Reynolds Courts & Media Law Journal, Spring 2012

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SPRING / SUMMER 2012

VOLUME 2, ISSUE 2

Reynolds Courts & Media Law Journal

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donald w. reynolds national center for

COURTS&MEDIA

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Reynolds Courts & Media Law Journal VOLUME 2, ISSUE 2 SPRING / SUMMER 2012

Alan G. Stavitsky, Publisher Ben Holden, Editor Eric P. Robinson, Managing Editor Aspen Kuhlman, Jim Cooper, Layout Editors Zanny Marsh, Marketing Director Elizabeth Conner, Copy Desk Chief

UNIVERSIT Y OF NEVADA Prof. Nancy Rapoport A RIZONA S TATE UNIVERSIT Y Prof. Rick Rodriguez UNIVERSIT Y OF M ISSOURI Prof. Charles N. Davis; Heath Hooper WASHINGTON AND L EE UNIVERSIT Y Prof. Toni Locy

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COVER: Photo Illustration by Stephen Reich

Š 2012, Donald W. Reynolds National Center for Courts and Media and the University of Nevada, Reno. All rights reserved.

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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 University of Nevada, Reno; the Donald W. Reynolds National Center for Courts and Media; or the Donald W. Reynolds Foundation.

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$I多OLDWHG ,QVWLWXWLRQV 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 Stewart Cheifet, University of Nevada Charles Davis, University of Missouri 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) &RQÀLFWV EHWZHHQ )LUVW $PHQGPHQW DQG 6L[WK $PHQGPHQW SULQFLSOHV DQG YDOXHV Impact of social and new media on court proceedings Process and implications of online access to court records and proceedings $QDO\VLV RI VSHFL¿F H[DPSOHV DQG FDVHV RI FRXUW PHGLD FRQÀLFW VLWXDWLRQV

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 Facebook Service, Judgespeak & More YOUR FACEBOOK STATUS—“SERVED”: Service of Process Using Social Networking Sites John G. Browning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .159

EXTRAJUDICIAL SPEECH: Judicial Ethics in the New Media Age Hon. Brian MacKenzie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

A PRIVILEGE NOT A RIGHT: How Prevalent are ‘Cameras in the Court?’

Michael T. Martinez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211

TOWARD IMPROVED MEDIA COVERAGE OF DOMESTIC VIOLENCE: 32164-rcm_2-2 Sheet No. 3 Side A

Why and How Courts and Others Should Share the News about Domestic Violence and Common Reporting Deficiencies Hon. Chuck Weller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237

Letter from the Director . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi Authors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157 For Further Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265

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Board of Editors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

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(1906-1993)

D ONALD W. R EYNOLDS

M

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EDIA ENTREPRENEUR D ONALD W ORTHINGTON R EYNOLDS was born in 1906 and spent his childhood in Oklahoma City often “hawkingâ€? 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. +H SXUFKDVHG DQG WKHQ VROG KLV ÂżUVW QHZVSDSHU XVLQJ WKH SURFHHGV WR launch the Donrey Media Group.

'XULQJ :RUOG :DU ,, 0U 5H\QROGV VHUYHG DV WKH RIÂżFHU LQ FKDUJH RI WKH 3DFLÂżF DQG /RQGRQ HGLWLRQV RI <$1. +H UHFHLYHG WKH /HJLRQ RI 0HULW 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 nationâ&#x20AC;&#x2122;s largest privately held media companies.

Upon Mr. Reynoldsâ&#x20AC;&#x2122; 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; DQG JHQHUDO QRQSURÂżW SURJUDPV LQ WKH VWDWHV RI $UNDQVDV 1HYDGD DQG 2NODKRPD 7KHVH JUDQWV RIWHQ LQFOXGH D FDSLWDO FRPSRQHQW UHĂ&#x20AC;HFWLQJ Mr. Reynoldsâ&#x20AC;&#x2122; life-long passion for building.

The Donald W. Reynolds National Center for Courts and Media and the Reynolds Courts & Media Law Journal are both funded by the Foundation.

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Donald W. Reynolds National Center for Courts and Media

T

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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 DQG WKH PHGLD SDUWLFXODUO\ WKH FRQĂ&#x20AC;LFWV EHWZHHQ IUHH VSHHFK ULJKWV XQGHU WKH 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 Centerâ&#x20AC;&#x2122;s goals are to SURSRVH VROXWLRQV WR WKHVH FRQĂ&#x20AC;LFWV DQG WR KHOS MXGJHV DQG MRXUQDOLVWV GHYHORS LQsight into their respective roles in safeguarding American democracy and freedom.

The Center is funded by the Donald W. Reynolds Foundation. ,Q LWV UHVHDUFK SXEOLFDWLRQV DQG SURJUDPV DQG WKURXJK LWV DIÂżOLDWLRQV ZLWK WKH 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 interacWLRQV 7KHVH LQFOXGH MXGJHV FRXUW FOHUNV FRXUW LQIRUPDWLRQ RIÂżFHUV DQG FXUUHQW 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 judiciaryâ&#x20AC;&#x2122;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 publicâ&#x20AC;&#x2122;s FRQÂżGHQFH LQ WKH IXQGDPHQWDO IDLUQHVV DQG LQWHJULW\ RI WKH MXGLFLDO V\VWHP 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. %\ KHOSLQJ WR UHGXFH WKH FRQĂ&#x20AC;LFW EHWZHHQ WKH LQGHSHQGHQW MXGLFLDU\ DQG WKH 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 Abramsâ&#x20AC;&#x201D;Partner, &DKLOO *RUGRQ 5HLQGHO //3 1HZ <RUN 1 < Hon. Janet Berryâ&#x20AC;&#x201D;Judge, District Court, Second Judicial District, Reno, Nev. Walter H. Bushâ&#x20AC;&#x201D;Shareholder, Carlton Fields, Atlanta, Ga. Dave Busiekâ&#x20AC;&#x201D;News Director, KCCI-TV, Des Moines, Iowa Linda C. Deutschâ&#x20AC;&#x201D;Legal Affairs Reporter, The Associated Press, Los Angeles, Cal. Hon. William F. Dresselâ&#x20AC;&#x201D;President, The National Judicial College, Reno, Nev. Mark Hinueberâ&#x20AC;&#x201D;General Counsel, Stephens Media Group, Las Vegas, Nev. Hon. Richard A. Jonesâ&#x20AC;&#x201D;Judge, U.S. District Court, Seattle, Wash.

Warren L. Lerudeâ&#x20AC;&#x201D;Professor, Reynolds School of Journalism, University of Nevada, Reno, Nev. Samuel S. Lionelâ&#x20AC;&#x201D;Shareholder, Lionel, Sawyer & Collins, Las Vegas, Nev. Karole Morgan-Pragerâ&#x20AC;&#x201D;Vice President, General Counsel & Corporate Secretary, McClatchy Newspapers, Inc., Sacramento, Cal. Kelli L. Sagerâ&#x20AC;&#x201D;Partner, Davis Wright Tremaine, LLP, Los Angeles, Cal. Hon. Alexander M. Sanders, Jr.â&#x20AC;&#x201D;former Chief Judge, South Carolina Court of Appeals (retired), President Emeritus, College of Charleston, Charleston, S.C. 32164-rcm_2-2 Sheet No. 5 Side A

David A. Sellersâ&#x20AC;&#x201D;Assistant Director of Public Affairs, $GPLQLVWUDWLYH 2IÂżFH of the U.S. Courts, Washington, D.C. Alan G. Stavitskyâ&#x20AC;&#x201D;Dean, Reynolds School of Journalism, University of Nevada, Reno, Nev. Barbara Wallâ&#x20AC;&#x201D;VP & Associate General Counsel, Gannett Co. Inc., McLean, Va.

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From The National Judicial College

F

DQV RI OLJKWZHLJKW VFLHQFH ÂżFWLRQ ZLOO UHPHPEHU D IXQQ\ 6WHYHQ Spielberg movie, Back to the Future, starring Michael J. Fox. In the 27 \HDUV VLQFH WKH ÂżOP ZDV PDGH 7KH 1DWLRQDO -XGLFLDO &ROOHJH KDV DFFHOHUDWHG its efforts to work with judges and journalists to improve court coverage for WKH EHQHÂżW RI WKH SXEOLF 0DQ\ RI WKHVH HIIRUWV ZHUH FRQIHUHQFH VW\OH IDFH WR face sessions involving the Judicial Branch and the Fourth Estate that came down to a version of the quote from recently deceased Rodney King that plaintively asks: â&#x20AC;&#x153;Canâ&#x20AC;&#x2122;t we all just get along?â&#x20AC;?

Collaboration between judges and journalists is the central mission of the Center. No other organization in America is solely dedicated to this effort. Since the 1996 National Conference on Courts and Media, this vital issue has been an important part of NJCâ&#x20AC;&#x2122;s work, and remains so today.

With a sense of deep gratitude to the Reynolds Foundation for funding this work for more than a decade, we are proud to have the Center transition back to the College on the eve of NJCâ&#x20AC;&#x2122;s 50th anniversary. It is crucial to go back to the future, and once again have NJC take a role in facilitating discussions between judges and journalists with the intended result being improved media coverage of court proceedings. We believe this endeavor is vital to a strong and independent judiciary, and ultimately, to a strong and healthy democracy.

WILLIAM DRESSEL PRESIDENT, NATIONAL JUDICIAL COLLEGE

From The Reynolds School of Journalism

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s the new Dean of the Donald W. Reynolds School of Journalism and Center for Advanced Media Studies, I am pleased to bring greetings on behalf of the Reynolds School and the University of Nevada, Reno.

As many of you know, the Donald W. Reynolds National Center for the Courts & Media for the past several years has been part of the Reynolds School. As my colleague Judge Bill Dressel noted above, the Center will return this summer to the National Judicial College, its original base.

With the move, the NJC will take over twice-yearly publication of this Journal. (This editionâ&#x20AC;&#x2122;s pull-out letter from Ben Holden, who is transitioning from the Center to a full-time faculty position as Associate Professor in the Reynolds School, has details for paid subscribers.)

We are proud of the contribution that the Courts & Media Law Journal, launched last year through the vision and generosity of the Donald W. Reynolds Foundation, has made WR RXU XQGHUVWDQGLQJ RI FRQĂ&#x20AC;LFWV EHWZHHQ WKH )LUVW DQG 6L[WK $PHQGPHQWV 7KH 5H\Qolds School is committed to ongoing engagement with this important work, and we look forward to continued collaboration with the Center and the NJC to promote exchange between judges and journalists.

ALAN G. STAVITSKY, PH.D. DEAN AND FRED W. SMITH CHAIR REYNOLDS SCHOOL OF JOURNALISM AND CENTER FOR ADVANCED MEDIA STUDIES

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L ETTER F ROM

THE

D IRECTOR

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his edition of the Reynolds Courts & Media Law Journal has a little something for everyone. Our cover article by John G. Browning outlines the remarkable shifts in the legal landscape which have, in certain jurisdictions and upon certain circumstances, allowed service of process via social media. Mr. Browning is a partner in the DalODV RIÂżFH RI /HZLV %ULVERLV %LVJDDUG 6PLWK //3 Next, we bring you a piece, primarily aimed at judges, encouraging communication between the judiciary and the press. But before you read the article, I wanted to share two personal observations from working directly with judges over the past 25 months.

First, many judges mistrust journalists not based on any broad set of objective experiences but because of a single negative experience with a reporter. And second, many judges believe they are barred by the judicial cannons of ethics from talking to the press. Both are regrettable.

But I hope this editionâ&#x20AC;&#x2122;s article by Judge Brian MacKenzie, of the 52nd District Court in Novi, Michigan, will encourage some re-thinking. Judge MacKenzieâ&#x20AC;&#x2122;s piece lays out in great detail the argument that not only do the rules allow communication with the press, but one might argue that the rules actually encourage judges to educate and aid professional working journalists on matters that will assist in the accurate communication of news to the public. (He of course does not say judges can or should discuss the details of pending litigation).

Additionally, Iâ&#x20AC;&#x2122;ve learned from working with Judge MacKenzie at two recent conferences, that anecdotal feedback from judges suggests something even more interesting and exciting. It is this: Judges who engage and educate reporters directly and openly have better press relationships and therefore get more accurate (and arguably positive) stories, even if such communication creates initial discomfort or uncertainty. )LQDOO\ ZH KDYH WZR DGGLWLRQDO ÂżQH SLHFHV E\ 'U 0LFKDHO 7 0DUWLQH] an assistant professor at the University of Tennessee-Knoxville, and Judge Chuck Weller, a judge with the family division of the second judicial disWULFW FRXUW RI WKH VWDWH RI 1HYDGD 3URIHVVRU 0DUWLQH]Âś SLHFH TXDQWLÂżHV DQG analyzes the prevalence of cameras in the courtroom. Judge Weller puts forth a guide for journalists who report on family and juvenile cases.

BEN HOLDEN

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AUTHORS JOHN BROWNING LV WKH IRXQGLQJ SDUWQHU RI WKH 'DOODV 7; RIÂżFH RI /HZLV Brisbois Bisgaard & Smith, where he handles civil litigation in state and federal courts, in areas ranging from employment and intellectual property to commercial cases and defense of products liability, professional liability, media law, and general negligence matters. Mr. Browning has extensive trial, arbitration, and summary judgment experience and has represented companies in a wide variety of industries throughout Texas.

Mr. Browning received his Bachelor of Arts with general and departmental honors from Rutgers University in 1986, where he was a National Merit Scholar and member of Phi Beta Kappa. He received his Juris Doctor from the University of Texas School of Law in 1989. He is the author of the book The Lawyerâ&#x20AC;&#x2122;s *XLGH WR 6RFLDO 1HWZRUNLQJ 8QGHUVWDQGLQJ 6RFLDO 0HGLDÂśV ,PSDFW RQ WKH /DZ, as well as two forthcoming books on social media and the law. He has been quoted as a leading authority on social media and the law by such publications as The New York Times, 7,0( magazine, The National Law Journal, Law 360, and ,QVLGH &RXQVHO magazine, and he is a recurring legal commentator for the NBC and FOX news stations in Dallas.

JUDGE BRIAN MACKENZIE serves as a Judge of the 52nd District Court, located in Novi Michigan. He is the co-editor of the book, Michigan Criminal Procedure. Judge MacKenzie is the president of the Michigan Association of Drug Court Professionals and is a member of the Council of State Drug Courts Associations. He has served as a member of the National Center for DWI Courts, DWI Court Task Force. He is the secretary of the American Judges Association and the chair of itâ&#x20AC;&#x2122;s education committee.

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He was honored by the Foundation for the Improvement of Justice with the 3DXO + &KDSPDQ PHGDO IRU VLJQLÂżFDQW FRQWULEXWLRQV WR WKH $PHULFDQ &ULPLQDO Justice System. He has received numerous other awards for his community based programs. From 2008 to 2010 Judge MacKenzie was the American Bar $VVRFLDWLRQ 1DWLRQDO +LJKZD\ 7UDIÂżF 6DIHW\ $GPLQLVWUDWLRQ -XGLFLDO )HOORZ Judge MacKenzie has written and lectured throughout the country on such issues as substance abuse, domestic violence, Veterans treatment courts, and court media relations.

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Judge MacKenzie received his Juris Doctorate from Wayne State University Law School in 1974. In November 1974, he was admitted to practice and joined WKH :D\QH &RXQW\ 3URVHFXWRUÂśV 2IÂżFH DV DQ $VVLVWDQW 3URVHFXWLQJ $WWRUQH\ ,Q KH MRLQHG WR WKH 0LFKLJDQ $WWRUQH\ *HQHUDOÂśV 2IÂżFH DV DQ $VVLVWDQW $Wtorney General were he remained until he was appointed to 52nd District Court, 1st Division, in March of 1988.

Judge MacKenzie is married to Karen MacKenzie. He has three children; Kate, David and Breanna and three grandsons, Daniel, Raymond and Henry.

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Authors (continued) MICHAEL T. MARTINEZ, PH.D is an assistant professor in the School of Journalism and Electronic Media at the University of Tennessee. His scholarly UHVHDUFK FHQWHUV RQ PHGLD ODZ PRUH VSHFLÂżFDOO\ WKH PHGLD DQG WKH FRXUWV +H received both his M.A.and Ph.D. from the University of Missouri, but between the two degrees he spent 26 years working as a photojournalist, photo editor and web producer for the Louisville (Ky.) Courier-Journal, the Cincinnati Enquirer, The Detroit News, the Fort Worth StarTelegram and the Associated Press LQ 1HZ <RUN 0DUWLQH] ZDV WKH SLFWXUH HGLWRU DW WKH Courier-Journal ZKHQ .HQWXFN\ ÂżUVW DOORZHG FDPHUDV LQ WKH FRXUWV LQ WKH V DQG ZDV WKH deputy director of photography at The Detroit News when the Eastern District of Michigan participated in a three-year federal cameras in the court experiment in the early 1990s.

CHUCK WELLER is a Judge in the Second Judicial District Court, Family Division, Reno, Nevada. He has his J.D. from Georgetown University and a Masters Degree in Judicial Studies from the University of Nevada. He speaks, writes and teaches at the National Judicial College about domestic violence and related courthouse violence. His interest in media reporting of domestic violence stems from a 2006 incident in which he became a victim of courthouse violence perpetrated by a litigant who had earlier murdered his divorcing wife.

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<RXU )DFHERRN Statusâ&#x20AC;&#x201D;â&#x20AC;&#x153;Servedâ&#x20AC;?: Service of Process Using Social Networking Sites John G. Browning Courts â&#x20AC;Ś cannot be blind to changes and advances in technology. No longer do we live in a world where communications are conducted solely by mail carried by fast sailing clipper or steam ships.

Electronic communication via satellite can and does provide instantaneous transmission of notice and information. No longer must process be mailed to a defendantâ&#x20AC;&#x2122;s door when he can receive FRPSOHWH QRWLFH DW DQ HOHFWURQLF WHUPLQDO LQVLGH KLV YHU\ RIÂżFH HYHQ ZKHQ WKH GRRU LV VWHHO DQG bolted shut.1

amously permitting a then-state of the art technology, the telex,2 to be used as a mode RI VHUYLFH WKH 1HZ <RUN IHGHUDO MXGJH ZKR ZURWH WKDW RSLQLRQ EDFN LQ ZRXOG SUREDEO\ QRW EH VKRFNHG WR GLVFRYHU WKDW LQ WKH ZLUHG ZRUOG RI FRXUWV LQ DW OHDVW ÂżYH countries have allowed defendants to be served via a social networking site.3

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F

R EY NOLDS C OURTS & M EDIA L AW JOUR NAL

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1. New England Merchants National Bank v. Iran Power Generation & Transmission Co., 495 F. Supp. Âą 6 ' 1 <

2. Telex was â&#x20AC;&#x153;a switched network of teleprinters similar to a telephone network, for the purposes of sending text-based messages.â&#x20AC;? Telex, WIKIPEDIA , http://en.wikipedia.org/wiki/Telex (visited Mar, 29, 2012).

3. See, e.g., MKM Capital Property Ltd. v. Corbo & Poyser (Dec. 12, 2008). No. SC 608 of 2008 (Austl.., ACT Sup. Ct.) (discussed infra, note 51 and accompanying text, et. seq.); Axe Market Garden Ltd. v. Axe (2009), CIV - 2008 - 485-002676 (HC Wellington) (N.Z.) (discussed infra, note 79 and accompanying text, et. seq.); and Knott v. Sutherland (Feb. 5, 2009, Edmonton 0803 02267, [2009] A.J. No. 1539 (Alta. Q.R.M.) (Canada) (discussed infra, note 81 and accompanying text, et. seq.); and ,Q 5H Marriage of Jessica Mpafe v. Clarence Mdjounwou Mpafe, Court File No. 27-FA-11 (Minn. Dist. Ct., Fam. Div., Hennepin County) (May 10, 2011) (discussed infra, note 132 and accompanying text, et. seq.).

See also Katherine Rushton, Legal Claims Can be Served Via Facebook, High Court Judge Rules, THE TELEGRAPH, Feb. 21, 2012, KWWS ZZZ WHOHJUDSK FR XN ÂżQDQFH QHZVE\VHFWRU PHGLDWHFKQRORgyandtelecoms/9095489/Legal-claims-can-be-served-via-Facebook-High-Court-judge-rules.html (United Kingdom).

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Your Facebook Statusâ&#x20AC;&#x201D;â&#x20AC;&#x153;Servedâ&#x20AC;?

How the legal landscape has shifted â&#x20AC;&#x201D; and continues to shift â&#x20AC;&#x201D; in the age of Facebook, 7ZLWWHU DQG <RX7XEH WR DOORZ VHUYLFH YLD VRFLDO PHGLD LV D VWXG\ LQ WKH ODZÂśV 6LV\SKHDQ struggle to keep pace with technology. In order to better understand both how traditional notions of service of process have expanded to encompass emerging technologies like ,Q PDQ\ ZD\V KHU GLVWUXVW RI WKH social media, as well as what this paradigm shift in communications may mean for the reliability of a social networking future, one must examine the historical shift page echoes the early mistrust in courtsâ&#x20AC;&#x2122; approach to technology where service is concerned and the impact that social that many American courts have media are having on society in general and voiced regarding evidence from the legal system in particular. In addition, to fully appreciate the potentially transforonline sources. mative effect of social media as a form of substituted service, one must analyze the evolution of its reception in courts around the world, from early efforts in Australia in 2008 to its endorsement by the High Court in the United Kingdom in 2012, and some acceptance in the United States.

The popularity and sheer pervasiveness of social media make sites such as Facebook and Twitter viable channels for service of process.4 <HW E\ WKH VDPH WRNHQ FHUWDLQ FKDUDFWHULVWLFV of social networking sites raise concerns. For example, is the person who created the social QHWZRUNLQJ SURÂżOH DFWXDOO\ WKH VDPH LQGLYLGXDO WR ZKRP VHUYLFH LV VRXJKW" &DQ WLPHO\ QRWLFH be ensured if the user in question makes only sporadic visits? As this article will discuss, these are valid concerns, but ones that courts can certainly address. Ultimately, social media SODWIRUPV RIIHU DQ HIÂżFLHQW FRVW HIIHFWLYH PHDQV RI SHUIHFWLQJ VXEVWLWXWHG VHUYLFH RQ RWKHUZLVH elusive defendants. As judicial comfort levels with emerging technologies rise, the popularity of court-sanctioned use of social media as a form of substituted service should rise as well.

MODERN TECHNOLOGY AND EVOLVING NOTIONS OF SERVICE OF PROCESS

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V QRYHO D FRQFHSW DV VHUYLFH RI SURFHVV YLD VRFLDO PHGLD SODWIRUPV PD\ VHHP DW ÂżUVW blush, it actually represents a logical next step in the path along which traditional notions of service and jurisdiction have evolved. In 1808, Lord Ellenborough questioned the validity of effecting service â&#x20AC;&#x153;upon proof of mailing a summons at the court door.â&#x20AC;?5 Twohundred years later, in an era of search engines and smartphones, a court in Australia has upheld the validity of serving a defendant via Facebook.6 In the United States, our notion of service has followed a path that, in many ways, mirrors the expansion of our country and efforts to reconcile the due process interests in need of protection with the pragmatism born of our embrace of technology and our acknowledgment of that technologyâ&#x20AC;&#x2122;s importance to economic growth.

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4. Facebook reports having 845 million users as of the end of December 2011, with 483 million of them using the site on at least a daily basis. Facebook, Inc., Facebook Fact Sheet, http://newsroom.fb.com/ content/default.aspx?NewsAreaID=22 (visited Apr. 9, 2012). Twitter, meanwhile, reports having 140 million active users and processing more than 340 million Tweets daily. Twitter, Inc., Shutting down spammers, TWITTER BLOG , April 5, 2012, http://blog.twitter.com/2012/04/shutting-down-spammers.html (visited Apr. 9, 2012).

5. Buchanan v. Rucker, 103 Eng. Rep. 546 (1808).

6. MKM Capital Property Ltd. v Corbo & Poyser, (12 Dec. 2008) No. SC 608 of 2008 (Austl., ACT Sup. Ct.).

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In 1878, the U.S. Supreme Court held in Pennoyer v. Neff that a defendant, to be considered served, had to be personally served in the forum state.7 Decades later, in ,QWHUQDWLRQDO 6KRH Y :DVKLQJWRQ WKH &RXUW XSKHOG VXEVWLWXWHG VHUYLFH DV VXIÂżFLHQW where there was â&#x20AC;&#x153;reasonable assurance that the notice will be actual.â&#x20AC;? 8 By 1950, in Mullane v. Central Hanover Bank & Trust Co., in upholding notice by publication, the Supreme Court held that the means of service had to be â&#x20AC;&#x153;reasonably calculatedâ&#x20AC;? to reach the intended recipient.9 Any effort at substituted service had to be â&#x20AC;&#x153;not substantially less likely to bring home notice than other of the feasible and customary substitutes.â&#x20AC;? 10 By 1983, in Mennonite Board of Missions v. Adams, Justice Sandra Day Oâ&#x20AC;&#x2122;Connor would write that â&#x20AC;&#x153;notice is constitutionally adequate when the practicalities and peculiarities of the case â&#x20AC;Ś are reasonably met â&#x20AC;Ś The key focus is the â&#x20AC;&#x2DC;reasonablenessâ&#x20AC;&#x2122; of the means chosen by the State.â&#x20AC;?11 In essence, the jurisprudence regarding service has evolved to the point where it can safely be said that a method of service will comport with constitutional due process requirements if that method is reasonably calculated under the circumstances to apprise interested parties that the action is pending and to provide them with an opportunity to respond or object. As the U.S. District Court for the District of Delaware recently put it in upholding service via email, â&#x20AC;&#x153;So long as the method of service is reasonably calculated to reach the defendant and allow the opportunity to object and respond to the litigation, service through email comports with the due process clause.â&#x20AC;?12

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n fact, the development of the case law approving of email as a means of service provides a useful, instructive framework for how service using social media should pass muster under the Federal Rules as well as withstand due process scrutiny. :KLOH QRW WHFKQLFDOO\ LQYROYLQJ HPDLO WKH ÂżUVW FDVH WR SHUPLW VHUYLFH RI SURFHVV WR EH DFFRPSOLVKHG HOHFWURQLFDOO\ ZDV WKH 1HZ <RUN IHGHUDO FRXUW GHFLVLRQ LQ New England 0HUFKDQWV 1DWLRQDO %DQN Y ,UDQ 3RZHU *HQHUDWLRQ DQG 7UDQVPLVVLRQ &R.13 Confronting the few alternatives available to a group of U.S. plaintiffs looking for a way to sue defendants in Iran (where normal means of service had been interrupted due to the overthrow of the Shah and subsequent regime change), the court ordered service of process via telex.14 Its oft-cited passage, quoted at the beginning of this article,15 has since become a mantra of sorts for courts wrestling with the conundrum of whether emerging communication technologies could, within constitutional boundaries, accomplish service.

Following New England Merchants, a number of courts â&#x20AC;&#x201D; both state and federal â&#x20AC;&#x201D; considered the newest technological kid on the communications block, the facsimile. A New <RUN VWDWH FRXUW RSLQLRQ &DODEUHVH Y 6SULQJHU 3HUVRQQHO RI 1HZ <RUN ,QF , became the ÂżUVW FDVH SHUPLWWLQJ VHUYLFH YLD ID[ PDFKLQH 16 Pennoyer v. Neff, 95 U.S. 714 (1878).

International Shoe v. Washington, 326 U.S. 310, 320 (1945).

Mullane v. Central Hanover Bank & Trust Co., et al., 339 U.S. 306, 314 (1950). ,G at 315.

Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 801 (1983) (Oâ&#x20AC;&#x2122;Connor, J., dissenting). ,Q UH Heckman Corp., Case No. 1:10-CV-00378-LPS-MPT (D. Del. Nov. 22, 2011) (memorandum opinion), available at http://dvsis69lhye2t.cloudfront.net/wp-content/uploads/2011/11/Heckmann.pdf.

13. ) 6XSS Âą 6 ' 1 <

14. See supra, note 2.

15. See supra, page 159.

16. 1 < 6 G 1 < &LW\ &LY &W

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7.

8.

9.

10.

11.

12.

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Eventually, however, the ubiquitous fax yielded its position to email. In 2003, a fedHUDO FRXUW LQ &DOLIRUQLD Ă&#x20AC;DWO\ UHMHFWHG WKH QRWLRQ RI VHUYLFH E\ HPDLO LQ &ROXPELD ,QVXUance Co. v. Seescandy.com.17 There, the court simply said, with no analysis or reference WR DQ\ DXWKRULW\ WKDW HPDLO ZDV ÂłQRW VXIÂżFLHQW WR FRPSO\ ZLWK WKH )HGHUDO 5XOHV RI &LYLO Procedure.â&#x20AC;?18 But three years later, in ,Q UH ,QWHUQDWLRQDO 7HOHPHGLD $VVRFLDWHV ,QF , the 8 6 %DQNUXSWF\ &RXUW IRU WKH 1RUWKHUQ 'LVWULFW RI *HRUJLD EHFDPH WKH ÂżUVW IHGHUDO FRXUW to authorize international service of process via email.19 In that case, the court permitted the plaintiff to pursue three forms of substituted service against the evasive defendant: facsimile transmission, mail to the defendantâ&#x20AC;&#x2122;s last known address and email.20 The court found authority in Federal Rule of Civil Procedure 4(f)(3), which incorporates the catch-all phrase of allowing international service of process â&#x20AC;&#x153;by other means not prohibited by international agreement, as the court orders.â&#x20AC;?21 Hearkening back to New England Merchants, WKH FRXUW MXVWLÂżHG LWV FUHDWLYH DSSURDFK ZLWK D Ă&#x20AC;RXULVK Âł>&@RPPXQLFDWLRQ E\ IDFVLPLOH transmission and electronic mail have now become commonplace in our increasingly global society. The federal courts are not required to turn a blind eye to societyâ&#x20AC;&#x2122;s embracement of such technological advances.â&#x20AC;?22 In 2002, a landmark decision came down that would contribute important analysis to the discussion of service in the digital age, particularly the need to adapt antiquated notions of service to the dizzying, sophisticated world of modern communications.23 In 5LR 3URSHUWLHV ,QF Y 5LR ,QWHUQDWLRQDO ,QWHUOLQN, the owner/operator of Las Vegas casinos registered a number of trademarks in its properties and also staked its claims on the Internet with a domain, www.playrio.com. 24 At some point, the hotel/casino entity became aware of a Costa Rican company, Rio International Interlink (RII), an Internet gaming business using the domain www.riosports.com.25 Rio Properties sent a cease and desist letter to RII, which soon acquiesced and shut down its site. 26 However, RII later started an identical sports gambling operation at www.betrio.com.27 Not amused, Rio Properties sued for trademark infringement. But there was a problem; RII was nowhere to be found (except online), and efforts at conventional service were fruitless. Rio 3URSHUWLHV WKHQ ÂżOHG DQ HPHUJHQF\ PRWLRQ WR HIIHFWXDWH DOWHUQDWLYH VHUYLFH RI SURFHVV The district court granted the motion, ordering service of process through mail to RIIâ&#x20AC;&#x2122;s attorney as well as email to RII directly.28 5,, ÂżOHG DQG ORVW D PRWLRQ WR GLVPLVV DQG ultimately a default judgment was entered against the Costa Rican entity. RII then appealed to the Ninth Circuit.29

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17. 185 F.R.D. 573 (N.D. Cal. 1999).

18. ,G at 579.

19. 245 B.R. 713, 720 n. 5 (Bank. N.D. Ga. 2000) (â&#x20AC;&#x153;[T]he Courtâ&#x20AC;&#x2122;s Order Authorizing Service constitutes the ÂżUVW WLPH WKDW VHUYLFH RI SURFHVV E\ HOHFWURQLF PDLO KDV EHHQ DXWKRUL]HG LQ D FDVH SHQGLQJ LQ WKH 8QLWHG States.â&#x20AC;?).

20. ,G at 722.

21. F ED. R. C IV. P. 4(f)(3).

22. ,Q UH ,QWÂśO 7HOHPHGLD, 245 B.R. at 721.

23. Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007 (9th Cir. 2002).

24. ,G at 1012.

25. ,G 26. ,G 27. ,G 28. ,G at 1013.

29. ,G at 1014.

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The Ninth Circuit affirmed, citing Rule 4(f)(3) and noting that this rule simply mandated that the alternative form of service must be 1) directed by the court and 2) not prohibited by international agreement.30 The court brushed aside any due process concerns, pointing out that the substituted form of service must be reasonably calcu$V DQ LQWHUQDWLRQDO ÂżUVW WKH lated to provide notice and an opportunity to respond.31 Given the wholehearted courtâ&#x20AC;&#x2122;s decision to allow service adoption of communication via email and through Facebook made news the Internet by the business community, as well as RIIâ&#x20AC;&#x2122;s own usage of and preferaround the world. ence for email communications, the court felt service of process through email was entirely appropriate under the circumstances.32 Although it acknowledged that it was â&#x20AC;&#x153;tread[ing] upon untrodden ground,â&#x20AC;? the court reminded the parties that the U.S. Constitution did not require any particular means of service.33 This latitude, under the Rio Properties courtâ&#x20AC;&#x2122;s analysis, affords courts the discretion to take technological advances into account: â&#x20AC;&#x153;In proper circumstances, this broad constitutional principle unshackles the federal courts from anachronistic methods of service and permits them entry into the technological renaissance.â&#x20AC;?34

SERVICE BY S OCIAL MEDIA

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hile Rio Properties has been consistently cited in support of authorizing service via email, there have also been occasional cases declining to allow such service.35 More importantly, however, its reasoning perpetuates the New England Merchants approach of JLYLQJ FRXUWV WKH Ă&#x20AC;H[LELOLW\ WR DGDSW H[LVWLQJ QRWLRQV RI VHUYLFH WR HPHUJLQJ WHFKQRORJLHV Would its rationale support approval of service via social media? The few scholars who have examined this question say, yes, certainly with regard to Rule 4(f)(3) and service on LQWHUQDWLRQDO GHIHQGDQWV VLQFH QR IRUHLJQ QDWLRQ KDV WDNHQ WKH VWHS RI VSHFLÂżFDOO\ SURKLELWing service via social media.36 7KH PRUH FUXFLDO FRQFHUQ LV RQH RI GXH SURFHVV :KHWKHU RU QRW D FRXUW PLJKW ÂżQG WKDW a Facebook wall post or tweet is reasonably calculated to put a defendant on notice of a lawsuit and afford that party a chance to respond and/or object will depend upon a factintensive determination.

For example, the question of how regularly a party checks his Facebook account or how active a user he is will help demonstrate the likelihood that the defendant will get notice.

30.

31.

32.

33.

34.

35.

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,G ,G at 1017. ,G at 1018. ,G at 1017. ,G See, e.g. (KUHQIHOG Y 6DOLP $ %LQ 0DKIRX] 1R &LY 5&& :/ 6 ' 1 < 0DU 23, 2005); Prewitt Enters., Inc. v. OPEC, 353 F.3d 916 (11th Cir. 2003); U.S. Aviation Underwriters, Inc. v. Nabtesco Corp., No. C07-1221 RSL, 2007 WL 3012612 (W.D. Wash. Oct. 11, 2007); Nabulsi v.

H.H. Sheikh Issa Bin Zayed Al Nahyan, 2007 WL 2964817 (S.D. Tex. Oct. 9, 2007).

36. See, e.g., Ronald Hedges, Kenneth Rashbaum & Adam Losey, Electronic Service of Process at Home DQG $EURDG $OORZLQJ 'RPHVWLF (OHFWURQLF 6HUYLFH RI 3URFHVV LQ WKH )HGHUDO &RXUWV, 4 F ED. C OURTS L. R EV. 1, 69 (2009) (â&#x20AC;&#x153;[U]nder Federal Rule 4(f)(3) and per Rio Properties, international electronic service via a Facebook message could easily be ordered by a federal courtâ&#x20AC;?); Andriana Shultz, Superpoked DQG 6HUYHG 6HUYLFH RI 3URFHVV YLD 6RFLDO 1HWZRUNLQJ 6LWHV, 43 UNIV. OF R ICHMOND L. R EV. 4 (2009).

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Showing screenshots of a defendantâ&#x20AC;&#x2122;s Facebook page will assist a court in determining whether that party is likely to receive meaningful notice: The party seeking substituted service can point out the defendantâ&#x20AC;&#x2122;s frequency of activity on the site, as well as the dates on which his postings occurred. In fact, service made by posting on a defendantâ&#x20AC;&#x2122;s Facebook wall is superior to service via email in many ways. It is easier to demonstrate that a party received actual notice because of the public nature of it, as well as the possibility of commentary by the individualâ&#x20AC;&#x2122;s Facebook â&#x20AC;&#x153;friends.â&#x20AC;? In addition, if the user were to delete the posting or suddenly implement While the order is quite brief SULYDF\ VHWWLQJV WR VKLHOG KLV SURÂżOH IURP and does not specify the facts public view after being served, such actions supporting the judgeâ&#x20AC;&#x2122;s decision, it and their timing could be evidence of the event that prompted them â&#x20AC;&#x201D; the act of being is reasonable to assume that the served. Similarly, other reactions to being court wanted to give the defendant served, such as a Facebook posting on somenowhere to hide â&#x20AC;&#x201D; including online one elseâ&#x20AC;&#x2122;s wall (i.e. â&#x20AC;&#x153;I canâ&#x20AC;&#x2122;t believe Iâ&#x20AC;&#x2122;m being sued!â&#x20AC;?) would demonstrate this as well. â&#x20AC;&#x201D; by addressing multiple forms of On Twitter, searching an individualâ&#x20AC;&#x2122;s â&#x20AC;&#x153;substitutional service.â&#x20AC;?

Twitter feed for any discussion related to his having been served is fairly straightforward.37 <RX FDQ DOVR IROORZ WKH 7ZLWWHU messages38 that the individual being served is sending.39 Just as with Facebook, if the individual were to block you from following them, or delete a tweet referencing service, that very act could constitute evidence of service. Other evidence of service could be â&#x20AC;&#x153;retweetsâ&#x20AC;? of the targetâ&#x20AC;&#x2122;s tweets by his or her Twitter followers, who pass on tweets about having been VHUYHG RU ZKR FRPPHQW RQ LW VHSDUDWHO\ VRPHWKLQJ \RX FDQ ÂżQG RXW E\ IROORZLQJ WKH IROlowers themselves.40 7KH VWLOO HYROYLQJ ERG\ RI FDVH ODZ H[HPSOLÂżHG E\ RSLQLRQV OLNH WKRVH LQ New England Merchants and Rio Properties has laid a foundation for courts struggling to reconcile traditional notions of service with the new ways in which people communicate in the digital age. As acceptance of social media as a vehicle for service of process spreads internationally, it becomes increasingly clear that although the law will always be hopelessly outpaced by technological advancement, emerging modes of communication such as Facebook and Twitter do not have to be insurmountable barriers when it comes to apply-

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37. To do this, simply navigate to http://search.twitter.com, enter the keywords you want to search for (such as â&#x20AC;&#x153;served,â&#x20AC;? â&#x20AC;&#x153;court papers,â&#x20AC;? etc.) and click the â&#x20AC;&#x153;Searchâ&#x20AC;? button. Twitterâ&#x20AC;&#x2122;s Advanced Search feature (https://twitter.com/#!/search-advanced) enables you to narrow search results by location, user, date, and other options.

38. Known as â&#x20AC;&#x153;tweets.â&#x20AC;?

39. This may be done by creating your own Twitter account, signing in, and locating that user by enterLQJ KLV RU KHU QDPH LQ WKH VHDUFK EDU $IWHU QDYLJDWLQJ WR WKH LQGLYLGXDOÂśV 7ZLWWHU SURÂżOH VLPSO\ FOLFN the â&#x20AC;&#x153;Followâ&#x20AC;? button located directly above the userâ&#x20AC;&#x2122;s Twitter feed. See Twitter Help Center, http:// support.twitter.com/entries/42646-twitter (visited April 15, 2012). Twitter also has a â&#x20AC;&#x153;Fast Followâ&#x20AC;? feature that makes it possible for you to follow a user even if you donâ&#x20AC;&#x2122;t have a Twitter account, in which you use a cell phone to send the phrase â&#x20AC;&#x153;follow (insert the name or Twitter handle of who youâ&#x20AC;&#x2122;re following here)â&#x20AC;? via a cell-phone text message to 40404 in the United States, and you can receive that individualâ&#x20AC;&#x2122;s tweets on your phone without signing up for Twitter.

40. As noted supra, the method of service, and evidence that service was effective, on other social media sites and services would be a fact-intensive determination based on the unique characteristics of each particular site.

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ing traditional legal doctrines. After all, the sheer pervasiveness of social media should DOOD\ PDQ\ FRQFHUQV DERXW LWV HIÂżFDF\ DV D YHKLFOH IRU VHUYLFH )DFHERRN IRU H[DPSOH KDG 845 million active users as of the end of December 2011,41 while Twitter reported 140 million active users and more than 340 million tweets each day.42 According to the latest Pew Institute studies, 65 percent of all adult Internet users have at least one presence on social networking sites.43 Courts and litigants should not shy away from experimenting with new means of serving process if technology provides these means and due process is not compromised.

THE AUSTR ALIAN E XPERIENCE: A N E ARLY R EJECTION AND THEN E MBR ACE OF SERVICE THROUGH S OCIAL MEDIA D OWN UNDER

AN

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ith the tremendous growth of social media, it was only a matter of time before the paths of jurisprudential development and technological advancement intersected once again. Rio Properties and its progeny had acknowledged the realities of business communications in an increasingly wired world, but a paradigm shift in personal communications and online attitudes had been gathering momentum since the founding of Facebook in 2004 DQG WKH RULJLQV RI 7ZLWWHU LQ $V PRUH DQG PRUH SHRSOH EHFDPH GHÂżQHG LQ WKH H\HV RI the public) by their online selves, the concept of a social networking site becoming not just a source of entertainment or a means of staying in touch with friends and family but a potential vehicle for being more accessible to the legal system began to crystallize.44 $XVWUDOLD ZDV WKH ÂżUVW FRXQWU\ WR SHUPLW VHUYLFH RI SURFHVV YLD D VRFLDO QHWZRUNLQJ PHGLXP WKRXJK WKH ÂżUVW HIIRUW DW GRLQJ VR ZDV UHMHFWHG E\ WKH FRXUWV $XVWUDOLDQ 8QLIRUP Civil Procedure Rule 116(1) allows substituted service â&#x20AC;&#x153;where, in effect, there is a practical impossibility of personal service and that the method of service proposed is one which in all reasonable probability, if not certainty, will be effective in bringing knowledge or notice of the proceedings to the attention of the defendant.â&#x20AC;?45 Essentially, attorneys seeking approval of an Australian court to serve an individual through a social networking site would have to satisfy a two-prong test: showing (1) an inability to successfully serve the person through more traditional means and (2) that service through Facebook or another social networking site offered reasonable chances for success.46 In Citigroup Pty. Ltd. v. Weerakoon, Judge Julie Ryrie of the Queensland District Court dealt with an application for substituted service pursuant to Rule 116(1), in which attempts at personal service on the defendant at multiple last known addresses had been unsuccessful.47 The application requested two possible forms of relief: either designating the arguably most reliable of the physical addresses (where the defendant had received multiple credit card statements that werenâ&#x20AC;&#x2122;t returned) as Weerakoonâ&#x20AC;&#x2122;s last known postal address, or emailing a private message with a link to a sealed copy of the claim to the defendantâ&#x20AC;&#x2122;s

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41. Facebook, Inc., Facebook Fact Sheet, supra note 4.

42. Twitter, Inc. Shutting down spammers, supra note 4.

43. Mary Madden & Kathryn Zickuhr, 65% of online adults use social networking sites, P EW I NTER NET & A MER . L IFE P ROJ., Aug. 26, 2011, http://pewinternet.org/Reports/2011/Social-Networking-Sites (visited Apr. 9, 2012).

44. See, e.g., John Browning, 6HUYHG :LWKRXW (YHU /HDYLQJ WKH &RPSXWHU 6HUYLFH RI 3URFHVV 9LD 6RFLDO Media, 73 TEX . BAR J. No. 3, Oct. 15, 2009, at 180â&#x20AC;&#x201C;84.

45. A USTL . UNIFOR M C IV. P. R. 116(1) See JOHN BROW NING , THE L AW YERâ&#x20AC;&#x2122;S G UIDE TO S OCIAL NET WORKING: UNDERSTA NDING S OCIAL M EDIAâ&#x20AC;&#x2122;S I MPACT ON THE L AW 30 (2010).

46. BROW NING , id.

47. Citigroup Pty. Ltd. v. Weerakoon (2008) QDC 174, 1 (Austl.), transcript at 2-3, available at http:// archive.sclqld.org.au/qjudgment/2008/QDC08-174.pdf.

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Facebook page.48 The court declined to order service through Facebook, primarily because RI D FRQFHUQ DERXW WKH SRVVLELOLW\ RI D IDOVH VRFLDO QHWZRUNLQJ SURÂżOH , DP QRW VR VDWLVÂżHG LQ OLJKW RI ORRNLQJ DW WKH²WKH XQFHUWDLQW\ RI )DFHERRN SDJHV WKH IDFWV WKDW anyone can create an identity that could mimic the true personâ&#x20AC;&#x2122;s identity and indeed some of the information that is provided there does not show me with any real force that the person who created the Facebook page might indeed be the defendant, even though practically speaking it may well indeed be the person who is the defendant.49

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Despite granting the application for substituted service as to sending a sealed copy of the claim to the defendantâ&#x20AC;&#x2122;s last known postal address, Judge Ryrie clearly believed that the potential existence of a faked Facebook page undermined the â&#x20AC;&#x153;offering a reasonable chance of successâ&#x20AC;? prong of the two-part test. In many ways, her distrust of the reliability of a social networking page echoes the early mistrust that many American courts have voiced regarding evidence from online sources.50 While such concerns might have made it more daunting for the next attorneys who sought service through Facebook, a few months later, in December 2008, the opportunity arose to re-examine the question. In MKM Capital v. Corbo, Australian couple Carmel Corbo and Gordon Poyser defaulted on a $150,000 mortgage.51 Following the default, law\HUV IRU WKH PRUWJDJH OHQGHU 0.0 &DSLWDO ÂżOHG VXLW DQG REWDLQHG D GHIDXOW MXGJPHQW SHUmitting seizure of the property. However, the lenderâ&#x20AC;&#x2122;s lawyers were stymied in their efforts to serve notice of the judgment on Corbo and Poysner using traditional methods of service.

Nearly a dozen attempts were made, through personal service, mail and advertising in The Canberra Times.52 Hiring private investigators proved fruitless as well; the defendants were not at either their last known residential address or last known places of employment, and had changed phone numbers as well.53 As evasive as the defendants were, however, they underestimated the tech-savviness and creativity of the lenderâ&#x20AC;&#x2122;s lawyers.

Using the email address Corbo had provided during the loan application process, MKMâ&#x20AC;&#x2122;s legal team was able to locate her Facebook page.54 Since Corbo and Poyser had â&#x20AC;&#x153;friendedâ&#x20AC;? each other on the social networking site, and because neither defendant had opted to use Facebookâ&#x20AC;&#x2122;s various privacy restrictions, the lawyers thus had access to both GHIHQGDQWVÂś )DFHERRN SURÂżOHV DQG ZHUH DEOH WR FRPSDUH ELRJUDSKLFDO GDWD IURP HDFK RI WKH SURÂżOHV ELUWK GDWHV HPDLO DGGUHVVHV OLVWV RI ÂłIULHQGV ´ HWF ZLWK LQIRUPDWLRQ GHscribed on Corboâ&#x20AC;&#x2122;s and Poyserâ&#x20AC;&#x2122;s loan applications.55 Armed with this evidence, attorney Mark McCormack was able to satisfy both prongs of the Rule 116(1) two-prong test for substituted service and assuage any concerns that he indeed had the correct people and WKDW VHUYLFH YLD )DFHERRN ZRXOG LQGHHG EH VXIÂżFLHQW QRWLFH WR WKH GHIHQGDQWV 0DVWHU 'Dvid Harper of the Australian Capital Territory Supreme Court approved MKMâ&#x20AC;&#x2122;s request

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48. ,G , transcript at 3.

49. ,G , transcript at 3-4.

50. For example, one federal judge derisively referred to â&#x20AC;&#x153;voodoo information taken from the Internet,â&#x20AC;? a vehicle he regarded as â&#x20AC;&#x153;one large catalyst for rumor, innuendo, and misinformationâ&#x20AC;? on the way to concluding that â&#x20AC;&#x153;any evidence procured off the Internet is adequate for almost nothing.â&#x20AC;? St. Clair v.

Johnnyâ&#x20AC;&#x2122;s Oyster & Shrimp Inc., 76 F. Supp. 2d 773 (S.D. Tex. 1999).

51. MKM Capital Property Ltd. v. Corbo & Poyser (Dec. 12, 2008), No. SC 608 of 2008 (Austrl., ACT Sup. Ct.).

52. ,G 53. ,G 54. Rod McGuirk, Youâ&#x20AC;&#x2122;ve Been Served â&#x20AC;Ś on Facebook, M SNBC .COM (Dec. 16, 2008), available at http:// www.msnbc.msn.com/id/28255716/from/ET/print/1/displaymode/1098.

55. BROW NING , supra note 45, at 31.

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56. MKM, supra note 51.

57. ,G 58. See, e.g., McGuirk, supra note 54; Alison Caldwell, :RUOG 7RGD\ )DFHERRN )HDWXUHV DV /RQJ $UP RI the Law, (Austrl. Broadcastâ&#x20AC;&#x2122;g Corp. local radio broadcast, Dec. 16, 2008 (transcript and audio available at http://www.abc.net.au/worldtoday/content/2008/s2447627.htm); Scott Harrell, Service of Process via Facebook, P URSUIT M AG . (Dec. 16, 2008), available at http://pursuitmag.com/serviceof-process-via-facebook/.

59. McGuirk, supra note 54.

60. ,G 61. Herrell, supra note 55.

62. McGuirk, supra note 54.

63. I have used this term before to describe the MKM Capital ruling. See Browning, supra note 44.

64. Byrne & Howard (2010] FMCAfam 509 (Apr. 21, 2010), available at http://www.austlii.edu.au/au/ cases/cth/FMCAfam/2010/509.html.

65. ,G

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and ordered that service could be perfected by sending a private electronic email, with the legal documents as an attachment, to each defendantâ&#x20AC;&#x2122;s Facebook page.56 In this way, the court reasoned, Corbo and Poyser would be alerted to the entry of the default judgPHQW DQG QRWLÂżHG RI LWV WHUPV 57 $V DQ LQWHUQDWLRQDO ÂżUVW WKH FRXUWÂśV GHFLVLRQ WR DOORZ VHUYLFH WKURXJK )DFHERRN PDGH news around the world.58 Facebook itself praised the ruling, saying through a spokesman that â&#x20AC;&#x153;Weâ&#x20AC;&#x2122;re pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication.

The consultation paper stated The ruling is also an interesting indication of that while it envisioned social the increasing role that Facebook is playing media playing an important role in peopleâ&#x20AC;&#x2122;s lives.â&#x20AC;?59 Attorney Mark McCormack, understandably, viewed the ruling in substituted service scenarios, and subsequent attempt at service through it â&#x20AC;&#x153;does not preclude the use of Facebook as a vindication of MKMâ&#x20AC;&#x2122;s position that all reasonable steps had been taken to social media for personal service serve Corbo and Poyser, describing it as â&#x20AC;&#x153;a or ordinary service in certain valid method of bringing the matter to the attention of the defendant.â&#x20AC;?60 Not surprissituations.â&#x20AC;? ingly, the ensuing media glare and online FRPPHQWV RQH ZDJ QRWHG Âł<RXÂśYH EHHQ â&#x20AC;&#x2DC;poked,â&#x20AC;&#x2122; now youâ&#x20AC;&#x2122;re homelessâ&#x20AC;?61) made Corbo and Poyser somewhat less enthusiastic about this novel way of serving a foreclosure notice. They did what they probably should have done long before and implemented privacy settings that removed their respective Facebook SURÂżOHV IURP SXEOLF YLHZ 62 This â&#x20AC;&#x153;shot heard â&#x20AC;&#x2DC;round cyberspaceâ&#x20AC;?63 was followed by other Australian courts permitting service WKURXJK D VRFLDO QHWZRUNLQJ SURÂżOH ,Q $SULO WKH )HGHUDO 0DJLVWUDWHV &RXUW RI $XVWUDOLD confronted the same issue, this time in the context of a family law case involving proof of paternity.64 The application for substituted service through Facebook in Byrne & Howard was, according to the magistrate, â&#x20AC;&#x153;in some ways an unusual matter, but in other ways it is demonstrative of social movements and the currency of the times.â&#x20AC;?65 The applicant, Ms. Byrne, had a relationship with Mr. Howard and had a child in 2009, but the affair was brief and did not result in marriage. She sought child support, but she needed legal proof of paternity and initiated the proceeding in question. The court noted that Byrne and her advisors â&#x20AC;&#x153;had done as much as they could to conventionally bring

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the proceedings to Mr. Howardâ&#x20AC;&#x2122;s attention;â&#x20AC;? they attempted contact at his known address, his parentsâ&#x20AC;&#x2122; address and his current girlfriendâ&#x20AC;&#x2122;s address before Byrne sent him a message through his Facebook page.66 Byrne asked for an order authorizing substituted service through Facebook. The application detailed not only the efforts at service through more traditional means but also provided the court with evidence supporting the reasonableness of the proposed form of substituted service.

The magistrateâ&#x20AC;&#x2122;s ruling refers to evidence that Howard uses Facebook regularly, as well as a copy of +RZDUGÂśV SKRWRJUDSK DQG SURÂżOH IURP WKH VLWH VKRZLQJ WKDW WKH ELRJUDSKLFDO GHWDLOV WKHUHLQ PDWFK the known information for Howard.67 In this manner, the court reassured itself that such an alternative means of service would not only go to Although there have been no the correct person, but that he would be likely to reported decisions to date view it as well.

The magistrate observed that under the proinvolving substituted service visions of Division 6.4 of the Australian Federal through social media from Magistrates Court Rules, if it is found â&#x20AC;&#x153;imSingapore, its Supreme Court practicable to serve a document as required by the court rulesâ&#x20AC;? the court â&#x20AC;&#x153;may make an order has taken a forward-thinking, dispensing with service or substituting another pragmatic, and well-reasoned way of service of the document concerned.â&#x20AC;?68 The court also noted the factors that would view of the circumstances under be considered before granting an applicawhich social media would be tion for substituted service. These included: (1) whether reasonable steps have been taken HPSOR\HG ,W VHUYHV DV D KLJKO\ useful blueprint for other countries to attempt to serve the document; (2) whether the steps that have been taken have brought to follow. the existence and nature of the documents to the attention of the person sought to be served; (3) whether the person to be served could become aware of the existence and nature of the documents through an advertisement â&#x20AC;&#x153;or some other means of communication that is reasonably available;â&#x20AC;? (4) the likely costs to the applicant in serving the documents; and (5) any other matter the court deems relevant.69 ,Q WKLV LQVWDQFH WKH PDJLVWUDWH ZDV VDWLVÂżHG WKDW %\UQH KDG H[KDXVWHG DOO UHDVRQDEOH steps to serve the documents through normal channels. He also noted that it was â&#x20AC;&#x153;highly OLNHO\´ WKDW +RZDUG KDG DOUHDG\ EHFRPH DZDUH RI WKH PDWWHU DQG LWV VLJQLÂżFDQFH 7KH court pointed out the discovery that immediately after getting notice through Facebook, Howard took down his page and that â&#x20AC;&#x153;a similar process has been followed with the social networking site MySpace, where Mr. Howard also has a site.â&#x20AC;?70 Finally, the court observed that service through Facebook was not only â&#x20AC;&#x153;a cost-effective method,â&#x20AC;? but also â&#x20AC;&#x153;a means of communication which is reasonably available to all concerned, and as such, that it is likely to lead to a situation where Mr. Howard has become aware of the existence and nature of the documents.â&#x20AC;?71

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66. ,G 67. ,G 68. ,G (quoting A USTL . F ED. M AGISTR ATE C T. R. 6.14(a) (2011), available at http://www.comlaw.gov.au/ Details/F2011C00690/Html/Volume_1#_Toc301257294).

69. ,G (quoting A USTL . F ED. M AGISTR ATE C T. R. 6.15(b) (2011), available at http://www.comlaw.gov.au/ Details/F2011C00690/Html/Volume_1#_Toc301257295).

70. ,G 71. ,G

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Accordingly, the court found that the proceeding had been brought to Howardâ&#x20AC;&#x2122;s attention and that he had been properly served.72 /DWHU WKDW \HDU LQ 1RYHPEHU LQ DQRWKHU $XVWUDOLDQ ³¿UVW ´ SROLFH LQ 9LFWRULD 1HZ South Wales, used Facebook to serve the Aussie equivalent of a restraining order, an intervention order.73 The alleged offender had harassed his former partner on the social networking site itself two days after an earlier intervention order expired. After efforts at traditional service failed, the Victoria police successfully petitioned a magistrate for an order allowing substituted service through Facebook.74 The relevant information â&#x20AC;&#x201D; including the order, an explanation of the proceedings, and contact information for the police â&#x20AC;&#x201D; was sent via Facebook private message to the same Facebook account used to harass the woman.75 Additionally, a videotape of a constable reading out the order as though the defendant were EHLQJ VHUYHG ZDV SRVWHG RQ <RX7XEH 76 Although the alleged offender did not immediately DFNQRZOHGJH UHFHLSW SROLFH HYHQWXDOO\ VSRNH ZLWK KLP DW ZKLFK SRLQW KH FRQÂżUPHG WKDW KH had read the online message but had not watched the video.77 Shortly thereafter, he agreed WR FRPSO\ ZLWK WKH WHUPV RI WKH RUGHU DQG WR GHOHWH KLV )DFHERRN SURÂżOH 78

THE C ONCEPT SPREADS New Zealand In March 2009, shortly after the MKM Capital v. Corbo decision opened the door to service via social media in Australia, the High Court in neighboring New Zealand followed suit.

In Axe Market Garden Ltd. v. Axe, an unreported commercial litigation case, a corporate entity had sued one of its minority shareholders for allegedly misappropriating funds from the company account.79 Little was known of the shareholderâ&#x20AC;&#x2122;s current whereabouts and conventional efforts at service had been unsuccessful. All that was known was that the individual was living somewhere in the United Kingdom, that he had a Facebook page, and that KH DQG KLV IDWKHU UHJXODUO\ NHSW LQ WRXFK YLD )DFHERRN 7KH FRXUW ZDV VXIÂżFLHQWO\ UHDVVXUHG WKDW RWKHU DYHQXHV KDG EHHQ H[KDXVWHG WKDW WKH GHIHQGDQW ZDV LGHQWLÂżHG ZLWK UHDVRQDEOH certainty, and that this means of service was likely to adequately put the party on notice.

Consequently, it permitted service through Facebook as a form of substituted service.80 32164-rcm_2-2 Sheet No. 13 Side A

Canada Within weeks of the MKM ruling, a court in Canada nudged the door to substituted service through social media a littler wider. In Knott v. Sutherland, Master Breitkreuz of the Alberta Queenâ&#x20AC;&#x2122;s Bench faced a situation in which a plaintiff with an employment-related FDXVH RI DFWLRQ QHHGHG WR ÂżOH DQG VHUYH D 6WDWHPHQW RI &ODLP 81 To cover all bases and DGGUHVV FRQFHUQV DERXW VXIÂżFLHQF\ RI VHUYLFH WKH FRXUW WRRN QRWH RI WKH IDFW WKDW RQH RI

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72. ,G 73. Jim FitzSimons, $XVWUDOLD 3ROLFH 6HUYH DQ ,QWHUYHQWLRQ 2UGHU YLD )DFHERRN 6RFLDO 0HGLD DV WKH Next Frontier in Legal Process?, C L AY TONUTZ .COM (L AW FIR M WEB SITE) (Nov. 22, 2010), http://www. claytonutz.com/publications/news/201011/22/police_serve_an_intervention_order_via_facebook_ social_media_as_the_next_frontier_in_legal_process.page.

74. ,G 75. ,G 76. ,G The video is available at ZZZ \RXWXEH FRP ZDWFK"Y O:*UXW<: N. 77. ,G 78. ,G 79. Axe Market Garden Ltd. v Axe (2009), CIV-2008-485-002676 (HC Wellington) (N.Z.).

80. ,G 81. Knott v. Sutherland (Feb. 5, 2009), Edmonton 0803 02267, [2009] A.J. No. 1539 (Alta. Q.B.M.).

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the defendants to be served was active on Facebook and allowed for service via an email sent via the site. However, service through that site would not be done in isolation: Master Breitkreuz entered an order for â&#x20AC;&#x153;substitutional serviceâ&#x20AC;? (the term used in Canadian civil procedure), mandating that this particular defendant could be served by (1) publishing a notice in the newspaper; (2) forwarding a copy of the Statement of Claim to the Human Resources department at the company where the defendant had worked; and (3) by sending notice of the action via an email to the GHIHQGDQWÂśV )DFHERRN SURÂżOH 82 While the The use of Twitter to serve notice order is quite brief and does not specify the facts supporting the judgeâ&#x20AC;&#x2122;s decision, it is makes perfect sense in a case like reasonable to assume that the court wanted to give the defendant nowhere to hide â&#x20AC;&#x201D; Blaneyâ&#x20AC;&#x2122;s, where the only known including online â&#x20AC;&#x201D; by addressing multiple way to reach an anonymous forms of â&#x20AC;&#x153;substitutional service.â&#x20AC;? individual (at least temporarily) While the Knott v. Sutherland order was WKH ÂżUVW RI LWV NLQG LQ &DQDGD DQHFGRWDO HYLis through that personâ&#x20AC;&#x2122;s own dence on Canadian law blogs indicates that Twitter account. it was by no means the last.83 According to these comments, service through social media sites such as Facebook was ordered in Manitoba (0DQLWRED 3XEOLF ,QVXUDQFH &RUSRUDWLRQ Y &DPSEHOO)84 , in Thunder Bay, Ontario, (by Justice Pierce of the Thunder Bay Superior Court in Quast v. Quast),85 and in Nova Scotia (by Justice Scaravelli).86 While still novel, the concept of using social networking sites to accomplish service in Canada has gotten enough traction that one Canadian judge, Ontario Superior Court Justice Cheryl Robertson has given a presentation on the subject.87

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82. ,G 83. Comments online (unfortunately with little detail and on cases or orders that are unpublished) in response to a brief description of the Knott v. Sutherland order, indicate that such â&#x20AC;&#x153;substitutional serviceâ&#x20AC;? via social networking sites has been ordered elsewhere in Canada. See, e.g., Comment No. 8 to Shaunna Mireau, Substitutional Service via Facebook in Alberta, www.slaw.ca (Sept. 24, 2009), http://www.slaw.ca/2009/09/24/substitutional-service-via-facebook-in-alberta (citing Manitoba Public Insurance Corporation v Campbell (Jan. 14, 2010), File No. CI09-01-61534, (Man.Q.B., per Master Sharp) (allowing substitutional service via Facebook)).

84. See â&#x20AC;&#x153;Emma,â&#x20AC;? Comment No. 8 to Shaunna Mireau, Substitutional Service via Facebook in Alberta, www.slaw.ca (Sept. 24, 2009), http://www.slaw.ca/2009/09/24/substitutional-service-via-facebook-in-alberta (citing Manitoba Public Insurance Corporation v Campbell (Jan. 14, 2010), File No. CI09-01-61534 (Man.Q.B., per Master Sharp) (allowing substitutional service via Facebook)).

85. See Gavin Wood Freitag, 1st comment to Michael McKiernan, Cyber-service â&#x20AC;&#x2DC;a new frontier,â&#x20AC;&#x2122; L AW TIMES , Oct. 24, 2010, http://www.lawtimesnews.com/201010257770/Headline-News/Cyber-servicea-new-frontier (citing Quast v Quast (2010?) No. _____ (Ont. Super per Justice Pierce)).

86. See Adriana Meloni, 5th comment to id., (citing unnamed case (Fall 2009 [?]), N.S. Sup. Ct., Fam. Div. [?] per Justice N. M. (Nick) Scaravelli).

87. Michael McKiernan, Cyber-service â&#x20AC;&#x2DC;a new frontier,â&#x20AC;&#x2122; LAW TIMES, Oct. 24, 2010, http://www.lawtimesnews.com/201010257770/Headline-News/Cyber-service-a-new-frontier. Justice Robertsonâ&#x20AC;&#x2122;s presentation on substituted electronic service was delivered at the Kingston and the 1000 Islands Legal Conference in Oct., 2010. For descriptions of presentation, see McKiernan, id., and Ontario Judge Endorses Substituted Service Through Facebook in IX L AWS OF .C OM 7 (Dec.. 2, 2010), available at http://www.lawsof.com/page/Ontario-Judge-Endorses-Substituted-Service-Through-Facebook.html.

The article that served as the basis for the presentation is Justice Cheryl Robertson & Alison McEwen, $W <RXU 6XEVWLWXWHG (OHFWURQLF 6HUYLFH available at http://estatelaw.hullandhull.com/E-

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Justice Robertson had a paternity case in which the mother was unable to provide a viable physical address for the putative father but did have his Facebook profile. The judge took note of both Canadaâ&#x20AC;&#x2122;s Rules of Civil Procedure, which allow substituted service under circumstances where it appears â&#x20AC;&#x153;impractical for any reason to effect prompt service,â&#x20AC;?88 and Canadaâ&#x20AC;&#x2122;s Family Law Rules requiring that, before an order of substitution can be granted, attempts at traditional service must be demonstrated. 89 Justice Robertson permitted service on the father through Facebook, and the mother/ petitioner sent him a message via that social networking site with the suit documents attached. He sent a reply acknowledging receipt, and when that reply was made an exhibit to an affidavit by the mother, Justice Robertson entered an order that service had been accomplished.90 Commenting on the notion of substituted service through social networking sites, in her SDSHU -XVWLFH 5REHUWVRQ QRWHG WKDW FRQFHUQV RI HFRQRP\ HIÂżFLHQF\ DQG DFNQRZOHGJLQJ WKH mediumâ&#x20AC;&#x2122;s importance to younger generations make such a form of service an important option for Canadian lawyers.

In a province where, for reasons of money and time, the judicial system is increasingly out of reach for many, e-service can be a useful and viable alternative. It is not only time efficient but also cost-efficient. It will cost an applicant nothing to serve someone on Facebook or by email, and further, for the younger generation, this is a medium that they understand and know how to use.91

Justice Robertson went on to note that lawyers should anticipate some resistance from MXGJHV OHVV FRPIRUWDEOH ZLWK HPHUJLQJ WHFKQRORJLHV 6KH REVHUYHG Âł<RX PD\ KDYH WR educate judges and convince them that this option is viable. Cyber-service is a new frontier waiting for your creativity and imagination.â&#x20AC;?92

Singapore

94.

Service%20paper%20for%20distribution.pdf. The article notes that the lack of substantial written opinions on service via social media in Canadian jurisprudence is likely the result of the fact that â&#x20AC;&#x153;[e]x parte, unopposed decisions rarely get written yet alone reported.â&#x20AC;? Robertson & McEwen at 2.

O NT. R. C IV. P. 16.04(1). See Robertson & McEwen, supra, at 3.

O NT. FA M . L. R. 6 (15), See Robertson & McEwen, supra, at 4.

McKiernan, supra note 87.

Robertson & McEwen, supra note 87, at 8. ,G Consultation Paper: Use and Impact of Social Media in Litigation (Singapore Sup. Ct. Aug. 2010), available at http://app.supremecourt.gov.sg/data/doc/ManageHighlights/2586/Public%20Consultation%20Paper%20for%20the%20use%20of%20social%20media%20in%20civil%20litigation.pdf. ,G at 3, 11.

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88.

89.

90.

91.

92.

93.

32164-rcm_2-2 Sheet No. 14 Side A

Another country that has taken note of the burgeoning acceptance of service through social media is Singapore, where the Supreme Court promulgated a forward-thinking proposal to allow lawyers to use sites such as Facebook and Twitter to serve legal documents. A consultation paper circulated in August 2010 sought public comment on issues that included use of social media in service of process as well as the role of social media in the discovery process.93 Calling social media â&#x20AC;&#x153;a phenomenon that has become virtually impossible to ignore,â&#x20AC;? and taking note of the fact that since â&#x20AC;&#x153;other jurisdictions have used social media effectively for substituted service of documents,â&#x20AC;? the high court concluded â&#x20AC;&#x153;there is no reason why we should not consider doing so.â&#x20AC;?94

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,G at 7. ,G at 9. ,G at 10. ,G at 11. ,G ,G ,G ,G at 12. ,G ,G

172

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95.

96.

97.

98.

99.

100.

101.

102.

103.

104.

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The consultation paper stated that while it envisioned social media playing an important role in substituted service scenarios, it â&#x20AC;&#x153;does not preclude the use of social media for personal service or ordinary service in certain situations.â&#x20AC;?95 For example, it envisions that parties to a contractual agreement could stipulate in advance that service can be made via electronic means, including social media.96 Similarly, the paper noted that a court has the inherent SRZHU WR HQWHU DQ RUGHU ÂżQGLQJ WKDW VRFLDO PHGLD ZRXOG EH ÂłD VXLWDEOH PHDQV IRU HIIHFWLQJ RUdinary service,â&#x20AC;? and could direct that such service be â&#x20AC;&#x153;properly effected by emailing a copy of WKH GRFXPHQW WR D SDUWLFXODU HPDLO DGGUHVV RU E\ SRVWLQJ RQ WKH ZDOO RI D VSHFLÂżHG )DFHERRN account which has been established to be accessible to the party to be served.â&#x20AC;?97 Notwithstanding the options of a contractual agreement or a court order, the Court acknowledged that â&#x20AC;&#x153;[i]t may only be possible to use social media for personal and ordinary service in very limited situations.â&#x20AC;?98 Substituted service, it said, â&#x20AC;&#x153;is the most appropriate way of tapping on social media for service of documents in Singapore.â&#x20AC;?99 Since the whole object of substituted service is to bring the legal documents to the defendantâ&#x20AC;&#x2122;s attention where reasonable attempts at personal service have alAs for publication, Judge UHDG\ RFFXUUHG DQG ZKHUH WKH FRXUW LV VDWLVÂżHG Burke observed that â&#x20AC;&#x153;Nobody, as to the impracticability of personal service, particularly poor people, is going the Court reasoned that â&#x20AC;&#x153;where it is shown that to look back at the legal newspaper the defendant is an active user of social media,â&#x20AC;? service through a social networking site â&#x20AC;&#x153;may to notice that their spouse wants to even be more effective than the traditional modes of substituted service such as posting at get divorced.â&#x20AC;? the Supreme Courtâ&#x20AC;&#x2122;s notice board or advertisement in the daily press.â&#x20AC;?100 The paper goes on to say that such a form of substituted service not only achieves the goal of furnishing the defendant with notice of the court proceedings, it also gives plaintiffs more options â&#x20AC;&#x201D; and less expensive ones at that â&#x20AC;&#x201D; when dealing with evasive or unresponsive defendants.101 The consultation paper does add certain cautionary notes, taking into account such conFHUQV DV WKH IDFW WKDW D SDUW\ PD\ QRW ORJ LQWR KLV )DFHERRN SURÂżOH UHJXODUO\ WKDW KH PD\ not see the messages posted on is Facebook wall, that the defendant might be away from his computer for extended periods, and that there may be issues raised regarding a personâ&#x20AC;&#x2122;s real (versus online) identity or the security of a given site.102 Such â&#x20AC;&#x153;valid concerns,â&#x20AC;? the Court said, would be properly addressed by the court ordering substituted service as part of its gatekeeping role in only allowing such service in â&#x20AC;&#x153;deserving situations, not as a matter of cause.â&#x20AC;?103 Substituted service through social media, the high court warned, â&#x20AC;&#x153;would not replace the traditional methods of substituted service but would only be an additional option for use in suitable circumstances,â&#x20AC;? such that â&#x20AC;&#x153;social media is not employed willy-nilly to prejudice a defendant in court proceedings.â&#x20AC;?104

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Although there have been no reported decisions to date involving substituted service through social media from Singapore, its Supreme Court has taken a forward-thinking, pragmatic, and well-reasoned view of the circumstances under which social media would be employed. It serves as a highly useful blueprint for other countries to follow.105

Increasing Acceptance in the United Kingdom The United Kingdom began embracing the concept of employing social media sites for service of process not long after Australia, Canada and New Zealand. In September 2009, LQ D ÂżUVW RI LWV NLQG UXOLQJ D MXGJH RI WKH +LJK &RXUW RI (QJODQG DQG :DOHV LQ /RQGRQ permitted an injunction against an anonymous Twitter poster in a copyright suit to be served via Twitter.106 Donal Blaney, a prominent lawyer and conservative blogger, wrote a blog known as â&#x20AC;&#x153;Blaneyâ&#x20AC;&#x2122;s Blarney;â&#x20AC;? he also posted on Twitter under the handle â&#x20AC;&#x153;Donal_Blaney.â&#x20AC;? An impersonator set up a competing Twitter account, featuring Blaneyâ&#x20AC;&#x2122;s own photo and links to the lawyerâ&#x20AC;&#x2122;s blog posts, and then tweeted at least ten times (writing in a style patterned after Blaneyâ&#x20AC;&#x2122;s) under the name â&#x20AC;&#x153;@Blaneysblarney.â&#x20AC;?107 While parody itself enjoys certain legal protections in the United Kingdom as in the United States, Blaney and his counsel believed that the imposter account was intended to make people think the tweets were actually done by Blaney himself, and that the account was improperly using copyrighted materials.

So rather than wait for action from the California-based site administrators at Twitter (a takedown notice was sent), Blaney and his barrister, Matthew Richardson, asked the High Court to grant an injunction directing the unknown impersonator to stop â&#x20AC;&#x153;breaching the copyright and intellectual property of the blogâ&#x20AC;&#x2122;s ownerâ&#x20AC;? and to identify himself.108 Since the impersonator was tweeting anonymously, Blaney and Richardson requested that the injunction be served via Twitter. Fortunately, they were before a tech-savvy judge who was not only familiar with the microblogging site itself, but with the Australian courtâ&#x20AC;&#x2122;s ruling in the MKM case, and approved service of the injunction via Twitter. The message was evidently received; shortly thereafter, the real Blaney posted on his blog that:

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The hitherto anonymous individual who infringed my intellectual property rights and set up the false @blaneysblarney account on Twitter has, on service of the injunction requiring him to stop and to reveal his identity, agreed to comply with the order. I am in the process of negotiating a settlement with this individual.109

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105. See, e.g., Agence France-Presse, Estonian courts to use Facebook, Twitter to tap suspects, YAHOO!NEWS , March 19, 2012, http://news.yahoo.com/estonian-courts-facebook-twitter-tap-suspects-181921502. html (visited Apr. 9, 2012). (â&#x20AC;&#x153;In fact, yet another nation is considering using social networking sites for service of legal documents. In Estonia, the justice ministry has asked parliament to adopt amendments that would enable courts to deliver documents, including subpoenas, to criminal suspects, via social media. According to the draft legislation, a person contacted by a court through email, Facebook, or Twitter would receive a message with a link to the court documents themselves, which are considered â&#x20AC;&#x153;deliveredâ&#x20AC;? once the person has clicked on the link.â&#x20AC;?)

106. Martha Neil, 8.ÂśV +LJK &RXUW 2NV 6HUYLQJ ,QMXQFWLRQ RQ $QRQ\PRXV %ORJJHU 9LD 7ZLWWHU, ABA JOUR NAL (Oct. 2, 2009), http://www.abajournal.com/news/article/uk_high_court_uses_twitter_to_ serve_injunction_on_anonymous_blogger/. See also Jeremy Kirk, 8. +LJK &RXUW 6HUYHV ,QMXQFWLRQ Over Twitter, IDG NEWS , Oct. 2, 2009, http://www.pcworld.com/article/173008/uk_high_court_ serves_injunction_over_twitter.html and Court order served over Twitter, BBC, Oct. 1, 2009, http:// news.bbc.co.uk/2/hi/technology/8285954.stm.

107. ,G 108. Out-law.com, Blogger Claims Twitter-served Court Order a Success, THE R EGISTER (Oct. 6, 2009), http://www.theregister.co.uk/2009/10/06/twitter_court_order.

109. ,G

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Legal analysts in England applauded the ruling. Solicitor Danvers Baillieu observed â&#x20AC;&#x153;The rules already allow for electronic service of some documents, so that they can be sent by email, and it should also be possible to use social networks.â&#x20AC;?110 George Lubega of the PinVHQW 0DVRQV ODZ ÂżUP VDLG WKH FRXUWÂśV SUDJPDWLF GHFLVLRQ ZDV D VLJQ RI WKH FKDQJLQJ WLPHV Courts are becoming much more realistic about these sorts of thingsâ&#x20AC;Ś . The usual method of serving documents is through the post, but court orders are served by fax, by email. Iâ&#x20AC;&#x2122;ve even served them, effectively, by reading them out over the telephone, so it is not a million miles from that to serving it by Twitter.111

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The use of Twitter to serve notice makes perfect sense in a case like Blaneyâ&#x20AC;&#x2122;s, where the only known way to reach an anonymous individual (at least temporarily) is through that personâ&#x20AC;&#x2122;s own Twitter account. But what about fact scenarios that are closer to the type of case that LQVSLUHG LW DOO LQ $XVWUDOLD" ,Q 0DUFK VROLFLWRU +LODU\ 7KRUSH ZDV KDYLQJ D GLIÂżFXOW WLPH VHUYLQJ D GHEWRU LQ D FROOHFWLRQ PDWWHU 1HHGLQJ WR ÂżQG D ZD\ WR EULQJ WKH GHIHQGDQW SURSHUO\ before the court so that she could either obtain a judgment or have an appropriate vehicle WKURXJK ZKLFK WR REWDLQ GLVFRYHU\ RI WKH GHEWRUÂśV ÂżQDQFLDO UHFRUGV 7KRUSH FLWHG WKH MKM ,QYHVWPHQWV case in petitioning the Hastings County Court in East Sussex for service via Facebook, pointing out that all conventional means of service had been exhausted.112 Thorpe also detailed the defendant debtorâ&#x20AC;&#x2122;s frequent visits to Facebook and reasons why substituted service through the social networking site would be appropriate.

The court was persuaded by her argument, and she soon found herself logging onto Facebook to serve the court order. Thorpe considers the episode a success, saying â&#x20AC;&#x153;It is great to see that the courts are willing to embrace new technology â&#x20AC;Ś . Being able to use Facebook [to serve the debtor] will certainly assist in the case and allow our client creditor the possibility to obtain further information to enforce the debt.â&#x20AC;?113 Serving an injunction via Twitter and a county court debtor through Facebook paved the way for a 2012 case that has been hailed as a â&#x20AC;&#x153;landmark rulingâ&#x20AC;? by British DQG $PHULFDQ PHGLD 2Q )HEUXDU\ WKH +LJK &RXUW DOORZHG IRU WKH ÂżUVW WLPH in Britain, service of process via Facebook.114 The commercial litigation lawsuit â&#x20AC;&#x201D; in which the Facebook service was allowed â&#x20AC;&#x201D; features claims by investment manager AKO Capital that its brokerage, TFS Derivatives, overcharged it for commission payments for trades that were made (the alleged overcharges came to ÂŁ1.3 million ($2.1 million)).115 TFS denies the allegations, and maintains that if it is held liable, it should be allowed to recover at least part of the claimed amount from former employee Fabio de Biase (a GHULYDWLYHV QHJRWLDWRU ZKR KDQGOHG WKH ÂżUPÂśV UHODWLRQVKLS ZLWK $.2 DV ZHOO DV IURP former AKO trader Anjam Ahmad.116 Both Ahmad and de Biase were found guilty of insider dealing in 2010, following a Financial Services Authority investigation. Ahmad was VHQWHQFHG WR PRQWKV LQ MDLO VXVSHQGHG IRU WZR \HDUV DQG ÂżQHG Â&#x2026;

174

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110. Neil, supra note 106.

111. Out-law.com, supra note 108.

112. British Lawyer Uses Facebook to Serve Court Summons, THE TELEGR APH (Mar. 14, 2011), http:// www.telegraph.co.uk/technology/facebook/8382570/British-lawyer-uses-Facebook-to-serve-courtsummons.html.

113. ,G 114. Chris Johnson, ,Q D 8 . )LUVW +LJK &RXUW -XGJH ³/LNHV´ )DFHERRN IRU 6HUYLQJ /HJDO &ODLPV RQ Missing Defendant, A M . L AW DAILY (Feb. 21, 2012), http://amlawdaily.typepad.com/amlawdaily/2012/02/facebookclaimserve.html.

115. ,G 116. ,G

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117. ,G 118. Katherine Rushton, Legal Claims Can be Served Via Facebook, High Court Judge Rules, THE TELE GR APH (Feb. 21, 2012), KWWS ZZZ WHOHJUDSK FR XN ÂżQDQFH QHZVE\VHFWRU PHGLDWHFKQRORJ\DQGWHOHcoms/9095489/Legal-claims-can-be-served-via-Facebook-High-Court-judge-rules.html.

119. ,G 120. ,G 121. ,G 122. BROW NING , supra note 45, at 55.

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De Biase, meanwhile, was banned from the financial services industry for life and fined ÂŁ250,000 ($395,000).117 )LQGLQJ GH %LDVH KRZHYHU ZRXOG SURYH GLIÂżFXOW IRU 7)6Âś FRXQVHO 3DXO 7KZDLWH RI WKH 6WHSKHQVRQ +DUZRRG ÂżUP :KLOH ODZVXLW SDSHUV ZHUH VHQW WR GH %LDVHÂśV ODVW NQRZQ address, doubt over whether the disgraced broker still lived there prompted Thwaite Courts considering such an to petition the High Court for permission to serve him via Facebook as well.118 In alternative usually have to be making the argument to Mr. Justice Teare, convinced that other efforts at Thwaite detailed the unsuccessful efforts at service through more traditional modes, service have been diligently and then indicated the viability of serving de Biase through Facebook, pointing out the tried but were unsuccessful, and fact that de Biase had remained Facebook additionally must be persuaded friends with several other coworkers at TFS that service via social networking and was active on Facebook, having recently accepted several friend requests.119 After be- sites has a reasonable likelihood of ing reassured that the movant had the right success of reaching the defendant individual and that de Biaseâ&#x20AC;&#x2122;s activity on Facebook was such that he could reasonably and putting him or her on notice of EH H[SHFWHG WR FKHFN KLV SURÂżOH UHJXODUO\ the litigation.

Mr. Justice Teare made legal history by entering an order permitting de Biase to be VHUYHG ZLWK SURFHVV YLD )DFHERRN ² WKH ÂżUVW WLPH WKH +LJK &RXUW KDV DOORZHG VHUYLFH RI a lawsuit by way of the social networking site.120 -XVW WR EH VDWLVÂżHG WKDW GH %LDVH ZRXOG in fact have adequate time to check his Facebook page and answer, the Court gave the defendant 14 days from the day the complaint was served to respond â&#x20AC;&#x201D; an increase from the usual two-day deadline.121 The High Courtâ&#x20AC;&#x2122;s ruling represents just the latest step in the evolving relationship between courts and emerging technologies. The decision acknowledges not just the role that social media can play in the administration of justice by providing a channel of communication considerably more likely than legal notices or other forms of substituted service to put a modern defendant on notice of the claims against him. Equally imporWDQW WKH UXOLQJ UHĂ&#x20AC;HFWV DQ XQGHUVWDQGLQJ RI FKDQJLQJ VRFLDO EHKDYLRU DV PHPEHUV RI younger generations are increasingly prone to living their lives online. In a British society as enamored, or perhaps obsessed, with social media as other countries, and where even escaped convicts on the lam post regular Facebook status updates for their online â&#x20AC;&#x153;friends,â&#x20AC;?122 service through a social networking site is both an exercise in pragmatism and a yielding to changing societal norms.

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THE A MERICAN E XPERIENCE

A

number of legal observers, commenting on the growing acceptance of substituted service through social media abroad, predicted that courts in the United States would not be too far behind.123 However, even as state and federal courts nationwide embraced the use of content from social networking sites as evidence in all kinds of cases,124 judges remained skeptical of the capacity of a site like Facebook or Twitter to provide a user with adequate notice of a legal proceeding.

Class Action Notice via Twitter: Jermyn v. Best Buy For example, in one case, the plaintiff consumers initiated a class-action lawsuit against Best Buy, claiming that the electronics giant failed to honor its price-matching guarantee.125 7KH IHGHUDO FRXUW FHUWLÂżHG D FODVV FRQVLVWLQJ RI 1HZ <RUN UHVLGHQWV ZKR KDG purchased certain merchandise from Best Buy since 2002 but who had been denied the EHQHÂżWV RI WKH FRPSDQ\ÂśV SULFH JXDUDQWHH 2Q EHKDOI RI WKH FODVV OHDG SODLQWLII -HUP\Q SURposed furnishing notice to prospective class members via several methods, including Best Buyâ&#x20AC;&#x2122;s â&#x20AC;&#x153;Twelpforceâ&#x20AC;? Twitter account, SMS and email.126 (Somewhat surprisingly, neither party suggested either Best Buyâ&#x20AC;&#x2122;s main Twitter account or Facebook page; perhaps there was concern over news of the class action provoking a negative reaction among the recipients of Best Buyâ&#x20AC;&#x2122;s main marketing channels.)

The court rejected all three suggestions in December 2010, noting that Best Buy was only required to undertake â&#x20AC;&#x153;reasonable effortsâ&#x20AC;? in identifying and notifying potentially affected class members.127 Regarding Twitter, the court felt that a â&#x20AC;&#x153;tweetâ&#x20AC;? about the pending class action â&#x20AC;&#x153;will OLNHO\ UHDFK D QDWLRQZLGH DXGLHQFH²D JURXS WKDW LV VLJQLÂżFDQWO\ EURDGHU WKDQ WKH GHÂżQHG class.â&#x20AC;?128 Moreover, the court noted, â&#x20AC;&#x153;Notice via Twitter is a form of individual notice (akin to notice via email).â&#x20AC;?129 However, the court overlooked the fact that tweets are not truly â&#x20AC;&#x153;individualized messages:â&#x20AC;? The list of recipients can include not only those who have opted

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123. See, e.g., Browning, supra note 44, at 184 (â&#x20AC;&#x153;[T]he rapid spread and ubiquitous nature of social networking sites, coupled with growing acceptance of them abroad as an alternative means of serving parties with legal documents may soon alter the notion of just what constitutes valid service here in the United States.â&#x20AC;?); Eric Michael Liddick, <RXÂśYH %HHQ 6HUYHG /2/ ,V 6HUYLFH 7KURXJK )DFHERRN Really Possible?, 56 L A . BAR J. 5, at 341 (Feb./Mar. 2009), available at http://www.lsba.org/documentindex/publications/Journal-Feature3-February2009.pdf (â&#x20AC;&#x153;If jurisdiction in this country can allow service by publication, surely â&#x20AC;&#x2DC;service by Facebook,â&#x20AC;&#x2122; with the addition of adequate safeguards, could become a legitimate form of substitute service of process that comports with basic notions of due process.â&#x20AC;?).

124. See, e.g., John Browning, 'LJJLQJ IRU WKH 'LJLWDO 'LUW 'LVFRYHU\ DQG 8VH RI (YLGHQFH )URP 6RFLDO Media Sites,â&#x20AC;? 14 S.M.U. S CI . & TECH. L. R EV. 3 (Summer 2011), and Browning, supra note 45, at p.

39 (citing a 2010 survey by the American Academy of Matrimonial Lawyers that revealed that 81 percent of respondents reported using social media evidence in litigation). See also John Patzakis, 689 3XEOLVKHG &DVHV ,QYROYLQJ 6RFLDO 0HGLD (YLGHQFH, NEXT G ENER ATION E D ISCOVERY L AW & TECH BLOG (March 14, 2012) www.x1discovery.com/blog (visited Apr. 9, 2012) (discussing the fact that in 2010 and 2011 alone, there were 689 published decisions in which evidence from social networking sites was involved).

125. -HUP\Q Y %HVW %X\ 1R &9 &0 '&) :/ 6 ' 1 < 'HF available at KWWS ZZZ VFULEG FRP GRF -HUP\Q Y %HVW %X\ 1R &Y &0 '&) 6 ' 1 < Dec-06-2010.

126. ,G 127. ,G , 2010 WL 5187746 at *2 (citing F ED. R. C IV. P. 23(c)(2)(B)) 128. ,G at *6.

129. ,G

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in to the Twitter feed, but also those who are following the general stream of tweets. The potential for re-tweeting could have further increased the chances for notice getting out to its intended audience, but unfortunately, it was not to be. The court wound up approving notice via publication in The New York Times (and suggested some local newspapers as well),130 despite the steady decline of print media.

Substituted Service via Facebook: Texas and Minnesota

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Just a few months later, however, courts in the United States began warming to the idea of using social media as a form of substituted service. In May 2011, Dallas County Court at Law Judge Ken Tapscott signed an order authorizing substituted service on a defendant via Facebook, pursuant to Rule 106 of the Texas Rules of Civil Procedure.131 On May 10, 2011, Hennepin County, Minnesota Judge Kevin S. Burke did the same in D IDPLO\ ODZ PDWWHU LQ DQ HSLVRGH WKDW KDV EHHQ ZLGHO\ UHSRUWHG DV WKH ÂżUVW LQVWDQFH RI DQ American court authorizing service via a social networking site.132 In ,Q UH WKH 0DUULDJH RI -HVVLFD 0SDIH Y &ODUHQFH 1GMRXQZRX 0SDIH, the petitioner Jessica Mpafe had lost contact with her husband and had no physical address where he could be served with divorce papers.133 Although she believed her husband may have PRYHG EDFN WR KLV QDWLYH ,YRU\ &RDVW LQ ZHVWHUQ $IULFD VKH KDG QR YHULÂżFDWLRQ RI WKLV Among the options she considered were sending the notice by general delivery (in which WKH SRVW RIÂżFH ZRXOG VLPSO\ KROG WKH PDLO XQWLO FODLPHG E\ LWV LQWHQGHG UHFLSLHQW RU E\ publishing a legal notice. Neither was an avenue that made much sense to Judge Burke. He stated, â&#x20AC;&#x153;General delivery made sense 100 years ago, but letâ&#x20AC;&#x2122;s be real.â&#x20AC;?134 As for publication, Judge Burke observed that â&#x20AC;&#x153;Nobody, particularly poor people, is going to look back at the legal newspaper to notice that their spouse wants to get divorced.â&#x20AC;?135 Ultimately, Judge Burke decided that electronic methods of publication held more promise in terms of providing actual notice to Mpafeâ&#x20AC;&#x2122;s husband. On May 10, 2011, he signed an Order for Service by Publication on the Internet.136 He noted that Minnesotaâ&#x20AC;&#x2122;s Rules of Civil Procedure permit service by publication, but that â&#x20AC;&#x153;it is unlikely that Respondent would ever see [publication in a legal newspaper].â&#x20AC;?137 The court found it â&#x20AC;&#x153;more likely that Respondent could receive notice on the internet.â&#x20AC;?138 Judge Burke opined that â&#x20AC;&#x153;the traditional way to get service by publication is antiquated and is prohibitively expensive.

Service is critical, and technology provides a cheaper and hopefully more effective way of ¿QGLQJ 5HVSRQGHQW ´139

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130. ,G 131. Email from Judge Ken Tapscott to John G. Browning (May 11, 2011). While Judge Tapscott emailed PH WR LQIRUP PH RI ZKDW ZDV D ÂżUVW IRU WKH FRXUW KH XQIRUWXQDWHO\ FRXOG QRW UHFDOO WKH VW\OH RU FDXVH number of the case, so evidence about this ruling is limited to anecdotal information.

132. Stephanie Francis Ward, 2XU 3OHDVXUH WR 6HUYH <RX 0RUH /DZ\HUV /RRN WR 6RFLDO 1HWZRUNLQJ 6LWHV to Notify Defendants, ABA JOUR NAL , Oct. 2011, at 14-16, http://www.abajournal.com/magazine/article/our_pleasure_to_serve_lawyers_social_networking_sites_notify_defendants.

133. ,Q 5H Marriage of Jessica Mpafe v. Clarence Mdjounwou Mpafe, Court File No. 27-FA-11 (Minn. Dist.

Ct., Fam. Div., Hennepin County) (May 10, 2011).

134. Ward, supra.

135. ,G 136. ,Q UH Marriage of Jessica Mpafe v. Clarence Mdjounwou Mpafe, Order for Service by Publication on the Internet, Court File No. 27-FA-11 (Minn. Dist. Ct., Fam. Ct. Div., Hennepin County May 10, 2011), available at http://www.scribd.com/doc/70014426/Mpafe-v-Mpafe-order.

137. ,G 138. ,G 139. ,G

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The judge’s order went on to stipulate the methods open to Jessica Mpafe to effect the service on her husband. The order gives the Petitioner the choice of several formats in determining which method would make it most likely for the Respondent to receive notice.

These included “Contact via any facebook, myspace, or other social networking site;”140 “contact via email;” and “contact through information that would appear through an inAs for the actual mechanics of ternet search engine such as Google.”141 The providing such notice, social media order goes on to specify that if Ms. Mpafe is contacted by her husband, she “shall offers a reach and functionality make every effort to provide [him] with the Summons and Petition.”142 However, in the far superior to simply providing event that no contact occurs, the order states notice to a defendant through that “the information posted via one of the publication. ways listed above or reasonable posting on WKH LQWHUQHW VKDOO EH VXI¿FLHQW VHUYLFH ´143 Finally, the court requires a showing by the Petitioner that the efforts at electronic communication have taken place as a prerequisite for the court entering any judgment by default against Mr. Mpafe. The order mandates that ³3HWLWLRQHU VKDOO VXEPLW WR WKH &RXUW DQ DI¿GDYLW WKDW VHUYLFH E\ SXEOLFDWLRQ RQ WKH LQWHUQHW has occurred within 45 days from the date of this Order. After that time, a default hearing may be scheduled.”144 Judge Burke’s order was widely reported in mainstream media outlets, legal publications, and the blogosphere. However, it must be distinguished from the Texas example in Judge Tapscott’s court (and presumably future efforts by other U.S. jurisdictions as well), in that it is mandating an electronic alternative to service by publication. It is not directing that a defendant, for whom more traditional efforts at service have been tried and have proven unsuccessful, should be served via Facebook or other social networking platforms.

As the examples from Australia and other nations demonstrate, courts considering such an alternative usually have to be convinced that other efforts at service have been diligently tried but were unsuccessful, and additionally must be persuaded that service via social networking sites has a reasonable likelihood of success of reaching the defendant and putting him or her on notice of the litigation. At least one observer has noted that in cases like Mpafe, where the intended recipient has likely left the country, an internationally accessible social networking site such as Facebook may be the best form of notice by publication.

According to Jeffrey Rosenthal, Facebook is akin to an electronic newspaper that follows the defendant wherever he travels. Like a newspaper, the general public may view the notice on the individual’s public wall (depending on privacy settings). But even if the general public cannot see it, the individual’s friends will still be aware of the notice —making it more likely the suit will be brought to the target’s attention.145

The sites were not capitalized in the order. ,G ,G ,G ,G ,G Jeffrey Rosenthal, You’ve Been Served – on Facebook?, THE L EGAL I NTELLIGENCER (Nov. 9, 2011), http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202529831236.

178

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140.

141.

142.

143.

144.

145.

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Standards for Substituted Service

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While personal service (service of process directly to the party named on the summons, complaint, or petition) is required in most lawsuits in U.S. jurisdictions, most states allow some form of substituted service when the serving party shows that ordinary service, such as through a process server, is impracticable or has been unsuccessful, that due diligence has been exercised in an effort to perfect personal service, and that the form of substituted service being proposed is reasonably calculated to reach the party and effectuate service. In D QXPEHU RI MXULVGLFWLRQV VXFK DV &DOLIRUQLD 1HZ <RUN DQG ,OOLQRLV WKH VHUYLQJ SDUW\ PXVW mail the legal documents to the intended recipient in addition to making the particular form of substituted service that is ordered.146 The Texas Rules of Civil Procedure prescribe a method for obtaining substituted service that is typical of the jurisdictions allowing such service. Under Rule 106 of the Texas Rules of Civil Procedure, a serving party can achieve service in person, through UHJLVWHUHG RU FHUWLÂżHG PDLO RU E\ FRQYLQFLQJ WKH FRXUW WR RUGHU VRPH IRUP RI VXEVWLWXWHG service.147 Rule 106(2)(b) requires a formal motion seeking an order of substituted serYLFH VXSSRUWHG E\ DIÂżGDYLW WHVWLPRQ\ XVXDOO\ IURP D SURFHVV VHUYHU 7KH DIÂżGDYLW PXVW state â&#x20AC;&#x153;the location of the defendantâ&#x20AC;&#x2122;s usual place of business or usual place of abode or RWKHU SODFH ZKHUH WKH GHIHQGDQW FDQ SUREDEO\ EH IRXQG DQG VWDWLQJ VSHFLÂżFDOO\ WKH IDFWV showing that service has been attemptedâ&#x20AC;? through either personal service or registered or FHUWLÂżHG PDLO 148 7KH DIÂżGDYLW PXVW VSHFLI\ WKDW VXFK VHUYLFH KDV EHHQ DWWHPSWHG DW WKH ORFDWLRQ QDPHG LQ WKH DIÂżGDYLW EXW KDV EHHQ XQVXFFHVVIXO 149 Upon such a showing that past attempts have been unsuccessful, a court may then authorize substituted service â&#x20AC;&#x153;by leaving a true copy of the citation, with a copy of the petition attached, with anyone VL[WHHQ \HDUV RI DJH DW WKH ORFDWLRQ VSHFLÂżHG LQ VXFK DIÂżGDYLW ´150 More importantly, the court may also authorize service â&#x20AC;&#x153;LQ DQ\ RWKHU PDQQHU WKDW WKH DIÂżGDYLW RU RWKHU HYLdence before the court shows will be reasonably effective to give the defendant notice of the suit.â&#x20AC;?151 ,W LV WKLV VHFRQG SDUW WKDW JLYHV D FRXUW VXIÂżFLHQW ODWLWXGH WR SHUPLW XQGHU DSSURSULate circumstances, substituted service via a social networking site. A motion seeking this kind of substituted service would likely echo the showing made in the MKM case. This would involve detailing the unsuccessful efforts at personal service made at the defendantâ&#x20AC;&#x2122;s last known physical address and proposing the viability of an effort to reach the defendant via Facebook or some other site. As â&#x20AC;&#x153;other evidenceâ&#x20AC;? to put before the court of a method calculated to be â&#x20AC;&#x153;reasonably effectiveâ&#x20AC;? at giving the defendant notice of suit,152 the moving party could introduce screenshots of the defendantâ&#x20AC;&#x2122;s Facebook page. The movLQJ SDUW\ VKRXOG SRLQW RXW FRQWHQW RQ WKH )DFHERRN SURÂżOH LWVHOI WKDW WLHV LW WR WKH GHIHQdant in the case, in order to assure the court that it has the correct person. This might include personal information, such as birth date, town of residence, or even photos or

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146. In particular types of cases, such as family law matters, forms of service are addressed not just in a VWDWHÂśV UXOHV RI FLYLO SURFHGXUH EXW DOVR D VSHFLÂżF ERG\ RI VWDWXWHV OLNH D IDPLO\ FRGH DV ZHOO )RU H[ample, the Texas Family Code allows service of citation by publication provided that the party being VHUYHG ÂłFDQQRW EH QRWLÂżHG E\ SHUVRQDO VHUYLFH RU UHJLVWHUHG RU FHUWLÂżHG PDLO DQG WR SHUVRQV ZKRVH names are unknown.â&#x20AC;? TEX . FA M . C ODE § 102.010 (2008).

147. TEX . R. C IV. P. 106 (2010).

148. ,G 149. ,G 150. ,G 151. ,G (emphasis added), 152. See supra note 154.

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Your Facebook Statusâ&#x20AC;&#x201D;â&#x20AC;&#x153;Servedâ&#x20AC;?

Wall postings that match other known information about the defendant from other sources. Given the high degree of individualization common to most social networking SURÂżOHV ² D UHDVRQ IUHTXHQWO\ FLWHG E\ FRXUWV LQ SHUPLWWLQJ WKH LQWURGXFWLRQ RI HYLGHQFH from such pages in civil and criminal cases153 ² WKHUH VKRXOG EH VXIÂżFLHQW LQGLFDWLRQV available from a defendantâ&#x20AC;&#x2122;s Facebook or MySpace page to reassure the court that it Lawyers may not misrepresent has the right person.154 The social netthemselves or their connection to a ZRUNLQJ SURÂżOH RU DQ DIÂżGDYLW GLVFXVVLQJ the review of it, can also help support the FDVH WR RWKHUV D VRPHWLPHV GLIÂżFXOW efforts to demonstrate why it is an appropritightrope to walk when gathering ate vehicle with which to perfect service. If multiple attempts at personal service made online evidence in a matter that at a defendantâ&#x20AC;&#x2122;s last known residence have may involve communications via been unsuccessful, for example, one might conclude that either the person is evading social networking sites. service or even that he doesnâ&#x20AC;&#x2122;t live there anymore. However, if one can point out WR WKH FRXUW QRW RQO\ WKH H[LVWHQFH RI D )DFHERRN SURÂżOH EXW DOVR WKDW WKH GHIHQGDQW LV actively visiting his page (through, for example, pointing out regular status updates, recently uploaded content, frequent Wall postings, etc.), the argument that this is a means â&#x20AC;&#x153;reasonably effectiveâ&#x20AC;? at giving the defendant notice of the suit becomes much more compelling.

PR ACTICAL USE

OF SERVICE VIA S OCIAL M EDIA s for the actual mechanics of providing such notice, social media offers a reach and functionality far superior to simply providing notice to a defendant through publication. As Judge Burke pointed out in the Mpafe order, posting a notice by publication in a legal publication (or even, for that matter, the â&#x20AC;&#x153;legal noticesâ&#x20AC;? section of a newspaper) can be expensive and, given the decline in the popularity of print media, not terribly effective.155 In todayâ&#x20AC;&#x2122;s digital age, where there are over 845 million Facebook users worldwide,156 over 300 million Twitter accounts,157 and in which 65 percent of adult Americans have at least one social networking presence,158 providing notice via Facebook that a person has been sued may in fact be the most â&#x20AC;&#x153;reasonably effectiveâ&#x20AC;? way of bringing a lawsuit to his attention.

Moreover, the interactive features common to social networking sites enhance the likelihood that an individual served in cyberspace will receive effective notice of the lawsuit. In addition to

A

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153. See, e.g., Tienda v. State, No. 05-09-00553-CR, 2010 Tex. App. LEXIS 10031, *11 (Tex. App. Dallas, 'HF XQSXEOLVKHG SHW JUDQWHG ³>7@KLV W\SH RI LQGLYLGXDOL]DWLRQ LV VLJQL¿FDQW LQ DXWKHQWLFDWLQJ D SDUWLFXODU SUR¿OH SDJH DV KDYLQJ EHHQ FUHDWHG E\ WKH SHUVRQ GHSLFWHG LQ LW 7KH PRUH SDUWLFXODU DQG LQGLYLGXDOL]HG WKH LQIRUPDWLRQ WKH JUHDWHU WKH VXSSRUW IRU D UHDVRQDEOH MXURUœV ¿QGLQJ WKDW WKH SHUVRQ GHSLFWHG VXSSOLHG WKH LQIRUPDWLRQ ´ 7KH GHFLVLRQ ZDV DI¿UPHG E\ 7LHQGD Y 6WDWH 7H[ Crim. App. LEXIS 244 (Tex. Crim. App., Feb. 8, 2012).

154. ,G 155. ,Q UH Marriage of Jessica Mpafe v. Clarence Mdjounwou Mpafe, Order for Service by Publication on the Internet, Court File No. 27-FA-11 (Minn. Dist. Ct., Fam. Ct. Div., Hennepin County May 10, 2011), available at http://www.scribd.com/doc/70014426/Mpafe-v-Mpafe-order.

156. Facebook, Inc., Facebook Fact Sheet, supra note 4.

157. Twitter, Inc. Shutting down spammers, supra note 4.

158. Mary Madden & Kathryn Zickuhr, supra note 43.

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Your Facebook Statusâ&#x20AC;&#x201D;â&#x20AC;&#x153;Servedâ&#x20AC;?

D Âł<RX KDYH EHHQ VXHG´ SRVW RQ WKH GHIHQGDQWÂśV :DOO WKH VHUYLQJ SDUW\ FDQ SURYLGH KLP ZLWK a hyperlink to the courtâ&#x20AC;&#x2122;s website as well as links to PDFs of the summons and complaint.

The serving party can also use tagging as a tool. The plaintiff might write a post â&#x20AC;&#x153;Serving petition on John Smith,â&#x20AC;? with the name â&#x20AC;&#x153;tagged,â&#x20AC;? leading â&#x20AC;&#x153;John Smithâ&#x20AC;? to receive notice that he was tagged.159 The activities by the party served on Facebook or other social networking sites can also help document the fact that such service was successful. Facebook makes it possible to monitor a userâ&#x20AC;&#x2122;s activity to a certain extent. If a defendant who has been served suddenly decides to enable privacy settings, â&#x20AC;&#x153;de-friendsâ&#x20AC;? someone or deletes the links given to access WKH FRXUW GRFXPHQWV WKDW FRXOG UHDVRQDEO\ EH LQWHUSUHWHG DV D FRQÂżUPDWLRQ RI QRWLFH 6LPLODUO\ LI WKH GHIHQGDQW XQWDJV KLPVHOI WKDW FDQ DOVR EH YLHZHG DV FRQÂżUPDWLRQ

Impact on Cases and Society As the examples from Australia indicate,160 service through a social networking site holds particular promise in certain types of cases where individuals are likely to be even more prone to evading service, such as debt collections, or foreclosures cases161 and paternity suits. The potential use of Facebook and other social networking sites as an electronic process server could very well blunt the growth in popularity of social media â&#x20AC;&#x201D; or at the very least heighten usersâ&#x20AC;&#x2122; awareness of privacy issues as they put more and more of their online selves out there for public consumption.

Parties may even elect to incorporate social media or other forms of electronic communication as acceptable means of providing contractually required notice in written agreements. However, certain types of cases may not lend themselves as readily to service through social media as others. For example, the Fair Debt Collection Practices Act (FD&3$ DQG D QXPEHU RI LWV VWDWH FRXQWHUSDUWV LV YHU\ VSHFLÂżF DERXW WKH PHDQV E\ ZKLFK D debt collector may contact a debtor. Posting a notice on a Facebook wall for all to see can constitute a violation of the FDCPAâ&#x20AC;&#x2122;s prohibition on communicating to third parties about WKH GHEW 6HYHUDO GHEW FROOHFWLRQ ÂżUPV DURXQG WKH FRXQWU\ KDYH DOUHDG\ IRXQG WKHPVHOYHV in legal hot water as a result of such contact.162 Consumer protection lawsuits aside, howHYHU PRVW W\SHV RI FLYLO OLWLJDWLRQ FRXOG HDVLO\ EHQHÂżW IURP WKH PDQ\ DGYDQWDJHV SUHVHQWHG by using social media platforms for substituted service.

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159. See Tom Occhino, Tag Friends in Your Status and Posts, THE FACEBOOK BLOG , Sept. 10, 2009, 12:01p.m., https://blog.facebook.com/blog.php?post=109765592130.

160. See supra pages 165-169.

161. With a bleak economic outlook and the ensuing bust of housing â&#x20AC;&#x153;bubblesâ&#x20AC;? in the United States and other countries leading to record numbers of foreclosures, it is quite likely that service of process via social networking sites will prove increasingly more attractive for lenders seeking to locate and serve those whose most prominent tracks are left digitally.

162. For example, in Beacham v. MarkOne Financial, Case No. 10-12883 (Fla. Cir. Ct., Pinellas County

LQ ZKLFK D GHEW FROOHFWLRQ ÂżUP ZDV RUGHUHG WR UHIUDLQ IURP FRQWDFWLQJ WKH GHEWRU KHU IDPLO\ and friends via social networks. See Tamara Lush, Court Rules Debt Agency Canâ&#x20AC;&#x2122;t Contact Woman on Facebook, A SSOCIATED P RESS , Mar. 11, 2011, available at http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202485594771. In Newland v. Assets Recovered LLC, No. 09-99373 0LFK &LU &W 2DNODQG &RXQW\ ÂżOHG 0DU WKH SODLQWLII DOOHJHG )'&3$ YLRODWLRQV DULVLQJ RXW of social media postings by the debt collector. (Complaint available at http://www.courthousenews. com/2009/03/31/MySpaceDebt.pdf). And on March 10, 2011, the Federal Trade Commission issued a warning letter in ,Q WKH 0DWWHU RI *DU\ ' 1LW]NLQ 3 & , cautioning that debt collector that contact using social media can constitute an FDCPA violation. (Letter available at http://www.ftc.gov/os/ closings/110310nitzkincletter.pdf).

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Ethical Considerations As has already been seen with the discovery and use of social media content in litigation, use of social networking platforms to serve legal documents on those who seem to exist only online can also present certain ethical challenges for lawyers, particularly with â&#x20AC;&#x153;friendingâ&#x20AC;? witnesses in a manner that comports with the Model Rules of Professional Conduct.163 Lawyers may not misrepresent themselves or their connection to a case to others,164 D VRPHWLPHV GLIÂżFXOW WLJKWURSH WR ZDON ZKHQ JDWKHULQJ RQOLQH HYLGHQFH LQ D PDWter that may involve communications via social networking sites.

WILL SERVICE

BY S OCIAL M EDIA SPREAD? ith the Mpafe case in Minnesota and anecdotal evidence in Texas as precedent, how likely is it that state courts in other jurisdictions will follow suit and open the door to substituted service through social networking sites? Given the inexorable spread of social media, it is in all likelihood inevitable.

At least one other state already envisions use of social media for achieving substituted service, even if there have not yet been reported cases of its actual use. On the Utah state FRXUWVÂś RIÂżFLDO ZHEVLWH WKH XVHU IULHQGO\ RQOLQH UHVRXUFH SURYLGHV KDQG\ LQIRUPDWLRQ RQ service of process.165 In one section, it cites the pertinent Utah Rule of Civil Procedure for alternative service, under which a party can move for alternative means of serving the person he or she has been trying to serve with reasonable diligence.166 The website points out that the alternative means chosen has to be the method â&#x20AC;&#x153;most likely to give actual notice of the document being served.â&#x20AC;?167 After acknowledging that publishing the summons in a newspaper has been â&#x20AC;&#x153;for many years the most common means of alternative service,â&#x20AC;? the site points out that â&#x20AC;&#x153;the courts are frequently using electronic communications and social media to publish the complaint and summons or to notify the person being served that the documents have been published.â&#x20AC;?168 The Utah courts website goes on to address social mediaâ&#x20AC;&#x2122;s role in â&#x20AC;&#x153;alternative serviceâ&#x20AC;?

HYHQ PRUH VSHFLÂżFDOO\ )RU H[DPSOH LW VWDWHV

W

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(YHQ WKRXJK \RX FDQQRW ÂżQG WKH SHUVRQ WR EH VHUYHG \RX PD\ NQRZ ZKHUH WKH\ DFFHSW FRPPXnications: email; mail to a friend or relative; a social network, such as Facebook; a text number or phone number; or a Twitter name. With the courtâ&#x20AC;&#x2122;s permission, you might be able to send the complaint and summons directly to the person by mail, email, or social media.169

The site also envisions the potential need for a third party to perfect service because of a courtâ&#x20AC;&#x2122;s order that a party cannot do it himself. Even here, however, social media is discussed as a potential avenue for service. The site states, â&#x20AC;&#x153;For alternative service, this might

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163. See, e.g., BROW NING , supra QRWH 3KLODGHOSKLD %DU 2SLQLRQ 0DU 1HZ <RUN &LW\ %DU $VVRFLDWLRQ &RPPLWWHH RQ 3URIHVVLRQDO (WKLFV )RUPDO 2SLQLRQ 1HZ <RUN 6WDWH %DU $Vsociation Committee on Professional Ethics Opinion 843 (Sept. 10, 2010).

164. MODEL R ULES OF P ROF â&#x20AC;&#x2122;L . C ONDUCT R. 8.4(c) prohibits attorneys from â&#x20AC;&#x153;engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.â&#x20AC;?

165. Utah State Courts, Serving Papers (Service of Process), http://www.utcourts.gov/howto/service/service_of_process.html (last visited Mar. 11, 2012).

166. UTAH R. C IV. P RO. 4(d)(4).

167. Utah State Courts, supra note 165.

168. ,G 169. ,G , 6HUYLQJ 3DSHUV 6HUYLFH RI 3URFHVV $OWHUQDWH 6HUYLFH http://www.utcourts.gov/howto/service/ service_of_process.html#Alternate (emphasis added).

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Your Facebook Statusâ&#x20AC;&#x201D;â&#x20AC;&#x153;Servedâ&#x20AC;?

mean the third person would mail or email the documents on your behalf, post the documents to a Facebook account, arrange for publication, or notify the person by phone or text that the documents have been published.â&#x20AC;?170 While Utah is the only state found whose official courts website actually discusses substituted (or â&#x20AC;&#x153;alternativeâ&#x20AC;?) service being accomplished through the use of social media outlets,171 one can certainly argue that there is a trend of viewing social networking sites not only as rich sources of evidence in all types of cases but as recognized forms of communication as well. To combat the risk of mistrials and overturned verdicts caused by jurors researching a case online or communicating about a case through social media, many states have revised their jury instructions and admonishments to specifically prohibit electronic communications and the use of social media outlets during jury service.172 In addition, courts around the country have acknowledged that social networking sites are popular, viable avenues of communication that are every bit as subject to judicial oversight as their more traditional counterparts. For example, in October 2009, Shannon Jackson was charged with violating a Sumner County (Tennessee) General Sessions Court protective order against â&#x20AC;&#x153;telephoning, contacting, or otherwise communicatingâ&#x20AC;? with the petitioner when she â&#x20AC;&#x153;pokedâ&#x20AC;? another woman on Facebook.173 ,Q D 1HZ <RUN FDVH D family court judge ruled that a MySpace friend request constituted a violation of a temporary order of protection, noting that â&#x20AC;&#x153;[w]hile it is true that the person who received the â&#x20AC;&#x2DC;friend requestâ&#x20AC;&#x2122; could simply deny the request to become â&#x20AC;&#x2DC;friends,â&#x20AC;&#x2122; that request was still a contactâ&#x20AC;? contrary to the courtâ&#x20AC;&#x2122;s order that â&#x20AC;&#x153;Respondent shall have â&#x20AC;&#x2DC;no contactâ&#x20AC;&#x2122; with Sandra Delgrosso.â&#x20AC;?174 7KH UXOLQJ VSHFLÂżFDOO\ QRWHG WKDW 0\6SDFH KDG EHHQ XVHG LQ WKH FDVH DV D â&#x20AC;&#x153;conduit for communication prohibited by the temporary order of protection issued by the Family Court.â&#x20AC;?175 Given the seeming ubiquitousness of social media platforms and a growing acceptance by the courts of their value as sources of evidence and as increasingly popular modes of communication, it is likely that more and more state courts will follow the lead of trailblazers in Minnesota, Texas, and Utah and embrace the role it can play in achieving substituted service.

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170. ,G (emphasis added). In fact, the Utah courts website even helpfully includes not only a draft motion and order for alternative service, it even includes a draft form â&#x20AC;&#x153;Proof of Service by Alternative Means,â&#x20AC;?

ZKLFK D OLWLJDQW FDQ ÂżOO RXW GRFXPHQWLQJ WKH IRUP RI HOHFWURQLF FRPPXQLFDWLRQ XVHG WR VHUYH WKH GHfendant, with options for â&#x20AC;&#x153;Social Network,â&#x20AC;? â&#x20AC;&#x153;Twitter,â&#x20AC;? or â&#x20AC;&#x153;text message.â&#x20AC;?. Utah State Courts, Proof of Service by Alternative Means, available at http://www.utcourts.gov/howto/service/docs/06_Proof_ of_Alternative_Service.pdf.

171. For several years, the author has been monitoring state courtsâ&#x20AC;&#x2122; websites for mentions of social media.

Among the many sites examined, Utahâ&#x20AC;&#x2122;s site is the only one encountered that has a formal discussion of this in its online guide.

172. BROW NING , supra note 45, at 186. See also Eric P. Robinson, -XU\ ,QVWUXFWLRQV IRU WKH 0RGHUQ $JH $ 6WDWH 6XUYH\ RI -XU\ ,QVWUXFWLRQV RQ ,QWHUQHW DQG 6RFLDO 0HGLD, 1 R EY NOLDS C TS . & M EDIA L. J. 307 (2011).

173. BROWNING, ,id. at 34â&#x20AC;&#x201C;35. See also Facebook â&#x20AC;&#x2DC;pokeâ&#x20AC;&#x2122; sends Hendersonville woman to jail, W W W. WKRN.COM (WKRN-TV, N ASHVILLE , TENN.), Oct. 9, 2009, http://www.wkrn.com/global/story. asp?s=11290306. The protective order was issued in response to claims that Jackson stalked the woman. ,G 174. 3HRSOH Y )HUQLQR 0LVF G 1 < 6 G 1 < & &ULP &W

175. ,G 0LVF G DW 1 < 6 G DW

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C ONCLUSION

I

t is often said that necessity is the mother of invention. As society becomes more and more complex, and what was once viewed locally is now viewed globally, technology enables us to access once-unheard of stores of data with frightening speed from practically anywhere on the planet. Thanks to social media, we have new causes of action, new defenses, and a treasure trove of information impacting all kinds of cases. And because of social media, we now have a way of serving defendants once thought too elusive for process.

Is it a perfect method? Hardly. Criticisms will linger over whether a defendant who only sporadically checks his Facebook account will truly get notice, or whether one can satisfacWRULO\ YHULI\ D XVHUÂśV RQOLQH LGHQWLW\ ZKHQ IDNH SURÂżOHV FDQ EH HDVLO\ FUHDWHG 7KHQ DJDLQ shortcomings are certainly not unique to service using social media: mail can be lost or go undelivered, and notice by publication has a notoriously low likelihood of reaching its intended recipient. With the sea change that social networking has brought to how people communicate, utilizing social media platforms as a vehicle for service of process is not just an additional weapon in the litigatorâ&#x20AC;&#x2122;s arsenal. It represents an inevitable progression in how the legal system responds to technological change.

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Extrajudicial Speech: Judicial Ethics in the New Media Age Hon. Brian MacKenzie1 If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. â&#x20AC;&#x201C; Justice Louis Brandeis2

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7KH SXEOLF KDV D GLIÂżFXOW WLPH HYDOXDWLQJ MXGJHV 0RVW SHRSOH QHYHU HQWHU D FRXUWURRP they seldom hear the complete testimony of witnesses, nor do they have the legal training to evaluate a ruling in a complex matter. For these and other reasons, the judiciary is probably the least understood branch of government. Since a judgeâ&#x20AC;&#x2122;s role and rulings are VRPHWLPHV GLIÂżFXOW WR FRPSUHKHQG WKH SXEOLF PXVW WDNH PXFK RI ZKDW D MXGJH GRHV RQ faith. If they lose that faith, the judicial system itself is threatened.

The most common way for the general public to become informed about judges and courts is through the news and entertainment media. In recent years, economic pressures and the 24-hour news cycle have caused a sea change in the manner by which news is gathered and presented. This has had consequences for most social and political entities, LQFOXGLQJ WKH MXGLFLDU\ 7KH UHVXOW RI WKHVH FKDQJHV KDV EHHQ VLPSOLÂżHG PHGLD FRYHUDJH RI courts, which has sensationalized legal proceedings and undermined the publicâ&#x20AC;&#x2122;s faith in the judiciary and the judicial process.

Extrajudicial silence â&#x20AC;&#x201C; the judiciaryâ&#x20AC;&#x2122;s traditional response to misinformation, criticism or attack in the media â&#x20AC;&#x201C; has proven ineffective in preventing a decline in the public trust DQG FRQÂżGHQFH LQ WKH MXVWLFH V\VWHP 3 Revisions to the latest version of the American Bar Associationâ&#x20AC;&#x2122;s Model Code of Judicial Conduct, published in 2007, include new ethics rules that were designed to allow extrajudicial speech.4 Although limitations persist, the Model Code now encourages members of the judiciary to become full participants in the ongoing public discussion about the courts.

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1. I wish to thank Karen MacKenzie and Rosemary K. Wolock for their invaluable assistance in the writing of this article.

2. Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring). The Whitney decision was overruled by Brandenburg v. Ohio, 395 U.S. 444, 449 (1969).

3. The phrases â&#x20AC;&#x153;extrajudicial silenceâ&#x20AC;? and â&#x20AC;&#x153;extrajudicial speechâ&#x20AC;? are taken from Stephan J. Fortunatoâ&#x20AC;&#x2122;s article, 2Q D -XGJHÂśV 'XW\ WR 6SHDN ([WUDMXGLFLDOO\ 5HWKLQNLQJ WKH 6WUDWHJ\ RI 6LOHQFH, 12 GEO. J. LEGAL ETHICS 679, 682-83 (1999), and are used in this article to describe judicial interaction with the media.

4. These revisions will be discussed throughout the remainder of this article.

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Extrajudicial Speech

Courts in the New Media Environment For better or worse, the media certainly plays a role in the educating Americans about courts.5 A 1999 study6 by the National Center for State Courts found that â&#x20AC;&#x153;six of ten [respondents] â&#x20AC;Ś say they get court information from electronic media and half regularly receive it from print media. About a fourth get it from dramas and comedies with a legal theme.â&#x20AC;?7 In a similar 1998 survey, 41 percent of respondents cited television news as an important source of information about the courts, while 37 percent cited television â&#x20AC;&#x153;news magazineâ&#x20AC;? programs.8 Local daily newspapers were cited by 36 percent, national newspapers by 35 percent, and radio news by 31 percent.9

Courts on Television 7HOHYLVLRQ HQWHUWDLQPHQW ZLWK LWV HPSKDVLV RQ FRQĂ&#x20AC;LFW DQG TXLFN UHVROXWLRQ FDQ FDXVH major distortions in the publicâ&#x20AC;&#x2122;s understanding of the court system.10 In a so-called courtroom drama, a case typically proceeds from arrest to resolution within an hour.11 While these shows are portrayed realistically with sets designed to look like courtrooms and law RIÂżFHV WKH OLIHOLNH VHWWLQJV DUH PHUHO\ WKH EDFNGURS IRU D FRPPHUFLDO GUDPD 12 OversimpliÂżFDWLRQ IRU WKH VDNH RI HPRWLRQDO WHQVLRQ XVXDOO\ GLFWDWHV WKDW GHIHQGDQWV DUH JXLOW\ ZLWK the real dramatic challenge being whether the judge or jury will reach the correct conclusion.13 The inevitable legal inaccuracies are passed on to the viewer with the force of law.14 Such distortions reverberate in real courtrooms when the public expects courts to behave like their television counterparts. As the court said jurors in Jackie Barron Wilson v. The State of Texas: â&#x20AC;&#x153;They have all seen â&#x20AC;&#x2DC;CSI: Crime Scene Investigationâ&#x20AC;&#x2122; or â&#x20AC;&#x2DC;NCISâ&#x20AC;&#x2122; and â&#x20AC;&#x2DC;knowâ&#x20AC;&#x2122; that DNA is infallible.â&#x20AC;?15

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5. Besides the studies cited infra, most literature on subject has asserted that the media have such an inĂ&#x20AC;XHQFH ZLWKRXW SURRI Âł>7@KRXJK WHOHYLVLRQ UHSUHVHQWDWLRQV RI ODZ KDYH EHFRPH XELTXLWRXV WKH H[WHQW RI WKHLU LPSDFW LI DQ\ KDV QHLWKHU EHHQ GHÂżQHG QRU PHDVXUHG ZLWK SUHFLVLRQ ´ .LPEHUOLDQQH 3RGODV As 6HHQ 2Q 7Y 7KH 1RUPDWLYH ,QĂ&#x20AC;XHQFH 2I 6\QGL &RXUW 2Q &RQWHPSRUDU\ /LWLJLRXVQHVV, 11 VILLANOVA SPORTS & ENT. L. J. 1, 2 (footnotes omitted). In her article, Podlas presents the results of her survey of 225 prospective jurors on their perceptions of judgesâ&#x20AC;&#x2122; behvaior, and whether those perceptions are shaped by viewing of syndicated court programs such as â&#x20AC;&#x153;Judge Judy.â&#x20AC;? ,G. at 29-37. But her study does not address the role of the media generally in forming general perceptions of the court system.

6. 7KH DXWKRU ZDV XQDEOH WR ÂżQG DQ\ PRUH UHFHQW TXDQWLWDWLYH UHVHDUFK RQ WKH TXHVWLRQ RI PHGLD LQĂ&#x20AC;Xence on the perceptions of the general public of the courts.

7. NATIONAL C ENTER FOR S TATE C OURTS , HOW THE P UBLIC VIEWS THE S TATE C OURTS: A 1999 NATIONAL S URVEY 4 (1999), available at http://www.ncsconline.org/WC/Publications/Res_AmtPTC_PublicViewCrtsPub.pdf.

8. A MERICA N B AR A SS â&#x20AC;&#x2122;N, P ERCEPTIONS OF THE U.S. JUSTICE S YSTEM 94 (1999) (survey conducted by M/A/R/C Research), http://www DEDQRZ RUJ ZRUGSUHVV ZS FRQWHQW ÂżOHVBĂ&#x20AC;XWter/1269460858_20_1_1_7_Upload_File.pdf. These were actually mentioned less frequently than other sources: personal experience was named by 63 percent of respondents; 59 percent cited school or college courses; 58 percent selected â&#x20AC;&#x153;books/library;â&#x20AC;? 57 percent cited jury duty; 43 percent cited lawyers; and materials available from the court were also cited by 43 percent. ,G. 9. ,G. 10. R AY C. S URETTE , M EDIA , C RIME , A ND C RIMINAL JUSTICE: I MAGES A ND R EALITIES p. 45 (4th ed, 2007).

11. Judge Dennis N. Sweeney, The â&#x20AC;&#x153;CSI Effectâ&#x20AC;? A Judgeâ&#x20AC;&#x2122;s Viewpoint: How Do Courtroom Dramas Affect the Work of the Courts? JUSTICE M ATTERS , SPRING-SUMMER 2009 vol. 12, no. 4 http://www.courts. state.md.us/publications/ejusticematters/2009/summer/csieffect.html 12. Kimberlianne Podlas, ,PSDFW RI 7HOHYLVLRQ RQ &URVV ([DPLQDWLRQ DQG -XURU 7UXWK´ 14 WIDENER L. R EV. 479, 495 (2009).

13. ,G. at 490-491.

14. ,G. at 497.

15. Jackie Barron Wilson v. The State of Texas 185 S.W. 3rd 481, 489. 2006 TEX . C RIM . A PP. LEXIS 425 (2006).

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)RU H[DPSOH FRXUWURRP UHDOLW\ VKRZV DOVR NQRZQ DV ÂłV\QGL FRXUWV ´ ÂżFWLWLRXVO\ UHSOLcate a courtroom setting, presided over by a robed member of â&#x20AC;&#x153;the judiciary.â&#x20AC;? In fact, many RI WKHVH ÂłV\QGL MXGJHV´ KDYH QHYHU PDGH D MXGLFLDO GHFLVLRQ EHIRUH WKHLU ÂżUVW WHOHYLVLRQ case.16 Those who have been judges often do not behave as if they are subject to an ethical code of judicial conduct.17 By using the look and feel of a courtroom, these shows attempt to convince viewers that The judiciaryâ&#x20AC;&#x2122;s traditional they are watching authentic trials involving response to misinformation or actual litigants.18 In reality, these cases are criticism in the media â&#x20AC;&#x201C; has proven picked for their entertainment value.19 Unlike an actual proceeding, trials can last no ineffective in preventing a decline more a few minutes.20 The rules of evidence in the public trust. or for that matter any law itself has little import to a syndi-judge in deciding the case.21 Regular viewers come to believe that judges are â&#x20AC;&#x153;vocal, active, and opinionatedâ&#x20AC;? on the bench, a view that is not shared by those who do not watch syndi-court shows.22 The participants in these syndi-courts are assigned roles in a morality play, where the only â&#x20AC;&#x153;judicialâ&#x20AC;? determination is who is good and who is evil. The true judicial role of applying the law to factual circumstance is completely lost in what can be called â&#x20AC;&#x153;a â&#x20AC;&#x2DC;Trojan horseâ&#x20AC;&#x2122; packed with an army of misperceptions.â&#x20AC;?23 Media distortions are not limited to entertainment programing. Television news, which averages 64 seconds on a news story during a thirty-minute news broadcast,24 both simpliÂżHV DQG VHQVDWLRQDOL]HV FRXUWURRP SURFHHGLQJV DGGLQJ VLJQLÂżFDQWO\ WR SXEOLF PLVSHUFHStions of how courts operate.25 Both radio and print organizations â&#x20AC;&#x201C; which at one time provided detailed and accurate descriptions of courtroom proceedings â&#x20AC;&#x201C; in response to the changing media environment no longer provide such coverage, focusing instead on the entrainment value of the courtroom proceeding.26

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16. The following shows had â&#x20AC;&#x153;syndi-judgesâ&#x20AC;? who had never served on the bench: Peopleâ&#x20AC;&#x2122;s Court with atWRUQH\ DQG IRUPHU 1HZ <RUN &LW\ PD\RU DQG &RQJUHVVPDQ (G .RFK Eye for an Eye with attorney and former prosecutor â&#x20AC;&#x153;Extreme Akimâ&#x20AC;? Anastopoulo (2004-11), Moral Court starring â&#x20AC;&#x153;Judge Extreme Larry Elder,â&#x20AC;? an attorney and talk-show host (2000-01), Texas Justice with attorney Larry Joe Doherty (2001-05), and La Corte de Familia (Family Court) (2000-05) / Cristinaâ&#x20AC;&#x2122;s Court with attorney Cristina Perez (2006-10). Judge show, Wikipedia, http://en.wikipedia.org/wiki/Judge_show (visited April 6, 2012).

17. See Erika Lane, &XUUHQW 'HYHORSPHQW 7KH 5HDOLW\ RI &RXUWURRP 7HOHYLVLRQ 6KRZV Should the Model Code of Judicial Conduct Apply to T.V. Judges? 20 G EO. J. L EGAL ETHICS 779 (Summer 2007).

18. ,G. at 780.

19. ,G. at 780.

20. ,G. 21. ,G. at 783.

22. Kimberlianne Podlas, %ODPH -XGJH -XG\ 7KH (IIHFWV RI 6\QGLFDWHG 7HOHYLVLRQ &RXUWURRPV RQ -Xrors, 25 A MER . J. TRIAL A DVOCACY 557, 558 (2002).

23. Kimberlianne Podlas, 3OHDVH $GMXVW <RXU 6LJQDO +RZ 7HOHYLVLRQÂśV 6\QGLFDWHG &RXUWURRPV %LDV 2XU Juror Citizenry, p. 21 (2001).

24. Limor Peer, Ed Malthouse, Mary Nesbitt, Bobby Calder, 7KH ORFDO 79 QHZV H[SHULHQFH +RZ WR ZLQ viewers by focusing on engagement, MEDIA M ANAGEMENT CENTER NORTHWESTERN UNIVERSITY p. 46 (2007).

25. S URETTE , supra 45.

26. Richard L. Fox, Robert W. Van Sickel, and Thomas L. Steiger, TABLOID JUSTICE: C RIMINAL JUSTICE IN A N A GE OF M EDIA F RENZ Y p. 6 (2d ed. 2007).

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The Changing Media

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The forces driving the change are the subject of a 2011 report for the Federal Communication Commission. The FCC report found that the most critical factor shaping the media is a sharp decline in advertising revenues, which is transforming the way news is gathered and distributed.27 The FCC analysis found that newspaper advertising revenue dropped by 47 percent in the four-year period ending in 2009.28 In response, newspapers cut editorial spending by $1.6 billion a year,29 resulting in staff reductions at most daily newspapers in the range of 25 percent to 50 percent.30 7KHVH VWDIÂżQJ FXWV UHGXFHG WKH QXPEHU RI SULQW journalists to levels last seen in the early to mid-1970s.31 Similar cuts in television news reduced staff levels by half industry-wide.32 The impact of these cuts and their effect on coverage of the courts is detailed in a section of the FCC report entitled â&#x20AC;&#x153;crime and criminal justiceâ&#x20AC;?: *LYHQ WKDW ORFDO 79 QHZV WHQGV WR IRFXV RQ WKH ODWHVW PXUGHU RU ÂżUH LW LV WHPSWLQJ WR think that we will never have a shortage of crime coverage. But cutbacks at newspapers have meant that coverage of underlying issues â&#x20AC;&#x201C; how well the criminal or civil justice systems work â&#x20AC;&#x201C; has suffered. In most cases, newspapers have not entirely eliminated their coverage of courts, but instead send so few reporters to do so much that reporting has become more reactive and shallow, and less enterprising.33 While praising the work ethic of individual editors and reporters, the FCC report determined that local news outlets no longer have the staff to conduct meaningful in-depth feature stories. Moreover, the cuts have rendered the traditional beat reporter almost extinct.34 Remaining journalists have by necessity become generalists, who lack the time to do more than skim the surface of the stories they are reporting.35 These new generalists PLJKW RQ DQ\ JLYHQ GD\ EH DVVLJQHG WR FRYHU FLW\ HPSOR\HH FRQWUDFW QHJRWLDWLRQV D ÂżUH WKHQ D ORFDO FKLOGUHQÂśV IXQGUDLVHU DQG ÂżQDOO\ D KLJK YLVLELOLW\ FRXUWURRP FDVH 0DQ\ ZLOO do all of this, in the case of print reporters, without leaving their desk, which might now be located in their home.36 Local television and radio reporters are also becoming â&#x20AC;&#x153;one-man bands,â&#x20AC;? who must record and then edit their own material to get it on the air.37 The FCC report suggests that this trend is irreversible, returning journalism to the age of the wire service reporter. These journalists, like hamsters, are running ever faster in SODFH LQ DQ HIIRUW WR FRPSOHWH WKHLU GDLO\ TXRWD RI ÂłVXSHUÂżFLDO VWRULHV ´38

188

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27. See Steven Waldman et al. )HGHUDO &RPPXQLFDWLRQ &RPPLVVLRQ :RUNLQJ *URXS RQ WKH ,QIRUPDWLRQ Needs of Communities), THE I NFOR MATION NEEDS OF C OMMUNITIES: THE C HA NGING M EDIA L A NDSCAPE IN A B ROADBA ND A GE , 46 (July 2011), http://www.fcc.gov/info-needs-communities#read.

28. ,G. at 10 (citing Newsp aper Assoc . of Am., Advertising Expenditures (last updated Mar. 2010), current version available at http://www.naa.org/Trends-and-Numbers/Advertising-Expenditures/AnnualAll-Categories.aspx).

29. ,G. at 12 (citing Rick Edmonds, 6KULQNLQJ 1HZVSDSHUV +DYH &UHDWHG %LOOLRQ 1HZV 'HÂżFLW, POY N TER , Oct. 10, 2009, http://www.poynter.org/latest-news/business-news/the-biz-blog/98784/shrinkLQJ QHZVSDSHUV KDYH FUHDWHG ELOOLRQ QHZV GHÂżFLW/).

30. ,G. at 10.

31. ,G. at 10.

32. ,G. at 10.

33. ,G. at 47 34. ,G. at 11.

35. Dean Starkman, The Hamster Wheel, C OLOMBIA JOUR . R EV. (Sept./Oct. 2010) http://www.cjr.org/ cover_story/the_hamster_wheel.php?page=all.

36. WALDMA N, ET AL . supra note 27, at 45.

37. ,G. at 13.

38. ,G. at 13.

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In an article in the Columbia Journalism Review, Dean Starkman describes this approach of constantly doing more with less as the â&#x20AC;&#x153;hamster wheel.â&#x20AC;?39 He explains that the emphasis on â&#x20AC;&#x153;volume without thoughtâ&#x20AC;? engenders a level of deep passivity in media organizations.40 This passivity, according to a Pew study, creates a dependence on governmental VRXUFHV WKDW JRHV EH\RQG VLPSO\ UHO\LQJ RQ RIÂżFLDO YHUVLRQ RI HYHQWV 41 The 2010 study found that in fact 63 percent of all news in the city of Baltimore was initiated by governPHQW RIÂżFLDOV ZLWK WKH YDVW PDMRULW\ RI FULPH VWRULHV FRPLQJ IURP SROLFH VRXUFHV 42 External control of the information process is sometimes so complete that releases from JRYHUQPHQW RIÂżFLDOV RIWHQ DSSHDU YHUbatim in press accounts.43 Journalists, like hamsters, are Bill Girdner, owner and editor of Courthouse News Service, decried the running ever faster in place in an increasing media dependence on other sources for stories involving the courts: effort to complete their daily quota â&#x20AC;&#x153;When journalists donâ&#x20AC;&#x2122;t have presence RI ÂłVXSHUÂżFLDO VWRULHV ´ (in the courthouse), others control the information process.â&#x20AC;?44

How the New Media Environment Affects the Courts

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Girdnerâ&#x20AC;&#x2122;s concern about who controls the information process is one that judges should share. Sixty-one percent of all lead stories on local news are about crime, disasters or accidents.45 These crime stories generally originate from the police. Media reporting therefore focuses on the brutal facts of the crime in conjunction with the defendantâ&#x20AC;&#x2122;s arrest or arraignment and rarely is a story about how well courts do their job.46 Lawyers and judges are taught in law school that the origins of the American common law lie in the Magna Carta, the Constitution and the Bill of Rights, and that these great documents form the basis of our system of justice. Lawyers study case law as part of an intellectual effort to learn the development of our laws in the context of common law courts.

Little, if any, thought is given to public opinion as the originator of our legal system.

Professor Lawrence M. Friedman asserts that this common legal understanding is wrong and that the publicâ&#x20AC;&#x2122;s attitude toward the courts shapes the justice system through an interaction of three different cultural paradigms.47 7KH ÂżUVW RI WKHVH KH GHÂżQHV DV WKH SRSXODU FXOWXUH RU WKH ÂłQRUPV DQG YDOXHV KHOG E\ ordinary people.â&#x20AC;?48 Friedman claims popular culture is related to â&#x20AC;&#x201C; but distinct from â&#x20AC;&#x201C; the SRSXODU OHJDO FXOWXUH +H GHÂżQHV WKLV VHFRQG FXOWXUH PXFK RI ZKLFK LV GHULYHG IURP WKH PHGLD

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39. Starkman, supra note 35.

40. ,G. 41. +RZ 1HZV +DSSHQV $ 6WXG\ RI WKH 1HZV (FRV\VWHP RI 2QH $PHULFDQ &LW\, P EW R ESEARCH â&#x20AC;&#x2122;C ENTERâ&#x20AC;&#x2122;S P ROJECT FOR E XCELLENCE IN JOUR NALISM , Jan. 11, 2010, http://www.journalism.org/analysis_report/ how_news_happens.

42. ,G. 43. â&#x20AC;&#x2122;,G. 44. WALDMA N, ET AL . supra note 27, at 48.

45. ,G. at 88, citing Prepared Testimony of Tom Rosenstiel, Dir., Pew Research Ctr. Proj. for Excellence in Journalism, FCC Workshop on the Future of Media and the Information Needs of Communities: Serving the Public Interest in the Digital Era (Mar. 4, 2010), available at http://reboot.fcc.gov/futureofmedia/serving-the-publicinterest-in-the-digital-era.

46. ,G. at 47.

47. Lawrence M. Friedman, Law, Lawyers, and Popular Culture, 98 YALE L.J. 1579 (1989).

48. ,G. at 1579.

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as the â&#x20AC;&#x153;ideas and attitudes about law which ordinary people or more generally lay people hold. What the average plumber, secretary or, for that matter, the average investment banker, thinks about courts and lawyers ...â&#x20AC;?49 Finally, he argues that the last of these paradigms is the legal culture, made up of the â&#x20AC;&#x153;ideas, attitudes, values and opinions about law held by SHRSOH LQ D VRFLHW\ ´ LQFOXGLQJ FRQFHSWV ÂłZKLFK DUH VSHFLÂżFDOO\ OHJDO LQ FRQWHQW Âą LGHDV DERXW courts, justice, the police, the Supreme Court, lawyers.â&#x20AC;?50 When a shift in the perception of courts occurs in the popular legal culture, Friedman argues, it will ultimately become embedded in the popular culture.51 In this sense, popular legal culture shapes the popular cultureâ&#x20AC;&#x2122;s attitude about the make-up of the law.52 $ FKDQJH LQ DWWLWXGHV DERXW ODZ LQ WKH SRSXODU FXOWXUH LQĂ&#x20AC;XHQFHV WKH OHJDO FXOWXUH Accordingly, â&#x20AC;&#x153;clues to the legitimacy of courts, and other agencies of law ... are not to be found in the structure of doctrine, or in the formal texts of jurists, but in the broad messages traveling back and forth between the public and the organs of popular culture . . .â&#x20AC;?53 This means that the legal culture is merely â&#x20AC;&#x153;an intervening variable between social innovation and legal change.â&#x20AC;?54 Contrary to law school teachings, in a democracy, the legal system will always be a manifestation of the public culture.55 Therefore, what the public thinks about courts and the law ultimately plays a fundamental role in how courts function.

Studies suggest that wide segments of the popular legal culture are persuaded that judges are not concerned about either high crime levels or crime victims.56 The reality that crime is in decline57 has had almost no impact upon these perceptions.

Media reporting focuses on The disconnect that exists between the courtroom and cultural perception the brutal facts of the crime in feeds widespread popular support for conjunction with the defendantâ&#x20AC;&#x2122;s restricting the judiciary.58 That discontent is also beginning to arrest and rarely is a story about affect the legal culture. According to how well courts do their job. the National Center for State Courts, â&#x20AC;&#x153;2011 saw more efforts to impeach or RWKHUZLVH OHJLVODWLYHO\ UHPRYH VWDWH MXGJHV IURP RIÂżFH WKDQ DW DQ\ SRLQW LQ UHFHQW KLVWRU\ indeed perhaps in all of U.S. history.â&#x20AC;?59 In Iowa, members of the state House of RepresenWDWLYHV ÂżOHG ELOOV RI LPSHDFKPHQW DJDLQVW IRXU 6XSUHPH &RXUW MXVWLFHV EHFDXVH WKH UHSUHsentatives disagreed with the courtâ&#x20AC;&#x2122;s decision that the stateâ&#x20AC;&#x2122;s constitution created the right 49.

50.

51.

52.

53.

54.

55.

56.

190

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,G. at 1580. ,G. ,G. at 1592. ,G. at 1593. ,G. at 1605. ,G. at 1584. ,G. at 1597.

David B. Rottman, 2Q 3XEOLF 7UXVW DQG &RQÂżGHQFH 'RHV ([SHULHQFH ZLWK WKH &RXUWV 3URPRWH RU 'LPLQLVK ,W" C T. R EV., WINTER 1998, 14, 17, aja.ncsc.dni.us/courtrv/cr35-4/CR35-4Rottman.pdf.

57. See Federal Bureau of Investigation, Crime Rates In U.S. Decline (press release) (Sept. 19, 2011). http://www.fbi.gov/news/stories/2011/september/crime_091911/crime_091911.

58. See AM . BAR A SS â&#x20AC;&#x2122;N, O FFICE OF JUSTICE I NITIATIVES , BAR P UBLIC O PINION S URVEYS C ONCER NING L AWYERS A ND THE JUSTICE S YSTEM . (1998).

59. Bill Raftery, <HDU LQ 5HYLHZ 5HFRUG QXPEHU RI LPSHDFKPHQW DWWHPSWV DJDLQVW MXGJHV IRU their decisions, G AVEL TO G AVEL (NAT â&#x20AC;&#x2122;L C TR . FOR S TATE C TS .), Dec. 27, 2011, http://gaveltogavel.us/ site/2011/12/27/2011-year-in-review-record-number-of-impeachment-attempts-against-judges-fortheir-decisions/.

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to marry for same sex couples.60 The New Hampshire legislature used a bill of impeachment issued against a family law master as a â&#x20AC;&#x153;blank checkâ&#x20AC;? to investigate the entire judiciary.61 And there was an effort to impeach a judge in Oklahoma who did nothing more than accept a plea agreement that had been approved by the prosecutor, the victimâ&#x20AC;&#x2122;s parents and the defense attorney in a sex abuse case because members of the legislature disagreed with the deal.62 These political expressions of discontent were not limited to impeachment efforts. A bill passed by the Tennessee legislature would replace the current judicial discipline authority known as the Court of the Judiciary with a new, smaller body and give the speakers of Popular legal culture shapes the House and Senate the power to appoint most of the members.63 In October 2011, the popular cultureâ&#x20AC;&#x2122;s attitude New Jersey Gov. Chris Christie attacked about the make-up of the law. what he claimed were â&#x20AC;&#x153;elitist judgesâ&#x20AC;? while campaigning to win Republican control of the legislature.64 Protesters outside of the Indiana Supreme Court in 2012 carried signs claiming the courtâ&#x20AC;&#x2122;s justices were â&#x20AC;&#x153;enemies of the constitution,â&#x20AC;? as state senators submitted a bill to end merit selection of judges.65 $FURVV WKH QDWLRQ FDQGLGDWHV IRU HOHFWLYH RIÂżFH URXWLQHO\ DWWDFN MXGJHV DQG FDOO IRU UDGLcal changes in the judicial system as part of their campaign rhetoric.66 One presidential candidate went so far as to advocate the arrest of so-called â&#x20AC;&#x153;activist judges.â&#x20AC;?67

60.

61.

62.

63.

64.

66.

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67.

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65.

,G. See H.R. 47, H.R. 48, H.R. 49 and H.R. 50 (IOWA L EGIS . 2011). ,G. See H.R. 7 (N.H. L EGIS . 2011). ,G. See H.R. 1001 (OK. L EGIS . 2011).

See Judicial reforms head to governor, THE TENNESSEA N, Apr. 10, 2012, http://www.tennessean.com/ article/20120410/NEWS0201/304090065/Judicial-reforms-head-governor; and Samuel M. Simpkin, Compromise on TN Court of the Judiciary Picks Up Steam, THE TENNESSEA N, Feb. 22, 2012.

Matt Friedman, *RY &KULV &KULVWLH (OLWLVW -XGJHV 0XVW %H 6WRSSHG, NJ.com, Oct. 26, 2011, http:// www.nj.com/news/index.ssf/2011/10/gov_chris_christie_elitist_jud.html. Christie was reacting to a decision by State Superior Court Assignment Judge Linda Feinberg â&#x20AC;&#x153;that increases in the cost of penVLRQV DQG KHDOWK FDUH EHQHÂżWV IRU MXGJHV DQG MXVWLFHV ZHUH LQ HIIHFW SD\ FXWV WKDW DUH IRUELGGHQ E\ WKH state Constitution.â&#x20AC;? ,G. Sharon Rondeau, &LWL]HQV 3URWHVW ,QGLDQD 6XSUHPH &RXUW 5XOLQJ 4XDVKLQJ )RXUWK $PHQGPHQW Rights, THE POST A ND M AIL , May 26,2011, http://www.thepostemail.com/2011/05/26/citizens-protest-indiana-supreme-court-ruling-quashing-fourth-amendment-rights/. See also Bill Raftery, ,QGLana Senators, Angry Over State Supreme Court Decision, Look to Take Up Efforts to Alter or End Merit Selection, judicial disciplinary commission, G AVEL TO G AVEL (NAT â&#x20AC;&#x2122;L C TR . FOR S TATE C TS) (Jan. 6, 2012), http://gaveltogavel.us/site/2012/01/06/indiana-senators-angry-over-state-supreme-courtdecision-look-to-take-up-efforts-to-alter-or-end-merit-selection-judicial-disciplinary-commission/.

The protests and legislation were in reaction to the courtâ&#x20AC;&#x2122;s decision in Barnes v. State, 946 N.E.2d 572 (Ind. May 12, 2011), adhered to on rehâ&#x20AC;&#x2122;g, 953 N.E.2d 473 (Ind. Sept. 20, 2011) (holding that defendant LQ D PLVGHPHDQRU SURVHFXWLRQ IRU DVVDXOWLQJ D SROLFH RIÂżFHU ZDV QRW HQWLWOHG WR D MXU\ LQVWUXFWLRQ RQ the common law â&#x20AC;&#x153;castle doctrineâ&#x20AC;? right to defend oneâ&#x20AC;&#x2122;s home against invasion).

Peter Hardin, BDFKPDQ 5LSV -XGJHV LQ ,RZD Âą $JDLQ, GavelGrab.com (JUSTICE AT S TAKE), Apr. 12, 2011, http://www.gavelgrab.org/?p=19738; Peter Hardin, â&#x20AC;&#x153;Stop Bullying Judges,â&#x20AC;? Legal Analyst Warns, GavelGrab.com (JUSTICE AT S TAKE), Oct. 17, 2011 (removed from site), Peter Hardin, Controversy Still Sizzles Over Candidates Attacks, GavelGrab.com (JUSTICE AT S TAKE), Nov. 3, 2011 (removed from site).

See, e.g., Amy Gardner & Matt Delong, Newt Gingrichâ&#x20AC;&#x2122;s Assault on â&#x20AC;&#x2DC;Activist Judgesâ&#x20AC;&#x2122; Draws Criticism, Even From Right, WASH. POST, Dec. 17, 2001, http://www.washingtonpost.com/politics/newt-gingrichsDVVDXOW RQ DFWLYLVW MXGJHV GUDZV FULWLFLVP HYHQ IURP ULJKW J,4$R<D 2BVWRU\ KWPO.

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<HW WKH MXGJHV ZKR DUH DW WKH FHQWHU RI WKHVH FRQWURYHUVLHV LQ YLUWXDOO\ DOO FDVHV UHPDLQ silent. Their silence is due, in part, to a perception that the media cannot be trusted to fairly present what happens in a courtroom.68 Many judges treat reporters as adversaries, whose only interest in the justice system is to convert it into a commodity.69 Even some of the most elevated members of the judiciary think nothing good can come of a camera in the courthouse.70 Distrust of the media, however is not the only or even the major reason for extrajudicial silence. Rather, it is an ingrained belief that it is unethical to interact with the press.71

THE ETHICS

OF

E XTR AJUDICIAL SPEECH

The Beginning of a Debate The ethical theory of extrajudicial silence was initially limited to the proposition that a judge should never speak to a journalist about a case that was pending.72 The theory rested upon an assertion that extrajudicial silence was the best way to convey to the public a judgeâ&#x20AC;&#x2122;s commitment to the rule of law.73 Advocates asserted that extrajudicial speech had to be discouraged, as it might â&#x20AC;&#x153;lower public perceptions as to the dignity of the court.â&#x20AC;?74 As Professor William G. Ross, a noted advocate of this theory, wrote: Judges ordinarily should refrain from explaining or defending their decisions even if their critics KDYH LJQLWHG D ÂżUHVWRUP RI KRVWLOLW\ FRPPHQWV DERXW LQGLYLGXDO GHFLVLRQV DUH IDU PRUH OLNHO\ WR subtly erode public respect.75

In other words, a judge should speak for purposes of the record. The only time a judge was encouraged to acknowledge a journalistâ&#x20AC;&#x2122;s presence was through an order issued to control their conduct in court.76 This idea naturally limited reporters to information contained in

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68. N.Y.S. C OMM . TO R EVIEW A UDIOVISUAL C OVER AGE OF C OURT P ROCEEDINGS , A N O PEN C OURTROOM: C A MER AS IN NEW YORK C OURTS AT 46 (1997).

69. (LJKW\ VHYHQ SHUFHQW RI MXGJHV LQ D 1HZ <RUN VXUYH\ DJUHHG WKDW WHOHYLVLRQ FRYHUDJH WUDQVIRUPV VHQVDtional, criminal trials into mass-marketed commercial products. ,G. at 46.

70. )RU LQVWDQFH LQ -XVWLFH 'DYLG 6RXWHU WHVWLÂżHG EHIRUH D +RXVH $SSURSULDWLRQV VXEFRPPLWWHH Âł, think the case is so strong that I can tell you the day you See a camera come into our courtroom, itâ&#x20AC;&#x2122;s going to roll over my dead body.â&#x20AC;? He explained that camera coverage had restricted his questions from the bench in New Hampshire because he worried about being taken out of context with a sound bite on the evening news. Jennifer J. Miller, &DPHUDV LQ &RXUWURRPV 7KH /HQV RI WKH 3XEOLF (\H RQ 2XU System of Justice, 13 S. C AROLINA L AW YER 24 (Mar./Apr. 2002).

71. Judith S. Kaye, 6DIHJXDUGLQJ D &URZQ -HZHO -XGLFLDO ,QGHSHQGHQFH DQG /DZ\HU &ULWLFLVP RI &RXUWV 25 HOFSTR A L. R EV. 703, 711 (1997).

72. Stephan J. Fortunato, Jr., 2Q D -XGJHÂśV 'XW\ WR 6SHDN ([WUDMXGLFLDOO\ 5HWKLQNLQJ WKH 6WUDWHJ\ RI Silence, 12 G EO. J. L EGAL ETHICS 679, 708 (1999).

73. ABA MODEL C ODE OF JUDICIAL C ONDUCT 2007 (as amended Aug. 2010), available at http://www. americanbar.org/content/dam/aba/administrative/professional_responsibility/2010_mcjc_final_for_website.authcheckdam.pdf [hereinafter ABA 2007 C ODE@ 5 $ ([WHUQDO ,QĂ&#x20AC;XHQFHV RQ Judicial Conduct (â&#x20AC;&#x153;A judge shall not be swayed by public clamor or fear of criticism.â&#x20AC;?), http://www. americanbar.org/groups/professional_responsibility/publications/model_code_of_judicial_conduct.html.

74. Response to Criticism of Judges, A.B.A. Jud. Div. Lawyers Conf., (July 1997), available at http://www.americanbar.org/content/dam/aba/migrated/jd/lawyersconf/pdf/response_to_criticism.authcheckdam.pdf.

75. William G. Ross, ([WUDMXGLFLDO 6SHHFK &KDUWLQJ WKH %RXQGDULHV RI 3URSULHW\, 2 G EO. J. L EGAL ETHICS 589, 606 (1989).

76. See Judge Sharen Wilson & Judge Cynthia Stevens Kent, Handling Capital Cases Dealing With the Media, 16 TEX . WESLEYA N L. R EV. 159, 180 (2010).

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WKH RIÂżFLDO FRXUW UHFRUG ZKLOH OHWWLQJ SDVV DQ\ RSSRUWXQLW\ WR FODULI\ WKH FRXUWÂśV RSHUDWLRQV or opinions for the press.

In time, this theory of silence expanded supporting restrictions on extrajudicial speech for all judges on all pending matters, regardless of whether a judge was involved in the matter.77 This then evolved so that judges were urged not to discuss cases, even after matters were decided.78 The evolution of this precept continued so that eventually a state Supreme Court advised that a judge should refrain from speaking to a reporter simply to avoid being misquoted.79 Ultimately, certain advocates began to argue that a judge should be admonished not to engage in any form of public speech, stopping just short of restricting a judgeâ&#x20AC;&#x2122;s ability to teach in a classroom.80 As public attacks on judges increased, proponents of extrajudicial silence began to advocate the creation of state or local bar association committees whose purpose was to defend of the judiciary.81 This move to create judicial defenders acknowledged an essenWLDO SUREOHP 6LOHQFH ZDV QRW SUHYHQWLQJ D GHFOLQH RI SXEOLF WUXVW DQG FRQÂżGHQFH LQ WKH courts.82 Instead of protecting the judiciary, silence instead left the courts defenseless in a sea of public distortions and political attacks that even the newly constituted bar association committees were incapable of tempering.83 Judge Stephen Fortunato Jr. expressed his consternation with the theory of extrajudicial silence when he remarked that the theory could be condensed to the words: â&#x20AC;&#x153;judges FDQÂśW ÂżJKW EDFN ´84 Judge Fortunato elaborated: The conventional wisdom of the legal profession is that the approximately 12,000 men and women who sit on our nationâ&#x20AC;&#x2122;s principal state and federal trial and appellate courts are to sit silently on the sidelines even in the face of false and vitriolic attacks directed at their integrity and impartiality...

(S)ilence in these circumstances is bad politics for those who are committed to an independent judiciary and an appropriate separation of powers, but also that the tradition of judicial nonresponse to criticism is inapposite, if not foolhardy, in the face of the changed nature of the media and public discourse, and that such sparse doctrinal support as there is for imposing silence on MXGJHV UHJDUGLQJ H[WUDMXGLFLDO UHVSRQVHV WR LPSURSHU FULWLFLVP LV XQGHYHORSHG DQG Ă&#x20AC;DZHG 85

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77. William G. Ross, ([WUDMXGLFLDO 6SHHFK 1DYLJDWLQJ 3HULOV DQG $YRLGLQJ 3LWIDOOV, 38 C T. R EV. 36, 36 (Summer 2001).

78. ,G. at 37.

79. See 0DWWHU RI 6KHIÂżHOG 6R G $OD DIÂżUPLQJ WKH &RXUW RI WKH -XGLFLDU\ÂśV ÂżQGLQJ that the judge had violated Canon 3A(6)). The court noted that â&#x20AC;&#x153;the risk of being misquoted, albeit honestly, may enter into the consideration and tilt the balance in favor of â&#x20AC;&#x2DC;no comment.â&#x20AC;&#x2122;â&#x20AC;?

80. See, e.g., Andrew L. Kaufman, -XGLFLDO (WKLFV 7KH /HVV 2IWHQ $VNHG 4XHVWLRQV, 64 WASH. L. R EV. 851, 870 (1989) (â&#x20AC;&#x153;The failure of the Advisory Committee to repeat the Canonâ&#x20AC;&#x2122;s caveat in its most recent opinion may be due to a fear that an H[SDQVLYH UHDGLQJ RI WKH SURKLELWLRQ ZRXOG PDNH LW GLIÂżFXOW IRU judges to engage in law school teaching, ... But one quality teaching may have is that it is exploratory, tentative, informal, and impermanent. Such teaching is different from the typical public speech or article. ... If I had to engage in prudential line drawing, , ZRXOG LQWHUSUHW WKH &DQRQ DV SHUPLWWLQJ WKH former, but not the latter... While that may be â&#x20AC;&#x153;too nice a distinction, the language of Canon 4 seems WR FRQWHPSODWH MXVW WKDW NLQG RI ÂżQH OLQH GUDZLQJ ´ HPSKDVLV DGGHG

81. Abraham G. Gerges, Should the Rules be Changed to Allow Judges to Respond to Criticism? 1 < S T. B.J. 38 (Apr. 1997).

82. Fortunato Jr., supra note 74, at 681- 82.

83. Gerges, supra note 83, at 38.

84. Fortunato, Jr., supra note 74, at 683.

85. ,G. at 681 (emphasis added).

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THE 1990 MODEL C ODE

J

udge Fortunato was associated with a group of scholars and judges who responded to the publication of the American Bar Associationâ&#x20AC;&#x2122;s Model Code of Judicial Conduct in 1990 by collectively arguing that the extrajudicial silence as a theory was fatally flawed. They claimed that the new code, at least by implication, actually supported extrajudicial speech.86 Scholars such as J. Clark Kelso and Erwin Chemerinsky took this argument further, asserting that the new media environment necessitated that judges speak extrajudicially in order maintain judicial independence.87 Professor Chemerinsky argued that both the 1990 Model Code and the First Amendment supported extrajudicial speech: Whatever the reason why a judge speaks during a pending case, the speech is allowed so long as it does not seriously risk undermining the fairness of the proceedings. Under both the Model Code of Judicial Conduct and the First Amendment, judges can speak unless there is a real threat that the comments will materially prejudice the case. Hopefully speech by judges will enlighten and educate the public or, at the very least, allow the public to see judges in a more human light. 88

- &ODUN .HOVR VXPPHG XS WKH QHZ YLHZSRLQW VXFFLQFWO\ Âł7KH VLPSOHVW UXOH D Ă&#x20AC;DW EDQ RQ public, extrajudicial speech by judges on legal topics, makes no sense.â&#x20AC;?89 He, however, TXDOLÂżHG KLV DVVHUWLRQ E\ SRLQWLQJ RXW Âł$Q HTXDOO\ VLPSOH UXOH SHUPLWWLQJ DOO SXEOLF H[WUDjudicial speech, is, in my view, equally problematic.â&#x20AC;?90 In other words, even those who believed that the Model Code allowed extrajudicial speech, accepted that there were circumstances where silence was appropriate. Silence DERXW SHQGLQJ PDWWHUV VKRXOG QRW UHVWULFW WKH PRVW TXDOLÂżHG WXWRUV IURP H[SODLQLQJ WKH fundamentals of our justice system.

As public dissatisfaction with courts gathered momentum, arguments in support of extrajudicial speech found an audience.91 This audience included several members of the ABA joint commission, which was formed in 2003 to revise the 1990 Model Code.92 The revisions that emerged became the 2007 Model Code and included a new approach, which DOORZHG MXGJHV WR ÂżJKW EDFN THE 2007 MODEL C ODE here are, in the United States, 50 different ethical codes that regulate state judges and one that regulates federal judges. While these 51 codes vary, the ethical argument that emerged in the decade of the 1990s was singular and national in scope and focused on the ABAâ&#x20AC;&#x2122;s Model Code.

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E XTR AJUDICIAL SPEECH UNDER

T

194

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86. ,G. at 5. See also infra, note 89.

87. See Erwin Chemerinsky, ,V LW WKH 6LUHQÂśV &DOO -XGJHV DQG )UHH 6SHHFK :KLOH &DVHV DUH 3HQGLQJ, 28 L OYOL A L. R EV. 831, 849 (1995); and J. Clark Kelso, Time, Place, and Manner Restrictions on Extrajudicial Speech by Judges, 28 L OYOL A L. R EV. 851, 853 (1995).

88. Chemerinsky, ,G., at 850.

89. Kelso, supra note 89, at 854.

90. ,G. 91. See, e.g., Fortunato, Jr., supra note 74.

92. In September 2003, the American Bar Association announced the appointment of a Joint Commission to Evaluate the Model Code of Judicial Conduct with a mandate to review the 1990 Model Code and to recommend revisions for possible adoption. See A MER . BAR A SS â&#x20AC;&#x2122;N, JUDICIAL C ODE R EVISION P ROJECT, http://www.americanbar.org/groups/professional_responsibility/policy/judicial_code_revision_project.html.

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The Model Code, as its name implies, is an archetypical judicial code of conduct deVLJQHG WR UHĂ&#x20AC;HFW WKH EHVW FXUUHQW WKLQNLQJ DERXW MXGLFLDO HWKLFV 93 While the Model Code does not have the force of law, variations of it have been incorporated by all but one of the states in their codes of judicial conduct.94 It â&#x20AC;&#x201C; and the Canons the proceeded it â&#x20AC;&#x201C; has, from its inception, been the starting point for any national conversation about judicial ethics.95 The theory of extrajudicial silence was initially drawn from interpretations of earlier versions of the Model Canon and Model Code,96 ZLWK VXEVHTXHQW UHÂżQHPHQWV SRLQWLQJ WR D major shift in favor or extrajudicial speech.97 7KH UHÂżQHPHQWV FRQWDLQHG LQ WKH 0RGHO Code, largely the result of the changes in the media infrastructure, vindicated those who supported extrajudicial speech.

The Preamble The preamble to the 2007 Model Code in Section 1 is identical to its predecessor when LW DIÂżUPV WKDW D MXGJH VKRXOG ÂłVWULYH WR PDLQWDLQ DQG HQKDQFH FRQÂżGHQFH LQ WKH OHJDO system.â&#x20AC;?98 It then enlarges on this responsibility, placing a new burden on the judiciary to preserve â&#x20AC;&#x153;the rule of law.â&#x20AC;?99

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93. The American Bar Associationâ&#x20AC;&#x2122;s Model Code of Judicial Conduct (Model Code) has its origins in 1924, ZKHQ WKH $%$ FUHDWHG WKH ÂżUVW PRGHO &DQRQV RI -XGLFLDO (WKLFV ZKLFK ZDV WR EH D ÂłJXLGH DQG UHPLQGHU to the judiciary,â&#x20AC;? nothing more, http://www.americanbar.org/groups/professional_responsibility/resources/judicial_ethics_regulation.html. In 1972, a Code of Judicial Conduct was drafted to be something more: in effect, a roadmap to the states in order to police judicial conduct. Within 20 years, KRZHYHU WKH FRGH ZDV VHHQ WR EH LQVXIÂżFLHQW ZLWK UHJDUG WR WKH PRGHUQ MXGLFLDO HQYLURQPHQW Therefore, in 1990, the ABA adopted a new Model Code, designed as a template, which allowed for TXLFN PRGLÂżFDWLRQ LQ D FKDQJLQJ MXGLFLDO FOLPDWH ,W KDV EHHQ UHYLVHG WKUHH WLPHV VLQFH 7KH ODVW UHYLsion occurred in 2007, with the ABA expressing the hope â&#x20AC;&#x153;that the Revised [Model] Code will promote national uniformity and be adopted by the highest Court in each state.â&#x20AC;? Amer. Bar Assâ&#x20AC;&#x2122;n, Statement of Commission Chair Mark I. Harrison (2007), http://www.americanbar.org/content/dam/aba/migrated/judicialethics/Chair_Message.pdf.

94. Cynthia Gray, 7KH $%$ 0RGHO &RGH 7DNLQJ -XGLFLDO (WKLFV 6WDQGDUGV WR WKH 1H[W /HYHO, 90 JUDICATURE 284, 292 (May-June 2007). At the time, Montana was using the ABAâ&#x20AC;&#x2122;s 1924 Model Canons. ,G. The state later adopted a code based on the 2007 ABA Model Code. See In the Matter of the 2008 Montana Code Of Judicial Conduct, No. AF 08-0203 (Mont. Dec. 12, 2008), available at http:// supremecourtdocket.mt.gov/view/AF%2008-0203%20Other%20--%20Order?id={7F2426C5-4E874C48-AE15-3E8E997CF8FC}.

95. In spite of the linkage provided by the Model Code, each stateâ&#x20AC;&#x2122;s code of judicial ethics is so different so that it is important to look at the ethical code for the state in which a judge serves before he or she contacts the media.

96. Fortunato, Jr., supra note 74, at 682-83.

97. These revisions can be found in the Canons and Rules themselves, as well as in supporting commentary and reporterâ&#x20AC;&#x2122;s explanation of changes, The reporterâ&#x20AC;&#x2122;s explanation of changes is a document which was drafted based upon the proceedings and record of the commission charged with drafting each version of Model Code, to explain to the ABA House of Delegates the basis for the changes.

98. ABA 2007 C ODE , supra note 75, Preamble [1]: â&#x20AC;&#x153;An independent, fair and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are WKH SUHFHSWV WKDW MXGJHV LQGLYLGXDOO\ DQG FROOHFWLYHO\ PXVW UHVSHFW DQG KRQRU WKH MXGLFLDO RIÂżFH DV D SXEOLF WUXVW DQG VWULYH WR PDLQWDLQ DQG HQKDQFH FRQÂżGHQFH LQ WKH OHJDO V\VWHP ´ 99. ,G.

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The addition of Section 2 to the Preamble strengthens the obligation placed upon judges WR LQVSLUH SXEOLF FRQÂżGHQFH E\ UHSHDWLQJ DQG H[SDQGLQJ RQ WKH ZRUGLQJ RI VHFWLRQ 100 This is a theme that will be repeated throughout the Model Code.101

Canon 1 Canon 1 combines Canons 1 and 2 from the 1990 Code. It opens with the words, â&#x20AC;&#x153;A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary.â&#x20AC;?102 7KH UHSRUWHUÂśV H[SODQDWLRQ LQWHUSUHWV WKHVH ZRUGV DV D UHDIÂżUPDWLRQ RI WKH SUHDPEOHÂśV HPSKDVLV RQ WKH QHHG WR EXLOG SXEOLF WUXVW DQG FRQÂżGHQFH LQ WKH FRXUWV 103 The Commentary to Canon 1 explains that a judge should both anticipate public scrutiny and seek to advance the publicâ&#x20AC;&#x2122;s understanding of our system of justice.104 This is a marked change from the 1990 commentary, which found that â&#x20AC;&#x153;restrictions on extrajudicial speech ... are indispensable to the maintenance of the integrity, impartiality, and independence of the judiciary.â&#x20AC;?105 The reporterâ&#x20AC;&#x2122;s explanation of the changes explained the shift: â&#x20AC;&#x153;As an overarching objective, the Commission deemed it desirable to speak of an ethical duty to promote as well as uphold judicial independence, integrity and impartiality.â&#x20AC;? 106 5XOH UHLQIRUFHV WKH WKHPH RI D MXGLFLDO EXUGHQ WR UDLVH SXEOLF FRQÂżGHQFH 107 In discussing this new language, Comment [6] even supports extrajudicial outreach as a means of meeting this burden: â&#x20AC;&#x153;A judge should initiate and participate in community outreach DFWLYLWLHV IRU WKH SXUSRVH RI SURPRWLQJ SXEOLF XQGHUVWDQGLQJ RI DQG FRQÂżGHQFH LQ WKH DGministration of justice.â&#x20AC;?108 The reporterâ&#x20AC;&#x2122;s explanation calls attention to the addition of Comment [6] stating that it is â&#x20AC;&#x153;new, and is designed to encourage judges to participate in community outreach activity.

Existing ABA policy encourages judges to engage in such activity as a means to promote SXEOLF FRQ¿GHQFH LQ WKH FRXUWV ´ 109

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100. ABA 2007 C ODE , 3UHDPEOH > @ Âł-XGJHV VKRXOG PDLQWDLQ WKH GLJQLW\ RI MXGLFLDO RIÂżFH DW DOO WLPHV DQG avoid both impropriety and the appearance of impropriety in their professional and personal lives.

7KH\ VKRXOG DVSLUH DW DOO WLPHV WR FRQGXFW WKDW HQVXUHV WKH JUHDWHVW SRVVLEOH SXEOLF FRQÂżGHQFH LQ WKHLU independence, impartiality, integrity, and competence.â&#x20AC;?

101. See Reporterâ&#x20AC;&#x2122;s Explanation of Changes, ABA 2007 C ODE , available at http://www.americanbar.org/ content/dam/aba/migrated/judicialethics/mcjc_2007.authcheckdam.pdf, at 2.

102. ABA 2007 C ODE , Canon 1.

103. Reporterâ&#x20AC;&#x2122;s Explanation of Changes, ABA 2007 C ODE , at 6. â&#x20AC;&#x153;Canon 1 combines most of the subject matter of Canons 1 and 2 in the 1990 Code, addressing both the obligation of judges to uphold the independence, integrity, and impartiality of the judiciary and the obligation to avoid impropriety and its appearance. The admonishment that judges avoid not only impropriety but also its appearance is in the text of Canon 1 and in Rule 1.2.â&#x20AC;?

104. ABA 2007 C ODE , 1.2, comment [2]: â&#x20AC;&#x153;A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens, and must accept the restrictions imposed by the Code. [6] A judge should initiate and participate in community outreach activities for the purSRVH RI SURPRWLQJ SXEOLF XQGHUVWDQGLQJ RI DQG FRQÂżGHQFH LQ WKH DGPLQLVWUDWLRQ RI MXVWLFH ,Q FRQGXFWing such activities, the judge must act in a manner consistent with this Code.â&#x20AC;?

105. ABA 1990 MODEL C ODE OF JUDICIAL C ONDUCT (as amended Aug. 1997, Aug. 1999 and Aug. 2003), available at http://www.americanbar.org/content/dam/aba/migrated/judicialethics/2004_CodeofJudicial_Conduct.authcheckdam.pdf [hereinafter ABA 1990 C ODE], Canon 2, Commentary.

106. Reporterâ&#x20AC;&#x2122;s Explanation of Changes, ABA 2007 C ODE , at 6 (emphasis added).

107. ABA 2007 C ODE 5XOH 3URPRWLQJ &RQÂżGHQFH LQ WKH -XGLFLDU\ Âł$ MXGJH VKDOO DFW DW DOO WLPHV LQ D PDQQHU WKDW SURPRWHV SXEOLF FRQÂżGHQFH LQ WKH LQGHSHQGHQFH LQWHJULW\ DQG LPSDUWLDOLW\ RI WKH MXGLciary, and shall avoid impropriety and the appearance of impropriety.â&#x20AC;?

108. ABA 2007 C ODE , Rule 1.2, Comment (6).

109. Reporterâ&#x20AC;&#x2122;s Explanation of Changes, ABA 2007 C ODE , at 9 (emphasis added). http://www.american-

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Extrajudicial Speech

Canon 2 The language of Canon 2 is derived from Canon 3 of the 1990 Code.110 Both stress that a judge must always be and appear to be impartial.111 Rule 2.1 is similar to its predecessor in tone, however, the commentaryâ&#x20AC;&#x2122;s interpretation of this language is quite different.112 The 1990 commentary stated, Sections 3B(9) and (10) restrictions on judicial speech are essential to the maintenance of the integrity, impartiality, and independence of the judiciary. A pending proceeding is one that has EHJXQ EXW QRW \HW UHDFKHG ÂżQDO GLVSRVLWLRQ $Q LPSHQGLQJ SURFHHGLQJ LV RQH WKDW LV DQWLFLSDWHG EXW not yet begun. The requirement that judges abstain from public comment regarding a pending or LPSHQGLQJ SURFHHGLQJ FRQWLQXHV GXULQJ DQ\ DSSHOODWH SURFHVV DQG XQWLO ÂżQDO GLVSRVLWLRQ 113

In contrast, the reporterâ&#x20AC;&#x2122;s explanation of Rule 2.1 in the 2007 version emphasizes the necessity to support judicial involvement in the community: This comment has been added â&#x20AC;Ś to underscore the value of judicial outreach. Although undertakLQJ DFWLYLWLHV WKDW HQFRXUDJH SXEOLF XQGHUVWDQGLQJ RI DQG FRQÂżGHQFH LQ WKH MXVWLFH V\VWHP LV QRW D GXW\ RI MXGLFLDO RIÂżFH SHU VH VXFK DFWLYLWLHV SURPRWH SXEOLF FRQÂżGHQFH LQ WKH FRXUWV DQG WR WKDW extent facilitate the courtsâ&#x20AC;&#x2122; mission.114

Rule 2.10 and its subsections are heavily focused on the issues surrounding extrajudicial VLOHQFH DQG VSHHFK 7KH UHRUGHULQJ RI WKLV UXOH UHĂ&#x20AC;HFWV UHDO FKDQJHV LQ VXSSRUW RI H[WUDMXGLcial speech. ,QLWLDOO\ 5XOH $ GLUHFWO\ DGGUHVVHV WKH VSHFLÂżF FLUFXPVWDQFH QHFHVVLWDWLQJ H[WUDMXdicial silence: A judge shall not make 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, or make any nonpublic statement that might substantially interfere with a fair trial or hearing.115

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7KLV ODQJXDJH LV DOPRVW LGHQWLFDO WR WKH ÂżUVW VHQWHQFH RI &DQRQ % IURP WKH &RGH 116 The commentary explaining subsection (A) also states that this restriction is essential â&#x20AC;&#x153;to the maintenance of the independence, integrity, and impartiality of the judiciary.â&#x20AC;?117 Rule 2.10(D) is a positive restatement of a sentence from its precursor, Cannon 3B(9).118 :KLOH &DQQRQ % GLG QRW IRUELG PDNLQJ SXEOLF VWDWHPHQWV 5XOH ' VSHFLÂżFDOO\ DOORZV MXGJHV WR ÂłPDNH SXEOLF VWDWHPHQWV LQ WKH FRXUVH RI RIÂżFLDO GXWLHV ´119 The shift in emphasis is important, as the Code moves from grudging acceptance to encouragement of extrajudicial statements by judges.

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bar.org/groups/professional_responsibility/publications/model_code_of_judicial_conduct.html 110. ,G. at 12: â&#x20AC;&#x153;Canon 2 addresses solely the judgeâ&#x20AC;&#x2122;s professional duties as a judge, which constitute part of Canon 3 in the 1990 Code.â&#x20AC;?

111. ABA 2007 C ODE &DQRQ $ -XGJH 6KDOO 3HUIRUP WKH 'XWLHV RI -XGLFLDO 2IÂżFH ,PSDUWLDOO\ &RPSHtently, and Diligently.

112. ABA 2007 CODE 5XOH *LYLQJ 3UHFHGHQFH WR WKH 'XWLHV RI -XGLFLDO 2I¿FH ³ 7KH GXWLHV RI MXGLFLDO RI¿FH DV SUHVFULEHG E\ ODZ VKDOO WDNH SUHFHGHQFH RYHU DOO RI D MXGJHœV SHUVRQDO DQG H[WUDMXGLFLDO DFWLYLWLHV ´ 113. ABA 1990 C ODE , Canon 3, Commentary.

114. Reporterâ&#x20AC;&#x2122;s Explanation of Changes, ABA 2007 C ODE , supra note 104, at 13.

115. ABA 2007 C ODE , Rule 2.10, Judicial Statements on Pending and Impending Cases.

116. Reporterâ&#x20AC;&#x2122;s Explanation of Changes, ABA 2007 C ODE , at 24.

117. ABA 2007 C ODE , Rule 2.10, Comment (1).

118. Reporterâ&#x20AC;&#x2122;s Explanation of Changes, ABA 2007 C ODE , at 24.

119. ABA 2007 C ODE , Rule 2.10(D).

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7KH DGGLWLRQ RI 5XOH ( XQGHUVFRUHV WKLV VLJQLÂżFDQW VKLIW DZD\ IURP WKH WKHRU\ RI extrajudicial silence.

Subject to the requirements of paragraph (A), a judge may respond directly or through a third party to allegations in the media or elsewhere concerning the judgeâ&#x20AC;&#x2122;s conduct in a matter.120

The comment explaining this new addition signals that members of the committee were ambivalent about the new rule.121 As the reporterâ&#x20AC;&#x2122;s explanation for this rule observed, It may be appropriate in some instances for statements that explain or defend the role or action of a judge in a particular matter to be made by a third person, rather than by the judge. This suggestion UHĂ&#x20AC;HFWV D SUHIHUHQFH IRU NHHSLQJ WR D PLQLPXP WKH H[WHQW WR ZKLFK MXGJHV GLVFXVV FDVHV GLUHFWO\ with the media.122

The explanation stressed, however, that this new rule does in fact allow a judge to speak extrajudicially: -XGJHV DUH MXVWLÂżDEO\ UHOXFWDQW WR VSHDN DERXW SHQGLQJ FDVHV +RZHYHU WKH &RPPLVVLRQ ZDQWHG to make clear that when a judgeâ&#x20AC;&#x2122;s conduct is called into question, the judge may respond as long as the response will not affect the fairness of the proceeding.123

Canon 3

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Canon 3 begins in substantially the same manner as its antecedent, Canon 4 of the 1990 Code.124 Both require a judge to avoid extrajudicial activities that increase the risk of FRQĂ&#x20AC;LFW ZLWK WKH REOLJDWLRQV RI MXGLFLDO RIÂżFH 125 But while Cannon 4(A) provided that â&#x20AC;&#x153;[a] judge shall conduct all of the judgeâ&#x20AC;&#x2122;s extra-judicial activities so that they do not: (1) cast reasonable doubt on the judgeâ&#x20AC;&#x2122;s capacity to act impartially as a judge; (2) demean the MXGLFLDO RIÂżFH RU LQWHUIHUH ZLWK WKH SURSHU SHUIRUPDQFH RI MXGLFLDO GXWLHV ´126 Rule 3.1 RI WKH 0RGHO &RGH VSHFLÂżFDOO\ HQFRXUDJHV FRPPXQLW\ DFWLYLWLHV VWDWLQJ WKDW ÂłD MXGJH may engage in extrajudicial activities, except as prohibited by law or this Code.127 A comparison of the commentaries accentuates this change in direction. The commentary to the Canon 4(A) explained that â&#x20AC;&#x153;[c]omplete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives,â&#x20AC;?128 while the commentary to the Rule 3.1 suggests that the new rule encourages â&#x20AC;&#x153;[p]articipation in both law-related and other extrajudicial activities,â&#x20AC;? which the commentary says, â&#x20AC;&#x153;helps integrate judges into their communities, and furthers public understanding of and respect for courts and the judicial system.â&#x20AC;?129

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120. ABA 2007 C ODE , Rule 2.10(E), Judicial Statements on Pending and Impending Cases.

121. ABA 2007 C ODE 2007, Comment [3]: â&#x20AC;&#x153;Depending upon the circumstances, the judge should consider whether it may be preferable for a third party, rather than the judge, to respond or issue statements in connection with allegations concerning the judgeâ&#x20AC;&#x2122;s conduct in a matter.â&#x20AC;?

122. Reporterâ&#x20AC;&#x2122;s Explanation of Changes, ABA 2007 C ODE , supra note 104, at 25.

123. ,G. 124. Reporterâ&#x20AC;&#x2122;s Explanation of Changes, ABA 2007 C ODE , at 32: â&#x20AC;&#x153;This renumbered Canon 3 is drawn almost exclusively from Canon 4 of the 1990 Code.â&#x20AC;?

125. ABA 2007 C ODE , Canon 3, A Judge Shall Conduct the Judgesâ&#x20AC;&#x2122;s Personal and Extrajudicial Activities WR 0LQLPL]H WKH 5LVN RI &RQĂ&#x20AC;LFW ZLWK WKH 2EOLJDWLRQV RI -XGLFLDO 2IÂżFH 126. ABA 1990 C ODE , Canon 4(A).

127. ABA 2007 C ODE , Rule 3.1, Extrajudicial Activities in General.

128. ABA 1990 C ODE , Canon 4(A), Commentary.

129. ABA 2007 C ODE , Rule 3.1, Extrajudicial Activities in General.

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Extrajudicial Speech

7KH FKDQJH LQ WKH FRPPHQWDU\ WR 5XOH LV VLJQLÂżFDQW EHFDXVH LW ÂłLV UHVWUXFWXUHG WR permit extrajudicial activities generally.â&#x20AC;?130 The statement is explicit: > @ 7KLV &RPPHQW ZDV UHZRUGHG WR FRQÂżUP WKH VSHFLDO UROH WKDW MXGJHV FDQ SOD\ LQ HQJDJLQJ LQ extrajudicial activities ...In both instances, the sense of the Comment is to be somewhat more encouraging than was the 1990 Code, so that judges will reach out to the communities of which they are a part, and avoid isolating themselves.

6SHFLÂżF H[DPSOHV LQ WKH &RGH ERWK LQ EODFN OHWWHU DYRFDWLRQDO DFWLYLWLHV VXFK DV VSHDNLQJ DQG writing) and in the Commentary (improving criminal and juvenile justice and expressing opposition to the persecution of lawyers and judges in other countries), were removed as unnecessarily UHVWULFWLYH RU RI LQVXIÂżFLHQWO\ JHQHUDO DSSOLFDWLRQ [2] This Comment focuses on the positive value of judges being integrated into the activity of the community. 7KH ÂżUVW SDUDJUDSK RI &RPPHQW WR &DQRQ $ KDG DGGUHVVHG WKDW QRWLRQ LPSOLFLWO\ EXW spoke in terms of judges not becoming isolated from the communities in which they live.131

The shift in the language of Canon 3, like the shift in Rule 2.10(D),132 actually encourages extrajudicial activities.

Canon 3 does, however, contain another, strict prohibition on extrajudicial speech.

Rule 3.5 states that â&#x20AC;&#x153;[a] judge shall not intentionally disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judgeâ&#x20AC;&#x2122;s judicial duties.â&#x20AC;?133 7KLV SURYLVLRQ FRQWDLQV WZR VOLJKW PRGLÂżFDWLRQV IURP WKH &DQQRQ % IURP which it was derived.134 It adds the word â&#x20AC;&#x153;intentionally,â&#x20AC;? which would suggest that a judge PXVW SXUSRVHO\ GLVFORVH WKH LQIRUPDWLRQ 7KH VHFRQG PRGLÂżFDWLRQ JLYHV D MXGJH WKH ULJKW WR disclose â&#x20AC;&#x153;to protect the health or safety of the judge or a member of a judgeâ&#x20AC;&#x2122;s family, court SHUVRQQHO RU RWKHU MXGLFLDO RIÂżFHUV ´135

Canon 4

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&DQRQ RI WKH &RGH VXSHUVHGHV &DQRQ RI WKH &RGH GHÂżQLQJ WKH HWKLFDO OLPLWV of a judgeâ&#x20AC;&#x2122;s political activities.136 The current Rule 4.1 lists the activities a judge is forbidden to do, while Rule 4.2 is concerned with those political activities that a judge may ethically do.137 Among the latter, Rule 4.2(b)(2) specially allows a judge to â&#x20AC;&#x153;speak on behalf of his or her candidacy through any medium ...,â&#x20AC;?138 language that seems to have been changed in recognition of the Supreme Courtâ&#x20AC;&#x2122;s decision that a provision of Minnesotaâ&#x20AC;&#x2122;s &RGH RI -XGLFLDO &RQGXFW ZKLFK SURKLELWHG D FDQGLGDWH IRU MXGLFLDO RIÂżFH IURP JLYLQJ YLHZV RQ GLVSXWHG OHJDO RU SROLWLFDO LVVXHV ZKLOH UXQQLQJ IRU MXGLFLDO RIÂżFH ZDV D YLRODWLRQ RI WKH First Amendment.139

Reporterâ&#x20AC;&#x2122;s Explanation of Changes, ABA 2007 C ODE , supra note 104, at 33. ,G. at 34 (emphasis added).

See supra pages 198-199.

ABA 2007 C ODE , Rule 3.5.

See ABA 1990 C ODE , Canon 3B(12).

ABA 2007 C ODE , Rule 3.5, Comment [2].

ABA 2007 CODE &DQRQ $ -XGJH RU &DQGLGDWH IRU -XGLFLDO 2IÂżFH 6KDOO 1RW (QJDJH LQ 3ROLWLFDO RU Campaign Activity that is Inconsistent with the Independence, Integrity, or Impartiality of the Judiciary.

137. ABA 2007 C ODE , Rule 4.1, Political and Campaign Activities of Judges and Judicial Candidates in General and Rule 4.2 Political and Campaign Activities of Judicial Candidates in Public Elections.

138. ABA 2007 C ODE , Rule 4.2(B)(2).

139. Republican Party of Minnesota v. White, 536 U.S. 765, 788 (2002).

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130.

131.

132.

133.

134.

135.

136.

199

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Extrajudicial Speech

Implications of the Changes in the 2007 Model Code

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In aggregate, the alterations to the 2007 Model Code clearly support extrajudicial speech.

The drafters of the Code, in the face of serious opposition,140 reached the conclusion that the judiciary had an obligation to build public trust and to protect the American system of laws. They concluded that in the current media environment, this means that judges can and should speak to the media.

7KH 3UHDPEOH UHSHDWHGO\ VWDWHV WKDW MXGJHV PXVW VWUHQJWKHQ SXEOLF WUXVW DQG FRQÂżGHQFH in the courts, and ties this imperative to the equally important burden to preserve the rule of law. The drafters of the new code saw a connection between the preservation of our ODZV DQG SXEOLF WUXVW DQG FRQÂżGHQFH DQG FRQFOXGHG WKDW MXGJHV EHDU D VXEVWDQWLDO UROH LQ making this connection. The canons and rules that follow are a roadmap to assist judges in undertaking this new role.

The revisions to Rules 1.2, 2.1, and 3.1 removed the negative language from the 1990 &RGH WR DFWLYHO\ SURPRWH H[WUDMXGLFLDO RXWUHDFK $ MXGJH QRZ KDV DQ DIÂżUPDWLYH GXW\ Âą DOthough not a legal obligation, the Code points out â&#x20AC;&#x201C; to promote public understanding of the justice system.141 The reporterâ&#x20AC;&#x2122;s explanation repeatedly signals that there is a new stratWhile Cannon 3B(9) did not forbid egy for strengthening public trust though extrajudicial conduct, which must include making public statements, Rule speech.142 And, as the drafters understood, ' VSHFLÂżFDOO\ DOORZV MXGJHV opening the courthouse to the community opens it to the media. to â&#x20AC;&#x153;make public statements in the More than opening the courthouse, these FRXUVH RI RIÂżFLDO GXWLHV ´ rule changes suggest that judges should also DIÂżUPDWLYHO\ ZRUN WR HGXFDWH WKH FRPPXQLW\ about the courts. Such education may take many forms, including talking to local reporters, who in turn tell the courtâ&#x20AC;&#x2122;s story to the community. Extrajudicial outreach should not EH FRQÂżQHG WR WKH SUHVV KRZHYHU (DFK SXEOLF VHUYLFH FOXE SUHVHQWDWLRQ RU FRXUW VHVVLRQ conducted in the local high school provides an opportunity to attract press coverage and to convey the courtâ&#x20AC;&#x2122;s concern for the public at large.

The alterations in the 2007 Code swept away the prior language contained in Canon 3(B)(9), with its implication that while extrajudicial outreach was not prohibited, there was something suspect about it.

Rule 2.10(A) still limits extrajudicial speech when a matter is pending, but with the DGRSWLRQ RI 5XOH ( MXGJHV DUH QR ORQJHU SUHYHQWHG IURP ÂżJKWLQJ EDFN LQ WKH IDFH of unfair criticism. The addition of this new rule makes â&#x20AC;&#x153;explicit what was only implicit:

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140. By way of example the American Judicature Society objected to a new exception that allows a judge to â&#x20AC;&#x153;respond directly or through a third party to allegations in the media or elsewhere concerning the judgeâ&#x20AC;&#x2122;s conduct in a matterâ&#x20AC;? subject to other restrictions See Cynthia Gray, The 2007 ABA model code: Taking judicial ethics to the next level, Judicature Volume 90 Number 6 May-June p. 286 (2007).

141. ABA 2007 C ODE 5XOH &RPPHQW > @ Âł$OWKRXJK LW LV QRW D GXW\ RI MXGLFLDO RIÂżFH XQOHVV SUHVFULEHG by law, judges are encouraged to participate in activities that promote public understanding of and FRQÂżGHQFH LQ WKH MXVWLFH V\VWHP ´ See also ABA 1990 C ODE Cannon 3B(9): â&#x20AC;&#x153;A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing.â&#x20AC;?

142. A good example of this is: â&#x20AC;&#x153;Rule 3.1, lead-in is restructured to permit extrajudicial activities generally...â&#x20AC;? Reporterâ&#x20AC;&#x2122;s Explanation of Changes, ABA 2007 C ODE , 33.

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Extrajudicial Speech

non-prejudicial responses to criticism are not banned.â&#x20AC;?143 Extrajudicial speech is now explicitly permitted in the Model Codeâ&#x20AC;&#x2122;s most restrictive ethical context.

Rule 4.2 explicitly allows extrajudicial speech for judges running for election. The modiÂżFDWLRQV WR WKLV UXOH DQG WR &DQRQ PRUH JHQHUDOO\ ZHUH D UHVXOW RI WKH 6XSUHPH &RXUWÂśV decision in Republican Party of Minnesota v. White, striking down restrictions on judicial candidatesâ&#x20AC;&#x2122; speech.144 However, while the decision in White is limited to judicial elections, it seems unlikely that extrajudicial speech that the Model Code permits would be allowed in only that context, while continuing to be restricted in others.

BACKLASH: A NOTHER P ROPOSAL

T

he changes in the media environment and in the Model Code have reshaped the ethical discussion of commentary by judges. Even the advocates of extrajudicial silence recognize the scope of the transformation: ....[E]ducating â&#x20AC;&#x153;the publicâ&#x20AC;? is a daunting task. We recognize that the public is generally undereducated about the role of the judiciary and the implications, ethical and otherwise, of extrajudicial comment. ...We have cause to be realistic, then, in dealing with the public about the ethical implications of extrajudicial comment. ...145

But, while claiming to accept the reality of the changed media environment, the proponents of extrajudicial silence then turn and argue for a rejection of the revisions contained in the Model Code. Instead, they argue for a balancing test that would require judges to refrain from speaking to the media unless there is a greater likelihood of preserving judicial integrity than diminishing it.146 They claim to: .... choose the principled approach premised on our conclusions that silence will, on balance, more faithfully enhance and preserve the integrity and impartiality of the judiciary, and, therefore, silence (with limited exceptions) should be the general rule. ...

Our conclusion that silence is preferable to unfettered extrajudicial comment is reinforced by our belief that the public will, with the assistance of the profession, eventually recognize and appreciate the essential relationship between the limitations on extrajudicial comment and an impartial judiciary.147

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The argument for this balancing test is an effort to reformulate the ethical debate. But even this attempt at reformulation, contains the admission that the Model Code no longer supports severe limits on extrajudicial speech.

The 2007 Model Code now encourages extrajudicial activities including extrajudicial VSHHFK :KLOH WKLV QHZ UROH PLJKW GLVFRQFHUW VRPH MXGJHV WKH\ ZLOO ÂżQG WKDW LW ZLOO LPSURYH SXEOLF WUXVW DQG FRQÂżGHQFH DQG PDNH LW HDVLHU WR FRPSO\ ZLWK PDQ\ RI WKH SURYLVLRQV of the 2007 Model Code.148

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143. Mark Harrison & Keith Swisher, 7UDGHRIIV RI &DQGRU 'RHV -XGLFLDO 7UDQVSDUHQF\ (URGH /HJLWLPDF\" 6\PSRVLXP :KHQ 6KRXOG -XGJHV %H 6HHQ 1RW +HDUG ([WUDMXGLFLDO &RPPHQWV &RQFHUQLQJ Pending Cases and the Controversial Self-Defense Exception in the New Code of Judicial Conduct, 64 1 < 8 $NN. S URV. A M . L . 559, 578 (2009).

144. The reporterâ&#x20AC;&#x2122;s explanation links the changes in Canon 4 to the courtâ&#x20AC;&#x2122;s opinion. Reporterâ&#x20AC;&#x2122;s Explanation of Changes, ABA 2007 C ODE , supra note 104,at 56. See also Republican Party of Minnesota. v. White, supra note 145.

145. Harrison & Swisher, at 610, 611. (Emphasis added) 146. Ross, ([WUDMXGLFLDO 6SHHFK &KDUWLQJ WKH %RXQGDULHV RI 3URSULHW\, supra note 77, at 606.

147. ,G. at 611 (emphasis added).

148. For instance, an open courthouse coveys the impression that the judges are not subject to external LQĂ&#x20AC;XHQFHV ABA 2007 C ODE 5XOH ([WHUQDO ,QĂ&#x20AC;XHQFHV RQ -XGLFLDO &RQGXFW

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GUIDELINES

FOR JUDGES SPEAKING TO THE M EDIA re there ways for judges to ethically work with the media? If so, what are they? What follows is an attempt to answer these questions using the relevant provisions of the 2007 Model Code.

As with any constructive partnership, professional or otherwise, one must work toward an understanding of the parameters that form the basis of the association. In the case of judges and journalists, it is important to accept the possibility that the press is not the enemy of the judiciary. Treating a journalist like an adversary is likely to elicit suspicion and hostility, compromising any relationship potential.

If journalists are approached as professionals who perform a job that is both complex DQG GLIÂżFXOW WKH\ ZLOO EH PRUH LQFOLQHG WR SHUFHLYH DQ RIIHU RI PXWXDO UHVSHFW DQG SRWHQtial antagonisms will be reduced. Civil exchanges that include some degree of transparency FDQ JHQHUDWH XQIRUHVHHQ RSSRUWXQLWLHV IRU FRQVWUXFWLYH H[FKDQJHV WKDW EHQHÂżW ERWK WKH courts and the press.

A

Learn About Who Covers Your Court

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To successfully work with the media it is helpful to understand the distinctions among types of reporters and recognize some of the fundamental elements of their job.

As with judges, there is not one type of news journalist. Broadcast and print reporters are distinct from each other, and newspaper editors are different from television and radio assignment desk editors. All of them need to be understood in terms of their decision-making role before assessing their skills and personality.

Each news organization has a chain of command, and it is useful to understand the different individual roles. For example, depending on the type, size, and organization of a particular news outlet, stories may be assigned by an editor, news director or producer.

News organizations also vary on how material is posted on their websites, blogs, Facebook pages, Twitter feeds and other new media venues. Some organizations allow individual reporters and contributors to post their own material, while others require approval of an editor before posting.

All journalists operate under some form of deadline, and ones with web operations may post stories and updates continuously. Although a judge should not manage a case to meet D SUHVV GHDGOLQH WKHUH LV QR KDUP LQ DFFRPPRGDWLQJ D UHSRUWHUÂśV QHHG WR ÂżOH D UHSRUW on time. Providing this type of assistance is consistent with the judgeâ&#x20AC;&#x2122;s duty to promote SXEOLF FRQÂżGHQFH XQGHU 5XOH DQG WR SHUIRUP DGPLQLVWUDWLYH GXWLHV FRPSHWHQWO\ XQder Rule 2.5(A). It will also affect how the story is covered. The journalist struggling with multiple stories and deadline demands will appreciate any small measure of assistance from the court.

There are also cycles and rhythms to the demands on journalists. There are recurring annual events, such as major holidays, major community events or even Law Day, that are usually part of every news organizationâ&#x20AC;&#x2122;s assignment board. Offering them a story that relates to this topic increases the chance it will be covered.149 Providing such stories is entirely consistent with Rule 2.10 (D), allowing judges to explain court operations and procedures.150

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149. There are other examples. A veteranâ&#x20AC;&#x2122;s treatment court graduation is more likely to be covered near 9HWHUDQV 'D\ $ VSHFLDO SURJUDP GHVLJQHG WR WHVW GUXQN GULYHUV LV D JRRG ÂżW IRU D KROLGD\ SDUWLFXODUO\ 1HZ <HDUÂśV $QG D VSHFLDO DGRSWLRQ SURJUDP ZLOO OLNHO\ JDUQHU PRUH DWWHQWLRQ QHDU 0RWKHUÂśV 'D\ RU Fatherâ&#x20AC;&#x2122;s Day. 150. ABA 2007 C ODE Rule 2.10(D), supra note 104.

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There are also rhythms to emergent news. For example, after a major tragedy journalists will look for a related positive story. A program or a sentencing approach might be the basis for such a positive story. Rule 2.10(D) now encourages this form of extrajudicial outreach, as long as it does not involve a pending case.151

Building a Relationship

Media Management System Judges create management systems designed to accommodate people that are routinely LQ WKH FRXUWKRXVH VXFK DV DWWRUQH\V DQG SROLFH RIÂżFHUV ,Q IDFW VXFK V\VWHPV XVXDOO\ H[LVW for any group of individuals who are regularly in court, except for journalists. Judges have been unwilling to create one for the media, in part because of ethical concerns. With the advent of the new Model Code it is time for this reluctance to end, as all courts should have a media management system.157 ,G. ,G. ABA 2007 C ODE , Rule 1.2.

ABA 2007 C ODE Rule 1.2, comment (2).

ABA 2007 C ODE Rule 2.10 (A).

ABA 2007 C ODE Rule 2.10 (D).

For a guide that might help in creating such a system, See NAT â&#x20AC;&#x2122;L JUDICIAL C OLLEGE & R EY NOLDS NAT â&#x20AC;&#x2122;L C TR . FOR C TS . & M EDIA , I NITIATING A ND M AINTAINING A C ONSTRUCTIVE D IALOGUE: A WORKBOOK FOR

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151.

152.

153.

154.

155.

156.

157.

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A judge should make a point of being known in the journalistic community, in order to become a guide who can accurately explain what happens in a courthouse as allowed by Rule 2.10(D).152 In media terms, the judge then becomes a source, which will create a more positive working relationship.

Rule 1.2 strongly suggests that a judge reach out to members of the community, including members of the media.153 A judge should meet reporters, editors, and assignment desk editors in the local community. Before establishing regular lines of communication, Rule changes suggest that judges a judge should accept the premise that, as in every profession, some journalists are going VKRXOG DOVR DIÂżUPDWLYHO\ ZRUN to be good at what they do and some are to educate the community about less so. Judges should take the time to learn which reporters can be trusted and then the courts. work with them.

Such contacts can include regular lunch meetings. Although these lunches need not have an agenda, the embedded goal is to develop a relationship that allows for better communication. Building this type of relationship lays the foundation for the judge to become a guide to the justice system, consistent with Rule 2.10 (D).

Being a successful guide requires real, if sometimes inconvenient, communication.

When a reporter contacts a judgeâ&#x20AC;&#x2122;s chambers, someone should take the call. If the judge is busy, the call should be returned. Communicating in this manner corresponds with the requirements of Rule 1.2 that a judge should expect, if not welcome, public scrutiny.154 When the calls concern a pending matter, someone should explain to the caller that the Code of Judicial Ethics Rule 2.10(A), or the operative equivalent in the courtâ&#x20AC;&#x2122;s jurisdiction, prevents any comment.155 If the questions are of a more general nature, the judge can address them as allowed under Rule 2.10(D).156

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A media management system begins with a designated liaison, such as a judge or court administrator, who has the task of speaking for the court.158 Members of the media should be provided with that individualâ&#x20AC;&#x2122;s contact information. All inquiries by a journalist should be referred to that person, to ensure there is no violation of Rule 2.10(C) prohibiting staff from making statements about pending matters.159 At the same time, all ancillary staff should be instructed to be polite and helpful in directing the reporter to the spokesperson, in line with the duties imposed under Rule 2.8(B).160 Often reporters will be seeking basic information about a case. In keeping with the general requirements of Canon 2, public facts should be made available to all journalists upon request.161 If the stateâ&#x20AC;&#x2122;s code of judicial ethics allows â&#x20AC;&#x153;off the recordâ&#x20AC;? discussions with reporters, a judge should personally provide the public facts. Reporters will appreciate this act of courtesy, which judges should provide in accordance with Rule 2.8(B). This should also ensure that the reporter has access to the most accurate information.162 The ethical mandate to be courteous is even more important in the courtroom.163 When reporters are in attendance, treating them with courtesy and respect will create a sense of civility and decorum. Over time, journalists will come to appreciate this consideration to WKH FRXUWÂśV EHQHÂżW A judge also has an ethical duty to maintain order in the courtroom under Rules 2.2 and 2.8.164 In furtherance of that duty, a set of rules for the media that are simple, clear and fair should be created, enabling every journalist to comprehend and comply with them. A judge must enforce these rules impartially as directed by Rule 2.2.165 If permitted by the judgeâ&#x20AC;&#x2122;s jurisdiction, designating a press area in the courtroom where cameras, both still and video, can be positioned maintains a sense of order in the courtroom.

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204

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JUDGES & JOUR NALISTS (2008), available at http://www.sji.gov/PDF/Courts_and_the_Media_NJC_ Document.pdf.

158. 0DQ\ FRXUWV GHVLJQDWH WKLV LQGLYLGXDO DV WKH FRXUWœV ³SXEOLF LQIRUPDWLRQ RI¿FHU ´ See Conference of &RXUW 3XEOLF ,QIRUPDWLRQ 2I¿FHUV About Us, CCPIO.org, http://www.ccpio.org/aboutus.htm.

159. ABA 2007 C ODE , supra note 104, Rule 2.10(C).

160. ABA 2007 C ODE 5XOH % Âł VKDOO UHTXLUH VLPLODU FRQGXFW RI ODZ\HUV FRXUW VWDII FRXUW RIÂżFLDOV and others subject to the judgeâ&#x20AC;&#x2122;s direction and control.â&#x20AC;?

161. ABA 2007 C ODE , Cannon 2.

162. ABA 2007 C ODE 5XOH % Âł$ MXGJH VKDOO EH SDWLHQW GLJQLÂżHG DQG FRXUWHRXV WR OLWLJDQWV MXURUV ZLWQHVVHV ODZ\HUV FRXUW VWDII FRXUW RIÂżFLDOV DQG RWKHUV ZLWK ZKRP WKH MXGJH GHDOV LQ DQ RIÂżFLDO FDSDFLW\ DQG VKDOO UHTXLUH VLPLODU FRQGXFW RI ODZ\HUV FRXUW VWDII FRXUW RIÂżFLDOV DQG RWKHUV VXEMHFW WR WKH judgeâ&#x20AC;&#x2122;s direction and control.â&#x20AC;?

163. ABA 2007 C ODE , Rule 2.8 Decorum, Demeanor, and Communication with Jurors (A) A judge shall UHTXLUH RUGHU DQG GHFRUXP LQ SURFHHGLQJV EHIRUH WKH FRXUW % $ MXGJH VKDOO EH SDWLHQW GLJQLÂżHG DQG FRXUWHRXV WR OLWLJDQWV MXURUV ZLWQHVVHV ODZ\HUV FRXUW VWDII FRXUW RIÂżFLDOV DQG RWKHUV ZLWK ZKRP WKH MXGJH GHDOV LQ DQ RIÂżFLDO FDSDFLW\ DQG VKDOO UHTXLUH VLPLODU FRQGXFW RI ODZ\HUV FRXUW VWDII FRXUW RIÂżcials, and others subject to the judgeâ&#x20AC;&#x2122;s direction and control. (C) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding. Comment [1] The duty to hear all proceedings with patience and courtesy is not inconsistent with the duty imposed in Rule 2.5 WR GLVSRVH SURPSWO\ RI WKH EXVLQHVV RI WKH FRXUW -XGJHV FDQ EH HIÂżFLHQW DQG EXVLQHVVOLNH ZKLOH EHLQJ patient and deliberate.â&#x20AC;? (Emphasis added.)

164. ABA 2007 C ODE , Rule 2.2, Impartiality and Fairness (â&#x20AC;&#x153;A judge shall uphold and apply the law, and VKDOO SHUIRUP DOO GXWLHV RI MXGLFLDO RIÂżFH IDLUO\ DQG LPSDUWLDOO\ ´ DQG 5XOH 'HFRUXP 'HPHDQRU and Communication with Jurors (â&#x20AC;&#x153;(A) A judge shall require order and decorum in proceedings before WKH FRXUW % $ MXGJH VKDOO EH SDWLHQW GLJQLÂżHG DQG FRXUWHRXV WR OLWLJDQWV MXURUV ZLWQHVVHV ODZ\HUV FRXUW VWDII FRXUW RIÂżFLDOV DQG RWKHUV ZLWK ZKRP WKH MXGJH GHDOV LQ DQ RIÂżFLDO FDSDFLW\ ´

165. ABA 2007 C ODE , Rule 2.2, Impartiality and Fairness: â&#x20AC;&#x153;A judge shall uphold and apply the law, and VKDOO SHUIRUP DOO GXWLHV RI MXGLFLDO RIÂżFH IDLUO\ DQG LPSDUWLDOO\ ´ VOLUME 2, I SSUE 2

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Camera operators should be assured that there will be time for them to take down their equipment at the end of the proceeding. If necessary, a single pool video camera should be DUUDQJHG WR SUHYHQW FRPPRWLRQ LQ D KLJK SURÂżOH FDVH 6WLOO SKRWRJUDSKHUV VKRXOG EH DGvised to turn the automatic feature off and to be artistic in their shots. All reporters should be informed that interviews are not allowed in the courtroom, and that the jury is completely off limits for interviews and photography. These procedural orders are compatible ZLWK WKH HWKLFDO UHVSRQVLELOLW\ LPSRVHG E\ 5XOH ZKLFK VSHFLÂżHV WKDW D MXGJH PDLQWDLQ order and decorum in a courtroom.166 If space is available in the courthouse, there should be a separate workspace for the media, which includes coffee and electrical outlets. The press should be encouraged to use that area by JXDUDQWHHLQJ WKDW HYHU\ UHSRUWHU ZLOO EH QRWLÂżHG ZKHQ WKH FDVH LV SURFHHGLQJ LQ WKH FRXUWURRP -XGJHV DQG FRXUW RIÂżFLDOV PXVW DOVR HQVXUH WKDW DOO WKH QHZV RUJDQL]DWLRQV DUH JLYHQ equal access to public proceedings involving the case, as mandated by Rule 1.2.167 Each morning, before the dayâ&#x20AC;&#x2122;s proceedings begin, reporters should be provided with any new public information in the case(s) they are covering, pursuant to Rule 2.10(D), along with a brief reminder of the decorum rules in the courtroom .168 This management system will establish control of the courtroom and comply with the mandate of Rule 2.5 to curb any possible interference with the prompt resolution of the case, due, in this circumstance, to the mediaâ&#x20AC;&#x2122;s presence.169

Cautions

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A judge should strive to build credibility with the media by being honest when talking to a reporter, in keeping with Rule 2.1.170 There are certain types of questions that cannot be answered, even off the record, but judges should not become enmeshed in legal detail in explaining that they cannot answer. Simply note that the ethical code prevents a judge from answering. But judges should not use ethical limitations as an excuse to equivocate or to avoid answering a tough question.

There are two areas in the Model Code where extrajudicial speech is strictly limited.

Rule 3.5 prevents a judge from disclosing non-public information.171 A judge also cannot EHQHÂżW QRU KHOS DQRWKHU EHQHÂżW IURP QRQ SXEOLF LQIRUPDWLRQ WKH\ DFTXLUH LQ FRXUVH of their duty.172 In addition, Rule 2.10(A) limits extrajudicial speech when a matter is pending or impending.173 Although it is clear that a judge may not discuss any pending case with the media, knowing when a case is impending poses a certain difficulty.

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166. ABA 2007 CODE, Rule 2.8: â&#x20AC;&#x153;(A) A judge shall require order and decorum in proceedings before the court.â&#x20AC;?

167. ABA 2007 C ODE , Rule 1.2, Comment [4]: â&#x20AC;&#x153;Judges should participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all.â&#x20AC;? (Emphasis added.)

168. ABA 2007 C ODE Rule 2.10 (D): â&#x20AC;&#x153;Notwithstanding the restrictions in paragraph (A), a judge may make SXEOLF VWDWHPHQWV LQ WKH FRXUVH RI RIÂżFLDO GXWLHV PD\ H[SODLQ FRXUW SURFHGXUHV DQG PD\ FRPPHQW RQ any proceeding in which the judge is a litigant in a personal capacity.â&#x20AC;?

169. ABA 2007 C ODE Rule 2.5, comment (4): â&#x20AC;?... A judge should monitor and supervise cases in ways that reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs.â&#x20AC;?

170. ABA 2007 C ODE Rule 2.1, Comment [5]: â&#x20AC;&#x153;Actual improprieties include violations of law, court rules or provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that UHĂ&#x20AC;HFWV DGYHUVHO\ RQ the judgeâ&#x20AC;&#x2122;s honesty LPSDUWLDOLW\ WHPSHUDPHQW RU ÂżWQHVV WR VHUYH DV D MXGJH ´ (Emphasis added.)

171. ABA 2007 C ODE Rule 3.5.

172. ,G. 173. ABA 2007 C ODE , Rule 2.10(A).

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The Model Code says an impending matter is one â&#x20AC;&#x153;that is imminent or expected to occur in the near future.â&#x20AC;?174 Fortunately the media itself will often warn a judge if a matter is impending, through its coverage. Once the coverage starts, judges should not agree to an LQWHUYLHZ HYHQ LI WKH FDVH KDV QRW \HW EHHQ ÂżOHG LQ WKH FRXUWKRXVH In addition, lunch and other social interactions between a judge and a reporter should be avoided during the adjudication of a high visibility case.

Offering Your Opinion in the High Visibility Case

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A judge needs to be articulate when adjudicating a high visibility case, as the press and the public are listening. Given the limitations imposed by Rule 2.10(A), how might a judge convey to the media the reasons for a decision? The answer is in the courtâ&#x20AC;&#x2122;s opinions.

Judges should use clear language in their rulings to facilitate press and public understanding of the decisions. If the decision is straightforward and can be given orally, as in a bench trial verdict, or a decision in a preliminary proceeding, judges should keep it simple.

That not only helps the media, but also the people who are parties or witnesses. It also complies with the requirement of Rule 2.5 Treating a journalist like an not to unnecessarily delay the resolution of adversary is likely to elicit a matter.175 When a matter is complex, it is often suspicion and compromise any helpful to write an opinion but do so relationship potential. quickly. Leaving a high visibility case to linger is a mistake and, if left too long, a violation of Rule 2.5.176 The media can, and perhaps will, question a delay, as will the community, which will lessen respect for the ultimate judgment.

Whether the opinion is written or oral, clear sentences at the beginning should explain the decision in language that is easily understood by a lay audience. After the opinion is delivered, copies should be distributed to every journalist present. Those sentences will probably be repeated the next day by media outlets, serving as precise judicial description of the case to the community. As an aside, those clear sentences will also provide the parties to the litigation a better understanding of the ruling.

Responding to Unfair Criticism A judge may be subjected to unjust criticism but a response, if necessary, must be done ZLWK FDUH ,W LV FULWLFDO WR ÂżUVW GHWHUPLQH LI WKH DSSOLFDEOH FRGH RI MXGLFLDO FRQGXFW DOORZV for an extrajudicial rebuttal, as Rule 2.10 (E) is new177 and many jurisdictions have yet to adopt some variation of it.178 If allowed, a response should be crafted without discussing

206

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174. ABA 2007 C ODE , Preamble, Terminology, Impending Matter.

175. ABA 2007 C ODE 5XOH &RPPHQW > @ Âł,Q GLVSRVLQJ RI PDWWHUV SURPSWO\ DQG HIÂżFLHQWO\ D MXGJH must demonstrate due regard for the rights of parties to be heard and to have issues resolved without unnecessary cost or delay. A judge should monitor and supervise cases in ways that reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs.â&#x20AC;?

176. ,G. 177. ABA 2007 C ODE , Rule 2.10(E): â&#x20AC;&#x153;Subject to the requirements of paragraph (A), a judge may respond directly or through a third party to allegations in the media or elsewhere concerning the judgeâ&#x20AC;&#x2122;s conduct in a matter.â&#x20AC;?

178. According to the A.B.A., as of March 5, 2012, 26 states (Arizona; Arkansas; Colorado; Connecticut; Delaware; District Of Columbia; Hawaii; Indiana; Iowa; Kansas; Maryland; Minnesota; Missouri;

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the merits of the pending case.179 There is also a danger of being seen as self-centered when responding to criticism.180 Therefore any response must be limited, direct and in writing, not framed as an opinion or order, but rather as a letter directed to the media outlet that was the source of the criticism.

Letters of this nature should not be crafted haphazardly, nor delivered in anger. The thematic emphasis must focus on a defense of the justice system and not any personal grievance. If there is a state bar or ethics board which can quickly respond to ethical questions, request a review of the letter before sending it. A critique of the letter by trusted colleagues is another option. After the letter is completed, it should be held overnight and reread the next day.

Once the letter has been sent, the matter is over. No interview requests should be considered, nor replies to any subsequent commentary. The idea here is to correct the error, nothing more. What happens in a courtroom is not about the judge, nor should the response be about the judge. Rather it should be about protecting and promoting the public’s understanding of the justice system.

Telling the Court’s Story

179.

180.

181.

183.

Montana; Nebraska; Nevada; New Hampshire; New Mexico; North Dakota; Ohio; Oklahoma; South Dakota; Tennessee; Utah; Washington; and Wyoming) had adopted new judicial codes based on the 2007 ABA Code, two states (Maine and Mississippi) had proposed but not yet adopted permanent revisions, one state (California) had proposed interim revisions, and 14 states had established committees to review their judicial conduct codes. A.B.A., S TATE A DOPTION OF R EVISED MODEL C ODE OF JUDICIAL C ONDUCT (rev. Mar. 5, 2012), http://www.americanbar.org/groups/professional_responsibility/resources/judicial_ethics_regulation/map.html.

See ABA 2007 C ODE , Rule 2.10(A).

Mark I. Harrison and Keith H. Swisher, supra p. 580.

ABA 2007 C ODE , Rule 1.2, Comment [6]: “A judge should initiate and participate in community outUHDFK DFWLYLWLHV IRU WKH SXUSRVH RI SURPRWLQJ SXEOLF XQGHUVWDQGLQJ RI DQG FRQ¿GHQFH LQ WKH DGPLQistration of justice. In conducting such activities, the judge must act in a manner consistent with this Code.”

ABA 2007 C ODE , Rule 2.4 (C): “A judge shall not convey or permit others to convey the impression WKDW DQ\ SHUVRQ RU RUJDQL]DWLRQ LV LQ D SRVLWLRQ WR LQÀXHQFH WKH MXGJH ´ Many courts now post this material online. A commercial website, www.legaldockets.com, has a lengthy list of links to individual court’s docket websites, organized by jurisdiction.

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182.

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Contact with the media should not be limited to high visibility cases. To promote public understanding, there are times when a judge should reach out to the media, as suggested in Rule 1.2.181 A good framework for reaching out to the media begins with the court’s docket. Providing the local paper with access to the docket suggests to the media – and perhaps to the FRPPXQLW\ DW ODUJH ± WKDW WKH MXGJH LV QRW YXOQHUDEOH WR H[WHUQDO LQÀXHQFH LQ DFFRUGDQFH with Rule 2.4 (C).182 The press receives easy access to the docket, while the court retains control over the materials provided. It also reduces the likelihood that a reporter will be sent to get the docket, and start looking around the courthouse for a story that has not been YHWWHG E\ D MXGJH RU RWKHU FRXUW RI¿FLDOV If the court has the capability, dockets should be posted online.183 If not, the court should set up an email or fax arrangement with the leading news organizations in its community.

There may be times when a court creates a program that the community should be informed about. A standard press release is unlikely to attract as much media attention as once was the case. Today unaccompanied press releases, whether faxed, mailed or emailed, often go directly into the trash. A better approach is based upon relationship with the media;

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one that has already been created. Personal relationships make it easier to penetrate the tangle of coverage requests that reporters get daily. After preparing a short description of the program, the release should be sent to a journalist or editor who has a relationship with the FRXUW &RXUW RIÂżFLDOV PD\ GHFLGH WR RIIHU WKH UHOHDVH H[FOXVLYHO\ WR RQH SDUWLFXODU QHZV RXWOHW 7KH EHVW ZD\ WR HQVXUH WKDW WKH\ UHFHLYH WKH UHOHDVH LV WR FDOO ÂżUVW DQG WHOO WKHP LW LV FRPLQJ ,I possible, the press release should be emailed or faxed to the editor or reporter while the court RIÂżFLDO LV WDONLQJ WR WKHP RQ WKH SKRQH Television and print journalists approach stories differently. Television reporters will want video images: Something more than a judge speaking into a camera. Print reporters may be less interested in visual images but will likely want information in greater depth.

Both will want to know why this is an important story. The short release is the place to explain the importance of the courtâ&#x20AC;&#x2122;s new program to the press and the public.

The beginning of a program is one the best times to get coverage. A program that is new in the country, state or local area will interest a reporter.184 ,W LV LPSRUWDQW WR HPSKDVL]H WKH KXPDQ LQWHUHVW SRUWLRQ RI WKH VWRU\ &RXUW RIÂżFLDOV should ask the individuals or organizations who are working with the court on the program if they would be willing to support it by agreeing to be interviewed. An employee in the courthouse should assist in setting up these interviews.

This approach allows the community to speak on behalf of the courtâ&#x20AC;&#x2122;s program and is consistent with Rule 3.1 and its insistence that judges work with other entities in the community.185 In the event that there are other governmental agencies involved, their participation also conforms to Rule 3.2, which allows judges to share their knowledge and expertise in the administration of justice with other governmental agencies.186 Once the program is up and running, it is important to keep â&#x20AC;&#x201C; and publicize â&#x20AC;&#x201C; statistics, such as how many children were adopted in the child adoption program or how many defendants were re-arrested after entering the drug court. These numbers support the program by showing it is working, while providing an opportunity for media graphics. This approach also creates goodwill with reporters, while telling the story in a favorable light.

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184. Here are some examples: Angie Holdsworth, Valley Veterans Get Help From New Court Program, KNXV-TV (P HOENIX , A RIZ .), ABC15.com, Jan. 20, 2011, http://www.abc15.com/dpp/news/region_ phoenix_metro/central_phoenix/valley-veterans-get-help-from-new-court-program; Crystal Kobza, ':, &RXUW 7DNHV )LHOG 7ULS WR +LJK 6FKRRO $XGLWRULXP <OUTUBE (POSTED BY KOB-TV, FAR MING TON , N.M.), Jan. 20, 2011, http://www.youtube.com/watch?v=eCwjhgFMGb4; Kathleen Gray, Dogs Help Provide Support in Courtrooms, USA TODAY, Feb. 23, 2010, http://www.usatoday.com/news/ nation/2010-02-22-court-dogs_N.htm; John Schwartz, Defendants Fresh From War Find Service Counts in Court, N.Y. TIMES , Mar. 15, 2010, http://www.nytimes.com/2010/03/16/us/16soldiers. html; Leah Beno, Drunken Driver Reform Program Seeks to Expand, FoxTwinCities.com (KMSPTV / MY FOX 9), Mar. 24, 2011, http://www.myfoxtwincities.com/dpp/news/minnesota/drunkendriver-reform-program-seeks-to-expand-mar-24-2011; and Michael Williams, Adoption Day at Salem County Courthouse Marks Creation of New Families, Nj.com, Nov. 19, 2011, http://www.nj.com/ salem/index.ssf/2011/11/adoption_day_at_salem_county_c.html.

185. ABA 2007 C ODE , Rule 3.1, comment [2]: â&#x20AC;&#x153;Participation in both law-related and other extrajudicial activities helps integrate judges into their communities, and furthers public understanding of and respect for courts and the judicial system.â&#x20AC;?www.americanbar.org/groups/professional_responsibility/ publications/model_code_of_judicial_conduct.html.

186. ABA 2007 C ODE , Rule 3.2, comment [1]: â&#x20AC;&#x153;Judges possess special expertise in matters of law, the legal system, and the administration of justice, and may properly share that expertise with governmental ERGLHV DQG H[HFXWLYH RU OHJLVODWLYH EUDQFK RIÂżFLDOV ´

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A relationship built on honesty and trust with the journalistic community will pay dividends. Reporters covering a controversial decision will be more likely to treat the court decisions and rulings with understanding and respect. Stories about court programs will DSSHDU PRUH RIWHQ $QG MXGJHV ZLOO ÂżQG WKDW LW LV HDVLHU WR FRPSO\ ZLWK WKH HWKLFDO REOLJDtion imposed by Rule 2.4â&#x20AC;&#x201D;not to be swayed by public clamor or a fear of media â&#x20AC;&#x201C; when the journalist covering the story knows and respects the judge.187

C ONCLUSION

W

ith the advent of the 24/7 news coverage and the decline in the number of journalists, news organizations are undergoing enormous change. Partially as a result of this new, emerging media environment, the public culture has become increasingly cynical about the courts. Judicial decisions are being politicized, thus threatening to undermine the American system of justice. If these distortions continue unchallenged by those in the judiciary, the attacks will change the legal culture and, consequently, our laws.

To meet these attacks, judges must provide the public with an accurate description RI KRZ MXVWLFH LV DGPLQLVWHUHG &RXUWV KDYH DGDSWHG WR WKH VW FHQWXU\ ZLWK H ÂżOLQJ DQG video conferencing. Judges employ technology to supervise defendants on probation and are experimenting with evidence-based sentencing. In short, the justice system is adjusting to a changing world. The judiciary must also adjust to the changing media environment. Judges can no longer rely on extrajudicial silence as a viable option to maintain SXEOLF WUXVW DQG FRQÂżGHQFH The 2007 Model Code has changed as a result of this new environment and the need for judges to ethically respond to unjust attacks and distortions. The ability to speak extrajudicially, which was once only implied, is clearly expressed in the new Code.

The judiciary must speak in defense of the American system of justice. No one else is doing that now, and no one else can do it better. To paraphrase Justice Brandeis, there are many falsehoods and fallacies about the justice system in the public culture and if the judiciary is silent, no one else will avert the evil through a process of education.188 The remedy for the judiciary is not silence, but extrajudicial speech.

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187. ABA 2007 C ODE , Rule 2.4 (A), Comment [1]: â&#x20AC;&#x153;An independent judiciary requires that judges decide cases according to the law and facts, without regard to whether particular laws or litigants are popular RU XQSRSXODU ZLWK WKH SXEOLF WKH PHGLD JRYHUQPHQW RIÂżFLDOV RU WKH MXGJHÂśV IULHQGV RU IDPLO\ &RQÂżdence in the judiciary is eroded if judicial decision making is perceived to be subject to inappropriate RXWVLGH LQĂ&#x20AC;XHQFHV ´ 188. See Whitney v. California, supra note 2, and accompanying text.

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A Privilege Not a Right: How Prevalent are â&#x20AC;&#x2DC;Cameras in the Court?â&#x20AC;&#x2122; Michael T. Martinez

T

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raditionally, the American judicial system has always been open to public observers.

The Supreme Court recognized this tradition in 5LFKPRQG 1HZVSDSHUV ,QF Y 9LUJLQia, when Chief Justice Warren Burger â&#x20AC;&#x153;concluded that the right of the public and the press to attend criminal trials is guaranteed under the First and Fourteenth Amendments.â&#x20AC;?1 In the plurality opinion in Richmond Newspapers, Burger wrote that while, â&#x20AC;&#x153;â&#x20AC;Śthe modern criminal trial in Anglo-American justice can be traced back beyond reliable historical records[,] â&#x20AC;Śthroughout its evolution, the trial has been open to all who care to observe.â&#x20AC;?2 &LWLQJ OHJDO KLVWRULDQV %XUJHU ZURWH RI WKH EHQHÂżWV RI DQ RSHQ FRXUW V\VWHP 3 â&#x20AC;&#x153;[I]t 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.â&#x20AC;?4 Burger went on to write that enlightenment philosopher Jeremy Bentham â&#x20AC;Śnot only recognized the therapeutic value of open justice but regarded it as the keystone: â&#x20AC;&#x153;WithRXW SXEOLFLW\ DOO RWKHU FKHFNV DUH LQVXIÂżFLHQW LQ FRPSDULVRQ RI SXEOLFLW\ DOO RWKHU FKHFNV DUH RI small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance.â&#x20AC;?5

Bentham also emphasized, that â&#x20AC;&#x153;open proceedings enhanced the performance of all involved, protected the judge from imputations of dishonesty, and served to educate the public.â&#x20AC;?6 In a concurring opinion, Justices William Brennan and Thurgood Marshall wrote that the First Amendment â&#x20AC;&#x153;has a structural role to play in securing and fostering our republi-

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 555 (1980). ,G at 564. ,G at 569. ,G ,G ,G at 569, n.7.

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1.

2.

3.

4.

5.

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can system of self-governmentâ&#x20AC;ŚThe structural model links the First Amendment to that process of communication necessary for a democracy to surviveâ&#x20AC;Śâ&#x20AC;?7 But as society has grown, fewer and fewer members of the public attend trials in person. %XUJHU ZHQW RQ WR ZULWH Âł,QVWHDG RI DFTXLULQJ LQIRUPDWLRQ DERXW WULDOV E\ ÂżUVWKDQG REVHUYDWLRQ RU E\ ZRUG RI PRXWK IURP WKRVH ZKR DWWHQGHG SHRSOH QRZ DFTXLUH LW FKLHĂ&#x20AC;\ WKURXJK the print and electronic media.â&#x20AC;?8 Despite this trend, the Court has found a distinction between print journalists and their electronic brethren, particularly when the latter want to bring the tools of their trade into the courtroom.9 Two other Supreme Court cases, Estes v. Texas and Chandler v. Florida, have addressed the issue of electronic media access to the courts.10 Estes banned cameras in the court and later Chandler, while not overturning Estes VWRSSHG VKRUW RI ÂżQGLQJ WKDW PHPEHUV RI WKH electronic media have the same constitutional right to attend trials if they want to use their electronic equipment. The result is that members of the electronic media must request permission from the presiding judge to attend trials if they want to use cameras and microphones, and the judge has discretion whether to grant permission.

This article will examine the frequency of electronic media access to courtrooms, and how the beliefs, opinions and practices of trial judges have affected this access. This will be accomplished through a survey of state judges, with the results analyzed using the following four sub-questions: 1. How often do state judges allow electronic media access to their courtrooms?

2. How often do state judges allow the use electronic media to blog, tweet or post to the Internet from their courtrooms?

3. How well do the state rules governing electronic media access to courtrooms function as guidance?

4. +RZ FDQ HOHFWURQLF PHGLD FRYHUDJH RI WULDOV IXOÂżOO D GHPRFUDWLF UROH LQ WKH FRPPXQLW\"

HISTORICAL P ERSPECTIVE

T

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he roots of the question of electronic media access to courtrooms must be examined in order to adequately understand the issue.

The 1935 prosecution of Bruno Richard Hauptmann, who was convicted of the kidnapping and murder of Charles and Anne Morrow Lindberghâ&#x20AC;&#x2122;s young son, garnered extensive media attention, in all forms of media at the time: print, radio and newsreels.

In the aftermath of the Hauptman trial, the press was severely criticized for its actions.

Reporters were accused of invading peopleâ&#x20AC;&#x2122;s privacy and newspapers were faulted for printing rumors convicting Hauptman in their columns.11 Inside the courtroom, reporters were partly responsible for the disruptions by frequently sending copy out by messengers.12 An editorial in Editor & Publisher blamed newspapers, radio and newsreels for their part in â&#x20AC;&#x153;degrading the administration of justice.â&#x20AC;?13 ,G at 587-88 (emphasis in original). ,G at 572-73.

See Frank William White, &DPHUDV LQ WKH &RXUWURRP $ 8 6 6XUYH\, 60 JOUR . MONOGR APHS 5 (1979).

See Estes v. Texas, 381 U.S. 532 (1965); and Chandler v. Florida, 449 U.S. 560 (1981).

Richard Kielbowicz, The Story Behind the Adoption of the Ban on Courtroom Cameras, 63 JUDICATURE 14, 19 (1979).

12. ,G 13. Alfred N. Delahaye, The Case of Bruno Hauptman (1935), in THE P RESS ON TRIAL : C RIMES A ND TRIALS

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The ABA established a committee, composed of members of the ABA and representatives from news organizations chaired by Judge Newton D. Baker, to report on the publicity surrounding the Hauptmann trial.14 The committee conceded that “a state criminal trial should be a public trial…and that [p]ublicity is a safeguard against oppression and star chamber tactics.”15 However, the committee was highly critical of the press coverage of The Court has found a distinction the Hauptman trial stating “more newspaper between print journalists and space was devoted to the Hauptmann trial than any other similar event in the history their electronic brethren, of journalism.”16 The committee was formed particularly when the latter to work out standards governing publicity of criminal trials.17 want to bring the tools of their At the 1937 American Bar Association trade into the courtroom.

(ABA) convention, the committee asked the House of Delegates to adopt six recommendations, but asked if they could continue to work on a seventh recommendation they had not resolved – cameras and sound equipment in the court.18 Three days later the same House of Delegates accepted a report from another committee, the Committee of Professional Ethics and Grievances, which proposed a wide range of Canons of Professional and Judicial Ethics, one of which was Canon 35 that banned cameras and recording equipment in the courtroom.19 Canon 35 was adopted without a reading, without discussion and without any reference to the committee report accepted three days earlier.20 The Canon stated: 3URFHHGLQJV LQ FRXUW VKRXOG EH FRQGXFWHG ZLWK ¿WWLQJ GLJQLW\ DQG GHFRUXP 7KH WDNLQJ RI SKRWRgraphs 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.21

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The Canon incorporated three concepts – dignity, decorum and misconception – which will be explored in this research.

All but two states – Texas and Colorado – readily adopted Canon 35, and the ban on electronic media coverage of trials remained in effect for more than 30 years. Finally, in the 1970s, states started opening up and experimenting with access for electronic media in the courts again.22

M EDIA E VENTS 117, 120 (Lloyd Chiasson, Jr., ed., 1997).

Oscar Hallam, Some Object Lesson on Publicity in Criminal Trials, 24 M INN. L. R EV. 453, 455 (1940). ,G at 480. ,G at 484.

Marjorie Cohn & David Dow, C A MER AS IN THE C OURTROOM: TELEVISION A ND THE P URSUIT OF JUSTICE 17 (McFarland and Company, Inc., 1998).

Kielbowicz, supra note 11 at 21.

Joseph Costa, C A MER AS IN THE C OURT : A POSITION PAPER 4 (Communications Report, Ball State University 1980).

Kielbowicz, supra note 11 at 22.

Robert T. McCracken, et al., Recommendations of Changes in the Canons of Professonal and Judicial Ethics, 23 AMER . BAR A SSN. J 635 (1937).

White, supra note 9, at 5-8.

AS

14.

15.

16.

17.

20.

21.

22.

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In 2012, all 50 states now have court rules that allow electronic media in the courtroom in some form, but the degree of access varies quite a bit.23 The range of access varies a great deal, from states that allow wide coverage,24 to states that allow appellate coverage only or that have such restrictive trial coverage rules that they essentially prevent coverage.25 Traditionally, these rules referred to still photography cameras, video cameras and audio recording devices: the domain of radio and television broadcast journalists and photojournalists. However, since the blurring of the lines between electronic and print journalism the advent of multiple media platforms, the growth in the use of the Internet by media outlets and the embrace of social media by news organizations since the 1990s, the GHÂżQLWLRQ RI HOHFWURQLF PHGLD QHHGV WR EH UHGHÂżQHG IRU WKH VW FHQWXU\ 26 Print reporters are now using small video cameras and recording audio for web posts.

Print reporters are now â&#x20AC;&#x153;tweetingâ&#x20AC;?27 and blogging, practices that have made their way into trial reporting.28 Judges are now being faced with reporters who want to use laptops and smart phones to tweet and blog from the courtroom.29 The courts are now faced with determining if the existing court rules can be used to address access requests to use this new technology.

DIFFERING OPINIONS

ON â&#x20AC;&#x2DC;CAMER AS IN THE C OURT â&#x20AC;&#x2122; CASES he Supreme Court has established a right of access to the courts in a quartet of cases30 but has carved out an exception when it comes to the broadcast media. The media have a right of access, but some of the tools used by the media may be stopped at the courthouse door.

The two leading Supreme Court cases on electronic media in courtrooms are Estes and Chandler.31 While the Court arrived at different conclusions in these two cases, it stated that Chandler does not overrule Estes.32 As a result, lower courts differ on which of these FRQĂ&#x20AC;LFWLQJ SUHFHGHQWV WR IROORZ 33

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23. The Radio Television Digital News Association (RTDNA) maintains a web page that links to the court rules governing electronic media access to all the states. See Radio Television Digital News Association, Cameras in the Court: A State-by-State Guide, http://www.rtnda.org/pages/media_items/cameras-in-the-court-a-state-by-state-guide55.php.

24. California and Florida have such rules. See Cal. R. Ct. 1.150 (2012); and Fla. R. Jud. Admin., TECHNO LOGICAL C OVER AGE OF JUDICIAL P ROCEEDINGS § 2.450.

25. Such rules are in place in Indiana and Minnesota. See IND. C ODE JUD. C ON. , R. 2.17 (2010); and M INN. C ODE JUD. C ON., , R. 4 (2011).

26. )RU WKH SXUSRVHV RI WKLV VWXG\ PHPEHUV RI WKH HOHFWURQLF PHGLD ZLOO EH GHÂżQHG DV DQ\ MRXUQDOLVWV XVLQJ electronic devices to record and disseminate the news.

27. This is posting short, 140-character bursts on a website called Twitter.

28. See, e.g., Ron Sylvester, Federal Judge Says 'Twitter Is On', â&#x20AC;&#x153;What the Judge Ate for Breakfastâ&#x20AC;? blog (THE WICHITA E AGLE), Feb. 23, 2009, http://blogs.kansas.com/courts/2009/02/23/federal-judgesays-twitter-is-on/.

29. See, e.g., K. Daniel Glover, Trial by Twitter: Real Time Coverage of the Courts, â&#x20AC;&#x153;JUSTICE 2.0 SOCIAL ORDER IN THE C OURTSâ&#x20AC;? blog, May 16, 2011, http://www.tweetwatchreport.com/justiceweb/trial-by-twitter/ 30. These cases are Richmond Newspapers, Inc. v. Virginia, See note 1, supra; Globe Newspaper Co. v.

Superior Court, 457 U.S. 596 (1982); Press-Enterprise v. Superior Court, 464 U.S. 501 (1984); PressEnterprise v. Superior Court 478 U.S. 1, (1986).

31. See supra note 10.

32. Chandler v. Florida, 449 U.S. 560, 570-74 (1981); See also ,G at 583 (Stewart., J., concurring) (â&#x20AC;&#x153;I canQRW MRLQ WKH RSLQLRQ RI WKH &RXUW EHFDXVH , GR QRW WKLQN WKH FRQYLFWLRQV LQ WKLV FDVH FDQ EH DIÂżUPHG without overruling Estes v. Texas.â&#x20AC;?) (citation omitted).

33. Richard P. Lindsey, An Assessment of the Use of Cameras in State and Federal Courts, 18 G A . L. R EV. 389, 399 (1983-84).

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Estes v. Texas

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34. See, generally, Pam Estes, BILLIE S OL : K ING OF TEX AS WHEELER-D EALERS (1983).

35. See, generally, ,G 36. Marjorie Cohn & David Dow, &DPHUDV LQ WKH &RXUWURRP 7HOHYLVLRQ DQG WKH 3XUVXLW RI -XVWLFH (1998).

37. Estes v. Texas, 381 U.S. 532, 535 (1965).

38. ,G 39. Estes, supra note 34.

40. ,G at 535 (majority).

41. ,G 42. ,G at 536.

43. ,G 44. ,G at 535; Canon of Judicial Ethics, 27 TEX . B. J. 95 (1964).

45. Estes v. Texas at 536.

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Billie Sol Estes was known as the â&#x20AC;&#x153;Texas Wheeler-Dealer.â&#x20AC;?34 (VWHV D 7H[DV ÂżQDQFLHU DQG friend of former President Lyndon Johnson, was convicted of fraud for enticing farmers to buy non-existent fertilizer tanks and equipment and then providing mortgages on WKDW ÂżFWLWLRXV SURSHUW\ 35 He appealed his conviction, claiming that the photographic and broadcast coverage deprived him of a fair trial.36 In a plurality opinion (4-1-4), in 1965 the Supreme Court found that Estes was deprived of his right to due process under the 14th Amendment by televising and broadcasting his trial.37 The Court generally found that there was a high likelihood that the presence of cameras interfered with the trial, but a close reading of all the opinions is necessary to unAll but two states â&#x20AC;&#x201C; Texas and derstand the scope of the Estes ruling.38 The discussion among the six opinions went far Colorado â&#x20AC;&#x201C; readily adopted Canon EH\RQG WKH GXH SURFHVV ÂżQGLQJ WR D GLVFXV35, and the ban on electronic sion of First Amendment rights, the constitutionality of electronic media access to the media coverage of trials remained courts and the possible psychological impact in effect for more than 30 years. on trial participants.

Estesâ&#x20AC;&#x2122; trial drew national attention because of his close ties with President Johnson and his fundraising activities for the Democratic Party.39 According to the Court, Estesâ&#x20AC;&#x2122; national notoriety produced 11 volumes of press clippings just from pre-trial publicity.40 During the pre-trial hearing on whether cameras would be allowed, all the available seats in the courtroom were taken and 30 people stood in the aisles.41 The hearing was â&#x20AC;&#x153;broadcast live by radio and television and still photographs were taken throughout.â&#x20AC;?42 According to the opinion in Estes, â&#x20AC;&#x153;â&#x20AC;Ś [A]t least 12 cameramen were engaged in the courtroom throughout the hearing taking motion and still pictures and WHOHYLVLQJ WKH SURFHHGLQJV &DEOHV DQG ZLUHV ZHUH VQDNHG DFURVV WKH FRXUWURRP Ă&#x20AC;RRU WKUHH microphones were on the judges bench and others were beamed at the jury box and the counsel table.â&#x20AC;?43 All but one other state â&#x20AC;&#x201C; Colorado â&#x20AC;&#x201D; banned cameras in their courts at the time. Texas followed Judicial Canon 28 of the Integrated State Bar of Texas, which left it to the trial judgeâ&#x20AC;&#x2122;s discretion whether to allow the telecasting and photographing of court proceedings.44 The defense in Estes had entered a motion to prevent broadcasting of the trial, which was denied.45

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A motion for a continuance was granted, and when the trial began roughly 30 days later, a booth had been constructed in the back of the courtroom and was painted to blend in with the rest of the walls. â&#x20AC;&#x153;All television cameras and newsreel photographers were restricted to the booth, which had an aperture to allow the lens of the cameras an unreVWULFWHG YLHZ RI WKH FRXUWURRP ZKHQ VKRRWLQJ ÂżOP RU WHOHFDVWLQJ ´46 Live telecasting was prohibited through a great portion of the trial. But at the request of the defense, no camera coverage, still or television, was allowed of the defense summation to the jury.47 Only the opening and closing arguments of the state, the return of the jury verdict and its receipt by the trial judge were carried live with sound.48 The judge permitted the rest of the trial to be recorded without sound, although in fact the cameras operated only intermittently.49 &RYHUDJH ZDV ODUJHO\ FRQÂżQHG WR ÂżOP FOLSV shown on the stations regularly-scheduled newscasts and news commentators would use ÂżOP RI D SDUWLFXODU SDUW RI WKH GD\VÂś DFWLYLWLHV DV EDFNGURS IRU UHSRUWV GXULQJ UHJXODUO\ scheduled newscasts.50 The apparent chaos in the Estes courtroom during trial led the courtâ&#x20AC;&#x2122;s plurality to conclude that television coverage of trials is inherently prejudicial.

Television in its present state and by its very nature, reaches into a variety of areas in ZKLFK LW PD\ FDXVH SUHMXGLFH WR DQ DFFXVHG 6WLOO RQH FDQQRW SXW KLV ÂżQJHU RQ LWV VSHFLÂżF mischief and prove with particularity wherein he was prejudiced. â&#x20AC;Ś Forty-eight of our States and the Federal Rules have deemed the use of television improper in the courtroom.

This fact is most telling in buttressing our conclusion that any change in procedure which ZRXOG SHUPLW LWV XVH ZRXOG EH LQFRQVLVWHQW ZLWK RXU FRQFHSWV RI GXH SURFHVV LQ WKLV ÂżHOG 51 ,Q UHDFKLQJ LWV ÂżQGLQJ WKH &RXUW UHOLHG KHDYLO\ RQ UXOHV DGRSWHG E\ WKH VWDWHV EDVHG RQ the ABAâ&#x20AC;&#x2122;s Canon 35, which banned electronic media in the courts. Justice Clark wrote: â&#x20AC;Ś[A]t this time those safeguards [court rules banning broadcasting] do not permit the televising and photographing of a criminal trial, save in two States and there only under restrictions. The )HGHUDO FRXUWV SURKLELW LW E\ VSHFLÂżF UXOH 7KLV LV ZHLJKW\ HYLGHQFH WKDW RXU FRQFHSWV RI D IDLU WULDO do not tolerate such an indulgence. We have also held that the atmosphere essential to the preservation of a fair trial the most fundamental of all freedoms must be maintained at all costs.â&#x20AC;?52

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Justice Clark was not only concerned with the physical disruption of the trial by the large cameras, cables, microphones and personnel, but perhaps even more so about the psychological impact of cameras on trial participants.53 +H VSHFLÂżFDOO\ GHVFULEHG ZKDW KH VDZ DV dangers to jurors, witnesses, the trial judge and the defendant.54 Regarding the psychological impact on jurors, Justice Clark wrote: The conscious or unconscious effect that [the presence of cameras] may have on the jurorâ&#x20AC;&#x2122;s judgment cannot be evaluated, but experience indicates that it is not only possible but highly probable that it will have a direct bearing on his vote as to guilt or innocence.55

,G at 537. ,G ,G ,G ,G ,G at 544. ,G at 540. ,G at 545-48. ,G ,G at 545.

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Regarding the psychological impact on witnesses, Justice Clark wrote: The impact upon a witness of the knowledge that he is being viewed by a vast audience is simply incalculable. Some may be demoralized and frightened, some cocky and given to overstatement; memories may falter, as with anyone speaking publicly, and accuracy of statement may be severely undermined. Embarrassment may impede the search for the truth, as may a natural tendency toward overdramatization.56

Regarding the psychological impact on the judge, he wrote: Judges are human beings also and are subject to the same psychological reactions as laymen. Telecasting is particularly bad where the judge is elected, as is the case in all save a half dozen of our States. The telecasting of a trial becomes a political weapon, which, along with other distractions inherent in broadcasting, diverts his attention from the task at hand-the fair trial of the accused.57

And regarding the psychological impact on the defendant in a criminal case, Justice Clark wrote: Finally, we cannot ignore the impact of courtroom television on the defendant. Its presence is a form of mental â&#x20AC;&#x201C; if not physical â&#x20AC;&#x201C; harassment, resembling a police line-up or the third degree.[58] The inevitable close-ups of his gestures and expressions during the ordeal of his trial might well transgress his personal sensibilities, his dignity, and his ability to concentrate on the proceedings before him-sometimes the difference between life and death-dispassionately, freely and without the distraction of wide public surveillance.59

-XVWLFH &ODUN ZURWH WKDW WKH GLIÂżFXOW\ RI PHDVXULQJ WKHVH HIIHFWV VKRXOG QRW EH XVHG DV D rationale for ignoring them.

The State would dispose of all these observations with the simple statement that they are for psychologists because they are purely hypothetical. But we cannot afford the luxury RI VD\LQJ WKDW EHFDXVH WKHVH IDFWRUV DUH GLIÂżFXOW RI DVFHUWDLQPHQW LQ SDUWLFXODU FDVHV WKH\ must be ignored.60 -XVWLFH -RKQ 0DUVKDOO +DUODQÂśV FRQFXUULQJ RSLQLRQ SURYLGHG WKH ÂżIWK DQG GHFLGLQJ YRWH for the plurality, and a close reading suggests it sets limits on the plurality opinion. Justice Harlan wrote: 32164-rcm_2-2 Sheet No. 37 Side A

Permitting television in the courtroom undeniably has mischievous potentialities for intruding upon the detached atmosphere which should always surround the judicial process. Forbidding this innovation, however, would doubtless impinge upon one of the valued attributes of our federalism by preventing the States from pursuing a novel course of procedural experimentation. My conclusion is that there is no constitutional requirement that television be allowed in the courtroom, and, at least as to a notorious criminal trial such as this one, the considerations against allowing television in the courtroom so far outweigh the countervailing factors advanced in its support as to require a holding that what was done in this case infringed the fundamental right to a fair trial assured by the Due Process Clause of the Fourteenth Amendment.â&#x20AC;?61 â&#x20AC;Ś [W]e should not be deterred from making the constitutional judgment which this case demands by the prospect that the day may come when television will have become so commonplace an affair

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56. ,G at 547.

57. ,G at 548.

58. Âł7KH WKLUG GHJUHH LV D HXSKHPLVP IRU WKH ÂľLQĂ&#x20AC;LFWLQJ RI SDLQ SK\VLFDO RU PHQWDO WR H[WUDFW FRQIHVVLRQV or statements.â&#x20AC;&#x2122;â&#x20AC;? Wikipedia, http://en.wikipedia.org/wiki/Third_degree_%28interrogation%29 (visited Mar. 16, 2012), quoting Jerome Herbert Skolnick, A BOVE THE L AW : POLICE A ND THE E XCESSIVE USE OF FORCE 43 (1994).

59. Estes v. Texas, 381 U.S. at 549.

60. ,G at 550.

61. ,G at 587.

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A Privilege Not a Right in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process. If and when that day arrives the constitutional judgment called for now would of course be subject to re-examination in accordance with the traditional workings of the Due Process Clause.62

Justice Harlan agreed that the right of due process was violated in the Estes case, and he was not prepared to state that the broadcast media had a constitutional right of access to the courtroom. But he envisioned a future where television would no longer be an anomaly, and where perhaps it would be acceptable in courts.

Perhaps Justice William Brennanâ&#x20AC;&#x2122;s dissent made this point most clearly: â&#x20AC;Ś [T]odayâ&#x20AC;&#x2122;s decision is not a blanket constitutional prohibition against the televising of state criminal trials. , ZULWH PHUHO\ WR HPSKDVL]H WKDW RQO\ IRXU RI WKH ÂżYH -XVWLFHV YRWLQJ WR UHYHUVH UHVW RQ WKH SURSRVLWLRQ WKDW WHOHYLVHG FULPLQDO WULDOV DUH FRQVWLWXWLRQDOO\ LQÂżUP ZKDWHYHU WKH FLUFXPVWDQFHV $OWKRXJK the opinion announced by my Brother CLARK purports to be an â&#x20AC;&#x2DC;opinion of the Court,â&#x20AC;&#x2122; my Brother +$5/$1 VXEVFULEHV WR D VLJQLÂżFDQWO\ OHVV VZHHSLQJ SURSRVLWLRQ 63

The Courtâ&#x20AC;&#x2122;s ruling in Estes established three things. First, it set a precedent that the high likelihood of prejudicial interference was enough to bar cameras from the courtroom and that the defendant did not have to prove actual harm. Second, that concern over the posVLEOH SV\FKRORJLFDO HIIHFWV RI FDPHUDV RQ WULDO SDUWLFLSDQWV ZDV D VXIÂżFLHQW UHDVRQ WR EDQ electronic media access to the courts, an argument that opponents of electronic media access to the courts still use today. And third, that even though the plurality of four justices EHOLHYHG WKDW HOHFWURQLF PHGLD SUHVHQFH LQ WKH FRXUWURRPV ZDV XQFRQVWLWXWLRQDO WKH ÂżIWK FRQFXUULQJ YRWH E\ -XVWLFH +DUODQ WHPSHUHG WKDW ÂżQGLQJ E\ DW OHDVW EHLQJ RSHQ WR WKH SRVsibility that cameras in courts did not necessarily make a court procedure unfair.

Chandler v. Florida

,G at 595-96. ,G at 617.

Chandler v. Florida, 449 U.S. 560, 567, 570 (1981). ,G at 568. ,G ,G at 584.

See discussion of Estes, supra page 212.

Chandler at 579.

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62.

63.

64.

65.

66.

67.

68.

69.

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Sixteen years later, in 1981, the Court did revisit the issue, as Justice Harlan predicted in Estes. Noel Chandler and Robert Granger, two Miami Beach policemen who were convicted of breaking and entering a popular Miami Beach restaurant, appealed their conviction RQ EXUJODU\ DQG RWKHU UHODWHG FKDUJHV FLWLQJ WKH (VWHV ÂżQGLQJ WKDW WKH SUHVHQFH RI FDPHUDV in the court had a high likelihood of interfering with their trial.64 Their case caught the attention of the media, and a local television station was present in the courtroom for the testimony of an amateur radio operator who overheard and recorded Chandler and Granger as they spoke on police walkie-talkies during the break-in.65 The cameras were also present for the closing arguments of the trial.66 In an 8-0 decision, the Supreme Court found that Chandler and Granger had not demonstrated â&#x20AC;&#x153;prejudice of constitutional dimensions.â&#x20AC;?67 7KLV ÂżQGLQJ GLIIHUHG IURP WKH Estes court plurality, which found that the defendant did not need to demonstrate prejudice.68 In Chandler, the Court shifted the burden of proof to the defendants to show that damage had been done.69 Using this new formulation, Chief Justice Burger wrote in Chandler that

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,G ,G at 564. ,G ,G at 564-65. ,G at 567. ,G ,G ,G ,G ,G ,G at 568. ,G ,G ,G ,G

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70.

71.

72.

73.

74.

75.

76.

77.

78.

79.

80.

81.

82.

83.

84.

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â&#x20AC;&#x153;[t]he appellants have offered nothing to demonstrate that their trial was subtly tainted by broadcast coverage â&#x20AC;&#x201C; let alone that all broadcast trials would be so tainted.â&#x20AC;?70 However, the Chandler FRXUW VWRSSHG VKRUW RI DIÂżUPLQJ D )LUVW $PHQGPHQW ULJKW RI FRXUWURRP DFFHVV E\ the electronic media.

Florida was experimenting with cameras in the courts during the time of Chandler and Grangerâ&#x20AC;&#x2122;s trial. In January 1976, the Supreme Court of Florida instituted an experimental program for televising one criminal trial and RQH FLYLO WULDO XQGHU VSHFLÂżF JXLGHOLQHV 71 ,Q DOO VWDWHV QRZ KDYH These guidelines required the consent of all parties, but in practice no consent could ever court rules that allow electronic be obtained.72 The Florida Supreme Court media in the courtroom in some then supplemented its order in July 1977, establishing a new one-year pilot program that form, but the degree of access did not require consent of the parties.73 varies quite a bit.

In a pretrial motion, the defense sought to have Floridaâ&#x20AC;&#x2122;s camera in the courts experiment â&#x20AC;&#x153;declared unconstitutional on its face and as applied.â&#x20AC;?74 The trial court denied the motion.75 During jury selection, the defense â&#x20AC;&#x153;asked each prospective juror whether he or she would be able to be â&#x20AC;&#x2DC;fair and impartialâ&#x20AC;&#x2122; despite the presence of a television camera during some, or all, of the trial.76 Each juror selected responded that such coverage would not affect his or her consideration in any way.â&#x20AC;?77 The trial judge then denied a defense motion to sequester the jury because of the television coverage.78 However, the court instructed the jury not to watch or read anything about the case in the media, and suggested that jurors â&#x20AC;&#x153;avoid the local news and watch only the national news on television.â&#x20AC;?79 The defense then requested that the judge instruct witnesses not to watch any television accounts of testimony presented at trial.80 The judge declined because â&#x20AC;&#x153;no witnessâ&#x20AC;&#x2122; testimony was [being] reported or televised [on the evening news] in any way.â&#x20AC;?81 The television camera was initially in place only for one afternoon, during the amateur radio operatorâ&#x20AC;&#x2122;s testimony.82 No camera was present for any part of defenseâ&#x20AC;&#x2122;s case, but the camera returned to cover closing arguments.83 Only 2 minutes and 55 seconds of the trial were broadcast, and those depicted only the prosecutionâ&#x20AC;&#x2122;s side of the case.84

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&KDQGOHU DQG *UDQJHU DSSHDOHG EDVHG RQ WKH (VWHV UXOLQJ VSHFLÂżFDOO\ &KLHI -XVWLFH Warrenâ&#x20AC;&#x2122;s separate concurring opinion in that case.85 They argued that the televising of criminal trials was inherently a denial of due process and that Estes had announced a per se constitutional rule to that effect.86 Chief Justice Burger disagreed with this characterization, writing instead in the Courtâ&#x20AC;&#x2122;s opinion that â&#x20AC;&#x153;[t]he question presentedâ&#x20AC;Śis whether, consistent with constitutional guarantees, a state may provide for radio, television, and still photographic coverage of a criminal trial for public broadcast, notwithstanding the objection of the accused.â&#x20AC;?

Burger continued: The six separate opinions in Estes must be examined carefully to evaluate the claim that it represents a per se constitutional rule forbidding all electronic coverage. Chief Justice Warren and Justices Douglas and Goldberg joined Justice Clarkâ&#x20AC;&#x2122;s opinion announcing the judgment, thereby FUHDWLQJ RQO\ D SOXUDOLW\ -XVWLFH +DUODQ SURYLGHG WKH ÂżIWK YRWH QHFHVVDU\ LQ VXSSRUW RI WKH MXGJment. In a separate opinion, he pointedly limited his concurrence: â&#x20AC;&#x153;I concur in the opinion of the Court, subject, however, to the reservations and only to the extent indicated in this opinion.â&#x20AC;?87 â&#x20AC;Ś[W]e conclude that Estes is not to be read as announcing a constitutional rule barring still photographic, radio, and television coverage in all cases and under all circumstances. It does not stand as an absolute ban on state experimentation with an evolving technology, which, in terms of modes of mass communication, was in its relative infancy in 1964, and is, even now, in a state of continuing change.88

The Court in Chandler accomplished three things. First, it clearly stated that Estes did not establish a per se constitutional ban on electronic media access to the courts. Second, it established a requirement that appellants must show some evidence that the trial was DIIHFWHG E\ WKH HOHFWURQLF PHGLD SUHVHQFH $QG ÂżQDOO\ LW HVWDEOLVKHG WKDW VWDWHV KDYH WKH right to allow electronic media into the courts.

THE CAMER AS MOVE I N

B

32164-rcm_2-2 Sheet No. 38 Side B

y the time the U.S. Supreme Court issued its opinion in Chandler in 1981, several states were either experimenting with cameras in courtrooms or allowing them on a permanent basis.89 This included Florida, which made its pilot program with cameras in the courts permanent in 1979.90 7KH )ORULGD FRXUW ZDV RI WKH YLHZ WKDW EHFDXVH RI WKH VLJQLÂżFDQW HIIHFW RI WKH FRXUWV RQ WKH GD\ WR GD\ OLYHV RI WKH FLWL]HQU\ LW ZDV HVVHQWLDO WKDW WKH SHRSOH KDYH FRQÂżGHQFH LQ WKH SURFHVV ,W IHOW that broadcast coverage of trials would contribute to wider public acceptance and understanding of decisions.91 85.

86.

87.

88.

89.

90.

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,G ,G ,G at 570-71 (quoting Estes, 381 U.S. at 587) . ,G at 572-74. ,G at 565, n.6. ,G at 565. After evaluating research of its experimental progrma, the Florida Supreme Court concluded â&#x20AC;&#x153;that on balance there [was] more to be gained than lost by permitting electronic media coverage of judicial proceedings subject to standards for such coverage.â&#x20AC;? ,G (quoting In re Petition of PostNewsweek Stations, Florida, Inc., 370 So.2d 764, 780 (1979)). The Florida Supreme Court revised its 1977 guidelines and adopted a revised Canon 3A(7), giving the judge â&#x20AC;&#x153;sole and plenary discretion to exclude coverage of certain witnesses,â&#x20AC;? and to â&#x20AC;&#x153;forbid coverage whenever â&#x20AC;Ś that coverage may have a GHOHWHULRXV HIIHFW RQ WKH SDUDPRXQW ULJKW RI WKH GHIHQGDQW WR D IDLU WULDO ´ 7KH FRXUW DOVR EDUUHG ÂżOPing of jurors, and reserved the right to â&#x20AC;&#x153;revise these rules as experience dictates, or indeed to bar all broadcast coverage or photography in courtrooms.â&#x20AC;? ,G 91. ,G at 565-66.

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$V D UHVXOW WKH )ORULGD 6XSUHPH &RXUW UHYLVHG WKH JXLGHOLQHV WR UHĂ&#x20AC;HFW LWV HYDOXDWLRQ of the pilot program and established a revised Canon 3A(7).92 The Florida Supreme Court instituted the revised Canon based upon its supervisory authority over the Florida courts.93 In Chandler, the U.S. Supreme Court had only the limited question of the Florida courts allowing camera coverage of trials of cases violated the Constitution.94 Courts in all 50 states may allow some form of electronic media access, but it is still a privilege, granted at the discretion of the presiding judge, as opposed to a right guaranteed by the First Amendment.95 Some states are very open to electronic media coverage, while other states have court rules that are so restrictive making access virtually non-existent.

The Radio Television Digital News Association has categorized the states into three tiers of access.96 7KH ÂżUVW WLHU LV WKH VWDWHV WKDW DOORZ WKH PRVW FRYHUDJH 97 Tier II is composed of states with restrictions prohibiting coverage of important types of cases, or prohibiting coverage of all or of large categories of witnesses who object to coverage of their testimony.

The third tier is composed of states that allow appellate coverage only or that have such restricting trial coverage rules that essentially prevent coverage.98

TRIAL JUDGESâ&#x20AC;&#x2122; ATTITUDES TOWARD E LECTRONIC C OVER AGE

T

hroughout this spectrum of access, the decision to grant permission still comes down to an individual â&#x20AC;&#x201C; the judge â&#x20AC;&#x201C; and is necessarily based, at least in part, on that individualâ&#x20AC;&#x2122;s attitude towards the media. Much has changed since the Estesâ&#x20AC;&#x2122; decision, both philosophically and technologically. Through an Internet-based survey, this study sought WR ÂżQG RXW WKH SUDFWLFHV EHOLHIV DQG RSLQLRQV RI MXGJHV UHJDUGLQJ HOHFWURQLF PHGLD DFFHVV DW the trial level.

Survey Methodology

92.

93.

94.

95.

96.

99.

100.

,G at 566. ,G at 569-70. ,G at 570.

Kenneth Jost, Cameras in the Courtroom, CQ R ESEARCHER , Jan. 14, 2011, at 28, 40, 42.

Radio Television Digital News Association, C A MER AS IN THE C OURT : A S TATE -B Y-S TATE G UIDE , http:// www.rtnda.org/pages/media_items/cameras-in-the-court-a-state-by-state-guide55.php. ,G Ryan Murphy, Cameras in the Court State-by-State Map (R ADIO TELEVISION NEWS D IRECTORS A S SOCIATION 2011). Personal correspondence, May 25, 2011.

Earl Babbie, THE P R ACTICE OF S OCIAL R ESEARCH 244 (11th ed. 2007).

Jennifer Mason, Q UALITATIVE R ESEARCHING 94 (1996). To address validity, it is important in purposeful sampling to include both study samples that may support the argument, as well as those that may not.

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97.

98.

32164-rcm_2-2 Sheet No. 39 Side A

Survey research is an effective vehicle for measuring attitudes and orientations of large populations.99 The purpose of the survey research was to reach the actual decision-makers and study the practices that take place in individual jurisdictions. All state judges who SUHVLGH RYHU WULDO FRXUWV LQ ÂżYH SXUSRVHIXOO\ VHOHFWHG VWDWHV ZHUH FRQWDFWHG YLD HPDLO DQG LQ one instance via surface mail and invited to participate in the survey.

7KH ÂżYH VWDWHV Âą $UNDQVDV )ORULGD .DQVDV 7HQQHVVHH DQG 7H[DV Âą ZHUH QRW UDQGRPO\ selected but instead were chosen to make sure there was a variety in the range of access by the electronic media among the states included in the study.100

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A Privilege Not a Right

101.

102.

103.

104.

105.

106.

107.

108.

109.

Radio Television Digital News Association, supra note 93.

Fla. R. Jud. Admin., Technological Coverage of Judicial Proceedings § 2.450.

TENN. CODE ANN. VOL. 5A, Rules of the TennesSee Supreme Court, Rule 30 (2007). ,G TEX. R. CIV. PROC., Rule 18c, Recording and Broadcasting of Court Proceedings (2010) and TEX. R. APP. PROC., Rule 14, Recording and Broadcasting Court Proceedings (2008).

S UPREME C OURT OF TEX AS , R EPORT ON C A MER AS IN THE C OURTROOM A ND M EDIA G UIDELINES (2002), available at http://www.supreme.courts.state.tx.us/rules/scac/sep-2002/2.2%20report.pdf Thomas S. Leatherbury & John D. Thompson, Cameras in the Courtroom, in The Texas Freedom of ,QIRUPDWLRQ +DQGERRN (F REEDOM OF I NFOR MATION FOUNDATION OF TEX AS 2010), http://www.foift. org/foihandbook/index.php?page=chapter&ch=11#g0.

K A N. C T. R. & P RO., Rule 1001, Media Coverage of Judicial Proceedings (1999).

ARK. CODE ANN., Administrative Orders of the Supreme Court, Order 6. Broadcasting, Recording or Photographing in the Courtroom (1987).

See Sylvester supra QRWH DQG -DPLH 6DWWHUÂżHOG#MDPLHVFRRS 1HZV 6HQWLQHO UHSRUWHU FRYHULQJ WKH courts, twitter (Knoxville News Sentinel), https://twitter.com/#!/jamiescoop. Note that Ron Sylvester left The Wichita Eagle in 2012. See Ron Sylvester, (tweet), Jan. 30, 2012, https://twitter.com/#!/rsylvester/status/164097858340007938 (â&#x20AC;&#x153;My tweets will be changing in coming weeks, as I move from @ kansasdotcom to work w/ @robcurley, covering the casino beat @LasVegasSunâ&#x20AC;?).

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110.

32164-rcm_2-2 Sheet No. 39 Side B

$OO WKUHH WLHUV RI DFFHVV DV GHÂżQHG E\ 57'1$ DUH UHSUHVHQWHG LQ WKH VHOHFWHG VWDWHV Florida and Tennessee are Tier I states; Texas and Kansas are included in Tier II; and Arkansas is included in Tier III101 The court rules in Florida, a Tier I state, presume that electronic and still photography will be allowed in trials and any decision by a judge to bar the electronic media is subject to appeal.102 In the other Tier I state in the study, Tennessee, court rules state that media coverage shall be allowed subject to the authority of the presiding judge.103 Before denying, limiting, suspending or terminating media coverage the judge must hold an evidentiary hearing and the burden of proof shall be on the party seeking limits on media coverage.104 The court rules in Texas, a Tier II state, permit electronic media coverage of civil and appellate proceedings.105 Any objection WR PHGLD FRYHUDJH PXVW VWDWH VSHFLÂżF DQG The Chandler court stopped short demonstrable injury alleged from the media coverage.106 But the Texas Supreme Court RI DIÂżUPLQJ D )LUVW $PHQGPHQW rules do not apply to criminal trial courts right of courtroom access by the and, without guidance from the Court of Criminal Appeals, individual criminal court electronic media. trial judges may decide whether to allow electronic media access to their court.107 In Kansas, also a Tier II state, the court rules provide that the news media may photograph and record public proceedings, but that the trial judge shall prohibit the audio recording or photographing of a victim or witness of a crime if that participant requests such a ban.108 The court rules in Arkansas, a Tier III state, provide that a judge may authorize broadcasting, recording or photographing in the courtroom, but an objection by a party or an attorney shall preclude electronic media access and the court shall inform witnesses of their right to refuse to be covered by the electronic media.109 Two of the states â&#x20AC;&#x201C; Kansas and Tennessee â&#x20AC;&#x201C; have had reporters routinely blog from courts.110 2QH RI WKH VWDWHV LQ WKH VWXG\ $UNDQVDV KDV VSHFLÂżFDOO\ DGGUHVVHG WKH XVH RI VRcial media by journalists in its court rules. Two of the states â&#x20AC;&#x201C; Texas and Florida â&#x20AC;&#x201C; were the

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origins of Estes and Chandler, the two seminal Supreme Court cases regarding electronic media in the courts.

Contacting all judges in a particular state directly was not feasible or advisable. Instead, court administrators for the selected states were approached directly. Once they agreed to participate, an email request was sent to each administrator who then forwarded it under their email to all the judges in the state. Individual judges were sent reminders according to each administratorâ&#x20AC;&#x2122;s wishes.111 On average, the response rate is 11 percent lower on internet surveys.112 One reason might be that the email inviting participation may be treated as spam.113 This is one of the reasons administrators were asked to contact the judges, since an email coming from the FRXUW DGPLQLVWUDWLRQ RIÂżFH ZRXOG OHVV OLNHO\ EH WUHDWHG DV VSDP (YHQ WKRXJK ,QWHUQHW based surveys have a lower response rate than some other methods114 â&#x20AC;&#x201C; an acceptable response rate ranges from 1 to 30 percent.115

P URPOSEFUL

SAMPLING IWHU DSSURDFKLQJ WKH FRXUW DGPLQLVWUDWLYH RIÂżFHV LQ VHYHUDO VWDWHV LW EHFDPH DSSDUHQW that not all 50 states would agree to participate in this study, so a purposeful sample was selected. A purposeful sample focuses in depth on a relatively small sample â&#x20AC;&#x201C; in this FDVH ÂżYH VWDWHV RXW RI 116 While this sample is not large enough to make generalizations about judges in all 50 states,117 WKH ÂżYH UHSUHVHQWDWLYH VWDWHV SURYLGHG DQ LQ GHSWK ORRN DW themes generated from the responses.118 The states included in this survey spanned the range of very restrictive to a presumption of openness to make sure the central themes that emerged cut across a great deal of variation.119

A

Survey Questions

32164-rcm_2-2 Sheet No. 40 Side A

This survey itself was composed of both closed and open-ended questions. The open-ended questions were coded to identify common concepts.

The judges were asked four lines of questions.

7KH ÂżUVW OLQH RI TXHVWLRQV ZDV DLPHG DW ÂżQGLQJ RXW KRZ RIWHQ PHPEHUV RI WKH HOHFWURQLF media requested access to trials, how often the judges granted the requests for access and if they denied access, what were the reasons for the denials.

7KH VHFRQG OLQH RI TXHVWLRQV ZDV DLPHG DW ÂżQGLQJ RXW LI PHPEHUV RI WKH PHGLD ERWK print and electronic, were requesting to use new media tools (such as Twitter, blogs,

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111. The administrator in one state, Arkansas, pointed to a directory online and said to contact the judges directly. Two administrators agreed to send out reminders and one sent a third reminder through her own initiative.

112. Katja Lozar Manfreda, et al., :HE 6XUYH\V 9HUVXV 2WKHU 6XUYH\ 0RGHV $ 0HWD $QDO\VLV &RPSDULQJ Response Rates, 50 I NTER NATIONAL JOUR NAL OF M ARKET R ESEARCH 79, 97 (2008).

113. ,G at 80.

114. Surveys via postal mail generally have response rates of between 1 and 4 percent. The response rate for telephone surveys is between 10 to 75 percent; for shopping center intercept surveys, 5 percent; and for face-to-face interviews, 40 percent. Roger D. Wimmer & Joseph R. Dominick, Mass Media Research 205 (Thomson Wadsworth 8th ed. 2006).

115. Wimmer & Dominick, ,G 116. Michael Quinn Patton, Qualitative Research & Evaluation Methods 230 (SAGE P UBLICATIONS 3 RD ED. 2002).

117. ,G 118. ,G 119. ,G at 234-35.

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A Privilege Not a Right

Facebook) to report from trials and, if judges granted permission for use of such tools, what criteria they used in making their decisions.

7KH WKLUG OLQH RI TXHVWLRQV ZDV DLPHG DW ÂżQGLQJ RXW WKH MXGJHVÂś RSLQLRQV EHOLHIV DQG practices regarding electronic media access to the courts, whether they thought that the presence of electronic media in the courtroom was disruptive and whether they believed the electronic media served a democratic function in their communities.

The fourth line of questions was aimed at finding out whether judges believed that the court rules in their state adequately addressed the issue of electronic media in the courts and whether a distinction should be made between print journalists and electronic media journalists.

Survey Responses 7KHUH ZHUH UHVSRQGHQWV IURP WKH MXGJHV LQ WKH ÂżYH VWDWHV VXUYH\HG DQ HLJKW percent response rate (see table 1).120 While this response rate is within the general range of response rates for Internet surveys,121 one of the limitations of the study is the low response rate. The results of this survey were analyzed in the aggregate to provide richness and to look for common themes across the different states.

Table 1 Judges participating in survey by state Total respondents

Total judges in state

Percent return

Arkansas

17

140

12%

Florida

39

989

4%

Kansas

25

187

13%

Tennessee

46

337

14%

Texas

97

1062

9%

224

2715

8%

Total respondents

Demographic Information 32164-rcm_2-2 Sheet No. 40 Side B

The majority of judges responding to the survey preside in courts in either medium-sized or large cities: 35.9 percent of respondents preside in a city with a population from 10,000 to 99,000 and 32.3 percent preside in a city with a population from 100,000 to 999,000.

More than three fourths (78.4 percent) of the judges who responded to the survey were older than 50 years old. By gender, 72.9 percent are male and 27.1 percent are female.122

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120. Arkansas has seven state Supreme Court justices, 12 court of appeals judges and 121 circuit court judges, for a total of 140 judges. Florida has 989 judges: seven Supreme Court justices, 61 appeals court judges, 599 circuit court judges and 322 county court judges. There are 187 judges in Kansas: seven Supreme Court justices, 13 appeals court judges and 167 district judges. TennesSee KDV MXGJHV ÂżYH state Supreme Court justices, 24 appellate court judges, 154 trial court judges and 154 general sessions court judges (courts of limited jurisdiction). And there are 1,062 judges in Texas: nine state Supreme Court justices, nine Court of Criminal Appeals judges, 80 court of appeals justices, 456 district court judges and 508 county court judges.

121. See supra note 112, and accompanying text.

122. ,W LV GLIÂżFXOW WR GHWHUPLQH KRZ WKHVH FKDUDFWHULVWLFV DOLJQ ZLWK WKH JHQHUDO GHPRJUDSKLFV RI MXGJHV RYHUall. A 2004 study found that the average age of judges was 55 and that 78.5 percent were male and 21.5 percent were female. Erin J. Williamson, DEMOGRAPHIC SNAPSHOT OF STATE TRIAL COURT JUDGES: 1979 and 2004, (American University), http://www.naspaa.org/initiatives/paa/pdf/Erin_Williamson.pdf

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R ESULTS Grants and Denials of Electronic Media Access to Courtrooms 7KUHH TXDUWHUV RI WKH MXGJHV VXUYH\HG ¹ SHUFHQW ² UHSRUWHG UHFHLYLQJ OHVV WKDQ ¿YH requests by the electronic media (either traditional media or new media) for access to their courtroom in the last year. Slightly more than 12 percent received from six to 10 requests, and another 12.1 percent reported that they received more than 10 requests.123 Even though the court rules in all of the selected states allow some level electronic media access,124 when requests have been made, 26.7 percent of the judges said they never granted access to television, 50 percent said they never granted access to radio and 31.7 percent said they never granted access to photojournalists (see table 2). At the other end of the spectrum, when requests have been made, 18 percent of judges reported that they routinely granted permission for television coverage, 14.1 percent allowed radio coverage and 17.3 percent allowed still photography.

When requests have been made, the majority of the judges do not allow the use of new media in their courtrooms. Overwhelmingly, 80.8 percent said they have never allowed blogging, 83.3 percent said they never allowed tweeting and 84.4 percent said they never allowed posting to Facebook. Again, at the other end of the spectrum, when requests have been made 5.7 percent said they allowed blogging, 5.7 percent said they allowed tweeting and 5.2 percent said they allowed posting to Facebook.

Table 2 How often do you grant requests for permission to photograph or record by members of the electronic news media in your courtroom?

Never

Rarely

Sometimes

Often

For almost every trial

Television

26.7%

20.3%

20.3%

14.7%

18.0%

Radio

50.0%

20.2%

7.1%

8.6%

14.1%

Photojournalists

17.3%

18.8%

14.9%

17.3%

80.8%

6.2%

3.6%

3.6%

5.7%

Twitter

83.3%

6.8%

2.6%

1.6%

5.7%

Facebook

84.4%

6.8%

2.6%

1.0%

5.2%

32164-rcm_2-2 Sheet No. 41 Side A

31.7%

Blogs

Among the judges surveyed, 33 judges, or 14.7 percent, reported that they had denied at least one request for access by members of the electronic media â&#x20AC;&#x201C; either traditional media or new media â&#x20AC;&#x201C; in the past year.

Reasons for Denial Of these judges who denied electronic media requests, 29 judges (87.8 percent) responded when asked for their reasons for denying access (see table 3). A few judges provided more WKDQ RQH UHDVRQ 2YHUDOO ÂżYH WKHPHV HPHUJHG

07/03/2012 13:52:34

123. For a different type of analysis of media coverage requests to courts, See Stacy Blasiola, 6D\ Âł&KHHVH ´ Cameras and Bloggers in Wisconsinâ&#x20AC;&#x2122;s Courtrooms, 1 R EY NOLDS C TS . & M EDIA L. J. 197, 207-08 (2011).

124. See supra pages 222 & 223.

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A Privilege Not a Right Table 3 If you have denied requests of access from the electronic media (either traditional media or new media) within the last year, would you explain why?

Distrust of the media

Reasons for denial

1. D ISTRUST

13 OF THE

Interference with the administration of justice

Potential effect on trial witnesses

Affect the dignity and decorum of the court

10

5

4

Existing court rules do not permit access

3

M EDIA

The most prevalent theme was a distrust of the media, reported by 13 judges. â&#x20AC;&#x153;They (television) tend to be a needless distraction for an industry that is interested in the crying witQHVV RU WKH SRXQGLQJ RQ WKH UDLO GXULQJ ÂżQDO DUJXPHQWV ´ RQH MXGJH VDLG Âł7R IRUJHW WKDW 79 news is a form of entertainment is to forget reality,â&#x20AC;? one judge said. â&#x20AC;&#x153;[C]ourt is open to the public and if they wish to see and hear what transpires, they are welcome to come and sit,â&#x20AC;? another judge wrote. â&#x20AC;&#x153;[I] do not wish to open a trial/hearing to only â&#x20AC;&#x153;partialâ&#x20AC;? interpretation by one to tell the many. [T]wenty-second sound bites are not true coverage.â&#x20AC;?

Still another judge said he refused access â&#x20AC;&#x153;[b]ecause â&#x20AC;Ś [the journalists] have no intention of broadcasting the entire hearing and, were they to do so, no member of their audience would watch the entire broadcast. So, inevitably, what they would broadcast would be a sound bite that would be likely to mislead by its brevity.â&#x20AC;?

Finally, another judge said, â&#x20AC;&#x153;The press is always allowed to report on court cases. They may take notes or use a computer to make notes; however, I have not allowed cameras or recorders in the courtroom. Being from the old school, and having watched the circus atmosphere of the O.J. Simpson case, I have not yet changed my opinion. That is not to say that I wonâ&#x20AC;&#x2122;t be open to allowing electronic media in the future.â&#x20AC;?

2. I NTERFERENCE

WITH THE

A DMINISTR ATION

OF

JUSTICE

3. POTENTIAL E FFECT

ON

32164-rcm_2-2 Sheet No. 41 Side B

The second most prevalent issue was concern about the electronic media interfering with the administration of justice. One judge expressed â&#x20AC;&#x153;[c]oncern that the parties might attempt to use the publicity for political reasons rather than to advance legal arguments.â&#x20AC;?

Another judge said, â&#x20AC;&#x153;I do not want the trial recorded. â&#x20AC;Ś I do not want there to be a conĂ&#x20AC;LFW ZLWK WKH RIÂżFLDO FRXUW UHSRUWHU ´ Finally another judge said, â&#x20AC;&#x153;I have also denied both Facebook and Twitter because of the immediacy of their posting to the media and the possible affect it could have on witnesses or litigants during the trial.â&#x20AC;?

TRIAL WITNESSES

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7KH WKLUG WKHPH WKDW HPHUJHG PHQWLRQHG E\ ÂżYH MXGJHV ZDV WKH SRWHQWLDO HIIHFW RQ WULDO participants. â&#x20AC;&#x153;I am of the opinion that all parties act differently when electronic media is in the courtroom. The print media can do the job and protect the public interest,â&#x20AC;? one judge said.

Another judge said, â&#x20AC;&#x153;Cameras make me as well as counsel self-conscious and thereby interfere with our concentration on the evidence and law.â&#x20AC;?

Still another judge said, â&#x20AC;&#x153;I believe that the witnesses and especially the attorneys would behave differently if they were being recorded on video.â&#x20AC;?

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A Privilege Not a Right

4. A FFECT

THE

D IGNITY

AND

D ECORUM

OF THE

C OURT

The fourth theme was concern that the electronic mediaâ&#x20AC;&#x2122;s presence would affect the dignity and decorum of the court. One judge said that he does â&#x20AC;&#x153;not wish to compromise the integrity of the system.â&#x20AC;? Another judge said the electronic media presence was an â&#x20AC;&#x153;[u] nnecessary distraction.â&#x20AC;? Another judge said that the presence of electronic media was â&#x20AC;&#x153;[d] isruptive to the proceedings.â&#x20AC;?

5. E XISTING

COURT RULES DO NOT PERMIT ACCESS

)LQDOO\ WKH ÂżIWK PRVW FRPPRQ UDWLRQDOH ZDV WKDW WKH H[LVWLQJ FRXUW UXOHV GLG QRW SHUPLW access even though a request was made. For example, one judge reported that the request was made for a proceeding regarding â&#x20AC;&#x153;termination of parental rights in dependency court.â&#x20AC;?

Another judge explained that while â&#x20AC;&#x153;court rules deny any/all recording devices during the actual hearing, we do allow for and make arrangements with the media to have access to the defendant before and after hearings.â&#x20AC;?

Use of Electronic Media Tools by Traditional Media Since media are starting to converge and tools that used to be solely in the domain of broadcast media are increasingly being used by print media organizations (and vice versa), the judges were asked whether they had experienced print reporters asking permission to use electronic tools. The majority of the judges said that they had never or rarely received VXFK UHTXHVWV %XW D VLJQLÂżFDQW QXPEHU RI MXGJHV VDLG WKDW WKH\ VRPHWLPHV RU RIWHQ UHceived such requests, or did so for almost every trial (see table 4).

Table 4 How often have you had newspaper reporters ask to use tools that in the past were typically used by television reporters, radio reporters or still photojournalists?

Often

For almost every trial

Rarely

Sometimes

Video cameras

53.7%

18.8%

17.0%

8.7%

1.8%

Still cameras

35.6%

16.0%

31.5%

14.2%

2.7%

Audio recorders

45.9%

19.7%

20.6%

11.9%

1.8%

32164-rcm_2-2 Sheet No. 42 Side A

Never

More than half of the judges said they would not at all likely grant permission for a journalist to blog, tweet or post messages to the Internet from the courtroom (see Table 5).

Table 5 What is the likelihood you would grant permission, if you received a request by a member of the professional news media, either electronic or print, to blog, tweet or post messages to the Internet from your courtroom?

Not at all likely

Somewhat likely

Likely

Very Likely

Almost certain

56.9%

12.7%

14.7%

6.6%

9.1%

Tweeting

59.1%

12.4%

13.5%

5.7%

9.3%

Post to the Internet

52.6%

15.1%

16.1%

5.2%

10.9%

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Blogging

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Rationales for Granting / Denying Electronic Access

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The judges were also asked what criteria they would use in either granting or denying permission. Five themes emerged from their responses to this open-ended question.

The greatest concern was to make sure that it would not disrupt the proceedings or the decorum of the court, mentioned by 72 judges “I strongly believe in keeping court proceedings fully in public view, and in the role of the news media as the eyes and ears of the public,” one judge said. “I would almost certainly allow it (the use of social media) unless and until it created a problem in a particular case – that is, until something occurred that required me as judge to step in and exercise some control over the situation.”

Another judge wrote, “I would deny permission because a real-time post may cause a disruption in the courtroom by inviting people to come in during certain portions of the trial. For example, if someone posts ‘The defendant is taking the stand now,’ I know that people around the courthouse would start coming into the courtroom. I have found that in high interest cases, the in and out of spectators is a huge distraction to the jury.”

Another judge wrote, “All that (the use of social media) must be done outside the courtroom, as to not disrupt the proceedings. We didn’t allow typewriters into the courtroom, and I view my courtroom as a place to calmly weigh and determine facts, laws, and justice.”

The second most-common theme, mentioned by 38 judges, was the fair administration RI MXVWLFH ³'HWHUPLQDWLRQ DV WR ZKHWKHU ZLWQHVV WHVWLPRQ\ WKDW FRXOG LQÀXHQFH IXWXUH ZLWnesses might be disseminated or whether information might improperly be made available to jurors,” one judge wrote.

Another judge said, “The concern about the use of this type of media is that it is accesVLEOH WR ZLWQHVVHV ZKR KDYH QRW \HW WHVWL¿HG DQG DUH EDUUHG IURP WKH FRXUWURRP 7KH 5XOH of Sequestration is designed to prevent witnesses from tailoring their testimony to conform it to what other witnesses have said in court. The instant accessibility of this type of media would defeat the purpose of the rule.”

7KH WKLUG FRQFHUQ ZDV GLVWUXVW RI WKH PHGLD ³:H KDYH VXI¿FLHQW URRP IRU SHRSOH WR come watch court proceedings in person,” one judge wrote. “We do not need any additional distractions from people having electronic devices. In the past photographers who have been granted permission to take photos in the courtroom have ignored directions about Courts in all 50 states may allow where to place their cameras and have even entered the jury box on one occasion during some form of electronic media a bench trial to take photos back into the face access, but it is still a privilege, of litigants. They cannot be trusted. Moreover, television and print media rarely have granted at the discretion of VXI¿FLHQW VSDFH RU WLPH WR FRYHU SURFHHGthe presiding judge, as opposed ings fully, and it is not uncommon to read to a right guaranteed by the an account of court proceedings that varies substantially from what actually happened First Amendment. or from the issues at trial. In addition there is the possibility that microphones could be sensitive enough to record the private conversations of litigants and their lawyers either before or during trial.”

Another judge explained that his criteria was “whether the request actually advances the news media’s interests in accurately reporting the matter, and whether those interests can be properly managed by using traditional methods of reporting.”

One judge expressed the concern “that the media … not upset the court proceedings and

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125. 2I WKH VHOHFWHG VWDWHV RQO\ $UNDQVDV KDV FRXUW UXOHV VSHFLÂżFDOO\ DGGUHVVLQJ EORJJLQJ WZHHWLQJ RU SRVWing to the Internet. A RK . C ODE A NN., supra note 106, at 6 d(7).

32164-rcm_2-2 Sheet No. 43 Side A

make a circus out of it .â&#x20AC;Ś If I have had a good experience with the media [the professionals making the request] or have not been misquoted I [will] gladly allow them to cover the trial.â&#x20AC;?

Another judge wrote, â&#x20AC;&#x153;I would look to the uniqueness/public interest of the legal question of the case. Iâ&#x20AC;&#x2122;m no fan of the â&#x20AC;&#x2DC;If it bleeds it leadsâ&#x20AC;&#x2122; mentality of most requests.â&#x20AC;?

The fourth theme was concern over the protecting the privacy of individuals involved in the litigation. Several judges said it would depend on the nature of the case: for example, The decision to grant permission whether juveniles were involved. One judge said the decision regarding electronic access still comes down to an individual requests would be based on â&#x20AC;&#x153;[w]hether it is â&#x20AC;&#x201C; the judge â&#x20AC;&#x201C; and is necessarily a closed proceeding (termination of parental rights is closed) and/or whether its use based, at least in part, on that would disrupt the orderly process of the case individualâ&#x20AC;&#x2122;s attitude towards or cases.â&#x20AC;? Still another judge said the determination would depend on, â&#x20AC;&#x153;[w]hether trial the media. by jury or judge; age of witnesses, defendants or complainants; degree of interference.â&#x20AC;?

7KH ÂżIWK WKHPH ZDV MXGJHVÂś SHUVRQDO SUHIHUHQFHV IRU NHHSLQJ VRFLDO PHGLD RXW Âł, ZRXOG deny any and all requests to be allowed to have immediate posting to any various social media,â&#x20AC;? one judge said.

Another judge said, â&#x20AC;&#x153;I donâ&#x20AC;&#x2122;t believe that court proceedings need to be recorded or broadcast.â&#x20AC;? A third judge said, â&#x20AC;&#x153;If they want to tweet about something they can leave the courtroom and do so.â&#x20AC;?

Slightly more than three-fourths (77.1 percent) of the judges said that they allow members of the news media, either electronic or print, to bring electronic devices â&#x20AC;&#x201D; mobile phones, laptop computers, electronic notepads, etc. â&#x20AC;&#x201D; into their courtrooms. But only 9.4 percent responded that they have had requests by members of the media to blog, tweet or post items to the Internet in their courtroom.

2I WKDW SHUFHQW ZKR KDYH KDG VXFK UHTXHVWV SHUFHQW VDLG WKH\ KDG OHVV WKDQ ÂżYH requests in the past year. 14.3 percent said they had received six to 10 requests in the past year, and 19 percent said they received more than 10 requests in that time.

Of the 9.4 percent of the judges who received media requests to use social media, 72.7 percent said they granted the requests, while 27.3 percent said they denied permission.

Of the 72.7 percent who granted permission, 87.5 percent cited a general overview of court rules125 DV WKH UDWLRQDOH IRU WKHLU GHFLVLRQ 2QH MXGJH VDLG Âł1R VSHFLÂżF FULWHULD LV established [in the rules]; the expectation is that the persons doing this do not disrupt the proceedings in any way and that they conduct themselves professionally.â&#x20AC;?

Another judge said, â&#x20AC;&#x153;Along with the court administrator and sometimes our public relations person, we go over the guidelines. Anyone can use a device that is inconspicuous and silent. I feel that as we let journalists use legal pads in the 1800s, we need to let them use the latest devices in 2011.â&#x20AC;?

Of the 27.3 percent of the judges who denied requests to blog, tweet or post items to the Internet from court, two-thirds â&#x20AC;&#x201C; 66.6 percent â&#x20AC;&#x201C; explained what criteria they used in denyLQJ SHUPLVVLRQ 1RQH FLWHG FRXUW UXOHV EXW WKHUH ZHUH WZR WKHPHV 7KH ÂżUVW ZDV D GLVWUXVW of the media. One judge said he denied permission based on â&#x20AC;&#x153;[t]he danger of selective, slanted reporting in compressing a full trial into a sound bite.â&#x20AC;?

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A Privilege Not a Right

The second theme was to maintain dignity and decorum in the courtroom and the fair administration of justice. One judge said, â&#x20AC;&#x153;They can blog/tweet/whatever from the hall during trial breaks â&#x20AC;Ś or leave and do so. [I] do not allow devices operating during actual testimony as often distracting to parties and jurors.â&#x20AC;? Another judge said, â&#x20AC;&#x153;The court must have some element of control.â&#x20AC;?

When the judges were asked if they allow members of the general public (non-media, and non-trial participants) to bring electronic devices such as mobile phones, laptop computers, electronic notepads, etc., into their courtrooms, 39.5 percent said that they always allow such devices, 28.3 percent said that they sometimes allow them and 32.3 percent said they do not allow such devices.

Some judges (8.6 percent) reported that there had been members of the public (nontrial participants and non-journalists) who have blogged, tweeted or posted items to the ,QWHUQHW IURP WKH FRXUWURRP ZLWKRXW DVNLQJ WKH MXGJH RU DQ\ RWKHU FRXUW RIÂżFLDO RU VWDII member for permission in advance. But the majority of the judges (71.5 percent) said they did not know if anyone had used the social media in their courtrooms, and 19.9 percent VDLG WKDW WKHUH KDG EHHQ GHÂżQLWHO\ QR XVH RI VRFLDO PHGLD LQ WKHLU FRXUWURRPV

Use of State Rules Governing Electronic Media Access to Courtrooms

32164-rcm_2-2 Sheet No. 43 Side B

When asked about existing court rules, 44.8 percent of the judges believed the existing rules adequately address the issue of electronic media in the courts, 31.8 percent said that existing rules are not adequate to address such access, and 23.3 percent said they did not know. Similarly, 44.3 percent did not believe the current rules need to be expanded to include other types of trials in their state.

When asked to allow blogging, tweeting or posting messages to the Internet, 59.3 percent of the judges said they would use existing court rules regulating electronic media access as a basis for making this determination. But even though different judges responded, 59.3 percent also believe the rules need to be updated to address the changing technology (i.e., smart phones, laptop computers, iPads, Blackberrys, etc.).

However, 40.7 percent of the judges said they would not use existing court rules as a basis, primarily because the existing court rules do not address the issue directly. These judges explained what criteria they would use, with four themes emerging: First, judges said distraction or disruption in the courtroom would be the basis for their decision about whether to allow blogging, tweeting or posting messages to the Internet from their courtroom. â&#x20AC;&#x153;Criteria is always the same: so long as no disruption in the More than half of the judges said court proceedings occurs, tweeting, etc. is permissible,â&#x20AC;? one judge wrote. â&#x20AC;&#x153;Itâ&#x20AC;&#x2122;s a judgeâ&#x20AC;&#x2122;s they would not at all likely grant discretion in this regard. Fundamentally, our permission for a journalist to courts MUST be open and transparent.126 blog, tweet or post messages to the Thus, I welcome the media. So long as they do not disrupt my job, I do not restrict them ,QWHUQHW IURP WKH FRXUWURRP in performing their jobsâ&#x20AC;?.â&#x20AC;? Another judge said, â&#x20AC;&#x153;[M]y criteria would be to liberally allow access to the Courtroom by the media with their equipment as long as the Courtroom proceedings are not disrupted with particular emphasis on the effect on a jury.â&#x20AC;?

The second theme that emerged was the fair administration of justice. Several judges were concerned how use of social media from the courtroom may affect jurors and whether

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126. Emphasis in original.

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it would invade juror privacy. Some of the judges who cited this concern said that they would base their decision on use of new media on consent of the parties in a case.

The third theme that emerged was personal preference. One judge said: Why should I allow them under any circumstances? Court proceedings are open to the public. :KDW LV DFWXDOO\ JRLQJ RQ KHUH LV WKH FUHDWLRQ QR WKH H[WHQVLRQ WKH H[SDQVLRQ RI DQ DUWLÂżFLDO existence made possible by new technology. These devices have the effect of progressively destroying (together with countless other devices in other settings) what remains of an organic human existence. This is the realm of technique which has the effect not only of regimenting and standardizing life, but of eventually centralizing power in the hands of an authoritarian elite.

Another judge said, â&#x20AC;&#x153;I do not believe blogs, Twitter, or Internet posting is appropriate in a courtroom. The existing rules allow me to control my courtroom and I will not allow this activity in my courtroom.â&#x20AC;?

One judge, said he would base his decision on â&#x20AC;&#x153;[w]hether the media interest in reporting in this manner is unable to be fairly advanced through the use of ordinary reporting methods.â&#x20AC;?

The Role of Electronic Media Coverage of Trials

Effects of Electronic Media Coverage of Trials

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-XGJHV ZHUH DVNHG DERXW WKHLU EHOLHIV RQ D ÂżYH SRLQW VFDOH IURP VWURQJO\ GLVDJUHH WR strongly agree, about what impact the presence of electronic media â&#x20AC;&#x201C; television cameras, still cameras or radio recorders â&#x20AC;&#x201C; might have on a trial (see table 6).

Slightly more than half (51.8 percent) agreed that the presence of electronic media intimidates witnesses, but fewer (41.4 percent) agreed that it intimidates jurors. Slightly more than one third (35.1 percent) disagreed with the idea that court coverage by traditional visual and audio media affects the behavior of judges negatively. About one-third (31.8 percent) disagreed that it affects the rights of a defendant to a fair trial.

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-XGJHV LQ WKH VXUYH\ ZHUH DVNHG DERXW WKHLU EHOLHIV RQ D ÂżYH SRLQW VFDOH IURP VWURQJO\ disagree to strongly agree, concerning the role that electronic media play in the coverage of trials (see table 5).

Overall, 48.4 percent of the judges agreed that coverage of trials by traditional electronic media educates the public about the judicial process, but 31.8 percent disagreed with the When asked which Supreme Court idea that such coverage allows the public to directly evaluate the veracity of testimony. decision they would rely on as More than half, 57 percent, agreed that it guidance regarding electronic contributes to the publicâ&#x20AC;&#x2122;s right to know how media access to the courts, 41.1 the judicial process is functioning in their community, and 36.6 percent agreed that rapercent of the judges said they dio and television coverage of court proceedLQJV LQVWLOOV FRQÂżGHQFH DPRQJ WKH SXEOLF WKDW would rely on Chandler v. Florida. justice is being served. Thirty-six percent were neutral about whether it informs citizens so that they may make informed decisions in their community and be self-governing, and 36.5 percent agree that the electronic media acts as a surrogate for the publicâ&#x20AC;&#x2122;s right to observe a public proceeding.

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Table 6 Please tell me how much you agree or disagree with the following statements. The presence of the electronic media â&#x20AC;&#x201C; television cameras, still cameras or radio recorders...

Strongly agree

Agree

Neutral

Disagree

Intimidates witnesses

14.0%

51.8%

20.7%

12.2%

1.4%

Intimidates jurors

21.2%

41.4%

20.3%

15.3%

1.8%

Affects the behavior of judges negatively

5.4%

19.4%

35.1%

35.1%

5.0%

Affects the behavior of judges positively

2.2%

22.4%

47.1%

23.8%

4.5%

Affects the behavior of attorneys negatively

7.3%

32.7%

33.2%

25.9%

0.9%

Affects the behavior of attorneys positively

0.5%

20.7%

45.0%

29.7%

4.1%

Disrupts trial proceedings

11.2%

28.7%

30.5%

24.2%

5.4%

8.1%

16.3%

35.3%

33.0%

7.2%

10.8%

18.4%

30.0%

31.8%

9.0%

Is prejudicial to court proceedings Affects the right of a defendant to a fair trial

Strongly disagree

Distinctions Between Print and Electronic Journalists

32164-rcm_2-2 Sheet No. 44 Side B

A little more than half (51.1 percent) of the judges said the courts should make a distinction between access for print journalists who report with a pen and electronic journalists who report with a camera or microphone.

When asked what criteria they use to justify a distinction between electronic and print journalists, several themes emerged from the responses.

The most common theme was the fear of disruption of the proceedings. â&#x20AC;&#x153;Taking notes with pen and pencil can be done virtually without notice and from almost anywhere in the courtroom, video/photos cannot be done so easily or discretely,â&#x20AC;? one judge wrote. Another judge wrote that â&#x20AC;&#x153;Print media is much less disruptive to the sanctity of the courtroom.â&#x20AC;?

The second most common theme cited was misleading editorial content. â&#x20AC;&#x153;Editing of movies or pictures is more prejudicial than manipulation of the written word,â&#x20AC;? one judge wrote. Another wrote, â&#x20AC;&#x153;People give undue importance to what they see in video or hear in a recording â&#x20AC;&#x201C; even if itâ&#x20AC;&#x2122;s a misleading, totally out-of-context sound bite.â&#x20AC;?

Another judge wrote:

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Reporters who use a camera are perfectly welcome to come, sit quietly, take notes and then go do a standup and report. Reporters who use cameras donâ&#x20AC;&#x2122;t want to do that because it is not exciting enough. I make no distinction in the access I allow the two types of reporters. The camera-based reporters are often not willing to behave as journalists. They want to get in peopleâ&#x20AC;&#x2122;s faces, ask provocative questions in hopes of causing â&#x20AC;&#x153;newsâ&#x20AC;? to happen â&#x20AC;&#x201C; to produce a sexy moment that they FDQ VHOO RQ WKHLU SURJUDPV , ZLOO OHW WKHP ÂżOP XQGHU RXU JXLGHOLQHV 2QH FDPHUD Âż[HG SRROHG ÂżOP VOLUME 2, I SSUE 2

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A Privilege Not a Right available to all. They want to come in for 5 minutes, excerpt a sexy moment and leave without really informing anyone about the proceeding. A long proceeding seems to bore the TV folks.

Third, many judges – 13 percent in this survey – believe that the differences between the two forms of media pose a threat to a fair trial. “I believe people behave differently when they know they are on camera and I fear this can have an adverse effect on judges, witnesses, and attorneys, all of which could have an impact on the outcome of some trials,” one judge wrote. Another said: I try many cases involving child sex victims and gang murders. It would be harmful to show the faces of the children when they testify and allow their humiliating testimony to be video’d [sic] by their friends/schoolmates, discourage them from reporting sex crimes committed upon them. Gang members could record the faces of the witnesses who testify against their own gang’s defendants electronically and kill or otherwise retaliate against them, creating hesitancy for witnesses of gang crimes to come forward to report and testify in these crimes.

Fourth, some judges said they felt nature of the electronic media was a threat to judicial LQWHJULW\ ³7KHUH LV RQO\ RQH RI¿FLDO UHFRUG RI WKH WULDO DQG WKDW LV WKH FRXUW UHSRUWHU¶V GXW\ To allow others to record the testimony would corrupt the trial,” one judge said. Another judge wrote, “Experience and the era of ‘gotcha’ journalism. Electronic (especially digital) LV 9(5< VXEMHFW WR PDQLSXODWLRQ DQG LV XQUHOLDEOH ,Q FRXUWV RI UHFRUG WKHUH LV DQ HVWDElished TRUTHFUL perfect record of the trial or hearing.”127

Reliance on Precedents

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127.

128.

129.

130.

131.

Emphasis in original.

449 U.S. 560 (1981).

448 U.S. 555 (1980).

381 U.S. 531 (1965).

384 U.S. 333 (1966).

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When asked which Supreme Court decision they would rely on as guidance regarding electronic media access to the courts, 41.1 percent of the judges said they would rely on Chandler v. Florida.128 Smaller shares said that they would rely on other cases: 28.9 percent would rely on Richmond Newspapers, Inc. v. Virginia,129 20 percent would rely on Estes v.

Texas,130 and 10 percent would rely on Sheppard v. Maxwell.131 Even though a majority of Some judges offered alternative means as guidance. One judge said, “Short of fundajudges believe the electronic mental federal constitutional issues, I would PHGLD IXO¿OOV PDQ\ GHPRFUDWLF rely entirely on state and local law.” Another judge said, “I would apply all controlling functions in a community, they cases; it’s my job.” are still concerned that electronic When asked, 39.2 percent of the judges said they believe the electronic media, usmedia presence in the courtroom ing the tools of their trade in a courtroom, intimidates witnesses and jurors. should have the same constitutional right of access to criminal trials that the print media do, as found by the court in Richmond Newspapers.

When asked about access to the federal courts, 55.3 percent said they believe the electronic media should have access to Federal District Courts, 53.7 percent said they believe the electronic media should have access to Federal Courts of Appeal and 54.2 percent said they believe the electronic media should have access to the U.S. Supreme Court

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C ONCLUSION

T

32164-rcm_2-2 Sheet No. 45 Side B

KH SXUSRVH RI WKLV VXUYH\ UHVHDUFK ZDV WR ÂżQG RXW DW WKH LQGLYLGXDO FRXUW OHYHO KRZ the attitudes, beliefs and practices of trial judges affect electronic media access to the courts through four sub-questions.

One of the most surprising results of the survey was that the media rarely request acFHVV WR WULDOV 6OLJKWO\ PRUH WKDQ WKUHH IRXUWKV RI WKH MXGJHV VDLG WKH\ KDG IHZHU WKDQ ÂżYH requests for access in the last year.

Slightly more than a fourth of the judges said that they never grant access to television journalists. About half of them said that they never grant access to radio reporters, and slightly more than one-third never grant access to photojournalists.

Regarding new media, the vast majority of the judges said they do not allow them in their courtrooms, with more than 80 percent never allowing blogging, tweeting or posting to Facebook.

A moderate number (14.7 percent) of the judges had denied requests for media access to their courtroom, and the reasons given echoed the rhetoric articulated in concepts of former A.B.A. Canon 35132 DQG WKH 6XSUHPH &RXUWÂśV ÂżQGLQJ LQ (VWHV 133 Even though media are converging and newspapers websites are becoming ubiquitous, there are not very many requests by print reporters to use audio and visual media tools. As for new media, an overwhelming number of judges are not likely to allow blogging, tweeting or posting to the Internet from trials.

Again, the rhetoric used by judges to explain their opposition echoed the concepts arWLFXODWHG LQ &DQRQ DQG WKH &RXUWÂśV ÂżQGLQJ LQ Estes.

Slightly less than half of the judges believe the existing court rules adequately address the electronic media, but slightly more than half believe the rules need to be updated to address the changing technology.

The greatest concern judges expressed regarding both traditional electronic media and the use of new social media is that it disrupts the proceedings. Their attitude is that print reporters taking notes is unobtrusive, but the presence of cameras or of a reporter tapping on a keyboard with frequent posts would be disruptive.

-XGJHV KDG PL[HG EHOLHIV DERXW KRZ ZHOO WKH HOHFWURQLF PHGLD IXOÂżOOV D GHPRFUDWLF UROH in the community it serves. Most agreed that electronic media coverage of trials educates WKH SXEOLF DERXW WKH MXGLFLDO SURFHVV LQVWLOOV FRQÂżGHQFH DPRQJ WKH SXEOLF WKDW MXVWLFH KDV been served, contributes to the publicâ&#x20AC;&#x2122;s right to know how the judicial process is functioning in their community and acts as a surrogate for the publicâ&#x20AC;&#x2122;s right to observe a public proceeding. Most were neutral on the idea that electronic media coverage helps the public feel safe in their community and informs the public so they might make informed decisions in their community and be self-governing. And most disagreed that it allows the public to directly evaluate the veracity of testimony.

Most judges agreed that the presence of electronic media intimidates witnesses and jurors, but disagreed with the idea that the presence of the electronic media affects the behavior of judges negatively. Most judges also disagreed that it affects the rights of a defendant to a fair trial.

Based on the judgesâ&#x20AC;&#x2122; attitudes towards electronic media, we now turn to the fundamental question of this study: How have the beliefs and practices of trial judges affected electronic media access to the courts?

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132. See discussion of Canon 35, supra page 4.

133. See discussion of Estes, supra page 212.

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A Privilege Not a Right

Even though court rules in all states permit some level of electronic media access to FRXUWV LQ SUDFWLFH D VLJQLÂżFDQW QXPEHU RI MXGJHV VWLOO GR QRW JUDQW SHUPLVVLRQ WR WUDGLWLRQDO electronic media, and overwhelming number say that they will not grant permission to new media.

According to the judges, print reporters are not asking to record audio or use video or still cameras in court. But even if they did, it is highly unlikely that judges would grant permission to allow it.

(YHQ WKRXJK D PDMRULW\ RI MXGJHV EHOLHYH WKH HOHFWURQLF PHGLD IXOÂżOOV PDQ\ GHPRFUDWLF functions in a community, they are still concerned that electronic media presence in the courtroom intimidates witnesses and jurors. But, they do not think the presence of electronic media goes so far as to affect judgesâ&#x20AC;&#x2122; behavior, or a criminal defendantâ&#x20AC;&#x2122;s right to a fair trial.

Even though state court rules now allow access to the courts, the results of this survey VXJJHVW WKDW WKHUH DUH VWLOO D VLJQLÂżFDQW QXPEHU RI EDUULHUV WR HOHFWURQLF PHGLD LQ FRXUWrooms: not from the law, but in the beliefs and practices of judges.

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Toward Improved Media Coverage of Domestic Violence: Why and How Courts and Others Should Share the News about Domestic Violence and Common 5HSRUWLQJ 'H¿FLHQFLHV Hon. Chuck Weller1

P

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eople must have accurate information about domestic violence if they are to insist that their policymakers address the problem properly. While the media sometimes portray domestic violence as a serious social problem that affects millions of lives each year and absorbs a major portion of available health care and law enforcement services, more commonly, domestic violence is presented without context, as an isolated event. 2 Domestic violence often isn’t reported at all.3 A public informed about the true nature

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1. This article and the associated media guide are based on the author’s Master’s thesis for the Judicial Studies Program, an academic program offered collaboratively by the National Judicial College, the National Council of Juvenile and Family Court Judges, and the University of Nevada, Reno. The author thanks those organizations and the Donald W. Reynolds Center for Courts and Media, the Committee to Aid Abused Women, the Nevada Attorney General, the Nevada Broadcasters Association, the Nevada Domestic Violence Ombudsman, the Nevada Network Against Domestic Violence, the Nevada Press Association and Safe Nest for their assistance and/or endorsements. A media guide prepared for use in Nevada in accordance with the suggestions made by this article is available at: http://www.nnadv.org/ pdfs/Press_Room/Covering%20Domestic%20Violence-Media%20Guide.pdf.

2. See infra note 48.

3. John McManus & Lori Dorfman, 'LVWUDFWHG E\ GUDPD +RZ &DOLIRUQLD QHZVSDSHUV SRUWUD\ LQWLPDWH partner violence. BERKELEY M EDIA S TUDIES G ROUP I SSUE 13 , (Jan. 2003), available at http://www. vawnet.org/Assoc_Files_VAWnet/DistractedbyDrama.pdf; John McManus & Lori Dorfman, FuncWLRQDO WUXWK RU VH[LVW GLVWRUWLRQ" $VVHVVLQJ D IHPLQLVW FULWLTXH RI LQWLPDWH YLROHQFH UHSRUWLQJ, 6(1) JOUR NALISM 43 (2005).

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and extent of domestic violence is critical to enlightened policymaking.4 The courts, law enforcement and the medical community address domestic violence daily and know something of its characteristics and consequences. These institutions are, however, limited in their ability to educate the public by both the nature of their responsibilities and their lack of means to disseminate information.

The premise of this article is that improvements in domestic violence reporting can be achieved in any community by educating local media through the distribution of a â&#x20AC;&#x153;domestic violence reporting guide.â&#x20AC;? A meaningful guide can be produced relatively easily by interested persons or organizations, including domestic violence organizations, courts, lawyers and political candidates, using the template in Appendix B to this article.

THE P ERCEPTION

AND R EALITY OF D OMESTIC VIOLENCE s a family court judge who deals daily with family abuse and has studied the issue, I recognize characteristic patterns of domestic violence directed at an intimate partner and those who interfere with an abuserâ&#x20AC;&#x2122;s control of that partner. The reporting of such domestic violence crimes usually follows a characteristic pattern too. Unfortunately, some typical reporting devices perpetuate false stereotypes or convey messages about domestic violence that are inaccurate. An abuserâ&#x20AC;&#x2122;s friends and family members who describe him5 as a good person ZKR ÂłVQDSSHG´ DUH XVHG DV QHZV VRXUFHV $ NLOOHUÂśV MXVWLÂżFDWLRQ FRPPXQLFDWHG WKURXJK DVsociates, that the violence was caused by the murdered spouse, or by the â&#x20AC;&#x153;system,â&#x20AC;? is reported. <HW WKH VFRSH RI WKH HQWLUH VRFLHWDO SUREOHP RI GRPHVWLF YLROHQFH LV UDUHO\ PHQWLRQHG LQ FRYHUage. The opinions and expertise of domestic violence advocates and the availability of resources for self-protection are infrequently reported. Such reporting excuses the criminal, blames others for the abuserâ&#x20AC;&#x2122;s crimes and leaves the public uninformed about domestic violence.

A

Media Reporting of Domestic Violence

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More than a dozen books, articles and studies have appeared in recent years that consider the quality of news reporting of domestic violence. These works were produced from a variety of perspectives, including those of feminists, scholars, domestic violence advocacy organizations and journalists, in the United States and abroad. A remarkable consensus exists that a IHZ ZHOO GHÂżQHG FKDQJHV LQ UHSRUWLQJ FDQ UHPHG\ FRPPRQ VKRUWFRPLQJV LQ FRYHUDJH

THE F EMINIST C RITIQUE The earliest analysts were self-described â&#x20AC;&#x153;feministsâ&#x20AC;? who assert that the existing social order subjugates women and perpetuates male dominance.6 Feminists argue that participants in society, including reporters, accept this discriminatory status quo as natural and fail to recognize the cultural mechanisms responsible for its maintenance.7 â&#x20AC;&#x153;Violence against women is framed by the news so as to support, sustain, and reproduce male supremacy.â&#x20AC;?8 Abusers are absolved of responsibility while victims are ignored or blamed.9

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4. Charlotte Ryan; Mike Anastario; & Alfredo DaCunha, Changing coverage of domestic violence murGHUV $ ORQJLWXGLQDl experiment in participatory communication, 21 J. I NTERPERSONAL VIOLENCE 209 (2006), 210-211, available at http://www UDFLDOHTXLW\WRROV RUJ UHVRXUFHÂżOHV U\DQ SGI; Susan B. Sorenson, Julie G. Peterson Manz, & Richiard A. Berk, News media coverage and the epidemiology of homicide, 1510, 88 A MER . J. P UBLIC H EALTH 1510 (1998).

5. See point 14 in Appendix A. 6. Marian Meyers, 1HZV &RYHUDJH RI 9LROHQFH $JDLQVW :RPHQ (QJHQGHULQJ %ODPH at 27 (S AGE P UBLICATIONS I NC . 1997).

7. ,G , at 19-21 (1997).

8. ,G , at 8.

9. ,G , at 61-64, 115.

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Even the English language, through frequently used grammatical structures and word choices, has been co-opted to affect a newspaper readerâ&#x20AC;&#x2122;s perception of domestic violence in ways that excuse men from responsibility.10 Some menâ&#x20AC;&#x2122;s rights advocates express views that are often directly contrary to the Such reporting portrays domestic beliefs of feminists. They believe that societyâ&#x20AC;&#x2122;s structures, including family courts and violence as more lethal than it is laws relating to domestic violence, spousal and fails to inform readers of the support and child custody laws, operate to unfairly oppress men.11 Despite their difexistence of an enormous amount of fering perspectives, it is interesting to note that menâ&#x20AC;&#x2122;s rights advocates make complaints non-lethal domestic violence crime. similar to those of the feminists about media coverage. Glenn Sacks, a leading advocate for menâ&#x20AC;&#x2122;s rights, protests that news reports about violence by women against men often â&#x20AC;&#x153;lead with the womanâ&#x20AC;&#x2122;s reason or excuse for her violence, only detailing the violence laterâ&#x20AC;? and donâ&#x20AC;&#x2122;t use the phrase â&#x20AC;&#x153;domestic violence.â&#x20AC;?12

E X AMINING O.J.

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7KH ÂżUVW GHWDLOHG TXDQWLWDWLYH FRQWHQW DQDO\VLV RI QDWLRQDO QHZVSDSHU UHSRUWLQJ RI GRPHVtic violence involved the O.J. Simpson case. The facts of the case were actually fairly typical of many domestic violence homicides. A former husband was alleged to have murdered his wife and her male friend in a violent assertion of his control of her life. The defendantâ&#x20AC;&#x2122;s celebrity status garnered unusual attention to the case, as did other circumstances. Savage violence was alleged by a black man against his white ex-wife in the context of the extraorGLQDU\ RSSRUWXQLWLHV DIIRUGHG WR D IDPRXV VSRUWV ÂżJXUH 6H[ EHDXW\ ZHDOWK \RXWK DQG racial stereotypes were involved. The fairness of the judicial system was questioned. The case provided irresistible fodder to an insatiable, 24-hour news industry.

The content analysis of newspaper coverage of this case sought to determine the effect of intense media coverage on domestic violence reporting.13 &RQFHQWUDWHG FRYHUDJH RI WKH FDVH EHJDQ LQ -XQH ZKHQ 6LPSVRQ ZDV ÂżUVW LGHQWLÂżHG DV D VXVSHFW LQ WKH PXUGHUV 6WURQJ PHGLD IRFXV FRQWLQXHG WKURXJK WKH HQG RI KLV FULPinal trial in November 1995. The study examined domestic violence reporting in The New York Times, the 3KLODGHOSKLD ,QTXLUHU and the Philadelphia Daily News between January 1990 and August 1997. The study found that domestic violence reporting spiked in all three newspapers during the criminal trial.14 But the study also found that the content of the

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10. Sharon Lamb, Acts ZLWKRXW DJHQWV $Q DQDO\VLV RI OLQJXLVWLF DYRLGDQFH LQ MRXUQDO DUWLFOHV RQ PHQ who batter women. 61 A MER . J. O RTHOPSYCHIATRY 250 (1991); Sharon Lamb & Susan Keon, Blaming WKH SHUSHWUDWRU /DQJXDJH WKDW GLVWRUWV UHDOLW\ LQ QHZVSDSHU DUWLFOHV RQ PHQ EDWWHULQJ ZRPHQ, 19 PSYCHOLOGY OF WOMEN Q. 209 (1995); Alexandra K. Frazer & Michelle D. Miller, Double standards in VHQWHQFH VWUXFWXUH 3DVVLYH YRLFH LQ QDUUDWLYHV GHVFULELQJ GRPHVWLF YLROHQFH. 28 J. L A NG. & S OCIAL PSYCH., 62 (2009).

11. Male rights, WIKIPEDIA , http://en.wikipedia.org/wiki/Male_rights (visited Jan. 17, 2011).

12. Glenn Sacks, When a woman commits domestic violence against a man, news reports lead with her excuse for her violence, G LENN S ACKS .COM , Jan. 2, 2008, http://glennsacks.com/blog/?p=1630.

13. Kimberly Maxwell, John Huxford, Catherine Borum & Robert Hornik, &RYHULQJ GRPHVWLF YLROHQFH How the O.J. Simpson case shaped reporting of domestic violence in the news media, 77 JOUR . & M ASS C OMM . Q. 258 (2000).

14. ,G DW DQG ÂżJV

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reporting was largely unchanged by the increased attention.15 Before, during and after the media’s concentration on the Simpson murders, coverage continued to describe incidents of domestic violence in isolation, without reference to domestic violence statistics; legislative, judicial, or law enforcement efforts related to domestic violence; or to domestic violence programs or experts who could explain the nature and scope of the domestic violence problem in America.16

S TATE-SPECIFIC E X AMINATIONS

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The first post-O.J. study examined coverage of domestic violence homicides or attempted homicides during 1998 by newspapers in Washington state. 17 The study found that more than three-quarters of the articles portrayed the violence as isolated, without any reference to a history or pattern of abuse.18 Just 10 percent of stories placed the violence in the context of a larger social problem,19 and less than 5 percent quoted a domestic violence expert, a person who by virtue of education and experience is able to describe the nature of domestic violence.20 One in five stories relied upon the statements of neighbors or acquaintances, who commonly expressed shock that a seemingly normal perpetrator had committed an act of violence.21 The authors found that this reliance on neighbors and acquaintances resulted in reporting that incorrectly suggested the violence was inexplicable.22 Subsequent studies of domestic violence coverage in Utah newspapers found that almost half of all articles suggested some motivation or excuse for the perpetrator.23 Less than 40 percent used a descriptive term such as “domestic violence” or “domestic abuse.”24 Less than 4 percent put the violence into the context of the societal problem of domestic violence by mentioning statistics, or resources available for prevention, reporting or protection.25 The coverage depicted domestic violence fatalities as isolated incidents to be addressed by the police and courts, and not as incidents of a variety of violent crime that require public attention and action.26 Domestic violence experts were used as sources in less than 5 percent of articles,27 although such experts provided context in almost three-quarters of the stories in which they were used.28 A California study used similar quantitative methods to test feminist allegations of systemic anti-female bias in the reporting of domestic violence in the San Jose Mercury News and the Los Angeles Times during 2000.29 The study found that for every 100

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15. ,G. at 263-65.

16. ,G. 17. Cathy Ferrand Bullock & Jason Cubert, Coverage of domestic violence fatalities by newspapers in Washington State, 17 J. I NTERPERSONAL VIOLENCE . 475 (2000).

18. ,G at 483.

19. ,G 20. ,G at 486-89, Table 3.

21. ,G , Table 3 (at 487).

22. ,G at 490-92.

23. Cathy Ferrand Bullock, )UDPLQJ GRPHVWLF YLROHQFH IDWDOLWLHV &RYHUDJH E\ 8WDK QHZVSDSHUV. 30 WOMEN ’S S TUDIES IN C OMM . 34 (2007); Cathy Ferrand Bullock, 2I¿FLDO VRXUFHV GRPLQDWH YLROHQFH reporting. 29:2 NEWSPAPER R ESEARCH J. 6 (2008).

24. Bullock, Framing domestic violence fatalities (2007) at 40.

25. ,G at 46.

26. ,G. 27. Bullock, 2I¿FLDO VRXUFHV GRPLQDWH YLROHQFH UHSRUWLQJ (2008) at 13 (Table 1), 14.

28. ,G at 15.

29. McManus & Dorfman, Distracted by drama, supra note 3; McManus & Dorfman, Functional truth or

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intimate partner violence arrests there were two domestic violence stories in the Mercury News, while 100 arrests for other violent crimes resulted in 18 stories.30 For every 100 domestic violence arrests in Los Angeles, one story appeared in the Times while 100 arrests for other violent crimes resulted in eight stories.31 Domestic violence was clearly considered to be less newsworthy than other violent crimes.32 Further, the study found that while less There is reason to believe that than one-quarter of 1 percent of intimate media coverage of domestic partner violence arrests in Santa Clara violence improves when journalists County were for homicide, this tiny fraction accounted for 63 percent of all domestic DUH HGXFDWHG DERXW WKH ÂżQGLQJV violence coverage in the San Jose Mercury and recommendations of studies of News.33 The situation was similar in the Los Angeles Times. In Los Angeles only domestic violence coverage. one third of 1 percent of intimate partner violence arrests were for homicide, but that small number of arrests accounted for 62 percent of all domestic violence reporting in the Times.34 Such reporting portrays domestic violence as more lethal than it is and fails to inform readers of the existence of an enormous amount of non-lethal domestic YLROHQFH FULPH 6XFK UHSRUWLQJ ÂłGLVWRUWV WKH SLFWXUH PDNLQJ LW PRUH GLIÂżFXOW IRU IDPLOLHV and citizens to understand and address the problem.â&#x20AC;?35 In the two newspapers, one-third of the reporting on non-domestic violent crimes looked at issues, patterns of events, trends, causes and effects, rather than reporting the violence as an isolated incident.36 Only one-eighth of reporting on intimate partner violence presented such themes.37 Other studies have examined domestic violence reporting of newspaper coverage in Wisconsin38 and Florida.39 There also have been studies examining coverage of the issue in six leading American newspapers40 and in a random selection of American newspapers.41

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sexist distortion?, supra note 3.

30. McManus & Dorfman, Distracted by drama, supra note 3, at 8; McManus & Dorfman, Functional truth or sexist distortion?, supra note 3, at 51-52.

31. ,G (both sources).

32. See also Susan B. Sorenson, Julie G. Peterson Manz, & Richiard A. Berk, News media coverage and the epidemiology of homicide, 88 A MER . J. P UBLIC H EALTH 1510 (1998).

33. McManus & Dorfman, Distracted by drama, supra note 3, at 9-10.

34. ,G at 10.

35. ,G at 18.

36. ,G at 8.

37. ,G 38. WISCONSIN C OALITION A GAINST D OMESTIC VIOLENCE , 2003 WISCONSIN D OMESTIC VIOLENCE HOMICIDE R EPORT (2005), available at http://www ZFDGY RUJ VLWHV GHIDXOW ÂżOHV UHVRXUFHV B'9B+RPLcide_Report.pdf.

39. Rae Taylor, Slain anG VODQGHUHG $ FRQWHQW DQDO\VLV RI WKH SRUWUD\DO RI IHPLFLGH LQ FULPH QHZV, 13 HOMICIDE S TUDIES 21 (2009), available at http://hsx.sagepub.com/content/13/1/21.full.pdf.

40. Christy-Dale Sims, ,QYLVLEOH ZRXQGV LQYLVLEOH DEXVH 7KH H[FOXVLRQ RI HPRWLRQDO DEXVH LQ QHZVSDSHU articles, 8 J. E MOTIONAL A BUSE 375 (2008) (examining coverage in the Chicago Tribune, Houston Chronicle, Los Angeles Times, The Denver Post, The New York Times and the Rocky Mountain News).

41. Jessica A. Wozniak & Kathy A. McCloskey )DFW RU ÂżFWLRQ" *HQGHU LVVXHV UHODWHG WR QHZVSDSHU UHSRUWV of intimate partner homicide, 16 VIOLENCE A GAINST WOMEN 934 (2010).

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Problems and Issues with Media Coverage Organizations in Rhode Island,42 Washington,43 Delaware,44 Iowa45 and Connecticut46 have published guides intended to improve media coverage of domestic violence. Preparation of the guides in Rhode Island, Washington and Delaware was preceded by analyses of GRPHVWLF YLROHQFH UHSRUWLQJ LQ WKRVH VWDWHV WKDW FRQWULEXWHG WR WKH ¿QGLQJV RI SUHYLRXVO\ discussed studies.

The studies of domestic violence coverage and the media guides have, through experience and empirical evaluation, reached remarkably similar determinations concerning GRPHVWLF YLROHQFH FRYHUDJH 7KHVH ¿QGLQJV FDQ EH GLVWLOOHG DV IROORZV 1. 5HSRUWLQJ RQ GRPHVWLF YLROHQFH UDUHO\ LGHQWL¿HV WKH FDWHJRU\ RI FULPH E\ XVH RI WKH terms usually used in the law to describe the crime, such as “domestic violence,” “domestic abuse” or “domestic battering.”47 2. Often journalists incorrectly portray an act of domestic violence as an isolated incident, without reference to the context of an existing pattern of conduct between the perpetrator and the victim.48 3. 'RPHVWLF YLROHQFH LV LQIUHTXHQWO\ UHSRUWHG LQ WKH FRQWH[W RI LWV VLJQL¿FDQFH DV D social problem by reference to statistics, services available to victims or perpetrators, or its impact on children, families, employers and the community.49

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42. R HODE I SL A ND C OALITION A GAINST D OMESTIC VIOLENCE , D OMESTIC VIOLENCE: A H A NDBOOK FOR JOURNALISTS (2000), available at http://www.ricadv.org.

43. WASHINGTON S TATE C OALITION A GAINST D OMESTIC VIOLENCE . C OVERING D OMESTIC VIOLENCE: A G UIDE FOR JOUR NALISTS A ND O THER M EDIA P ROFESSIONALS (2002, rev. 2006, rev. 2008), available at http:// www.wscadv.org/docs/Media_Guide_2008.pdf.

44. D EL AWARE C OALITION A GAINST D OMESTIC VIOLENCE , D OMESTIC VIOLENCE M EDIA G UIDE (2006), available at http://www.dcadv.org/04resources/DCADV%20Media%20Guide.pdf.

45. IOWA D OMESTIC A BUSE D EATH R EVIEW TE A M , D OMESTIC VIOLENCE: A G UIDE FOR M EDIA C OVER AGE , (2009), available at http://www.idph.state.ia.us/bh/common/pdf/domestic_violence/guide_media_coverage.pdf.

46. CONNECTICUT COALITION AGAINST DOMESTIC VIOLENCE, R EPORTING DOMESTIC VIOLENCE IN CONNECTICUT: A GUIDE FOR MEDIA, available at http://www.ctcadv.org/Portals/0/Uploads/Documents/2011%20 CT%20Media%20Guide%20.pdf.

47. Bullock & Cubert, supra note 17; Bullock, Framing domestic violence fatalities (2007), supra note 23; Connecticut Coalition Against Domestic Violence, supra note 46; Delaware Coalition Against Domestic Violence,, supra note 44; Iowa Domestic Abuse Death Review Team, supra note 45; McManus & Dorfman, Distracted by drama, supra note 3; Rhode Island Coalition Against Domestic Violence, supra note 42; Sims, supra note 40; Washington State Coalition Against Domestic Violence, supra note 43; Wisconsin Coalition Against Domestic Violence, supra note 38; and Wozniak & McCloskey, supra note 41.

48. ,G. (all sources), and Meyers, supra note 8.

49. NANCY BERNS, FRAMING THE VICTIM: DOMESTIC VIOLENCE MEDIA AND SOCIAL PROBLEMS 175-177 (2004); Bullock & Cubert, supra note 17; Bullock, Framing domestic violence fatalities (2007), supra note 23; Bullock, 2I¿FLDO VRXUFHV GRPLQDWH YLROHQFH UHSRUWLQJ (2008), supra note 23; Connecticut Coalition Against Domestic Violence, supra note 46; Delaware Coalition Against Domestic Violence, supra note 44; Iowa Domestic Abuse Death Review Team, supra note 45; Maxwell, et. al., supra note 14; McManus & Dorfman, Distracted by drama (2003), supra note 3; McManus & Dorfman, Functional truth or sexist distortion? (2005), supra note 3; Meyers, supra note 8; Rhode Island Coalition Against Domestic Violence, supra note 42; Washington State Coalition Against Domestic Violence, supra note 43; Wisconsin Coalition Against Domestic Violence, supra note 38; and Wozniak & McCloskey, supra note 41.

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4. Reliance on the reactions of family, friends, associates and lawyers of the abuser paint the abuser as sympathetic and portray the crime as an unanticipatable shock, an individual breakdown, and/or a private family tragedy, and not as a part of a pre-existing pattern Domestic violence is a serious of abuse.50 social problem that can be properly 5. Sources who by virtue of education or addressed by policymakers only if experience have expertise with domestic the public has accurate information violence – such as trained law enforcement, prosecutors, shelter providers, about the problem. court personnel, public health workers or advocates – are rarely used in news reports. But when such sources are used, important information about domestic violence is included in the coverage.51 6. Reporting often includes an excuse or explanation of the perpetrator’s criminality, which frequently involves blaming the victim or the “system.” Explanation that the victim and the “system” often are not free to respond because of fear or because of physical or legal constraints is rarely presented.52 7. Reporting often portrays perpetrators as “different,” and often incorrectly implies that “normal” or successful people are not perpetrators of domestic violence.53 8. While domestic violence crimes are reported much less frequently than other violent crimes, domestic violence cases involving murder get disproportionate coverage.54

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50. Connecticut Coalition Against Domestic Violence, supra note 46; Delaware Coalition Against Domestic Violence, supra, note 44; Rhode Island Coalition Against Domestic Violence, supra, note 42; Taylor, supra note 39; Washington State Coalition Against Domestic Violence, supra note 43; and Wisconsin Coalition Against Domestic Violence, supra note 38.

51. Bullock & Cubert, supra note 17; Bullock Official sources dominate violence reporting (2008), supra note 23; Connecticut Coalition Against Domestic Violence, supra note 46; Delaware Coalition Against Domestic Violence, supra note 44; Iowa Domestic Abuse Death Review Team, supra note 45; Maxwell, et. al., supra note 14; McManus & Dorfman, Distracted by drama (2003), supra note 29; Rhode Island Coalition Against Domestic Violence, supra note 42; Taylor, supra note 39; Washington State Coalition Against Domestic Violence, supra note 43; Wisconsin Coalition Against Domestic Violence, supra note 38; and Wozniak & McCloskey, supra note 41.

52. Bullock & Cubert, supra note 17; Bullock, Framing domestic violence fatalities (2007), supra note 23; Connecticut Coalition Against Domestic Violence, supra note 46; Delaware Coalition Against Domestic Violence, supra note 44; Iowa Domestic Abuse Death Review Team, supra note 45; Maxwell, et. al., supra note 14; Taylor, supra note 39; Washington State Coalition Against Domestic Violence, supra note 43; and Wisconsin Coalition Against Domestic Violence, supra note 38. Both of McManus & Dorfman articles, supra note 3, found that reporting did not excuse perpetrators or blame victims.

53. Bullock & Cubert, supra note 17; Bullock Framing domestic violence fatalities (2007), supra note 23; Connecticut Coalition Against Domestic Violence, supra note 46; Delaware Coalition Against Domestic Violence, supra note 44; Iowa Domestic Abuse Death Review Team, supra note 45; Rhode Island Coalition Against Domestic Violence, supra note 42; and Washington State Coalition Against Domestic Violence, supra note 43.

54. McManus & Dorfman, Distracted by drama, supra note 3; McManus & Dorfman, Functional truth or sexist distortion?, supra note 3; Meyers, supra note 8; Sims, supra note 40; Sorenson, Peterson, & Berk, supra note 32.

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A N I NTERNATIONAL P ERSPECTIVE

D

omestic violence is not unique to America. In 2002 the Council of Europe noted that for women between 16 and 44 years of age, domestic violence is â&#x20AC;&#x153;the major cause of death and invalidity, ahead of cancer, road accidents and even war.â&#x20AC;?55 Gender-based violence is a world-wide problem.56 Just as domestic violence in the United States has similarities to gender-based violence abroad, international media reporting of domestic violence shares many of the same shortcomings as American coverage.57 Global concerns about violence against women and the quality of the reporting of this violence attracted the attention of the International Federation of Journalists (IFJ).58 Following a 2008 roundtable convened in Brussels to promote dialogue between domestic violence experts and journalists, the IFJ developed guidelines for improving media coverage of violence against women that are strikingly similar to the recommendations made by the studies of American media.59 These guidelines include: 1. Identify violence against women accurately through the internationally acFHSWHG GHÂżQLWLRQ LQ WKH 81 'HFODUDWLRQ RQ WKH (OLPLQDWLRQ RI 9LROHQFH $JDLQVW Women.60 2. Use accurate, non-judgmental language. â&#x20AC;Ś At all times, the language of reporting should avoid suggestions that the survivors may be to blame, or were otherwise responsible for the attack or acts of violence against them. * * * 6. Use statistics and social background information to place the incident ZLWKLQ WKH FRQWH[W RI YLROHQFH LQ WKH FRPPXQLW\ RU FRQĂ&#x20AC;LFW 5HDGHUV DQG WKH PHGLD audience need to be informed of the bigger picture. The opinion of experts on violence against women such as the DART centre [the Dart Center for Journalism & Trauma]61 will always increase the depth of understanding by providing relevant and useful information. This will also ensure that media never give the impression

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55. Parliamentary Assembly of the Council of Europe, Recommendation 1582 (2002), Domestic Violence Against Women, available at http://assembly.coe.int/Documents/AdoptedText/TA02/EREC1582.htm.

56. United Nations Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 48/104 (1993), Preamble, available at http://www.un.org/womenwatch/daw/cedaw/text/ econvention.htm.

57. Zeynep Alat, 1HZV FRYHUDJH RI YLROHQFH DJDLQVW ZRPHQ 7KH 7XUNLVK FDVH, 6 F EMINIST M EDIA S TUD IES 295 (2006); Lisa Evans, 'HVSHUDWH ORYHUV DQG ZDQWRQ ZRPHQ 3UHVV UHSUHVHQWDWLRQV RI GRPHVWLF violence, 27 H ECATE 147 (2001); Deborah, Jermyn, Âł'HDWK RI WKH JLUO QH[W GRRU´ &HOHEULW\ IHPLQLQity, and tragedy in the murder of Jill Dando, 1 F EMINIST M EDIA S TUDIES 343 (2001); SebastiĂĄn Lacunza â&#x20AC;&#x153;Ten Commandmentsâ&#x20AC;? of non-sexist language for reporting on violence against women, IPS NEWS , Oct. 28, 2003, available at http://www.alternet.org/story/104318/.

58. The IFJ represents over 600,000 journalists through its membership of journalism organizations worldwide. International Federation of Journalists, About the IFC, http://www.ifj.org/en/pages/about-ifj.

59. I NTER NATIONAL F EDER ATION OF JOUR NALISTS , IJF G UIDELINES FOR R EPORTING ON VIOLENCE A GAINST WOMEN (n.d. [2009?]), http://www.ifj.org/assets/docs/185/063/c3093b9-8c8e63f.pdf.

60. â&#x20AC;&#x153;For the purposes of this Declaration, the term â&#x20AC;&#x2DC;violence against womenâ&#x20AC;&#x2122; means any act of genderbased violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.â&#x20AC;? United Nations Declaration on the Elimination of Violence Against Women, G.A. R ES . 48/104 (1993), Art. I, http://www.un.org/documents/ga/res/48/a48r104.htm.

61. â&#x20AC;&#x153;The Dart Center for Journalism and Trauma, a project of the Columbia University Graduate School of -RXUQDOLVP LV GHGLFDWHG WR LQIRUPHG LQQRYDWLYH DQG HWKLFDO QHZV UHSRUWLQJ RQ YLROHQFH FRQĂ&#x20AC;LFW DQG WUDJedy.â&#x20AC;? Dart Center for Journalism and Trauma, About the Dart Center, http://dartcenter.org/overview.

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that violence against women has (sic) an inexplicable tragedy that cannot be solved.

7. Tell the whole story: VRPHWLPHV PHGLD LGHQWLI\ VSHFLÂżF LQFLGHQWV DQG IRFXV RQ the tragic aspects of it, but reporters do well to understand that abuse might be part RI D ORQJ VWDQGLQJ VRFLDO SUREOHP DUPHG FRQĂ&#x20AC;LFW RU SDUW RI D FRPPXQLW\ KLVWRU\ * * * 10. Provide Useful Information: reports that include details of sources and the contact details of local support organizations and services will provide vital and helpful information for survivors/witnesses and their families and others who may be affected.62

I MPROVING C OVER AGE BY E DUCATING JOURNALISTS

T

here is reason to believe that media coverage of domestic violence improves when MRXUQDOLVWV DUH HGXFDWHG DERXW WKH ÂżQGLQJV DQG UHFRPPHQGDWLRQV RI VWXGLHV RI GRmestic violence coverage. A longitudinal analysis conducted after the appearance of Rhode Islandâ&#x20AC;&#x2122;s 'RPHVWLF 9LROHQFH $ +DQGERRN IRU -RXUQDOLVWV63 considered newspaper reporting in that state for the four years before and the two years after publication of the guide.64 1HZVSDSHU FRYHUDJH ZDV PHDVXUHG LQ WHUPV RI IRXU VSHFLÂżF UHFRPPHQGDWLRQV PDGH LQ WKH handbook: 1) Use the words â&#x20AC;&#x153;domestic violenceâ&#x20AC;? to set the context of the crime, 2) $VN WKH SROLFH LI WKH FULPH ÂżWV WKH OHJDO GHÂżQLWLRQ RI GRPHVWLF YLROHQFH 3) Avoid quoting neighbors and others who lack information and often reinforce the myth that domestic violence is random and unpredictable with statement such as, â&#x20AC;&#x153;They seemed to be nice.â&#x20AC;? and, 4) Use sources who can put individual acts of domestic violence into the context of a pattern of abuse, such as survivors, advocates and the police.65

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The study results show that the media strongly embraced the practices suggested in the handbook.66 Prior to the publication of the handbook, 51.5 percent of newspaper articles LGHQWL¿HG LQWLPDWH SDUWQHU PXUGHUV DV ³GRPHVWLF YLROHQFH ´67 Post-publication, the percentage climbed to 87.2 percent.68

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62. I NTER NATIONAL F EDER ATION OF JOUR NALISTS , IJF G UIDELINES FOR R EPORTING ON VIOLENCE A GAINST WOMEN, supra note 59.

63. Rhode Island Coalition Against Domestic Violence, supra note 42.

64. Ryan, et. al. , supra note 4.

65. ,G at 15 (quoting D OMESTIC VIOLENCE: A H A NDBOOK FOR JOUR NALISTS , supra note 63).

66. It must be noted that Rhode Island press coverage of domestic violence improved not only as a result of the handbook but also because of a relationship forged between the domestic violence community and the press. The Rhode Island Coalition against Domestic Violence worked closely with the media in the preparation of the handbook. After publication that relationship was maintained. The Coalition began to initiate contact with reporters after a domestic violence homicide and to quickly provide those reporters with the criminal history of the alleged perpetrator. A lesson to be learned from this experience is that it is not enough to place sole responsibility on the media for its reporting. The domestic violence community must understand the quality and time needs of the media and must sponsor stories.

67. Ryan, et. al,, supra note 64, at 218.

68. ,G

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Prior to the availability of the handbook, 21.7 percent of domestic violence homicide stories used a domestic violence advocate as a lead source; after the handbook became available domestic violence advocates were used as a lead source in 43.2 percent of stories.69 Quotations in stories from professionals who can explain domestic violence and describe the availability of resources more than doubled.70 The use of police sources for information went up by more than 35 percent,71 while reliance on well-meaning, but uninformed, community residents as a news source, dropped by more than 75 percent.72

C ONCLUSION

D

omestic violence is a serious social problem that can be properly addressed by policymakers only if the public has accurate information about the problem. With the mediaâ&#x20AC;&#x2122;s ability to educate the public about the issue, it is important that media coverage of domestic violence accurately describes the problem and places individual cases into FRQWH[W 6HYHUDO VWXGLHV RI PHGLD FRYHUDJH KDYH LGHQWLÂżHG DUHDV LQ ZKLFK UHSRUWLQJ FDQ be improved, and there is evidence that a media guide which recommends better reporting practices can successfully encourage more informative coverage of domestic violence.

Suggested standards for development of such a guide, as well as a generic media guide for coverage of domestic violence designed for adaptation by interested persons or organizations for use in any community, are provided in the appendixes.

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69.

70.

71.

72.

,G at 220 (Table 1). ,G at 219. ,G ,G

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A PPENDIX A: SUGGESTED STANDARDS FOR DEVELOPMENT MEDIA GUIDE FOR C OVER AGE OF D OMESTIC VIOLENCE

OF A

1. The purpose of a domestic violence media guide is to assist a reporter by providing immediate and easy access to reliable and balanced information.

2. A media guide should be credible, and its credibility should be apparent at a glance.

The endorsements of local media organizations, domestic violence organizations, MXGLFLDO RUJDQL]DWLRQV SURVHFXWRUVÂś RIÂżFHV DQG EDU DVVRFLDWLRQV VKRXOG EH VROLFLWHG DQG should appear on the cover of a media guide.

3. A media guide should make recommendations for the improvement of the coverage of domestic violence.

More than a dozen media studies describe newspaper coverage of domestic violence DQG PDNH ÂżQGLQJV DQG RU UHFRPPHQGDWLRQV UHODWHG WR WKH LPSURYHPHQW RI WKDW FRYHUage.73 Every media guide should include recommendations derived from those studies.

Such recommendations include: a. Journalists often characterize an act of violence as an isolated incident when, in reDOLW\ LW UHĂ&#x20AC;HFWV D SDWWHUQ RI FRQGXFW 3DUWLFXODUO\ LI IDPLO\ PHPEHUV H[SUHVV VXUSULVH at the attack, it is easy to slip into a suggestion the person just â&#x20AC;&#x153;snappedâ&#x20AC;? or had an uncharacteristic lapse of control. A better practice, and a more accurate account, results when the reporter takes the time to fully probe the history of prior instances. b. 6RPHWLPHV DUWLFOHV UHSRUW WKH DEXVHUÂśV MXVWLÂżFDWLRQ IRU WKH YLROHQFH ZKLFK FRPmonly involves blaming the victim or the â&#x20AC;&#x153;system.â&#x20AC;? Often the victim and the â&#x20AC;&#x153;systemâ&#x20AC;? are not free to respond because of fear, or because of physical or legal constraints. Presentation solely of the abuserâ&#x20AC;&#x2122;s point of view implies that the abuserâ&#x20AC;&#x2122;s YLROHQFH ZDV MXVWLÂżHG RU PRWLYDWHG E\ WKH EHKDYLRU RI VRPHRQH HOVH

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c. The warning signs of domestic violence are understood and should be conveyed in coverage. Coverage also should emphasize that abuse is a learned behavior, and that victims can be protected. Any implication that a particular instance was inexplicable is likely incorrect. d. It is inaccurate to imply that â&#x20AC;&#x153;normalâ&#x20AC;? or successful people arenâ&#x20AC;&#x2122;t typical perpetrators of domestic violence. In fact, domestic abusers often present two images: skillful in social and business settings but controlling and obsessive in intimate relationships. e. It is good practice to use the term â&#x20AC;&#x153;domestic violenceâ&#x20AC;? in describing the crime, giving the public a vocabulary with which to identify it as part of a larger social issue. For more than three decades, the United States and most of its communities have been engaged in a massive effort to provide resources to address the societal problem of domestic violence. News reports should acknowledge the existence of that effort and the availability of those resources by correctly labeling the conduct being reported.

07/03/2012 13:52:34

f. It is good practice to look for a history of controlling behavior in a particular case.

Reporters should review court records for prior criminal, divorce, child custody, 73. See supra text accompanying notes 6 - 54.

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parental rights and Temporary Protection Order (TPO) cases. They should also check law enforcement records for prior arrests and police responses to allegations of domestic violence involving the same persons or address. g. It is good practice to seek a statement from a local domestic violence advocate or from a recognized domestic violence expert when covering the issue. h. It is good practice to use statements from associates of the abuser with caution.

Domestic violence is often unknown to friends and neighbors until it becomes murder. Balance statements that express surprise at the abuserâ&#x20AC;&#x2122;s conduct with any record of past controlling behavior and general information about domestic violence. i. It is good practice to report that domestic violence often is worst during pregnancy and when the victim tries to separate, or has separated, from the abuser. j. It is good practice to include information from a media guide that adds context and depth to a story about domestic violence. k. It is good practice to comment on the impact of the domestic violence on children, families, employers, the community and the larger society. l. It is good practice to include local contact information for reporting and seeking protection from domestic violence. m. It is good practice to prevent future domestic violence by providing information to allow present and potential abusers to identify themselves, to understand that change is possible and to seek help to change their behaviors.

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n. Reporters should be aware that abusers use news reports to threaten their victims with similar fates or to reinforce the belief that, like the victim in the reporterâ&#x20AC;&#x2122;s story, the victim will be humiliated and not believed. Reporters can reduce the likelihood of this perversion of their reporting by including information about domestic violence and the availability of resources for victims that an abuser will not want a victim to see.

4. Materials included in a media guide should be in a format suitable for publication, and reporters should be encouraged to use those materials.

A reporterâ&#x20AC;&#x2122;s job is often to produce an accurate story under deadline. A media guide should provide immediate assistance to a reporter, including free use of reliable, noncopyrighted material.

5. A media guide should include Internet links to well-chosen, authoritative VRXUFHV RI DGGLWLRQDO LQIRUPDWLRQ RQ VSHFLÂżF WRSLFV

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Trained reporters are taught not to plagiarize and may be reluctant to use materials written by another, even when such use is invited. Further, space is limited in a media guide. Materials provided within a guide are necessarily abbreviated and as a result PD\ EH RU PD\ QRW EH VXIÂżFLHQW IRU UHSRUWHUVÂś QHHGV 7KXV WKH JXLGH VKRXOG SURYLGH links to authoritative web sites for more detailed information.

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6. A media guide should include materials that discuss the local domestic violence scene and response.

6WRULHV RI ORFDO VLJQLÂżFDQFH PLJKW GHVFULEH VHUYLFHV DYDLODEOH IRU YLFWLPV RU DEXVHUV WKH legal process to which those arrested for domestic violence are subjected, local statutes and court procedures, and/or local domestic violence statistics.

Local domestic violence advocates and prosecutors are good sources of information about community responses to domestic violence. Other sources of local materials include: Â&#x2021; On Dec. 14, 2011, the Centers for Disease Control and Prevention (CDC) released WKH ÂżUVW 1DWLRQDO ,QWLPDWH 3DUWQHU DQG 6H[XDO 9LROHQFH 6XUYH\ FRQGXFWHG WR EHWWHU describe and monitor sexual violence, stalking and intimate partner violence in the United States. State-level information, which was developed to help states better understand the burden of this violence and address its health consequences is available at http://www.cdc.gov/violenceprevention/nisvs/state_tables.html. Â&#x2021; The latest FBI statistics, by state, on homicides committed by men against women are available from the Violence Policy Center at http://www.vpc.org/studies/ wmmw2011.pdf. Â&#x2021; 7KLUW\ VWDWHV KDYH DGGUHVV FRQÂżGHQWLDOLW\ SURJUDPV WR SURWHFW YLFWLPV RI GRPHVWLF violence. A list of these states and contact information, compiled by the MinneVRWD 6HFUHWDU\ RI 6WDWHÂśV RIÂżFH LV DYDLODEOH DW http://www.sos.state.mn.us/index. aspx?page=894.

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7. $ PHGLD JXLGH VKRXOG DOHUW D UHSRUWHU WR VLJQLÂżFDQW LVVXHV DERXW GRPHVWLF violence, including the following. Some materials are applicable everyZKHUH JHQHULF DQG VRPH DUH VXLWDEOH IRU XVH RQO\ LQ D VSHFLÂżF JHRJUDSKLF area (local). Generic material is included in the media guide template in Appendix B to this article. a. What is domestic violence? (generic) b. Why do victims stay with abusers? (generic) c. What help is available for victims of domestic violence? (local) d. The effect of domestic violence on children. (generic) e. Safety planning for domestic violence victims. (generic) f. The warning signs of domestic violence. (generic) g. Why are some people abusers? (generic) h. Are you an abuser? (generic) i. How can abusers be helped? (local/generic) j. Animal cruelty and domestic violence. (generic) k. Domestic violence and guns. (generic) l. Domestic violence stories of local interest. (local) m. Costs to society of domestic violence. (generic)

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n. 'RPHVWLF YLROHQFH DQG VSHFL多F SRSXODWLRQV JHQHULF

i. Dating years ii. Elderly iii. Tribal iv. Military v. Lesbian, gay, bisexual, transgender and HIV-affected vi. Immigrants o. Domestic violence statistics. (generic) i. Local statistics. (local) ii. National statistics. (generic) p. Domestic violence and faw of locality. (local) q. Domestic violence and federal law. (generic/local) 8. If the capacity exists to produce new materials, reporters should be promised fresh materials suitable for publication at a reliable frequency.

The Rhode Island Coalition against Domestic Violence found that the quality of reporting was enhanced when it contacted reporters proactively following domestic violence incidents.74 Providing a reliable source of fresh news may cause a reporter to use an updated media guide again and again. Providing a harried reporter with the criminal history of an alleged perpetrator may encourage trust and reliance. Local service providers, law enforcement, attorneys and the courts may be sources of new materials.

9. $ PHGLD JXLGH VKRXOG LQFOXGH LGHQWL多FDWLRQ DQG D GHVFULSWLRQ RI DOO DYDLOable local resources.

Such information will be useful to a reporter seeking a reliable news source, and will also be useful to members of the public interested in obtaining or recommending services.

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Local resources change constantly. In online versions of a media guide, it is appropriate to provide an Internet link to a list maintained by a certifying agency in lieu of reproducing that list within the guide. In paper versions, the list should be set forth with an Internet URL link for updated information.

10. A media guide should contain only information that is useful to the reporter.

The length of a media guide may affect its utility for a reporter. A long document may be ignored rather than kept at hand for frequent reference. Prefatory and title pages should be minimized because such materials do not contribute to proper news coverage. Repetition of information within a guide should be limited.

11. A media guide should not include a review of media studies.

Three existing media guides include a report on a media study in support of their recommendations for changes to traditional reporting practices.75 It was appropriate to include such material when the nature of newspaper reporting of domestic violence was little studied. Things have changed. The number of media studies has multiplied

07/03/2012 13:52:34

74. Ryan, et. al., supra note 4.

75. Delaware Coalition Against Domestic Violence,, supra note 44; Rhode Island Coalition Against Domestic Violence, supra note 42; and Washington State Coalition Against Domestic Violence, supra note 43.

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DQG WKH ¿QGLQJV RI WKRVH VWXGLHV DUH FRQ¿UPHG E\ WKHLU VLPLODULW\ 7KH FUHGLELOLW\ RI recommendations contained within future media guides will not be dependent upon the completion of yet another media study. The limited space available within a media guide should be used for materials a reporter can include in news coverage.

12. A media guide should not be a treatise on domestic violence.

There are a large number of books, journals and articles that discuss domestic violence. Even when domestic violence is examined from the perspective of a particular locality, the literature necessary to thoroughly address the topic is voluminous.76 A useful media guide should not attempt to reproduce the encyclopedic scope of such works. It is not the goal of a media guide to turn reporters or newspaper readers into domestic violence experts or to make them conversant with the latest debates within the community that studies domestic violence.

13. Most controversial topics that are unnecessary to accurate reporting of domestic violence should be avoided.

As with any issue of societal importance, some aspects of domestic violence are controversial. For example, some men’s groups urge that there exists a parental alienation syndrome, induced by mothers and suffered by children, that causes children to XQMXVWL¿DEO\ VHYHU WKHLU DWWDFKPHQWV WR WKHLU IDWKHUV 77 Some women’s groups criticize this purported syndrome as a means by which fathers blame mothers for the fathers’ parenting failures.78 An example of writing that is likely to provoke a backlash if reported as objective fact is Marian Meyers’ statement, “It is also worth noting that men cannot be the victims of sexist violence, for they constitute the dominant class and their victimization can RFFXU RQO\ ZLWKLQ D FRQWH[W WKDW GLIIHUV IURP WKDW GH¿QHG E\ VH[LVW YLROHQFH ´79 This is an expression of the point of view that American society is a patriarchy. Some accept this view as obvious truth. Others reject the view and argue, instead, that men are the victims of recent state and federal legislation.

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,W ZRXOG EH D GLVVHUYLFH WR OHDG D UHSRUWHU RQWR DQ\ RI WKHVH EDWWOH¿HOGV XQZDUQHG and unarmed. Warnings and a description of opposing views require space on a page.

Space in a media guide should be limited. Every topic appearing in a guide must compete for space with every other topic that might appear.

7KLV DXWKRU GRHV QRW VXJJHVW WKDW WKHUH LV DOZD\V HTXLYDOHQFH EHWZHHQ FRQÀLFWLQJ SRVLtions, only that it is inappropriate to utilize the resources of a humble media guide for combat that has been suitably waged on the broader expanse of scholarly research. A very useful media guide can be prepared without enlisting the reporter to a particular point of view or exposing the reporter to predictable attack.

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76. See, e.g., THE URBA N G ROUP LLC. NEVADA DOMESTIC VIOLENCE RESOURCE MA NUAL (2000). This guide is 370 pages long.

77. See, e.g., Richard A. Gardner, Recommendations for Dealing with Parents Who Induce a Parental Alienation Syndrome in Their Children. 8 I SSUES IN C HILD A BUSE A CCUSATIONS 174 (1997).

78. See, e.g., Lyn Cockburn, *RW D JUXGJH" ,QYHQW D V\QGURPH, 12(4) H ERIZONS 32 (Winter 1999).

79. Meyers, supra note 8, at 8.

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14. Types of domestic violence Womenâ&#x20AC;&#x2122;s groups have traditionally claimed that most batterers are men and most victims of domestic violence are women,80 while menâ&#x20AC;&#x2122;s groups claim that men and women are equally perpetrators and victims.81 Each group has contended that the view of the other is objectively false.82 Because a hostile challenge frequently follows publication of either view, some explanation is warranted.

In their article, &RQWH[W LV (YHU\WKLQJ 'RPHVWLF 9LROHQFH LQ WKH 5HDO :RUOG 83 Billie Lee Dunford-Jackson and Judge Scott Jordan wrote that the term â&#x20AC;&#x153;domestic violenceâ&#x20AC;? has two related but distinct meanings. â&#x20AC;&#x153;Course-of-conductâ&#x20AC;? domestic violence, also referred to by the authors as â&#x20AC;&#x153;true domestic violence,â&#x20AC;? is â&#x20AC;&#x153;an intentional pattern of coercive behavior, patterned and repetitive, in which the batterer engages with the sole purpose of achieving and maintaining power and control over the victim.â&#x20AC;? â&#x20AC;&#x153;Single LQVWDQFH´ GRPHVWLF YLROHQFH LV LQĂ&#x20AC;LFWHG E\ D RQH WLPH DVVDLODQW ZKR ÂłGRHV QRW FKDUDFteristically or routinely react in violence against either the target victim or others and does not use other tactics to obtain and maintain power and control over the victim. â&#x20AC;Ś Such people tend at the time of the assault to be suffering unusually high stress in some area of life, whether physical or emotional.â&#x20AC;?

For decades, mainstream womenâ&#x20AC;&#x2122;s groups used the term domestic violence to refer almost exclusively to the course-of-conduct variety.84 Many still do. For example, the 8 6 2IÂżFH RQ 9LROHQFH $JDLQVW :RPHQ GHÂżQHV GRPHVWLF YLROHQFH DV D ÂłSDWWHUQ RI DEXsive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partnerâ&#x20AC;?85

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2WKHU RUJDQL]DWLRQV RIIHU GHÂżQLWLRQV WKDW GR QRW GHVFULEH WKH YLROHQFH DV HLWKHU DQ isolated incident or a part of a pattern of behavior. Some physicians, for example, deÂżQH LQWLPDWH SDUWQHU DEXVH DV ÂłWKH SK\VLFDO VH[XDO DQG RU SV\FKRORJLFDO DEXVH WR DQ individual perpetrated by a current or former intimate partner.â&#x20AC;?86 State laws typically GHÂżQH GRPHVWLF YLROHQFH DV D VSHFLÂżF RFFXUUHQFH ZLWKRXW UHJDUG WR ZKHWKHU LW LV D SDUW of a course of conduct. For example, the model code on domestic and family violence proposed by the National Council of Juvenile and Family Court Judges provides the IROORZLQJ GHÂżQLWLRQ Domestic or family violence means the occurrence of one or more of the following acts by a family or household member, but does not include acts of self-defense:

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80. Joan B. Kelly & Michael P. Johnson, 'LIIHUHQWLDWLRQ DPRQJ W\SHV RI LQWLPDWH SDUWQHU YLROHQFH 5Hsearch update and implications for interventions. 46 FA M . C T. R EV. 476, 478-80 (2008).

81. ,G at 480.

82. ,G .

83. Billie Lee Dunford-Jackson & Scott Jordan, &RQWH[W LV HYHU\WKLQJ 'RPHVWLF YLROHQFH LQ WKH UHDO world, 11 JU VENILE & FA MILY JUST. TODAY 12 (2003).

84. Peter Salem & Billie Lee Dunford-Jackson, %H\RQG SROLWLFV DQG SRVLWLRQV $ FDOO IRU FROODERUDWLRQ between family court and domestic violence professionals. 46 FA M . C T. R EV. 437 (2008).

85. U.S. D EPARTMENT OF JUSTICE , O FFICE OF VIOLENCE A GAINST WOMEN, A BOUT D OMESTIC VIOLENCE . available at http://www.ovw.usdoj.gov/domviolence.htm.

86. Michael A. Rodriguez; Heidi M. Bauer; Elizabeth McLoughlin; & Kevin Grumbach, Screening and LQWHUYHQWLRQ IRU LQWLPDWH SDUWQHU DEXVH 3UDFWLFHV DQG DWWLWXGHV RI SULPDU\ FDUH SK\VLFLDQV. 282 JAMA, THE JOUR NAL OF THE A MERICA N M EDICAL A SSOCIATION 468 (1999) , available at http://jama. ama-assn.org/content/282/5/468.full.pdf.

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1) Attempting to cause or causing physical harm to another family or household member; 2) Placing a family or household member in fear of physical harm; or 3) Causing a family or household member to engage involuntarily in sexual activity by force, threat of force or duress.87 In a recent paper, Joan B. Kelly and Michael P. Johnson, assert that differentiation among types of domestic violence is necessary to fair discussion: On the one hand, gender-neutral laws have been enacted that identify any act of violence by one partner against another as domestic violence. â&#x20AC;Ś On the other hand, for many LQ WKH ÂżHOG GRPHVWLF YLROHQFH GHVFULEHV D FRHUFLYH SDWWHUQ RI PHQÂśV SK\VLFDO YLROHQFH intimidation, and control of their female partners (i.e. battering). The terms domestic violence and battering have been used interchangeably by womenâ&#x20AC;&#x2122;s advocates, domestic violence educators, and service providers for three decades, based on their belief that all incidents of domestic violence involve male battering. â&#x20AC;Ś Among some social scientists, it LV QR ORQJHU FRQVLGHUHG VFLHQWLÂżFDOO\ RU HWKLFDOO\ DFFHSWDEOH WR VSHDN RI GRPHVWLF YLROHQFH without specifying the type of violence to which one refers.88

A reporter should anticipate that public discussion of domestic violence might involve participants who apply different meanings to the term. Traditional domestic violence groups, which are the best funded and organized of participants, tend to speak only about course-of-conduct domestic violence. There is strong evidence that most such violence is perpetrated by men against women.89 Fathersâ&#x20AC;&#x2122; rights groups, which frequently react publicly to the assertions of traditional domestic violence groups, cite studies that claim there is equivalence between men and women both as perpetrators and as victims of domestic violence.90 Such studies count primarily incidents of single instance domestic violence that are more common than incidents of course-of-conduct domestic violence.91

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7KH WUXWK LV WKDW ERWK RI WKHVH WZR VXSHUÂżFLDOO\ FRQWUDGLFWRU\ SRVLWLRQV DUH correct. They are, however, referring to different types of violence that occur ZLWKLQ D GRPHVWLF VHWWLQJ 7KH GLIIHUHQW GHÂżQLWLRQV RI WKH WHUP ÂłGRPHVWLF YLRlenceâ&#x20AC;? have been a cause of misunderstanding and acrimony between womenâ&#x20AC;&#x2122;s groups and menâ&#x20AC;&#x2122;s groups, and have also caused confusion between womenâ&#x20AC;&#x2122;s JURXSV DQG IDPLO\ FRXUW SURIHVVLRQDOV Âł7KHVH KLVWRULFDOO\ FRPSHWLQJ GHÂżQLtions have had professionals talking past one another for years.â&#x20AC;?92 Media coverage should acknowledge this difference in meaning and attempt to DYRLG WKH GLIÂżFXOWLHV LW FUHDWHV LQ SXEOLF GLVFXVVLRQ 6WDWLVWLFV WKDW VKRZ HLWKHU D predominance of female victimization or a gender equivalence of victimization should be presented with explanation.

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87. NATIONAL C OUNCIL OF JU VENILE A ND FA MILY C OURT JUDGES , FA MILY VIOLENCE: A MODEL S TATE C ODE (1994).

88. Joan B. Kelly & Michael P. Johnson 'LIIHUHQWLDWLRQ $PRQJ 7\SHV 2I ,QWLPDWH 3DUWQHU 9LROHQFH 5HVHDUFK 8SGDWH DQG ,PSOLFDWLRQV )RU ,QWHUYHQWLRQV. 46 FA M . C T. R EV. 476 (2008).

89. 8 6 'HSDUWPHQW RI -XVWLFH 2IÂżFH RI -XVWLFH 3URJUDPV %XUHDX RI -XVWLFH 6WDWLVWLFV )DPLO\ YLROHQFH statistics (June 2005).

90. See, e.g., John Archer, 6H[ 'LIIHUHQFHV ,Q $JJUHVVLRQ %HWZHHQ +HWHURVH[XDO 3DUWQHUV $ 0HWDDQDlytic Review, 126 PSYCH. BULL . 651 (2000).

91. Peter Salem & Billie Lee Dunford-Jackson. supra note 84.

92. ,G

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15. A media guide should be easy to use.

The entire media industry is experiencing a fundamental transformation as a result of the poor economy and competition from the Internet. Fewer resources are available for newsgathering than in times past. In many cases, inexperienced reporters are UHVSRQVLEOH IRU GRPHVWLF YLROHQFH FRYHUDJH $Q HI¿FLHQW WRRO WR LPSURYH FRYHUDJH RI domestic violence is more necessary today than ever.

16. A media guide should be adaptable for use in any community, county or state.

Domestic violence is a national problem with characteristics that are largely the same from place to place. A generic guide that provides a structure and makes use of interFKDQJHDEOH XQLWV RI ORFDO VLJQL¿FDQFH LV SRVVLEOH The length of a media guide is determined, to some extent, by the size of the population it hopes to serve. Generally, there are more domestic violence services available in areas with greater population. It is appropriate that such services be described within a guide. A statewide media guide would be unwieldy in states with several large metropolitan areas and a corresponding large number of domestic violence service providers.

0HGLD JXLGHV DGGUHVVHG WR VPDOOHU DUHDV ZLOO UHTXLUH WKH LGHQWL¿FDWLRQ RI IHZHU VHUYLFH providers and permit space for a more detailed description of available services. PerVRQV SUHSDULQJ D PHGLD JXLGH FDQ XVXDOO\ ¿QG D GHVFULSWLRQ RI DYDLODEOH VHUYLFHV RQ D service provider’s website or within printed informational materials.

A guide should describe the law in the area where the guide is to be distributed. Since most domestic violence laws are state laws, the need for a description of applicable GRPHVWLF YLROHQFH ODZV ZLOO OLNHO\ OLPLW WKH XWLOLW\ RI D JXLGH WR WKH FRQ¿QHV RI D VLQJOH state. Within a state, a media guide should be practical for any geographic division (i.e. a city, town, county, area or the entire state).

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17. A media guide should be inexpensive to produce and easy to modify, update, access and replace. It should be indestructible.

These factors suggest that a guide should be available on the Internet.

18. The production and distribution of a guide is in itself a newsworthy event that should be used to bring attention to the issue of domestic violence and to the organizations responsible for the guide.

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A PPENDIX B: TEMPLATE DOMESTIC VIOLENCE

OF

MEDIA GUIDE

FOR

C OVER AGE

OF

COVERING DOMESTIC VIOLENCE: A GUIDE FOR INFORMED MEDIA REPORTING IN [STATE OR LOCALITY] by This Guide is endorsed by: This Guide is available online at:

The author permits -- and encourages -- reporters and editors to make verbatim use of the materials contained within this media guide.

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Contents I. How to recognize a domestic violence story II. Questions to consider when covering a domestic violence story III. More Ideas for Stories on Domestic Violence 1) What is domestic violence?

2) Why do victims stay with abusers?

3) What help is available for victims of domestic violence?

4) Six things to say to a victim of domestic violence 5) The effect of domestic violence on children 6) Safety planning for domestic violence victims 7) The warning signs of domestic violence 8) Why are some people abusers?

9) Are you an abuser?

10) How can abusers be helped?

11) Animal cruelty and domestic violence 12) Domestic violence and guns 13) Domestic violence stories of local interest 14) Costs to society of domestic violence 15) 'RPHVWLF YLROHQFH DQG VSHFL多F SRSXODWLRQV A. Dating years B. Elderly C. Tribal D. Military E. Lesbian, gay, bisexual, transgender and HIV-affected F. Immigrants 16) Domestic violence statistics A. Local B. National 17) Domestic violence and local law 18) Domestic violence and federal law IV. Local domestic violence resources 1) Publications 2) Policy organizations 3) Domestic violence services

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I. How to Recognize a Domestic Violence Story It is a domestic violence story if there is now, or was in the past, an intimate or family relationship between the perpetrator and the victim of violence.

II. Questions to Consider When Covering a Domestic Violence Story 1) Have there been prior incidents?

An act of domestic violence is often portrayed as an isolated incident when, in fact, it is part of a pattern of conduct. Particularly if family members express surprise at the attack, it is easy to slip into a suggestion that the person just “snapped” or had an uncharacteristic lapse of control. A more accurate and complete story will result if prior conduct is also reported. Look for a history of controlling behavior. Review court records for prior criminal, divorce, child custody, parental rights and temporary protection order (TPO) cases. Check law enforcement records for prior arrests and police response to allegations of domestic violence involving the same persons or address.

Establish a relationship with a trusted, local domestic violence organization that will obtain publicly available records for you.

2) Who can speak for the victim? $Q DEXVHU¶V MXVWL¿FDWLRQ IRU YLROHQFH FRPPRQO\ LQYROYHV EODPLQJ WKH YLFWLP RU WKH “system.” The victim and the “system” may not be free to dispute the abuser’s allegations because of fear, or because of physical or legal constraints. Presentation solely of WKH DEXVHU¶V SRLQW RI YLHZ LPSOLHV WKDW WKH DEXVHU¶V YLROHQFH ZDV MXVWL¿HG RU PRWLYDWHG by the behavior of someone else.

3) Why did this happen?

Warning signs of domestic violence are understood. Victims can be protected. Abuse is a learned behavior. Any implication that the crime was inexplicable is likely incorrect.

Contact an expert to give you insight.

4) What’s the true portrait?

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It is incorrect to imply that “normal” or successful people aren’t typical perpetrators of domestic violence. In fact, domestic abusers often present two images: skillful in social and business settings but controlling and obsessive in intimate relationships.

5) What language should describe domestic violence?

It is good practice to use the term “domestic violence” in describing the crime. Give the public a vocabulary with which to identify a social issue. The United States and most of its communities have been engaged in a massive effort for more than three decades to provide resources to address the societal problem of domestic violence. Acknowledge the existence of that effort and the availability of those resources by correctly labeling the conduct you are reporting.

6) Are authoritative points of view available?

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Seek a statement from, or consult with, a local domestic violence advocate or a recognized domestic violence expert.

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7) How much do friends and neighbors really know?

Use statements from associates of the abuser with caution. Domestic violence is often unknown to friends and neighbors until it becomes murder. Balance statements that express surprise at the abuserâ&#x20AC;&#x2122;s conduct with any record of past controlling behavior and information about domestic violence.

8) Were they separating? Was she pregnant?

Domestic violence often is worst when the victim tries to separate or during pregnancy because the abuserâ&#x20AC;&#x2122;s control of the victimâ&#x20AC;&#x2122;s behavior is threatened.

9) Where can more contextual information be obtained?

Information from this media guide may be used to add context and depth to a story about domestic violence.

10) What is the impact beyond this victim?

Experts can help describe the impact of the domestic violence on children, families, employers, the community and the larger society.

11) How can victims get help?

Include local contact information for domestic violence services. Many victims are unaware of the available support and, except through your reporting, may be unable to safely access this information.

12) How can abusers get help?

One way to help prevent future domestic violence is by providing information to allow present and potential abusers to identify themselves, to understand that change is possible and to seek help to change their behaviors.

13) Can a story make things worse?

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Reporters should be aware that abusers use news reports to threaten their victims with similar fates or to reinforce the belief that, like the victim in the reporterâ&#x20AC;&#x2122;s story, the victim will be humiliated and not believed. Reporters can reduce the likelihood of this perversion of their reporting by following these suggestions.

III. More Ideas for Stories on Domestic Violence 1) What is domestic violence?

The meaning of â&#x20AC;&#x153;domestic violenceâ&#x20AC;? can be a source of confusion for the media and the SXEOLF EHFDXVH LPSRUWDQW JURXSV XVH GLIIHUHQW GHÂżQLWLRQV IRU WKH WHUP $PRQJ RWKHUV FRPPRQ GHÂżQLWLRQV LQFOXGH WKH IROORZLQJ A) The laws of many states use the term domestic violence to embrace any act of actual or threatened violence between individuals within a family or household.

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B) Some scholars, mainstream womenâ&#x20AC;&#x2122;s groups, and domestic violence educators use the term â&#x20AC;&#x153;domestic violenceâ&#x20AC;? almost exclusively to refer to acts occurring as part of D SDWWHUQ RI FRQWURO )RU H[DPSOH WKH 8 6 'HSDUWPHQW RI -XVWLFH 2IÂżFH RI 9LROHQFH $JDLQVW :RPHQ GHÂżQHV GRPHVWLF YLROHQFH DV ÂłD SDWWHUQ RI DEXVLYH EHKDYLRU LQ DQ\ relationship that is used by one partner to gain or maintain power and control over

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another intimate partner. Domestic violence can be physical, sexual, emotional, HFRQRPLF RU SV\FKRORJLFDO DFWLRQV RU WKUHDWV RI DFWLRQV WKDW LQĂ&#x20AC;XHQFH DQRWKHU person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.â&#x20AC;?

Domestic violence, as a course of conduct, is also described as â&#x20AC;&#x153;battering.â&#x20AC;? This violence requires the greatest use of medical, shelter and law enforcement services and is the most lethal, overall, in domestic situations. Studies show that 86 percent of victims are women.

C) Some scholars and mainstream menâ&#x20AC;&#x2122;s groups refer to single instances, or isolated acts as domestic violence. They describe one-time assaults, committed at times of high stress, which are not part of a pattern of conduct intended to create or maintain power and control.

Studies suggest that while this may be the most common variety of violence between family members it typically results in less injuries and less severe injuries than domestic violence that is part of a pattern of control. These studies suggest that men and women are victims more or less equally of this kind of violence.

Reporters should be alert that confusion and controversy often result when any GHÂżQLWLRQ RI ÂłGRPHVWLF YLROHQFH´ LV DGYDQFHG DV WKH ÂłRQO\´ GHÂżQLWLRQ )RU H[DPSOH womenâ&#x20AC;&#x2122;s and menâ&#x20AC;&#x2122;s groups frequently offer seemingly contradictory statistics on WKH JHQGHU RI GRPHVWLF YLROHQFH YLFWLPV 7KH UHVROXWLRQ RI DSSDUHQWO\ FRQĂ&#x20AC;LFWLQJ views is, sometimes, that groups are using the same term to refer to different types of violence that occur within domestic settings. The media can attempt to avoid misunderstanding by providing explanation where appropriate.

2) Why do victims stay with abusers?

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Victims of domestic violence are often compelled to remain with or return to their abuser. The reason for staying or returning may include physical safety, love, economic dependence, the well-being of children, cultural belief or a hope that the violence wonâ&#x20AC;&#x2122;t happen again. Leaving an abuser can be dangerous because violence often gets worse when the abuserâ&#x20AC;&#x2122;s power and control are threatened by separation. Although it might appear irrational to someone who has never shared the victimâ&#x20AC;&#x2122;s experience, the phenomenon of a victim staying with or returning to an abuser is common. Victims should be educated about domestic violence and encouraged to engage in safety planning, but should not be blamed.

3) What help is available for victims of domestic violence?

A list of domestic violence programs, together with information on shelters, crisis call lines and other services is available online at http://www.thehotline.org/get-help/helpin-your-area/ [or substitute local web site].

4) Six things to say to a victim of domestic violence

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I am afraid for your safety.

I am afraid for the safety of your children.

I am afraid it will only get worse. <RX DUH QRW DORQH , DP KHUH WR KHOS \RX RU , FDQ KHOS \RX ÂżQG VRPHRQH ZKR FDQ KHOS <RX GRQÂśW GHVHUYH WR EH DEXVHG 1R RQH GHVHUYHV WR EH DEXVHG It is not your fault.

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A) B) C) D) E) F)

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5) The effect of domestic violence on children The emotional stress of exposure to domestic violence can harm the development of the brain and impair cognitive and sensory growth in infants and toddlers. Babies have a harder time developing a bond with mothers who are abused than with mothers who are not abused. Children exposed to domestic violence have more health problems, poorer school performance and more behavioral disturbances than children not exposed to domestic violence. For further information visit the futures without violence at: http://www IXWXUHVZLWKRXWYLROHQFH RUJ XVHUÂżOHV ÂżOH FKLOGUHQBDQGBIDPLOLHV FKLOGUHQ SGI RU WKH ORFDO UHVRXUFHV LGHQWLÂżHG LQ WKLV PHGLD JXLGH 6) Safety planning for domestic violence victims Victims can increase their own safety and prepare in advance for the possibility of further violence. Planning might include teaching children to call emergency numbers, removing guns from the home, keeping some money and an extra set of car keys with a friend, and dozens of other strategies that have been successfully used by other victims.

For further information about safety planning visit the National Domestic Violence Hotline at: http://www.ndvh.org/get-help/safety-planning/ or the local resources LGHQWLÂżHG LQ WKLV PHGLD JXLGH 7) The warning signs of domestic violence Physical Domination Actual or threatened strangulation, hitting, kicking, biting, restraint, destruction of property, injuring pets, reckless driving, display of weapons.

Financial Domination Withholding of money for discretionary spending, preventing the victim from working or causing termination of employment.

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Emotional Domination Threats of suicide, removal of children, or deportation, other threatening behavior, destruction of self-esteem, name-calling, yelling, rulemaking, unreasonable jealRXV\ DFFXVDWLRQV RI LQÂżGHOLW\ KXPLOLDWLRQ Social Domination and Isolation Limiting or eliminating the victimâ&#x20AC;&#x2122;s relationships with friends or family and employment, interrogating children, stalking, cyber stalking, opening the victimâ&#x20AC;&#x2122;s mail, monitoring the victimâ&#x20AC;&#x2122;s phone calls, activities, associations, appearance.

Sexual Domination Forcing or withholding sex, affairs, sexual exploitation.

Litigation Domination Legal tactics can be used to harass, retaliate, delay, and economically coerce.

Animal Cruelty

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Separation Separation of the victim from the abuser threatens to break the abuserâ&#x20AC;&#x2122;s control of the victim. Abusers often react to this threat by strongly re-asserting control.

Periods of actual or impending separation are recognized as the most dangerous for victims of domestic violence.

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For further information, visit http://www.aardvarc.org/dv/sepviolence.shtml, or the ORFDO UHVRXUFHV LGHQWLÂżHG LQ WKLV PHGLD JXLGH 8) Why are some people abusers?

Abusers come from all economic, educational, ethnic, and religious backgrounds.

Many domestic violence abusers are not one-time assailants acting out-of-character in a stressful circumstance. Abusers are not acting in self-defense. Some abusers use a pattern of coercive techniques to control their victims. These abusers believe they are entitled to control their victims. Abusers often show a pleasant and charming personality to their acquaintances and the public and a controlling, threatening personality to their victim. Many abusers learned their controlling behavior as children by observing the abusive conduct of their parents or other adults.

9) Are you an abuser?

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A) Do you call your partner or your children names or swear to get them to do things the way you want them done?

B) Have you ever threatened, pushed, slapped, hit or choked your partner?

C) Have you ever thrown, broken or damaged something during a disagreement?

D) Have you ever tried to make a partner leave or stop a partner from leaving during a disagreement?

E) Have you ever stopped your partner from reporting your behavior to the police?

F) Do you decide which friends and family your partner can associate with?

G) Are you controlling or unreasonably jealous? Does your partner think that you are?

H) Is your partner afraid of you?

I) When you do something that hurts your partner, do you expect your partner to accept your apology without any change in your behavior?

J) Are your children afraid of you?

K) Have you ever been accused of mistreating your children?

L) Do you think you are abusive?

M) Do you blame your behavior on your partner? On stress, alcohol or drugs?

N) Are you concerned that your behavior is damaging to your partner, your children or your relationships?

O) Have you tried to change your behavior and failed?

10) How can abusers be helped?

People are not born as abusers. Abuse is a learned behavior. There is reason to hope WKDW DEXVHUV FDQ OHDUQ DFFHSWDEOH ZD\V RI GHDOLQJ ZLWK FRQĂ&#x20AC;LFW ZLWKLQ UHODWLRQVKLSV 8QIRUWXQDWHO\ PRVW VWDQGDUG LQWHUYHQWLRQV IRU EHKDYLRU PRGLÂżFDWLRQ GRQÂśW ZRUN well with domestic violence perpetrators. Individual counseling and anger management classes are not usually effective. Substance abuse programs, while helpful with substance abuse, are not typically directed at issues of abuse. Couplesâ&#x20AC;&#x2122; counseling and family therapy can actually be dangerous for the victims of abuse.

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Forty-three states certify batterersâ&#x20AC;&#x2122; intervention programs, which are the preferred manner of addressing the problems of the abuser. These programs focus on behavioral change and the safety of victims. Success requires a strong motivation to change and not everyone succeeds. Batterersâ&#x20AC;&#x2122; programs do, however, offer a path to ending the violence. Most people who attend batterersâ&#x20AC;&#x2122; intervention programs are required to participate by a court, but individuals can enroll voluntarily.

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For additional information about battererâ&#x20AC;&#x2122;s intervention programs, visit Futures Without Violence at: http://www IXWXUHVZLWKRXWYLROHQFH RUJ XVHUÂżOHV ÂżOH FKLOGUHQBDQGB families/batterer%20intervention%20meeting%20report.pdf ,QVHUW information on your stateâ&#x20AC;&#x2122;s battererâ&#x20AC;&#x2122;s intervention program. Links to state proJUDPV FDQ EH IRXQG DW http://www.biscmi.org/other_resources/state_standards.html.

11) Animal cruelty and domestic violence Some abusers harm or threaten to harm pets as a technique to control intimate partners and children. Animal abuse sends the message, â&#x20AC;&#x153;you may be next.â&#x20AC;? Knowing that a pet may be injured also makes it harder for someone who cares about the animal to leave. Individuals with no empathy for the suffering of animals or the distress of their owners are capable of domestic violence.

Animal abuse is a criminal offense and a sign of serious psychopathology. People responsible for animal cruelty commit other criminal offenses at a rate greater than 300% higher than those who are not involved in animal abuse.

For additional information visit the American Society for the Prevention of Cruelty to Animals (ASPCA) at: http://www DVSFD RUJ ÂżJKW DQLPDO FUXHOW\ GRPHVWLF YLROHQFH and-animal-cruelty.aspx.

12) Domestic violence and guns Domestic violence involving a gun is 12 times more likely to result in a death than family violence in which no gun is involved. Two-thirds of domestic violence homicides are FDUULHG RXW ZLWK ÂżUHDUPV Federal and state laws prohibit a perpetrator of domestic violence from possessing a firearm. )RU IXUWKHU LQIRUPDWLRQ RQ ÂżUHDUPV DQG GRPHVWLF YLROHQFH YLVLW http://aja.ncsc.dni.us/ courtrv/cr39-2/cr39-2mitchellcarbon.pdf.

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13) Domestic violence stories of local interest ,QVHrt information of local interest 6WRULHV RI ORFDO VLJQLÂżFDQFH PLJKW GHVFULEH VHUYLFHV DYDLODEOH IRU YLFWLPV RU DEXVHUV WKH legal process to which those arrested for domestic violence are subjected, local statutes and court procedures; or local domestic violence statistics. Local domestic violence advocates and prosecutors are good sources of information on community response to domestic violence.

Sources of local information include:

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Â&#x2021; On Dec. 14, 2011, the Centers for Disease Control and Prevention (CDC) released WKH ÂżUVW QDWLRQDO LQWLPDWH SDUWQHU DQG VH[XDO YLROHQFH VXUYH\ WKDW ZDV FRQGXFWHG to better describe and monitor sexual violence, stalking and intimate partner violence in the United States. Information describing circumstances in individual states was developed to help states better understand the burden of this violence and address its health consequences. Individual state information is available at http://www.cdc.gov/violenceprevention/nisvs/state_tables.html.

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The latest FBI statistics, by state, on homicides committed by men against women are available from the Violence Policy Center at http://www.vpc.org/studies/ wmmw2011.pdf.

7KLUW\ VWDWHV KDYH DGGUHVV FRQ¿GHQWLDOLW\ SURJUDPV WR SURWHFW YLFWLPV RI GRPHVWLF violence. For a list of these states and contact information, visit http://www.sos.state. mn.us/index.aspx?page=894.

14) Costs to society of domestic violence Domestic violence imposes a staggering cost on society, including: A) One-third of all police time is spent responding to domestic violence disturbance calls.

B) More than 7.9 million paid workdays are lost each year because of domestic violence.

C) Almost three-fourths of employed female victims are harassed at work by their abuser.

For further information visit Futures Without Violence at: http://www.futureswithoutYLROHQFH RUJ XVHU¿OHV ¿OH FKLOGUHQBDQGBIDPLOLHV ZRUNSODFH SGI. 15) 'RPHVWLF YLROHQFH DQG VSHFL¿F SRSXODWLRQV 'DWLQJ <HDUV Females aged 20 to 24 are at the greatest risk of nonfatal intimate partner violence.

Source: Intimate Partner Violence in the United States, Dec. 2007. http://bjs.ojp.usdoj.gov/content/pub/pdf/ipvus.pdf.

Girls abused in dating relationships are at increased risk of substance abuse, unhealthy weight control, sexually risky behaviors, pregnancy and attempted suicide.

Source: Silverman, J., Raj, A., Mucci, L., & Hathaway, J. Dating violence against adolescent girls and associated substance use, unhealthy weight control, sexual risk behavior, pregnancy, and suicidality. Journal of the American Medical Association, vol. 286(5), pp. 572-9 (2001), http://jama.ama-assn.org/content/286/5/572.full.

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For further information, see The Facts on Domestic, Dating And Sexual Violence at: http://www IXWXUHVZLWKRXWYLROHQFH RUJ XVHU¿OHV ¿OH FKLOGUHQBDQGBIDPLOLHV domesticviolence.pdf.

Elderly An estimated one million persons aged 65 or older are abused each year. For further information visit the National Center On Elder Abuse at: http://www.ncea.aoa.gov/ main_site/pdf/publication/nceaissuebrief.agingnetworkguidedv.pdf.

Tribal Violence against Native American women is not traditional but it occurs at a rate higher than those of all other groups. Mending the Sacred Hoop is an organization that seeks to improve the response of Native communities to domestic violence.

Mending the Sacred Hoop can be contacted at http://www.mshoop.org/.

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Military Domestic violence in the military is complicated by the fact that victims are often reluctant to seek help because of a concern for their spouse’s career. For information, visit http://usmilitary.about.com/od/divdomviolence/l/aadomviol1.htm.

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Lesbian, Gay, Bisexual, Transgender and HIV-Affected Communities Domestic violence occurs in same-sex relationships at about the same rate as in heterosexual relationships. Control tactics not usually seen in heterosexual relationships, like intentional exposure to HIV or public revelation of sexual orientation, are used by same-sex abusers. The National Coalition Of Anti-Violence Programs, a coalition of lesbian, gay, bi-sexual and transgender organizations, is an excellent source of information about the barriers and special issues involved in domestic violence in these communities. http://www.ncavp.org.

Immigrants Immigrant victims of domestic violence often have additional problems caused by social isolation, language barriers, immigration laws and poverty. For information, visit the National Network To End Violence Against Immigrant Women at http://www.immigrantwomennetwork.org/aboutus.htm.

16) Domestic Violence Statistics Local

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National a. More than half of all female murder victims aged 25-49 are killed by an intimate partner. Source: U.S. Department of Justice, Homicide Trends in the U.S., Nov. 2011. http://bjs.ojp.usdoj.gov/content/pub/pdf/htus8008.pdf. b. More than two-thirds of spouse and ex-spouse murder victims are killed by guns.

Source: U.S. Department of Justice, Homicide Trends in the U.S., Nov. 2011, http://bjs.ojp.usdoj.gov/content/pub/pdf/htus8008.pdf. c. Children are present in about 36 percent of domestic violence incidents. About 60 percent of those children directly witness the violence. Source: U.S. Department Of Justice, Female Victims of Violence, Sept. 2009, http://bjs.ojp.usdoj.gov/ content/pub/pdf/fvv.pdf. d. Eighty-one percent of women who experienced rape, physical violence, or stalking by an intimate partner report significant short and long term impacts such as fear, post-traumatic stress disorder (PTSD) symptoms, and injury.

Source: CDC, National Intimate Partner and Sexual Violence Survey, Dec. 2011, http://www.cdc.gov/violenceprevention/pdf/nisvs_executive_summary-a.pdf. e. Women who experienced rape or stalking by any perpetrator or physical violence by an intimate partner were more likely than women who did not experience these forms of violence to report asthma, diabetes, irritable bowel syndrome or other health consequences. Source: CDC, National Intimate Partner and Sexual Violence Survey, Dec. 2011, http://www.cdc.gov/violenceprevention/pdf/nisvs_executive_summary-a.pdf. f. More than 80 percent of all family violence occurs in or near the victimâ&#x20AC;&#x2122;s residence or at the home of a friend, relative or neighbor. Source: U.S. Department of Justice, Intimate Partner Violence in the United States, Dec. 2007, http://bjs.ojp. usdoj.gov/content/pub/pdf/ipvus.pdf.

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17) Domestic violence and local law Criminal penalties for domestic violence Liability to the victim of domestic violence for money damages Protection orders against domestic violence Child custody

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18) Domestic violence and federal law The Violence Against Women Act (VAWA) makes it a Federal crime in some circumstances to cross, or cause any person to cross, a state or tribal boundary if it results in domestic violence or violation of a protection order. The Violent Crime Against Women Act amended VAWA to include cyber-stalking as a federal crime. The penalty for violaWLRQ RI WKHVH )HGHUDO VWDWXWHV UDQJHV IURP ÂżYH \HDUV WR OLIH LPSULVRQPHQW GHSHQGLQJ upon the extent of injury to the victim.

7KH *XQ &RQWURO $FW SURKLELWV ÂżUHDUP SRVVHVVLRQ LQ VRPH FLUFXPVWDQFHV E\ D SHUVRQ who is convicted of domestic violence or subject to a protection order. It is also a crime WR WUDQVIHU D ÂżUHDUP WR VXFK D SHUVRQ 3HQDOWLHV RI XS WR \HDUV LPSULVRQPHQW DUH possible.

Questions about the application of federal laws may be directed to the U.S. attorney for the ______________ district of ___________.

IV. Local Domestic Violence Resources 1) Publications 2) Policy Organizations 3) Domestic Violence Services For Victims: For Abusers:

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FOR FURTHER READING YOUR FACEBOOK STATUSâ&#x20AC;&#x201D;â&#x20AC;&#x153;SERVEDâ&#x20AC;?: 7KH /DZ\HUÂśV *XLGH WR 6RFLDO 1HWZRUNLQJ 8QGHUVWDQGLQJ 6RFLDO 0HGLDÂśV ,PSDFW RQ WKH /DZ (Browning, J., West Publishing 2010).

7KH )XWXUH RI 5HSXWDWLRQ *RVVLS 5XPRU DQG 3ULYDF\ RQ WKH ,QWHUQHW (Daniel Solove). , .QRZ :KR <RX $UH DQG , 6DZ :KDW <RX 'LG 6RFLDO 1HWZRUNV DQG WKH Death of Privacy (Lori Andrews, Free Press, 2012).

June 7, 2012 Memorandum Opinion & Order by Judge John Keenan in FortuQDWR Y &KDVH %DQN 86$ &LY 8 6 'LVW &W 6 ' RI 1HZ <RUN UHMHFWing a request to serve a party via Facebook because â&#x20AC;&#x153;Service by Facebook is unorthodox, to say the least, and this Court is unaware of any other court that has authorized such serviceâ&#x20AC;?).

EXTRAJUDICIAL SPEECH: Steven Waldman et al., 7KH ,QIRUPDWLRQ 1HHGV RI &RPPXQLWLHV 7KH &KDQJing Media Landscape in a Broadband Age, Federal Communication Commission, http://www.fcc.gov/info-needs-communities#read (July 2011).

Lawrence M. Friedman, Law, Lawyers, and Popular Culture <DOH / - 1579, (1989).

Stephan J. Fortunato, Jr., 2Q D -XGJHÂśV 'XW\ WR 6SHDN ([WUDMXGLFLDOO\ 5Hthinking the Strategy of Silence, 12 Geo. J. Legal Ethics 679 (1999).

A PRIVILEGE NOT A RIGHT Robert Giles & Robert W. Snyder, &RYHULQJ WKH &RXUWV )UHH 3UHVV )DLU 7ULDO & Journalistic Performance, TRANSACTION PUBLISHERS. 1999.

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Matthew D. Bunker, -XVWLFH DQG WKH 0HGLD 5HFRQFLOLQJ )DLU 7ULDOV DQG D Free Press, LAWRENCE EHRLBAUM ASSOCIATES, PUBLISHERS. 1997.

Marjorie Cohn & David Dow, &DPHUDV LQ WKH &RXUWURRP 7HOHYLVLRQ DQG WKH Pursuit of Justice, MCFARLAND & COMPANY, INC. 1998.

TOWARD IMPROVED MEDIA COVERAGE OF DOMESTIC VIOLENCE: Berns, N. (2004). )UDPLQJ WKH YLFWLP 'RPHVWLF YLROHQFH PHGLD DQG VRFLDO problems 1HZ <RUN 1< $OGLQH GH *UX\WHU Maxwell, K. A., Huxford, J., Borum, C., & Hornik, R. (Summer 2000). CovHULQJ GRPHVWLF YLROHQFH +RZ WKH 2 - 6LPSVRQ FDVH VKDSHG UHSRUWLQJ RI domestic violence in the news media. JOURNALISM & MASS COMMUNICATION QUARTERLY, 77, 258-272.

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Ryan, C., Anastario, M., & DaCunha, A. (2006, February). Changing coverage RI GRPHVWLF YLROHQFH PXUGHUV $ ORQJLWXGLQDO H[SHULPHQW LQ SDUWLFLSDWRU\ communication. JOURNAL OF INTERPERSONAL VIOLENCE. 21, 209-228.

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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 Coloradoâ&#x20AC;&#x2122;s 8th Judicial District, a postion he held for 22 years. In 1998 Dressel recieved the Justice Management Instituteâ&#x20AC;&#x2122;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.

STEWART CHEIFET, an assistant professor at the Donald W. Reynolds 6FKRRO RI -RXUQDOLVP DW WKH 8QLYHUVLW\ RI 1HYDGD 5HQR SLRQHHUHG WKH ÂżHOG RI technology journalism with the award-winning public television series â&#x20AC;&#x153;Computer Chronicles.â&#x20AC;? He also anchored â&#x20AC;&#x153;Net CafĂŠ,â&#x20AC;? and has been a commentator on technology for a variety of programs and events. He previously worked for ABC News and CBS News, and as president of PCTV, a company focused on PHGLD DQG WHFKQRORJ\ DQG &(2 RI :,7) D GLYHUVLÂżHG EURDGFDVWLQJ DQG PHdia company. Cheifet has won numerous awards for his work, including twelve awards from the Computer Press Association.

CHARLES DAVIS is an associate professor at the Missouri School of Journalism, where his scholarly research focuses 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 7HDFKHU RI WKH <HDU +H SUHYLRXVO\ ZRUNHG IRU QHZVSDSHUV DQG DV D QDWLRQDO correspondent for Lafferty Publications, a Dublin-based news wire service for ÂżQDQFLDO SXEOLFDWLRQV

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TONI LOCY is the Reynolds Professor of Legal Reporting at Washington and Lee University. She spent 25 years as a journalist reporting and writing for some of the nationâ&#x20AC;&#x2122;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 currently writing a textbook on covering courts 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.

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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 (QURQ DQG 2WKHU &RUSRUDWH )LDVFRV 7KH &RUSRUDWH 6FDQGDO 5HDGHU G, and the /DZ 6FKRRO 6XUYLYDO 0DQXDO )URP /6$7 WR %DU ([DP.

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Board of Editors (continued) 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 DQG ZDV WKH ÂżUVW /DWLQR WR VHUYH DV SUHVLGHQW RI WKH $PHULFDQ 6RFLHW\ RI Newspaper Editors.

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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