. Declined to extend by Peavy v. WFAA-TV, Inc. 221 F3d 158 (5th Cir) Tex (2000). (Imposing damages on newspaper for publishing name of rape victim which had been obtained from publicly released police report, in violation of Florida statute and newspaper’s own internal policy did not comport with First Amendment;  information was obtained lawfully, identification of victim was accurate and imposing liability did not serve need to further a state interest of the highest order.   West’s F.S.A. §§  119.07(3)(h), 794.03;  U.S.C.A. Const.Amend. 1.) 161. In re People v. Bryant, 94 P.3d 624 (Colo. 2004). 162. Id. In re People v. Bryant. 163. Associated Press v. District Court for Fifth Judicial Dist. of Colo., 542 U.S. 1301, 1304 (Mem) (Breyer, Circuit Justice 2004); see also Kimberly Keyes, Kobe’s Legal Legacy, The News Media & the Law, Fall 2004, at 17, available at http://www.rcfp.org/newsitems/index.php?i=6182. 164. Keyes, supra. 165. See, e.g., Hurvitz v. Hoefflin, 84 Cal. App. 4th 1232, 1244 (2000) (plaintiff’s asserted “right to privacy” as inadequate to justify a prior restraint); and Gilbert v. National Enquirer, Inc., 43 Cal. App. 4th 1135 (1996) (reversing an injunction barring actress Melissa Gilbert’s ex-husband from revealing intimate details about her alleged use of drugs and alcohol and about her sexual relationships, notwithstanding claims that her privacy would be invaded).

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Defamation Courts are unlikely to issue prior restraints banning publication of information likely to injure a person’s reputation. The traditional common law rule is that “equity will not enjoin a libel.”166 “This rule rests in large part on the principle that injunctions are limited to rights that are without an adequate remedy at law, and because ordinarily libels may be remedied by damages, equity will not enjoin a libel absent extraordinary circumstances.”167 Also, “It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.”168 In Tory v. Cochran, the U.S. Supreme Court stated that a permanent injunction issued by a California court against two protestors who had been permanently enjoined from picketing, displaying signs and making oral statements about celebrity lawyer Johnnie Cochran or his law firm constituted “an overly broad prior restraint upon speech, lacking plausible justification.”169 In 2007 the California Supreme Court held that such an order was possible after a jury and trial court determined that specific statements made by a defendant are defamatory, and the defendant made clear her intent to continue to make the same false statements and did not have resources to pay a monetary award.170 But the Court stressed that such an order may not be issued before the court has gone through the lengthy process of a trial and determined conclusively that the past utterances were defamatory.171 The U.S. Supreme Court repeatedly has struck down prior restraints against the press, and has made clear that a prior restraint may be contemplated only in the rarest circumstances, involving interests as fundamental as the First Amendment itself. Not surprisingly, such instances have not presented themselves often, which is why so few federal or state courts have upheld prior restraints in the modern era. in Notorious Trials172 n 1966, the U.S. Supreme Court reversed the murder conviction of a prominent surgeon because the trial was conducted under such a media frenzy that prejudicial publicity had prevented the defendant from receiving a fair trial.173

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166. Metropolitan Opera Ass’n, Inc. v. Local 100, Hotel Employees & Rest. Employees Internat. Union, 239 F.3d 172, 177 (2d Cir. 2001). 167. Id. 168. Vance v. Universal Amusement Co., 445 U.S. 308, 315 n.13 (1980). 169. 544 U.S. at 737–38. The U.S. Supreme Court stressed that injunctions restraining speech must be reviewed carefully so as not to “sweep” any “more broadly than necessary.” The Court added that even if the injunction could have been justified, because Cochran died during the pendency of the case, any justification that might have existed was no longer present. 170. Balboa Island Village Inn, Inc. v. Lemen, 40 Cal.4th 1141 (2007). 171. Id. at 1156–57. 172. Condensed from an article by Theodore J. Boutrous Jr. (partner in the Los Angeles and Washington, D.C. offices of Gibson, Dunn & Crutcher, and co-chair of the firm’s Appellate and Constitutional Law Group, its Media and Entertainment Group, and its Crisis Management Group); Michael H. Doore (associate, Gibson Dunn & Crutcher); and Theane Evangelis Kapur (associate in the Los Angeles office of Gibson, Dunn & Crutcher). 173. Sheppard v. Maxwell, 384 U.S. 333 (1966). Abrogation recognized by Jackson v. Houk 687 F.3d 723 6th Cir (Ohio) (2012). (Where there is reasonable likelihood that prejudicial news prior to trial will prevent fair trial, judge should continue case until threat abates or transfer it to another county not so permeated with publicity.)

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In reversing the murder conviction in Sheppard v. Maxwell,174 the Court addressed the need for judges to consider the effect of trial publicity: “Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused.”175 Where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sua sponte with counsel. If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered … The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.176

The Court explained that, “the judge should have further sought to alleviate this problem by imposing control over the statements made to the news media by counsel, witnesses, and especially the coroner and police officers.”177 In the years since, courts attempting to ensure publicity does not overtake a trial have inferred that the Sheppard decision condones various remedies to pretrial and trial publicity under certain circumstances. The guide examines four of the more controversial measures judges sometimes use to diminish pretrial and trial publicity: (1) restrictive orders directed at the participants in the trial, including attorneys; (2) restrictive orders directed at the media; (3) closing judicial proceedings to the public and the press; and (4) sealing records.

Restrictive Orders on Trial Participants Restrictive orders, also known as “gag orders,” are issued by judges in the most extreme cases to prevent those involved in a case from making public comments about it. Gentile v. State Bar of Nevada, in which the U.S. Supreme Court held that lawyers’ speech made while representing clients in pending cases may be regulated under a less demanding standard than the standard established for regulation of the press,178 has resulted in varying standards among the circuit courts for evaluating restrictive orders on trial participants other than lawyers.179 The Second, Fourth, Fifth, and Tenth Circuits have 174. Id. 175. Id. at 362. 176. Id. at 363. 177. Id. at 360. 178. 501 U.S. 1030 (1991). Declined to be extended by U.S. v. Bulger, 2013 WL 3338749. (Nevada Supreme Court rule prohibiting lawyer from making extrajudicial statements to press that he knows or reasonably should know would have “substantial likelihood of materially prejudicing” adjudicative proceeding was void for vagueness as applied by Nevada Supreme Court in holding that attorney violated rule by statements he made at press conference after his client was indicted on criminal charges;  safe harbor provision misled attorney into thinking that he could give his press conference without fear of discipline, and given rule’s grammatical structure and absence of clarifying interpretation by a state court, rule failed to provide fair notice to those to whom it was directed and was so imprecise that discriminatory enforcement was real possibility. Nev.Sup.Ct.Rules, Rule 177, subds. 1, 3;  U.S.C.A. Const.Amend. 1.) 179. See, e.g., United States v. Brown, 218 F.3d 415, 427 (5th Cir. 2000). Declined to follow by In re R.J.M.B 2013 WL 2249407 (2013).

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held that a restrictive order may be valid only if the court determines that comments present a “reasonable likelihood“ or “substantial likelihood“ of prejudicing a fair trial.180 The Third, Sixth, Seventh, and Ninth Circuits have imposed an even stricter standard, rejecting restrictive orders on trial participants unless there is a “clear and present danger” or “serious and imminent threat” of prejudicing a fair trial.181 The First Circuit has struck down a restrictive order on union organizing efforts issued during an administrative proceeding as improper under the First Amendment,182 while the Eleventh Circuit dismissed for lack of jurisdiction a collateral federal court challenge of a restrictive order issued by a state court.183 The Eighth, District of Columbia and Federal circuits have no cases which directly address the merits of restrictive orders on trial participants. Trial participants subjected to restrictive orders have included attorneys, employees of the court, parties, and witnesses. Courts express concern about lawyers’ extrajudicial statements because lawyers are key participants in the justice system and “they have special access to information through discovery and client communication, and … their statements are likely to be received as especially authoritative.”184 In Gentile v. State Bar of Nev., the Nevada State Bar, acting under a rule regulating pretrial publicity, disciplined a lawyer for statements he made at a press conference the day after his client was indicted on criminal charges.185 The U.S. Supreme Court invalidated the rule for vagueness, but noted that a restrictive order against

(Trial court may impose “gag order” on trial participants if court determines that there is a substantial

likelihood that extrajudicial commentary by trial participants will undermine a fair trial, so long as order is also narrowly tailored and the least restrictive means available, and standard applies to both lawyers and parties, at least where court’s overriding interest is in preserving a fair trial, and potential prejudice caused by extrajudicial commentary does not significantly depend on status of speaker as a lawyer or party.) 180. See, e.g., In re Dow Jones & Co., 842 F.2d 603 (2d Cir. 1988); In re Russell, 726 F.2d 1007 (4th Cir. 1984); United States v. Brown, 218 F.3d 415 (5th Cir. 2000); United States v. Tijerina, 412 F.2d 661 (10th Cir. 1969). Declined to follow by State v. Carruthers, 35 S.W.3d 516 (2000). (Newspaper would not suffer irreparable injury as result of restrictive order entered by state trial court regarding extrajudicial statements by trial participants prior to commencement of sensational criminal trial, considering that restrictive order was intended to safeguard defendants’ Sixth Amendment right to impartial jury, that state trial court found there were no less restrictive means of safeguarding that right, and that restrictive order was not directed to press and did not restrict press coverage of court proceedings.   U.S.C.A. Const.Amends. 1, 6.) 181. See, e.g., Bailey v. Systems Innovation, Inc., 852 F.2d 93 (3d Cir. 1988); United States v. Ford, 830 F.2d 596 (6th Cir. 1987); Levine v. U.S. D. for the Cent. Dist., 764 F.2d 590, 595 (9th Cir. 1985); Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975). 182. In re Perry, 859 F.2d 1043 (1st Cir. 1988). 183. The News-Journal Corp. v. Foxman, 939 F.2d 1499 (11th Cir. 1991). 184. Gentile v. State Bar of Nev., 501 U.S. 1030, 1074 (1991). Declined to extend by U.S. v. Bulger, 2013 WL 3338749. (Substantial likelihood” test embodied in Nevada Supreme Court rule which prohibits attorney from making extrajudicial statement that reasonable person would expect to be disseminated by means of public communication if lawyer knows or reasonably should know that it will have substantial likelihood of materially prejudicing adjudicative proceeding, does not violate First Amendment;  it is designed to protect integrity and fairness of state’s judicial system and imposes on lawyers’ speech only narrow and necessary limitations, i.e., comments that are likely to influence actual outcome of trial, and comments that are likely to prejudice jury venire, even if untainted panel can ultimately be found.   Nev.Sup.Ct.Rules, Rule 177, subd. 1;  U.S.C.A. Const.Amend. 1.) 185. Id. at 1033.

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a lawyer is valid if the statements have a substantial likelihood of materially prejudicing an adjudicative proceeding.186

Restrictive Orders on the Media In Nebraska Press Assn. v. Stuart, the U.S. Supreme Court invalidated a restrictive order imposed on members of the press because alternative measures may have protected the defendant‘s right to a fair trial.187 The Court stated that the mere existence of pre-trial publicity, even if it is adverse and pervasive, does not inevitably result in an unfair trial, and that a trial court should instead adopt less restrictive measures.188 Underlying this conclusion was the Court’s clear pronouncement that a prior restraint on speech is subject to “a ‘heavy presumption’ against its constitutional validity,“ because “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights,”189 and “one of the most extraordinary remedies known to our jurisprudence.”190 The Supreme Court has made clear that only the most sensitive information imaginable— the movement of ships during wartime, for example—might warrant a prior restraint.191 In the exceedingly rare instance in which a prior restraint on the press could be considered proper, the Court required an examination of the evidence by the lower court entering such an order to “determine (a) the nature and extent of pre-trial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pre-trial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger.”192 A restrictive order on the media can be upheld only if there is a “clear and present danger” of actual prejudice or imminent threat to defendant‘s right to a fair trial.193 In practice, the Nebraska Press standard for upholding restrictive orders against the media has been almost impossible to meet. In Columbia Broad. Sys., Inc. v. U.S. Dist. Court, the Ninth Circuit invalidated a temporary restraining order that prevented CBS from disseminating or broadcasting tapes showing a defendant making a drug deal, reasoning that because the trial was taking place in a large metropolitan area, prejudicial publicity was less likely to endanger the defendant‘s right to a fair trial.194 In Procter & Gamble Co. v. Bankers Trust Co., the Sixth Circuit overturned an order that prohibited Business Week magazine from disclosing the contents of confidential documents.195 186. Id. at 1071. 187. 427 U.S. at 566–67. Nebraska Press Assn. v. Stuart 188. Id. at 555. 189. Id. at 559. 190. Id. at 562; see New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam) (rejecting prior restraint suppressing classified information in the Pentagon Papers); see generally Nebraska Press, 427 U.S. at 559 (“A prior restraint … by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.”). 191. See Near v. Minnesota, 283 U.S. 697, 716 (1931). 192. Nebraska Press, 427 U.S. at 562. 193. Id. at 563. 194. 729 F.2d 1174, 1179 (9th Cir. 1984). Columbia Broad. Sys., Inc. v. U.S. Dist. Court 195. 78 F.3d 219 (6th Cir. 1996). Proctor & Gamble Co. v. Bankers Trust Co. (Opinion clarified (May 08, 1996), rehearing and suggestion for rehearing en banc denied (May 08, 1996)).

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Closed Hearings In Sheppard v. Maxwell, the U.S. Supreme Court noted that nothing prohibited the media from reporting on what transpired in the courtroom.196 Some courts, however, concerned about potentially prejudicial publicity and recognizing the presumptive invalidity of a restraint on the media, seized on dicta in Sheppard that “[t]he number of reporters in the courtroom itself could have been limited at the first sign that their presence would disrupt the trial.”197 As a result, those courts began to close their proceedings to the public, diverging from the historic openness of both civil and criminal trials. In Richmond Newspapers Inc. v. Virginia, the U.S. Supreme Court squarely rejected that approach, invalidating an order that closed a criminal trial.198 Although the Justices issued six different opinions based on differing rationales, there was a clear consensus that criminal trials are presumptively open to the public.199 The Court affirmed the presumption of openness for criminal trials in Globe Newspaper Co. v. Superior Court for Norfolk County,200 and later extended the presumption of openness to other criminal judicial proceedings besides trials, including jury selection201 and preliminary proceedings in criminal cases.202 The First Amendment provides considerable protection against closure: “The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”203 A court must consider whether the place and proceeding has historically been open to the public and the press, and whether public access has played a significant role in the functioning of that proceeding.204 Fewer cases have addressed the public’s right of access to civil judicial proceedings, though courts generally have extended the presumption of openness to the civil context. For example, the Third Circuit held that the First Amendment secures a right of access to

196. 384 U.S. 333, 362–63 (1966). Sheppard v. Maxwell 197. Id. at 358. 198. 448 U.S. 555 (U.S. 1980) (plurality). Not Followed on state ground law People v. Santiago, 185 Misc.2d 198 N.Y.Co.Ct (2000). 199. Id. 200. 457 U.S. 596 (1982). Not Followed on state ground law People v. Santiago, 185 Misc.2d 198 N.Y.Co.Ct (2000). 201. 464 U.S. 501, 505 (1984) (Press-Enterprise I). 202. Press-Enterprise Co. v. Superior Court of California for Riverside County.478 U.S. 1 (1986) (Press-Enterprise II). Called into doubt U.S. v. Kravetz, 706 F.3d. 47 1st Cir. (2013) (First Amendment right of access to criminal proceedings cannot be overcome by conclusory assertion that publicity might deprive defendant of right to fair trial. U.S.C.A. Const.Amend. 1.) 203. Press-Enterprise I, 464 U.S. at 510. See also Globe Newspaper, 457 U.S. at 608; Gannett Co. v. DePasquale 443 U.S. 368 (1979). 204. Press-Enterprise II, 478 U.S. at 8–9. Called into doubt U.S. v. Kravetz, 706 F.3d. 47 1st Cir. (2013). (Qualified First Amendment right of access to criminal proceeding applies to preliminary hearing as conducted in California;  as opposed to grand jury proceedings, preliminary hearings conducted before neutral and detached magistrates have been open to public, and public access to such preliminary hearings is essential to proper functioning of criminal justice system.   U.S.C.A. Const.Amend. 1)

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civil proceedings.205 Similarly, the California Supreme Court became the first state supreme court to find a First Amendment right of access to civil trials and proceedings.206 Access to court proceedings of any type must be contemporaneous,207 and the release of transcripts of the proceedings is not adequate.208 Closing a judicial proceeding for even a short amount of time raises First Amendment concerns.209 As a result, even a minimal period of time must be justified by an overriding interest.210

Sealed Records Court records are subject to rights of public access under both the First Amendment and the common law. The U.S. Supreme Court recognized a common law right of access to court records in Nixon v. Warner Communications, Inc.211 But the right to inspect and copy judicial records is qualified, and access can be properly denied, “where court files might have become a vehicle for improper purposes.”212 The common law presumption in favor of access attaches to all “judicial records and documents,”213 and courts generally have held that documents not filed with the court fall outside the scope of judicial records. In Seattle Times v. Rhinehart, the Supreme Court held that the First Amendment does not preclude the district court from entering a protective order limiting disclosure of the products of pretrial discovery.214 Such discovery, however, which is ordinarily conducted in private, stands on a wholly different footing than does a motion filed by a party seeking action by the court. Less broad than the common law right of access, “the First Amendment guarantee of access has been extended only to particular judicial records and documents.”215 The First Amendment right of public access, along with the common law right, can apply to documents from civil proceedings as well as criminal proceedings.216 But where the First Amendment applies, it provides even more substantive protection to the interests of the press and public than the common law right of access does.217 Presumptive sealing likely fails either test. 205. Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1068 (3d Cir. 1984). Not followed on state law grounds Pincherira v. Allstate Insurance Co., 142 N.M. 283 (2007). 206. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337 (Cal. 1999). 207. Washington Post v. Robinson, 935 F.2d 282, 287 (D.C. Cir. 1991). 208. ABC, Inc. v. Stewart, 360 F.3d 90, 99 (2d Cir. 2004) (“one cannot transcribe an anguished look or a nervous tic. The ability to see and to hear a proceeding as is unfolds is a vital component of the First Amendment right of access.”) 209. Associated Press v. United States Dist. Court, 705 F.2d 1143, 1147 (9th Cir. 1983) (even a 48-hour delay “is a total restraint on the public’s first amendment right of access even though the restraint is limited in time.”). 210. Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 973 (9th Cir. 2002). 211. 435 U.S. 589, 598 (1978). 212. Id. See also U.S. v. McVeigh, 119 F.3d 806 (1997); and United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980). 213. Nixon, 435 U.S. at 597. 214. 467 U.S. 20, 37 (1984). (Nixon v. Warner Communications, Inc. et al called into doubt by In re Roman Catholic Archbishop of Portland in Oregon 557 F.3d 1008 9th Cir. (2011).) 215. Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988); see, e.g., In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986) (documents filed in connection with plea hearings and sentencing hearings in criminal case). 216. See, e.g., Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988) (applying First Amendment right of access to documents filed with summary judgment motion in civil case). 217. Under the common law, a trial court‘s denial of access to documents is reviewed only for abuse of

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In addition to the constitutional and common law rights of access, Federal Rule of Civil Procedure 26(c) provides additional protection by permitting the sealing of court papers only “for good cause shown,” that the particular documents justify court-imposed secrecy.218

Reporter’s Privilege Courts have long recognized the right of certain individuals to refuse to testify in court proceedings. The strongest privilege is found in the Fifth Amendment‘s guarantee that, “no person … shall be compelled in any criminal case to be a witness against himself.”219 Additional privileges protect confidential relationships, such as lawyer-client, physician-patient, and husband-wife. In 1972, the U.S. Supreme Court in Branzburg v. Hayes220 addressed whether the First Amendment grants journalists a privilege to refuse to reveal confidential sources when called to testify before a grand jury. The Court declined to create a testimonial privilege, and held that requiring reporters to appear and testify before state or federal grand juries does not abridge the freedom of speech and press guaranteed by the First Amendment.221 The Court held that the grand jury‘s important role in promoting fair and effective law enforcement outweighed the “consequential, but uncertain, burden on news gathering,”222 and noted that the majority of states had not provided journalists with a statutory privilege, and that no federal statute had done so.223 The Court emphasized, however, that journalists retained significant First Amendment protection. [G]rand jury investigations, if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter‘s relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.224

The concurrence by Justice Powell, who provided the necessary fifth vote for the judgment, emphasized the limited nature of the Court‘s holding, and made clear that the authorities were not free to use journalists as an investigative arm of the government.225 Since Branzburg, lower federal courts generally have followed Justice Powell‘s caseby-case analysis, finding that Branzburg does not preclude the recognition of a qualified reporter‘s privilege when the need for the information is less compelling than a grand jury subpoena.226 This approach has found recent validation in a document discovered among discretion. Nixon v. Warner Communications, Inc., 435 U.S. at 597–99. By contrast, under the First Amendment, such a denial must be “‘necessitated by a compelling government interest, and . . . narrowly tailored to serve that interest.’” Press-Enterprise I, 464 U.S. at 510, quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982). 218. Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996). 219. U.S. Const., Amend. 5. 220. 408 U.S. 665 (1972). 221. Id. at 682–3. 222. Id. at 690. 223. Id. at 689. 224. Id. at 707–708. 225. Id. at 709–24 (Powell, J., concurring). 226. See, e.g., LaRouche v. NBC, 780 F.2d 1134 (4th Cir.), cert. denied, 479 U.S. 818 (1986); United States v. Burke, 700 F.2d 70 (2d Cir.), cert denied, 464 U.S. 816 (1983); Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980);

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Justice Powell’s papers.227 The First, Second, Third, Fourth, Fifth, Ninth, Tenth, and Eleventh Circuits all recognize a qualified reporter‘s privilege. Most of these courts employ a balancing test that weighs the significance of the information sought, the availability of the information from other sources, and the potential harm to the free flow of informaThe reporter’s privilege appears tion.228 Many circuits draw distinctions based on whether the information sought is to be most recognized in civil cases confidential, whether the source of the inforwhere the reporter is being asked mation is confidential, and whether the information sought was published. As a result, to disclose confidential sources, the reporter’s privilege appears to be most and … weaker in criminal cases … recognized in civil cases where the reporter is being asked to disclose confidential sources, and is somewhat weaker in criminal cases, particularly in grand jury proceedings.229 In addition, three developments in the law have created alternative sources for a reporter’s privilege beyond Branzburg. The first is that three years after Branzburg was decided, Congress enacted Rule 501 of the Federal Rules of Evidence, which authorizes federal courts to define new privileges by interpreting “common law principles … in the light of reason and experience.”230 Under the authority of Rule 501, the U.S. Supreme Court recognized a psychotherapist privilege in 1996.231 In Riley v. City of Chester, the Third Circuit held that journalists have a federal common-law qualified privilege arising under Rule 501 to refuse to divulge their confidential sources.232 Riley was a civil case, but the Third Circuit also has held that journalists possess a qualified privilege in criminal cases.233 The second development has been the expansion of legislative and judicial protection of journalists’ sources. When the Supreme Court decided Branzburg in 1972, only a few states United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980), cert. denied, 449 U.S. 1126 (1981); Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir.), opinion supplemented, reh’g denied, 628 F.2d 932 (5th Cir. 1980), cert. denied, 450 U.S. 1041 (1981); Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977); Farr v. Pritchess, 522 F.2d 464, 468–69 (9th Cir. 1975); and Cervantes v. Time, Inc., 464 F.3d 986 (8th Cir. 1972). 227. Justice Powell’s handwritten notes from the Court‘s private Branzburg case conference indicate that while he felt the Court should not establish a constitutional privilege, he clearly believed there is a privilege, analogous to an evidentiary privileges covering communications with spouses, lawyers, and physicians, that courts should apply on a case-by-case basis to protect journalists from being forced to disclose confidential information. Adam Liptak, A Justice’s Scribbles on Journalistic Rights, N.Y. Times, Oct. 7, 2007, at WK1, http://www.nytimes.com/2007/10/07/weekinreview/07liptak.html. 228. See e.g., Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980); United States v. Burke, 700 F.2d 70 (2d Cir.), cert denied, 464 U.S. 816 (1983). 229. See In re Grand Jury Subpoenas (Leggett), 29 Media L. Rep. 2301 (5th Cir. 2001) (unpublished). 230. Jaffee v. Redmond, 518 U.S. 1, 8 (1996), quoting Fed. R. Evid. 501. 231. Id. at 10. 232. 612 F.2d 708 (3d Cir. 1979). Riley v. City of Chester 233. See United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980). See also New York Times Co. v. Gonzales, 459 F.3d 160, 181 (2d Cir. 2006) (Sack, J., dissenting) (“I have no doubt that there has been developed in [the last] thirty-four years federal common-law protection for journalists’ sources under [Rule 501] as interpreted by Jaffee.”); In re Grand Jury Subpoena to Judith Miller, 438 F.3d 1141 (D.C. Cir. 2005), cert. denied sub nom. Miller v. U.S., 545 U.S. 1150 (2005); id., 438 F.3d at 1170–72 (Tatel, J., concurring) (applying Jaffee to find the existence of a common-law reporters’ privilege).

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recognized a reporters privilege.234 Since then, the legal landscape has dramatically shifted, with 49 states and the District of Columbia recognizing either a statutory or common law qualified reporter’s privilege. Thirty-two of these states and the District of Columbia have done so by enacting “shield laws,”235 while the remainder have done so by judicial decision.236 Several federal circuit courts of appeal have also recognized such a privilege.237 Courts recognizing the privilege universally grant it to journalists who are fully employed by a print or broadcast news outlet, regardless of that outlet‘s popularity or viewpoint.238 Freelance writers, book authors, bloggers and others may be able to claim the privilege, although the exact application varies.239

Freedom of Information Whether in the context of a reporter seeking to protect his or her confidential source information, or to gain access to court proceedings or judicial records, numerous judicial precedents safeguard the public’s right to know the business of its courts and the press’s ability to function independently. A separate access issue, which relates to public access to non-judicial materials, arises under the Freedom of Information Act (FOIA) and its state analogues.

234. Branzburg at 689, n. 27 (citing statutes in 17 states). 235. See Ala. Code § 12-21-142; Alaska Stat. §§ 09.25.300 et seq.; Ariz. Rev. Stat. Ann. §§ 12-2214, 12-2237; Ark. Code Ann. § 16-85-510; Cal. Const. art. I, § 2(b); Cal. Evid. Code § 1070; Colo. Rev. Stat. §§ 13-90119, 24-72.5-101 et seq.; Conn. Gen. Stat. § 52-146t; Del. Code. Ann. tit. 10, §§ 4320, et seq.; D.C. Code Ann. §§ 16-4701 et seq.; Fla. Stat. Ann. § 90.5015; Ga. Code Ann. § 24-9-30; 735 Ill. Comp. Stat. 5/8-901 et seq.; Ind. Code § 34-46-4-1, 34-46-4-2; Ky. Rev. Stat. Ann. § 421.100; La. Rev. Stat. Ann. §§ 45:145155; Md. Code Ann. Cts. & Jud. Proc. § 9-112; Mich. Comp. Laws § 767.5a; Minn. Stat. §§ 595.021 et seq.; Mont. Code Ann. §§ 26-1-901 et seq.; Neb. Rev. Stat. §§ 20-144 et seq.; Nev. Rev. Stat. Ann. § 49.275; N.C. Gen. Stat. § 8-53.11; N.J. Stat. Ann. §§ 2A:84A-21 et seq.; N.M. Stat. Ann. § 38-6-7; N.M. R. Evid. 11-514; N.Y. Civ. Rights Law § 79-h; N.D. Cent. Code § 31-01-06.2; Ohio Rev. Code. Ann. §§ 2739.04, 2739.12; Okla. Stat. Ann. tit. 12, § 2506; Or. Rev. Stat. §§ 44.510 et seq.; 42 Pa. Cons. Stat. Ann. § 5942; R.I. Gen. Laws §§ 9-19.1-1 et seq.; S.C. Code Ann. § 19-11-100; Tenn. Code Ann. § 24-1-208. 236. See In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138, 1170 (D.C. Cir. 2006) (Tatel, J., concurring) (citing ”undisputed evidence that forty-nine states plus the District of Columbia offer at least qualified protection to reporters’ sources”). 237. The First, Second, Third, Fourth, Fifth, Ninth, Tenth, Eleventh, and District of Columbia circuits have recognized such a privilege. See Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998); Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910 (1958) and United States v. Burke, 700 F.2d 70 (2d Cir), cert. denied, 464 U.S. 816 (1983); Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979); United States v. Steelhammer, 539 F.2d 273 (4th Cir. 1976), rev’d en banc, 561 F.2d 539 (4th Cir. 1977) and LaRouche v. National Broadcasting Co., 780 F.2d 1134 (4th Cir. 1986), cert. denied, 479 U.S. 818 (1986); Miller v. Transamerican Press, Inc., 621 F.2d 721, 725, as modified, 628 F.2d 932 (5th Cir. 1980), In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983), and U.S. v. Smith, 135 F.3d 963, 969 (5th Cir. 1998); In re Grand Jury Proceedings (Scarce v. United States), 5 F.3d 397, 400 (9th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977); United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986); and Zerilli v. Smith, 656 F.2d 705, 710–11 (D.C. Cir. 1981). 238. See Apicella v. McNeil Labs, Inc. 66 F.R.D. 78, 84–85 (E.D.N.Y. 1975); In re Photo Mktg., 120 Mich. App. 527, 327 N.W.2d 515 (Mich. App. 1982); Summit Tech. v. Healthcare Capital Group, 141 F.R.D. 381 (D.Mass. 1992); and In re Pan Am Corp., 161 B.R. 577 (S.D.N.Y. 1993). 239. Compare, e.g, Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993) (Shoen II) (offering broad protection), with In re Madden, 151 F.3d 125, 130 (3d Cir. 1998) (“[T]he privilege is available only to those persons whose purposes are those traditionally inherent to the press; persons gathering news for publication.”).

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FOIA provides for public access to records maintained by all federal agencies in the executive branch.240 It does not apply to Congress, federal courts, private corporations or federally funded state agencies. State or local governments are not covered under FOIA, but all states have their own open records laws which permit access to state and local records. in the C ourtroom 241 ver the past 25 years, electronic journalists have provided expanded coverage of trial and appellate proceedings in most state courts. And while the legal profession wrings its collective hands over a few instances of timid (or overly dramatic) judges, flamboyant attorneys, and media-savvy witnesses, experience with camera access generally has been favorable, and dozens of cases have been extensively televised. While some blame the camera for what they do not like to see outside the courtroom, whether aggressive reporters trying to interview attorneys or speculation and opinion about how a trial is going, the fact is, the camera inside the courtroom has been the unemotional carrier of truth about what is actually happening at trial.

Camer as

O

The History of Cameras (and Radio) in the Courtroom While the photographic process has been in existence since the early 19th century, and although radio is an early 20th-century invention, expanded coverage is a relatively recent phenomenon. In 1937, following the frenetic media coverage of the trial of Bruno Hauptman, the accused kidnapper of the Lindbergh baby, the American Bar Association (“ABA”) adopted Canon 35 of its Canons of Judicial Ethics242 to prohibit photographic or radio coverage of court proceedings. For several decades following the adoption of the Canon 35243 and the U.S. Supreme Court’s decision in Estes v. Texas,244 journalists were unable to provide photographic coverage from most of the nation’s courtrooms.

240. 5 U.S.C. § 552. 241. Condensed from an article by Barbara Cochran, president emeritus of the Radio Television Digital News Association. 242. “Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting of court proceedings are calculated to detract from the essential dignity of the proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted.” A.B.A. Canons of Jud. Ethics, Canon 35, 62 A.B.A. Rep. 1134–35 (1937). 243. Canon 35 was amended in 1952 by inserting a prohibition against the “televising” of court proceedings; adding the phrase “distract the witness in giving his testimony” before the phrase “degrade the court”; and by adding a second paragraph to permit the televising and broadcasting of certain ceremonial proceedings. 77 A.B.A. Rep. 607, 610–11 (1952). In 1963, Canon 35 was amended a final time to read as follows: The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting or televising of court proceedings detract from the essential dignity of the proceedings, distract participants and witnesses in giving testimony, and create misconceptions with respect thereto in the mind of the public and should not be permitted. Provided that this restriction shall not apply to the broadcasting or televising under supervision of the court, of such portions of naturalization proceedings (other than the interrogation of applicants) as are designed and carried out exclusively as a ceremony for the purpose of publicly demonstrating in an impressive manner the essential dignity and the serious nature of naturalization. 244. 381 U.S. 532 (1965). Estes v. State of Texas Not followed on state law grounds People v. Santiago N.Y. Co. Ct. 185 Misc.2d 138 (2000).

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The 1972 decision to replace Canon 35 with Canon 3A(7) of the ABA Code of Judicial Conduct,245 which allowed limited electronic recording of court proceedings for “instructional purposes in educational institutions,” led several states to experiment with expanded coverage. Florida produced the first test case to reach the U.S. Supreme Court, and in 1981 the Court upheld the constitutionality of Florida’s rules for camera coverage of court proceedings,246 thereby removing one of the obstacles to the adoption of rules facilitating expanded coverage of judicial proceedings by the electronic media. Within a year of the Supreme Court’s ruling, the ABA House of Delegates repealed the 1972 version of Canon 3A(7) and implemented a new Canon 3A(7) which allowed expanded coverage under the supervision and approval of an appellate court.247 As a result, from the 1970s forward, the states have taken a panoply of approaches to regulating expanded coverage. Some states undertook experiments of limited duration, while others made permanent changes to their rules. Some states focused their efforts on both trial and the appellate proceedings, but others limited expanded media coverage to appellate proceedings. Several states decided to make expanded coverage contingent on the consent of various participants. All 50 states now allow media to record trial and/or appellate court proceedings to some extent.248 The states’ approaches toward expanded coverage are as diverse as their constituencies. No court currently provides unfettered access to electronic journalists, and many have explicitly retained authority to limit or terminate expanded coverage if the presence 245. Canon 3A(7) reads as follows: A judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that a judge may authorize: (a) the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration; (b) the broadcasting, televising, recording, or photographing of investiture, ceremonial, or naturalization proceedings; (c) the photographic or electronic recording and reproduction of appropriate court proceedings under the following conditions: (i) the means of recording will not distract participants or impair the dignity of the proceedings; (ii) the parties have consented, and to consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproduction; (iii) the reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and (iv) reproduction will be exhibited only for instructional purposes in educational institutions.” (Temperate conduct of judicial proceedings is essential to the fair administration of justice. The recording and reproduction of a proceeding should not distort or dramatize the proceeding.) 246. Chandler v. Florida, 449 U.S. 560 (1981). 247. The text of the 1982 version of Canon 3A(7) is as follows: A judge should prohibit broadcasting, televising, recording or photographing in courtrooms and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that under rules prescribed by a supervising appellate court or other appropriate authority, a judge may authorize broadcasting, televising, recording and photographing of judicial proceedings in courtrooms and areas immediately adjacent thereto consistent with the right of the parties to a fair trial and subject to express conditions, limitations, and guidelines which allow such coverage in a manner that will be unobtrusive, will not distract the trial participants, and will not otherwise interfere with the administration of justice. The 1982 version of this provision of the Code of Judicial Conduct was eliminated at the 1990 annual meeting, although an identical standard continues to exist in the ABA Standards for Criminal Justice: Fair Trial and Free Press, Standard 8-3.8. 248. House Committee Considers Camera Access to Federal Courts, News Media Update, Sept. 28, 2007, http://www.rcfp.org/news/2007/0928-bct-housec.html.

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of electronic devices proves distracting, disruptive, or threatening to the fairness of the judicial process. The states’ regulation of expanded coverage can be seen as falling somewhere on a spectrum with the most restrictive jurisdiction—Washington, D.C.—at one end, and the most permissive—Florida—at the other. States’ rules fall into three categories: those that broadly allow coverage; those with restrictions prohibiting coverage of important types of cases or sweeping categories of witnesses who may object to coverage; and states that allow only appellate coverage or have such restrictive rules for trial courts that expanded media coverage is effectively prevented. Those states that are grouped closer to Washington, D.C. tend to have rules based on either to 1972 or 1982 versions of Canon 3A(7). Some states toward the middle of the spectrum have kept Canon 3A(7) but have modified it through an order from their highest appellate court.249 The states grouped closer to Florida have generally eschewed Canon 3A(7) and have established, by rule or statute, expanded coverage as something approaching a presumptive right of the media or the public.250 In the federal judicial system, however, only the Second and Ninth circuits allow cameras in their appellate and trial courts.251 The federal courts are now planning a second “experiment” of cameras in selected courts,252 following up on a limited experiment which ran from July 1991 through December 1994. In general, however, Rule 53 of the Federal Rules of Criminal Procedure prohibits the taking of photographs or radio broadcast during criminal trial proceedings.253 This rule has been held not to violate the First or Sixth Amendments,254 and has applied even where, for example, a criminal defendant explicitly requested expanded coverage.255 249. See, e.g., Canon 3A(9), New Jersey Code of Judicial Conduct (“A judge should permit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions only in accordance with the guidelines promulgated by the Supreme Court and subject to the restrictions contained therein.”). 250. The rules of at least one state—Nebraska—even go so far as to speak in terms of “The rights of photographic and electronic coverage.” See, e.g., Rules for Expanded Media Coverage in Nebraska Trial Courts: First Jud. Dist. (Neb. Dist. Ct., 1st Dist.), available at http://www.supremecourt.ne.gov/ rules/trial-court/district-1-exp-media-coverage.pdf. 251. Id. The U.S. Court of Appeals for the Second Circuit has established a permissive rule allowing extended media coverage in all proceedings conducted in open court with the exception of criminal matters and all pro se matters. News organizations wishing to video to record audio or video of proceedings for the Second Circuit must file notification two days in advance of the preceding and must satisfy a series of technical restrictions on equipment that they bring to the court. 2d Cir. R. Part F. The U.S. Court of Appeals for the Ninth Circuit has a moderately more permissive set of guidelines for extended media coverage of proceedings before it. Specifically, “coverage of all proceedings in open court is permitted and prohibited by rule or statute.” United States Court of Appeals for the Ninth Circuit, Guidelines for Photographing, Recording, and Broadcasting in the Courtroom, at http://www.ca9.uscourts.gov/content/view.php?pk_ id=0000000110. Individuals wishing to cover proceedings in the Ninth Circuit must file a notice three days three business days prior to the proceeding and must adhere to the court’s technical guidelines. 252. See U.S. Jud. Conf., Judiciary Approves Pilot Project for Cameras in District Courts (press release) (Sept. 14, 2010), http://www.uscourts.gov/News/NewsView/10-09-14/Judiciary_Approves_Pilot_ Project_for_Cameras_in_District_Courts.aspx. 253. The rule provides, “the taking of photographs in the courtroom during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the courtroom shall not be permitted by the court.” By its terms, Rule 53 does not explicitly pushed prescribed television broadcasting, courts have interpreted it as banning television coverage. See, e.g., U.S. v. Hastings, 695 F.2d 1278 (11th Cir. 1983). 254. U.S. v. Hastings, 695 F.2d 1278, 1284–85 (11th Cir. 1983). 255. Id.

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In November 1993, the Federal Judicial Conference issued a generally favorable evaluation of the first cameras experiment. Two years later, however, the Conference approved a resolution that allows electronic media coverage in federal [appellate] court proceedings subject to the discretion of each Circuit Court of Appeals. and the M edia 256 nglo-American court proceedings— including those related to juries—have been open to the public since before the Norman Conquest. For centuries, “everybody knew everybody on the jury” and “everyone [could] see and know everyone who [was] stricken from a venire list or otherwise does not serve.”257 Like juror identities, the process of selecting the jury has historically been public. “[S] ince the development of trial by jury, the process of selection of jurors has presumptively been a public process with exceptions only for good cause shown.”258 Beginning nearly 30 years ago, the Supreme Court and lower courts recognized that this history of openness gives rise to a constitutional access right.259 Ironically, during this same period, lower courts have increasingly limited public access to information about jurors, especially where there is an unusually high risk to juror safety.260 A few courts have even cited media interest in a case, alone, as sufficient reason to withhold information about juries.261 The risks of openness—to juror safety, the integrity of the proceedings, or simple privacy interests—are clear. But equally important are the risks that attend secrecy in the jury process. The prosecution of reputed mobster John Gotti illustrates the risk of keeping juries behind closed doors. Unbeknownst to the court, prosecutors, or the press, one of the jurors in the Gotti case was George Pape, a man with ties to an Irish-American organized crime group. According to legal scholars who have examined the trial, Pape contacted Gotti’s attorneys, accepted a bribe, and arranged for Gotti’s acquittal.262 If the government, the press, or the public had known Pape was on the jury, the scholars argue, “his potential for corrup- tion might have been unearthed prior to trial.”263 Similarly, the names of jurors were kept secret in the 2001 federal court trial of men accused of working with Osama bin Laden to bomb two American embassies in East Africa. Despite the secrecy, The New York Times managed to contact nine of the jurors and conduct post-verdict interviews. These interviews uncovered the fact that two jurors, “concerned about the religious implications of voting for execution, violated the judge’s directive by consulting their local pastors during deliberations,” that a third juror engaged in

Juries

A

256. Condensed from a chapter by Lucy A. Dalglish and John Rory Eastburg of the Reporters Committee for Freedom of the Press. 257. In re Baltimore Sun Co., 841 F.2d 74, 75 (4th Cir. 1988). 258. Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 505 (1984). 259. See, e.g., id. at 510. 260. See, e.g., U.S. v. Gotti, 784 F. Supp. 1013, 1013 (E.D.N.Y. 1992) (trial of mobster John Gotti); U.S. v. Barnes, 604 F.2d 121, 141 (2d Cir. 1979) (trial of New York drug kingpin Leroy Barnes); and U.S. v. Brown, 250 F.3d 907, 911, 921 (5th Cir. 2001) (trial of Louisiana Governor Edwin Edwards). 261. Gannett Co. v. Delaware, 571 A.2d 735, 737 (Del. 1990) (upholding the use of an anonymous jury simply to curtail media coverage of the jurors, citing concerns about “the overwhelming pretrial publicity in this case, and the similarly extraordinary and unprecedented trial publicity Gannett gave unsequestered jurors” in another trial). 262. Abramovsky & Edelstein, Anonymous Juries: In Exigent Circumstances Only, 13 St. John’s J. Legal Comment 457, 480–81 (1999). 263. Id.

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prohibited Internet research, and a fourth who confessed that he had “confused the court during jury selection about his willingness to impose a death sentence, and from the early stages of the trial had ruled it out.”264 Likewise, a New Jersey court issued an order that prohibited all interviews of former jurors in case where the high-profile murder defendant would soon be retried after the first trial ended in a hung jury.265 Four reporters violated this order, which was later ruled unconstitutional, and uncovered the fact that the foreperson of the jury was apparently not even a New Jersey resident.266 Secrecy in the jury process also risks the rights of the defendant because it may imply that the defendant is unusually dangerous, which in turn impairs the presumption of innocence.267 Defense lawyers also argue that withholding juror information of any type impairs their ability to perform a thorough voir dire.268 Courts have also recognized a First Amendment presumption of access to proceedings and records related to petit juries, as well as a common-law right of access applicable to jury information. In many cases, statutory and rule-based access rights apply as well.

Sources of Access Rights The U.S. Supreme Court consistently has recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases.269 Indeed, the Supreme Court explicitly extended this constitutional presumption of openness to voir dire proceedings in Press-Enterprise Co. v. Superior Court (Press-Enterprise I).270 The Supreme Court has not directly addressed whether the public and the press also have a constitutional right of access to civil proceedings, though a plurality found that “historically both civil and criminal trials have been presumptively open,”271 and many federal and state courts subsequently have recognized a public right of access to proceedings and documents in civil cases, though they have differed on the origin and scope of the

264. Benjamin Weiser, A Jury Torn and Fearful In 2001 Terrorism Trial, N.Y. Times, Jan. 5, 2003, §1 at 1. See also Steven D. Zansberg, The Public’s Right of Access To Juror Information Loses More Ground, 17 WTR Comm. Law. 11, at 3 (2000) (discussing, among others, a case where “[a]ccess to juror information helped reveal that an African-American juror in Washington, D.C., refused to convict an African-American criminal defendant, regardless of the evidence” and another where “it was revealed that a law student juror in a civil libel case had erroneously instructed his fellow jurors on the meaning of the ‘actual malice’ standard”). 265. State v. Neulander, 801 A.2d 255, 257 (2002). 266. Id. at 279. 267. See Ohio v. Hill, 749 N.E.2d 274, 283 (Ohio 2001). 268. See, e.g., U.S. v. Barnes, 604 F.2d 121, 133 (2d Cir. 1979) (defendants claimed that “[t]he district court’s refusal to disclose petit jurors’ identities, residence locales or ethnic backgrounds … denied defendants due process”). 269. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion) (“a presumption of openness inheres in the very nature of a criminal trial under our system of justice”). See also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602 03 (1982) (recognizing First Amendment access right and striking down statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial”); Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13 (1986) (recognizing right of access to preliminary hearings); El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 149 (1993) (same); Waller v. Georgia, 467 U.S. 39, 47 (1984) (“any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors”). 270. 464 U.S. 501, 505 (1984). Press-Enterprise Co. v. Superior Court of California, Riverside County 271. Richmond Newspapers, 448 U.S. at 580 n.17.

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right.272 For example, a unanimous California Supreme Court found both a logical basis and universal support for a constitutional right of access to civil proceedings, saying that “[a]lthough the high court’s opinions in Richmond Newspapers, Globe, Press-Enterprise I, and Press-Enterprise II all arose in the criminal context, the reasoning of these decisions suggests that the First Amendment right of access extends beyond the context of criminal proceedings and encompasses civil proceedings as well.”273 Other courts have reached the same conclusion.274 The federal circuits generally have recognized a constitutional right to many court records as well.275 When considering whether a constitutional presumption of access applies to particular proceedings or records, courts apply the “logic and experience test,” from Press-Enterprise I. The test considers “whether the place and process have historically been open to the press and general public,” and “whether public access plays a significant positive role in the functioning of the particular process in question.”276 Where a constitutional presumption of access applies, the court may close proceedings only after making specific, on-the-record findings: (1) that closure is necessary to further a compelling governmental interest; (2) the closure order is narrowly tailored to serve that interest; and (3) that no less restrictive means are available to adequately protect that interest.277 In addition to the constitutional right, and even where it does not apply, “the courts of this country recognize a general right to inspect and copy public records and documents,

272. See, e.g., Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir. 1984) (“the First Amendment does secure a right of access to civil proceedings”); Westmoreland v. CBS, 752 F.2d 16, 23 (2d Cir. 1984) (“we agree with the Third Circuit in Publicker Industries … that the First Amendment does secure to the public and to the press a right of access to civil proceedings in accordance with the dicta of the Justices in Richmond Newspapers”); In re Iowa Freedom of Information Council, 724 F.2d 658, 661 (8th Cir. 1984) (First Amendment access rights extend to contempt proceedings); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177 (6th Cir. 1983) (First Amendment and common law limit judicial discretion to seal documents in civil litigation); Newman v. Graddick, 696 F.2d 796, 801–03 (11th Cir. 1983) (constitutional right of access to proceedings and common-law right of access to documents in civil case involving prison conditions). 273. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 358 (Cal. 1999). 274. See Mokhiber v. Davis, 537 A.2d 1100, 1107 n.4 (D.C. 1988) (“[n]o court has expressly concluded that the first amendment does not guarantee some right of access to civil trials”), and Barber v. Shop-Rite of Englewood & Associates, Inc., 923 A.2d 286, 293 (N.J.Super.A.D. 2007) (“there is a presumptive right of access to a civil post-verdict jury voir dire”). 275. The Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 86, 93 (2d Cir. 2004) (“the ability of the public and press to attend civil and criminal cases would be merely theoretical if the information provided by docket sheets were inaccessible.”). See also Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 164 (3d Cir. 1993) (finding “a presumptive right of public access to pretrial motions of a nondiscovery nature, whether preliminary or dispositive, and the material filed in connection therewith”); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177, 1179 (6th Cir. 1983) (presumption of access to civil court records and proceedings); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988) (constitutional right of access to “documents filed in connection with a summary judgment motion in a civil case”); Matter of Continental Illinois Securities Litigation, 732 F.2d 1302, 1309 (7th Cir. 1984) (constitutional presumption of access to evidence supporting dispositive motion in civil case); Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983) (“the public and press have a first amendment right of access to pretrial documents in general”). 276. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 8 (1986) (citations omitted). 277. Id. at 13–14. See also Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510–11 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982) (access restrictions must be “necessitated by a compelling governmental interest, and … narrowly tailored to serve that interest”).

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including judicial records and documents.”278 Indeed, the Third Circuit found that in both civil and criminal cases “the existence of a common law right of access to … inspect judicial records is beyond dispute.”279 While courts have recognized that the right applies to a variety of jury-related documents, such as voir dire transcripts280 and jury lists,281 the common-law right of access is far less absolute than the constitutional right, bowing, for example, to the less-thancompelling interest in ensuring that court records “are not ‘used to gratify private spite or promote public scandal’ through the publication of ‘the painful and sometimes disgusting details of a divorce case.’”282 Public access to jury proceedings and records often will also be governed by statute or court rule. For example, the Jury Selection and Service Act of 1968 provides for the disclosure of juror names once the jurors have been summoned and either appeared Jurisdictions … vary regarding the or failed to appear, unless secrecy is in the 283 “interest of justice.” The practical effect of best method for asserting the right this statute is limited, however, because in to access. The Supreme Court has 2004 the Judicial Conference of the United States adopted a policy providing that docudeclined to specify … ments containing identifying information about jurors or potential jurors should no longer be included in the public case file.284 This rule, which was intended as a rule to limit electronic access to juror information, has been interpreted by many court employees as mandating extensive secrecy regarding juror names.

The Right to Challenge Closure The public and the press have a right to be heard on the issue of access to court proceedings and records, including those related to juries.285 Jurisdictions, however, vary regarding the best method for asserting the right to access. The Supreme Court has declined to specify the proper method for requesting access, though “courts have widely recognized that the correct procedure for a non-party to challenge a protective order is through intervention for that purpose.”286 Indeed, some courts say that the press or public must move to intervene in order to challenge closure.287 A minority of courts prefers mandamus, and 278. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (footnote omitted). 279. Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066 (3d Cir. 1984). 280. U.S. v. Antar, 38 F.3d 1348, 1360–61 (3d Cir. 1994). 281. In re Baltimore Sun Co., 841 F.2d 74, 75 (4th Cir. 1988). 282. Nixon, 435 U.S. at 598 (internal citation omitted). 283. 28 U.S.C. Section 1863(b)(7). 284. Judicial Conference of the United States, Judicial Privacy Policy, available at http://www.privacy. uscourts.gov/crimimpl.htm. 285. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 25 (“representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion’”) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)). See also U.S. v. Brooklier, 685 F.2d 1162, 1168 (9th Cir. 1982); In re Application of Dow Jones & Co., 842 F.2d 603, 608 (2d Cir. 1988) (“news agencies have standing as recipients of speech”); U.S. v. Criden, 675 F.2d 550, 552 n.2 (3d Cir. 1982). 286. United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990), citing Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 783 (1st Cir. 1988). See also In re Associated Press, 162 F.3d 503, 507 (7th Cir. 1998) (intervention is the “most appropriate procedural mechanism” for challenging closure orders). 287. See Hertz v. Times-World Corp., 528 S.E.2d 458, 463 (Va. 2000) (mandamus was erroneously granted because intervention provided adequate remedy at law).

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some have questioned whether the media may properly intervene to request access, especially in criminal trials.288 Many courts allow a less formal challenge, in the form of an oral request for access or a letter to the judge overseeing the proceedings at issue.

Voir Dire Proceedings The Supreme Court has recognized a First Amendment presumption of access to voir dire proceedings,289 but this presumption may be overcome only with specific, on the record findings that closure is essential to preserve an overriding interest and is narrowly tailored to serve that interest. The test for closure of voir dire proceedings set forth in Press-Enterprise I is similar to other proceedings to which a First Amendment right of access applies—the presumption of openness “may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest,” and “[t] he interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”290 The presumption of openness could be overcome where “interrogation touches on deeply personal matters that person has legitimate reasons for keeping out of the public domain.291 Press-Enterprise I also offered practical advice for trial judges concerned about particularly embarrassing voir dire questions. The Court said a trial judge “should inform the array of prospective jurors … that those individuals believing public questioning will prove damaging because of embarrassment, may properly request an opportunity to present the problem to the judge in camera but with counsel present and on the record.”292 One court found closure was proper under Press-Enterprise I where the trial judge “allowed the courtroom to be closed in response only to specific requests made by potential jurors to protect their privacy, and only during the discussion of private matters; [and] she immediately reopened the courtroom for any additional questioning of each of the potential jurors once questioning on the private matters was completed.”293 In general, however, appellate courts have made clear that a generalized interest in juror privacy is insufficient.294 Nor may a court simply take a venireperson’s assertion of a privacy interest at face value.295 The defendant’s interest in receiving a fair trial can also overcome the presumption of openness under certain conditions.296 Examples include a racially-charged civil rights prosecution involving allegations that the defendants—connected to the Ku Klux Klan and 288. See, e.g., In re Globe Newspaper Co., 920 F.2d 88, 90 (1st Cir. 1990) (reviewing under the All Writs Act “because the right of a non-party to intervene in a criminal proceeding is doubtful”) (citation omitted). 289. Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), 464 U.S. 501 (1984), 290. Id. at 510. 291. Id. at 511. 292. Id. at 512. 293. Commonwealth v. Jaynes, 770 N.E.2d 483, 492 (Mass. App. 2002). 294. See In re Dallas Morning News Co., 916 F.2d 205, 206 (5th Cir. 1990) (“[w]e are constrained by our reading of Press-Enterprise to conclude that the better practice is for the district court, rather than closing a portion of the voir dire proceeding in anticipation of privacy concerns, to inform the prospective jurors carefully, in advance, that any of them may request to be questioned privately, in the presence only of court personnel, the parties, and the attorneys.”). See also Providence Journal Co. v. Superior Court, 593 A.2d 446, 449 (R.I. 1991) (vaguely-asserted “concern[s] for the privacy rights of prospective jurors and the defendant’s right to a fair trial” were “speculative and were an insufficient basis on which to conclude that a limited closure was necessary”). 295. ee Cable News Network, Inc. v. U.S., 824 F.2d 1046, 1048–49 (D.C. Cir. 1987). 296. Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510 (1984).

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National Socialist Party of America—had murdered civil rights marchers.297 The Second Circuit reached a similar result in a case involving promoter Don King, based on King’s fame and the racial bias issues involved in the case.298 Similarly, the court hearing the first post-September 11 case involving allegations of terrorism to go to trial relied on King in closing voir dire,299 although the court ruled that a transcript of the proceeding would be released after the jury was seated.300 But the Second Circuit made clear that press coverage alone was not enough to justify closure, overturning an order closing voir dire in Martha Stewart’s criminal prosecution.301 While nearly all reported cases deal with access to voir dire in criminal cases, a New Jersey appellate court applied the same standards for closure for civil voir dire, reversing an order closing the proceeding because “in the instant case, there is no compelling, overriding interest which would rebut the presumption of access and that the well-founded concerns of the trial judge could be adequately addressed through less restrictive alternatives than requiring closure.”302

Voir Dire Transcripts Press-Enterprise I recognized a constitutional right of access to voir dire transcripts as well as proceedings.303 The Third Circuit expanded on this in U.S. v. Antar, noting “[i]t would be an odd result indeed were we to declare that our courtrooms must be open, but that transcripts of the proceedings occurring there may be closed, for what exists of the right of access if it extends only to those who can squeeze through the door?”304 Antar described the presumptive right of access under Press-Enterprise I, finding that “a court ordering closure must first establish that the competing interest asserted is not only ‘compelling,’ but also that it outweighs the First Amendment right of access” and “it must determine that the limitations imposed are both necessary to and effective in protecting that interest. One part of establishing the necessity of a limitation is a consideration of alternative measures and a showing that the limitation adopted is the least restrictive means of accomplishing the goal.”305 It added that “these determinations must be covered by specific, individualized findings articulated on the record before closure.”306 The order sealing the voir dire transcripts was thus unconstitutional, since it “violated procedural and substantive aspects of the press’s right of access to the voir dire

297. In re Greensboro News Co., 727 F.2d 1320, 1324 (4th Cir. 1984). 298. U.S. v. King, 140 F.3d 76 (2d Cir. 1998). 299. U.S. v. Koubriti, 252 F. Supp. 2d 424, 433 (E.D. Mich. 2003) (“[T]he Court has found that a sizeable number of prospective jurors have strong views about the Middle East, persons of Middle Eastern descent, the Government and terrorism …. The jurors’ complete candor is absolutely essential to flesh out their views and biases”). 300. Id. at 434–35. 301. ABC, Inc. v. Stewart, 360 F.3d 90, 101 (2d Cir. 2004). 302. Barber v. Shop-Rite of Englewood & Associates, Inc., 923 A.2d 286, 293 (N.J.Super.A.D. 2007). 303. Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 512 (1984). See also U.S. v. Koubriti, 252 F. Supp. 2d 424, 434–35 (E.D. Mich. 2003) (closing portion of voir dire but providing transcripts after jury was seated). 304. 38 F.3d 1348, 1360 (3d Cir. 1994), See also U.S. v. Criden, 648 F.2d 814, 822 (3d Cir. 1981) (“the public forum values emphasized in [Richmond Newspapers] can be fully vindicated only if the opportunity for personal observation is extended to persons other than those few who can manage to attend the trial in person”). 305. U.S. v. Antar, 38 F.3d 1348, 1359 (3d Cir. 1994) (internal citation omitted). 306. Id.

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transcript.”307 In addition to the First Amendment access right, the court found that “the transcript at issue is a public judicial document, covered by a presumptive right of access” under the common law.308

Jury Questionnaires The Supreme Court has not addressed whether jury questionnaires are subject to the same presumption of openness as voir dire, but lower courts have concluded that “the public access mandate of Press-Enterprise applies to voir dire questionnaires as well as to oral questioning,” because “[t]he fact that a lawyer does not orally question a juror about a certain answer does not mean that the answer was not considered in accepting or rejecting the juror.”309 The Ohio Supreme Court agreed, holding that “virtually every court having occasion to address this issue has concluded that such questionnaires are part of voir dire and thus subject to a presumption of openness.”310 Courts may—and sometimes must under local or state rules—redact highly personal information, such as Social Security numbers, telephone numbers, and driver’s license numbers, which does “nothing to further the objectives underlying the presumption of openness.”311 Media intervenors seeking access to questionnaires generally have no objection to such redactions, and in fact often suggest such redactions as less restrictive alternatives to sealing.

Restrictions on Interviewing Jurors Another question courts struggle with is the extent to which they can control contact between jurors and the press, both during and after the trial. Such restrictions pit the First Amendment rights of jurors against the interest of the court in the fair and efficient administration of justice, and also implicate the right of the press to gather news, which is independently protected by the First Amendment.312 During trial, the court’s interest in the administration of justice generally trumps any speech interests, and courts clearly have the authority to prevent the press from interviewing jurors about the proceedings. Thus a Colorado appellate court affirmed a contempt citation against reporters who attempted to interview jurors who had been preliminarily qualified, requiring the court to dismiss the jury and repeat the juror selec-

307. Id. at 1351. 308. Id. at 1360 (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)). 309. Lesher Communications, Inc. v. Superior Court, 224 Cal. App. 3d 774, 778 (1990). See also Copley Press, Inc. v. Superior Court, 228 Cal. App. 3d 77, 81, 87 (1991) (agreeing that “the press is constitutionally entitled to have access to [jury] questionnaires,” but finding no constitutional right of access to questionnaires completed by venirepersons who were not called to the jury box for voir dire). 310. State ex rel. Beacon Journal Publishing v. Bond, 781 N.E.2d 180, 190 & n.3 (citing U.S. v. McDade, 929 F. Supp. 815, 817, fn. 4 (E.D. Pa. 1996); U.S. v. Antar, 38 F.3d 1348, 1359–60 (3d Cir. 1994); In re Washington Post, 1992 WL 233354 (D.D.C. July 23, 1992); Copley Press, Inc. v. Superior Court, 228 Cal. App. 3d 77, 89 (1991); In re S. Carolina Press Assn., 946 F.2d 1037, 1041 (4th Cir. 1991); Lesher Communications, Inc. v. Superior Court, 224 Cal. App. 3d 774, 778 (1990); and In the Matter of Newsday, Inc., 159 A.D.2d 667, 669–70 (N.Y. Sup. Ct. 1990)). 311. Id. at 190. 312. See In re Express News Corp., 695 F.2d 807, 808 (5th Cir. 1982) (invalidating court rule prohibiting post-verdict juror interviews because “news-gathering is entitled to first amendment protection”); see also Branzburg v. Hayes, 408 U.S. 665, 681 (1972) (“without some protection for seeking out the news, freedom of the press could be eviscerated”); Food Lion Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 520 (4th Cir. 1999) (same); CBS Inc. v. Young, 522 F.2d 234, 239 (6th Cir. 1975).

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tion process.313 But since “the threat to justice caused by news media contact with jurors is much lower after trial than it is during trial,”314 post-verdict limitations on interviewing jurors are presumptively invalid prior restraints on speech. Any party seeking a no-contact order “must show that the activity restrained poses a clear and present danger or a serious and imminent threat to a protected competing interest; the restraint must be narrowly drawn and no reasonable alternatives, having a lesser impact on First Amendment freedoms, must be available.”315 Still, courts have occasionally approved narrowly tailored orders in unusual cases, especially limitations on repeated requests for interviews or discussions of jury deliberations or other juror’s votes. For example, in Journal Pub. Co. v. Mechem,316 the court opined that a trial court could permissibly instruct “jurors that they may refuse interviews and seek the aid of the court if interviewers persist after they express a reluctance to speak” or tell “jurors not to discuss the specific votes and opinions of non-interviewed jurors in order to encourage free deliberation in the jury room.”317 Similarly, in a high-profile case involving the murder of a federal judge, the Fifth Circuit upheld an order that prohibited repeated requests for interviews or inquiries “into the specific vote of any juror other than the juror being interviewed.”318 The same circuit later upheld a similar restriction providing that “no juror may be interviewed by anyone concerning the deliberations of the jury,” including “the discussions about the case occurring among jurors within the sanctity of the jury room” but excluding an interviewee’s own “general reactions” to the proceedings.319 Of course, jurors are always free to decline interviews with the press, and the court is free to instruct them that “[a] juror may speak or remain silent as he desires.”320 Finally, in an unusual case, the New Jersey Supreme Court upheld restrictions on press contact with jurors following a hung jury in a capital murder trial that was certain to result in the defendant’s imminent retrial.321 That court allowed restrictions on media contact with jurors, on the ground that “jurors submitting to media interviews might reveal some insight into the jury’s deliberative process that would afford the prosecution a significant advantage at the retrial and thereby provide defendant with a colorable Sixth Amendment issue for appeal in the event of a conviction.”322

Anonymous Juries The first fully anonymous jury impanelled in the United States was the 1977 trial of drug kingpin Leroy Barnes in New York City.323 By the mid-1990s, some courts were using anonymous juries regularly. A county court in Ohio, for example, impanelled anonymous juries in all cases, civil and criminal.324 At 313. In re Stone, 703 P.2d 1319, 1320–21 (Colo. App. 1985). 314. Journal Pub. Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir. 1986). 315. U.S. v. Sherman, 581 F.2d 1358, 1361–62 (9th Cir. 1978) (internal citations omitted). 316. 801 F.2d 1233, (10th Cir. 1986). 317. Id. at 1236–37. 318. U.S. v. Harrelson, 713 F.2d 1114, 1118 (5th Cir. 1983). 319. U.S. v. Cleveland, 128 F.3d 267, 269–70 (5th Cir. 1997). 320. U.S. v. Sherman, 581 F.2d 1358, 1361, 1362 (9th Cir. 1978). 321. New Jersey v. Neulander, 801 A.2d 255, 257 (N.J. 2002). 322. Id. at 272. 323. U.S. v. Barnes, 604 F.2d 121 (2d Cir. 1979). 324. See Ohio v. Hill, 749 N.E.2d 274, 278–79 (Ohio 2001). Appeal After New Trial State v. Hill, 2006 WL 759702, 2006-Ohio-1408 (Ohio App. 5 Dist. Mar 20, 2006).

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the other end of the spectrum, the Massachusetts high court concluded that an anonymous jury is constitutionally valid only if “the trial judge has first determined on adequate evidence that anonymity is truly necessary and has made written findings on the question.”325 Despite the recently popularity of anonymous juries, “[m]ost federal and state courts which have addressed this issue have articulated a limited or qualified right” to juror names and addresses.326 One court noted that this presumption of openness could be overcome only where there is a “credible threat of jury tampering … a risk of personal harm to individual jurors,” or “other evils affecting the administration of justice,” and that the “personal preferences of the jurors and the judge’s distaste for exposing them to press interviews” is not enough to outweigh the presumption in favor of openness.327 Courts are not in complete agreement in recognizing a First Amendment right to juror identities. In In re Baltimore Sun Co., the Fourth Circuit cited Press-Enterprise I but recognized a common-law presumption of access to the names of venirepersons,328 and expressly declined to decide whether to also recognize a First Amendment right of access. A minority of courts have refused to recognize any right of access to juror identifying information. The Fifth Circuit329 and the Delaware Supreme Court330 have so ruled. Statutes also play a role. For example, the Fourth Circuit found that information on a venire list compiled by clerk from completed questionnaires, beyond names and addresses of potential jurors, could be kept secret pursuant to 28 U.S.C. section 1867(f) until the jury is seated.331 The use of anonymous juries is “a drastic measure, one which should be undertaken only in limited and carefully delineated circumstances.”332 Still, most courts allow anonymous juries in exceptional cases, where a strong argument exists to protect the safety of the jurors or the integrity of the proceedings. Most federal appellate courts have based the decision for an anonymous jury on some combination of the following five factors: (1) the defendant’s involvement in organized crime; (2) the defendant’s participation in a group with the capacity to harm jurors; (3) the defendant’s past attempts to interfere with the judicial process; (4) the potential that the defendant will get a long jail sentence or substantial fines if convicted; and (5) extensive publicity that could expose jurors to intimidation or harassment.333 A few courts have formulated the factors differently, saying anonymous juries should be used in cases where: (1) there are persons who participated in large-scale organized crime and who participated in mob-style killings and had previously attempted to interfere with the judicial process; (2) defendants had a history of jury tampering and serious criminal

325. Massachusetts v. Angiulo, 615 N.E.2d 155, 171 (Mass. 1993). 326. In re Disclosure of Juror Names and Addresses, 592 N.W.2d 798, 799 (Mich. App. 1999). 327. In re Globe Newspaper Co., 920 F.2d 88, 91, 97 (1st Cir. 1990). 328. In re Baltimore Sun Co., 841 F.2d 74, 76 (4th Cir. 1988). 329. See U.S. v. Gurney, 558 F.2d 1202, 1210 (5th Cir. 1977). 330. Gannett Co. v. Delaware, 571 A.2d 735, 745 (Del. 1989). A later court criticized the ruling and added that it was “substantially influenced by” what it called “Gannett’s egregious conduct in a previous trial.” In re Disclosure of Juror Names and Addresses, 592 N.W.2d 798, 808 (Mich. App. 1999). 331. In re Baltimore Sun, supra, at 76. 332. U.S. v. Ross, 33 F.3d 1507, 1519 (11th Cir. 1994). 333. See, e.g., U.S. v. Sanchez, 74 F.3d 562, 564 (5th Cir. 1996) (quoting U.S. v. Krout, 66 F.3d 1420, 1427 (5th Cir. 1995)); U.S. v. Mansoori, 304 F.3d 635, 649 (7th Cir. 2002); U.S. v. Branch, 91 F.3d 699, 724 (5th Cir. 1996); U.S. v. Darden, 70 F.3d 1507, 1532 (8th Cir. 1995); U.S. v. Edmond, 52 F.3d 1080, 1091 (D.C. Cir. 1995); U.S. v. Ross, 33 F.3d 1507, 1520 (11th Cir. 1994).

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records; or (3) there are allegations of dangerous and unscrupulous conduct by the defendant, coupled with extensive pretrial publicity.334 Still, courts occasionally issue orders or local rules that require all juror names be kept secret. For example, the court in Ohio v. Hill,335 due to waiver of the anonymity issue, “decline[d] to consider the propriety of the anonymous-jury local rule, even though we recognize that the rule implicates important concerns that would clearly be worthy of review by this court if the issue had been properly presented.”336 Likewise, in 2008 the Eastern District of Kentucky enacted a blanket rule refusing to release juror names, in response to a newspaper request for access in a high-profile case.337 The Los Angeles Superior Court has experimented with various methods of keeping the names of jurors from the public, initially adopting an unwritten policy of “keep[ing] the identities of the prospective jurors confidential, even from trial counsel.”338 After the California Court of Appeal found the policy was adopted in error,339 the Superior Court then adopted a new rule whereby criminal jurors were referred to in court by the last four digits of their juror identification number.340 The Court of Appeal criticized this procedure but did not find it unconstitutional, because there was no evidence that “the public or the news media were precluded from ascertaining jurors’ names during the trial.”341 The most important example of practice deviating from the constitutional presumption of access to juror identities is a policy adopted by the Judicial Conference of the United States in 2004 as part of its guidelines permitting electronic access to criminal case records in federal courts. The policy provides that “documents containing identifying information about jurors or potential jurors” shall “not be included in the public case file and should not be made available to the public at the courthouse or via remote electronic access.”342 According to the Administrative Office of U.S. Courts, the policy was intended to prevent electronic access to juror identities during trial and does not prevent post-trial access to jurors’ identities, which are available in the jury management database maintained by

334. U.S. v. Talley, 164 F.3d 989, 1001 (6th Cir. 1999) (quoting U.S. v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991)). 335. 749 N.E.2d 274, 278–79 (Ohio 2001). 336. Id. at 281. 337. General Order Number 08-13 (E.D. Ky. 2008); see also Kathleen Cullinan, Shrouded in the jury box, 32 News Media & The Law, No. 3, at 6 (2008). 338. People v. Phillips, 56 Cal. App. 4th 1307, 1309 (1997). 339. Id. See also Erickson v. Superior Court, 55 Cal. App. 4th 755, 757 (1997) (striking down another court’s local rule that “purport[ed] to extend sealing of juror identifying information throughout all civil and criminal proceedings, in effect adopting a procedure ensuring anonymity of jurors absent granting of a petition for access to personal juror identifying information”). 340. People v. Goodwin, 59 Cal. App. 4th 1084, 1089 (1997). 341. Id. at 1093, n.6. The court rules evaluated in Phillips, Erickson, and Goodwin all purported to implement a California statute which requires that, after criminal trial concludes, “the court’s record of personal juror identifying information of trial jurors … consisting of names, addresses, and telephone numbers, shall be sealed until further order of the court as provided by this section.” Cal. Code Civ. P. § 237(a)(2); see also Tex. Crim. P. Code Ann. § 35.29 (requiring a showing of good cause to release “[i] nformation collected by the court or by a prosecuting attorney during the jury selection process about a person who serves as a juror, including the juror’s home address, home telephone number, social security number, driver’s license number, and other personal information”). 342. Judicial Conference of the United States, Judicial Privacy Policy, available at http://www.privacy. uscourts.gov/crimimpl.htm.

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each federal district court.343 But court employees appear confused about what the policy requires, often denying all requests for juror information.344

Access to Grand Juries “Since the 17th century, grand jury proceedings have been closed to the public, and records of such proceedings have been kept from the public eye.”345 The secrecy rule, adopted from England, has become an integral—some say essential—part of the American criminal justice system. For this reason, courts applying the Press-Enterprise test have made clear that there is no First Amendment right of public access to grand jury proceedings.346 Participants, except witnesses, generally are forbidden from disclosing matters related to the grand jury, even after the grand jury’s activities have concluded.347 The limits on access to grand juries also applied to records of federal grand jury proceedings, which remain confidential “to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury.”348 It is left to the court to determine when to release such records.349 Access to state grand jury transcripts varies. In California, transcripts of grand jury testimony become public record after an indictment is returned, unless a defendant can show a reasonable likelihood that release of part or all of the transcripts would prejudice his right to a fair trial.350 Other states have no such law. A Massachusetts trial judge, for example, unsealed all court documents except the grand jury transcripts in Commonwealth v. Pitsas, a 2004 case involving a retired dentist charged with accidentally poisoning an infant.351 Moreover, in U.S. v. Smith,352 the Third Circuit Court of Appeals held that there is no presumptive First Amendment or common law right of access to court documents involving materials presented before a criminal grand jury. The same presumption of secrecy generally applies in the case of civil, or watchdog, grand juries. In 1988, for example, the Supreme Court of California concluded that a grand jury could not disclose as part of its report “raw evidentiary materials,” including hearing transcripts and interviews con-

343. See Reporters Committee for Freedom of the Press, Secret Courts: Secret Juries, available at http://www.rcfp.org/secretjustice/secretjuries. 344. See id. (reporting incidents where staff in eight federal districts denied a reporter’s request for juror information from the jury management database). 345. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 n.9 (1979). 346. See U.S. v. Smith, 123 F.3d 140, 148 (3d Cir. 1997) (“grand jury proceedings are not subject to a First Amendment right of access under the [Press-Enterprise] test of ‘experience and logic’”). 347. Exceptions to this secrecy exist in some states. See, e.g., Cal. Penal Code § 939.1 (where the court “finds that the subject matter of the investigation affects the general public welfare” it “may make an order directing the grand jury to conduct its investigation in a session or sessions open to the public”). 348. Fed. R. Civ. Proc. 6(e)(6). 349. See, e.g., In re Sealed Case No. 99-3091, 192 F.3d 995, 1004–05 (D.C. Cir. 1999) (while it would ordinarily violate court rules to reveal that a grand jury was investigating a target, disclosure by Office of Independent Counsel’s public confirmation that President Bill Clinton was the subject of a grand jury investigation was not a basis for a contempt finding, since in this case it was no secret the grand jury was investigating Clinton, as “the President himself went on national television the day of his testimony to reveal this fact.”). 350. Cal. Pen. Code § 938.1 (grand jury “transcript shall not be open to the public until 10 days after its delivery to the defendant or the defendant’s attorney,” but “[t]hereafter the transcript shall be open to the public unless the court orders otherwise ...”). 351. Kimberley Keyes, Judge releases defendant’s statements in fatal poisoning case, http://www.rcfp.org/ newsitems/index.php?i=4022. 352. 123 F.3d 140, 143 (3d Cir. 1997).

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ducted by the prosecutor, gathered during a watchdog investigation that failed to yield any indictments.353

Proceedings Ancillary to a Grand Jury Investigation Under federal rules, not only are grand jury proceedings themselves closed to the public, but so are proceedings on matters affecting a grand jury proceeding, “to the extent One exception to the rule of grand necessary to prevent disclosure of a matter occurring before a grand jury.”354 Such ancil- jury secrecy concerns witnesses, lary proceedings often involve matters such who are free to speak publicly as motions to quash grand jury subpoenas, motions requesting immunity from prosecuregarding their testimony before a tion and motions to compel testimony. grand jury. For example, federal courts have held that the media had no right of access to papers or proceedings involving: a claim by an anonymous grand jury witness that he was the victim of illegal electronic surveillance by the government;355 allegations of government misconduct in releasing a sentencing memorandum that allegedly violated the grand jury secrecy rule;356 and objections to a grand jury subpoena and other ancillary matters during the investigation of President Clinton.357 At the state level, a California appeals court extended the rule of grand jury secrecy to motions to quash grand jury subpoenas served on an archdiocese in a priest sex abuse case.358 That is not to say the court should release no information at all about grand jury ancillary proceedings, since federal or local rules sometimes allow (or even compel) release. The D. C. Circuit, for example, noted that if a judge “can allow some public access without risking disclosure of grand jury matters … Rule 6(e)(5) contemplates that this shall be done.”359 One exception to the rule of grand jury secrecy concerns witnesses, who are free to speak publicly regarding their testimony before a grand jury.360 Some courts, however, have narrowly interpreted this rule, permitting grand jury witnesses to divulge only what they knew before they testified, drawing a line “between information the witness possessed prior to becoming a witness and information the witness gained through her actual participation in the grand jury process.”361 Moreover, the Seventh Circuit held that witnesses

353. McClatchy Newspapers v. Superior Court, 751 P.2d 1329, 1337–38 (Cal. 1988). 354. Fed. R. Crim P. 6(e)(5). 355. In re Grand Jury Subpoena, 103 F.3d 234, 236 (2d Cir. 1996). 356. U.S. v. Smith, 123 F.3d 140, 156 (3d Cir. 1997). 357. In re Dow Jones & Company, Inc., 142 F.3d 496, 506 (D.C. Cir. 1998). 358. Los Angeles Times v. Superior Court, 114 Cal. App. 4th 247, 251–52 (2003). 359. In re Dow Jones & Company, Inc., 142 F.3d at 502 (citation omitted). 360. Butterworth v. Smith, 494 U.S. 624, 626 (1990). In re Sealing and Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F.Supp.2d 876 (S.D.Tex. 2008) (A recent case that follows Butterworth: In order to justify prior restraint on speech, government must demonstrate that: (1) activity restrained poses clear and present danger or serious and imminent threat to compelling government interest; (2) less restrictive means to protect that interest are unavailable; and (3) restraint is narrowly tailored to achieve its legitimate goal. Butterworth’s concerns about indefinite bans of silence are no less applicable here. The basic context is the same: a witness in possession of information material to a criminal investigation is barred from making public statements about a matter of public interest for an indefinite period of time after the investigation is closed.) 361. Hoffmann-Pugh v. Keenan, 338 F.3d 1136, 1140 (10th Cir. 2003); see also San Jose Mercury News v. Criminal Grand Jury, 122 Cal. App. 4th 410, 413, 415 (2004).

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could be ordered to remain entirely silent regarding their testimony if the government could produce a “compelling necessity … shown with particularity.”362 and P ublic C omment 363 s public officials, judges often handle cases of interest to the public, and are often called upon to give speeches and preside at public events. In many jurisdictions, judges must present themselves to the public as candidates for election to judicial office. Unlike other public officials, however, judges are required, by the nature of the judicial office, to behave in a manner that is free of even the appearance of impropriety.

Judicial Ethics

A

Ethical Considerations Judicial Impartiality, Integrity and Independence. Canon 1 of the 2007 version of the American Bar Association’s Model Code of Judicial Conduct (hereafter the ABA Code) calls upon the judge to “uphold and promote the independence, integrity, and impartiality of the judiciary…”364 These three alliterative imperatives (often referred to as the three “i”s) provide a framework for discussing and analyzing judicial ethics.365 As a public person held to the highest standards of ethical behavior, a judge demonstrates his or her commitment to maintaining public confidence in the integrity, impartiality, and independence of the judiciary not only by avoiding improper conduct, but also by avoiding the appearance of impropriety.366 Judges who run afoul of the appearance of impropriety standard generally do so through indirect attempts to abuse, or take improper advantage of, the prestige of their judicial office. Thus while a judge may assist an organization in planning a fundraising event, a judge may not personally solicit contributions.367 Judges may also create an appearance of impropriety by using the prestige of their office to further their personal interests or those of others.368 Similarly, judges may create an 362. In re Grand Jury Subpoena Duces Tecum, 797 F.2d 676, 681 (8th Cir. 1986) quoting U.S. v. Procter & Gamble, 356 U.S. 677, 682 (1958). 363. Condensed from an article by James J. Alfini (Professor of Law and Dean Emeritus, South Texas School of Law); Michael P. Vargo; and Allison Jeffcoat. 364. 2007 American Bar Association Model Code of Judicial Conduct, Canon 1 (hereafter 2007 ABA Code). 365. Comment [3] to Canon 1 states: “Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary.” 2007 ABA Code, Canon 1, Comment [2]. The 2007 version of the ABA Code defines each of these values in the Terminology section. 366. Canon 1 of the 2007 version of the ABA Code also calls upon the judge to “avoid impropriety and the appearance of impropriety.” 2007 ABA Code, Canon 1. Comment [5] to Canon 1 sets forth the following test for appearance of impropriety: “… whether the conduct would create in reasonable minds a perception that the judge violated the Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.” 2007 ABA Code, Canon 1, Comment [5]. For an excellent discussion of the appearance of impropriety standard, see Cynthia Gray, Avoiding the Appearance of Impropriety: With Great Power Comes Great Responsibility, 89 Judicature 35 (2005). 367. See, generally, 2007 ABA Code, Rule 3.7: Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities. 368. Rule 1.3 of the 2007 ABA Code states, “A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.” See., e.g., In the Matter of Collester, 599 A.2d 1275 (1992) (sanctioning a judge who, stopped on suspicion of driving while intoxicated and asked for his driving credentials, told the officer he was a judge, and repeated the statement during field sobriety tests). See also, In re Heiple, No. 97-CC-1, Order (Illinois Courts Commission, April 30, 1997) (censuring Chief Justice of the Illinois Supreme Court for displaying his Illinois Supreme Court Justice credentials instead of producing his driver’s license as

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appearance of abusing the prestige of their office by using their judicial letterhead when sending personal letters.369 Although the appearance of impropriety standard has been criticized for being unconstitutionally vague and overbroad, the American Bar Association House of Delegates voted in 2007 to retain the language.370 After the Conference of Chief Justices objected,371 the ABA House of Delegates adopted a version that included a test for the appearance of impropriety in the commentary to the Rule.372

Campaigning for Office373 Restrictions on Campaign Advocacy. Canon 7B(1)(c) of the 1972 Model Code of Judicial Conduct cautions that a candidate for a judicial office, “should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; announce his views on disputed legal or political issues; or misrepresent his identity, qualifications, present position, or other fact.”374 The dictates of Canons 5A(3)(d) of the 1990 Code are similar, except that there is no prohibition against judges announcing their views on disputed legal or political issues.375 These provisions were revised following the decision of the U.S. Supreme Court ruling in Minnesota Republican Party v. White,376 in which a provision of the Minnesota Code of Judicial Conduct restricting judicial campaign speech was ruled unconstitutional on First Amendment grounds. The language that the Supreme Court declared unconstitutional in White was the “announce clause,” a key provision in the 1972 version of the ABA Model Code of Judicial Conduct.377 Only nine states, including Minnesota, still had the announce clause in their judicial ethics canons at the time of the decision in White.378 Following the White decision, states have struggled to close the gap between the conflicting interests that are present in electing an impartial judiciary. While some federal courts have read White broadly and struck down other ethics restrictions on requested when stopped by police for speeding on a number of occasions.). 369. In re Mosley, 102 P.3d 555 (Nev. 2004) (censuring a judge who used his judicial letterhead to inform school officials that his ex-girlfriend had lost custody of their child, finding irrelevant the fact that the school already knew he was a judge). 370. 2007 ABA Code, Scope [2]. 371. Conference of Chief Justices, Resolution 3, (Feb. 7, 2007)(“the Conference of Chief Justices opposes any revised version of the Model Code of Judicial Conduct that does not include a provision requiring avoidance of impropriety and the appearance of impropriety both as an aspirational goal for judges and as a basis for disciplinary enforcement.”). 372. See Canon 1, Rule 1.2, Comment [5]. 373. This section is largely adapted from James J. Alfini, Steven Lubet, Jeffrey M. Shaman, and Charles Gardner Geyh, Judicial Conduct and Ethics 11-13 - 11-66 (4th ed. 2007). 374. Canon 7B(1)(c), 1972 ABA Model Code of Judicial Conduct. 375. Canon 5A(3)(d) of the 1990 Model Code states that a judicial candidate, “shall not: (i) with respect to cases controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office; or (ii) knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent.” Canon 5A(3)(e) permits a judicial candidate to respond to personal attacks or attacks on the candidate’s record as long as the response does not violate Canon 5A(3)(d). 376. 536 U.S. 765 (2002). 377. “[A] candidate for a judicial office, including an incumbent judge,’’ shall not “`announce his or her views on disputed legal or political issues.” Minn. Code of Judicial Conduct, Canon 5A(3)(d)(i) (2000). 378. ABA Standing Committee on Judicial Independence, The Supreme Court Speaks—Can Judicial Candidates? Life After Republican Party of Minnesota v. White, Aug. 9, 2002 Annual Meeting of the ABA, Washington, D. C.

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campaign conduct,379 generally state high courts have read White more narrowly and upheld those provisions.380 The need to secure and maintain an impartial judiciary plays a central role in the current debate over restrictions on judicial campaign speech.381 Proponents of campaign speech restrictions agree with the four dissenting justices in White, who wrote that “By obscuring the fundamental distinction between campaigns for the judiciary and the political branches … the Court defies any sensible notion of the judicial office and the importance of impartiality in that context.”382 The White decision has prompted changes in the wording of various state judicial ethics provisions. The Supreme Court of North Carolina has taken what is perhaps the most extreme reaction to White by effectively eliminating virtually all restrictions on judicial campaign activities from its code of judicial conduct.383 In August 2003, the House of Delegates of the American Bar Association responded to the White decision by adopting the revised Canon 5A(3)(d) of the Model Code of Judicial Conduct. Candidate Questionnaires. The White decision has also prompted the more frequent use of judicial candidate questionnaires by the media and special interest groups for use in news stories, or to formulate an endorsement. Prior to the White decision, most advisory opinions strongly disapproved of the practice, with judicial candidates advised to refuse to respond to questionnaires from organizations soliciting their views on subjects such as gun control, abortion, the Equal Rights Amendment, regulation of condominiums, and the right to work.384 A county bar association was cautioned not to survey the views of candidates for judicial office as to whether they agreed or disagreed with specific decisions of an appellate court.385 However, the same bar ethics committee later ruled that a bar association would be permitted to circulate a questionnaire designed to elicit candidates’ criticisms of prior court decisions in a fair and reasonable manner that would not create the impression that a candidate would later act with bias or partiality.386

379. See Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002) (holding that the Georgia version of the “misrepresent’’ clause is overbroad and violates the First Amendment). 380. See In re Watson, 794 N.E. 2d 1 (N.Y. 2003) (upholding Section 100.5(A)(4)(d)(i) of the New York Rules Governing Judicial Conduct, which prohibits a judicial candidate from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.”); and Inquiry Concerning Kinsey, 842 So.2d 77 (Fla. 2003) (reprimanding and fining a judge $50,000 for a pro-prosecution campaign speech.) 381. See Paul McGreal and James J. Alfini, “Debate, First Amendment Limits on the Regulation of Judicial Campaign Speech: Defining the Government’s Interest”, 157 U. PA. L. Rev. PENNumbra 76 (2008), available at http://www.pennumbra.com/debates/pdfs/JudicialCampaignSpeech.pdf. 382. 536 U.S. at 797 (Stevens, J., dissenting). Rejecting this notion, the Eleventh Circuit panel that that struck down other judicial campaign restrictions in Weaver v. Bonner read White in the extreme: “… we believe that [the majority opinion in White] suggests that the standard for judicial elections should be the same for legislative and executive elections … we do not believe the distinction, if there truly is one. justifies greater restrictions on speech during judicial campaigns than during other campaigns.” Weaver v. Bonner, 309 F.3d 1312, (11th Cir. 2002). 383. Order Adopting Amendments to the North Carolina Code of Judicial Conduct, April 2, 2003. For a discussion of the reaction of North Carolina judges to these changes, see Matthew Eisley, Judges Balk at Too Much Freedom, NAT’L L.J., Oct. 17, 2003. 384. See e.g.,Fla. Sup. Ct. Comm. on Standards of Conduct Governing Judges, Op. 80-13 (1980). 385. State Bar of Mich. Comm. on Prof. and Judicial Ethics, Formal Op. C-222 (1982); State Bar of Mich. Comm. on Prof. and Judicial Ethics, Informal Op. CI-696 (1982). 386. State Bar of Mich. Comm. on Prof. and Judicial Ethics, Informal Op. CI-921 (1983).

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The State of Oregon had forbidden comments on political issues, but permitted comments on legal issues.387 In attempting to differentiate between the two, Oregon indicated that the death penalty, pretrial release of criminal defendants, the purposes to be accomplished by sentencing, and the selection method used to choose judges are all legal issues.388 In Pittman v. Cole,a federal district court enjoined the Alabama Judicial Inquiry Commission and the Alabama State Bar Office of General Counsel from enforcing their opinions advising candidates for judicial office not to answer a questionnaire from the Christian Coalition of Alabama.389 On appeal, the U. S. Court of Appeals vacated the district court’s order, with instructions to certify any state law questions that would affect the outcome of the case to the Supreme Court of Alabama.390 However, before the trial court could certify any questions to the Alabama Supreme Court, the commission withdrew its advisory opinion in light of Republican Party of Minnesota v. White.391 Although the Christian Coalition sought a definitive ruling on the constitutionality of its questionnaire, the Eleventh Circuit ruled that the case was moot.392 Comment [15] to the 2007 Code Rule 4.1 offers advice to a candidate seeking to avoid violating the pledges, promises, and commitments clause of Rule 4.1(A)(13). The comment states, in part: “… candidates who respond to media and other inquiries should … give assurances that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially if elected.”393 The comment also offers advice to candidates who choose not to respond, stating that they “may state their reasons for not responding, such as the danger that answering might be perceived by a reasonable person as undermining a successful candidate’s independence or impartiality, or that it might lead to frequent disqualification.”394

Campaign A dvertisements and E ndorsements . Canons 5C(1)(b)(ii) and (iii) of the 1990 Code and Rule 4.2(B)(2) of the 2007 Code provide that judicial candidates may promote their campaigns through a wide range of print and broadcast media. Generally, advisory opinions merely specify that advertisements for a judicial candidate must contain statements that are true, must maintain the dignity appropriate to judicial office, and may not make false statements designed to promote the election or defeat of a candidate.395

387. See Or. Judicial Conf., Judicial Conduct Comm., Ethics Op. 78-5 (1980). 388. Id. 389. Pittman v. Cole, 117 F. Supp. 2d 1285 (S.D. Ala. 2000). 390. Pittman v. Cole, 267 F.3d 1269 (11th Cir. 2001) (vacating and remanding with instructions). 391. Christian Coalition of Alabama v. Cole, 355 F. 3d 1288, 1290 (2004). 392. Christian Coalition of Alabama v. Cole, 355 F.3d 1288 (11th Cir. 2004) (affirming that the Alabama Judicial Inquiry Commission’s withdrawal of advisory opinion rendered claim moot). 393. Comment [15], 2007 Code Rule 4.1. 394. Id. 395. See e.g. Ohio State Bar Ass’n Comm. on Legal and Prof. Conduct, Informal Op. 84-4 (1984). See also Order of Private Reprimand (Ky. Judicial Retirement and Removal Comm’n, Aug. 20, 1992) (non-judge candidate reprimanded for distributing campaign materials susceptible to the misimpression that he was representing himself as the incumbent judge); In re Harper, 673 N.E.2d 1253 (Ohio 1996) (judge reprimanded for a television advertisement for supreme court justice that included a statement which, although an expression of opinion, implied a false assertion of fact); In re Polito, Determination (N.Y. Comm’n Dec. 23, 1998) (judge admonished for graphic and sensational campaign advertisements).

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Some restrictions exist on direct mail contact with voters. A lawyer may use law office stationery to advertise a candidacy,396 but other opinions hold that it is improper for a judge to use his or her court stationery for the same purpose.397 Campaign advertisements are subject to the 1990 Code Canon 5A(3)(a) requirement that a campaign be conducted with dignity. All jurisdictions that have addressed the question agree that an incumbent judge may be pictured in his or her robe in campaign materials, so long as the picture is not misleading.398 A candidate who was not presently a judge, but who had previously served on the bench, was allowed by the Florida ethics advisory committee to use a picture taken during his previous tenure in campaign materials, which clearly explained the source of the picture and the dates when he previously served.399 Other jurisdictions, however, disagree with this position.400 A few jurisdictions have ruled on the propriety of photographs of a candidate in a courtroom. In Saefke v. VandeWalle,401 the court found that there was no impropriety in an incumbent justice’s use of campaign materials showing him in his robe in a courtroom. A New York ethics advisory committee takes a narrower view.402 The 1990 Code establishes identical standards for the procurement of endorsements and the procurement of campaign funds. Canon 5C(2) forbids a candidate to personally solicit publicly stated support, and requires him or her to establish a campaign committee to perform that task.403 This prohibition was not carried over to the 2007 Code, but the new code does have new requirements that judicial candidates personally approve the contents of campaign literature and other election materials404 and not use “court staff, facilities, or other court resources in a campaign for judicial office.”405 In In re Starcher,406 the West Virginia Supreme Court of Appeals admonished a supreme court justice who had personally authored, signed, and sent a letter to key individuals in a labor organization seeking the organization’s endorsement. A few restrictions apply to judges’ endorsements of other candidates. Canon 5A(1)(b) of the 1990 Code and Rule 4.1(A)(3) of the 2007 code prohibit a judge from publicly endorsing or opposing a candidate for any public office. Thus it is improper for a judge to endorse a judicial candidate (unless the candidate is running for the same judicial office as the judge), or for a judicial candidate to accept such an endorsement.407 An exception may be made in 396. N.Y. Office of Ct. Admin., Judicial Ethics Op. 40 (1975) (part-time lawyer/judge may use law office stationery to advertise campaign); Pa. Bar Ass’n Prof. Guidance Comm., Op. 81-27 (attorney may seek contributions to campaign on law office stationery). 397. N.Y. Office of Ct. Admin., Judicial Ethics Op. 129 (1978). 398. See e.g. ABA Comm. on Ethics and Prof. Responsibility, Informal Op. 1450 (1980). 399. Fla. Sup. Ct. Comm. on Standards of Conduct Governing Judges, Op. 80-10 (1980). 400. State Bar of Mich. Comm. on Prof. and Judicial Ethics, Informal Op. CI-1007 (1984); In re McGlothen, Unreported Letter of Admonishment (Wash. Judicial Qualifications Comm’n 1983). 401. 279 N.W.2d 415 (N.D. 1978). 402. N.Y. State Bar Ass’n Comm. on Prof. Ethics, Op. 558 (1984). 403. “A candidate shall not personally solicit or accept campaign contributions or solicit publicly stated support. A candidate may, however, establish committees of responsible persons to solicit and accept reasonable campaign contributions, to manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy … .” 1990 Model Code, Canon 5C(2). 404. 2007 Model Code Rule 4.2(A)(3). 405. 2007 Model Code Rule 4.1(A)(10). 406. 501 S.E.2d 772 (W. Va. 1998). 407. See N.Y. State Bar Ass’n Comm. on Prof. Ethics, Op. 289 (1973); Or. Judicial Conf., Judicial Conduct Comm., Ethics Op. 82-3 (1982); ABA Comm. on Ethics and Prof. Responsibility, Informal Op. 719 (1964); In re Ovard, Determination (Texas Comm’n, Dec. 17, 1994) (judge reprimanded for publicly

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jurisdictions using merit selection, with one advisory opinion holding that a judge may properly submit names and evaluations of potential candidates to a merit selection panel.408 Acceptance of the endorsement or nomination of a special interest group may be construed as a pledge of conduct in office, and therefore place a candidate in violation of Canon 5A(3)(d)(i) of the 1990 Code or Rule 4.1(A)(13) of the 2007 Code.409 Public statements of support may be freely sought from lawyers, so long as the candidate is not personally involved in the solicitation.410 Because lawyers have a special opportunity to observe and assess the qualifications of judicial candidates, they are encouraged to come forward with their views.411

D isqualification I mplications of C ampaign Support, O pposition, or Speech. A question may arise concerning whether the relationship between a contributor or endorser and an incumbent candidate or successful aspirant for office should lead to the disqualification of the judge when the contributor or endorser appears in court. Ethics advisory panels that have addressed this question generally agree that per se disqualification is unnecessary.412 Some opinions, however, caution that a judge should look at each case to determine if factors beyond the mere public support of the judge’s candidacy militate in favor of disqualification.413 In 1999, the American Bar Association adopted a new Canon 3E(1)(e) to the 1990 Model Code to provide for an additional grounds for recusal based on a lawyer’s contributions to a judicial campaign. This provision has been carried over to the 2007 Model Code as Rule 2.11(A)(4), which adds the law firm of the party’s lawyer to the contributors that may require recusal. What about cases in which an opposing candidate appears in court? The Florida ethics advisory committee takes the view that an incumbent judge is required, by Canon 3C, to disqualify himself or herself in all cases where an announced future opponent appears.414 The same committee also believes that a successful candidate should disqualify himself or herself in all cases where the defeated opponent appears; at least until the judge believes that his or her impartiality can no longer reasonably be questioned—perhaps for as long as two years.415 The ethics advisory committee in Alabama disagrees with the endorsing in a primary campaign a candidate to succeed him as justice of the peace). 408. U.S. Judicial Conf. Advisory Comm. on Judicial Activities, Op. 59 (1979). 409. A New York State Bar Association opinion states that a judicial candidate may accept the endorsement or nomination of the Right to Life Party provided he or she refrains from expressing a view on abortion and further provided that the endorsement or nomination is not conditioned on the candidate’s view on that topic. N.Y. State Bar Ass’n Comm. on Judicial Election Monitoring, Op. 1 (1983). See also Texas Judicial Ethics Committee, Advisory Opinion 184 (1995) (listing the endorsement of groups makes “no statement indicating an opinion on an area subject to judicial interpretation,” approving endorsements from groups including Pro-Life Texans, Texans Against Drunk Driving, Texans for Tort Reform, and Texas Prosecutors Association). But see Arizona Judicial Ethics Committee Advisory Committee, Advisory Opinion 96-12 (soliciting or publicizing the endorsement of a county sheriff is prohibited because it suggests a pro-law enforcement rather than independent decision-maker posture). 410. A Washington judge was publicly admonished for personally soliciting support from attorneys and law enforcement officers through telephone calls and personal contacts. In re Murtland, Unreported Order #86-503 (Wash. Comm’n, 1987). 411. Ky. Bar Ass’n Ethics Comm., Op. E-277 (1984); State Bar of Mich. Comm. on Prof. and Judicial Ethics, Informal Op. CI-565 (1981). 412. See Ala. Judicial Inquiry Comm’n, Advisory Op. 84-213 (1984); Fla. Sup. Ct. Comm. on Standards of Conduct Governing Judges, Op. 78-7 (1978); Ill. State Bar Ass’n Comm. on Prof. Ethics, Op. 866 (1984). 413. Ala. Judicial Inquiry Comm’n, Advisory Op. 84-213 (1984). 414. Fla. Sup. Ct. Comm. on Standards of Conduct Governing Judges, Op. 84-12 (1984). 415. Fla. Sup. Ct. Comm. on Standards of Conduct Governing Judges, Op. 84-23 (1984).

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Florida opinion, and would only require a judge to disqualify himself or herself if the judge harbors a personal bias or prejudice against the defeated opponent, or if other facts would cause the judge’s impartiality to be reasonably questioned.416 Following the U. S. Supreme Court decision in Republican Party of Minnesota v. White, proponents of restrictions on judicial campaign speech have viewed disqualification as an alternative or supplement to explicit prohibitions of categories of campaign speech.417 One year after the White decision was handed down, the American Bar Asso- ciation adopted a new Canon 3E(1)(f) of the 1990 Code, as an additional grounds for disqualification: “the judge, while a judge or a candidate for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to (i) an issue in the proceeding; or (ii) the controversy in the proceeding.”418 This provision has been carried over to the 2007 Code as Rule 2.11(A)(5). A number of federal trial court decisions that have struck down state “pledges or promises” clauses—to the extent they would prohibit judicial candidates from responding to candidate questionnaires—have upheld on First Amendment grounds provisions of the state codes of judicial conduct that might require disqualification under the same circumstances.419 Campaign Financing. The financing of a campaign for judicial office is governed by Canon 5C(2) of the 1990 Code and Rules 4.1(A)(8) and 4.4 of the 2007 Code, which attempt to insulate candidates from personal contact with contributors which may lead to allegations of bias. Thus, candidates are prohibited from personally soliciting or accepting campaign funds.420 Instead, both the 1990 Code and the 2007 Code call for candidates to establish committees of responsible persons to secure and manage the expenditure of funds, and to file any necessary disclosure statements. Varying constraints are imposed upon the activities of these campaign committees, depending upon whether the candidate is seeking an office filled by a public election between competing candidates, or is an incumbent seeking retention in or reelection to office without a competing candidate. However, the relevant 2007 Model Code provision (Rule 4.4) does not draw distinctions between the types or circumstances of elections, and leaves solicitation time limitations up 416. Ala. Judicial Inquiry Comm’n, Op. 84-219. 417. For competing views on this issue see, Thomas R. Phillips and Karleen Dunn Poll, Free Speech for Judges and Fair Appeals for Litigants: Judicial Recusal in A Post-White World, 55 Drake L. Rev. 691 (2007); and James R. Bopp, Jr. and Anita Y. Woudenberg, An Announce Clause by any Other Name: the Unconstitutionality of Disciplining Judges Who Fail to Disqualify Themselves for Exercising their Freedom to Speak, 55 Drake L. Rev. 723 (2007). 418. Canon 3E(1)(f), 1990 Code. 419. See, e.g., Kansas Judicial Watch v. Stout, 440 F. Supp. 2d 1209 (2006); Indiana Right to Life v. Shepherd, 463 F. Supp. 2d 879 (2006); Alaska Right to Life Political Action Committee v. Feldman, 380 F. Supp.2d 1080 (2005); and Family Trust Foundation of Kentucky v. Wolnitzek, 345 F. Supp.2d 672 (2004). 420. See e.g. Public Admonition of Densen (Texas Comm’n on Judicial Conduct June 2, 1999) (judge admonished for distributing invitations for a fund-raiser for his judicial campaign from the bench and court offices); In re Suder, 398 S.E.2d 162 (W.Va. 1990) (magistrate admonished for personally receiving campaign contributions without having formed a campaign committee); In re Karr & McCarty, 387 S.E.2d 126 (W.Va. 1989) (incumbent judge and judicial candidate admonished for personally accepting unsolicited campaign funds from family members and friends); In re Hopewell, 507 N.W.2d 911 (S.D. 1993) (lawyer disciplined for accepting campaign contributions as a judicial candidate, publicly announcing the names of contributors, and challenging the incumbent judge to do the same); and In re Carr, 656 N.E.2d 690 (Ohio Comm’n of Judges, 1995) (judicial candidate fined $1,000 for personally soliciting campaign funds by stating in a letter which was seeking financial support for the candidate’s judicial campaign, on “Friends of Cathleen Carr” stationery, at the bottom in different color ink, a handwritten statement, “We need your help, now! [signed] Cathleen”).

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to each jurisdiction.421 A new comment to the 2007 Model Code requires the candidate, at the start of the campaign, to instruct his or her campaign committee “to solicit or accept only such contributions as are reasonable in amount, appropriate under the circumstances, and in conformity with applicable law” and “to be especially cautious” in soliciting contributions from lawyers and others who might appear before the candidate if elected, to avoid creating grounds for disqualification.422 On the other side of the solicitation coin lies the issue of donations. Who may donate to a candidate’s campaign; how much may be donated; and what effect does the creation of a candidate-donor relationship have on pending or future cases involving both parties? In the absence of more restrictive provisions contained in a state’s version of the Code of Judicial Conduct or election law, the general rule is that any person or group may donate a reasonable amount of money or time to the campaign of a candidate for judicial office, so long as the contributor does not expect to receive any direct benefit from the candidate’s election.

Making Speeches F undr aising. As respected members of their communities, judges are often called upon to make speeches. Canon 3 (Rule 3.7) of the 2007 ABA Model Code of Judicial Conduct permits judicial participation in activities sponsored by legal organizations, as well as events supported by “educational, religious, charitable, fraternal, or civil organizations.”423 However, if the program is related to fundraising activities, judges may participate only if the event is related to “the law, the legal system, or the administration of justice.”424 While mere attendance at an event will not violate this Rule, the Code cautions judges to consider whether association with such an organization would create the appearance of bias, and may compromise the judge’s image as an impartial jurist.425 Similarly, Section 4C(3)(b) of the 1990 Code allows attendance at fundraising events, but prevents judges from speaking or serving as a guest of honor.426 However, the 2007 Model Code was amended to allow for greater judicial participation in these affairs.427 As community leaders, judges may expect to speak or receive awards at honorary functions.428 Likewise, the legal profession benefits from such positive recognition.429 Under these provisions, judges may also allow themselves to be featured at fundraisers, unless doing so would raise questions as to their impartiality.430

A buse of P restige of O ffice . Public appearances or speech-making activities by judges may also run the risk of violating the ethics prohibition against abusing the prestige of the judicial office.431 Judicial officers may not misuse their status or titles to benefit personal or economic interests, nor may they do so to benefit friends or family members. While such 421. “A judicial candidate subject to public election shall direct his or her campaign committee … not to solicit or accept contributions for a candidate’s current campaign more than [insert amount of time] before the applicable primary election, caucus, or general or retention election, nor more than [insert number] days after the last election in which the candidate participated” 2007 Model Code Rule 4.4(B)(2). 422. Rule 4.4, Comment [3], 2007 ABA Code. 423. Rule 3.7(A), 2007 ABA Code. 424. Rule 3.7(A)(4), 2007 ABA Code. 425. Rule 3.7(A), Comment [2], 2007 ABA Code. 426. Canon (4)(C)(3)(b), Commentary, 1990 ABA Code. 427. Alfini et al., Judicial Conduct and Ethics, §9.04D Fund-Raising Events (LexisNexis 4th ed. 2007). 428. Id. 429. Id. 430. Id. 431. Canon 1, Rule 1.3, 2007 Code; Alfini, et al., Judicial Conduct and Ethics, §10.03A.

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activity may not result in actual bias, society has a strong interest in preventing the collateral misuse of judicial office.432 Aside from averting any notion of unfairness, dignified judges are necessary because the legal system relies on public respect.433 The commentary to Rule 1.3 of the 2007 ABA Model Code cautions judges to retain sufficient control over their contributions to profit-making ventures involving activities such as writing or speaking, and to remain alert to prevent exploitation of their positions.434 Judges are also cautioned to protect the prestige of judicial office from those who wish to exploit it for commercial gain.435 Judges possess special legal experience Judges possess … experience and and skill, which they are encouraged to share skill, which they are encouraged with the public.436 However, judges must be their to share with the public. However, careful to avoid the appearance of using titles to influence decision makers.437 judges must be careful to avoid the Texas State Judge Robert Jenevein was charged with abusing the prestige of judiappearance of using their titles to cial office when he sported judicial attire influence decision makers. and used his courtroom in a televised news conference to defend himself and his wife against allegations of misconduct and corruption. Days after the speech, Jenevein sent an e-mail to approximately 75 people from his courthouse computer, further detailing the allegations and his desire to combat the charges.438 The United States Court of Appeals for the Fifth Circuit allowed the Texas Commission on Judicial Conduct to punish Jenevein, reasoning that “the state has a compelling interest in preserving the integrity of the courtroom, and judicial use of the robe, which symbolically sets aside the judge’s individuality and passions.”439 However, the Fifth Circuit did not allow the Commission to censure Jenevein for the content of his speech.440 In 1998, Justice Richard Sanders of the Washington Supreme Court was charged with violating ethical standards when he addressed a crowd at a pro-life rally shortly after his swearing-in ceremony.441 Among other violations, the state Judicial Conduct Commission found Sanders guilty of improperly lending the prestige of his office to advance a political cause. However, the Supreme Court of Washington reversed the Commission, finding that the Code of Judicial Conduct did not pertain to such activity.442 D iscriminatory O rganization. Rule 3.6(A) of the 2007 ABA Model Code of Judicial Conduct forbids judges from holding membership in any organization that practices invidious discrimination on the basis of race, sex, religion, ethnicity, sexual orientation, or national origin.443 This rule also prohibits judges from using the benefits or facilities of an 432. Alfini, et al., Judicial Conduct and Ethics, §10.03A Avoiding Appearance Problems and Collateral Misuse of Office (LexisNexis 4th ed. 2007). 433. Id. 434. Canon 1, Rule 1.3, Comment [4] 2007 ABA Code. 435. Id. 436. Rule 3.2, Comment [1], 2007 ABA Code. 437. Rule 3.2, Comment [1]-[3], 2007 ABA Code. 438. Jenevein v. Willing, 493 F.3d 551 (5th Cir. 2007). 439. Id. at 560. 440. Id. at 561. 441. In the Matter of the Disciplinary Proceeding Against Richard B. Sanders, 955 P.2d 369 (Wash. 1998). 442. Id. 443. Rule 3.6(A), 2007 ABA Code.

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organization if the judge knows or should know that the group advocates such discrimination.444 A judge does not violate of this Rule if his or her attendance is isolated, or cannot be perceived as an endorsement of discriminatory activity.445

C ompensation. Rule 3.12 of the 2007 ABA Model Code of Judicial Conduct allows judges to accept compensation for extrajudicial activities, including speaking and writing, unless doing so would suggest bias or dishonesty.446 But such compensation must be reasonable and may be subject to public reporting requirements. Canon 3 also recognizes judicial participation in educational and charitable events, and encourages contribution to such programs through attendance and teaching.447 Rule 3.14 allows judges to recover reasonable costs, such as travel and registration, incurred for these events.448 However, judges must be mindful to follow public reporting rules,449 while also evaluating each situation to determine whether reimbursement would appear to undermine the judge’s impartiality.450

Teaching and Writing Some commentators believe that judges should be proactive in educating the public about the judiciary’s societal role.451 Judges may teach and write as long as these activities do not interfere with judicial duties. Canon 3 (Rule 3.1) of the 2007 version of the American Bar Association’s Model Code of Judicial Conduct authorizes judges to engage in beneficial extrajudicial activities. Commentary to the rule encourages judges to participate in legal education through “speaking, writing, teaching, or participating in scholarly research projects.”452 Similarly, Canon 4(B) of the 1990 version of the American Bar Association’s Model Code of Judicial Conduct allows judicial involvement in “avocational activities.”453 As long as official duties are not compromised, the Code encourages judges to “speak, write, lecture, teach, and participate in other extra-judicial activities.”454 An Ethics Advisory Committee in Washington recently issued an advisory opinion concerning various factors judges should consider when given the opportunity to teach classes. The opinion stated that judges could participate in teaching non-judicial courses, such as sports classes, so long as the activity does not impair the dignity of the judicial office or interfere with official duties. Further, the Committee cautions judges to review local guidelines before pursuing any teaching position, as some states only allow judges to receive compensation from non-public law schools. The opinion also discussed the common scenario of a judge teaching a law school class scheduled during normal court hours. Because this conflict could suggest that judicial duties do not take precedence over other obligations, judges must be careful to avoid an appearance of impropriety. The opinion suggests working with the law school to organize 444. Rule 3.6(B), 2007 ABA Code. 445. Id. 446. Rule 3.12, 2007 ABA Code. 447. Rule 3.14, Comment [1], 2007 ABA Code. 448. Rule 3.14(A), 2007 ABA Code. 449. Rule 3.14(C), 2007 ABA Code. 450. Rule 3.14, Comment [3], 2007 ABA Code. 451. See Zemans, Frances Kahn, From chambers to community, 80 Judicature 62 (1996). 452. Rule 3.1, Comment [1], 2007 ABA Code. 453. Canon 4(B), 1990 ABA Code. 454. Id.

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class times before or after court hours. If this cannot be done, the judge must proactively ensure that her teaching does not encumber judicial duties or inconvenience court staff. After attempting such corrections, if the judge still has concerns about conflicting judicial duties, the judge should refrain from teaching the class.455 However, some judges have been reprimanded for overzealous academic promotions. California Judge James Ross wrote a book entitled I, Jesse James, which he offered for sale to jurors and attorneys. Judge Ross discussed the book in open court, offering autographs in his chambers. The book was available for purchase through the bailiff, who completed order forms from his desk. While most sales occurred after trials were completed, a state commission found that Ross had inappropriately used his office and court resources for personal financial gain.456

Responding to Criticism There has been increasing concern over unjust criticism faced by the judiciary, which leaves many judges wondering what recourse they have. Neither the ABA Model Code of Judicial Conduct nor scholarly commentary offers much guidance in addressing the practicalities of maintaining the required impartial public persona in light of an overly critical media presence, except the existence of a few speech restrictions. In fact, the 1990 ABA Model Code of Judicial Conduct is completely silent on affirmative guidance in speaking to the media, and the new, and much less ratified, 2007 ABA Model Code only states that, subject to the general prohibition about making statements on pending or impending cases, “a judge may respond directly or through a third party to allegations in the media or elsewhere concerning the judge’s conduct in a matter.”457 In response to this lack of guidance or assistance, the ABA Standing Committee on Judicial Independence released in 2008 a comprehensive plan entitled Rapid Response to Unfair and Unjust Criticism of Judges, which details a recommended response procedure for judges dealing with criticism in the media.458 When unjust criticism surfaces in the media, three preliminary recommendations should be considered before a response is made. First, a judge must decide whether the criticism warrants a response, and the ABA Plan sets out guidelines delineating circumstances where a response is appropriate or inappropriate. Once it is determined that a response is needed, the ABA Plan recommends that the response must be made in a prompt manner, almost always within the same news cycle as the criticism. Also, an effort must be made so that the response does not repeat the negative criticism, but still thoughtfully addresses the issue at hand. While timing is important, substance should never be sacrificed for speed. Finally, the ABA Plan recommends that the form of the response must be clear, concise, and persuasive. It should not sound defensive or be written in lay-terminology. The form of the response should also appear in the manner in which it will receive the most prompt and appropriate exposure corresponding with the criticism.

455. Washington Courts, Ethics Advisory Opinion 08-05 (Aug.8, 2008), available at http://www.courts. wa.gov/programs_orgs/pos_ethics/?fa=pos_ethics.dispopin&mode=0805. 456. Steven Lubet, Stupid Judge Tricks, 41 S. Tex. L. Rev. 1301, 1307 (2000); see also Decision and Order, No. 141, at 11 (California Comm’n on Jud. Performance, Apr. 30, 1998), available at http://cjp.ca.gov/ index.php?id=10#r. 457. Rule 2.10(E), 2007 ABA Code. 458. The pamphlet is available at http://www.abanet.org/judind/toolkit/impartialcourts/Rapid_Response_ Pamphlet.pdf.

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L imitations When Speaking to the M edia . The most prevalent issue a judge will face in responding to criticism, or in generally speaking to the media, is the Code’s mandate not to discuss a pending or impending case. Rule 2.10 of the 2007 ABA Model Code of Judicial Conduct prohibits judges from making “any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.”459 A judge also may not “make pledges, promises, or commitments” about issues likely to come before his or her court.460 The Code also urges judges to retain control over courtroom personnel, such as staff and court officials, to prevent similar speech concerning such issues.461 If such comments call a judge’s independence into question, he or she may be disqualified from a related proceeding under Rule 2.11.462 But judges are not discouraged from explaining court procedures, making statements in conformity with their official duties, or responding to any allegations made by a media source.463 It is this discretionary quality of the code that constitutes both the advantages and perils a judge can face when addressing the media. Although the Code disapproves of a judge speaking to the media about a pending or impending case, it does not create automatic liability for the judge if they in fact chose to make a statement. Thus, a judge is given necessary flexibility to handle public exposure of cases in a manner that can be individualized to suit the exact circumstances arising from each case. A judge should take note that matters pending before the court are not simply matters before that judge in particular, but extend to cases “in any court.”464 As long as the purpose of the judge’s statements pertains to an objective explanation of court procedures, or an informative discussion of the legal system, law, and court administration, the Model Code authorizes, and even encourages, statements of this nature to the media.465 However, there are limitations on a judge’s media commentary, even in an explanatory setting. A judge cannot attempt to bootstrap unsolicited criticism to otherwise innocuous information if it would undermine the judge’s appearance of impartiality.466 a M edia P lan467 oday’s news industry showing up on the courthouse steps has changed significantly with the insurgence of 24-hour reporting on television, radio and the Internet; independent and syndicated cable networks; primetime news-magazine and news-entertainment formats; investigative and undercover news reporting; Internet reporting solely dedicated to news formats; the expansion of local and network channels available in nearly all geographical markets; an influx of competitive freelance journalists; a new array of Web-only news outlets; ethnic and alternative news media; citizen journalists with blogs

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459. Rule 2.10(A) 2007 ABA Code. 460. Rule 2.10(B) 2007 ABA Code. 461. Rule 2.10(C) 2007 ABA Code. 462. Rule 2.11(A)(5) 2007 ABA Code. 463. Rule 2.10(D)-(E) 2007 ABA Code. 464. In re Broadbelt, 683 A.2d 543, 545 (N.J. 1996) (affirming Advisory Committee on Extrajudicial Activities opinion disapproving of judge’s television commentary). 465. Rule 4B, 1990 ABA Code. 466. In re Schenck, 870 P.2d 185, 200 (Or. 1994). 467. Condensed from a chapter by Karen L. Salaz, District Administrator of the Nineteenth Judicial District Court in Greeley, Colo., in collaboration with Judge Terry Ruckriegle, Chief Judge of the Fifth Judicial District in Breckenridge, Colo.

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and websites; web-based news aggregators; and local newspapers competing with their national counterparts in this age of technology-based news dissemination. The transformation of the news industry has significantly impacted the day-to-day business of the courts in four significant areas that dictate that the courts must be prepared and proactive in dealing with the media. The emergence of e-mail and websites has been one of the greatest equalizers available to court public information officers (PIO). Both allow one person to communicate with an infinite number of journalists and interested persons instantaneously. These types of technological tools also reduce the amount of time and the expense in communicating through traditional means such as mailing printed copies, faxing or dedicating court clerks to respond to individual requests. The evolution of the news industry capitalizing on technology has also created a fiercely competitive environment, with every journalist covering a highly publicized case wanting to have their unique piece of the story, sometimes with total disregard for integrity and honesty. The frequency and volume of requests for information places intense pressure on all of a court’s resources. As the media descends upon a court, cases are instantaneously redefined by the additional constitutional dimensions as courts are required to address the media’s assertion of their First Amendment rights. In a matter of hours, a criminal case is transformed from a dispute involving the prosecution and the defendant to one involving the prosecution, the defendant and the media. Balancing Article I and Article VI of the U.S. Constitution, and victim’s rights, begins in earnest. Courts are no strangers to the occasional public figure finding himself or herself in front of the bench. Judges in such cases may be asked to consider whether to permit cameras in the courtroom, but the issues now being raised include whether cell phones and laptops, with their abilities to transmit words, sound, and pictures will be allowed in the courtroom. But the definition of a “high profile” case has changed. A high profile case in one court may involve local personalities; in another court, it might be the “case of the year,” decade or even century. But the degree of impact is significant in each case and appropriate preparations need to be considered to provide court personnel with the resources and encouragement they will need. Cases involving high profile personalities hit the radar screens of court personnel and judges immediately. On occasion, however, a seemingly local case receives an inordinate amount of media interest and is mysteriously transformed into a truly high profile case. The coverage of high profile cases has developed a subculture of journalists, crew, producers and freelancers, many of whom crisscross the state and/or country from courtroom to courtroom. They know each other, there is an established hierarchy, they work cooperatively and competitively while simultaneously independent, and many are seasoned professionals. If a court does not take the initiative to proactively manage the potential chaos a high profile case can create, the media will take control. Many of the steps prescribed in a basic plan not only develop potentially good relations with the media, they also solidify good everyday business and communications procedures. Establishing or reinforcing solid lines of communication both internally and with local governmental agencies very early in the process is the most important step you will take. A course of action must be determined initially, early in the process, by the judge on the issue of access to court documents and proceedings. The U.S. Supreme Court has

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consistently held that access to the courts is one of the core components of the American judicial system. But access also comes with risk. The presence of the media and the public puts every aspect of the court under a microscope. Every detail will be reported, every action by judges and court personnel scrutinized, every move analyzed and any misstep or perceived misstep reported in unforgiving headlines. Legal analysts and commentators will spin, twist, distort and scrutinize every aspect of the case.

Strategies A pretrial publicity order (“gag order”) may be drafted to limit the mesmerizing and intrusive effect journalists can have on everyone involved in the case,468 while a decorum order can outline expectations while on the premises of the courthouse. A decorum order can explicitly outline the court’s expectations on issues such as access, behavior, parking, security, electronic device restrictions, interviews, who and what can be photographed, etc. Also, by putting expectations in writing, it allows the media to identify specific concerns they might have and initiate a dialogue with the courts on possible aspects that can potentially be negotiated.469 It is essential that both of these orders be entered only after consideration of each of the constitutional interests. Court officials including the judge, clerk of the court, district administrator and public information officer (PIO) should also develop a basic plan for handling the media.470 Preparing a thoughtful basic plan avoids many of the pitfalls inherent in knee-jerk responses. It is essential that co-workers are either apprised of job duties beforehand or that expectations can quickly be communicated: indecision can have brutal consequences especially for those folks on the front line when there are 50 journalists standing at the front counter. Diverting distractions created by the immense pressures from the sheer volume and demands of the media can quickly become a priority. Defining a procedure to relieve or diffuse pressure on the clerk’s office, administrators and the public information officer may be an option worth exploring. In the (subsequently dropped) prosecution of basketball star Kobe Bryant,471 the presiding judge handled all of the matters in the courtroom and a second judge was appointed to deal with logistical and media issues outside of the courtroom.

468. Opinions reading such gag orders include Sheppard v. Maxwell, 384 U.S. 333 (1966); Oklahoma Publishing Co. v. District Court of Oklahoma County, 430 U.S. 308 (1977); Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976); Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991); and Cox Broadcasting Corp. v. Cohen, 420 U.S. 469 (1975). Sioux Falls Argus Leader v. Miller 610 N.W.2d 76 (S.D. 2000). (Gag order issued in connection with criminal prosecution of state employees for death of 14-year-old child at state training school, which precluded media outlets from conducting interviews or broadcasting from courtroom, was reasonable time, place and manner restriction on speech; restriction was content neutral, protected dignity of courtroom during proceeding, protected significant government interest in providing both parties with their Sixth Amendment right to fair trial, and left open all other alternative locations for communication. The court stated that the trial court judge’s restriction protects the dignity of the courtroom during these proceedings and, as noted above, is in place to preserve the participants’ Sixth Amendment rights.) 469. Law enforcement entities should have already been consulted during the order’s development process so these concerns should already be addressed presenting a unified voice. 470. The members and titles of the development team will vary from one court system to the next and from case to case. 471. People v. Bryant, No. 03-CR-204 (Colo. Dist. Ct. 2003).

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Case-Specific Websites Posting documents and orders on websites is emerging as a viable alternative for reducing the clerk’s office traffic, e-mails and phone inquiries generated by high-profile cases. Access to a case-specific website can be limited to the media, as in the Scott Peterson prosecution,472 or be available to both the public and the media on a open-access website, as in the Kobe Bryant case.473 The Bryant document page averaged more than 15,000 hits per month for the duration of the proceedings. Courts considering developing a website must ensure that a multi-level safety net is in place to guarantee that no documents or information are mistakenly posted,474 including reviewing every document for appropriate redactions.

Media Consortium It is very difficult for the court to deal with the media on a one-to-one basis when there are three dozen satellite trucks sitting in the parking lot and hundreds of reporters and crew members each trying to out-distance their competitors. As early as the Timothy McVeigh Oklahoma City bombing trial, held in Denver, Colo., courts have required the media to organize into a consortium so the court would only have one person to negotiate with on all matters related to coverage. Consortiums have been successfully used several times since then. Consortium members have use of the pool camera photos and footage, and are eligible to participate in the media’s courtroom seat selection process.475 Another variation of a media consortium that has been utilized is to have a committee formed with typically about seven representatives: television (one local, one national); print (one local, one national); wire services; and radio (one local, one national). The court’s PIO may serve as an advisory member.

“SWAT” team concept Lessons are learned every time a case works its way through the court system. One of the lessons in People v. Bryant was that cases generating intense media pressure can spring up anywhere at anytime. As a result of the lessons learned in Colorado, the state court administrator’s office developed a “SWAT” team to be mobilized when a high profile case emerges. This team is activated when notified by the district’s chief judge and sent to the court where the case is being filed to remain on location for five to ten business days to do training and help get all of the organizational pieces in place. The team members will then be available on-call or on a permanent basis as needed.

Jury Issues and Change of Venue There are two extremely important areas that are glaringly missing in this analysis of how to handle a high profile case. These are jury-related issues and the potential for a change of venue particularly related to intense local media coverage.

472. California v. Peterson, No. 1056770 (Cal. Super., Stanislas County 2003). 473. The material in People v. Bryant, supra, was posted online at http://www.courts.state.co.us/Courts/ District/Cases_of_Interest.cfm/District_ID/5. 474. Order responding to prosecution’s request to discontinue web posting of documents: http://www.courts. state.co.us/userfiles/File/Court_Probation/5th_Judicial_District/Cases_of_Interest/People_v_ Bryant/08-04/consolidatedorder.pdf. 475. There always needs to be a minimum of one rotational seat available to members of the media who are not consortium members.

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Every aspect of jury selection must be carefully thought through, and the same is true of a potential request for change of venue. The courts are constantly seeking to educate the pubic and the media about how the courts operate. Being prepared for when a potential opportunity arises is an important step that can make or break how the court is perceived and portrayed. Taking steps to proactively initiate communications and business practices to promote integrity and professionalism speaks volumes to all who come in contact with the courts either directly or through media coverage. and the C ourt P ublic I nformation O fficer 476 here are a number of resources available to judges, including court staff who handle media inquiries to the judiciary, as well as many other tasks. They are called court public information officers (PIOs). Not all courts have full-time PIOs. Sometimes the judge who has administrative responsibility (e.g., chief judge) handles relations with the media for the court and, in some cases, court personnel, such as the clerk of court or court administrator, are assigned those responsibilities as the need arises. Typically, PIOs—or court personnel designated to fulfill that function—focus primarily on media relations to improve the accuracy of news coverage and to promote the education of the public on important legal issues and concepts. Many of these public relations professionals are responsible for activities involving public education, community outreach, legislative/government relations, internal communications, publications, etc., in addition to media relations, with the actual areas of responsibility vary from court to court.

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Media and Public Interest A recent survey from the Pew Research Center has tracked the trends in news interest over the years, specifically, the type of news followed most closely. Interest in crime (28 From the vocabulary used … to percent) was topped only by weather (48 percent); interest in community (22 percent) the court rules governing practice and local government (20 percent) ranked and procedure, court observers fourth and seventh, respectively.477 The Pew Resource Center’s recent survey found may have difficulty understanding for the first time since 2002 that a majority court operations, including the of Americans (51 percent) now report that outcome of their own court cases. they check in on the news from time to time during the day as opposed to getting news at regular times.478 These trends present challenges for journalists covering court news as well as court officials who work to improve the public’s understanding of court processes. Journalists are not as likely to be informed about court operations and proceedings, placing the burden on court personnel to provide more than basic information in response to media inquiries. Responding to inquiries from journalists who do not cover the courts routinely is a challenge. From the vocabulary used by court personnel to the court rules governing practice 476. Condensed from an article by Sally Rankin (Court Administrator, 1st Judicial Circuit Court for Somerset County, Maryland). 477. Pew Research Center for the People and the Press, Key News Audiences Now Blend Online and Traditional Sources (Aug. 17, 2008), http://people-press.org/report/?pageid=1356. 478. Id.

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and procedure, court observers may have difficulty understanding court operations, including the outcome of their own court cases. The person functioning as a PIO is most effective if identified as the contact on the court’s behalf for all media inquiries. To be successful, the PIO must have access to those who make decisions on the court’s behalf and be kept informed as new developments occur. If the person functioning as the PIO has the support of the court and is perceived by court personnel to have the court’s trust, it is more likely that court personnel will assist the PIO in responding to media inquiries. Another critical aspect of the PIO role is the mastery of what information can be released to the public as well as the basis for any exemption from disclosure. What information is considered in the public domain varies from state to state and between state courts and the federal court system. The PIO must know the legal authority for permitting or denying access to court records, both in paper and electronic form. In this age of technology, journalists expect to have greater access to court records and data than in the past. Journalists familiar with the federal court system’s Public Access to Court Electronic Records (PACER) service expect state courts to provide similar access. While providing access to data does not raise as many concerns about individual privacy, there are many courts that deny requests for data because of the court resources involved. The PIO can be a valuable resource in fielding requests from the media and determining what data they seek. It may be possible to provide data that has already been compiled that would assist a journalist in his or her pursuit once the PIO understands what angle the journalist is following. Court records in electronic form are a different matter. Courts across the country are struggling with how much information from court records should be available using Internet technology. Court records may include such personal identifiers as home address, social security number and age. Journalists and those representing commercial interests find the personal information invaluable in ensuring the identities of parties of interest. At the same time, the parties of interest may be concerned about their personal safety and their exposure to identity theft. Court personnel must also know what records may be inspected and, if access is denied, the basis for the exemption from disclosure. It may be helpful to prepare a chart of the different categories of records available in the courthouse with the applicable legal citations. Some PIOs provide training to court personnel on access to records. Whether having access to court files or electronic court records, journalists are likely to have questions about terminology or proceedings. PIOs often respond to requests about process in general, as opposed to the substance of specific cases. A particularly useful resource is a guide for journalists. Besides journalist guides, some PIOs develop and deliver the equivalent of a “law school for journalists.” A meeting of the bench and the local media can also be a productive means to better understand each other’s priorities and to take steps to resolve areas of contention. Another way to encourage an ongoing dialogue is to form a working group with representatives from the bench, bar and media. Every media inquiry is an educational opportunity. How well the court responds can make a difference for the present and the future. If court personnel are knowledgeable about the extent to which court records are subject to inspection, journalists will most likely get their information from court files in the courthouse. Some journalists may contact your office, instead, hoping to get a quote from you. PIOs routinely return media calls so that news reports will not state that the court refused to return the call. PIOs assess the nature of the call and determine who might be the court’s

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best spokesperson. Often, the PIO is the court’s spokesperson and will answer factual questions about a case or an administrative issue to the extent the information is public. Note that practices vary from state to state and between the state and federal courts. Those serving as PIOs in the federal courts are most likely to answer questions about logistics only while state court PIOs may deal with facts of the case.

Celebrity and Controversial Proceedings Certainly, the arrest of a celebrity in your jurisdiction will attract the attention of the media and the public. You will need to be prepared for all types of media inquiries and requests throughout the resulting court proceedings. The person serving as the PIO can serve as the primary media contact and resource. The high-profile trial is not the only opportunity for media scrutiny and controversy. When you anticipate a high-profile trial, a PIO can help you prepare for the extra demands. Sometimes, the controversy arises from a case involving average citizens. The fact pattern may not be particularly unusual, but an element of the case strikes a chord with the public. When the controversy arises after a court proceeding that was open to the public, the court files and recording of the proceeding are available resources. The PIO can help the judge retrieve and review the files and any recordings made for the court’s use. While a judge may not be able to comment on pending or impending cases, the judge’s own words on the record in a case open to the public can be effective. Recognizing that media deadlines dictate immediate responses to most questions, particularly when a controversy arises, a PIO can be valuable in recommending what information to provide. Asking a journalist to wait a couple of days for a copy of the court’s recording will not serve the court’s best interest. The story will break without the court’s perspective and it may be difficult to overcome the public perceptions created. Ideally, the PIO can a copy of the court’s recording or a transcript, with the pertinent section noted. A PIO can provide help, too, when you or your court are the subject of criticism for decisions about case management or when the public perceives the justice system is not functioning well. When you are the target of unjust criticism, you have to consider whether it is likely to be a story today that is likely to be forgotten by the public tomorrow in our 24-hour news cycle. If you do want a response to the criticism, the question is what type of response would be most effective. PIOs often draft opinion columns and letters to the editor for publication and statements and talking points in response to media inquiries. The attribution of the commentary depends on the type of criticism. Sometimes a bar leader can be recruited to defend the criticism. Most likely the PIO would respond on behalf of the court. Another factor to consider is whether the criticism is truly unjust or a fair commentary from an opposing view. The judge who is the subject of criticism may feel a defense is appropriate, while other members of the same bench may have a different perspective. As court officials have experienced when dealing with crises, it is imperative to have a court spokesperson. Whether there is a courthouse shooting or damage to the courthouse caused by flooding or fire, the media will want regular updates on the event. PIOs are designated for that purpose and can produce a plan for crisis communication. and Techniques 479 estifying before a congressional committee in favor of the Sunshine in the Courtroom Act of 2007, U.S. District Judge Nancy Gertner spoke of the need for judges to be their own spokespeople: “… Judges in one sense have to prove their legitimacy,” she said. “... It’s no

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479. Condensed from an article by Chris Davey (Director of Public Information, Supreme Court of Ohio).

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longer assumed by the public. And I would rather prove that legitimacy in my own voice with my own face and my own words than have my words described by a late night TV anchor.”480 A one-on-one interview is the most common, most powerful and at the same time potentially the most dangerous vehicle for connecting with the news media to tell your story. When confronted with the news media, the closest that a judge can come to speaking in his or her “own voice”—as Judge Gertner put it—is through a successful interview. Since so many citizens form their opinions of the courts based on media coverage, it is critical that judges understand the workings of the media, work to maintain positive relationships with the news media and conduct business in such a way as to increase media access to and understanding of proceedings. The threshold question in any situation when a media interview presents itself is whether or not you should grant the interview. Judges often err on the side of not speaking because of a variety of cultural, legal and historical considerations.481 In fact, the approach should be just the opposite for two reasons: 1) It is better for the judicial branch in general if judges talk more, and 2) As a fundamental strategic principle it is almost always better to have your voice heard in a story rather than not. Every state has a different code of judicial conduct and unique statutory and case law that control when it is permissible for a judge to speak, and what he or she is permitted to say regarding pending or even decided matters. Judges should become familiar with the regulations in their jurisdiction(s) and when in doubt consult legal counsel. The American Bar Association adopted its revised Model Code of Judicial Conduct in 2007, a recommended set of comprehensive rules governing the speech and con-duct of judges designed around the premise that judges “must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.”482 Michael D. Schoepf483 summarizes the code’s speech restrictions this way: Rule 2.10 restricts judicial speech concerning active cases, stating as a general rule that judges should make no public or private statements that might “affect the outcome or impair the fairness” of a case. Before 2007, the rule prohibited all speech about an active case regardless of whether it was likely to impair fairness. Some states, including Illinois and Massachusetts, continue to follow this model. The modern Model Code extends the restriction to “court staff, court officials, and others subject to the judge’s direction and control.” The Model Code has always contained several exceptions to Rule 2.10’s general speech restrictions. For example, “a judge may make public statements in the course of official duties [and] may explain court procedures.” But history has shown that many judges fail to read beyond “[a] judge shall not” speak. Uncertain about what they can or cannot say, judges choose to say nothing at all.484

The article argues that this approach has resulted in frustrated judges, unhappy media and an unenlightened public. “Whether judges have a constitutional right to speak publicly about their ideas is an open question, but whether they should do so is not,” Schoepf writes. “The American public will no longer accept the traditional secrecy of the judiciary. It is time for judges at all levels 480. Michael D. Schoepf, Removing the Judicial Gag Rule: A Proposal for Changing Judicial Speech Regulations to Encourage Public Discussion of Active Case, 93 Minn. L. Rev. 341 (2008). 481. See Tom Goldstein, The Distance Between Judges and Journalists, in Bench Press: The Collision of Courts, Politics, and the Media (Keith J. Bybee, ed. 2007), chap. 9. 482. Preamble, ABA Model Code of Judicial Conduct (2007). 483. Michael D. Schoepf, Removing the Judicial Gag Rule: A Proposal for Changing Judicial Speech Regulations to Encourage Public Discussion of Active Case, 93 Minn. L. Rev. 341 (2008). When the article was written, Schoepf was a 2009 J.D. candidate at the University of Minnesota Law School. 484. Id. at 349–50.

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to open their mouths, take out their pens, and speak to the public. Not just through formal opinions, but through opinion pieces in local newspapers, interviews on the radio and television, and roundtable discussions with other judges, scholars, and the public.”485 So, within the regulatory framework of a particular jurisdiction, there is a strong argument to be made that if there is any way to grant the interview, a judge should do so in the general interests of supporting public understanding of and confidence in the judicial branch. The second reason judges should err on the side of speaking is that as a matter of fundamental communications strategy, it is almost always better to have your voice in a story than not. What you say and how you conduct yourself in a media interview means the difference between winning and losing in a battle for public perception. And of course there are instances when it is best to not speak, at least for the time being. But as a general rule, saying something—anything—is better than silence. Now, even with the two arguments above for a liberal philosophy when deciding on a media interview request, there still are other factors to consider. First, of course, are any judicial canons or other legal restrictions, which must be considered in the context of the particular topic or case that forms the basis of the requested interview. A judge has to exercise his or her best discretion when deciding whether to grant an interview and consider all relevant factors. All other things being equal, it is better to speak than not. Many concerns that judges have about speaking in a particular case can be addressed not by denying an interview request but by how the judge prepares for and executes the interview itself. These factors will be considered in the remainder of this chapter.

Five Best Practices There are certain best practices for approaching different media interviews that depend on the type of interview it is and the type of media outlet that is requesting the interview. The five best practices for approaching a news media interview that apply in all circumstances: reduce your message into simple, concise themes that you repeat throughout the interview; approach the interview with an open, compassionate attitude toward the interviewer, toward the characters involved in the story (the lawyers and litigants in the case at hand) and toward the audience; be honest; convey openness by being helpful and patient with reporters; and be prepared, including familiarity with the basic facts of the interview topic. If you follow these general principles of simplicity, authenticity, honesty, openness and preparation, you will go a long way toward having a successful interview. The rest of your success will depend on understanding the different types of interviews and following the best practices for the specific type of interview you are facing. We turn our attention to these now. In a 2001 article for the Harvard International Journal of Press/Politics, New York Times Supreme Court reporter Linda Greenhouse wrote that the judiciary—specifically, the Supreme Court of the United States—has an obligation to explain itself, and that it is the failure to adequately fulfill this obligation that has resulted in negative public perceptions and misunderstandings of the courts.486 Judges face unique constraints when attempting to take Greenhouse’s advice. But if you follow the principles explained in this chapter, more often than not, you will have the ability to successfully engage the media through interviews, telling your story and in the process serving the greater good of fostering greater understanding of the judicial branch. 485. Id. at 370. 486. Linda Greenhouse, The Courts Must Tell their Story, 6 Harvard Internat’l J. of Press/Politics 117–127 (2001), available at http://hij.sagepub.com/content/6/1/117.full.pdf+html.

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to the M edia 487 hile most courts abide by the maxim “the opinion speaks for itself” when discussing an active case, there are some courts, most commonly appellate courts, that issue pre-argument case summaries for the media, and/or media summaries of court decisions. Many courts are traditional and conservative in their approach to business and operations. As such, for the time being they may be most comfortable working with their local newspaper and/or broad-cast outlet. Judges and court staff possess a vast array of options for communicating with the media. Working with the media requires substantial planning and strategizing and is not risk-free. Once the decision has been made to jump into the fray, this chapter is intended to arm you with the tools and techniques to communicate effectively and efficiently.

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Press Releases/Media Advisories The most basic tool for communicating with the media is the press release. But it is vastly over-used, and as a result, a very large percentage of all press releases land in trash cans or computer trash folders without ever being read. Press releases should not be issued simply to appease a chief judge or other court managers. Judgment needs to be exercised in determining whether or not the subject of the release is likely to interest the media. Other invalid reasons for issuing a press release are “because I haven’t done it in awhile, everybody else does it, or I want to stay in contact with the reporter.” If you issue press releases on topics that aren’t newsworthy, reporters will ignore your releases, so that when you have legitimate news to announce, it will not receive the coverage it deserves. A variation on a press release is a media advisory or media alert. These tools are used to announce (or advise) the press that something will occur. A media advisory might be used to invite reporters to the opening of a new courthouse, a press conference, or to notify them of the release of a significant study or report.488 They can be a valuable tool, and the press typically appreciates such advance notification.

Press Conferences/Press Briefings After press releases, perhaps the most common tool available to public affairs professionals is press conferences. Be sure you have significant news to announce before embarking on a press conference.

Editorials and Op-eds When your goal is to affect opinion or to stimulate action, part of your strategy should involve editorial pages and op-eds. Timing is essential to the successful placement of an op-ed. Ideally op-eds relate to an issue or event that currently is in the news, and are written by authors who can speak with some authority and expertise. Letters to the editor are yet another option for voicing your views through a newspaper. Letters typically are brief, only two or three very short paragraphs, and are intended to clarify, rebut, or comment on information that already was published in the paper.

487. Condensed from an article by David A. Sellers (Assistant Director for Public Affairs, Administrative Office of the United States Courts, Washington, D.C.). 488. For example, this advisory from the Kentucky courts announces an upcoming meeting of the Court Records Retention Committee, Oct. 31, 2008: http://courts.ky.gov/pressreleases/PR10312008A.htm.

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Be advised that some public affairs professionals think it inadvisable to send letters-tothe-editor to rebut negative articles. But by doing this, you risk keeping a bad story alive for yet another day and drawing readers’ attention to the topic through your letter.

Building Relationships An increasing number of courts participate in bench-media, or bench-bar-media programs. These are an effective way to build relationships with some of the court’s most important constituencies. Under the leadership of the bar, many of these entities have developed processes for responding to unjust criticism of judges. The American Bar Association has long been a leader in this area, in the mid-1980s drafting a model plan for local bars to respond to unjust criticism of judges and courts from the media or special interest groups. Because of the ethical constraints judges face, bar associations are uniquely situated to, in the words of the ABA “…provide the public with information to help them better understand the legal issues related to a specific situation, including the role of judges, the application of the law, and the restrictions and responsibilities placed on judges in the canons and rules.”489 Another outgrowth of bench-bar-media programs is the development of handbooks or guides, typically for reporters who are assigned to cover your particular court or court system.

Tracking the News Whether you are issuing press releases, convening new conferences, or simply taking to reporters by phone, it is important to track the stories that result. This is the only way of knowing how successful you were in communicating. While some reporters will provide courtesy copies of stories, it is not a regular practice, and most reporters are too busy to do this. After reviewing news coverage, you may decide to change your approach to the media, or develop a new strategy for your next media campaign. Without media monitoring and analysis, any court outreach effort that involves the media is incomplete. It is important to keep in mind that there is no single public. Different media relations strategies will be more effective for reaching certain constituencies. Careful thought and planning are essential before embarking down this road. Furthermore, media relations is an art that should be conducted carefully with a scalpel and not with a sledge hammer.

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s should be clear to anyone examining the lack of public understanding of the law, judges and the court family must take the initiative through public outreach programs and materials if we are to address this seemingly ever-increasing lack of understanding about the law. As with any monumental task, the job must be broken into manageable tasks and constituencies. In an effort to reach the masses comprising the “general public,” courts must first educate and inform those whose job it is to educate and inform the public: the news media and our school educators. Further, to assist the courts in that process we must deliver our message to the executive and legislative branches of state, local, and federal government.

489. ABA Standing Comm. on Judicial Independent, R apid R esponse to Unfair and Unjust Criticism of Judge (2008), available at http://www.abanet.org/judind/toolkit/impartialcourts/Rapid_Response_ Pamphlet.pdf. 490. Condensed from an article by Ron Keefover (Education-Information Officer, Kansas Office of Judicial Administration).

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Reaching Out to the Media As described in previous chapters, like it or not the news media represent an important constituency for public understanding of the law. Several states now have programs for the media in place that, although known by different names, can be placed under the umbrella of “law school for journalists.” These can be statewide, regional or even court-specific seminars designed to teach journalists the ways of their local courts while providing law-related information that is important to them and their career. Beyond basic information about these and similar issues, the law school for journalists programs provide an opportunity for judges and journalists to meet together and see first-hand whether the conflict between the First and the Sixth Amendments is really necessary. Co-existent with the on-going need to educate and inform the media about the work of the court is a very real need to educate and inform judges about journalists and their craft. Just as journalists need to know who we are and what we do, judges must learn who the journalists are and what it is that they do. This education can follow some of the same lines as described in staging media law seminars for journalists, except the information will be presented at regularly scheduled meetings of the bench and bar.

Reaching Out to the Executive and Legislative Branches Equally important constituencies—and arguably more important—for the judiciary are those holding the purse strings, whether they be a state legislature, Congress, or a local county or municipal governing board. Most jurisdictions strive to improve relationships with the executive and legislative branches through traditional lobbying outreach, such as testimony before legislative committees and personal contact with individual city and county commissioners, state legislators, and members of Congress. However, several states have taken the campaign a step further and launched programs to bring the funders to the courtroom. Although referred to by a variety of names, most call the program “judicial ride-along” in which city, county, or state funders are invited to spend a morning or day in court with a local judge. During the visit, the legislators are given a “chef’s tour” of court operations and participate in meetings of judicial and non-judicial personnel regarding all aspects of court business. Before or after the court proceedings, the judges discuss administrative issues and problems they face, as well as successes they have achieved in handling them. These discussions usually provide the opportunity to discuss the common thread running through the administration of justice—lack of adequate funding. As with the so-called “law school for journalists” programs, some states have launched similar efforts for legislators. Typically, they are designed for newly elected legislators and are designed to provide basic information about court operations and structure. But these sessions also can include information about specific matters that will concern them as they craft laws.

Reaching Out to Students Meanwhile, many states have reached beyond the legislative halls and newsrooms to educate and inform our youngest citizens about the rule of law and its daily impact on them. Usually called law-related education or sometimes citizenship education, programs to bring the law to the classroom are underway in many states, typically under the auspices of the state bar association or in some cases the state administrative office of the courts or

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state department of education. Numerous efforts are also underway at the national level that are designed to introduce law-related education into the nation’s school curricula. While the ultimate goal may be to improve students’ knowledge, it also is helpful to reach out to teachers. Some courts also offer teacher institutes in which they provide teachers with overviews of cases and the accompanying materials that they can take back and use in the class room. On the national level, the Federal Judicial Center develops educational and outreach materials, which are for judges and court employees, but may be of interest to others. For example, a 17-minute long video on an introduction to the patent system, which is intended for jurors, can be watched from the Center’s web site.491

Court Publications and Websites A solid judicial outreach program would not be complete without publications and websites to support the mission. Beyond the media, legislators, and school groups, these publications, videos, and websites can be used to great advantage for reach- ing the general public, including those who come to the courthouse as court users or observers. Clearly, the most economic and efficient tool of the judiciary for reaching the masses since the mid-1990s has been the Internet. There, with little staff time and equipment cost once a website has been established, judges can quickly and effectively post their message. The website can be used for a wide range of court news and topics that the news media may choose not to cover, but which the courts need the public to have. Beyond basic biographical information and judicial opinions, websites can include electronic copies of the all the court’s publications, including such matters as caseload statistical reports, local court rules, calendars, courthouse locations and operating hours, visitor’s guides to the court, how to obtain court records, courthouse maps, juror information, parking, small claims procedures and forms, and any number of other topics of interest to citizens and the courts. Many of these topics can also be printed in hard copy for distribution at the court facility entrance, the clerk’s office, or in the judges’ chambers, wherever one can seize upon the opportunity to lift the veil and shed light on who we are and what we do.

Commemorations It is not uncommon for courts to conduct outreach programs to mark certain occasions such as Law Day, Constitution Day, Juror Appreciation Month, and even Take Your Child to Work Day. Since 2005, when Congress passed a law saying that schools that receive federal funding are required to observe Constitution Day, September 17 has been a popular day for federal court programs. In recognition of Constitution Day, annually Justices of the U.S. Supreme Court have discussed core judicial issues, such as judicial independence and the origin of the Supreme Court, and a DVD highlighting the discussion has been produced and made available for free from the Annenberg Foundation Trust at Sunnylands.492 The DVDs have been very popular in the classroom. Because state and local courts and bar associations often celebrate many of these events, the federal judiciary attempts to focus on occasions and issues that are unique to the federal courts. For example, bankruptcies are filed only in federal courts, and an im 491. http://www.fjc.gov. 492. The DVDs are available on the foundation’s web site, http://www.sunnylandstrust.org/programs/ programs_list.htm?cat_id=1486.

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mensely popular outreach program is an unfortunate reflection of the nation’s economic environment. Calling itself a financial literacy program, Credit Abuse Resistance Education (CARE), is a financial literacy program for parents, teachers, and students developed by New York Bankruptcy Judge John Ninfo II.493 One of the more innovative civic education web sites was the vision of Justice Sandra Day O’Connor and has been launched as a joint project of Arizona State University and Georgetown University. Called “Our Courts: 21st Century Civics,” the site offers some game-playing learning opportunities with more to come, and also invites teachers to “Build a curriculum or supplement your existing curriculum with interactive lesson plans and classroom activities.”494

493. Information is available at http://careprogram.squarespace.com/home/. 494. http://www.ourcourts.org.

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JURY INSTRUCTIONS CAUTIONING AGAINST USE OF THE INTERNET AND SOCIAL NETWORKING

Approved by the Board of Regents September 2010

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A merican C ollege

of

Trial L aw yers1

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he American College of Trial Lawyers, founded in 1950, is composed of the best of the trial bar from the United States and Canada. Fellowship in the College is extended by invitation only, after careful investigation, to those experienced trial lawyers who have mastered the art of advocacy and those whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. Lawyers must have a minimum of 15 years’ experience before they can be considered for Fellowship. Membership in the College cannot exceed 1% of the total lawyer population of any state or province. Fellows are carefully selected from among those who represent plaintiffs and those who represent defendants in civil cases; those who prosecute and those who defend persons accused of crime. The College is thus able to speak with a balanced voice on important issues affecting the administration of justice. The College strives to improve and elevate the standards of trial practice, the administration of justice and the ethics of the trial profession.

◆◆◆ “In this select circle, we find pleasure and charm in the illustrious company of our contemporaries and take the keenest delight in exalting our friendships.” —Hon. Emil Gumpert, Chancellor-Founder, ACTL

Copyright © 2010 American College of Trial Lawyers All Rights Reserved

1. W  e would like to acknowledge the cooperation of Dennis J. Maggi, Executive Director, American College of Trial Lawyers: 19900 MacArthur Boulevard, Suite 530 Irvine, California 92612 Telephone: (949) 752-1801 Facsimile: (949) 752-1674 E-mail: nationaloffice@actl.com Website: www.actl.com

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A merican C ollege

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CHANCELLOR-FOUNDER Hon. Emil Gumpert (1895—1982)

OFFICERS JOAN A. LUKEY, President GREGORY P. JOSEPH, President-Elect CHILTON DAVIS VARNER, Secretary THOMAS H. TONGUE, Treasurer JOHN J. (JACK) DALTON, Immediate Past President

BOARD OF REGENTS

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PAUL D. BEKMAN Baltimore, Maryland

ROBERT A. GOODIN San Francisco, California

ROBERT L. BYMAN Chicago, Illinois

CHRISTY D. JONES Jackson, Mississippi

BARTHOLOMEW J. DALTON Wilmington, Delaware

GREGORY P. JOSEPH New York, New York

JOHN J. (JACK) DALTON Atlanta, Georgia

JOAN A. LUKEY Boston, Massachusetts

MICHEL DÉCARY Montréal, Quebec

PAUL S. MEYER Costa Mesa, California

JOHN M. FAMULARO Lexington, Kentucky

JOHN S. SIFFERT New York, New York

BRUCE W. FELMLY Manchester, New Hampshire

MICHAEL W. SMITH Richmond, Virginia

PAUL T. FORTINO Portland, Oregon

THOMAS H. TONGUE Portland, Oregon

SAMUEL H. FRANKLIN Birmingham, Alabama

CHILTON DAVIS VARNER Atlanta, Georgia

PHILLIP R. GARRISON Springfield, Missouri

FRANCIS M. WIKSTROM Salt Lake City, Utah

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PAST PRESIDENTS 1950-51 EMIL GUMPERT* Los Angeles, California 1951-52 C. RAY ROBINSON* Merced, California 1952-53 CODY FOWLER* Tampa, Florida 1953-54 E. D. BRONSON* San Francisco, California 1954-55 CODY FOWLER* Tampa, Florida 1955-56 WAYNE E. STICHTER* Toledo, Ohio 1956-57 JESSE E. NICHOLS* Oakland, California 1957-58 LEWIS C. RYAN* Syracuse, New York 1958-59 ALBERT E. JENNER, JR.* Chicago, Illinois 1959-60 SAMUEL P. SEARS* Boston, Massachusetts 1960-61 LON HOCKER* Woods Hole, Massachusetts 1961-62 LEON JAWORSKI* Houston, Texas 1962-63 GRANT B. COOPER* Los Angeles, California 1963-64 WHITNEY NORTH SEYMOUR* New York, New York 1964-65 BERNARD G. SEGAL* Philadelphia, Pennsylvania 1965-66 EDWARD L. WRIGHT* Little Rock, Arkansas 1966-67 FRANK G. RAICHLE* Buffalo, New York 1967-68 JOSEPH A. BALL* Long Beach, California 1968-69 ROBERT W. MESERVE* Boston, Massachusetts 1969-70 HON. LEWIS F. POWELL, JR.* Washington, District of Columbia 1970-71 BARNABAS F. SEARS* Chicago, Illinois 1971-72 HICKS EPTON* Wewoka, Oklahoma 1972-73 WILLIAM H. MORRISON* Portland, Oregon 1973-74 ROBERT L. CLARE, JR.* New York, New York 1974- AUSTIN W. LEWIS* New Orleans, Louisiana 1975-76 THOMAS E. DEACY, JR. Kansas City, Missouri 1976-77 SIMON H. RIFKIND* New York, New York 1977-78 KRAFT W. EIDMAN* Houston, Texas 1978-79 MARCUS MATTSON* Los Angeles, California 1979-80 JAMES E. S. BAKER* Chicago, Illinois

1980-81 JOHN C. ELAM* Columbus, Ohio 1981-82 ALSTON JENNINGS* Little Rock, Arkansas 1982-83 LEON SILVERMAN New York, New York 1983-84 GAEL MAHONY Boston, Massachusetts 1984-85 GENE W. LAFITTE New Orleans, Louisiana 1985-86 GRIFFIN B. BELL* Atlanta, Georgia 1986-87 R. HARVEY CHAPPELL, JR. Richmond, Virginia 1987-88 MORRIS HARRELL* Dallas, Texas 1988-89 PHILIP W. TONE* Chicago, Illinois 1989-90 RALPH I. LANCASTER, JR. Portland, Maine 1990-91 CHARLES E. HANGER* San Francisco, California 1991-92 ROBERT B. FISKE, JR. New York, New York 1992-93 FULTON HAIGHT* Santa Monica, California 1993-94 FRANK C. JONES Atlanta, Georgia 1994-95 LIVELY M. WILSON* Louisville, Kentucky 1995-96 CHARLES B. RENFREW San Francisco, California 1996-97 ANDREW M. COATS Oklahoma City, Oklahoma 1997-98 EDWARD BRODSKY* New York, New York 1998-99 E. OSBORNE AYSCUE, JR. Charlotte, North Carolina 1999-2000 MICHAEL E. MONE Boston, Massachusetts 2000-2001 EARL J. SILBERT Washington, District of Columbia 2001-2002 STUART D. SHANOR Roswell, New Mexico 2002-2003 WARREN B. LIGHTFOOT Birmingham, Alabama 2003-2004 DAVID W. SCOTT, Q.C. Ottawa, Ontario 2004-2005 JAMES W. MORRIS, III Richmond, Virginia 2005-2006 MICHAEL A. COOPER New York, New York 2006-2007 DAVID J. BECK Houston, Texas 2007-2008 MIKEL L. STOUT Wichita, Kansas 2008-2009 JOHN J. (JACK) DALTON Atlanta, Georgia

* Deceased

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Jury C ommittee CHAIR

Terry O. Tottenham, Austin, TX MEMBERS David D. A lsop, M inneapolis , MN

Br ad J. Br ady, C edar R apids , IA R ichard P. Campbell , B oston, MA A llan R. C hason, Bay M inette , AL John G. C orlew, Jackson, MS R obert W. D ibble , Jr ., P rosperity, SC D ennis J. D r asco, Roseland, NJ K evin J. D unne , San F r ancisco, CA Daniel B. Hu yett, R eading, PA William C. Jeanney, R eno, NV L awrence R. K ing, S t. Paul , MN R ichard F. L ombardo, K ansas C ity, MO John D. Mc Gavin, Fairfax , VA John J. McL aughlin, Tampa , FL E lizabeth N. Mulvey, B oston, MA George H. R obinson, Jr ., L afa

yette ,

LA

Nicholas B. R oth, D ecatur , AL Carolyn P. Short, P hiladelphia , PA M ichael W. Smith, R ichmond, VA Hon. Sam Sparks , Austin, TX James J. Virtel , S t. L ouis , MO Darrell L. Warta , Wichita , KS Terry W. West, Shaw

nee ,

OK

James A. Willett, M anassas , VA R ichard M. Z ielinski, B oston, MA Hon. Jack Z ouhary, Toledo, OH

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TABLE OF CONTENTS Introductory Note�������������������������������������������������������������������������������������������������������� i For Summons to Prospective Jurors��������������������������������������������������������������������������� 1 Instructions for Impaneled Jurors����������������������������������������������������������������������������� 2 Courtroom Conduct���������������������������������������������������������������������������������������������������� 4 Suggested Message for Impaneled Jurors to Send to Family and Friends����������������5 Suggested Statement of Compliance for Jurors to Sign�������������������������������������������� 6

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INTRODUCTORY NOTE The use and misuse of technology in courtrooms and courthouses has raised a number of issues that pose new and difficult challenges to judges, lawyers, jurors and litigants. Across the country, trials have been affected by jurors who, either intentionally or unintentionally, have used technology to conduct unauthorized research or communicate about court proceedings. The American College of Trial Lawyers explored some of these issues at its Fall 2009 meeting in a program entitled “The Dark Side of Technology.” The College recognizes the importance of these issues, and seeks to develop “best practices” for handling the use of technology in the courtroom. These suggested instructions address many of the problems that have come to light in recent years. The use of these or similar instructions is not without controversy. Despite a growing body of case law concerning the improper use of technology, some believe that the use of specific instructions such as those advocated by the ACTL will serve only to increase the number of violations by suggesting actions that would not otherwise have occurred to jurors. Others take the position that the use of specific instructions, accompanied by an explanation of why certain conduct must be prohibited during trials, will reduce at least the number of inadvertent violations, and may help to deter jurors who would otherwise not understand the potential harm that might flow from their seemingly innocuous actions. The College has concluded that the growing number of model instructions promulgated by the state and federal courts demonstrates the need to provide guidance to jurors, some of whom have shown that, without it, they are prone to lapse into use of the Internet and social networking, to the detriment of the fair administration of justice.1 The suggested instructions are classified according to time frames or stages of court proceedings, and are tailored to address specific issues that might arise at those times. These materials also include a suggested message for impaneled jurors to send to family and friends explaining the juror’s situation, and a written agreement to be signed by each juror acknowledging the court’s instructions. It is suggested that the formality of a writing may serve to impress upon jurors the gravity of the court’s instructions. 1 See U.S. Judicial Conference Committee on Court Administration and Case Management, Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or Communicate about a Case (available at http://www.uscourts.gov/ uscourts/News/2010/ docs/DIR10-018-Attachment.pdf); U.S. Court of Appeals for the Third Circuit General Instruction for Civil Cases 1.2; U.S. Court of Appeals for the Third Circuit Criminal Instruction 1.03; U.S. Court of Appeals for the Eighth Circuit Preliminary Instructions 1.05, 1.08; U.S. Court of Appeals for the Ninth Circuit Model Civil Jury Instruction 1.12; U.S. Court of Appeals for the Ninth Circuit Model Criminal Jury Instruction 1.9; California Civil Jury Instruction 100; Connecticut Civil Jury Instruction 1.1-1; Connecticut Criminal Jury Instruction 1.2-10; Florida General Pool Instructions, Qualifications Instruction; Florida Civil Preliminary Instruction Given Before Voir Dire Begins 201.2; Florida Civil Preliminary Instruction Given After Voir Dire Ends and the Jury Is Sworn 202.2; Florida Civil Closing Instruction 700; Indiana Supreme Court, Cause No. 94S00- 1003-MS-128, Rule 20 (Preliminary Instructions) and Rule 26 (Final Instructions); Michigan Court Rule 2.511; Missouri Supreme Court 2.01 Explanatory Instructions for All Cases at (1) Prohibition of Juror Research or Communication about This Case; New York Criminal Jury Instructions, Jury Admonitions in Preliminary Instructions at (4); New York Civil Pattern Jury Instructions 1:10, 1:11; Ohio State Bar Association Jury Instructions I(C)(2)-(3); South Carolina Supreme Court Order 2009-07- 20-01 re Juror Use of Personal Communication Devices; Wisconsin Criminal Jury Instruction No. 50.

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JURY INSTRUCTIONS CAUTIONING AGAINST USE OF THE INTERNET AND SOCIAL NETWORKING For Summons to Prospective Jurors The court understands that you may be unfamiliar with the court system, and that you may have many questions about what to expect from your jury service. In order to assist you in answering some common questions, we have [prepared the enclosed pamphlet] [created a special website], which you should feel free to review before you report to court. If you have questions that are not answered, you may bring them to court with you on the day or your service, or you may call [CONTACT PERSON]. However, in order to assist the court in providing the litigants with a fair trial, it is important that you refrain from conducting any research which might reveal any information about any case pending before the court, or any of the parties involved in any case. Therefore, you should avoid any attempts to learn which cases may be called for trial during your jury service, or anything about the parties, lawyers or issues involved in those cases. Even research on sites such as Google, Bing, Yahoo, Wikipedia, Facebook or blogs, which may seem completely harmless, may lead you to information which is incomplete, inaccurate, or otherwise inappropriate for your consideration as a prospective juror. The fair resolution of disputes in our system requires that jurors make decisions based on information presented by the parties at trial, rather than on information that has not been subjected to scrutiny for reliability and relevance.

REFERENCES: Russo v. Takata Corp., 2009 WL 2963065 (S.D. 9/16/09).

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Instructions for Impaneled Jurors Now that you have been chosen as jurors for this trial, you are required to decide this case based solely on the evidence and the exhibits that you see and hear in this courtroom. At the end of the case, I will give you instructions about the law that you must apply, and you will be asked to use that law, together with the evidence you have heard, to reach a verdict. In order for your verdict to be fair, you must not be exposed to any other information about the case, the law, or any of the issues involved in this trial during the course of your jury duty. This is very important, and so I am taking the time to give you some very detailed explanations about what you should do and not do during your time as jurors. First, you must not try to get information from any source other than what you see and hear in this courtroom. This means you may not speak to anyone, including your family or friends. You may not use any printed or electronic sources to get information about this case or the issues involved. This includes the internet, reference books or dictionaries, newspapers, magazines, television, radio, computers, Blackberries, iPhones, Smartphones, PDAs, or any other electronic device. You may not do any personal investigation, including visiting any of the places involved in this case, using Internet maps or Google Earth, talking to any possible witnesses, or creating your own demonstrations or reenactments of the events which are the subject of this case. Second, you must not communicate with anyone about this case or your jury service, and you must not allow anyone to communicate with you. In particular, you may not communicate about the case via emails, text messages, tweets, blogs, chat rooms, comments or other postings, Facebook, MySpace, LinkedIn, or any other websites. This applies to communicating with your fellow jurors until I give you the case for deliberation, and it applies to communicating with everyone else including your family members, your employer, and the people involved in the trial, although you may notify your family and your employer that you have been seated as a juror in the case. But, if you are asked or approached in any way about your jury service or anything about this case, you must respond that you have been ordered not to discuss the matter and to report the contact to the court. The court recognizes that these rules and restrictions may affect activities that you would consider to be normal and harmless, and I assure you that I am very much aware that I am asking you to refrain from activities that may be very common and very important in your daily lives. However, the law requires these restrictions to ensure the parties have a fair trial based on the evidence that each party has had an opportunity to address. If one or more of you were to get additional information from an outside source, that information might be inaccurate or incomplete, or for some other reason not applicable to this case, and the parties would not have a chance to explain or contradict that information because they wouldn’t know about it. That’s why it is so important that you base your verdict only on information you receive in this courtroom. Some of you may have heard about trials where the jurors are not permitted to go home at night, or were sequestered for the entire length of the trial. For a variety of reasons, this is something we rarely do anymore. It is far more of an imposition on your lives than the court wishes to make. However, it was effective in keeping jurors away from information that might affect the fairness of the trial—that was the entire purpose. –2–

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You must not engage in any activity, or be exposed to any information, that might unfairly affect the outcome of this case. Any juror who violates these restrictions I have explained to you jeopardizes the fairness of these proceedings, and a mistrial could result that would require the entire trial process to start over. As you can imagine, a mistrial is a tremendous expense and inconvenience to the parties, the court and the taxpayers. If any juror is exposed to any outside information, or has any difficulty whatsoever in following these instructions, please notify the court immediately. If any juror becomes aware that one of your fellow jurors has done something that violates these instructions, you are obligated to report that to the court as well. If anyone tries to contact you about the case, either directly or indirectly, or sends you any information about the case, please report this promptly as well. These restrictions must remain in effect throughout this trial. Once the trial is over, you may resume your normal activities. At that point, you will be free to read or research anything you wish. You will be able to speak—or choose not to speak—about the trial to anyone you wish. You may write, or post, or tweet about the case if you choose to do so. The only limitation is that you must wait until after the verdict, when you have been discharged from your jury service.

REFERENCES: U.S. v. Hernandez et al, No. 07-60027-CR (S.D. Fla. 2009): In a case from Florida, Federal prosecutors spent two years building their case against defendants accused of participating in an illegal internet pharmacy network. The judge, however, declared a mistrial when he discovered that 8 members of the jury had performed their own internet research on the case. These jurors Googled defendants’ names and definitions of medical terms. Another juror discovered evidence that had been excluded from testimony. One alternate juror used the internet on his cell phone during breaks to conduct his own research. U.S. v. Fumo, 2009 U.S. Dist. LEXIS 51581 (E.D. Penn. June 17, 2009): In a Federal corruption trial in Pennsylvania, a juror posted remarks about the trial and the jury deliberations to Facebook and Twitter. The juror even told readers that “a big announcement” was coming. Another Juror learned that the defendant had a prior overturned conviction. Regardless, the judge allowed trial to continue and the jury found the defendant guilty. A motion for a new trial was denied.

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Courtroom Conduct While court is in session, jurors, parties, witnesses, attorneys and spectators are not permitted to use electronic devices unless specifically authorized by the court. This includes sending or receiving phone calls, voice mails, text messages, tweets, or accessing the internet. No electronic device may be used to record, photograph or film any of the court proceedings. When you arrive at the courthouse in the morning, you will be asked to give any electronic devices to the court officer. These devices will be returned to you at the end of the court day. You will be provided with a telephone number in the courtroom that your family may use to contact you in the event of an emergency. Any emergency message will be received by the court staff and communicated to you at the appropriate time.

REFERENCES: Sky Development Inc. v. Vistaview Development Inc., 2007-32308-CA-01 (Fla. Miami-Dade County Ct. 2009): In a Florida circuit court case, a judge dismissed plaintiff’s civil fraud case after finding out that a witness on the stand was texting his boss while the judge and attorneys were at sidebar. The texts were related to the content of the witnesses’ testimony. Basically, the boss was telling the witness what to say during his testimony. The misconduct was brought to light when a courtroom spectator passed a note to the defense counsel informing him of the texts.

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Suggested Message for Impaneled Jurors to Send to Family and Friends I am sending this message to you as instructed by Judge          . I am now a sworn juror in a trial. I am under a court order not to read or discuss anything having to do with the trial, the parties or lawyers involved, or anything else concerning my jury service. Please do not send me any information about the case or my jury duty, and please do not ask me any questions or make any comments about the case or my jury duty. I will be following these rules for the length of the trial, which is expected to last approximately      . I will send another note when my jury duty is completed and I am no required to follow the court order.

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Cautioning Against Use of the Internet and Social Networking

Suggested Statement of Compliance for Jurors to Sign I agree that during the duration of the trial in           , I will not conduct any independent research into any of the issues or parties involved in this trial. I will not communicate with anyone about the issues or parties in this trial, and I will not permit anyone to communicate with me. I further agree that I will report any violations of the court’s instructions immediately.

                            JUROR No.     

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Appendix B: Model Social Media Jury Admonition with Short Form Version Developed by Judge Dennis M. Sweeney, ret., Maryland Circuit Court Judge Model A dmonition1 (for delivery to veniere at earliest possible point post-summons)

Y

ou as jurors must decide this case based solely on the evidence presented in this courtroom. The evidence you will consider for this case has been reviewed by the parties and the court, and is the evidence that is relevant to this case and the issues you must decide. You must not conduct on your own any research or investigation about the case or the individuals involved in it. I mean “research” in the boradest possible meaning of the word. That is, you cannot use a public library, a dictionary, or a simple Google search to clarify or obtain, for example, even something as simple as the definition of a word you do not understand. Any information you obtain outside the courtroom could be misleading, inaccurate, or incomplete. Relying on this information is unfair because the parties would not have the opportunity to refute, explain or correct it. You may not consult any dictionaries or reference materials. You should not search the Internet, web sites, social media sites, blogs, or any other source for information about the case or the persons involved in the case. Places or locations may be mentioned, but you should not visit any place or location related to the case. You should also not seek any information about the place or location on the Internet or through web sites such as MapQuest or Goggle maps.

1 Developed for publication by Judge Dennis Sweeney, who served for 17 years as a trial judge on Maryland’s Circuit Court, handling a variety of civil and criminal matters. Judge Sweeney’s complete article, “Worlds Collide: The Digital Native Enters the Jury Box,” was published in Volume 1, Issue 2 of the Reynolds Courts & Media Law Journal. Judge Sweeney’s full bio appears In the authors section of this edition.

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Social Media Jury Admonition

Until you retire to deliberate and decide this case, you may not discuss this case with anyone, even your fellow jurors. You should not express any opinion about the case or talk about the case with anyone, including courtroom personnel, spectators or anyone participating in the trial. Most, if not all, of you use cell phones, Blackberries, smart phones or computers to communicate with family, friends, co-workers or others. During this trial, you cannot communicate to anyone any information about this case, or your opinions or views about it or the individuals participating in it by any method or means. You may also be involved in social media or networking sites such as Facebook, MySpace, LinkedIn, YouTube or Twitter, and be accustomed to frequently communicating your views, observations or opinions on these sites. During this trial, you must not use these sites to communicate anything about this case or the individuals participating in it. Jurors should be reminded of the opening instruction frequently during the trial, before any recess and particularly when the jury separates at the end of the day. This reminder could be in the form of a shorter version of the Admonition, such as the following:

Model Short Form A dmonition (For delivery prior to recesses or breaks)

Y

ou will recall that previously I instructed you in great detail that you must decide this case solely on the evidence presented in this courtroom. Because we are about to take a break, I am now reminding you of that warning, and I want you to once again to fully commit to your fellow jurors, to the parties in this case and to the court, that you will not use cell phones, smart phones, Blackberries, iPhones, Facebook, text messaging, Google, or any other form of communication to send or receive messages about this case, even with close friends or family. An interesting additional proposal was made in the Florida Bar Journal by a judge and two litigators. They suggested that sworn jurors be told at the beginning of the trial that they should send to all of their e-mail contacts, Facebook friends and Twitter followers the following message: I am sending this note to you as instructed by Judge         . I am now a sworn juror in a trial. I am sequestered. This means I am not allowed to read or comment upon anything having to do with the subject of the trial, the parties involved, the attorneys, or anything else related to my service as a juror. Please do not send me any materials; don’t e-mail, text, or tweet me any questions or comments about this case or my service as a juror. Please do not text or e-mail me during the course of this trial except in an emergency. I will send you a note when I am released from my duty as a juror. 2

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For Further Reading Summary Guide to the Courts and Media Donald W. Reynolds National Center for Courts and Media, FYI, LOL or OMG?: Technology’s Impact on the Courts and Media (conference, Nov. 1718, 2008), conference videos at http://courtsandmedia.org/reports/conference-2008/

Cameras in the Courtroom 2.0: How Technology is Changing the Way Journalists Cover the Courts Cathy Packer, Should Courtroom Observers Be Allowed to Use Their Smartphones and Computers in Court? An Examination of the Arguments, 36 Am. J. Trial Advoc. 573 (2013). Stacy Blasiola, Say “Cheese!” Cameras and Bloggers in Wisconsin’s Courtrooms, 1 Reynolds Cts. & Media L.J. 197, 207 (2011). Adriana C. Cervantes, Note, Will Twitter be Following You in the Courtroom? Why Reporters Should be Allowed to Broadcast During Courtroom Proceedings, 33 Hastings Comm. & Ent. L.J. 133 (2010). Cameras in the Court: A State-by-State Guide, Radio Television Digital News Association, http://rtdna.org/article/cameras_in_the_court_a_state_by_ state_guide_updated.

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Board of Editors Hon. William F. Dressel  has been the president of The National Judicial College since 2000. He was a lawyer in private practice in both Denver, and Fort Collins, Colorado until he was appointed a judge in Colorado’s 8th Judicial District, a postion he held for 22 years. In 1998 Dressel recieved the Justice Management Institute’s Ernest C. Friesen Award of Excellence in recognition of his vision, leadership, and sustained commitment to the achievement of excellence in the administration of justice.

Charles Davis  is dean of the Henry W. Grady College of Journalism and Mass Communication at the University of Georgia. His scholarly research at the University of Missouri focused on access to governmental information and media law. He has earned a Sunshine Award from the Society of Professional Journalists for his work in furthering freedom of information and in 2008 was named the Scripps Howard Foundation National Journalism Teacher of the Year. He previously worked for newspapers and as a national correspondent for Lafferty Publications, a Dublin-based news wire service for financial publications.

Toni Locy  is an Associate Professor of Journalism and Mass Communications at Washington and Lee University. She spent 25 years as a journalist reporting and writing for some of the nation’s biggest and best news organizations, specializing in the coverage of federal, state, and local law enforcement, the federal trial and appellate courts, and the U.S. Supreme Court. She is author of “Covering America’s Courts: A Clash of Rights,” based on her experience as a reporter in Pittsburgh, Philadelphia, Boston, and Washington.

Nancy B. Rapoport  is the Gordon Silver Professor at the William S. Boyd School of Law, University of Nevada, Las Vegas. She clerked for the Honorable Joseph T. Sneed on the United States Court of Appeals for the Ninth Circuit and then practiced law (primarily bankruptcy law) with Morrison & Foerster in San Francisco. She started her academic career at the Ohio State University College of Law, then became Dean and Professor of Law at the University of Nebraska College of Law. She then served as Dean and Professor of Law at the University of Houston Law Center. Among her published works are Enron and Other Corporate Fiascos: The Corporate Scandal Reader 2d, and the Law School Survival Manual: From LSAT to Bar Exam.

Rick Rodriguez,  the former executive editor and senior vice president of The Sacramento Bee, joined the Walter Cronkite School at Arizona State University as the Carnegie professor, Southwest Borderlands Initiative, in March 2008. He was previously managing editor of the Bee, where he also worked as an assistant managing editor, recruiter, columnist, projects editor, editorial writer, deputy Capitol bureau chief, and reporter during a 25-year career at the newspaper. He also was a reporter at the Fresno Bee and the Salinas Californian, and was the first Latino to serve as president of the American Society of Newspaper Editors.

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Board of Editors (continued) Christina Wells  is the Enoch H. Crowder Professor of Law at the University of Missouri School of Law, and has been a visiting professor at the University of Illinois College of Law and at Masaryk University and Palacky University in the Czech Republic. She joined the faculty in 1993 after having been an associate with Skadden, Arps, Slate, Meagher and Flom in Chicago and Heller, Ehrman, White and McAuliffe in Los Angeles, primarily in the area of business litigation. She received the Shook, Hardy & Bacon Research Award in 2009 for her article on the constitutionality of statutes regulating funeral protests, and also received that award in 2005.

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COURTS&MEDIA

A research and policy center of the National Judicial College.


Reynolds Courts & Media Law Journal, Fall 2013/Winter 2014