volume 1 issue 4 by Reynolds National Center for Courts and Media

Fall 2011

Volume 1, Issue 4

Reynolds Courts & Media Law Journal

Media in Trial Practice Criminal Coverage:

News Media, Legal Commentary, and the Crucible of the Presumption of Innocence �� Andrea D. Lyon

Taking Litigation for a Spin:

Addressing Lawyers’ Use of Public Relations Consultants to Speak to the “Court of Public Opinion” �� Mark S. Kogan

Defense Investigative Web Sites:

The Dynamic Balancing of Web Speech and Competing Rights in Criminal Trials �� Peter A. Crusco

The Intersection Between Social Networking and Litigation:

Discovery and Authentication of Social Media Evidence ��Steven M. Cerny

A Picture is Worth 999 Words:

The Importance and Effectiveness of Courtroom Visual Presentations ��Daniel W. Dugan

U.S. $13.00

www.courtsandmedia.org

Fall 2011

Volume 1, Issue 4

Reynolds Courts & Media Law Journal

donald w. reynolds national center for

COURTS&MEDIA

Reynolds Courts & Media Law Journal Volume 1, Issue 4 Fall 2011

William L. WinterÂ, Publisher Ben Holden, Editor Eric P. Robinson, Managing Editor Aspen Kuhlman, Jim Cooper, Layout Editors Zanny Marsh, Marketing Director Elizabeth Connor, Copy Desk Chief

University of Nevada Prof. Nancy Rapoport Arizona State University Prof. Rick Rodriguez University of Missouri Prof. Charles N. Davis; Heath Hooper Washington and Lee University Prof. Toni Locy

Cover Photo: Pro-gun rights plaintiff Gillian St. Lawrence speaks to reporters outside the Supreme Court in Washington, D.C. on June 26, 2008, after the court ruled in District of Columbia v. Heller, 554 U.S. 570 (2008) that Americans have a constitutional right to keep guns in their homes for self-defense. Photo by Jose Luis Magana, Associated Press.

ÂŠ 2011, Donald W. Reynolds National Center for Courts and Media and the University of Nevada, Reno. All rights reserved. Material in publications of the Donald W. Reynolds National Center for Courts and Media, including our web site, may be copied or downloaded for personal, noncommercial use only. Otherwise, this material may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of the Donald W. Reynolds National Center for Courts and Media, or, in the case of materials owned by third parties, the owner of that content. The opinions expressed in this publication are those of the author(s), and are not necessarily those of the University of Nevada, Reno; the Donald W. Reynolds National Center for Courts and Media; or the Donald W. Reynolds Foundation.

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Affiliated Institutions University of Nevada Donald W. Reynolds School of Journalism, Reno William S. Boyd School of Law, Las Vegas National Judicial College Arizona State University Walter Cronkite School of Journalism and Mass Communication Conference of Court Public Information Officers University of Missouri 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) Conflicts between First Amendment and Sixth Amendment principles and values Impact of social and new media on court proceedings Process and implications of online access to court records and proceedings Analysis of specific examples and cases of court-media conflict situations

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

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Reynolds Courts & Media Law Journal Contents Media in Trial Practice �� 423 Criminal Coverage: News Media, Legal Commentary, and the Crucible of the Presumption of Innocence Andrea D. Lyon �� 427

Taking Litigation for a Spin: Addressing Lawyers’ Use of Public Relations Consultants to Speak to the “Court of Public Opinion” Mark S. Kogan �� 443

Defense Investigative Web Sites: The Dynamic Balancing of Web Speech and Competing Rights in Criminal Trials Peter A. Crusco �� 465

The Intersection Between Social Networking and Litigation: Discovery and Authentication of Social Media Evidence Steven M. Cerny �� 479

A Picture is Worth 999 Words: The Importance and Effectiveness of Courtroom Visual Presentations Daniel W. Dugan �� 503 Letter from the Director �� xi Authors �� 425 For Further Reading �� 523 Board of Editors �� 525 Reynolds Courts & Media Law Journal

We would like to acknowledge the law firm Cooper, White & Cooper LLP and The McClatchy Company Foundation for their generous support of our efforts to highlight the important Constitutional and public policy conflicts analyzed in this issue of the Reynolds Courts & Media Law Journal.

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(1906-1993)

Donald W. Reynolds

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

he Donald W. Reynolds National Center for Courts and Media is a national center for research and scholarship on the interaction between the courts and the media, particularly the conflicts between free speech rights under the First Amendment and the fair trial rights of the Sixth Amendment. By providing a forum for debate and discussion of the inherent tension between an independent judiciary and the freedoms of speech and of the press, and Centerâ&#x20AC;&#x2122;s goals are to propose solutions to these conflicts, and to help judges and journalists develop insight into their respective roles in safeguarding American democracy and freedom. The Center is funded by the Donald W. Reynolds Foundation. In its research, publications and programs, and through its affiliations with the National Judicial College and the Donald W. Reynolds School of Journalism at the University of Nevada, Reno, the Center works with a wide variety of individuals with roles in the courts and the media, as well as observers of their interactions. These include judges, court clerks, court information officers and current and future attorneys; current and future journalists, editors and other creators of media content; and academics, organizations and other observers concerned with these issues. By working with these various stakeholders, the Center hopes to give the judiciary a better understanding of and appreciation for the vital role played by the media in establishing an informed citizenry, while also allowing journalists and other content creators to better understand and appreciate the 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 confidence in the fundamental fairness and integrity of the judicial system; a trust that is directly dependent on the information the public receives from the media.

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

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

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From The National Judicial College

his edition of the Reynolds Courts & Media Law Journal is a mini-landmark. It is the final edition of the first volume of the Journal. It is our fourth published scholarly review of major topics in the area of the courts and media. We have come a long way in a short time. Those judges who have visited the National Judicial College know that we share physical space with the Donald W. Reynolds National Center for Courts and Media, but our partnership goes much further. Routinely, judges who come in for judicial training are ushered upstairs to RNCCM for a dose of media training. And of course, we incorporate modules from RNCCM on how to forge relationships with the press into our regular curriculum. The bottom line is that judges and journalists need each other. It is in their mutual enlightened self interest to know how/when to get along and when to agree to disagree and go their separate ways. One wonders if the “destiny” of RNCCM is to be a relationship counselor for these two professions. Given the troubles these days with government budgets and media budgets, judges and journalists truly need one another. I like counseling. It is far preferable in most cases to divorce. William Dressel President, National Judicial College

From The Reynolds School of Journalism

he lawyer-journalist is an odd duck. Or maybe a swan trying to swim upstream, wondering why he or she has a perspective that’s a little different from the rest. Famed sports broadcaster Howard Cosell was one such lawyer-journalist. And, so are several of the women and men who were contacted by First Amendment Center Executive Director Gene Policinski several months ago to make recommendations for a major conference his organization was planning. The idea was to get judges, journalists, lawyers (and, yes, lawyerjournalists) in a room and have them consider, and develop strategies for addressing our nation’s lack of sustained, accurate courtroom coverage. Two members of the Reynolds School of Journalism faculty, both lawyer-journalists, were selected to participate in the 2011 Justice and Journalism Symposium held at the Newseum –America’s pre-eminent “news museum” in Washington, D.C. -- just weeks before publication of this issue of the Journal. RNCCM Director Ben Holden and Reynolds School Assistant Professor Stewart Cheifet both returned to campus energized and full of ideas for media-judicial cooperation, despite the Great Recession, government cutbacks to judicial resources and the ongoing meltdown in the print news business. The energy generated by the D.C. conference is good news for those of us in journalism education. We do a substantial public service by teaching young journalists to cover the courts fairly, accurately, and, yes, aggressively – even in an era of rapid change in the news business. Especially in an era of rapid change in the news business. William L. Winter Dean Reynolds School of Journalism and Center for Advanced Media Studies

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Letter From the Director

his edition of the Journal includes two articles that can be fairly read as “anti-media,” in their criticism of media coverage of high-profile trials. Why print them? Because our mission is to stand at the sometimes uneasy crossroads between free press and fair trial rights, where journalists charge aloofness and lack of transparency, and where judges and lawyers reply with claims of sloppy, ill-informed reporting that mar the public’s view of America’s courtrooms. It is sometimes a dangerous intersection. The clear impression of Mark Kogan’s article on the use of public relations professionals as part of litigation strategy, and possible regulation of this practice, is that the author thinks that the press is a bunch of meddlers who need to be controlled. The piece by former Casey Anthony defense lawyer Andrea Lyon also has some difficult-to-hear messages for journalists. She writes from personal experience of the difficulty criminal defendants have getting fair trials. And she blames the press. We print both because there is a message here that newspaper lawyers, managers and on-the-ground journalists need to hear and heed. With increasing frequency over the past year or so, as I’ve ventured from my Reynolds Center for Courts and Media office down to the first floor of the National Judicial College to do training sessions on the media for judges attending NJC courses, I have been struck by how frank some judges are in sharing their distaste for journalists. I first stood before a roomful of judges in early 2010. Since then, I have addressed, in the aggregate, hundreds of judges —at the state judicial conference here in Nevada, at a national judicial conference in San Diego, and on several occasions at NJC training sessions. I also talk to more lawyers than I dare count at our quarterly conferences and at various bar and educational sessions. From these conversations, one conclusion seems fairly inescapable: Judges and lawyers distrust journalists more than ever, and they seem more comfortable coming right out and saying it. At least to me. The financial problems of the news business have only made things worse. Now, if the lower courts are covered at all, it is often by rookie reporters with little legal background who are sent out to do the work of reporting on frequently complex legal proceedings. Is the distrust justified? Read the articles and judge for yourself. But the rift between the courts and the media is counter-productive and must be addressed. At the “Justice in Journalism” symposium referenced by Dean Winter on the prior page, Jim Duff, President and CEO of the Freedom Forum, noted the “divide” but was not discouraged. “The independence of the judiciary is absolutely dependent upon accurate media coverage,” he said, “and the media is very much in need of an independent judiciary.” The only way to fulfill this mutual need is by dialogue. We hope that this journal and the other activities of our Center help facilitate this discussion, even if that means that the participants must sometimes disclose – and must sometimes hear – unpleasant perceptions about each other. Ben Holden

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Preface

Media in Trial Practice

s the Internet continues to permeate virtually every aspect our lives, it is clear that its attendant new digital technologies have arrived at the courthouse door — and have come barging right in. Smartphones, laptops, and even still and video cameras have been commonplace items in American courthouses — with increasingly less restriction. And as modern and traditional media have seeped into the courtroom, they have also increasingly become a part of modern trial practice. In addition to managing jurors, witnesses, and evidence, litigators must now pay attention to using electronic displays to show evidence, tracking and managing media coverage of their cases, and even employing public relations professionals to make sure that their side of the case is heard. This is true not only in court, but also in the court of public opinion. This issue of the Reynolds Courts & Media Law Journal covers a variety of aspects of the use of media in trial practice. Famed death penalty defense attorney Andrea Lyon takes the media to task for sensational coverage by some media outlets of extremely high-profile criminal trials, such as the recent Casey Anthony murder case (in which Lyon was part of the defense team). She discusses the danger that such saturation coverage may pose to the presumption of innocence in such trials, and proposes some changes that could mitigate the influence that saturation media coverage can have on a criminal case. Mark Kogan, meanwhile, examines the rise of public relations as an integral part of litigation strategies in many cases and explores what actions, if any, courts can take to ensure that such these strategies do not affect the verdict. And prosecutor Peter Crusco looks at a specific type of external communication outside the courtroom: criminal defendants and their attorneys and supporters setting up websites to solicit sympathy for their cases, and perhaps to intimidate investigators and witnesses. Steven Cerny and Daniel Dugan examine the use of technology in litigation in a different way: in the courtroom, as part of the parties’ trial presentations. Cerny, a litigator, explains how litigants can obtain social media information in discovery and authenticate it as evidence for presentation in court during trial. Dugan, a trial consultant, explores the psychology of juries and describes best practices for using modern technological tools to effectively present evidence and information at trial.1

1. Dugan’s wife is general counsel of the university that houses the Reynolds National Center for Courts and Media, publisher of this journal, but she played no role in assignment or editing of the article. Reynolds Courts & Media Law Journal

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Media in Trial Practice The entry of modern media practices and technology into the courtroom is an inevitable trend, and litigators and the courts must figure out how to reasonably integrate them into trial and court procedures and practices that have evolved over the span of centuries. We hope that this issue of the Reynolds Courts & Media Law Journal furthers the discussion of how this integration can proceed, while preserving the essential function of the courts in our government and society. Eric P. Robinson Managing Editor

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Authors Steven M. Cerny (The Intersection Between Social Networking and Litigation: Discovery and Authentication of Social Media Evidence) is an attorney at the Minneapolis firm of Larkin Hoffman Daly & Lindgren Ltd., and concentrates his practice on employment and business litigation. He represents clients in disputes alleging violations of federal and state employment and business statutes, as well as common law, including claims of discrimination, harassment, retaliation, whistleblower claims, breach of contract, and claims involving non-competition and non-solicitation agreements. He appears before federal and state courts and administrative agencies on behalf of his clients. He received his Bachelor of Arts degree in Political Science and Psychology, cum laude, from the University of Minnesota and his Juris Doctor, cum laude, from William Mitchell College of Law. Peter A. Crusco (“Defense Investigative Web Sites: The Dynamic Balancing of Web Speech and Competing Rights in Criminal Trials”) is a career prosecutor with over 28 years experience in various positions in federal, state and local prosecutors’ offices. He has tried over 60 felony trials, including those involving “made members of organized crime.” In his current position as Executive Assistant District Attorney for Investigations in the Office of Queens County, New York District Attorney Richard A. Brown, he supervises all major investigations, and related trials and appeals. He has written numerous articles published in various legal journals, and routinely presents on topics in white collar crime, electronic surveillance, and organized crime for city, state and federal government offices, bar associations, law schools and community groups. His “CyberCrime“ column appears regularly in the New York Law Journal. He began his career in the law as a confidential law assistant to the judges of the New York State Supreme Court, Appellate Division for the Fourth Department. The views expressed his article are the author’s and do not necessarily reflect the policies or views of the Queens County District Attorney’s Office.

Daniel W. Dugan (“A Picture is Worth 999 Words: The Importance and Effectiveness of Courtroom Visual Presentations”) received his Ph. D. in Behavior Analysis and Psychology from the University of Kansas in 1984. He is the Founder and President of Trial Science, Inc., a trial consulting firm based in Reno, NV. He works on civil cases all over the United States, primarily in the areas of contracts, insurance bad faith, intellectual property, eminent domain, and product liability. He and his consultants also give CLE seminars on topics relating to story-telling for attorneys, scientific trial preparation, jury selection, and the electronic courtroom. He has been a guest speaker at numerous Inns of Court programs, state and county bar associations, trial attorney conventions, the National Judicial College and assisted as a presenter for the American Bar Association and the ABOTA Masters in Trial Program. Dr. Dugan also volunteers as the northern Nevada regional representative for the LIVESTRONG organization, fighting cancer mile by mile on his bicycle and through his advocacy.

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Authors (continued) Mark S. Kogan (“Taking Litigation for a Spin: Addressing Lawyers’ Use of Public Relations Consultants to Speak to the Court of Public Opinion”) is a student at the American University Washington College of Law. He is a senior staffer on the American University Law Review and a competitive member of the Moot Court Honor Society. In 2011, he was awarded “Best Oralist” at the Spong National Constitutional Moot Court Competition. He received his undergraduate degree with honors from Stanford University in 2009.

Andrea D. Lyon (“Criminal Coverage: News Media, Legal Commentary, and the Crucible of the Presumption of Innocence”) is a Clinical Professor of Law at DePaul University College of Law, and the Associate Dean for Clinical Programs Law and Director of the Center for Justice in Capital Cases. Professor Lyon graduated from Rutgers University, and from the Antioch School of Law She first worked ford the Cook County Public Defenders’ Office, working in the felony trial division, post-conviction/habeas corpus unit, preliminary hearing/first municipal (misdemeanor) unit, and the appeals division. Her last position there was as Chief of the Homicide Task Force, a 22-lawyer unit representing persons accused of homicides. She has tried over 130 homicide cases, both while in the Public Defender’s office and since. She has defended over thirty potential capital cases at the trial level and has taken nineteen through penalty phase; she has won all nineteen. In 1990 she founded the Illinois Capital Resource Center and served as its director until joining the University of Michigan Law School faculty as an Assistant Clinical Professor in 1995. A winner of the prestigious National Legal Aid and Defender Association’s Reginald Heber Smith Award for best advocate for the poor in the country, she is a nationally recognized expert in the field of death penalty defense and a frequent continuing legal education teacher throughout the country. In 1998, she was awarded the “Justice for All” award at the National Conference on Wrongful Convictions and the Death Penalty. In 2003, she received the lifetime achievement award from the Illinois Association of Criminal Defense Lawyers. In 2005 she received the president’s commendation from the National Association of Criminal Defense Lawyers for her death penalty work.

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Criminal Coverage:

News Media, Legal Commentary, and the Crucible of the Presumption of Innocence Andrea D. Lyon1

he criminal defense bar has always had a complex relationship with the media. As director of the Center for Justice in Capital Cases and a nationally recognized expert in the field of death penalty defense, I have been involved in a variety of death penalty cases in which the media has been a major player. There are also competing parts of the Constitution to consider, namely, the First and Sixth amendments. Generally speaking, publicity hurts a criminal defendant. There are already so many presumptions against anyone charged with a crime — particularly anyone charged with a violent offense. Most jurors walk into court with these presumptions: where there’s smoke, there’s fire; the police wouldn’t arrest someone who hadn’t done it; and, of course — he isn’t one of us, is he? I remember a time that I was in court with a client who was charged with a number of drug offenses — all possession charges, as I recall. He was a scruffy looking guy who worked in a dump, literally, and we were doing jury selection. My partner asked one of the jurors about her feelings about drugs. She pointed at the defendant and said, “That’s what happens when you use drugs. You look like that guy.” From the minute jurors see a defendant, whether in court or in the media, they begin judging him. That said, without the media, abuses of power would never come to light. For example, even though it was a long time coming, former Chicago police commander Jon Burge would never have gone to jail for the torture of those he arrested2 without the intervention of the press and the assiduity of a few lawyers and reporters.

1. The author would like to thank the Wicklander scholars program at DePaul University College of Law for its support of this project, and the following current and former law students for their invaluable assistance with this project: Amanda Graham, Katie Kizer, Annie O’Reilly, and Evan Weitz. 2. Burge was convicted on federal charges of obstruction of justice and perjury after his improper treatment of criminal suspects was exposed. Karen Hawkins, Jon Burge Sentenced To 4 1/2 Years In Prison: Convicted Of Lying About Police Torture, Jan. 21, 2011, http://www.huffingtonpost.com/2011/01/21/jon-burgesentencing-vict_n_812081.html. In all, more than 100 men claimed that their criminal confessions and convictions had been tainted by torture at the hands of Burge. Sharon Cohen, Jon Burge Case: Final Judgment in a Notorious Police Abuse Scandal, Associated Press, Jan. 29, 2011, available at Reynolds Courts & Media Law Journal

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Criminal Coverage This article identifies the practical tensions between criminal defendants and the media in today’s world with the obtrusive twenty-four hour news cycle, pervasive legal commentators (I use the word “legal” advisedly) and the ethical implications of treating crime news as entertainment. To explore these issues, I have taken a look at the literature relating to crime reporting and the media, reached into my own and others’ experiences, and surveyed decision-makers in the system: judges, news editors and producers.

Law and Public Relations

he issue of legal and law-related public relations services has obtained considerable attention in recent years. One recent example is a study by Michelle DeStefano Beardslee on the role of corporate lawyers in public relations battles that so frequently accompany legal disputes nowadays.3 Beardslee also discusses the ethical standards that ought to govern the lawyers’ conduct in this arena.4 Her empirical research consisted of sending questionnaires to the chief legal officers of the firms listed in the S&P 500 (receiving responses from 28 percent) and conducting 57 interviews.5 One of their primary concerns was that a “bad” lawsuit could knock down consumer confidence and lead to a drop in value of the company’s stock.6 Thus, Beardslee concludes, the public relations fallout from such a lawsuit is part of the “cost-benefit analysis conducted in determining how best to handle a legal controversy.”7 Public relations executives are being consulted on how to get the other side in litigation to fold faster, which means that people are folding — even when they believe they could win in court several years down the line.8

Lawyers On Trial It is not just the parties that have something at stake in these cases: “those who conduct a trial are always on trial themselves.”9 The lead defense attorney for my former client Casey Anthony poses a striking example. Anthony is the young mother who was accused of killing her two-year-old daughter Caylee. In the weeks leading up to and during her trial, lead defense attorney Jose Baez was the subject of lengthy commentary.10 Beyond attempting to deconstruct Baez’s courtroom http://www.huffingtonpost.com/2011/01/29/jon-burge-case-final-judg_n_815793.html. In October 2011, the city of Chicago reached a $1.25 million settlement with a man who alleged that he falsely confessed to, and served 12 years in prison for, a rape and murder that he did not commit after being beaten by detectives working under Burge. See Fran Spielman, City to pay $1.25 million in Burge case, Chicago Sun-Times, Oct. 5, 2011, http://www.suntimes.com/news/crime/8030158-418/city-to-pay-125-millionin-burge-case.html. 3. Michele DeStefano Beardslee, Advocacy in the Court of Public Opinion, Installment I: Broadening the Role of Corporate Lawyers, 22 Geo. J. L. Ethics 1259 (2009), available at http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=1374595. 4. Id. 5. Id. 6. Id. at 1269. 7. Id. at 1271. 8. Id. 1t 1273. 9. Beardslee, supra note 3, at 1275, citing Robert A. Ferguson, The Trial In American Life, 11752, 267 (2007) (discussing how immediate reports attained from real-time-reporting via telegraph inflamed public interest and affected the conduct of John Brown's trial in 1859). 10. See, e.g., Jessica Hopper, “Casey Anthony's Lawyer Jose Baez Has Trials of His Own,” ABC News. http://abcnews.go.com/US/casey-anthony-trial-defense-attorney-jose-baez/story?id=13784113 (June 8, 2011).

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Criminal Coverage performance, the media prodded at his past career experiences, his personal life and the impact of the Anthony ruling on his future.11 This type of irrelevant and often speculative reporting forces criminal defense lawyers to take this coverage into account in their strategy — using voir dire to ask potential jurors about what media coverage they have seen, requesting additional jury instructions that reiterate the prohibition on extrajudicial research, and so on. Unlike private firms with public relations budgets, most criminal defendants are poor, and thus the criminal defense attorney must conduct her own media management, in addition to actually trying the case.

Casey Anthony, the Media, and Mob Mentality By now, everyone has heard of the acquittal of Anthony. After the prosecution reversed its prior decision not to seek the death penalty in April 2009, I was asked to join the Anthony team, as my area of expertise is death penalty defense. For a year, my clinical students and I, as well as my investigator and mitigation specialist at the Center for Justice in Capital Cases at DePaul College of Law, worked on this case. We filed many motions attacking the request for the death penalty, and I argued, among other things, that the state of Florida should not be allowed to request the death penalty when they could not even identify cause of death of Anthony’s little girl. I also filed a motion to preclude the death penalty on the basis of gender bias: that my client had stepped outside gender norms and that the ultimate punishment was being sought for that reason.12 I was forced to leave the trial team when the trial court refused to cover the clinic costs for travel, despite having found Anthony to be indigent. It is amazing that Anthony got a fair trial, considering the fact that the trial judge granted nearly every request that the prosecution made,13 allowed untested “science” at their request,14 allowed them to go forward with a request for the death penalty,15 and got a biased, pro-death-penalty jury.16 Despite this, the jury got it right. They voted on 11. Id. See also Nathan Koppel, Jose Baez: From High School Dropout to Lawyer/Celebrity, Wall St. J. Law Blog, July 17, 2011, http://blogs.wsj.com/law/2011/07/12/jose-baez-from-high-school-dropoutto-lawyercelebrity/?mod=google_news_blog (last visited July 17, 2011). It certainly has been my experience and that of many others whenever we have been involved in a high profile case that we get attacked in this way. In fact this happens even when the case is not high profile. In fact, as a death penalty defense attorney, I am often treated as though I committed the murder that my client is charged with. 12. Jean Casarez, Judge: Death penalty not sexist in Anthony case, CNN, May 11, 2010, http://articles. cnn.com/2010-05-11/justice/florida.casey.anthony.death_1_death-penalty-anthony-case-andrealyon?_s=PM:CRIME. 13. Judge Denies Anthony Defense Motions, ClickOrlando.com (WKMG-TV), Feb. 11, 2011, http:// www.clickorlando.com/news/26824929/detail.html. 14. Emanuella Grinberg, Flawed forensic evidence explains Casey Anthony acquittal, experts say, CNN, July 18, 2011, http://www.cnn.com/2011/CRIME/07/15/casey.anthony.forensic.evidence/. 15. Emanuella Grinberg, Prosecutors reveal legal reasons they believe Casey Anthony should die, CNN, May 13, 2010, http://articles.cnn.com/2010-05-13/justice/casey.anthony.death.penalty_1_death-penaltycaylee-defense-attorney-jose-baez. 16. Casey Anthony Jury Willing to Impose Death Penalty If Necessary, ABC News Radio, July 5, 2011, http://abcnewsradioonline.com/national-news/casey-anthony-jury-willing-to-impose-death-penaltyif-necess.html. The U.S. Supreme Court has held that jurors must be “death qualified” — not so opposed to the death penalty as to be resistant to impose it as a sentence — to serve on a jury considering a case in which the death penalty is a possible penalty. See Adams v. Texas, 448 U.S. 38, 45 (1980) (“a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.”) Reynolds Courts & Media Law Journal

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Criminal Coverage the evidence — on the fact that there was no cause of death, no showing of a homicidal means of death, let alone any evidence on who actually did kill Caylee if indeed her death was a homicide. What is troubling is the public’s fascination with this case, the need to make Anthony a villain, and how the media helped feed this mob mentality. In particular, nearly all the TV pundits castigated my former partner and friend Jose Baez, literally raking his personal and professional life over the coals.17 They landed, heavily, on any witness who spoke up in Anthony’s favor, making witnesses extraordinarily difficult to find and interview because everyone was afraid of the backlash from the public and the prosecution. There were exculpatory witnesses who were intimidated to the point that they feared coming forward. (Word on the street? Helping Anthony is dangerous.) I was even physically assaulted myself while investigating this case.18 I have continued to receive hate mail of a type that is hard to imagine. If only this level of public passion could be garnered for education reform, eliminating poverty and racial injustice, wars, fixing our economy — you name it. Instead, the nation was fixated on this case. I am sorry to say that there are hundreds of little girls who go missing every year. They are killed, kidnapped or otherwise treated abominably, but we don’t talk about them because they do not come from a white, middle-class, physically attractive family.19 And while violent crime is at its lowest in nearly 40 years,20 study after study has found that the media over reports on crime.21 It is cheap entertainment, you see, and entertainment is what we crave.

Lawyering in a High Profile Case Partly because of the media’s preoccupation with the lawyer’s performance, legal counsel is now involved whenever legal issues might be discussed with journalists, at least in the corporate world.22 These days, a meeting on how to manage the spin on a particular story, according to one interviewee, will typically involve the company’s CEO, CFO, legal counsel and public relations officer, in addition to external counsel and external

17. See supra note 10, and accompanying text. 18. See Debra Cassens Weiss, Former Casey Anthony Lawyer Says She Was Attacked Twice During the Case, ABA J. Law News Now (blog), July 6, 2011, http://www.abajournal.com/news/article/former_casey_ anthony_lawyer_says_she_was_attacked_twice_during_case. I discussed these attacks in an interview with Chicago radio station WBEZ. See Local attorney gives assessment of the Casey Anthony verdict, Wbez.com, July 6, 2011, http://www.wbez.org/episode-segments/2011-07-06/local-attorney-givesassessment-casey-anthony-verdict-88777. 19. See Alex Johnson, Damsels in distress, MSNBC.com, July 23, 2004; http://www.msnbc.msn.com/ id/5325808#.To84g3JZ61g Eugene Robinson, (White) Women We Love, Washington Post, June 10, 2005, http://www.washingtonpost.com/wp-dyn/content/article/2005/06/09/AR2005060901729. html; Tom Foreman, Diagnosing 'Missing White Woman Syndrome', Anderson Cooper 360 Blog (CNN), Mar. 14, 2006, http://edition.cnn.com/CNN/Programs/anderson.cooper.360/blog/2006/03/ diagnosing-missing-white-woman.html. 20. Jennifer L. Truman, Criminal Victimization, 2010 (2011), available via http://bjs.ojp.usdoj.gov/ index.cfm?ty=pbdetail&iid=2224. See also Richard A. Oppel Jr., Steady Decline in Major Crime Baffles Experts, N.Y. Times, May 23, 2011, http://www.nytimes.com/2011/05/24/us/24crime.html. 21. See Joseph F. Sheley & Cindy D. Ashkins, Crime, Crime News, and Crime Views, 45 Public Opinion Q. 492 (1981), available at http://www.jstor.org/stable/2748899; Center for Media & Public Affairs, Network News in the Nineties: The Top Topics and Trends of the Decade, Media Monitor, July/Aug. 1997, http://www.cmpa.com/files/media_monitor/97julaug.pdf. 22. Beardslee, supra note 3, at 1280.

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Criminal Coverage public relations executives.23 The suggestion is that lawyers are listening to public relations executives on issues of reputational damage, meaning that they view it as a valid concern regarding the legal domain.24 In this vein, one of the most important rules for protecting reputation is maintaining consistency in message.25 This is complicated to do as a criminal defense attorney because of the constitutional and confidentiality concerns that often trump any such media strategy. The real relationship between corporate public relations executives and lawyers is different to the perceived reality of their relationship, Beardslee argues. The perceived relationship is that they work separately, with the lawyers providing the public relations executives just enough information to write a press release.26 In reality, the What is troubling is the public’s two work hand-in-hand, with lawyers helping to craft the spin.27 Beardslee adds fascination with this case, the that the caveat, however, is that in spite of need to make Casey Anthony a this more horizontal relationship between counsel and public relations, lawyers revillain and how the media helped main in control. Lawyers are the ones with feed this mob mentality. the final say, and often the ones who make the decision to hire outside public relations consultants.28 In fact, Beardslee goes further and says that when a high profile lawsuit is on the horizon, lawyers should be in charge of managing legal public relations, in addition to the suit itself.29 She warns that if lawyers don’t step up, lawyers not involved in the case just might step into the breach, which would be undesirable.30 Beardslee advocates for two changes in the way we approach the relationship between law and public relations.31 First, she would target the American Bar Association Model Rules of Professional Conduct, by adding “reputation” as one of the factors in Rule 2.1, so that it would read: In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, reputational, and political factors, that may be relevant to the client’s situation.32

She would also add a comment to the Rule to highlight that public relations is a lawrelated service.33 Second, Beardslee recommends that law schools instruct their students about the importance of public relations and perhaps offer instruction on how to manage public relations executives.34 23. Id. at 1283. 24. Id. at 1284. 25. Id. at 1285. 26. Id. at 1293. 27. Id. at 1294–95. 28. Id. at 1287–89. 29. Id. at 1297. 30. Id. at 1299. 31. Id. at 1309-10. 32. Id. at 1309 (modifying ABA Model R. Prof. Conduct 2.1). 33. Id. 34. Id. at 1309-10. Reynolds Courts & Media Law Journal

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Perspective is Everything Much of the public and nearly all of law enforcement have trouble imagining that the innocent get charged, let alone convicted. But former chief prosecutor in McHenry County, Ill., Louis Bianchi, for one, sees things differently now. “I’ll always recognize the possibility that someone who was charged may be innocent,” he told the Tribune the day after his own acquittal of corruption charges.35 Similarly, former Texas prosecutor James Fry has written about his experience with cognitive dissonance when he convicted the wrong man of rape.36 That feeling is something those of us who defend cases are all too familiar with. It is virtually impossible to do what the law tells us to do — to presume innocence. The police wouldn’t arrest an innocent person, would they? They must have done something wrong, right? Please don’t misunderstand me: I understand these sentiments. Indeed, I must admit I have often shared them — having to work hard to afford my own clients that presumption, especially when I am representing someone who is a “bad guy,” a gang member, for instance. I remember when I had to face down my own prejudices. I was representing a young man who had confessed, before a court reporter, to a triple homicide. I forced myself to investigate the facts, in part because the police officers who extracted the confession had a brutal reputation. And I found to my dismay that I was representing an innocent, terrified man — someone with no previous arrests and no experience with the police. He knew at least one of the people who had committed this awful crime — he had been in the apartment when it started and had run for his life. After many hours of interrogation, he told the police that person’s name, and then the police brought the other suspect into the police station. The other suspect saw my client, so my client backed off the statement. He was terrified for his life. Caught between a rock and hard place, he decided confessing was safer for him and his family, so that is what he did. The jury acquitted him after less than an hour. I had not believed him when he told me he was innocent, I just felt professionally obligated to do my job and find out what really happened. After that experience, I have learned to fight those natural presumptions, and I hope that maybe, just maybe, other prosecutors will read what prosecutor Bianchi has said and realize that anyone can be charged. It is very easy to be charged but very difficult to overcome that presumption of guilt. We all have to keep that in mind. Sometimes when it gets hard to speak up for my clients, when I feel the overwhelming opprobrium of the public, or when I get a bit tired, I think of Pastor Martin Miemöller’s famous quotation: “First they came for the communists, and I didn’t speak out because I wasn’t a communist. Then they came for the trade unionists, and I didn’t speak out because I wasn’t a trade unionist. Then they came for the Jews, and I didn’t speak out because I wasn’t a Jew. Then they came for me and there was no one left to speak out for me.”37 35. Robert McCoppin, Accused prosecutor says justice system can be 'abusive', Chicago Tribune, Mar. 30, 2011, http://articles.chicagotribune.com/2011-03-30/news/ct-met-bianchi-interview-20110329_1_ bianchi-criminal-charges-second-trial. 36. See James A. Fry, I put away an innocent man, Dallas Morning News, May 14, 2009: When I prosecuted Charles Chatman for aggravated rape in 1981, I was certain I had the right man. His case was one of my first important felony cases as a Dallas County assistant district attorney. Chatman was convicted in a court of law by a jury of his peers. They, like me, were convinced of his guilt. Nearly 27 years later, DNA proved me – and the criminal justice system – wrong. Chatman was freed from prison in January after DNA testing proved him innocent. He spent nearly three decades behind bars for a crime he did not commit – a stark reminder that our justice system is not immune from error. No reasonable person can question this simple truth. 37. There are various wordings of this quotation, using different persecuted groups. But the gist of the

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Criminal Coverage Similar to the argument that “perp walks” are statements, Lidge also notes an interesting observation that appeared in a judicial opinion on extrajudicial prosecutorial comments, which may be applicable to attorneys representing parties in a matter as well as to those acting as media commentators.38 He writes, “the court noted that attorneys have a unique role in the criminal justice system and have more knowledge and understanding about what is going on in a particular case. Therefore, their speech has a ‘degree of credibility … that an ordinary citizen’s speech may not usually possess.’”39 This supports the idea that self-appointed legal experts must be held to a higher, or at least different, standard than other commentators in the media, because their opinion on legal matters is regarded as more valuable due to their legal education (and, often, their membership in the bar).

The Need for Court Intervention It takes a lot for the courts to address the issue of legal analysts run amok. In the Scott Peterson case, for example, it was not until media legal analyst Michael Cardoz — who had discussed the case on CNN, NBC, Fox News and other media outlet — began to assist the defense in preparing the defendant for his testimony that the court issued a gag order.40 As a result, media outlets issued statements that they would no longer be relying on Cardozo for their coverage of the trial.41 It doesn’t seem right that the situation must escalate to this level before somebody steps in to put an end to the farce. Take, for example, the infamous “perp walk,” in which the defendant is in handcuffs and paraded in front of the media. Prosecutors and law enforcement use the perp walk for various ends, such as to show the public that law enforcement is doing its job, or that the defendant is being treated in a suitably humiliating fashion.42 Professor Ernest F. Lidge argues that the perp walk should be regarded as a “statement” (e.g., we are doing our jobs) and thus brought within the scope of ABA Professional Responsibility Rules 3.6 and 3.8, which instruct that lawyers shall not make statements that have a substantial likelihood of prejudicing an adjudication.43 Rule 3.8 is specifically addressed to prosecutors, forbidding them from “making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”44 In a decision rejecting a 1983 civil rights challenge to a perp walk, one court said the practice serves the legitimate function of educating the public as to the seriousness of law enforcement, thereby serving to deter others from committing crimes.45 Lidge exposes the various versions is the same. For more details on the quotation and its origins, see Harold Marcuse, Niemoeller Quotation Page, Sept. 12, 2001, http://www.history.ucsb.edu/faculty/marcuse/niem.htm, and Martin Niemöller: "First they came for the Socialists…," in U.S. Holocaust Memorial Museum, Holocaust Encyclopedia (2011), http://www.ushmm.org/wlc/en/article.php?ModuleId=10007392. 38. Ernest F. Lidge III, Perp Walks and Prosecutioral Ethics, 7 Nev. L. J. 55, 63 (2006-07). 39. Id., quoting Attorney Grievance Comm. v. Gansler, 835 A.2d 548, 559 (Md. 2003). 40. People v. Peterson, No. SC55500A (Cal. Super., San Mateo County oral order Oct. 20, 2004) (transcript available at http://www.pwc-sii.com/CourtDocs/Transcripts/Cardoza.htm). See also Stacy Finz & Diana Walsh, Judge Gags Legal Analyst Who Assisted Peterson Defense, S.F. Chronicle, Oct. 20, 2004, http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2004/10/20/PETERSON20.TMP. 41. Finz & Walsh. 42. Ernest F. Lidge III, supra note 38. See also Scott Sayare, et al., French Shocked by I.M.F. Chief ’s ‘Perp Walk,’ N.Y. Times, May 5, 2011, http://thelede.blogs.nytimes.com/2011/05/16/french-shocked-by-i-mf-chiefs-perp-walk/. 43. Lidge at 59. See also ABA Model Rules of Prof’l Conduct R. 3.6, R. 3.8(f ) (2010). 44. R. 3.8(f ). 45. Lidge, supra note 38, at 60, citing Caldarola v. Co. of Westchester, 343 F.3d 570 (2d Cir. 2003). But see Lauro v. Charles, 219 F.3d 202 (2d Cir.2000) (staged perp walk, in which defendant was moved out of the Reynolds Courts & Media Law Journal

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Criminal Coverage absurdity of this conclusion when he observes that “not all perp walked defendants are guilty. Not all arrestees subject to perp walks have [subsequently] been convicted, and the accused individuals are entitled to a presumption of innocence under our criminal justice system.”46 Far from upholding the fairness and integrity of the system, the perp walk actually further conflates the charging stage with the verdict stage, undermining the importance of a hearing before a fair and neutral tribunal, which is supposedly central to our notion of justice.

Is Regulation a Solution? There seems to be a growing consensus that regulation before the fact is more desirable than remedial measures after the fact. Attorneys, of course, are already limited by various ethical and legal standards, which constrain their activities in litigation, and can be sanctioned for violating these precepts. This is justified on the grounds that attorneys, as officers of the courts, “should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.”47 Tanina Rostain took up this issue in 2006, with an analysis focusing on the effects that law consulting (as opposed to legal practice by members of the bar) has on “the interests and values that professional regulation is intended to protect.”48 Because trial consultants are not — and, indeed, resist — being regulated, they are free to limit the scope of their duties by contract.49 This makes them more affordable and more difficult to hold to account. Rostain worries that consultants don’t see the law as an embodiment of social ideals and are not invested in upholding the structure as a whole.50 She suspects that they are inclined to view the law as a set of isolable rules, and the decision to abide by such rules as a cost-benefit calculation.51 She doesn’t think that regulation of consultants under the legal umbrella will work due to the closed nature of the profession.52 Nor does she think that legal consultants are likely to set up a regulatory body sua sponte.53 She says: An alternative approach would be to regulate law consulting separately. It is difficult to imagine, though, where the political will to enact such regulation would originate. Historically, consultants have shown no interest in creating or participating in a regulatory regime, and there are no signs that this has changed. Without their collaboration, the imposition of a regulatory framework from above is not likely.54 police station, driven around the block, and then moved back into the police station for the benefit of assembled news cameras). The staged nature of the perp walk in Lauro was fundamental to the court’s holding that it violated the defendant’s Fourth Amendment rights. Lauro at 213 (“Even assuming that there is a legitimate state interest in accurate reporting of police activity, that interest is not well served by an inherently fictional dramatization of an event that transpired hours earlier. … [W]e do not address the case—seemingly much more common than the kind of staged perp walk that occurred here — where a suspect is photographed in the normal course of being moved from one place to another by the police.”). 46. Lidge at 60. 47. ABA Model R. Prof. Conduct (2000), Preamble. 48. Tanina Rostain, The Emergence of “Law Consultants,” 75 Fordham L. Rev. 1397, 1399 (2006-2007). 49. Id. 50. Id. 51. Id. at 1400. 52. Id. at 1426. 53. Id. 54. Id.

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Criminal Coverage The interesting question is whether the same concerns would apply to media “legal analysts” and what exactly would go into that calculus is unclear. The purpose of consultants remaining unregulated is that it provides them with the freedom to do things that lawyers cannot do, like talk to represented persons and offer unbundled legal services. Regulation of consultants would destroy what is profitable about the industry. Although regulation of legal analysts would certainly put some commentators out of business, it wouldn’t destroy the industry as a whole. In her article “Pretrial Publicity in High Profile Trials,” Susan Duncan conducts a comparative analysis of English and American approaches to pretrial publicity in high profile cases that proves interesting.55 She takes as her starting point the tension between concerns over jury taint and the need for public access to the judicial system.56 Both must be accommodated, and to do so she would advocate for regulation of traditional and non-traditional (i.e., blogging57) media. Duncan uses the Duke Lacrosse case to illustrate the problems with pretrial media coverage in a criminal case.58 In that case, a stripper accused three team members of rape.59 Later, she admitted she couldn’t really be sure of the rape, and DNA tests exculpated the three men.60 The prosecutor, however, had already done his damage, alleging among other things that the rapes were racially motivated (the woman was black, the men white).61 In the age of the Internet, once an allegation is out there, it is very difficult to get rid of it; there tends not to be any requirement to update or correct stories.62 And even if there were, it is rare for something to truly disappear from the Internet.63 55. Susan Hanley Duncan, Pretrial Publicity In High Profile Trials: An Integrated Approach To Protecting The Right To A Fair Trial And The Right To Privacy, 34 Ohio N.U. L. Rev. 755 (2008). 56. Id. at 757. 57. Blogging is a self-publication phenomenon that has taken Internet communications by storm in the 21st century. In fact, as of July 1, 2011, there were at least 164,307,605 known blogs. BlogPulse, www.blogpulse.com (last visited July 1, 2011). Users create public blogs about topics that interest them and other users are able to post comments. Blogs have rapidly expanded to legal discourse, where one can even find “a thoughtful argument regarding why the United States Supreme Court should grant certiorari” in a given case. Brian A. Craddock, 2009: A Blawg Odyssey: Exploring How the Legal Community is Using Blogs and How Blogs Are Changing the Legal Community, 60 Mercer L. Rev. 1353, 1355-56 (2008). 58. Duncan, 34 Ohio N.U. L. Rev. at 759-60. 59. Id. at 760. 60. Id. at 761. 61. Id. at 760. The district attorney who pursued the case was disbarred in 2007 for his behavior in the case. N.C. State Bar v. Nifong, No. 06 DHC 35 (N.C. State Bar Disclip. Hrg. Comm’n July 31, 2007). See also Katherine E . Jean, What North Carolina State Bar v. Nifong Was Not, 13(3) N.C. Bar J. 46 (Fall 2008) (“After a five day trial, the DHC found and concluded that Nifong violated multiple Rules of Professional Conduct by making improper statements to the media, failing to comply with obligations imposed on him by statute and court order to provide discovery, and lying to the court. For this misconduct, Nifong was disbarred.”); and L. Thomas Lunsford II, The Truth about Lawyer Discipline, 12(3) N.C. Bar J. 42 (Fall 2007) (“explain[ing] the process and …dispel[ling] some of the most commonly held misconceptions” about the attorney discipline process in the wake of the Nifong case). He was also found guilty of criminal contempt for lying to a judge during the case, and sentenced to one day in jail. Julia Lewis, Nifong Guilty of Criminal Contempt; Sentenced to 1 Day in Jail, WRAL.com, Aug. 1, 2007, http://www.wral.com/news/local/story/1763323/. 62. Duncan, at 762. 63. See, e.g., Romano v. Steelcase Inc., 30 Misc. 3d 426, 907 N.Y.S. 2d 650 (N.Y. Sup. Ct., Suffolk County 2010) (finding that private postings from plaintiff ’s Facebook and Myspace pages were discoverable, including deleted postings). Reynolds Courts & Media Law Journal

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Criminal Coverage Duncan regards all the traditional remedies as sorely lacking, and sees great unfairness in the usual tort remedies that are used to address invasions of privacy and the like.64 She thinks it is “fundamentally unfair to allow unfettered press-reporting at the expense of the legal system and the individuals involved, only to require the aggrieved parties to bear the cost of redressing the media’s excesses.”65 Voir dire doesn’t always work to screen out media-biased jurors.66 Jury instructions are not followed.67 Gag orders may be issued for those involved in the proceeding, but this frequently leads to leaks or the press relying on rumor.68 Change-of-venue motions are rarely granted, and even where they are, they may have less remedial impact than they used to have in the pre-Internet era.69 In England, the Contempt of Court Act attaches strict liability to the publication of any material addressed tending to interfere with the course of justice in particular proceedings.70 Violations of the law are punishable with up to two years in jail.71 There is, however, a public interest exception, under which publications are permitted where they are on issues of general public interest as long as the Prosecutors and law enforcement of prejudicing a particular proceeding is use the perp walk for various ends, risk merely incidental to the discussion.72 such as to show the public that law Duncan also discusses the possibility of adopting an ethical code for legal commentaenforcement is doing its job. tors.73 She outlines a voluntary code proposed by professors Erwin Chemerinsky and Laurie Levinson,74 and also mentions proposals by the National Association of Criminal Defense Lawyers and the American College of Trial Attorneys.75 Duncan says that these codes must remain voluntary due to First Amendment concerns, which she says “calls into question how effective they would be.”76 Duncan ultimately advocates for a version of the English contempt law that would extend to bloggers, although she notes that the proposal would be met with stiff opposition on First Amendment grounds.77 She also suggests that a voluntary code for bloggers might be possible but is skeptical about our ability to agree on the terms of such a code given the numerous and disparate membership of the blogging community.78 She also proposes a public interest exception, which she would define to include matters that “those to whom the publication was directed could reasonably be said to have a right to be informed about.”79

64. Duncan, at 766. 65. Id. at 766-67. 66. Id. at 767. 67. Id. 68. Id. at 768. 69. Id. at 769. 70. Id. at 774 (discussing Contempt of Court Act, 1981, c. 49, (Eng.)). 71. Id. at 777. 72. Id. at 776. 73. Id. at 783. 74. Id. See infra notes 89-94 and accompanying text for a discussion of this proposed code. 75. Id. at 783. See also Jean Hellwege, No Comment: Professors, Legal Groups Consider Ethical Codes for Legal Commentators, 34 Trial 16 (July 1998). 76. Id. 77. Id. at 787. 78. Id. at 793. 79. Id.

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Criminal Coverage One can’t help but feel that Duncan’s desire to “redefine socially beneficial conduct,”80 while utterly sympathetic, is unrealistic. Duncan herself comes to this conclusion.81 To the defense lawyer, it is self-evident that “[t]he value of the public learning prejudicial and irrelevant information about a defendant (or even individuals not named as defendants) should not be defined as socially beneficial conduct.”82 Convincing others of this, however, is another question altogether. Taken together, the message from the literature is that the extensive media coverage of legal disputes is inescapable. Further, the current law and codes of conduct are inadequate to deal with the needs of counsel to talk to the media. The fact that legal commentary is unregulated makes it more difficult to conduct trials fairly, but the prospects of regulating legal commentary under the current First Amendment doctrine are bleak.

Legal Commentators and Analysis: Titles to be Used Lightly?

have been involved in some high-profile death penalty cases, and as a result, I have confronted the pervasive intrusion of the news media into the criminal justice system. In these cases, news media begins to mirror the tabloids.83 In states where cameras are allowed in trial courts,84 this influence is even more pervasive. This influence may have profound effects on the nature of prosecutions, lead to allegations of poisoning of potential jury pools,85 affect the quality of the defense, and possibly impact judicial decision making.86 Chief Justice Roberts has expressed concern that cameras in the courtroom will lead to “grandstanding” by attorneys.87 Cameras in the courtroom have also given rise to legal commentators, most of whom have a partisan, political view, and frankly are willing to do anything at all to be on television.88 Putting on a show for the news media provokes commentators and encourages further misrepresentation of criminal cases. We saw the acceleration of the commentator phenomenon during the murder trial of O.J. Simpson. This case led to various proposals for standards for commentators in the legal profession. For example, professors Chemerinsky and Levenson proposed a vol 80. Id. at 794. 81. Id. 82. Id. 83. See, e.g., Nancy Grace, Essential Guide to the Casey Anthony Trial (Blog), CNN, http://nancygrace. blogs.cnn.com/category/casey-anthony/. 84. For a comprehensive analysis of which states allow cameras in courts, see Radio Television Digital News Association, Cameras in Court: A State-By-State Guide, http://www.rtnda.org/pages/media_items/ cameras-in-the-court-a-state-by-state-guide55.php (2011). 85. See, e.g., Carol Felsenthal, Blago's Brother Robert: Patrick Fitzgerald 'Poisoned' Jury Pool, ChicagoMag.com, June 29, 2011, http://www.chicagomag.com/Chicago-Magazine/Felsenthal-Files/June2011/Blagos-Brother-Robert-Patrick-Fitzgerald-Poisoned-Jury-Pool/; Elizabeth Snead, Chris Brown's lawyer: Rihanna's photo poisoned the jury pool, Pop2It.com, May 7, 2009, http://blog.zap2it.com/ pop2it/2009/05/chris-browns-lawyer-says-rihannas-photo-poisoned-the-jury-pool-.html; and Julia Lewis, Judge Warns Attorneys of Potential Jury Poisoning in Peterson Case, WRAL.com, Oct. 18, 2002, http://www.wral.com/news/local/story/1089831/. 86. Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 73 Boston U. L. Rev. 759 (1995). 87. Associated Press, Chief Justice Uneasy About Cameras in Courtroom, June 29, 2011, available at http://seattletimes.nwsource.com/html/politics/2015454730_apussupremecourtcameras.html. 88. See, e.g., Nancy Grace removing a lawyer from her show who disagreed with her approach to coverage of a specific case. “Nancy Grace Kicks KTRS’ McGraw Millhaven Off Show,” Youtube, http://www.youtube.com/ watch?v=2luB5kwSymA (Nancy Grace says, “You’re off. Cut his mic.”). Reynolds Courts & Media Law Journal

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Criminal Coverage untary code because they believed that a mandatory, government-imposed code would violate the First Amendment.89 Their proposal included the following elements: a duty of competence;90 a duty with regard to confidences;91 a duty to avoid conflicts;92 duties relating to the business of being a commentator;93 and the duty to remain a lawyer.94 Other proposals were also made around the same time from the American Academy of Trial Lawyers and the National Association of Criminal Lawyers.95 However, these proposals have remained just that: proposals. On the other hand, Professor Kevin C. McMunigal discusses a trend by criminal defense teams to instigate media campaigns about particular cases and the ethical implications of such a strategy.96 Yet, all that appears to exist on the question of legal commentators since those proposals in the mid-to-late-1990s is a single student note.97 It is beyond the scope of this article to discuss the First Amendment implications of restrictions on attorney-commentator speech, but it is important to note the special influence that an attorney has when she comments on litigation, which should result in some kind of concomitant responsibilities.

The Forces Behind Selective Coverage So how is it that publicity becomes pervasive in one case and not another? In some situations, where someone involved in the case — such as the offender and/or the complaining witness — are already famous, the answer seems obvious. Examples include the many criminal cases against Lindsay Lohan,98 or numerous cases both before and after the death of Michael Jackson,99 of which the criminal case against his physician is the latest example.100 But other cases take on lives of their own, like that of my former client, Casey Anthony,101 or the notorious Susan Smith.102 There is no question that when publicity is present, there is what is colloquially referred to as “heat” on the case,103 which makes the case much more challenging for all 89. Erwin Chemerinsky & Laurie Levenson, The Ethics of Being a Commentator III, 50 Mercer L. Rev. 737 (1999). 90. Id. at 692. 91. Id. at 695. 92. Id. at 696. 93. Id. at 698. 94. Id. at 718. 95. See Jean Hellwege, No Comment: Professors, Legal Groups Consider Ethical Codes for Legal Commentators, 34 Trial 16 (July 1998). See also American College of Trial Lawyers, Excerpt from Report on Fair Trial of High Profile Cases, 50 Mercer L. Rev. 773 (1999); and National Association of Criminal Defense Lawyers, Ethical Considerations for Criminal Defense Attorneys Serving as Legal Commentators, 50 Mercer L. Rev. 777 (1999). 96. The Risks, Rewards, and Ethics of Client Media Campaigns in Criminal Cases, 34 Ohio N.U. L. Rev. 687 (2008). 97. See Sara Fleisch, The Ethics of Legal Commentary: A Reconsideration of the Need for an Ethical Code in Light of the Duke Lacrosse Matter, 20 Geo. J. Legal Ethics 599 (2006-07). 98. See Diana Mimon, Lindsay Lohan's Criminal Record, About.com: Celebrity Gossip, http://gossip. about.com/od/celebritydui/a/Lindsay_Lohan_Criminal_Arrest_Record.htm (visited Oct. 10, 2011). 99. Ken Frost, Michael Jackson's Trials (blog), http://michaeljacksonstrial.blogspot.com/. 100. See The Death of Michael Jackson: Dr. Conrad Murray on Trial (blog), CNN (Headline News / In Session), http://insession.blogs.cnn.com/category/conrad-murray/?hpt=ju_t5. 101. See, e.g., Lizette Alvarez, A Murder Trial as Tourist Draw in Central Florida, N.Y. Times, June 25, 2011, available at http://www.nytimes.com/2011/06/26/us/26casey.html. 102. See Rachel Pergament, Susan Smith: Child Murderer or Victim?, TruTV (TruTV Crime Library), http:// www.trutv.com/library/crime/notorious_murders/famous/smith/index_1.html (visited Oct. 10, 2011). 103. See, e.g., Mantra Public Relations, Connie Francis, Mantra Public Relations Case Studies (n.d. [2002]),

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Criminal Coverage concerned. If, for example, the prosecution comes to believe that a reduction in charges or a dismissal is appropriate, it is harder to take that action in the glare of the media. It is also very difficult for a judge — particularly a judge who runs for election — to remain impervious to the public scrutiny. As one of my clients once told me, “A judge don’t get in no trouble for locking up somebody, but he sure get in trouble for letting him go.” In other words, it is much “safer” politically to accede to the prosecution’s requests and look “tough on crime.” Indeed, there have been many unfortunate examples of the role that criminal cases can take in judicial campaigns.104 From the defense perspective, the addition of publicity often makes a trial more of an uphill battle. It requires far more extensive jury selection procedures,105 risks juror misconduct106 and makes getting rulings favorable to the defense more difficult.107

A Survey of Judges In order to find out what journalists and judges think about issues of media in criminal cases, I sought to survey both of these groups. While my efforts to learn the journalists’ perspectives were somewhat thwarted,108 I was able to survey a sufficient number of judges to make some observations.109 This section will discuss what are tentatively the “results” of http://www.mantrapublicrelations.com/publicity_case_studies.html#02_c_francis (visited Oct. 10, 2011) (describing the PR firm’s planned efforts to garner media attention to a breach of contract lawsuit brought by singer Connie Francis against Universal Music as an effort “to heat things up again prior to the case being presented to a jury.”) The case, Franconero v. UMG Recordings, Inc., No. 02-CV-01963 (S.D.N.Y. filed Mar. 11, 2002), is still pending. 104. See, e.g., David Morrison, The ads and the money in the Justice Kilbride retention campaign, Illnois Campaign for Political Reform, n.d. (Oct. 2010), http://www.ilcampaign.org/node/4563; Andrea Lyon, Deterrent Effect. Huffington Post, Nov. 9, 2010, http://www.huffingtonpost.com/ andrea-lyon/deterrent-effect_b_781141.html; Judges and Money (editorial), N.Y. Times, Oct. 30, 2010, http://www.nytimes.com/2010/10/30/opinion/30sat2.html. 105. See Tony Partipilo and Helen O. Kim, The Obstacle in Empanelling an Impartial Jury in a High-Profile Case, Imhoff & Associates (Blog), May 5, 2006, http://www.criminalattorney.com/blog/trial-by-jury/. 106. See, e.g., Pratt v. St. Christopher’s Hospital, 866 A.2d 313 (Pa. 2005) (discussing alleged misconduct when jurors communicated with outside medical professionals in deciding a malpractice case); Caren Myers Morrison, Jury 2.0, 62 Hastings L. J. 1579 (2011), available at http://papers.ssrn.com/sol3/papers. cfm?abstract_id=1669637; Caren Myers Morrison, Can the Jury Trial Survive Google?, 25 Crim. Just. 4 (2011); Thaddeus Hoffmeister, Jurors in the Digital Age (2010), http://papers.ssrn.com/sol3/papers. cfm?abstract_id=1668973; Paul Sims, Manslaughter trial collapses after 'sleuth' juror carries out his own investigation into the case, Daily Mail, Aug. 20, 2008, http://www.dailymail.co.uk/news/article-1046752/ Manslaughter-trial-collapses-sleuth-juror-carries-investigation-case.html. 107. See generally, Jamie N. Morris, The Anonymous Accused: Protecting Defendants’ Rights in High-Profile Criminal Cases, 44 B.C. L. Rev. 901 (2003). 108. I sent the survey to the offices of three national journalists’ associations, one Chicago journalists’ association and dozens of journalists directly, but received very few responses. Unlike judges, journalists do not necessarily have a moral stake in the integrity of the judicial system — their interest is in bringing information to the public, and, many media critics would argue, to attract readers and/or viewers. It may also be that any journalist who receives a survey about the journalist’s coverage of legal proceedings from a criminal defense attorney might assume that the study will be overly critical, and perhaps unfairly biased. This assumption is not irrational on some level. In a way, journalists and defense lawyers are often adversaries. The criminal defense lawyer is constantly fighting a negative portrayal of her client in the media, thus giving rise to a tense battle outside the courtroom during a high-profile case. 109. I sent a survey to several hundred judges who are members of the American Judges Association. Most of the questions dealt with legal ethics and judicial concerns about the Internet. I received 52 responses, and was able to conduct phone interviews with a couple of participants. All participants had the option to participate in an interview. Reynolds Courts & Media Law Journal

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Criminal Coverage the judicial survey, but will not attempt to make scientific or statistically significant findings. Instead, the surveys serve an anecdotal function and allow a mere glimpse into the opinions of people who work in the legal field. The survey responses showed generally consistent views among judges about the media and the courts. About half of the judges responded that they read legal blogs generally, while 75 percent said they do not read blogs covering specific cases. Nearly 70 percent stated that it is “never” appropriate to read a blog about a case over which they are presiding. Almost 90 percent of the judges disagreed with the statement that the Internet has rendered change of venue a useless remedy. On the other hand, almost 75 percent of the judges felt that imposing regulation on legal commentary and media coverage of high-profile cases would abridge First Amendment freedoms and/or have a chilling effect on journalism.

Policy Implications and Proposals For Reform

f not change of venue, and if not regulation, what is the solution to this issue of media influence in criminal cases? And what can we do about the segment of the media industry that turns the criminal justice system into entertainment? About the sea of talking heads that churn ratings at the expense of judicial integrity? Below I have set forth several proposals that would balance the media’s access and coverage of courtroom proceedings with the need for integrity in those proceedings.

Ongoing Voir Dire In some high profile cases, judges have sequestered the jury, thus making it impossible — or at least far less likely — that the jury will do its own research, or be tainted by media coverage and other outside influences.110 This is a very expensive proposition, however, and simply isn’t practical in every case.111 We need universal recognition that there should be quality, complete and preferably attorney-conducted112 voir dire pre-trial. Going further, judges should conduct ongoing voir dire throughout especially high profile trials. Each juror could be told at the beginning of the trial that the attorneys and/or the judge are going to periodically ask them questions about how things are going throughout the trial. Then, during the trial, each juror could be brought into chambers, individually, and asked about how things are going, how they have avoided media coverage of the case, and reminded that they can’t talk to anyone about the case. This process might even prevent people from doing their own Internet investigation by communicating the judicial stance that such conduct is inappropriate and intolerable. Reminding jurors of their duty in this direct conversational way could be enough to ensure that they take the court’s instructions seriously.

110. For example, the jury was sequestered in the recent Casey Anthony trial. See Anthony Colarossi, Court Expects to Seat 20 Casey Anthony Jurors For Nearly $361,104, Palm Beach Post, Mar. 17, 2011, http://www.palmbeachpost.com/news/court-expects-to-seat-20court-expects-to-seat20-casey-anthony-jurors-1327578.html. 111. See Emily Friedman, Cost to Fund Casey Anthony Jury Might Jeopardize Trial, According to County Clerk, ABC News, Mar. 18, 2010, http://abcnews.go.com/US/casey-anthony-florida-jury-cost-upwards300000-stall/story?id=13167630. 112. Studies have shown that jurors are more likely to be comfortable and provide honest answers when counsel, rather than judges, do the questioning. See Susan E. Jones, Judge-Versus Attorney-Conducted Voir dire, 2 L. & Human Behavior 131 (1987).

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Updating Jury Instructions We should adapt jury instructions to reflect the realities of individual research and the “Googling” curiosity that plagues potential jury pools. A user-friendly jury instruction to address this issue might be: In today’s electronic world, it is natural that you would want to do your own research on a case that you hear about. Typically, that’s perfectly acceptable. However, when you’re a juror, you cannot conduct any outside research, such as “Googling” the case. There are reasons why. There is certain evidence that I have ruled you should hear, but if you do outside research, then the integrity of the trial is compromised as you may be exposed to so-called “facts” that cannot be proven, that are rumor or conjecture, or that are otherwise too unreliable for a court of law. As a juror, you have to break your normal habits. You cannot do these things in court. If there’s something that’s confusing you, however, you can send a note to me (the judge) during trial.113

This type of instruction acknowledges the realities of the information-saturated world that we live in and reminds jurors that these realities must be suspended during their service. Perhaps this kind of frank discussion with jurors will lead them to be more critical of cases in the media in the future, as well.

Removing the Media’s Access to Discovery Another possible reform would be to restrict anything released in discovery strictly to the parties. Simply because something is present in discovery materials does not mean it is intended, or allowed, for use at trial. However, many states do not keep discovery sealed. In Florida, for example, the state’s “Sunshine Laws” allow for inspection and in some cases copying of government and public records.114 In some situations, this means that the news media can access important and sensitive discovery materials through the use of these laws. Once this information gets out in the news and social media, it essentially becomes evidence in the minds of the potential jury pool, before jury selection has even begun. While open government laws are noble and useful tools for the general public, some thoughtful restrictions would do a lot to protect the accused’s right to a fair trial.

Holding the Media Accountable There must be recognition in the legal community of the news media’s ability to turn serious criminal cases into spectacles. Mainstream media outlets such as CNN, Fox News and MSNBC may be so focused on what “sells” that they often fail to see the ramifications of their troublesome commentary. Headline News commentator Nancy Grace is a striking example of the damage that the media can inflict. In 2006, Grace interviewed Melinda Duckett, the mother 2-yearold Trenton Duckett who had gone missing two weeks before. Within 24 hours after the Grace’s grueling and highly accusatory interview, Duckett shot herself in the head.115 Despite suspicion that the interview contributed to the suicide,116 CNN still chose to air the 113. For an examination of various states’ and proposed jury instructions on this issue, see Eric P. Robinson, Jury Instructions for the Modern Age, 1 Reynolds Cts. & Media L. J. 307 (2011). 114. Fla. Stat. § 119.01 (2005). 115. Associated Press, Nancy Grace Interview Contributed to Melinda Duckett Suicide, Professor Says, Huffington Post, Dec. 6, 2010, http://www.huffingtonpost.com/2009/12/06/nancy-grace-interviewcon_n_381846.html. 116. See, e.g., Sam Knight, CNN Guest Kills Herself After Gruelling Questions, The Times (London), Sept. 14, 2006, http://www.timesonline.co.uk/tol/news/world/us_and_americas/article638867.ece. See also Nancy Grace Says 'Guilt' Likely Made Mother Commit Suicide, ABC Good Morning America, Reynolds Courts & Media Law Journal

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Criminal Coverage pre-recorded interview.117 Duckett’s family filed a wrongful death suit against Grace and the network,118 but such after-the-fact judicial remedies are not enough, something more preventative is necessary. Duckett’s story is only one tragic example of prioritizing profits over the damage of sensational legal commentary. To effectively implement reforms, the media must take responsibility when its profit-driven coverage takes a human toll. We in the legal community have the power to hold such irresponsible media responsible — not through wrongful death lawsuits, but through policies that prevent these kinds of things from happening in the first place. As advocates, we must lobby the legislatures, the Federal Communications Commission, and the public to take a stand against news media that choose ratings and profits over humanity.

Conclusion

n the age of Facebook, Twitter and Google-turned-colloquial-verb, there is little room to dispute that news and Internet media can influence judicial proceedings. Particularly in criminal cases, where the accused has the most at stake — his personal liberty and potentially his life —yet has little to no control over the media representation of his case, the consequences can be severe, even fatal. It is therefore incumbent on all legal professionals to work towards remedying the effects of that media can have on the accused’s constitutional rights. Discourse about the problem must continue. More importantly, the struggle to reach a solution is imperative to the future of our criminal justice system.

Sept. 15, 2006, http://abcnews.go.com/GMA/story?id=2448050. 117. See 2-Year-Old Disappears From Bedroom (transcript), CNN, Sept. 8, 2006, http://transcripts.cnn.com/ TRANSCRIPTS/0609/08/ng.01.html. 118. The case was eventually settled. Sheila Marikar, Nancy Grace Settles Lawsuit Over Guest’s Suicide, ABC News, Nov. 9, 2010, http://abcnews.go.com/Entertainment/nancy-grace-settles-lawsuit-melindaducketts-suicide/story?id=12096851.

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Taking Litigation for a Spin: Addressing Lawyers’ Use of Public Relations Consultants to Speak to the “Court of Public Opinion” Mark S. Kogan

he relationship between lawyers, independent media consultants, and the court of public opinion has evolved at a rapid rate in the past two decades.1 While regulation concerning the speech of lawyers has been a question courts and professional associations have wrestled with for at least a century,2 the increasing participation of external public relations firms has flown under the radar.3 1. See John C. Watson, Litigation Public Relations: The Lawyer’s Duty to Balance News Coverage of Their Clients, 7 Comm. L. & Pol’y 77 (2002) (discussing the duty of lawyers to protect their clients in the court of public opinion and attempting to address the problems that arise out of this duty); Jonathan M. Moses, Note, Legal Spin Control: Ethics and Advocacy in the Court of Public Opinion, 95 Colum. L. Rev. 1811, 1829 (1995) (addressing the reality that “[a]n entire industry of legal public relations consultants has emerged to assist lawyers in dealing with the press on behalf of clients”); see also Deborah A. Lilienthal, Litigation Public Relations: The Provisional Remedy of the Communications World, 43 N.Y.L. Sch. L. Rev. 895, 902, 904 (1999) (discussing the importance and prevalence of retention of third-party professionals to assist in speaking to the public); Gerald F. Uelmen, Leaks, Gags and Shields: Taking Responsibility, 37 Santa Clara L. Rev. 943, 952-53 (1997) (finding in the late 1990’s that “the phenomenon of celebrity defendants or corporate defendants hiring a public relations consultant to handle trial publicity is not unheard of ”). 2. See, e.g., Canons of Prof’l Ethics Canon 20 (1908) (establishing the first official regulation of extra-judicial speech); replaced by Model Rules of Prof’l Conduct R. 3.6 (1983) (establishing the “substantial likelihood of material prejudice” standard for regulating an attorney’s extra-judicial speech); replaced by Model Rules of Prof’l Conduct R. 3.6 (1994) (updating and clarifying the “right of reply” to extra-judicial speech while retaining the “substantial likelihood” standard ); replaced by Model Rules of Prof’l Conduct R. 3.6 (2003) (laying out the modern regulation of attorney extra-judicial speech). 3. See, e.g., Deniza Gertsberg, Comment, Should Public Relations Experts Ever Be Privileged Persons?, 31 Fordham Urb. L.J. 1443, 1462 (2004) (“The prosecutors and the media are intertwined where each influences the other. Objective information, …, is framed to inflame the community. Intense public reactions may influence prosecutors to bring initial or heavier charges. A public saturated with every facet of the case, analyzed by legal TV experts, may prejudice the jury pool.”); Christine Brennan, Hubbub Surrounding Bryant Case Hits Ridiculous Heights, USA Today, Aug. 7, 2003, http://www.usatoday.com/sports/ columnist/brennan/2003-08-06-brennan_x.htm (discussing the pervasive coverage of the Kobe Bryant Reynolds Courts & Media Law Journal

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Taking Litigation for a Spin This article will explore potential approaches to regulating the activities of external public relations representatives hired as part of larger litigation strategy, and whether any regulatory framework could survive scrutiny under established First Amendment standards.

Public Relations in Modern Litigation

he use of public relations professionals as part of litigation strategy, while largely unaddressed, has become an increasingly inseparable element of high profile litigation.4 In a 2009 Harvard study based on interviews of chief legal officers of 118 corporations listed in the Standard & Poor’s 500, 98 percent of the respondents said they had to deal with a potentially high-profile legal controversy one or more times in the prior three years.5 Fiftythree percent of these hired an external public relations agency or consultant as part of their litigation strategy.6 The hiring of third-party public relations specialists is now seen less as an option and more as a necessity in modern high-profile litigation, both civil and criminal.7 The increased involvement of the public relations specialist as an entirely new player in the litigation process creates a host of issues. The use of outside non-legal professionals allows lawyers to make their case to potential jurors and the public at large by proxy, without the limitations of procedural rules and ethical guidelines, long before a case reaches trial.8 rape trial and how characterizations of Kobe and the alleged victim were tailored by various parties to send a particular message); Constance L. Hays, Selecting Stewart Jury: How Much Publicity Is Too Much?, N.Y. Times, Jan. 23, 2004, http://www.nytimes.com/2004/01/23/business/selecting-stewart-jury-howmuch-publicity-is-too-much.html (discussing the problems with selecting an impartial jury due to the “very negative publicity” surrounding the trial and describing the “costly publicity campaign” undertaken by the defense to combat said negative coverage). 4. See Michele Destefano Beardslee, Advocacy in the Court of Public Opinion, Installment One: Broadening the Role of Corporate Attorneys, 22 Geo. J. Legal Ethics 1259, 1273-1306 (2009) (analyzing the growth of in-house and contracted public relations consultants among Standard & Poor’s 500 corporations); see also Susan Hanley Duncan, Pretrial Publicity in High Profile Trials: An Integrated Approach to Protecting the Right to a Fair Trial and the Right to Privacy, 34 Ohio N.U. L. Rev. 755, 761-62 (2008) (discussing how the Duke lacrosse players accused of rape will be suspected of rape many years down the road due to the prevalence of reports assuming their guilt and the lack of reporting concerning their acquittal). 5. See Beardslee, supra note 4, at 1267. 6. See id. at 1289. 7. See Janice Godwin, et al., Courting Public Opinion: Using Public Relations and Media Effectively to Win Trials and Preserve the Civil Justice System, 1 Ass’n Trial Law. of Am. 867, 871 (2006) (“A public relations plan should be an integral part of the trial lawyer’s strategy from the outset of the case.”); see also David M. Sudbury, The Role of Corporate Counsel in the Criminal Environmental Case: Advice to Quench the Fire, 3 Vill. Envtl. L.J. 95, 110-111 (1992) (stating that an integral part of litigation strategy is the retention of public relations specialists to speak on behalf of clients in crisis situations under guidance from attorneys). But see Kevin C. McMunigal, The Risks, Rewards, and Ethics of Client Media Campaigns in Criminal Cases, 34 Ohio. N.U. L. Rev. 687, 689-93 (2008) (identifying and focusing on the risks and ethical issues of client media campaigns); Kevin C. McMunigal & Peter A. Joy, The Role of Lawyers in Client Media Campaigns, 19 Crim. Just. 47, 48 (Fall 2004) (explaining how client statements made to the press can be considered admissions, false exculpatory statements, or prior inconsistent statements). 8. See Kathleen F. Brickey, From Boardroom to Courtroom to Newsroom: The Media and the Corporate Governance Scandals, 33 J. Corp. L. 625, 625-29 (2008) (discussing the evolution of the media trial for corporate governance scandals and the problems they bring with trying to ensure a fair trial); see also, e.g., Robert Hadaway & Douglas B. Tumminello, Pretrial Publicity in Criminal Cases of National Notoriety: Constructing a Remedy for the Remediless Wrong, 46 Am. U. L. Rev. 39, 41 (1996) (“In a high profile trial, no county escapes media coverage; publicity saturates the nation before the trial begins.”); Constance L. Hays & Leslie Eaton, Martha Stewart, Near Trial, Arranges Her Image, N.Y. Times, Jan. 20, 2004, http://www.nytimes.com/2004/01/20/business/martha-stewart-near-trial-arranges-her-image.html (discussing how Martha Stewart tested different litigation strategies in anticipation of her trial and how

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Taking Litigation for a Spin Modern guidelines on speech, privacy, confidentiality, and ethics must address the new variable of public relations professionals in the litigation equation and direct courts and legal policymakers how to act moving forward.9 While the Supreme Court has held that limiting attorney speech that has a “substantial likelihood” of “materially prejudicing” litigation passes constitutional muster,10 the Court has refused to extend similar limitations to members of the media.11 This legal distinction has created an incentive for lawyers to utilize outside firms to speak through the media on their behalf.12 By not making the statements themselves, this workaround allows attorneys to say indirectly what the Court prevents them from saying directly.13 Although there have been efforts to address the problem of “trial by media” through harsher regulation of trial participants, the issue of parties not directly involved in litigation has not been thoroughly addressed.14 With the growing prevalence of public relations departments within legal firms and independent public relations firms catering to legal clients,15 this is an issue that could balloon to have a substantially negative effect on the perception and efficacy of the judicial system in the United States. 16 The questions that Arthur Andersen spent a supposed $1.5 million in their public relations efforts relating to their suit against the government); see also Moses, supra note 1, at 1813-15 (addressing the evolving role of the modern lawyer and the necessity for publicity and media outreach). 9. See Moses, supra note 1, at 1849-56 (comparing the variety of ethical responsibilities lawyers carry with their responsibility to their clients). 10. See Gentile v. State Bar of Nev., 501 U.S. 1030, 1080 (1991) (Rehnquist, C.J., dissenting in part) (holding that a lawyer’s speech may be restrained preemptively if it is likely to prejudice a jury or otherwise bias a trial). 11. See Neb. Press Ass’n v. Stuart, 427 U.S. 539, 615 (1976) (holding that prior restraint of the press must be supported by evidence of actual danger or malice, not mere speculation). 12. See Beardslee, supra note 4, at 1278-80 (explaining the growing use sophisticated legal public relations strategies being put to use); see also Godwin, supra note 7, at 688 (citing specific examples of outside public relations firms used in litigation for the purpose of bringing public attention to important litigation). 13. See, e.g., In re Grand Jury Subpoenas Dated Mar. 24, 2003, 265 F. Supp. 2d 321, 326 (S.D.N.Y. 2003) (finding that attorneys had retained public relations consultants to help change the tone of public opinion calling for legal action that would be adverse to their client); Kathleen F. Brickey, Andersen’s Fall From Grace, 81 Wash. U. L.Q. 917, 945 (2003) (detailing accounting firm Arthur Andersen’s demise in the wake of the Enron scandal, concluding that “Andersen’s legal and public relations strategies had become so closely intertwined that it was hard to tell one from the other”); Brickey, supra note 8, at 636 (discussing the use of media by high profile individual and corporate criminal defendants in their litigation strategy); see also Lonnie T. Brown, ”May it Please the Camera, … I mean the Court”-An Intrajudicial Solution to an Extrajudicial Problem, 39 Ga. L. Rev. 83, 146-48 (2004) (recommending that restrictions on attorney extra-judicial speech should also be placed on individuals that attorneys hire to speak on their behalf to the media due to the nature of their comments). 14. See Eileen A. Minnefor, Looking for Fair Trials in the Information Age: The Need for More Stringent Gag Orders Against Trial Participants, 30 U.S.F. L. Rev. 95, 152 (1995) (arguing for heavier fines and more generous granting of gag orders to better address the issue of trials going to the media); Mark R. Stabile, Free Press-Fair Trial: Can They Be Reconciled in a Highly Publicized Criminal Case?, 79 Geo. L.J. 337, 356-58 (1990) (concluding that gag orders should be handed out more often than not in high-profile litigation in order to preserve the fairness of trial). 15. See Beardslee, supra note 3, at 1289 (outlining the growth of the public relation firm-attorney relationship among large corporate clients in the last decade). 16. See, e.g., Matthew Mastromauro, Pre-Trial Prejudice 2.0: How YouTube Generated News Coverage Is Set to Complicate the Concepts of Pre-Trial Prejudice Doctrine and Endanger Sixth Amendment Fair Trial Rights, 10 J. High Tech. L. 289 (2010) (describing studies showing how pre-trial prejudice is amplified by modern media coverage); Andrew Mayo, “Non-Media” Jury Prejudice and Rule 21(a): Lessons from Enron, 30 Rev. Litig. 133, 146-48 (2010) (detailing how pervasive negative coverage of the Enron scandal led to findings of prejudicial pretrial publicity in subsequent adjudication); Michael D. Seplow, Paul L. Hoffman, Reynolds Courts & Media Law Journal

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Taking Litigation for a Spin must be addressed are whether this kind of speech and public advocacy should be regulated, and if so, how? This article seeks to address this gap in the law, and discusses potential solutions moving forward. Part I will explore the history of regulation concerning extra-judicial speech by attorneys and the media, and the development of the modern standards for regulation of extra-judicial speech. Part II will investigate three options for addressing the legal gap in extra-judicial speech regulation: (1) the extension of lawyer-like restrictions to members of the press, (2) the extension of lawyer-like restrictions to members of the public relations community, and (3) expanding the modern lawyer-speech restriction standard to hold lawyers responsible for comments made by those they retain in the course of litigation. Finally, this article will attempt to articulate a legally defensible approach to limiting potentially prejudicial extra-judicial speech.

Existing Regulation of Lawyers’ Speech

he conflict between the First Amendment right to free speech and the Sixth Amendment right to fair trial is a problem “almost as old as the Republic.”17 The judiciary has historically held the right to fair trial in very high regard, with a critical eye to goings-on in the press.18 The general opinion of the judiciary on the issue was best enunciated by Justice Oliver Wendell Holmes, who wrote, “[T]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.”19 Historically, the regulation of “lawyering” as a trade comported with Justice Holmes’ sentiments.20 The 1807 treason trial of former Vice-President Aaron Burr is an early example. The trial drew so much press attention that there were concerns as to Burr’s ability to secure a fair trial.21 Chief Justice Marshall, handing down a ruling that still guides extrajudicial speech jurisprudence to this day, stated that exposure to media does not, in and of itself, provide for an unfair trial.22 The appearance of the first legal ethics codes at the beginning of the 20th century provided specific guidance for regulating attorneys’ extra-judicial speech.23 Starting with Alabama in 1887,24 the message was fairly clear and consistent: speaking to the press Punishing Pundits: People v. Dyleski and the Gag Order As Prior Restraint in High-Profile Cases, 39 Loy. L.A. L. Rev. 1197 (2006) (discussing the placing of a gag order on a prominent legal commentator not party to the suit to pre-empt prejudicial pre-trial publicity). 17. Neb. Press Ass’n v. Stuart, 427 U.S. 539, 548 (1976). 18. See Patterson v. Colo., 205 U.S. 454, 462-63 (1907) (upholding an order that held a cartoonist in contempt of court for publishing critical cartoons of the court while it heard a case). 19. Id. at 462. 20. See Watson, supra note 1, at 91-95 (explaining the historical precedent for limitations on attorney speech); see also Moses, supra note 1, at 1816-20 (outlining the evolution of the modern restrictions on extra-judicial speech). See generally Margaret Tarkington, The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation, 97 Geo. L.J. 1567, 1575-92 (2009) (exploring the tension and conflict between attorney speech criticizing the courts and the regulation of said speech historically). 21. United States v. Burr, 25 F. Cas. 49, 50-52 (C.C.D. Va. 1807) (holding that press coverage of a trial does not automatically bias a jury). 22. See id.; see also Mu’Min v. Virginia, 500 U.S. 415, 431-32 (1991) (holding that jurors could still be impartial despite pre-trial publicity). 23. See generally James M. Altmann, Considering the A.B.A.’s 1908’s Canons of Ethics, 71 Fordham L. Rev 2395 (2003) (explaining the creation of the original ethical codes and their early adoption amongst the states). 24. See Gentile v. State Bar of Nev., 501 U.S. 1030, 1066 (1991) (Rehnquist, C.J., dissenting in part) (citing Henry S. Drinker, Legal Ethics (1953)).

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Taking Litigation for a Spin comes with risks and should be avoided unless absolutely necessary.25 The Canons of Professional Ethics, first adopted by the American Bar Association in 1908, addressed the relationship between lawyers and the press directly: “Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice. Generally they are to be condemned.”26 This strict standard allowed for some exceptions, but even those exceptions were “better to avoid.”27 Concern over press coverage of trials continued through the 1960s.28 The growing concern surrounding high profile media trials reached its zenith in the case of Sheppard v. Maxwell, a criminal trial concerning an Ohio doctor who was accused of murdering his wife.29 What made Sheppard unique was the Supreme Court’s admonishment of involved parties’ actions. The Court chastised the media for its sensationalism,30 and blamed the trial judge for failing to properly maintain decorum, resulting in what the Court dubbed a “carnival atmosphere.”31 Most relevant to the use of public relations as a litigation strategy, the Court condemned the leaking of information to the press by lawyers, as well as court and police officials, writing that “collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.”32 The Court concluded that the combination of factors made it impossible for Sheppard to receive a fair trial.33 Attempting to address the issues raised by the Sheppard Court, the ABA decided to re-examine its professional rules and draft an updated set of ethical guidelines.34 The ABA-commissioned Reardon Report marked the first time the effort to regulate trial coverage shifted from restricting the access of the press to court proceedings, to imposing stricter standards on lawyers and court officials.35 Because the statements of these 25. See Gentile v. State Bar of Nev., 501 U.S. 1030, 1066 (1991) (Rehnquist, C.J., dissenting in part). See also, e.g., ABA Standing Comm. on Ethics & Prof ’l Responsibility, Informal Op. 1230 (1972) (preventing lawyers from telling reporters of a complaint filing or providing them with a copy of the filing). 26. See Canons of Prof’l Ethics Canon 20 (1908), in American Bar Ass’n, Selected Statutes, Rules and Standards on the Legal Profession 237 (1990). 27. Id. 28. See Moses, supra note 1, at 1817-20 (describing the fear of growing press coverage centered around nationally followed trials undermining the judicial system in the United States). 29. 384 U.S. 333, 335-38 (1966). 30. Id. at 350. 31. Id. at 358. 32. Id. at 363. But see Erwin Chemerinsky, Silence is Not Golden: Protecting Lawyer Speech Under the First Amendment, 47 Emory L.J. 859, 868-72 (1998) (arguing that information leaks from ongoing trials result in a net social benefit because they provide accurate information and not mere speculation and that without such leaks the media would still continue speculation and coverage, resulting in detrimental effect to the fairness of the trial). 33. Sheppard, 384 U.S. at 363. 34. See Paul Reardon, The Fair Trial-Free Press Standards, 54 A.B.A. J. 343 (1968) [hereinafter “Reardon Report”]. The ABA established the Reardon Commission, headed by Paul Reardon, an associate justice of the Supreme Judicial Court of Massachusetts. The Commission delivered a set of suggested guidelines relating to trial publicity, primarily focusing on comments made to the press by lawyers and other public officials. See Moses, supra note 1, at 1820-22 (describing the formulation of recommendations made by the Reardon Report). State courts did not wait for the report’s recommendations, with some states electing to address how and where lawyers should argue their cases prior to completion of the Reardon Report. See State v. Van Duyne, 204 A.2d 841, 852 (N.J. 1964) (“The courtroom is the place to settle the issue.”). 35. See Reardon Report, supra note 34, at 344 (explaining that in-house policing and clear regulations were Reynolds Courts & Media Law Journal

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Taking Litigation for a Spin individuals have the ring of authority and authenticity, the Report concluded that they should be the regulatory focus.36 The Report included a proposed set of rules to regulate individuals involved in the legal system.37 The proposed rules included a restriction on lawyers releasing information that could have a “reasonable likelihood” of prejudicing the fair administration of justice.38 The hiring of third-party public Although the proposed rules were harsher than those eventually put in place, the ABA relations specialists is now seen adopted the majority of the Report’s recomless as an option and more as a mendations.39 In doing so, the ABA reaffirmed Justice Holmes’ original statement necessity in modern high-profile that the place for advocacy is not the court litigation, both civil and criminal. of public opinion, with the new rules stating that the “goal of our legal system is that each party shall have his case, criminal or civil, adjudicated by an impartial tribunal,” 40 and that the “attainment of this goal may be defeated by the dissemination of news or comments which tend to influence judge or jury.”41 Unsurprisingly, lawyers immediately challenged these new restrictions on extrajudicial speech on First Amendment grounds.42 The most noteworthy success came in a challenge by Chicago Bar members to a local rule which closely mirrored Reardon’s proposed restrictions on extra-judicial speech.43 The United States Court of Appeals for the Seventh Circuit concluded that the rule was far too broad because it “establish[ed] such a blanket prohibition whereby even a trivial, totally innocuous statement could be a violation.”44 The court concluded that “the First Amendment does not allow this broad a sweep.”45 needed to effectively address prejudicial pretrial publicity). 36. See id. at 344-35 (stating that the new rules were meant to better regulate attorneys and court personnel and did not “interfere[] with constitutional guarantees of press freedoms”). 37. See Reardon Report, supra note 34, at 347-51. 38. See id., supra note 34, at 347. While the Report’s proposal was targeted at criminal trials, the rule that was eventually adopted extended to apply to civil and administrative cases as well. See Model Code of Prof’l Responsibility DR 7-107(G), (H) (1988). 39. See Reardon Report, supra note 34, at 347-51 (suggesting a ban on all extra-judicial attorney speech even after the end of the trial phase of litigation so as not to affect appellate procedures). Compare Reardon Report, supra note 34 at 347-51 with Model Code of Prof’l Responsibility (1988). 40. Model Rules of Prof’l Responsibility EC 7-33 (1988). 41. Id. 42. Many of the Reardon Report’s initial propositions had been severely handicapped by a series of Supreme Court decisions opening the judicial process to media access. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 10-16 (1986) (holding that the First Amendment guarantees right of access for the press except in the most narrowly tailored of exceptions); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 610-12 (1982) (concluding that a Massachusetts law closing all trials to the press violated the First Amendment); and Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) (holding that the right of the public to attend criminal trials was “implicit in the guarantees of the First Amendment”). 43. Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975) (finding restrictions on attorney speech unconstitutionally overbroad). 44. Id. at 251. 45. Id. at 251. See also Hirschkop v. Snead, 594 F.2d 356, 374 (4th Cir. 1979) (holding that while one could apply the Reardon rule to criminal matters, one could not apply it to civil or administrative proceedings because the possible prejudice was not great enough to justify such a speech restriction); and In re Keller, 693 P.2d 1211, 1214 (Mont. 1984) (finding the rule too vague to provide guidance or be ap-

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Taking Litigation for a Spin In response to these rulings, the ABA decided to take another look at its trial publicity rules with a new panel chaired by Ninth Circuit Judge Alfred Goodwin.46 The Goodwin Commission agreed with the Seventh Circuit in concluding that the ABA had gone too far in limiting the speech of attorneys in public, rejecting the “reasonable likelihood” standard created by Reardon’s committee.47 Instead, the Commission recommended applying the “clear and present danger” standard that had been applied by New York courts in addressing this issue.48 The Commission also provided a reworking of the existing rule, focusing primarily on criminal trials where the Sixth Amendment rights of the accused were more likely to trump the First Amendment rights of the attorney or the press.49 The ABA adopted most of the Goodwin Commission’s proposals in the Model Rules of Professional Conduct.50 However, the ABA rebuffed the “clear and present danger” recommendation in favor of a lower standard which prohibited a lawyer from speaking to the press if the “lawyer knows or reasonably should know that [the speech] will have a substantial likelihood of materially prejudicing an adjudicative proceeding.”51 The rule came with no definition of “substantial likelihood” but provided a list of statements that would be presumed to violate the rule if uttered in a matter “triable by a jury.”52 This newly adopted rule was also challenged, resulting in a Supreme Court ruling that established an entirely new set of restrictions on extra-judicial speech. The case of Gentile v. State Bar of Nevada53 concerned comments made by Nevada lawyer Dominic Gentile while representing a storage facility owner charged with stealing drugs that local police had stored as evidence.54 Immediately after his client’s indictment, Gentile held a press conference during which he asserted his client’s innocence and made implications that the actual perpetrator may have been one of the police detectives accusing his client of wrongdoing.55 The case, which had drawn a great deal of media attention, eventually went to trial and Gentile’s client was acquitted of all charges.56 Upon the conclusion of his case, Gentile was summoned to a disciplinary proceeding by the Nevada State Bar. He was sanctioned under Nevada’s Supreme Court Rule 177,57 which mirrored the ABA’s Model Rule 3.6,58 for speech that carried a “substantial likelihood” of “materially prejudicing” a jury. Gentile contended that the six months that passed between plied consistently enough to survive scrutiny); Markfield v. Ass’n of the Bar of N.Y., 370 N.Y.S.2d 82, 85 (App. Div. 1975) (per curiam) (applying a “clear and present danger” standard in overturning sanctions against a New York attorney who had commented on a local radio station concerning local prison riots). 46. See ABA Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press 1 (1978) [hereinafter “Goodwin Report”] (recommending necessary but limited restrictions on attorney speech). 47. See id. at 2-3 (noting that attorney speech may also include “pure” speech, criticizing political or public entities, which would be considered the most protected form of speech). 48. See, e.g., Markfield, 370 N.Y.S.2d at 85. 49. See generally Goodwin Report, supra note 46. 50. See Model Rules of Prof’l Conduct R. 3.6 (1994). 51. Id. R. 3.6(a). 52. Id. R. 3.6(b); see also Moses, supra note 1, at 1024-26 (discussing how the rule, particularly the jury requirement, differed from the Reardon Commission’s proposals). 53. 501 U.S. 1030 (1991) (holding that an attorney’s speech may be regulated if it carries a substantial likelihood of prejudicing an ongoing adjudication). 54. Id. at 1039-42 (Kennedy, J., plurality opinion). 55. Id. at 1045. 56. Id. at 1038. 57. Nev. Sup. Ct. R. 177 (1991). 58. Model Rules of Prof’l Conduct R. 3.6 (1994). Reynolds Courts & Media Law Journal

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Taking Litigation for a Spin the press conference and the trial negated any potential for a prejudicial effect.59 The Nevada Supreme Court disagreed with this argument and enforced the sanctions.60 Gentile appealed and the U.S. Supreme Court granted review.61 In a heavily split decision, which included two pluralities and a concurrence, the Supreme Court overturned the disciplinary ruling for vagueness, but upheld the “substantial likelihood” standard generally.62 Justice Kennedy and Chief Justice Rehnquist both wrote separate opinions that each attracted the support of three other justices, resulting in a 4-4 split. Justice O’Connor wrote her own opinion, concurring in part with both.63 The Kennedy plurality found the Nevada rule overbroad and unconstitutionally vague, creating “a trap for the wary as well as the unwary.”64 Specifically, Justice Kennedy focused on the portion of the rule which permitted attorneys to “state without elaboration … the general nature of the … defense.”65 Noting the vagueness inherent in terms such as “general” and “elaboration,” Justice Kennedy held that the rule as written provided little guidance for attorneys seeking to speak to the public.66 Chief Justice Rehnquist’s opinion disagreed philosophically, vacating the sanction but upholding the Nevada rule’s “substantial likelihood” standard.67 Rehnquist held that the “substantial likelihood” test was “designed to protect the integrity and fairness of a State’s judicial system, and it impose[d] only narrow and necessary limitations on lawyers’ speech,” and it therefore passed constitutional muster.68 The Rehnquist plurality seemed to support a conservative and inflexible reading of the rule, and strongly suggested that lawyers should keep their comments in the courtroom and away from the cameras.69 The Kennedy plurality suggested a more lenient approach, going beyond Model Rule 3.6 and acknowledging the necessity of advocating 59. See Brief for Petitioner at 7-8, Gentile v. State Bar of Nev., 501 U.S. 1030 (1991) (No. 89-1836), 1991 WL 521171. 60. Gentile v. State Bar of Nev., 787 P.2d 386, 386 (Nev. 1990) (per curiam). 61. Gentile v. State Bar of Nev., 787 P.2d 386 (Nev. 1990), cert. granted, 498 U.S. 1023 (Jan. 7, 1991) (NO. 89-1836). 62. See Gentile, 501 U.S. at 1048 (Kennedy, J., plurality opinion) (declaring Nevada’s rule overly vague and impossible to navigate); Id. at 1063 (Rehnquist, C.J., dissenting in part) (finding the pre-emptive standard constitutional due to the unique position of attorneys in the judicial system). 63. Justices Marshall, Blackmun, Stevens, and O’Connor joined Justice Kennedy with respect to Parts III and VI of his opinion. Chief Justice Rehnquist was joined in Part I and II of his opinion by Justices White, O’Connor, Scalia, and Souter. Gentile, 501 U.S. at 1032 (Kennedy, J.). 64. Id. at 1051. 65. Id. at 1048. 66. Id. at 1048-49. Chief Justice Rehnquist, as well as Justices White, Souter, and Scalia, dissented in Part III of Justice Kennedy’s opinion on the “vagueness” issue and agreed with the Nevada court that Gentile was clearly out of bounds with his comments. See id. at 1078-80 (Rehnquist, C.J., dissenting in part) (disputing the supposed vagueness of the terms “general” and “elaboration” when read together, arguing that they “convey the very definite proposition that the authorized statements must not contain the sort of detailed allegations that petitioner made”). 67. Id. at 1075-76. 68. Id. at 1075. But see Chemerinsky, supra note 32, at 871-76, 881-85 (arguing that Gentile-esque restrictions are unconstitutional and that restricting an attorney’s speech more liberally simply due to involvement in the judicial process is unjustified). 69. See Gentile, 501 U.S. at 1080 n.6 (Rehnquist, C.J., dissenting in part) (arguing that Justice Kennedy’s promotion of the need for counter-publicity to potentially prejudicial publicity makes the situation worse and harder to regulate); see also Brown, supra note 13, at 104-06 (contrasting the Rehnquist plurality’s rigid reading of the rule against the Kennedy plurality’s calls for lenient interpretation).

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Taking Litigation for a Spin to the public on behalf of a client.70 Justice O’Connor’s concurrence agreed with Kennedy’s opinion, but based on Rehnquist’s reasoning. She endorsed Rehnquist’s underlying premise that the State may regulate lawyers’ speech because “[l]awyers are officers of the court and, as such, may legitimately be subject to ethical precepts that keep them from engaging” in what would otherwise be considered constitutionally protected speech.71 O’Connor also validated the “substantial likelihood” standard as constitutionally sufficient, noting that while lawyers do not forfeit their First Amendment rights, rules regulating speech by attorneys are subject to “a less demanding standard.”72 Finally, O’Connor agreed with Kennedy’s conclusion that the Nevada rule “fail[ed] to give fair notice to those it [] intended to deter,” reversing the judgment of the Nevada Supreme Court.73 In the end, two constitutional rulings resulted from Gentile. First, the “substantial likelihood of materially prejudicing an adjudicate proceeding” standard was held constitutional.74 Second, the specific language of the Nevada rule was deemed unconstitutionally vague and overbroad.75 In the aftermath of the Gentile ruling, the ABA redrafted Model Rule 3.6. Unsurprisingly, the “substantial likelihood” standard was left untouched, but some changes, likely intended to address the “vagueness” criticism, were implemented.76 The most substantial change was the addition of a new safe-harbor provision in the form of a reworked “right of reply.”77 The resulting modern standard for restriction of a lawyer’s extra-judicial speech remains much the same as the original Model Rule 3.6: strict and subjective.78 Any lawyer who is participating or has participated in a case shall not make an extrajudicial statement that the lawyer knows or reasonably should know will have “a substantial likelihood of materially prejudicing an adjudicative proceeding” until the case has concluded.79 70. See Gentile, 501 U.S. at 1043 (Kennedy, J., plurality opinion) (“[A]n attorney may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives.”); see also Moses, supra note 1, at 1850-55 (suggesting that representing your client in public is neither unethical nor out of line with an attorney’s obligations and can be amply self-regulated by the profession). 71. Gentile, 501 U.S. at 1081-82 (O’Connor, J., concurring in part). 72. Id. at 1082. 73. Id. 74. See Gentile, 501 U.S. at 1073-76 (Rehnquist, C.J., dissenting in part) (explaining how the standard meets the requirements of narrow construction and protection of a substantial state interest). 75. See id. at 1051 (Kennedy, J., plurality) (holding the Nevada rule void for vagueness and over-breadth in application). 76. See Model Rules of Prof’l Conduct R. 3.6(a) (1994). 77. Model Rules of Prof’l Conduct R. 3.6(c) (1994). A comment to subsection (c) states: [E]xtrajudicial statements that might otherwise raise a question under this Rule may be permissible when they are made in response to statements made publicly by another party, another party’s lawyer, or third persons, where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer’s client. When prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding. Such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others. Model Rules of Prof’l Conduct R. 3.6(c) cmt. 7 (1994) (emphasis added). 78. See Day, supra note 2, at 180-81 (arguing that in striking down the Nevada rule while upholding its premise, the Gentile court gave little to no guidance on how to actually apply the Gentile standard). 79. Model Rules of Prof’l Conduct R. 3.6(a) (2003). For purposes of pre-trial publicity, an adjudicaReynolds Courts & Media Law Journal

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Taking Litigation for a Spin Much as before, it remains unclear how exactly a trier of fact would determine a “substantial likelihood.”80 While the modern rule gives lawyers little guidance, its vagueness gives them semantic wiggle-room.81 In Nebraska Press Ass’n v. Stuart, the Supreme Court noted that “even pervasive, adverse publicity does not inevitably lead to an unfair trial,”82 revitalizing the wisdom of Justice Marshall some 170 years prior.83 This holding makes it difficult to prove that a particular statement has the “substantial likelihood” to result in “material prejudice,” making it equally arduous to show that an attorney knew or reasonably should have known of the probable effect of any particular statement.84 Furthermore, examples of previously forbidden statements, originally written into the black letter text of the rule,85 were relegated to the explanatory comments following the rule, making them essentially unenforceable.86 The modern restrictions on an attorney’s extra-judicial speech have discouraged enforcement by various disciplinary bodies due to its continued vagueness and heavy burden of proof.87 That said, the threat of sanction still exists in very much the way that Chief Justice Rehnquist had hoped in writing his Gentile plurality: any attorney who steps a little too far past the accepted norms of the profession in making his or her case to the court of public opinion stands to be punished.88

tive proceeding is understood as adjudications at the trial level, whether by jury or bench trial. See Neb. Press Ass’n v. Stuart, 427 U.S. 539, 555 (1976) (explaining that the “major responsibility” of the judge is to ensure fair trial level proceedings). 80. See Brown, supra note 69, at 106-08 (positing that it would theoretically permissible to say things that were “reasonably likely” to cause material prejudice or substantially likely to cause “non-material prejudice”); see also Moses, supra note 1, at 1826 (“[W]hat Gentile did not do, at least not directly, is decide when, if or how lawyers should advocate in the court of public opinion.”). 81. See Stephen Jones & Jennifer Gideon, United States v. McVeigh: Defending the “Most Hated Man in America”, 51 Okla. L. Rev. 617, 633 (1998) (noting that “there is substantial latitude in allowing lawyers to speak with the media under the applicable [rules]”). See also Gentile at 1050-51 (Kennedy, J.) (suggesting that the rule could be “interpreted differently by disciplinary committees and judges”); Loretta S. Yuan, Comment, Gag Orders and the Ultimate Sanction, 18 Loy. L.A. Ent. L.J. 629, 640 (1998) (discussing problems of disparate and unequal enforcement of attorney speech). 82. Neb. Press 427 U.S. at 554. 83. See United States v. Burr, supra note 21, 25 F. Cas. at 50-52 (C.C.D. Va. 1807) (holding that media exposure does not necessarily bias a jury or prevent a free trial). 84. See Scott M. Matheson Jr., The Prosecutor, the Press, and Free Speech, 58 Fordham L. Rev. 865, 896 (1990) (discussing the difficulty of proving prejudice in the context of the ABA/Gentile rule). 85. See Model Rules of Prof’l Conduct R. 3.6(b) (1983). 86. See Model Rules of Prof’l Conduct R. 3.6 cmt. 5 (2003); see also Model Rules of Prof’l Conduct Scope (2002) (explaining that comments provide ethical guidance but do not create real obligations). 87. See William H. Fortune et al., Modern Litigation and Professional Responsibility Handbook: The Limits of Zealous Advocacy § 7.2.1 (2000) (“[A]s a practical matter, it is unlikely that a lawyer will be subjected to discipline for extrajudicial comment unless it clearly appears that she was attempting to prejudice potential or seated jurors by releasing inadmissible evidence through the media.”). 88. See Gentile, 501 U.S. 1030, 1075-78 (Rehnquist, C.J., dissenting in part) (explaining that the restriction is no broader than necessary to protect the substantial state interest of an impartial judicial system). While most states follow similar guidelines to those published by the ABA, some states have retained the “clear and present danger” standard instead. See N.M. Rules of Prof’l Conduct R. 16-306 (stating that a lawyer should not make an extrajudicial statement if the lawyer “knows or reasonably should know” that the statement “creates a clear and present danger of prejudicing the proceeding”) (emphasis added).

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The Press, the Courts, and the First Amendment If the tension between attorney speech and the right to a fair trial is a problem almost as old as the Republic, then the tension between the media and the judiciary is as old as the printing press. Although freedom of the press was guaranteed upon passage of the Bill of Rights,89 and again reaffirmed with its incorporation against the states in Gitlow v. New York,90 the press does not enjoy limitless protection, particularly when speaking about the judiciary and its processes and proceedings.91 Although protected from broad censure, the press has been warned on more than one occasion about interfering with the appearance of fairness in a trial.92 This included a share of the scorn handed out by the Court for the media’s part in the “carnival” Sheppard trial.93 While the Court in Sheppard discussed the importance of an unregulated press in the furtherance of justice,94 it was quick to note that in the instant case the behavior of the media was well beyond usual practice.95 But the Court did not go so far as to censure the press, focusing its ire instead on the judge and attorneys involved.96 The Sheppard court’s aversion to censor may have been due to the holding in New York Times v. Sullivan, decided two years prior.97 In Sullivan, the Supreme Court established the “actual malice” standard as a requirement for the state to impose liability for libel in media coverage of public officials.98 The Sullivan Court defined “actual malice” as knowledge that the information published was false or that it was published with reckless disregard for whether it was false or not.99 In its holding, the majority opinion by Justice William Brennan explained that the constitution protects the freedom to openly and pub-

89. U.S. Const. amend. I. 90. Gitlow v. N.Y., 268 U.S. 652, 666 (1925). 91. See, e.g., Patterson v. Colo., supra note 18, 205 U.S. at 463 (1907) (declining to extend First Amendment protection to a publisher who published cartoons critical of the judiciary); see also Chaplinsky v. N.H., 315 U.S. 568 (1942) (holding that First Amendment protections are not unlimited). But see N.Y. Times v. Sullivan, 376 U.S. 254, 270 (1964) (“[Our] profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and [] it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”). 92. See Irvin v. Dowd, 366 U.S. 717, 729 (1961) (setting aside a conviction due to exposure by the jury to prejudicial news reports); see also Pennenkamp v. Fla., 328 U.S. 331, 347 (1946) (“Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice.”); and Chambers v. Fla., 309 U.S. 227, 236-37 (1940) (stating that no one should be punished for a crime without a charge fairly made in a public tribunal without prejudice, passion, or excitement). But see Sheppard v. Maxwell, 384 U.S. 333, 350 (1966) (“[W]e have consistently required that the press have a free hand, even though we sometimes deplored its sensationalism.”); Craig v. Harney, 331 U.S. 367, 374 (1947) (“[W]hat transpires in the court room is public property.”); Bridges v. Cal., 314 U.S. 252, 265 (1941) (“The unqualified prohibitions laid down by the framers were intended to give to liberty of the press … the broadest scope that could be countenanced in an orderly society.”). 93. Sheppard, supra note 29, 384 U.S. at 358. 94. See id. at 349-52 (discussing the need for press coverage to disseminate information so long as they do not interfere with the administration of a fair trial). 95. See id. at 355 (“[T]he fact is that bedlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom.”). 96. See id. at 355-63 (explaining that the judge’s mismanagement of the trial, coupled with leaks from court officials and attorneys, led the Court to conclude that Sheppard was deprived of his right to fair trial). 97. N.Y. Times v. Sullivan, 376 U.S. 254 (1964). 98. Id. at 283. 99. See id. at 265-92 (outlining the reasoning behind the “actual malice” requirement). Reynolds Courts & Media Law Journal

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Taking Litigation for a Spin licly criticize the government.100 The Sullivan Court rejected “silence coerced by law,”101 concluding that “the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.”102 Building on the standard established in Sullivan, in Nebraska Press Ass’n v. Stuart103 the Court struck down a prior restraint order issued by the Nebraska courts which prevented the press from reporting on confessions, admissions, or facts “strongly implicative” of a defendant on trial for murdering a family in rural Nebraska.104 The Court held that, because the justification for restraining the press was speculative in nature, the Nebraska court erred in allowing such a restriction.105 The Court stated that because a prior restraint order was such an “immediate and irreversible sanction”106 it should only be allowed if all other options had been exhausted, and there was an imminent and tangible risk of clear and present danger to the defendant’s right to a fair trial.107 The Nebraska Press holding provided a clearer standard for restrictions on press coverage of trials, a far stricter standard than the one applied to speech restrictions placed on lawyers.108

Regulating Litigant’s PR Campaigns While the courts have established standards for evaluation of court-imposed speech restrictions on attorneys and the press during trial, no such standard has been set for public relations professionals.109 The use of public relations firms has been growing rapidly since the mid-1990s110 and with it, the question of how to address and potentially regulate this new middleman necessarily comes into play in discussions of extra-judicial speech.111 This article will now explore three potential regulatory approaches: (1) extending Gentile restrictions to members of the press, as a way to thwart litigants’ use of public relations spe 100. See id. at 291 (“[T]he possibility that a good faith critic of government will be penalized for his criticism … strikes at the very center of the constitutionally protected area of free expression.”); see also id. (“[N]o court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.”) (citing City of Chicago v. Tribune Co., 139 N.E. 86, 88 (1923)). 101. N.Y. Times, 376 U.S. at 270 (quoting Whitney v. Cal., 274 U.S. 357, 376 (1926) (Brandeis, J., concurring)). 102. Id. 103. 427 U.S. 539 (1976). 104. Id. at 570. 105. Id. at 563. 106. Id. at 559. 107. See id. at 563-64 (discussing the alternatives that must be pursued before a prior restraint order is handed down). 108. See Watson, supra note 1, at 94-96 (discussing the distinction between the standards set forth in Neb. Press and Gentile); see also Gentile v. State Bar of Nev., 501 U.S. 1030, 1073 (Rehnquist, C.J., dissenting in part) (“The speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press in Neb. Press.”) (emphasis added). The high standard for restrictions on press coverage of the courts has been reinforced in a series of cases following Nebraska Press, including Landmark Communications v. Virginia, 435 U.S. 829 (1978) and Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979). 109. See Moses, supra note 1; see also Judith Trotsky, Unholy Alliance: Law Firms Still Struggle with PR Strategies, 15(9) Of Counsel 5 (1996) (discussing the lack of rules concerning the interaction between law firms and public relations firms and noting the ABA’s slow-growing interest). 110. See Beardslee, supra note 4, at 1266-80 (discussing the rapid growth of public relations firm usage among corporate legal clients). 111. See Robert S. Bennett, Press Advocacy and the High-Profile Client, 30 Loy. L.A. L. Rev. 13, 18-20 (1996) (stating that a high-profile client will see defending their reputation in public just as important as defending themselves in court); and Lilienthal, supra note 1, at 897-98 (“negative public opinion may impact a company more than an adverse legal decision”).

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Taking Litigation for a Spin cialists; (2) extending Gentile restrictions to members of the public relations community; and (3) holding attorneys responsible for the consultants they retain, under the established Gentile framework. I will then discuss the efficacy and probability of these regulatory frameworks surviving scrutiny under established legal standards.

Extending the Gentile Standard to the Press One option would be to apply the Gentile standard to the press when reporting on pending litigation. This approach would allow the courts to issue prior restraint orders against the press under the relaxed “substantial likelihood” standard set forth in Gentile.112 The problem with this approach is immediately apparent. In his Gentile plurality, Justice Rehnquist specifically built on the distinction between lawyers and the press, noting that “the speech of lawyers . . . may be regulated under a less demanding standard than that established for regulation of the press in Nebraska Press.”113 The Gentile standard regulating lawyers could not survive the more legally demanding constitutional standards for regulation of the press, without upending the series of cases reinforcing and applying the New York Times v. Sullivan114 and Nebraska Press115 standards. The Sullivan “actual malice” requirement necessarily pre-empts the extension of the “substantial likelihood” standard to the press. Under a “substantial likelihood” rule, a court could preemptively silence a newspaper from publishing any material, libelous or not, that could have the “substantial likelihood” of “materially prejudicing” a potential jury or adjudicative proceeding.116 This would allow the court to subjectively determine which stories or articles may or may not carry a “substantial likelihood” of “materially prejudicing” the proceeding, with no requirement of meeting the much more demanding standard of showing the existence of “actual malice” behind the publication. Under the Gentile standard, a court would theoretically be able to restrain a newspaper from publishing an editorial that accurately and honestly criticizes the character of a sitting judge or the credibility of a prosecutor.117 This directly contradicts the protections established in Sullivan.118 112. See Gentile v. State Bar of Nev., 501 U.S. 1030, 1063 (Kennedy, J., plurality). 113. Id. at 1074 (Rehnquist C.J., dissenting in part). 114. See supra notes 98-102 and accompanying text. 115. See supra notes 103-104 and accompanying text. 116. See Gentile, 501 U.S. at 1074 (Rehnquist, C.J., dissenting in part) (“[T]he courts must take such steps by rule and regulation that will protect the processes from prejudicial outside interferences.”) (quoting Sheppard v. Maxwell, 384 U.S. 333, 363 (1966)). 117. See Fla. Bar Ass’n v. Ray, 797 So. 2d 556, 560 (Fla. 2001) (per curiam) (holding that an attorney was correctly reprimanded for comments made concerning the veracity and integrity of a judge); see also Idaho Bar Ass’n v. Topp, 925 P.2d 1113, 1115 (Idaho 1996) (upholding public reprimand for an attorney who made a comment at a public meeting in which he implied that a judge “wasn’t worried about the political ramifications” of his decision). But see Bridges v. Cal., 314 U.S. 252, 277-78 (1941) (holding that a contempt finding against a newspaper for publishing editorials about a pending case was a violation of the First Amendment). For example, under the Gentile standard, the court in North Carolina could have restricted newspapers from reporting on the now dubious actions of then prosecutor Mike Nifong in the Duke Lacrosse rape case. See, e.g., As Duke rape case unravels, focus turns to prosecutor, USA Today, December 26, 2006, http://www.usatoday.com/news/opinion/editorials/2006-12-26-edit_x.htm (accusing Nifong of bringing charges on flimsy evidence, rushing to judgment, and ignoring the rights of the accused). In retrospect, had the court been able to silence such critical articles, the case against the Duke Lacrosse players may have dragged on longer than it did. See, e.g., As time ticks by in Duke’s rape case, facts grow short, USA Today, June 20, 2006, http://www.usatoday.com/news/opinion/editorials/2006-06-20-duke-case_x. htm (examining the evidence presented by Nifong the two months following the accusation, concluding that there should have been more investigation before charges were filed). 118. See N.Y. Times v. Sullivan, 376 U.S. 254, 268 (1964) (“The Court was careful to note that it ‘retains and Reynolds Courts & Media Law Journal

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Taking Litigation for a Spin Any remaining questions concerning the possibility of extending Gentile to the press are firmly laid to rest in Nebraska Press.119 The Nebraska Press ruling that speculation would not suffice for purposes of issuing prior restraint orders makes extension of Gentile restrictions to the press impossible. The Gentile standard is based on a “substantial likelihood” test, which is inherently speculative.120 If the Gentile standard was used to preemptively restrict publications that carried a “substantial likelihood” of materially prejudicing an ongoing adjudication, it would be clearly unconstitutional under the holdings in both Sullivan and Nebraska Press.121 This is a logical and correct conclusion. Lawyers are fundamentally different from the press in that they voluntarily choose to become officers of the court, a “privilege burdened with conditions.”122 The conduct of lawyers can directly reflect upon the perception of the legal system by the public. Thus attorneys are held to a more demanding standard concerning their actions and speech.123 Members of the press, on the other hand, carry no responsibility toward the legal system.124 It would exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel’; for ‘public men are, as it were, public property,’ and discussion cannot be denied, and the right, as well as the duty, of criticism must not be stifled.”) (citing Beauharnais v. Ill., 343 U. S. 250, 26364, n. 18 (1952)); see also Neb. Press Ass’n v. Stuart, 427 U.S. 539, 569 (1976) (finding that there was not enough proof to show a clear and present danger to justify the restriction). It is important to note that Justices Brennan, Stewart, and Marshall took the position in Neb. Press Ass’n that prior restraints could never be justified to protect a defendant’s right to a fair trial. See id. at 572 (Brennan, J., concurring). 119. See Neb. Press Ass’n at 569 (holding prior restraint based on a potential for prejudicing a jury without proof of need for the restraint unconstitutional). 120. The sanctions against Gentile were thrown out because the Nevada language was too broad. See Gentile v. State Bar of Nev., 501 U.S. 1030, 1048 (Kennedy, J.) (“[T]he Rule is void for vagueness, in any event, for its safe harbor provision, [] misled petitioner into thinking that he could give his press conference without fear of discipline.”). However, Rehnquist specifically stated that if the “substantial likelihood” language was adopted, such sanctions could be upheld regardless of tangible prejudice in the future. The mere “substantial likelihood” of said prejudice was enough. See id. at 1080 (Rehnquist, C.J., dissenting in part) (“[P]etitioner had intended to prejudice the trial, and that based upon the nature of the statements and their timing, they were in fact substantially likely to cause material prejudice.”). 121. See Okl. Publ’g Co. v. District Court, 430 U.S. 308, 311 (1977) (holding unconstitutional an order preventing the publication and dissemination of legally obtained, truthful evidence pertaining to the murder trial of an 11-year-old boy); see also Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 224-27 (6th Cir. 1996) (finding a prior restraint issued to prevent publication of material that had been produced during discovery and sealed by court order unconstitutional); United States v. Ford, 830 F.2d 596, 599-600 (6th Cir. 1987) (stating that the Neb. Press clear and present danger test should be extended to restrictions on trial participants). See generally Erwin Chemerinsky, Lawyers Have Free Speech Rights, Too: Why Gag Orders on Trial Participants Are Almost Always Unconstitutional, 17 Loy. L.A. Ent. L. Rev. 311 (1997) (stating that the Supreme Court has never upheld a prior restraint under the Neb. Press standard and discussing the extension of the Neb. Press test to individuals involved in trials). 122. Gentile v. State Bar of Nev., 501 U.S. 1030, 1065 (1991) (Rehnquist, C.J., dissenting in part) (quoting In re Rouss, 116 N.E. 782, 783 (1917) (Cardozo, J.); see also Gentile, 501 U.S. at 1080 (O’Connor, concurring in part) (stating that because lawyers are officers of the court they are subject to restrictions on engaging it what would otherwise be constitutionally protected speech). 123. See Gentile at 1073 (Rehnquist, C.J., dissenting in part) (explaining the breadth of responsibility that comes with bar membership). But see Michael E. Swartz, Trial Restrictions: Gagging First Amendment Rights, 90 Colum. L. Rev. 1411, 1426-27 (1990) (arguing that the “officer of the court” justification is an impermissible unconstitutional condition). 124. See Neb. Press Ass’n v. Stuart, 427 U.S. 539, 587 (1976) (suggesting that the role of the press is to comment and report on the justice system to maintain its integrity); see also Robert D. Sack, Principle and Nebraska Press Association v. Stuart, 29 Stan. L. Rev. 411, 419 n.42 (1977) (pointing out that the Neb. Press court spoke of the media’s moral or ethical duty to act responsibly, making no mention of a legal duty).

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Taking Litigation for a Spin be unreasonable to apply restrictions meant for lawyers to the press. Such restrictions would burden the press far beyond constitutional allowances: a reality that the Supreme Court properly recognized and addressed in Nebraska Press.125 It would be both unwise and constitutionally unfeasible to extend the standard set forth in Gentile to the media. Those seeking to regulate lawyers’ speech through their public relations mouthpieces must turn to alternative means.

Extending the Gentile Standard to Firms and Individuals Speaking on Behalf of Lawyers Since it is unlikely that the Gentile standard could be successfully extended to members of the press, the next possible regulatory scheme would be to impose the standard on the public relations firms and individual spokespeople themselves. Such an approach would mirror extend Gentile’s “substantial likelihood of material prejudice” standard to apply to firms and individuals working in a public relations capacity on behalf of attorneys involved in pending litigation.126 It would allow for courts to sanction or preemptively gag individuals under the “substantial likelihood” standard, preventing them from speaking to the press and potentially prejudicing the jury in ongoing adjudications.127 While this approach has been somewhat successful in the form of gag orders on attorneys, parties and other individuals directly involved in trials,128 it would likely be found unconstitutional when applied to members of the public relations community, for the same reasons as attempting to censor the press would fail legally.129 Freedom of speech and expression are core constitutional values, and speech limitations of this kind must meet a heavy burden to pass constitutional muster.130 If the courts were to examine the feasibility of extending the Gentile restrictions to members of the public relations community, they would likely do so under the “time, place, and manner” restrictions test.131 As articulated in Ward v. Rock Against Racism, this test 125. See Neb. Press, 427 U.S. at 572 (concluding that the facts in the present case did not constitute the severity necessary to threaten a fair trial, and thereby justify prior restraint); see also Okl. Publ’g Co. v. District Court, 430 U.S. 308, 310-11 (1977) (holding that a prior restraint order was unconstitutional because the information being restrained was obtained legally and without objection by the court). 126. See Gentile, 501 U.S. at 1076 (Rehnquist, C.J., dissenting in part) (discussing the application of the speech restraint under the “substantial likelihood” standard). 127. Id. See supra note 79 for a discussion of what constitutes an “ongoing adjudication.” 128. See David D. Smyth III, A New Framework For Analyzing Gag Orders Against Trial Witnesses, 56 Baylor L. Rev. 89, 97-101 (2004) (collecting cases imposing speech restrictions on trial participants). 129. See supra notes 112-125 and accompanying text; see also Chemerinsky, supra note 121, at 314-329 (discussing the failure and success of gag orders issued on individuals directly or tangentially involved in the litigation). 130. See Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, ___, 129 S. Ct. 1093, 1098 (2009) (holding that restrictions on the content of speech are presumptively invalid and require strict scrutiny) (citing Davenport v. Wash. Ed. Ass’n., 551 U.S. 177, 188 (2007)); See also, e.g., U.S. v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 826-27 (2000) (striking down a regulation mandating scrambling of “indecent” material as unconstitutionally over-restrictive). 131. The time, place, and manner test grew out of a tension between states pursuing specific interests where that pursuit ran into a citizen’s right to free speech. See e.g., Schneider v. N.J., 308 U.S. 147, 165 (1939) (holding that an ordinance barring individuals from distributing pamphlets on public streets in order to decrease litter violated the First Amendment). The right to free speech is not absolute, however, and the Supreme Court exercises various levels of scrutiny, depending on the nature of the restriction. See id. (“We are not to be taken as holding that commercial soliciting and canvassing may not be subjected to such regulation as the ordinance requires… . Doubtless there are other features of such activities which may be regulated in the public interest without prior licensing or other invasion of constitutional liberty.”; see also supra note 130 and infra notes 132, 133 and 143. Reynolds Courts & Media Law Journal

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Taking Litigation for a Spin requires that any restriction on speech (1) be content-neutral, (2) be narrowly-tailored, (3) serve a significant government interest, and (4) leave open ample alternative channels for communication.132 A speech restriction is content neutral so long as the restriction does not make any reference to the content of the speech.133 The restriction must also be narrowly-tailored to serve a significant government interest, although the scrutiny given to these factors will varies depending on the nature of the restriction.134 Finally, the Court has elaborated on the fourth, alternative channel prong of this rule,135 holding that the government may not restrict a citizen’s right to speak in an appropriate venue simply because that same expression may be exercised in another place; an alternative for communication is not ample if the speaker is not permitted to reach the intended audience.136 The Content-Neutral Test A Gentile-like restriction is unlikely to survive a content-neutral test.137 In order for a restriction to be content-neutral, it must be a blanket prohibition on a type of speech or expression with no regard to the content of the speech itself.138 If the restriction favors certain content while prohibiting other types of content, it would fail the content-neutrality test.139 Gentile-like restrictions are by definition content-specific because the determina 132. See 491 U.S. 781, 791 (1989) (citing Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 295 (1984)); see also, e.g., United States v. Grace, 461 U.S. 171, 177 (1983); City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 808 (1984); Perry Educ. Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 45 (1983). 133. A restriction is content neutral if it does not favor some view points at the expense of others. See Taxpayers for Vincent, 466 U.S. at 789-90 (holding that an ordinance prohibiting the posting of signs on public property was content-neutral because it created a blanket prohibition against all signs, not just those made of cardboard and put up by the appellee); see also City of Ladue v. Gilleo, 512 U.S. 43, 60 (1994) (O’Connor, J., concurring) (finding that a city ordinance regulating signs on private property was content-based because it allowed for ten exceptions to the rule); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 424-25 (1993) (holding that an ordinance banning commercial handbills on news racks while allowing newspapers is content-based). If the restriction was a blanket prohibition on all speech by public relations spokespeople during a specific time frame, for example from pre-trial through jury selection, it could feasibly survive content-neutral scrutiny. However, a content-neutral restriction would still have to pass an intermediate scrutiny analysis. See Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 668 (1994) (holding that a blanket prohibition which did not target content but incidentally implicated speech survived intermediate scrutiny and was constitutional). 134. See supra notes 130, 132, 133 and infra note 143. 135. See Clark, 468 U.S. at 293 (reaffirming the long-held requirement of alternative channels); see, e.g., Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 654-56 (1981) (upholding a regulation prohibiting the distribution of materials on fairgrounds because the audience could be reached at locations outside the fairgrounds); Kovacs v. Cooper, 336 U.S. 77, 88-89 (1949) (upholding an ordinance limiting loudspeakers on trucks in public because the message could still be disseminated by pamphlets, newspapers, or voice). 136. See Taxpayers for Vincent, supra note 133, 466 U.S. at 812 (“[W]hile the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places, … a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate.”) (citations omitted); see also Bay Area Peace Navy v. United States, 914 F.2d 1224, 1229 (9th Cir. 1990) (“[A]n alternative is not ample if the speaker is not permitted to reach the intended audience.”). 137. See Gentile v. State Bar of Nev., 501 U.S. 1033, 1064-66 (Rehnquist, C.J., dissenting in part) (stating that Gentile’s comments were out of line because of their specific content). 138. See, e.g., Taxpayers for Vincent, 466 U.S. at 789-90 (holding that an ordinance prohibiting the posting of signs was constitutional because it did not discriminate as to the types of signs or the content of any particular sign). 139. See, e.g., Discovery Network, 507 U.S. at 429 (declaring that a regulation prohibiting commercial hand-

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Taking Litigation for a Spin tion of whether to discipline is based exclusively on the content of statements made.140 If this type of restriction were extended to members of the public relations community, it would prohibit certain speech based solely on its content, i.e., its relation to specific litigation. This is a direct violation of the content-neutral rule, and any such restriction would fall short of constitutional requirements.141 The “Narrowly Tailored” Requirement While a Gentile restriction on attorneys meets both the “narrowly tailored” and “substantial government interest” prongs of the time, place, and manner restrictions test,142 it is unlikely to survive the same test when applied to non-attorneys.143 As outlined by both Justices Rehnquist and Kennedy in their respective Gentile opinions, the “substantial likelihood” standard certainly protects a substantial government interest: the fairness of court proceedings.144 Chief Justice Rehnquist explains in detail exactly how the restriction meets the narrowly tailored requirement when applied to attorneys.145 Under the test set out in Ward, this would allow the restriction to pass the narrowly-tailored prong without too much difficulty when applied to attorneys.146 However, Gentile stands out as one of very few cases that make an exception to the generally strict standards for evaluating prior restraints on speech.147 Chief Justice Rehnquist’s plurality justifies this exception by focusing on the duties an attorney voluntarily takes on when becoming a member of the bar.148 Extending the Gentile restriction to the public relations community suddenly eliminates the justification espoused by Chief Justice Rehnquist in his argument for upholding the “substantial likelihood” rule.149 This would most likely result in a return to the very strict review of such restrictions, an examination bills from news racks while exempting newspapers was content-based because it determined whether to regulate exclusively on the publication’s content). 140. See Gentile at 1065 (holding the Gentile was censured because the content of his comments “were timed to have maximum impact” in the ongoing trial, “related to the character, credibility, [and] reputation” of specific trial participants) (citing Gentile v. State Bar of Nev., 787 P.2d 386, 387 (Nev. 1990)). 141. See supra note 133. 142. See Gentile, 501 U.S. at 1076 (Rehnquist, C. J., dissenting in part) (explaining that the restriction is narrowly tailored because it is limited to very specific types of comments, during specific times, and neutral to party as it is a blanket prohibition for all attorneys involved in litigation). 143. See City of Ladue v. Gilleo, 512 U.S. 43, 60 (1994) (O’Connor, J., concurring) (stating that such restrictions on speech must be very narrowly tailored because “content-based restrictions are especially likely to be improper attempts to value some forms of speech over others, or are particularly susceptible to being used by the government to distort public debate”). But see Ward v. Rock Against Racism, 491 U.S. 781, 798 n.6, 799 (1989) (arguing that a regulation need not be the least restrictive means available and would be considered narrowly tailored as long as the subsequent substantial government interest would be achieved less effectively without the restriction). 144. See Gentile, 501 U.S. at 1056-58 (Kennedy, J.) (discussing the unique position attorneys hold in the judicial system and why this position comes with unique responsibilities); id. at 1073 (Rehnquist, C.J., dissenting in part) (“[A]s officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice.”) (quoting Neb. Press Ass’n v. Stuart, 427 U.S. 539, 601, n.27 (1976)). 145. See supra note 142. 146. See Ward, 491 U.S. at 800 (discussing that it did not matter that other methods of controlling the communication may have existed, even if those other methods may have been less restrictive). 147. See Chemerinsky, supra note 121, at 323-26 (arguing that Gentile and Neb. Press wrongly suggest that restrictions of attorney speech should be given more leniency in evaluation by the courts). 148. 501 U.S. at 1073 (Rehnquist, C.J., dissenting in part). 149. See id. Reynolds Courts & Media Law Journal

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Taking Litigation for a Spin that few would survive.150 In total, this means that a Gentile-like restriction extended to the public relations community is unlikely to be narrowly-tailored enough to survive intermediate scrutiny. The “Sufficient Alternative Channels” Requirement Restricting the speech of public relations representatives under a Gentile standard would most likely also fail to meet the “alternative channels” prong of the “time, place, and manner restriction” test. Restricting individuals in the public relations field from speaking to the press or the public is unlikely to be seen as allowing alternative channels for communication.151 The national or regional audience that most major public relations firms and practitioners have access to would be inaccessible under a Gentile-like restriction.152 Because the very definition of a public relations representative’s work requires communication with the public at-large, it is unlikely that a court would find any all-encompassing gag on speaking to the public as providing sufficient alternate channels for communication under established jurisprudence.153 It seems unlikely that a Gentile restriction on members of the public relations community would survive court scrutiny due to the necessarily broad and pre-emptive nature of any such restriction.154 While attempting to apply the Gentile standard may be tempting from a policy point of view, the legal justification is absent. Public relations firms and their employees are independent entities who may happen to be interconnected with the press and the legal community.155 But, due to their independent nature, public relations consultants are under no obligation to the courts to preserve any particular ethical code for judges or attorneys, or to work within the bounds courts place on traditional judicial system participants.156 Restricting the public relations community’s speech because it is potentially harmful to the judicial system would run into the same problems as restricting the freedom of the media.157 Furthermore, such restrictions would add yet another “prior restraint” without addressing any significant judicial concerns that cannot be addressed through use of the gag orders that courts may already impose on attorneys.158 150. See Chemerinsky, supra note 121 at 311 (stating that Neb. Press and its progeny have virtually eliminated gag orders to non-attorneys); see also Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech § 8.4, n.12 (1994) (compiling cases rejecting such prior restraints). 151. See City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 812 (1984) (stating that a restriction may be invalid if it deprives an individual of “a uniquely valuable or important mode of communication” or if it “threatens their ability to communicate effectively”). 152. See generally Jerry A. Hendrix, Darrell C. Hayes, Public Relations Cases (8th ed. 2009) (outlining the strategies for spreading a PR message as widely and as efficiently as possible and discussing the different approaches used in reaching larger elements of the population). 153. See Weinberg v. City of Chi., 310 F.3d 1029, 1041 (7th Cir. 2002) (holding that a restriction may not meet the “alternative channel” requirement if it “foreclose[s] a speaker’s ability to reach one audience even if it allows the speaker to reach other groups”). 154. See Gentile, 501 U.S. at 1075-76 (Rehnquist, C.J., dissenting in part) (stating that even if a fair trial is ultimately achieved, attorney speech may be restricted and censured due to alternative costs imposed upon the judiciary by their offending actions). 155. See Beardslee, supra note 4, at 1287-93 (discussing the relationship and practices of both in-house counsel and third-party consultants for corporate litigation practice and public relations outreach). 156. Cf. Gentile, 501 U.S. at 1072-75 (Rehnquist, C.J., dissenting in part) (discussing the nature of the relationship between the courts, lawyers, and the press). 157. See supra notes 112-125 and accompanying text. 158. See generally Michael D. Seplow, supra note 16 (exploring the development of the use of gag orders and concluding that their use must be restricted to ensure they don’t become an automatic response to any

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Holding Lawyers Accountable for the Actions of Their Employees and Associates

he final regulatory option would be to extend the Gentile standard to cover speech made on behalf of attorneys by retained public relations consultants. Under such a reading of the rule, anyone employed, retained or hired by a lawyer involved in litigation, who would speak publicly and say something with a “substantial likelihood” to “materially prejudice [the] adjudication,” would result in the lawyer being censured under a revamped Model Rule 3.6 and its state equivalents. This approach is the most feasible, both Regulating an attorney’s because of the existing standard and the spokesperson by holding the history of the profession.159 For much of the 20th century, the A.B.A. Code of Professional attorney responsible is the most Conduct restricted extra-judicial speech of reasonable approach. both the attorney and their “employees and associates.”160 The rule, a variation of the common law doctrine of respondeat superior,161 held the attorney responsible for any ethical breaches involving extra-judicial speech made by the attorney’s employees, because the speech was considered to be made on the attorney’s behalf.162 It wasn’t until 1994 that the Model Code explicitly made the severance between a lawyer and his or her associates, and was revised to clarify that these restrictions applied exclusively to lawyers directly involved with litigation.163 Reading the “employees and associates” restriction back into the rule would be the easiest and most effective way to re-establish regulation over what is being said to the media in relation to pending or ongoing litigation. This would be completely in line with existing jurisprudence and intent.164 The “agency” approach to addressing the relationship between attorneys and their public relations

extra-judicial speech). 159. See Watson, supra note 1, at 91-99 (discussing the development of Model Rule 3.6 and its progeny); see also Moses, supra note 1, at 1819-27 (exploring the historical context for the evolution of Model Rule 3.6). 160. See Model Code of Prof’l Responsibility DR 7-107(J) (1981) (“A lawyer shall exercise reasonable care to prevent his employees and associates from making an extrajudicial statement that he would be prohibited from making.”); see also Sharon A. Peters, Comment, Gentile v. State Bar of Nevada: An Unprincipled Departure from First Amendment Jurisprudence, 13 Bridgeport L. Rev. 217, 255 (1992) (concluding that Gentile is a disturbing departure from accepted First Amendment jurisprudence and that Gentile-like restrictions will deny the public information that they are constitutionally guaranteed access to). 161. See Restatement (Third) of Agency § 2.04 (“An employer is subject to liability for torts committed by employees while acting within the scope of their employment.”); Restatement (Third) of Agency § 7.05 (“A principal who conducts an activity through an agent is subject to liability for harm to a third party caused by the agent’s conduct.”). 162. See, e.g., Matter of Ark. Bar Ass’n, 702 S.W.2d 326, 380 (Ark. 1985) (discussing the importance of holding attorneys responsible for those they employ in adopting a state rule based on Model Rule 7-107(J)). See generally Brown, supra note 13 (suggesting the extension of extra-judicial speech restrictions to those attorneys hire due to the nature of their comments). 163. See Brown, supra note 13 at 105, n. 109 (citing Model Rules of Prof’l Conduct R. 3.6(a) (1994)). See also Gabriel G. Gregg, ABA Rule 3.6 and California Rule 5-120: A Flawed Approach to the Problem of Trial Publicity, 43 UCLA L. Rev. 1321, 1345-46 (1996) (explaining the ABA’s process of revising the Model Rule 3.6 in light of Gentile), Ronald D. Rotunda, Dealing with the Media: Ethical, Constitutional, and Practical Parameters, 84 Ill. B. J. 614, 618 (1996) (stating that Model Rule 3.6 was re-written “to clarify its meaning, create a true safe harbor, and authorize a right to reply”). 164. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 357-60 (1966) (explaining that the proper remedy was for Reynolds Courts & Media Law Journal

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Taking Litigation for a Spin consultants has already been successfully explored by the federal courts, albeit in a slightly different context.165 Originally used to address questions of attorney-client privilege in litigation where counsel retained public relations consultants, courts have held that where a public relations consultant gives the equivalent of “legal advice” to an attorney, it can be considered privileged under an “agency” relationship.166 Courts have thus already acknowledged the reality of public relations consultants becoming involved in litigation and discussing information that would normally be privileged, and have advanced the relevant jurisprudence accordingly.167 Extending this acknowledgment to questions of extra-judicial speech would be a natural application of this existing jurisprudence.168 Under this framework, a court would be able to curtail potentially harmful extra-judicial speech from public relations agents.169 A public relations consultant retained by counsel in ongoing litigation would be considered an agent of the attorney under the legal rules limiting extra-judicial speech.170 If such a consultant spoke to the press or worked to place material in the media, the local enforcer of attorney ethics rules could examine the speech to see if it carried a “substantial likelihood of materially prejudicing” the litigation it referenced.171 If the relevant disciplinary body felt that the communication in question ran afoul of the Gentile “substantial likelihood” standard, it could initiate disciplinary proceedings against the attorney who employed the consultant, for a violation of the relevant extra-judicial speech rules.172 This rule could also be applied in some circumstances to public relations consultants retained by a party or friendly witness rather than an attorney.173 If a party or witness the trial court to exercise greater control over the courtroom to pre-empt the “carnival atmosphere” and prejudicial media coverage). 165. See F.T.C. v. GlaxoSmithKline, 294 F.3d 141, 147-48 (D.C. Cir. 2002) (finding that because counsel worked with public relations consultants the same way as they would any other full-time employee, the public relations consultant could be considered an employee for purposes of determining clientattorney privilege); and In re Copper Mkt. Antitrust Litig., 200 F.R.D. 213, 219 (S.D.N.Y. 2001) (finding retained public relations counsel “the functional equivalent of an employee”). 166. See United States v. Kovel, 296 F.2d 918, 920-23 (2d Cir. 1961) (establishing that disclosure to a third party who is an agent to an attorney may operate as an exception to the general rule that disclosure to a third party waives the attorney-client privilege); see also In re Bieter Co., 16 F.3d 929, 938 (8th Cir. 1994) (finding that the work of third parties that are “functionally equivalent” to employees is protected by privilege). See generally Amor A. Esteban & Makai Fisher, Is There a Spin-Doctor in the House? Public Relations Consultants & Potential Waiver of Confidentiality (Ethical & Practical Considerations of Involving Public Relations Consultants), 9 Sed. Conf. J. 157 (2008) (discussing the difference between work-product and attorney-client exemptions under privilege rules and its application to modern corporate litigation). 167. See Grand Jury Subpoenas, supra note 13, 265 F. Supp. 2d 321, 330 (S.D.N.Y. 2003) (“[T]he ability of lawyers to perform some of their most fundamental client functions … would be undermined seriously if lawyers were not able to engage in frank discussions of facts and strategies with the lawyers’ public relations consultants.”); and, e.g., In re SCBA Liquidation, Inc., No. 04-12515 at 19 (Bankr. W.D. Mich. Nov. 28, 2007) (finding a retained public relations consultant “a very specialized litigation consultant”). 168. See Grand Jury Subpoenas, 265 F. Supp. 2d at 325-29 (using Gentile to find that an attorney’s duty to their client extends into advocating for them in the court of public opinion while examining whether a public relations consultant's advice was protected by privilege). 169. See Gentile, 501 U.S. at 1076 (Rehnquist, C.J., dissenting in part) (explaining that so long as a restriction is narrowly tailored, restricting a lawyer’s speech to protect the perception of the judicial system is justified). 170. See supra notes 160 - 167 and accompanying text. 171. See Gentile v. State Bar of Nev., 501 U.S. 1030, 1033-34 (Kennedy, J, plurality opinion) (describing the process by which the Nevada Bar’s Disciplinary Board determined that Gentile was in violation of Nevada rules governing extra-judicial speech). 172. Id.; see also supra note 160. 173. See, e.g., In re Copper Mkt. Antitrust Litig., 200 F.R.D. 213, 219 (S.D.N.Y. 2001) (finding attorney-client privilege where public relations firm was hired by client before commencement of litigation because purpose of the hire was to prepare for litigation).

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Taking Litigation for a Spin in litigation hires a public relations consultant who discusses issues with lawyers and acts as part of a greater litigation strategy, the lawyer would be held liable for what they say under the same nexus-type theory.174 However, if the public relations consultant never interfaces with the legal team and no such nexus is created, then the courts probably have little control. Just as attorneys not involved in a particular case are free to comment on the ongoing litigation,175 public relations consultants would also be free to speak.176 This method would likely be held constitutional under the same standard as the original Gentile decision, since the restraint on speech would focus the state’s enforcement power against the attorney, rather than the public relations consultant.177 Because an attorney is “an officer of the court” whose membership to the bar “is a privilege burdened with conditions,”178 a court would simply need to turn to Chief Justice Rehnquist’s plurality in Gentile to justify the restriction.179 This method of holding an attorney responsible for the words of his employees and associates would effectively side-step the constitutional issues associated with regulating members of the public relations community individually, while still addressing the primary concern of prejudicial extra-judicial speech. By holding lawyers responsible for the words of their employees and subcontractors under the Gentile “substantial likelihood of material prejudice” standard, the courts would be able to avoid some potentially misleading or overly sensational media coverage. Forcing attorneys to exercise “reasonable care” in preventing their employees and associates from saying things on their behalf is hardly a debilitating standard.180 Regulating an attorney’s spokesperson by holding the attorney responsible is the most reasonable approach, being that the attorney employing the spokesperson is responsible to the court for the spokesperson’s personal conduct.181 This framework would force lawyers to self-regulate their media outreach efforts, while leaving the press and individuals outside the legal profession free from the restrictions or censure that would occur if the Gentile 174. See Grand Jury Subpoenas, supra note 13, 265 F. Supp. 2d at 329 (finding that privilege attached in Cooper Market, id., because the public relations firm “was the functional equivalent of an in-house department” and thereby the same as the client). 175. See Andrea Lyon, Criminal Coverage: News Media, Legal Commentary, and the Crucible of the Presumption of Innocence, 1 Reynolds Cts. & Media L. J. 427 (2011). 176. Although public relations professionals have their own codes of ethics, see, e.g., Public Relations Society of America, Member Code of Ethics (2000), available at http://www.prsa.org/AboutPRSA/ Ethics/documents/Code%20of%20Ethics.pdf, there is no legal enforcement mechanism for violation of these public relations ethical codes and no way for courts to enforce self-adopted ethical standards against public relations agents. Because the goal of this article is to articulate a legally enforceable approach to limiting potentially prejudicial extra-judicial speech, it must necessarily focus on regulation of attorneys and their employees and subcontractors. See also, e.g., Reber, Gower & Robinson, Internet & Litigation Public Relations, 18(1) J. Public Relations Research, 23, 25-26 (2006) (discussing the ethical issues that public relations professionals face when representing those involved in litigation). 177. See supra notes 70-80 and accompanying text. But see supra notes 81-88 and accompanying text. 178. Gentile, 501 U.S. at 1066 (Rehnquist, C.J., dissenting in part) (quoting In re Rouss, 116 N.E. 782, 783 (1917) (Cardozo, J.)). 179. See id. at 1066-69 (Rehnquist, C.J., dissenting in part) (outlining the history of speech limitations on attorneys’ extra-judicial speech and re-affirming the need for such restrictions). 180. See Model Code of Prof’l Responsibility DR 7-107(J) (1981). Courts hold lawyers to the “reasonable action” standard in related elements of practicing law. See supra notes 38, 70, 77, 160 and accompanying text. 181. See Gentile at 1073 (Rehnquist, C.J., dissenting in part) (citing Neb. Press Ass’n v. Stuart, 427 U.S. 539, 601, n.27 (1976)). Reynolds Courts & Media Law Journal

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Taking Litigation for a Spin standard were to be applied to them directly.182 In sum, this would be the most feasible regulatory system by which to address the phenomenon of extra-judicial speech by hired public relations consultants. While enforcing such a regulatory scheme would not necessarily clarify the ambiguity inherent in the Gentile decision,183 maintaining regulatory focus on the attorney would allow courts to be able to rein in potentially prejudicial extra-judicial speech by forcing attorneys to self-regulate while avoiding the constitutional issues inherent in attempting to censure or gag non-attorneys.

Conclusion

his article has attempted to explore a legal gray area that has been growing in importance and salience over the last two decades.184 With the continued growth of media penetration and the rise of the Internet, future litigation is more likely to involve public perception.185 Because of this, the ability of lawyers to say indirectly what they are restricted from saying directly through the proxy of public relations consultants will eventually have to be addressed. I have explored three potential avenues for regulation of such extra-judicial speech: (1) extending Gentile restrictions to members of the press, (2) extending Gentile restrictions to members of the public relations community, and (3) holding attorneys responsible for their employees and associates under the established Gentile framework. Extending Gentile restrictions to members of the press would fail to survive constitutional scrutiny as applied. Members of the press are explicitly protected by both the text of the First Amendment and well established jurisprudence.186 Subjecting members of the press to an inherently speculative prior restraint would correctly be dismissed as clearly unconstitutional.187 Applying Gentile restrictions to public relations professionals would fall short of constitutional standards on similar grounds. While lawyers suffer diminished First Amendment protections, members of the public are subject to no such limitation.188 Accordingly, a speculative prior restraint like the Gentile rule would be effectively impossible to defend when applied to non-legal members of the public.189 The most pragmatic way forward would be a return to the ethical standards of the mid-20th century by once again holding attorneys involved in litigation responsible for the actions of the employees, consultants, and associates they retain. This type of enforcement would survive legal scrutiny due to the regulatory focus being on the lawyer and would effectively force attorneys to police themselves and their associates, saving time and effort for the courts and avoiding an unnecessary new level of bureaucracy. As modern “officers of the court” continue to practice their trade extra-judicially, they and their associates would do well to remind themselves of the Supreme Court approved obligations and conditions that come with being a lawyer.190 182. See supra notes 155-158 and accompanying text. 183. See supra notes 62-75 and accompanying text. 184. See supra notes 1-8 and accompanying text. 185. See supra note 3; see also Esteban, supra note 166, at 157-58 (giving examples of consequences associated with sensationalistic news stories concerning corporate legal problems such as significant stock losses and long-term damage to corporate reputation). 186. See supra notes 112–125 and accompanying text. 187. Id. 188. See supra notes 126–158 and accompanying text. 189. Id. 190. See Gentile, 501 U.S. at 1065, 1073 (Rehnquist, C.J., dissenting in part).

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Defense Investigative Web Sites:

The Dynamic Balancing of Web Speech and Competing Rights in Criminal Trials Peter A. Crusco1

ur democracy is a marketplace of ideas, protected by the free speech provisions of the First Amendment.2 A criminal trial, like other governmental proceedings, is part of that marketplace,3 but unlike many other venues it is limited by the rules of evidence, as interpreted and enforced by the trial judge and tested by the combatants, the prosecutor and defense attorney. Recently, there has been a growing trend of criminal defense attorneys creating websites that focus on the cases they are litigating.4 Attorneys have used these sites for a variety

1. The author thanks Heath Hooper, a graduate student at the University of Missouri pursuing a Ph.D. at the Missouri School of Journalism and a J.D. at the School of Law, for his assistance with this article. 2. See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (utilizing the metaphor of the “marketplace of ideas,” and thereby postulating that the truth needs to be tested in the competition of the marketplace as the best ideas will result therefrom); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (opining that there is a “profound commitment to the principle that debate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials”). See also Globe Newspaper Co. v. Super. Ct,. 457 U.S. 596, 605-06 (1982) (describing the importance of public scrutiny to criminal trials); Gentile v. State Bar of Nevada, 501 U.S. 1030, 1034 (1991) (state bar’s reprimand of attorney for assertion critical of the government official’s behavior in criminal case violated the First Amendment). 3. See, e.g., Richmond Newspapers, Inc. v. Virginia. 448 U.S. 555, 578 (1980) (plurality opinion) (“The right of access to places traditionally open to the public, as criminal trials have long been, may be seen as assured by the amalgam of the First Amendment guarantees of speech and press; and their affinity to the right of assembly is not without relevance.”); see also Globe Newspaper, 457 U.S. at 605; PressEnterprise Co. v. Super. Ct., 464 U.S. 501, 516 (1984) (Stephens, J. concurring) (Press Enterprise I); Press-Enterprise Co. v. Super. Ct., 478 U.S. 1, 10 (1986) (Press Enterprise II). 4. See Jenny R. Yampolsky, Wanted Posters on the Internet: United States v. Carmichael and New Criminal Defense Tools to Level the Playing Field, 32 New Eng. J. on Crim. & Civ. Confinement 279, 279-80 (2006). Reynolds Courts & Media Law Journal

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Defense Investigative Web Sites of purposes: to enhance a tarnished client’s persona; to aid in the investigation of their client’s case; to survey the public as a gauge of possible juror attitudes; and to uncover possible shortcomings in their adversary’s trial witnesses. The uses of websites for these purposes by criminal defense counsel has not gone unnoticed by both prosecutors and judges, who have questioned the practice in various criminal cases.5 These websites raise several issues, but one of the most alarming is when such sites impinge on the privacy, reputation, and safety of prospective government witnesses. The government’s interest must be balanced against the Constitutional protections afforded to all defendants. In the defense’s use of a website to further the investigation of a defendant’s case, there are competing interests and Constitutional concerns vying for preeminence. This article will address some of these challenges and how the courts have responded to them.

Witness Intimidation

ew tools available to all in the digital age pose a challenge to the Government’s ability to protect the privacy of prosecution witnesses in criminal cases. The Internet has also made it possible for the defense to put witnesses under intense scrutiny. In law school we are taught there are three components of a good trial attorney: preparation, preparation and preparation. Trial preparation, like an iceberg, is mostly unseen, but the lack of it is easily discerned when a catastrophe occurs. A conscientious and effective attorney prepares witness prior to their testimony because he or she knows that such preparation is necessary to a witness’ confident and credible appearance. A jury not only gauges credibility by what it hears but by what it sees as it hears it.6 That is why the usual rule is that an appellate court will not reverse a jury on a question of fact, only on law.7 The digital age has not changed the basics of witness preparation. The same, time-tested goals of preparation apply today: prepare your witness, and thereby your case, from attack on the witness’s credibility by defense tactics such as pointing out inconsistent statements, questioning the witnesses’ faulty perception and inability to recall particular facts, raising character and reputation flaws and revealing prior bad acts.8 A witness must be confident in the government’s ability to protect him from possible retaliation from the defendant, his family, friends or associates that may result from his testimony. This is especially true when the witness is testifying against an alleged organized crime member, who may be perceived to have a broad array of retaliatory options available. 5. Adam Liptak, Web Sites Listing Informants Concern Justice Dept., N.Y. Times, May 27, 2007, http:// www.nytimes.com/2007/05/22/washington/22plea.html. See also The Risks, Rewards, and Ethics of Client Media Campaigns in Criminal Cases, 34 Ohio N.U. L. Rev. 687 (2008). 6. See, e.g., Elizabeth A. LeVan, Nonverbal Communication in the Courtroom: Attorney Beware, 8 L. & Psychol. Rev. 83, 83-84 (1984). (“A witness on the stand, under the scrutiny of the jury, reveals more through figiting with his clothes and shifting his body than he does through his testimony.”); see also Diane M. Badzinski & Ann Burnett Pettus, Nonverbal involvement and sex: Effects on jury decision making, 22 J. of Appied Comm. Res. 309, 319 (1994) (The results of this study indicate that nonverbal communication and sex influence some perceptions of trial participants and outcomes.) 7. See, e.g., United States v. Scheffer, 523 U.S. 303, 313 (1998) (“A fundamental premise of our criminal trial system is that ‘the jury is the lie detector.’) (quoting United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973)); People v. Schulz, 4 N.Y.3d 521 (2005) (credibility questions are for the jury). 8. For a discussion of witness examination techniques and strategies, See, e.g., Michael H. Graham, Evidence: Text, Rules, Illustrations and Problems 525-646 (1983). See also Louis Nizer, Reflections Without Mirrors 213-19 (1978); Fed. R. Evid. 611 (b).

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Defense Investigative Web Sites Sometimes just this perception is enough to intimidate a witness from testifying. In short, the government’s ability to protect its witnesses from intimidation or threats against their lives or their families because of their cooperation with law enforcement has been critical to the maintenance of the rule of law.9 The United Nations has declared, in its Convention against Transnational Organized Crime, that nations should take appropriate measures to protect witnesses in criminal proceedings from the “threats, intimidation, corruption or bodily injury, and to The United Nations has declared strengthen international cooperation …” in that nations should take the battle against organized crime.10 Their guidelines include measures to provide for appropriate measures to protect a continuum of protection from the early witnesses in criminal proceedings. identification of vulnerable and intimidated witnesses, through the management of witnesses by the police.11 They also include the enactment of measures to protect witness identity during court testimony, and policies regarding permanent relocation and identification.12 In the United States, a key part of federal and state initiatives against organized crime in the past 50 years has been the creation and maintenance of witness protection programs,13 which have countered the fear and violence associated with international organized crime networks.14 9. See, e.g., People v. Frost, 100 N.Y. 2d 129 (2003) (courtroom closure during the testimony of three witnesses was justified by the overrriding danger to them, and no less restrictive alternatives were suggested; use of the pseudonym and the suppression of the victim’s address and occupation did not violate defendant’s confrontation rights, which the trial court balanced against the legitimate safety concerns of the witness). 10. See U.N. Office on Drugs & Crime, United Nations Convention Against Transnational Organized Crime and the Protocols Thereto (2004), http://www.unodc.org/documents/treaties/ UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf . 11. Id. at art. 24: 1. Each State Party shall take appropriate measures within its means to provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings who give testimony concerning offences covered by this Convention and, as appropriate, for their relatives and other persons close to them. 2. The measures envisaged in paragraph 1 of this article may include, inter alia, without prejudice to the rights of the defendant, including the right to due process: (a) Establishing procedures for the physical protection of such persons, such as, to the extent necessary and feasible, relocating them and permitting, where appropriate, non-disclosure or limitations on the disclosure of information concerning the identity and whereabouts of such persons; (b) Providing evidentiary rules to permit witness testimony to be given in a manner that ensures the safety of the witness, such as permitting testimony to be given through the use of communications technology such as video links or other adequate means[.] 12. Id. 13. See, e.g., Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat 922 (1970), as amended by the Comprehensive Crime Control Act of 1984, Pub. L. 98-473, 98 Stat. 1976 (1984). The U.S. Marshals have protected, relocated and given new identities to more than 8,300 witnesses and 9,800 of their family members since the program began in 1971. U.S. Marshall’s Service, Witness Security Program, http://www.usmarshals.gov/witsec/index.html (visited Aug. 27, 2011). Witnesses and their families typically get new identities with authentic documentation. Housing, subsistence for basic living expenses and medical care are provided to the witnesses. Job training and employment assistance may also be provided. Id. 14. See Nicholas Fyfe and James Sheptycki, International Trends in the Facilitation of Witness Co-operation in Organized Crime Cases, 3 Eur. J. of Criminology 319, 321 (2006) (quoting F. Montanino, Protecting Organized Crime Witnesses in the United States. 14 Int. J. Comp. & Applied Crim. Just. 123 Reynolds Courts & Media Law Journal

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Defense Investigative Web Sites A criminal defense attorney, of course, has a duty to zealously defend his client and serve as a true and pure advocate for his client.15 His adversary in the judicial contest — the prosecutor — is duty bound to seek justice.16 Accordingly, even where there is probable cause to arrest an individual but insufficient evidence exists to prove guilt beyond a reasonable doubt, the prosecutor is obligated to end the prosecution.17 Naturally, each advocate in a criminal trial will use all the resources available to him or her to obtain the end that he or she is duty bound to seek. The Internet has put strategic and economical resources at the disposal of the defense that were heretofore unavailable. Through the Internet, defense attorneys may deliver a message in support of their client; canvass the public for impeachment or exculpatory material; investigate the criminal allegations against their client; and discover potential weaknesses in the People’s case. It doesn’t take an expert to create and manage websites to achieve these goals. They are easy and inexpensive to create, manage and utilize. The current controversy over these sites concerns defense attorneys, who are perceived to be crossing the line in their advocacy when they use the website as an offensive tool to expose and discover information about a prospective government witnesses, and with the consequential effect of intimidating the witness.18

Fair Trial

nother issue regarding such websites is where they fall in the struggle to balance the free speech provisions of the First Amendment,19 and the Sixth Amendment20 rights to a fair trial, and their state analogues.21 Are such sites a necessary adjunct to an attorney’s duty to provide effective representation and properly investigate a crime? Or do these sites, as some have contended, constitute harassment, or even witness intimidation, which require courts to issue orders of protection and/or removal of such sites?22

(1990) (noting some difficulties with the system but pointing out scholarly opinion that the program was “one of ‘the most effective law enforcement tools for organized crime.’) 15. See Model Rules of Professional Conduct, Preamble (2010) (“As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.”) 16. See, e.g., Rory K. Little, “It’s Not My Problem?” Wrong: Prosecutors Have an Important Ethical Role to Play, 7 Ohio State L.J. 685 (2010); William A. Hamilton, and Charles R. Work, The Prosecutor’s Role in the Urban Court System: The Case for Management Consciousness, 64(2) J. Crim. L. & Criminology 183 (June 1973). 17. See, e.g., People v Strauss-Kahn, Index No. 02526/2011, 246 N.Y.L.J. No. 38, Aug. 24, 2011, at 1. 18. See, e.g., Liptak, supra note 4; Amy E. McCann, Are Courts Taking Internet Threats Seriously Enough? An Analysis of True Threats Transmitted Over the Internet, as Interpreted in United States v. Carmichael, 26 Pace L. Rev. 523 (2006). 19. The First Amendment provides: Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. U.S. Const. amend. I. 20. The Sixth Amendment provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. U.S. Const. amend. VI. 21. The free speech provision of the New York Constitution provides in relevant part: that every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. N.Y. Const. art. I, § 8 22. See Liptak, supra note 4.

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Defense Investigative Web Sites The fair trial provided for by the Sixth Amendment must be accorded to both the defense and prosecution, which necessarily means that the witnesses for both sides, and the jury, are free from intimidation.23 Courts have recognized the government’s compelling interest in the protection of those involved in the criminal justice system and its proceedings. For instance, in Terry v. Ohio, the United States Supreme Court acknowledged the government’s compelling interest in protecting police officers involved in street confrontations with armed individuals.24 In Waller v. Georgia, the Court acknowledged the government’s interest in protecting the identity of undercover police officers who testify in open court,25 and in Roviaro v. United States the Court made clear the rule of law in encouraging all witnesses, including informants, to come forward to assist law enforcement and testify in criminal trials, by placing specific rules and procedures limiting the disclosure of their identity.26 The jurors, the deciders of the facts in each case, must also be free from outside influence and intimidation. Courts have, in rare cases, even ordered the empaneling of anonymous juries in cases where a defendant is an alleged member of organized crime or an organization with the capability of harming jurors or there is a history of the organization’s attempts to obstruct justice.27 Such juries have also been used in cases where publicity about the trial has been so intense that disclosure of the jurors’ identities may result in their intimidation or harassment.28 The Sixth Amendment also ensures that a defendant be given an opportunity for effective cross-examination.29 Nevertheless, trial courts retain wide discretion to impose reasonable limits on cross-examination in order to curb harassment, prejudice, confusion of issues, threats to witness safety and testimony that is repetitive and only marginally relevant.30

23. Such protections have long been recognized as fundamentally necessary to due process. See, e.g., Frank v. Mangum, 237 U.S. 309, 335 (1915) (“We, of course, agree that if a trial is in fact dominated by a mob, so that the jury is intimidated and the trial judge yields, and so that there is an actual interference with the course of justice, there is, in that court, a departure from due process of law in the proper sense of that term.”); see also, e.g., 18 U.S.C. § 1512 (2011) (criminalizing tampering with a witness, victim, or an informant); 18 U.S.C. § 1514. (2011) providing for a civil action to restrain harassment of a victim or witness). 24. 392 U.S. 1, 24 (1968) (acknowledging the protection provided to police officers by stop and frisk procedures). 25. 467 U.S. 39 (1984). 26. 353 U.S. 53, 59 (1957) (procedures concerning the disclosure of an informant’s identity). See also People v. Darden, 34 N.Y.2d 177 (1974) and People v Goggins, 34 N.Y.2d 163, 168 (1964), cert. denied, 419 U.S. 1012 (1974) (New York analog to Roviaro, discussing pre-trial and trial rules concerning disclosure of a government informant). 27. See U.S. v. Mansoori 304 F.3d 635, 650-51 (7th Cir. 2002): Factors bearing on the propriety of an anonymous jury include the defendant's involvement in organized crime; his participation in a group with the capacity to harm jurors; whether he previously has attempted to interfere with the judicial process; the severity of the punishment that the defendant would face if convicted; and whether publicity regarding the case presents the prospect that the jurors' names could become public and expose them to intimidation or harassment. 28. See, e.g., United States v. Blagojevich, 2011 WL 812116 (N.D. Ill. 2011) (ruling that juror names should not be released until the end of trial); United States v White, 2011 WL 1485255, 2011 U.S. Dist. Lexis 42090 (N.D. Ill. Apr. 19, 2011) (granting the prosecutor’s motion for an anonymous jury in the trial of a white supremacist). 29. See Pennsylvania v. Ritchie, 480 U.S. 39, 51-53 (1987); and Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986). 30. Id. at 679; United States v. Smith, 454 F.3d 707, 714 (7th Cir. 2006). Reynolds Courts & Media Law Journal

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First Amendment Protection

hile there has been continued debate regarding the appropriateness of any form of regulation of the Internet,31 the United States Supreme Court, in Reno v. American Civil Liberties Union, held that the Internet is “a unique and wholly new medium of worldwide human communication,” to which full First Amendment protection applies.32 The Court further stated: As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.33

The First Amendment, of course, severely limits laws and government actions that abridge freedom of speech.34 Its protection encompasses symbolic or expressive conduct,35 as well as actual speech.36 State statutes that have proscribed abusive language with the intent to harass or annoy another have been stricken as a violation of the First Amendment on the basis that such statutes prohibit a substantial amount of constitutionally protected expression.37 But the protections of the First Amendment are not absolute. The government may regulate certain categories of expression, such as speech considered to have such slight social value in the marketplace of ideas that any benefit that may be derived from it is clearly outweighed by the social interest in order and morality.38 For example, transmitting obscenity and child pornography, whether via the Internet or other means, is illegal.39 The Supreme Court’s First Amendment jurisprudence also permits the government to ban a “true threat.”40 As the Court explained in Virginia v. Black, 31. See, e.g., Cecilia Kang, FCC’s net neutrality rules to trigger legal, Hill challenge, Washington Post, Sept. 13, 2011, available at http://www.washingtonpost.com/blogs/post-tech/post/fccs-net-neutralityrules-to-trigger-legal-hill-challenge/2011/09/13/gIQALFzlPK_blog.html; House Votes to Repeal FCC’s Network Neutrality, Associated Press, April 11, 2011, available at http://www.firstamendmentcenter. org/house-votes-to-repeal-fccs-network-neutrality-rules; Nate Anderson, Verizon sues FCC, says "net neutrality lite" rules illegal, ars technica (Jan. 20, 2011), available at http://arstechnica.com/techpolicy/news/2011/01/verizon-sues-fcc-says-net-neutrality-lite-rules illegal.ars. 32. Reno v. American Civil Liberties Union, 521 U.S. 844, 850 (1997) (quoting American Civil Liberties Union v. Reno, 929 F. Supp. 824, 844 (E.D. Pa. 1996)). 33. Id. at 885. 34. Indeed, the Supreme Court’s “decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). 35. See, e.g., Virginia v. Black, 538 U.S. 343, 358 (2003), Texas v. Johnson, 491 U.S. 397, 420 (1989); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969). 36. See, e.g., Snyder v. Phelps, 131 S. Ct. 1207 (2011); Cohen v. California, 403 U.S. 15, 26 (1971); Brandenburg, 395 U.S. at 447. 37. See, e.g., Johnson, 491 U.S. 397, 414 (1989). (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”); People v. Dietze, 75 N.Y.2d 47 (1989) (invalidating N.Y.S. Penal Law §240.25(2) for overbreadth under the First Amendment and N.Y. Const, art. I, §8). 38. Virginia v. Black, supra at 358-59. See also Lewis v City of New Orleans, 415 U.S. 130, 133 (1974); and Gooding v. Wilson, 405 U.S. 518, 525 (1972). 39. See 18 U.S.C. §§ 1464‑1465 (criminalizing obscenity); and 18 U.S.C. § 2251 (criminalizing child pornography). 40. Virginia v. Black, supra at 358 (2003); Cf. People v. Dietze, 75 N.Y.2d 47 (1989) (holding criminal first degree harassment statute unconstitutionally overbroad). See also People v Pierre-Louis, 246 N.Y.L.J. No. 18, July 27, 2011, at 1 (threatening, vulgar and offensive voice mails directed to prosecutor were protected speech).

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Defense Investigative Web Sites “True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protect[s] individuals from the fear of violence” and “from the disruption that fear engenders,” in addition to protecting people “from the possibility that the threatened violence will occur.” Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.41

Wanted Posters, Internet Style

he clash of legal principles came to a head in United States v Carmichael,42 in which the names and photos of informants, witnesses and police officers in a narcotics trafficking conspiracy and money laundering case were displayed on a web site created by the defendant.43 (See Figure 1.) The site included the word “Wanted” in big red letters at the top, followed by the phrase, “Information on these Informants and Agents.” Under that caption were eight boxes with pictures and names of either witnesses or law enforcement agents involved in the case, with the words “Informant” or “Agent” appearing next to each respective picture. At the bottom of the site there was a statement that the site was not meant “to intimidate or harass any informants or agents.”44 In United States v. Carmichael, The government contended that the site the names and photos of informants was threatening, and asserted that it would impede investigations by intimidating witwere displayed on a web site nesses, informants and law enforcement created by the defendant. officials.45 Accordingly, the government requested that the court issue a protective order requiring that the site be taken down.46 A District Court magistrate determined that the website was protected by the First Amendment and denied the government’s motion.47 The government contended that the site was actually attorneys’ speech, which may be restricted by the court to a greater extent than that of their clients.48 But the magistrate rejected this argument, holding that the government had not presented any evidence that witnesses or crime victims were being harassed, and had not shown “intent to … influence, delay, or prevent the testimony of any person in an official proceeding.”49 41. Virginia v. Black, at 359-360. 42. 326 F. Supp. 2d 1267, 1270, 1283, (M.D. Ala. 2004), supplemented, 326 F. Supp. 2d 1303 (M.D. Ala. 2004). 43. Id. at 1270, 1283. The site has been removed, but is archived at http://wayback.archive.org/web/ http:// www.carmichaelcase.com/. See Fig. 1. 44. Id. at 1279. 45. Id. at 1273-74. 46. Id. 47. U.S. v. Carmichael, Crim. Action No. 2:03cr259–T (M.D. Ala. magistrate’s order March 8, 2004). See also U.S. v. Carmichael, 326 F. Supp. 2d at 1273-74 (discussing the magistrate’s order). The Court noted that Carmichael’s First Amendment rights may “give way during a criminal proceeding in order to preserve a fair trial.” Id. Cf. New York v. PJ Video, 475 U.S. 868 (1986) (application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same standard of probable cause used to review warrant application); Heller v. New York, 413 U.S. 483 (1973) (a judicial determination concerning the seizure of presumptively protected items does not have to come before a seizure so long as it is made promptly afterward). 48. See Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). 49. Carmichael, 326 F. Supp. 2d at 1274. Reynolds Courts & Media Law Journal

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Defense Investigative Web Sites

Figure 1. The defendant In U.S. v. Carmichael created a web site that included names and photos of informants, witnesses and police officers in the case. The names and photos in this figure have been obscured by the Reynolds Courts & Media Law Journal. The site was later altered by the defendant to display the names of four “informants” and four “agents,” as well as photographs of the four “informants,” and the government renewed its earlier motion and submitted it to Judge Myron H. Thompson.50 Thompson denied the government’s motion just as the magistrate had and opined that a protective order would impermissibly infringe on Carmichael’s First, Fifth and Sixth Amendment rights.51 In its determination the court reasoned that the site was protected by the First Amendment and did not constitute a “serious and imminent threat” to a fair trial.52 Even though the website may cause discomfort to some people, the court stated, the 50. Id. at 1274. 51. Id. at 1279-1300. 52. Id. at 1290. The court declined to issue an order barring similar newspaper advertisements placed by the defendant, on the same rationale. 326 F. Supp. 2d 1303.

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Defense Investigative Web Sites site was not a serious threat sufficient to warrant a prior restraint on Carmichael’s speech or an imposition on his constitutional right to investigate his case.53 The website’s potential for harassment was also considered by the court, which determined that even if the government was able to establish that the website resulted in the harassment of the witnesses, the court would still have had to refuse the government’s motion “on the ground that Carmichael’s Fifth and Sixth Amendment right to investigate his case by using the website outweighs the government’s interest in protecting witnesses and agents from harassment.”54 This determination was made despite the testimony of informants who said that the posting of their pictures and requests for their addresses on the site made them “fearful,” with the court finding the proof insufficient to establish that the site posed a “true threat” to them.55 The court also opined that the withdrawal of some witnesses after the creation of the website did not establish a causal relationship between the website and their refusal to cooperate.56 Additionally, testimony concerning the agents’ inability to continue undercover work was discounted as not amounting to a threat to their safety.57 The Carmichael court defined a “true threat” as a communication directed at the would-be victim which says, in effect, “I am going to do you harm” of some kind.58 In Carmichael, the court said no such threat was present, since there was no direct communication with a potential victim and no statement threatening to do them harm.59 Moreover, the court opined that forcing Carmichael to take down the site would violate his Fifth Amendment right to due process and his Sixth Amendment right to prepare a defense to the charges against him, since the site sought information directly relevant to his case.60 The court held that the web site was protected by the First Amendment,61 but that not all of the content was “at the heart of the First Amendment.”62 Carmichael’s rights to subject his criminal trial to public scrutiny and to criticize the government’s prosecution of him was preeminent. The court did determine that the photographs, requests for information and attorneys’ phone numbers were not political 53. Id. at 1301. 54. Id. at 1278, note 37. The Court, citing to the U.S. Supreme Court decision in Strickland v. Washington, 486 U.S. 668 (1984), emphasized “the importance that investigation plays in the protection of a criminal defendant's fair-trial rights.” Id. at 1298. 55. Id. at 1289-90. In reaching its conclusion the Court also compared Carmichael’s web site to a postBrandenburg threats case, N.A.A.C.P v. Claiborne Hardware Co, 458 U.S. 886 (1982). The Carmichael court found that “[I]n one important respect, this case is analogous to Claiborne. Like Evers [defendant in Claiborne Hardware], Carmichael has used language with a threatening connotation, and, as with Evers, there is no evidence that he has ‘authorized, ratified, or directly threatened acts of violence.’ If Evers's literal threat—“If we catch any of you going in any of them racist stores, we're going to break your damn necks,”—was not outside the First Amendment's protection, it is hard to see how Carmichael's use of language with at most only non-specific threatening connotations could be unprotected.” Id. at 1288. (quoting Claiborne Hardware, 458 U.S. at 902). 56. Id. at 1275-76, 1289. 57. Id. at 1296. 58. Id. at 1280 (citing United States v. Alaboud, 347 F.3d 1293, 1296–97 (11th Cir.2003)). 59. Id. at 1281-82. 60. Id. at 1281. 61. The Court found “Carmichael’s expressed intent to publicize his trial and his statement of innocence implicate weighty First Amendment concerns,” and that, “to the extent that Carmichael's website is a criticism of the government's prosecution of him, it is surely core First Amendment speech.” Id. (internal citations and quotations omitted.) 62. Id. at 1290. Reynolds Courts & Media Law Journal

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Defense Investigative Web Sites advocacy; therefore, his First Amendment interest “was not particularly strong.”63 “Nonetheless,” the court concluded, “speech is presumptively protected by the First Amendment,” including Carmichael’s website.64 As such, the court held that the burden of proof fell to the government to show that Carmichael’s website is within one of the narrow categories of unprotected speech.”65 As the government failed to show the website constituted a “true threat,” it retained its First Amendment protections.66

Who’s A Rat.com

he dilemma posed by Carmichael’s site focusing on his own case is magnified by the whosarat.com website, which bills itself as the “largest online database of informants and agents!”67 The site, which was founded in 2004 as a free site but now charges subscription fees,68 includes a disclaimer that “[T]his website does not promote or condone violence or illegal activity against informants or law enforcement officers. … Please post informants that are involved with non-violent crimes only.”69 The site’s founder claimed that it was established to help criminal defendants with limited resources and their attorneys prepare for trial.70 Regardless of Whosarat.com’s intent, its effect has been seen in the courtroom. In 2008, a court sentenced a Philadelphia man to three years in prison for “witness intimidation linked to the Web site ‘whosarat.’”71 The web site has also come under fire for outing participants in the federal witness protection program.72 Cooperating witnesses have had their photographs and information posted on windshields and utility poles around their neighborhoods.73 Those opposed to the site say it is clearly dangerous,74 and both opponents and proponents indicate the site could cost people their lives.75 The creation of the site led the Justice Department to request that federal district courts remove all plea agreements from online electronic case files.76 Instead, in 2008 63. Id. 64. Id. at 1290. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605-06 (1982) (describing the importance of public scrutiny to criminal trials); Gentile v. State Bar of Nevada, 501 U.S. 1030, 1034 (1991); Hess v. Indiana, 414 U.S. 105 (1973) (overturning defendant’s conviction on the ground that his statements were not advocacy, and were thus not likely to produce imminent unlawful conduct). 65. Carmichael, 326 F. Supp. 2d at 1290. 66. Id. 67. Whosarat.com (visited Sept. 20, 2011). 68. Liptak, supra note 8. The site was founded by Sean Bucci, who was arrested in 2003 on drugtrafficking charges. After his conviction, Bucci’s claim that the criminal charges were heightened because of his founding of the site was rejected. See United States v. Bucci, 582 F.3d 108 (1st Cir. 2009). Bucci is now in federal prison, and scheduled for release in 2017. Federal Bureau of Prisons, Inmate Locator, http://www.bop.gov/iloc2/LocateInmate.jsp (visited Sept. 20, 2011). He is apparently no longer involved with the web site. Liptak, supra. 69. About Us, Whosarat.com, http://www.whosarat.com/aboutus.php (visited Sept. 20, 2011). 70. Tom Farmer, Cops smell rodent at 'rat'-outing Web site, Boston Herald, Aug. 23, 2004, at 24. 71. Drug dealer gets 3 years in Philly 'whosarat' case, Associated Press, Oct. 16, 2008, available at http://abclocal.go.com/wpvi/story?section=news/local&id=6452646. 72. Emillie Lounsberry, Site that snitches on snitches irks judges Whosarat.com, which profiles informants, worries some jurists, The Philadelphia Inquirer, July 22, 2007, http://articles.philly.com/2007-0722/news/25241093_1_informants-federal-judges-web-site/. 73. Id. 74. Liptak, supra note 8. 75. See Liptak, supra; Teresa Cook and Jason Ryan, 'Who's a Rat': Intimidation or Information?, ABC News, May 25, 2007, available at http://abcnews.go.com/TheLaw/story?id=3209627&page=1. 76. Liptak, supra.

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Defense Investigative Web Sites the U.S. Judicial Conference left this decision to each federal trial court, but recommended that documents showing criminal defendants’ cooperation with authorities be sealed.77 By 2010, most courts had not adopted a blanket policy, instead deciding whether to seal — and thus keeping off the courts’ online databases — plea agreements and other material on a case-by-case basis.78

The True Threat Standard

n applying the “true threat” standard, the court in Carmichael invoked a rule crafted by the U.S. Supreme Court. The Supreme Court has explained that a true threat exists “where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”79 The factors to be considered are (1) the language of the speech itself; (2) the context in which the communication was made, to determine if it would cause a reasonable person to construe it as a serious intention to inflict bodily harm; and (3) the testimony by the recipient of the communication as to whether the statement can be considered threatening or intimidating.80 The Court has had little to say about “true threats” since establishing this standard.81 Thus it has been left to lower courts to define the term. This has resulted in a split amongst the federal circuit courts. The majority of circuits have developed a version of a reasonable person test, but are split over whether the test should be from the perspective of the speaker or the listener. The Second Circuit has split from the pack and adopted a test that adds a requirement of imminence. Some judges on the Ninth and Fourth Circuits think that courts and juries should, in certain circumstances, consider the speaker’s intent. A recent Ninth Circuit panel has added consideration of who will carry out the threat to the reasonable speaker/listener test.82

Planned Parenthood v. American Coalition of Life Activists The “recent Ninth Circuit panel” decision cited in Carmichael was Planned Parenthood v. American Coalition of Life Activists, in which the appeals court found that a true threat had, indeed been made.83 Planned Parenthood involved an anti-abortion website containing home and work addresses and photographs of doctors who performed abortions captioned, “GUILTY OF CRIMES AGAINST HUMANITY” and “THE DEADLY DOZEN.”84 The court found a true threat in light of the website’s context, considering factors such as the “history of violence” against abor 77. Brian Westley, Secret Justice: Access to Plea Agreements, Reporters Comm. for Freedom of the Press, Summer 2010, http://www.rcfp.org/secretjustice/plea_agreements/main.html. The Judicial Conference memo is available at http://www.aclutx.org/files/memo%20on%20whosarat.pdf. 78. Id. 79. See, e.g., Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 773 (1994) (“threats…however communicated, are proscribable under the First Amendment”); R.A.V. v. St. Paul, 505 U.S. 377, 388 (1992) (“threats of violence are outside the First Amendment”). 80. Watts v. United States, 394 U.S. 705, 708 (1969). 81. See Andrew P. Stanner, Toward an Improved True Threat Doctrine for Student Speakers, 81 N.Y.U. L. Rev. 385, 390 (2006) (noting that “For decades after Watts, the Supreme Court said almost nothing further to define its concept of a true threat.”) 82. Jennifer E. Rithman, Freedom of Speech and True Threats, 25 Harv. J.L. & Pub. Pol'y 283, 302 (2001-02). The Carmichael court also recognized this split. See Carmichael at 1293. 83. Planned Parenthood v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002), cert. denied, 539 U.S. 958 (2003). 84. Id. at 1064. Reynolds Courts & Media Law Journal

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Defense Investigative Web Sites tion providers, including the murders of three doctors who appeared on a similar website.85 Violence is not a protected value. Nor is a true threat of violence with intent to intimidate. [The defendant who created the website] may have been staking out a position for debate when it merely advocated violence as in [Rev. Michael] Bray’s A Time to Kill, or applauded it, as in the Defense Action petitions. Likewise, when it created the Nuremberg Files [website] in the abstract, because the First Amendment does not preclude calling people demeaning or inflammatory names, or threatening social ostracism or vilification to advocate a political position. But, after being on “wanted”-type posters, Dr. Gunn, Dr. Patterson, and Dr. Britton can no longer participate in the debate. By replicating the poster pattern that preceded the elimination of Gunn, Patterson and Britton, and by putting Crist, Hern, and the Newhalls in an abortionists’ File that scores fatalities, ACLA was not staking out a position of debate but of threatened demise. This turns the First Amendment on its head.86

The Carmichael court distinguished Planned Parenthood, stating that the website at issue in Carmichael was “not put up in the context of a recent string of murders linked to similar publications,”87 and noting that while there is a history of violence against informants in narcotics conspiracy cases, a reasonable person would not see the website as a “serious expression of an intention to inflict bodily harm.”88 The Carmichael court also distinguished Planned Parenthood on the basis that the speech featured in Carmichael’s website was, at most, mere “advocacy” of violence and not a “true threat.”89 Under the Supreme Court’s “incitement doctrine,” mere advocacy of violence does not satisfy the “true threat test.”90 Only advocacy of violence “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” falls outside of constitutional protection.91 In Carmichael, the court declared that the implicit advocacy of violence found in Carmichael’s website did not rise to the level of inciting imminent harm to the informants and federal agents.92

United States v. William White The result in Carmichael is consistent with the decision in United States v William White.93 In that case, a white supremacist and admitted neo-Nazi created a website, www. overthrow.com, to solicit violence against a juror who had been the foreman in the successful prosecution of another neo-Nazi, Matthew Hale, for soliciting the murder of a federal judge.94 White’s website ostensibly solicited violence against the jury foreman, posting

85. Id. at 1080. 86. Id. at 1085 (emphasis in original). 87. Carmichael, 326 F. Supp. 2d at 1283. 88. Id. at 1285. 89. Id. at 1287. Cf., United States v. Fullmer, 584 F. 3d 132 (3rd Cir. 2009), cert. denied, 131 S. Ct. 1600 (2011) (affirming convictions under the Animal Enterprise Protection Act, rejecting defendants’ contentions that the law had criminalized legitimate political speech, and determining that material on the defendant’s web site qualified as true threats. The site was used to invite its supporters to engage in electronic civil disobedience and a coordinated campaign to interfere with websites, e‑mail servers, and the telephone service of the targeted companies, including the use of “black faxes,” that is, repeatedly faxing a black piece of paper to the same fax machine to exhaust the ink supply, and a related orchestrated cyber‑attacks and harassment). 90. Carmichael at 1287. 91. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). 92. Carmichael at 1288. 93. United States v. White, 2011 WL 1515374, 2011 U.S. Dist. LEXIS 42026 (N.D. Ill. Apr. 19, 2011) (vacating jury’s guilty verdict); See also Federal Judge: First Amendment Protects Neo-Nazi’s Web Posts, Associated Press, Apr. 20, 2011, available at http://www.firstamendmentcenter.org/federal-judgefirst-amendment-protects-neo-nazis-web-posts. 94. See United States v. Hale, 448 F.3d 971 (7th Cir. 2006) (affirming conviction).

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Defense Investigative Web Sites the juror’s name, home address, telephone number, photograph and sexual orientation.95 Although an anonymous jury convicted White of solicitation to murder the juror, United States District Judge Lynn Adelman, granted the defendant’s motion for acquittal, finding the evidence insufficient to sustain the conviction.96 Judge Adelman determined that White’s online posts were not true threats, and therefore, were protected speech.97

United States v. Bagdasarian The Seventh Circuit reached a similar conclusion in United States v Bagdasarian, in which the defendant posted angry messages on a financial information board about presidential candidate Barack Obama stating that “…he will have a 50 cal (sic) in the head soon” and “…shoot the nig (sic).”98 The appeals court determined that these statements were protected speech, as they did not satisfy the test for true threats, since the statements could not be reasonably interpreted by others as a threat and because there was insufficient evidence that defendant truly intended them as threats.99

Criminal Trials in the Internet Age

ased on these cases, it is clear that courts are very reluctant to restrict online activities of criminal defendants and disclosure of information about investigators, witnesses and informants.100 But even if a request for a protective order to take down the site is denied by a court that may not end the issue. A witness may move to intervene in the Courts are very reluctant to criminal case. But intervention motions are seldom granted in criminal cases, as interrestrict online activities of criminal vention in a criminal proceeding is “limited defendants and disclosure of to those instances in which a third party’s constitutional or other federal rights are impli- information about investigators, cated by the resolution of a particular motion, witnesses and informants. request, or other issue during the course of a criminal case.”101 Another way of dealing with this situation is for a witness or investigator who is targeted by a website to file a lawsuit against the author of the web material. Such a suit could 95. In 2008, White’s website received national attention when it featured an article about a possible assassination of presidential nominee Barack Obama. See Federal Judge: First Amendment Protects Neo-Nazi’s Web Posts, supra note 93. 96. White, 2011 U.S. Dist. LEXIS 42026, at *4. 97. Id. at *56. Earlier in the case, the court had granted White’s motion to dismiss on these grounds, but was reversed by the Seventh Circuit. See United States v. White, 638 F.Supp.2d 935 (N.D. Ill. 2009) (granting defendant’s motion to dismiss indictment), rev’d and remanded, 610 F.3d 956, 38 Media L. Rep. 2045 (7th Cir. 2010) (holding that “The question of White's intent and the inferences that can be drawn from the facts are for a jury to decide”), reh’g denied (7th Cir. Aug 6, 2010). 98. United States v. Bagdasarian, 2011 U.S. App. LEXIS 14684, at *34, 39 Media L. Rep. 2170 (9th Cir. July 19, 2011). 99. Id., 2011 U.S. App. Lexis 14684, at *30-31. 100. See, e.g., Pilchesky v. Miller, 2006 U.S. Dist. LEXIS 77072, 19-20 (M.D. Pa. Aug. 8, 2006), aff ’d in part, rev’d in part, claim dismissed by Pilchesky v. Miller, 2006 U.S. Dist. LEXIS 73681 (M.D. Pa. Oct. 10, 2006) (finding highly personal attacks seeking personal information on a politician did not meet the Carmichael standard.) 101. Carmichael at 1072. See also Matter of Bernstein v. Feiner, 43 A.D.3d 1161, 1162, 842 N.Y.S.2d 556, 558 (N.Y. App. Div., 2d Dept. 2007). Reynolds Courts & Media Law Journal

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Defense Investigative Web Sites include a variety of causes of action, such as defamation, intentional infliction of emotional distress, or a violation of the right of privacy, depending upon the facts and harm that can be proven. If the witnessâ&#x20AC;&#x2122; or investigatorsâ&#x20AC;&#x2122; ability to make a living has been damaged, that may also be the basis for a lawsuit. Lastly, where true threats are provable, the defendant-website authors may also be subject to prosecution for obstruction of justice, intimidation of witnesses, or witness tampering in the appropriate case. Although speech on the Internet may have the capacity to reach a greater audience, it has been granted no more or less protection by the United States Supreme Court than other media. In litigation over the appropriate bounds of defense investigative websites, various constitutional rights often have clashed. When the rights to a fair trial, free speech and right to present a defense conflict, courts have not permitted any right to fully eclipse the other. Instead, the courts have endeavored to carefully analyze and balance the competing rights to determine which is the more compelling. This presents a new challenge for prosecutors, which may require innovative solutions.

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The Intersection Between Social Networking and Litigation:

Discovery and Authentication of Social Media Evidence Steven M. Cerny1

he rapid expansion of technology and use of the Internet have created a world and culture today significantly different than the world and culture of yesterday. Words such as “Facebook,” “Twitter,” and “MySpace,” and phrases such as “online status,” “friend request,” and “privacy settings” have become common household terms, even though they did not exist until a few years ago. According to some recent studies, the use of the Internet has surpassed the use of television not only in the United States, but also in other countries around the world.2 People continue to turn to the Internet as a primary source of information and as a means to communicate and socialize with others.3 As with most advances in technology and changes in society, the law is struggling to keep pace. For example, although the federal Stored Communications Act was enacted in 1986 to create privacy protections for information stored online, its language has remained

1. The author would like to thank Josh N. Brekken, a law clerk and student at Hamline University School of Law, for his assistance in the research of this article. 2. See, e.g., Edison Research, Inc., The Infinite Dial 2010: Digital Platforms and the Future of Radio (Feb. 2010 survey), http://www.edisonresearch.com/infinite_dial_presentation_2010_reva.pdf (United States); Ipsos, Inc., Weekly Internet Usage Overtakes Television Watching (March 22, 2010), http://www.ipsos-na.com/news-polls/pressrelease.aspx?id=4720&wt.mc_id=1110135&ce=klapointe@ png.canwest.com&link=4720&top (Canada); Nielsen Corp., Aussie Internet Usage Overtakes TV Viewing For The First Time (March 18, 2008), http://www.nielsen-online.com/pr/pr_080318_AU.pdf (Australia). 3. One statistic indicates that the use of the Internet expanded by 480.40% since December 31, 2000. See World Internet Usage and Population Statistics, http://www.internetworldstats.com/stats.htm (March 31, 2011). Reynolds Courts & Media Law Journal

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The Intersection Between Social Networking and Litigation largely unchanged despite the rapid expansion of computers and the Internet.4 Similarly, it was not until December 2006 that the United States Supreme Court approved amendments to the Federal Rules of Civil Procedure to provide a specific framework regulating the discovery of electronically stored information.5 Although social networking sites emerged in the late 1990s, few court decisions have dealt with the use of social media in lawsuits. As more people rely on social media tools to communicate and share information, social media will undoubtedly become a prominent source of evidence, and the focus of discovery and evidentiary disputes. This article explores the intersection between social networking and litigation. First, this article begins with a discussion of social media and its prevalence and impact on how people communicate and interact with one another on a daily basis. Second, this article reviews the Stored Communications Act and its application to social networking sites. Third, this article provides an in-depth factual and legal analysis of the most recent and informative cases dealing with the discovery and authentication of social media evidence. This article serves as a guide to addressing issues related to the discovery and authentication of social media evidence, and provides a framework to follow when forming litigation strategies.

The Growth of Social Media

ocial media is a term that refers to tools and platforms that people can use to communicate, interact, and share information with others online.6 Social networking sites — including Facebook,7 Twitter,8 MySpace,9 LinkedIn,10 and YouTube11 — allow users to create online profiles, and then socialize with others through various means, including blogs, forums, videos, pictures and messages. Social networking sites such as these have rapidly expanded over the past several years and become increasingly popular. For example, Facebook was founded in 2004 yet has already grown to a claimed 800 million active users.12 4. See, e.g., William Jeremy Robinson, Note, Free at What Cost? Cloud Computing Privacy Under the Stored Communications Act, 98 Geo. L.J. 1195, 1196 (2010) (“Despite the rapid evolution of computer and networking technology since the SCA’s adoption, its language has remained surprisingly static. The resulting task or adapting the Act’s language to modern technology has fallen largely upon the courts.”). 5. See Fed. R. Civ. P. 34(b)(2)(E). 6. Social media is defined in many different ways. See, e.g., Heidi Cohen, 30 Social Media Definitions, (May 9, 2011), http://heidicohen.com/social-media-definition/. 7. Facebook allows users to create personal profile pages and add other users as friends. Among other things, users can comment on their friends’ profile pages, exchange messages with each other, join groups, and upload videos and photographs. See http://www.facebook.com. 8. Twitter allows users to create a profile page and upload short blogs, referred to as “tweets,” of up to 140 characters. Tweets can be viewed by the public or restricted to certain followers. See http://www.twitter.com. 9. MySpace allows users to create and design unique personal profile pages and add other users as friends. MySpace is similar to Facebook in that it allows users to comment on their friends’ profile pages, exchange messages with each other, join groups, and upload videos and photographs. See http://www.myspace.com. 10. LinkedIn is a business oriented social networking site primarily used for professional networking. Users can create profiles, list their work and educational backgrounds, and maintain a list of connections with other professionals. See http://www.linkedin.com. 11. YouTube is a video-sharing site that allows users to upload and share videos. Users and unregistered users can watch videos posted on the site. See http://www.youtube.com. 12. Facebook Info, http://www.facebook.com/facebook#!/facebook?sk=info (visited Aug. 31, 2011); Facebook Statistics, http://www.facebook.com/press/info.php?statistics (visited Sept. 27, 2011). To put the amount of Facebook users into perspective, if Facebook was a country, it would be the world’s third largest with more than twice the population of the United States. See 10 WOW Social Media Statistics, http://www.socialnomics.net/2011/06/07/10-wow-social-media-statistics/ (visited Sept. 27, 2011).

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The Intersection Between Social Networking and Litigation Similarly, although Twitter has only been around for the past five years, it boasts to have more than 200 million members who collectively post over 230 million “tweets” per day.13 Americans use the Internet, social networking sites, and blogs more often, and more frequently, than ever before. According to some statistics, nine out of 10 Americans use the Internet, and six out of seven American homes have broadband Internet access.14 Approximately 52 percent of Americans twelve years of age and older have a profile on one or more social networking sites.15 In the United States, Americans spend nearly a quarter of their time online on social networking sites.16 Moreover, almost 40 percent of social media users access social media content from a mobile phone.17 These statistics represent a rapid expansion in the amount of time spent online and on social networking sites, and a significant shift in how people communicate and share information.18 More information is being stored online and in electronic form than ever before. The increasing amount of information available on social networking sites presents unique and potentially complex challenges for litigation, including what information about a user can be obtained from a social networking site. In addressing this issue, practitioners must take into consideration the limits of, and exceptions to, the Stored Communications Act — an Act created well before the advent of social networking.

The Stored Communications Act

he Stored Communications Act (“SCA”) was enacted in 1986 as part of the Electronic Communications Privacy Act.19 The SCA applies to third-party providers that store communications online.20 Congress enacted the SCA to address privacy concerns raised by information stored online — concerns the Fourth Amendment does not adequately address.21 The SCA intended to create “a set of Fourth Amendmentlike privacy protections by statute, [and] regulat[e] the relationship between government investigators and service providers in possession of users’ private information.”22 13. See Bianca Bosker, Twitter Finally Shares Key Stats: 40 Percent of Active Users are Lurkers, Huffington Post, Sept. 8, 2011, http://www.huffingtonpost.com/2011/09/08/twitter-stats_n_954121.html. 14. See, e.g., Hasai, The American Identity According to Social Media, Hasai Blog, http://hasai.com/ blog/about/infographic-design/american-identity/ (visited Sept. 27, 2011). 15. See id. 16. See, e.g., Nielson Corp., Social Media Report: Spending Time, Money and Going Mobile, Sept. 11, 2011, http://blog.nielsen.com/nielsenwire/online_mobile/social-media-report-spendingtime-money-and-going-mobile/. 17. See id. 18. See, e.g., E-consultancy.com Ltd., 20+ Mind-Blowing Social Media Statistics: One Year Later, Digital Marketing Blog, Mar. 25, 2011, http://econsultancy.com/us/blog/7334-social-media-statistics-one-year-later. 19. Pub.L. 99-508, Title II, § 201[a], 100 Stat. 1860 (1986), codified as 18 U.S.C. §§ 2701–2712. 20. See 18 U.S.C. § 2703. See also S. Rep. No. 99-541, 97th Cong. 2d Sess. 37, reprinted in 1986 U.S.C.C.A.N 3555, 3591; 18 U.S.C. § 2702(a). 21. See id. at §§ 2701, 2703; Quon v. Arch Wireless Operating, Co., Inc., 529 F.3d 892, 900 (9th Cir. 2008) (“The SCA was enacted because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address”) (citing Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1209–13 (2004)). Courts have held that the SCA “protects users whose electronic communications are in electronic storage with an [internet service provider] or other electronic communications facility.” Theofel v. Farey-Jones, 341 F.3d 978, 982 (9th Cir. 2003). The SCA “reflects Congress’s judgment that users have a legitimate interest in the confidentiality of communications in electronic storage at a communications facility.” Id. at 982. 22. Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1213 (2004). Reynolds Courts & Media Law Journal

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The Intersection Between Social Networking and Litigation Where the Fourth Amendment may require no more than a subpoena to obtain certain information, the SCA confers greater privacy protections.23 The SCA limits the government’s ability to compel third-party providers to disclose content and information in their possession about their customers and subscribers.24 Specifically, the SCA regulates when an electronic communication service (“ECS”)25 provider and a remote computing service (“RCS”)26 provider may disclose content or information about a customer’s electronic communications to third parties.27 The SCA prevents an ECS provider from “knowThe increasing amount of ingly divulg[ing] to any person or entity information available on social the contents of a communication while in networking sites presents unique and electronic storage by that service.”28 An RCS provider is prohibited from “knowpotentially complex challenges for ingly divulg[ing] to any person or entity litigation, including what information the contents of any communication which about a user can be obtained from a is carried or maintained on that service … solely for the purpose of providing storage social networking site. or computer processing services” to any person or entity.29 However, “a person who does not provide an [ECS or RCS] can disclose or use with impunity the contents of an electronic communication unlawfully obtained from electronic storage.”30 The SCA makes it a criminal offense for whomever “intentionally accesses without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility; and thereby obtains … [an] electronic communication while it is in electronic storage in such system.”31 Although the SCA was enacted prior to the advent of social networking sites, the absence of modern legislation leaves courts to apply the framework established by the SCA when determining what, if any, user information a social networking site must disclose. Applying the SCA to modern technology can be difficult and confusing.32 23. Id. at 1212–13. 24. 18 U.S.C. § 2703. 25. The SCA defines an ECS provider as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. § 2510(15). 26. The SCA defines RCS as “the provision to the public of computer storage or processing services by means of an electronic communications system.” 18 U.S.C. § 2711(2). 27. See 18 U.S.C. § 2703. 28. 18 U.S.C. § 2702(a)(1). “Electronic storage” is “(A) any temporary, intermediate storage of wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an [ECS] for purposes of backup protection of such communication.” 18 U.S.C. § 2510(17). 29. 18 U.S.C. § 2702(a)(2). 30. Wesley Coll. v. Pitts, 974 F. Supp. 375, 389 (D. Del. 1997) (citing 18 U.S.C. § 2702(a)). 31. 18 U.S.C. § 2701(a). The penalty for violating the SCA may include a fine and/or imprisonment of up to a year for a first offense, and a fine and/or imprisonment of up to two years for subsequent offenses. Id. at (b). 32. The difficulty in interpreting the SCA is “compounded by the fact that the [SCA] was written prior to the advent of the internet and the World Wide Web. As a result, the existing statutory framework is ill-suited to address modern forms of communication like [Facebook and MySpace]. Courts have struggled to analyze problems involving modern technology within the confines of this statutory framework, often with unsatisfying results.” Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir. 2002). “[U]ntil Congress brings the laws in line with modern technology, protection of the Internet and websites such as [these] will remain a confusing and uncertain area of the law.” Id.

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Classifying Social Networking Sites Under the Stored Communications Act: Crispin v. Christian Audigier, Inc. One of the most recent, and perhaps the most informative, cases that dealt with the SCA in the context of social networking sites is Crispin v. Christian Audigier, Inc.33 In Crispin, the United States District Court for the Central District of California addressed whether a plaintiff had standing to move to quash subpoenas served on thirdparty businesses, including social networking sites.34 The court, on plaintiff ’s motion for reconsideration, held that plaintiff had standing to move to quash subpoenas, that private messaging and email webmail services constituted ECS under the SCA, that web hosting websites and social networking sites were ECS providers under the SCA, and that webmail and private messaging services were not subject to subpoenas duces tecum.35 In Crispin, the plaintiff, an artist, alleged that he granted the defendants an oral license to use some of his works of art in a limited manner in connection with the manufacturing of garments.36 The plaintiff claimed that defendants breached the contract and committed copyright infringement by failing to include plaintiff ’s logo on each garment, attributing the artwork to another artist, and sublicensing his artwork without his consent.37 During discovery, the defendants served subpoenas on Facebook and MySpace seeking plaintiff ’s subscriber information and communications related to matters at issue in the case.38 Defendants argued that this information was relevant to determine the nature and terms of the agreement, if any, that the parties entered.39 The plaintiff filed a motion to quash the subpoenas by arguing, among other things, that the subpoenas sought electronic communications that the social networking sites were prohibited from disclosing under the SCA.40 The Magistrate Judge rejected plaintiff ’s argument, holding that the SCA did not apply because it only protects ECS providers, and that businesses providing products or services on or through the Internet are not ECS providers.41 The Magistrate also held that the SCA only prohibits voluntary disclosure of electronic communications and not the disclosure of information compelled by a subpoena.42 The Magistrate further held that the SCA prohibits the voluntary disclosure of communications by an ECS while the communications are in electronic storage by that service, but that the communications at issue in this case were not in electronic storage as defined by the SCA.43 On the plaintiff ’s motion for reconsideration, Judge Margaret M. Morrow, after providing background information on the SCA, first addressed whether a party has standing to move to quash a subpoena under the SCA. The court noted that “[o]rdinarily a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege with regard to the documents sought.”44 However, the court looked to two district court decisions that 33. 717 F. Supp. 2d 965 (C.D. Cal. 2010). 34. Id. 35. Id. 36. Id. at 968. 37. Id. 38. Id. at 968–69. 39. Id. at 969. 40. Id. 41. Id. 42. Id. 43. Id. at 969–70 (citing Order re Plaintiff ’s Motion to Quash Defendant’s Third Party Subpoenas). 44. Id. at 973 (citing Charles Wright & Arthur Miller, Federal Practice & Procedure, § 2459 (3d ed. 2008) (case citations omitted). Reynolds Courts & Media Law Journal

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The Intersection Between Social Networking and Litigation concluded that individuals have standing to move to quash a subpoena seeking personal information protected by the SCA.45 The most notable of these decisions was J.T. Shannon Lumber Co., Inc. v. Gilco Limber, Inc.46 Relying on this decision, the court in Crispin held that “an individual has a personal right in information in his or her profile and inbox on a social networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and bank records.”47 After concluding that an individual has standing to move to quash a subpoena under the SCA, the court next addressed whether the subpoenas should, in fact, be quashed. The court acknowledged that “[a]lthough some courts have considered the SCA’s [sic] application to certain types of providers, none appears to have addressed whether social-networking sites fall within the ambit of the [SCA].”48 The court then analyzed whether Facebook and MySpace qualified as ECS or RCS providers under existing case law. The court concluded that, depending on the content at issue, Facebook and MySpace qualified as both ECS and RCS providers.49 The court made a distinction between opened and unopened messages sent by users within the sites in reaching this conclusion.50 Specifically, the court held that with respect to “messages that have not yet been opened, those entities operate as ECS providers and the messages are in electronic storage because they fall within the definition of ‘temporary, intermediate storage’ under § 2510(17)(A).”51 With respect to “messages that have been opened and retained by Crispin …,” the court said, “[Facebook and MySpace] operate as RCS providers providing storage services under § 2702(a)(2).”52 The court next determined whether the SCA protected Facebook wall postings and MySpace comments by comparing them to bulletin board services (“BBS”).53 The court concluded that Facebook and MySpace could be considered either ECS or RCS providers in

45. Id. at 974. 46. Id. (citing J.T. Shannon Lumber Co., Inc. v. Gilco Limber, Inc., No. 2:07 CV 119, 2008 WL 3833216 (N.D. Miss. Aug. 14, 2008), reconsid. denied, 2008 WL 4755370 (N.D. Miss. Oct 29, 2008)). In J.T. Shannon Lumber, the district court found that “because the documents sought by the plaintiff are the personal documents and the details of the email accounts of the defendant employees, the defendants have standing to seek to quash this subpoena as they have a personal interest in the documents sought from the internet service provider.” 2008 WL 3833216 at *1. 47. Crispin, 717 F. Supp. 2d at 969–70. The court in Crispin also relied on Hone v. Presidente U.S. A. Inc., No. 5:08-mc-80071-JF, 2008 U.S. Dist. LEXIS 55722, *4 (N.D. Cal. July 21, 2008), which quashed a subpoena delivered to Yahoo that sought emails from plaintiff ’s email account because complying with the subpoena would result in an “impermissible disclosure of information.” Id. 48. Id. at 977. 49. Id. at 987. The court also noted that “there … is no basis for distinguishing between … Facebook’s and MySpace’s private messaging, on the one hand, and traditional web-based email on the other. As a consequence, the court concludes that each of … Facebook and MySpace is an ECS provider.” Id. at 981–82. 50. Id. at 987. 51. Id. 52. Id. (citing and discussing at length United States v. Weaver, 636 F. Supp. 2d 769, 770 (C. D. Ill. 2009) and Flagg v. City of Detroit, 252 F.R.D. 346, 362–63 (E.D. Mich. 2008)). 53. Id. at 988. It is informative that the Senate Report defined BBSs as “communications networks created by computer users for the transfer of information among computers. These may take the form of proprietary systems or they may be noncommercial systems operating among computer users who share special interests. These noncommercial systems may involve fees covering operating costs and may require special ‘passwords’ which restrict entry to the system. These bulletin boards may be public or semi-public in nature, depending on the degree of privacy sought by users, operators or organizers of such systems.” S. Rep. No. 99-541, at 8–9, 1986 U.S.C.C.A.N. 3555, 3562–63.

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The Intersection Between Social Networking and Litigation this context.54 The court relied on Snow v. DIRECTV, Inc.55 in concluding that: In the context of a social-networking site such as Facebook or MySpace, there is no temporary, intermediate step for wall postings or comments. Unlike an email, there is no step whereby a Facebook wall posting must be opened, at which point it is deemed received. Thus, a Facebook wall posting or a MySpace comment is not protectable as a form of temporary, intermediate storage.56

Thus, because wall postings or comments cannot be considered temporary, intermediate storage, the court concluded that once they are made, they are stored for backup purposes.57 Facebook and MySpace are, therefore, ECS providers with respect to wall postings and comments.58 In the alternative, however, the court noted that Facebook and MySpace are also RCS providers with respect to wall postings and comments.59 The court relied on Viacom International Inc. v. YouTube Inc.,60 concluding that the Facebook wall postings and MySpace comments are similar to videos uploaded on YouTube.61 Specifically, YouTube makes videos available immediately for others to view, though users who upload videos may adjust the default settings to make their videos private, so that such videos can only be viewed by those granted access by the user.62 Thus, the private videos sought to be discovered in Viacom are analogous to the wall postings and comments sought in Crispin.63 Like YouTube, the court concluded, Facebook and MySpace are also RCS providers with respect to wall postings and comments.64 Regardless of whether Facebook and MySpace are considered ECS or RCS providers under the SCA, wall postings and comments must not be completely public in order to be protected from disclosure.65 As the court concluded with respect to BBSs, “a completely public BBS does not merit protection under the SCA.”66 In Crispin, however, it was unclear from the record whether the plaintiff had restricted access to his wall postings and comments.67 The court, therefore, vacated and remanded the Magistrate Judge’s order to determine plaintiff ’s privacy settings, to determine disclosure of his wall postings and comments.68 The court concluded, however, that the plaintiff ’s webmail and private messages are protected by the SCA from disclosure.69

54. Crispin, 717 F. Supp. 2d at 989–90. 55. No. 2:04-CV-515FTM33SPC, 2005 WL 1226158 (M.D. Fla. May 9, 2005) (holding that in the context of a BBS, no one could “allege that the messages are being stored on [plaintiff ’s] particular [bulletin board] web site while waiting to be transferred to a final destination. Rather his website is the final destination for the information posted on a bulletin board”). 56. Crispin, 717 F. Supp. 2d at 988–89 (citing Snow, 2005 WL 1226158 at *3). 57. Id. at 989. 58. Id. (citing and relying heavily on Konop, 302 F.3d at 868; Theofel, 341 F.3d at 982; and Quon, 529 F.3d at 900). 59. Id. at 990. 60. 253 F.R.D. 256, 264 (S.D.N.Y. 2008). 61. Crispin, 717 F. Supp. 2d at 990. 62. Id. 63. Id. 64. Id. 65. Id. at 981. 66. Id. 67. Id. at 991. 68. Id. 69. Id. Reynolds Courts & Media Law Journal

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The Intersection Between Social Networking and Litigation The court’s decision in Crispin provides a comprehensive analysis of the SCA as it applies to social networking sites such as Facebook and MySpace. Unless Congress enacts legislation specifically applicable to social networking sites, practitioners must consider the limits and exceptions of the SCA, and the guidelines discussed in Crispin, when formulating a litigation strategy that may implicate social networking sites and subpoenas to third parties.

Social Media and the Law of Discovery

he Federal Rules of Civil Procedure govern what information can be obtained during discovery, how this information can be obtained, and in connection with applicable rules of evidence, how and if this information can be used in a federal lawsuit. Specifically, Federal Rule of Civil Procedure 26(b) provides that parties “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.”70 In addition, “[f ] or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”71 Many states have adopted similar rules that are equally liberal and broad in scope, and courts are beginning to apply these rules in the context of social media evidence.

EEOC v. Simply Storage Management, LLC In EEOC v. Simply Storage Management, LLC,72 the United States District Court for the Southern District of Indiana addressed the appropriate scope of discovery for social media content when a party alleges severe emotional distress.73 The court held that the information contained on social networking sites could contain evidence of when an emotional or mental injury occurred, the severity of the injury, and any other stressors that could have caused the injury.74 The court noted that the discovery of relevant information contained on social networking sites was necessary to ensure a fair trial and outweighed the privacy concerns raised by the Equal Employment Opportunity Commission (EEOC).75 In Simply Storage, the EEOC filed suit on behalf of several claimants alleging that the defendant businesses were liable for sexual harassment by a supervisor.76 The defendants served discovery requests seeking to obtain photographs and videos posted on Facebook and MySpace by or on behalf of certain claimants.77 Defendants also requested copies of certain claimants’ complete Facebook and MySpace profiles, including “all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments, and applications” for a specified period of time.78 The EEOC objected to producing this information on the grounds that the requests were “overbroad, not relevant, unduly burdensome because they improperly infringe[d] on claimants’ privacy, 70. Fed. R. Civ. P. 26(b)(1). 71. Id. The scope of discovery may be limited by court order. Id. at (2). 72. 270 F.R.D. 430 (S.D. Ind. 2010). 73. Id. at 434. The proper scope of discovery established in this case is applicable only to the claimants that alleged severe emotional distress, including post-traumatic stress disorder, and does not address the proper scope of discovery for dealing with claimants that alleged garden variety emotional distress. Id. at 434, 437. 74. Id. at 435. 75. Id. at 434. 76. Id. at 432. The lawsuit was also filed on behalf of other individuals similarly situated with the named claimants. Id. 77. Id. 78. Id.

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The Intersection Between Social Networking and Litigation and [because they would] harass and embarrass the claimants.”79 The defendants argued that discovery of this information was relevant because the EEOC had put the claimants’ emotional health at issue beyond the typical garden-variety emotional distress claims.80 The court first addressed potential privacy concerns applicable to the discovery of social media content that is considered “locked” or Unless Congress enacts legislation “private.”81 The court held that “a person’s specifically applicable to social expectation and intent that her communinetworking sites, practitioners must cations be maintained as private is not a legitimate basis for shielding those commuconsider the limits and exceptions nications from discovery.”82 Given the lack of the Stored Communications Act. of available decisions providing guidance on this issue, the court relied on decisions arising out of the Canadian legal system, including Leduc v. Roman,83 in which the Ontario Supreme Court held that “[t]o permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.”84 With respect to the claimants’ privacy concerns, the Simply Storage court noted that as is common in other cases, any privacy or confidentiality concerns can be addressed by an appropriate protective order.85 The court next addressed what information must be produced from the claimants’ social networking sites regarding the issue of the claimants’ mental and emotional health.86 The court concluded that it is reasonable to expect severe emotional or mental injury to be evidenced on social networking sites and that an analysis of information contained on such 79. Id. 80. Id. at 442–33. In response to an interrogatory regarding the EEOC’s damage calculation, the EEOC listed the specific emotional distress and harm certain claimants suffered. Id. at 433. In response to an interrogatory regarding information about any medical or psychological counseling or treatment the claimants had sought stemming from their employment with Simply Storage, the EEOC indicated that certain claimants received treatment and counseling, including treatment and counseling for depression and post-traumatic stress. Id. The court pointed out that the EEOC did not dispute that the Facebook and MySpace profiles may contain relevant information, but rather that the discovery requests should be limited to content that relates to matters alleged in the complaint. Id. 81. Id. In analyzing the issues presented, the court noted that despite the popularity of social networking sites such as Facebook and MySpace, very few decisions provided guidance on issues involving the discovery of information on social networking sites that may be relevant to claims or defenses asserted in a lawsuit. Id. at 434. 82. Id. 83. (2009), 308 D.L.R. 4th 353 (Can. Ont. Sup. Ct. J.). 84. Id. at ¶ 35. The Simply Storage court also relied on Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc., No. 2:06-CV-00788-JCM-GWF, 2007 WL 119149, *8 (D. Nev. Jan. 9, 2007), which held that the proper method to obtain information from a party’s MySpace account is to serve properly limited requests for the production of relevant communications. Id. 85. Simply Storage, 270 F.R.D. at 434. The court further noted that although private information that may embarrass the claimants could be revealed, this is inevitable in cases alleging these types of injuries. Id. at 437. In addition, privacy concerns are outweighed by the fact that the information produced would consist of information already shared with one or more persons though private messages or postings. Id. The court noted that, as pointed out in Leduc v. Roman, “Facebook is not used as a means by which account holders carry on monologues with themselves.” Id. (quoting 308 D.L.R. 4th 353 at ¶ 31). 86. Id. at 434. Reynolds Courts & Media Law Journal

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The Intersection Between Social Networking and Litigation sites could indicate when the emotional or mental injury occurred, as well as the severity of the injury.87 In addition, information contained on social networking sites could reveal other stressors that could have caused the alleged emotional or mental injury.88 In determining the permissible scope of discovery in light of these conclusions, the court rejected the EEOC’s view that only communications that directly referenced the matters alleged in the complaint should be produced.89 The court held that this view was too restrictive and would result in the production of communications that were only supportive of the claimants’ allegations.90 Although Simply Storage argued that all of the information contained on the claimants’ social networking sites should be produced, the court held that not everything would be relevant.91 In the end, the court held that the following scope of discovery was appropriate: [A]ny profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and [social networking site] applications for [the claimants] … that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.92

In addition, the court permitted the discovery of third-party communications to the claimants if the communications place the claimants’ own communications in context.93 Although the court did not establish a final determination of which pictures and videos had to be produced, it provided the parties with guidelines to assist in making this determination.94 Specifically, the court said, “pictures of the claimant taken during the relevant time period and posted on the claimant’s profile will generally be discoverable because the context of the picture and the claimant’s appearance may reveal the claimant’s emotional or mental status.”95 However, “[o]n the other hand, a picture posted on a third party’s profile in which a claimant is merely ‘tagged,’ is less likely to be relevant.”96 Notably, the court held that if the EEOC had any doubt about whether certain material should be produced, it should err in favor of production.97

87. Id. at 435. 88. Id. 89. Id. 90. Id. Specifically, such a view would fail to produce information that was inconsistent with the allegations in the complaint and information related to other potential sources of the injury. Id. In addition, although a person may communicate about instances of harassment on their social networking sites, the court noted that it is doubtful that a person would routinely discuss events that did not occur, such as “[m]y supervisor didn’t sexually harass me today.” Id. at 436. 91. Id. at 435. The court quoted the decision in Rozell v. Ross-Holst, No. 05 Civ. 2936 (JGK)JCF, 2006 WL 163143 (S.D.N.Y. Jan. 20, 2006), where the court held that “anything that a person says or does might in some theoretical sense be reflective of her emotional state. But that is hardly justification for requiring the production of every thought she may have reduced to writing or, indeed, the deposition of everyone she may have talked to.” Id. (quoting Rozell, at *3–4). 92. Id. at 436 93. Id. 94. Id. 95. Id. 96. Id. The court also held that a picture or video of someone other than the claimant is likely not relevant. Id. 97. Id.

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McMillen v. Hummingbird Speedway, Inc. In McMillen v. Hummingbird Speedway, Inc.,98 a personal injury case, a Pennsylvania Court of Common Pleas held that plaintiff ’s communications on his Facebook and MySpace accounts were not confidential and thus were not protected against disclosure.99 In addition, the information contained on the public portions of the plaintiff ’s accounts made it reasonable to assume that information contained on the private portions of the plaintiff ’s accounts could prove either the truth or falsity of plaintiff ’s claims.100 In holding that the information contained on plaintiff ’s social networking accounts was discoverable, the court ordered plaintiff to provide his Facebook and MySpace user names and passwords to defendants’ counsel.101 In McMillen, the plaintiff sought to recover damages for injuries he allegedly sustained when he was rear-ended by one of the defendants during a cool-down lap following a stock car race.102 The plaintiff alleged that he sustained “substantial injuries, including possible permanent impairment, loss and impairment of general health, strength, and vitality, and inability to enjoy certain pleasures of life.”103 During discovery, one of the defendants asked plaintiff in a set of interrogatories whether he belonged to any social networking sites and, if so, to provide the names of the sites as well as his user names, login names, and passwords.104 The plaintiff answered that he belonged to Facebook and MySpace, but that his user names and login information were confidential and not subject to discovery.105 After reviewing the public portions of plaintiff ’s Facebook account and discovering that plaintiff had posted comments about a fishing trip and attendance at the Daytona 500 race, defendants filed a motion to compel discovery,106 seeking production of plaintiff ’s user names, login names, and passwords.107 Defendants argued that the private portions of plaintiff ’s social networking accounts could contain further evidence relevant to his claim for damages,108 and sought “to determine whether or not plaintiff has made any other comments which impeach and contradict his disability and damages claims.”109 In reaching its decision, the court first noted that under Pennsylvania’s broad discovery rules, “as long as it is relevant to the litigation, whether directly or peripherally, a party may obtain discovery regarding any unprivileged matter”110 and nearly all relevant materials are discoverable.111 98. No. 113 – 2010 CD, 2010 WL 4403285 (Pa. Com. Pl. Sept. 9, 2010). 99. Id. 100. Id. 101. Id. 102. Id. 103. Id. 104. Id. 105. Id. 106. Id. 107. Id. 108. Id. 109. Id. 110. Id. (citing Pa. R.C.P. 4003.1, which states that “… a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter… It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence”). 111. Id. (citing Bernstein, Pa. Rules of Evidence, Art. 5 (enumerating and discussing Pennsylvania’s Reynolds Courts & Media Law Journal

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The Intersection Between Social Networking and Litigation When the plaintiff in McMillen asked the court to protect communications shared among a user’s private friends on social networking sites, the court interpreted plaintiff ’s request as seeking recognition of a privilege for those communications.112 But the court refused, noting that “no ‘social network site privilege’ has been adopted by our legislature or appellate courts,” and that “[a]s a general matter … the law disapproves privileges.”113 In addition, the court held that a new privilege could not be recognized unless the claimant can establish: That his communications originated in the confidence that they would not be disclosed; … that the element of confidentiality is essential to fully and satisfactorily maintain the relationship between the affected parties; … community agreement that the relationship must be sedulously fostered; and … that the injury potentially sustained to the relationship because of the disclosure of the communication outweighs the benefit of correctly disposing of litigation.114

In applying these four factors, the court concluded: [I]t is clear that no person choosing MySpace or Facebook as a communications forum could reasonably expect that his communications would remain confidential, as both sites clearly express the possibility of disclosure. Confidentiality is not essential to maintain the relationships between and among social network users, either. The relationships to be fostered through those media are basic friendships, not attorney-client, physician-patient, or psychologist-patient types of relationships, and while one may expect that his or her friend will hold certain information in confidence, the maintenance of one’s friendships typically does not depend on confidentiality.115

The court also noted that the purpose of social networking sites like Facebook and MySpace is to connect with friends and to meet new people and that “it would be unrealistic to expect that such disclosures would be considered confidential.”116 The court further pointed out that while both Facebook and MySpace permit a user to establish certain privacy settings, a careful reading of the relevant terms and privacy policies dispels any notion that information will not be disclosed to someone other than the intended recipients.117 Accordingly, the court held that plaintiff failed to maintain that the element of confidentiality protected his Facebook or MySpace accounts from discovery.118 The court further found that “whatever relational harm may be realized by social network computer site users is undoubtedly outweighed by the benefit of correctly disposing of litigation.”119 Also, “a user knows that even if he attempts to communicate privately, his posts may be shared with strangers as a result of his friends’ selected privacy settings. The Court thus sees little or no detriment to allowing that other strangers, i.e., litigants, may become privy to those communications through discovery.”120 Finally, the court concluded that “where there is an indication that a person’s social recognized privileges)). 112. Id. 113. Id. (citing Joe v. Prison Health Serv., 782 A.2d 24, 31 (Pa. Commw. Ct. 2001)). 114. Id. (citing Matter of Adoption of Embick, 506 A.2d 455, 461 (Pa. Super. 1986) (citing 8 J. Wigmore, Evidence, § 2285 (McNaughton’s rev. Ed. 1961))). 115. Id. 116. Id. 117. Id. The court discussed at length the various terms and privacy settings of both Facebook and MySpace in reaching its conclusion that users are put on notice that, regardless of their subjective intentions when sharing information, their communications could nonetheless be disseminated to third parties. Id. 118. Id. 119. Id. 120. Id.

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The Intersection Between Social Networking and Litigation network sites contain information relevant to the prosecution or defense of a lawsuit … and given the … admonition that courts allow litigants to utilize ‘all rational means for ascertaining the truth,’ and the law’s general dispreference for the allowance of privileges, access to those sites should be freely granted.”121 Thus, the court ordered the plaintiff to provide his Facebook and MySpace user names and passwords to defendants’ counsel and to not delete or alter existing information and postings on his Facebook or MySpace accounts.122 The court granted defendants’ attorneys read-only access to plaintiff ’s accounts and further ordered that plaintiff ’s user names and passwords were not to be divulged to the defendants themselves.123

Romano v. Steelcase, Inc. In Romano v. Steelcase, Inc.,124 also a personal injury case, a New York trial court held that the private information defendant sought to obtain from plaintiff ’s social networking accounts was material and necessary for defendant to defend against plaintiff ’s claims.125 In making this ruling, the court held that plaintiff did not have a reasonable expectation of privacy in information published on social networking accounts, and that the need for defendant to have access to plaintiff ’s private information on these accounts outweighed plaintiff ’s privacy concerns.126 Specifically, the court held the information sought by defendant from the plaintiff ’s Facebook and MySpace accounts was both material and necessary to the defense of the action and could lead to admissible evidence.127 In Romano, the plaintiff claimed that she sustained permanent injuries as a result of the incident, that she could no longer participate in certain types of activities, and that her injuries affected her enjoyment of life.128 In response to the plaintiff ’s allegations, the defendant obtained information available from viewing the public portions of plaintiff ’s Facebook and MySpace accounts which defendant asserted that, contrary to plaintiff ’s claims, she had an active lifestyle that included trips to Florida and Pennsylvania during the time period she asserted that her injuries precluded such activities.129 In addition, her public profile page on Facebook showed the plaintiff smiling happily in a photograph outside of her home, despite her claim that she was confined to her house and bed.130 In reaching its decision, the court noted that the SCA generally prohibits, subject to certain exceptions, social networking sites from knowingly disclosing to any person or entity the contents of a communication while it is stored in electronic form.131 Nevertheless, the court concluded that “[i]n light of the fact that the public portions of Plaintiff ’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life,

121. Id. (quoting Koken v. One Beacon Ins. Co., CGU., 911 A.2d 1021, 1027 (Pa. Commw. Ct. 2006)). 122. Id. 123. Id. 124. 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010). 125. Id. at 657. 126. Id. 127. Id. at 654. 128. Id. at 651. 129. Id. 130. Id. at 654. 131. Id. at 651–52 (citing 18 U.S.C. § 2702(b)(3)). Reynolds Courts & Media Law Journal

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The Intersection Between Social Networking and Litigation all of which are material and relevant to the defense of this action.”132 The plaintiff ’s main argument against the disclosure of her private profiles was her right to privacy.133 But after thoroughly analyzing the plaintiff’s concerns, the court concluded that those who post personal information on social networking sites such as Facebook and MySpace have no real expectation of privacy.134 The court rejected plaintiff’s arguments, including her attempt to rely on Fourth Amendment protection.135 In doing so, the court cited the United States Supreme Court’s decision in Katz v. United States,136 which held that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”137 Given the lack of legal authority concerning the ability to obtain a person’s private information on social networking sites, the court in Romano relied on cases from other jurisdictions, including Ledbetter v. Wal-Mart Stores Inc.,138 and cases arising out of the Canadian legal system that addressed issues similar to those presented in the Romano case.139 The court in Romano concluded that: [I]t was reasonable to infer from the limited postings on Plaintiff’s public Facebook and MySpace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence. To deny Defendant an opportunity [to] access … these sites not only would go against … [liberal disclosure policies] favoring pre-trial disclosure, but would also condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.140

Importantly, in granting defendant’s motion to obtain the private information on plaintiff ’s social networking accounts, the court granted defendant access not only to the current information contained on plaintiff ’s accounts, but also to historical information, including information that was previously deleted.141

132. Id. at 654. 133. Id. at 655–56. 134. Id. at 656. 135. Id. at 657. 136. 389 U.S. 347 (1967). 137. Romano, 907 N.Y.S.2d at 655 (citing Katz, 389 U.S. at 351). 138. No. 06-CV01958-WYD-MJW, 2009 WL 1067018 (D. Colo. Apr. 21, 2009). In Ledbetter, the plaintiffs claimed they suffered physical and psychological injuries as a result of the accident, which gave rise to the lawsuit. Id. at *1. Similar to the facts in Romano, the public information contained on the public portions of the plaintiffs’ social networking accounts — Facebook, MySpace, and Meetup.com — contradicted their assertions regarding the effect of their injuries on their daily lives. Id. After defendant’s unsuccessful attempt to subpoena the private information directly from the networking sites, defendant moved to compel production of the information. Id. The court held that the information sought was “reasonably calculated to lead to the discovery of admissible evidence and is relevant to the issues in the case.” Id. at *2. 139. Romano, 907 N.Y.S.2d at 654–55 (citing Leduc v. Roman (2009), 308 D.L.R. 4th 353 (Can. Ont. Sup. Ct. J.); Kent v. Laverdiere (2009), 78 C.P.C. 6th 182, ¶ 34 (Can.) (holding that as plaintiff asserted that accident disfigured her and lessened her enjoyment of life, any photos on Facebook or MySpace showing her in healthy state, enjoying life, would be relevant); Bishop v. Minichiello (2009) 69 C.P.C. 6th 344, ¶ 57 (Can. B.C. Sup. Ct.) (holding that defendant's motion for production of plaintiff 's computer's hard drive so it could analyze how much time plaintiff spent on Facebook granted as the information sought was relevant to the issues in the case); Goodridge v. King (2007), 161 A.C.W.S. 3d 984, ¶ 128 (Can. Ont. Sup. Ct. J.) (holding that where plaintiff claimed various injuries including loss of enjoyment of life and disfigurement following a car accident, photos posted by plaintiff on her Facebook account were evidence to the contrary, showing her socializing and dating); Kourtesis v. Horis (2007), 2007 CarswellOnt 5962, ¶ 6 (Can. Ont. Sup. Ct. J.) (noting that Facebook photos of plaintiff were an important element of the case). 140. Romano, 907 N.Y.S.2d at 655. 141. Id. at 657.

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How to Discover Social Media Evidence

he discovery of social media evidence is a novel concept and courts are left to apply rules and procedures established before the rise of social networking sites. The same rules and procedures apply to the discovery of social media evidence as they do to other forms of evidence. Specifically, a party may seek discovery of relevant, non-privileged information related to a claim or defense in the case. The information sought need only be reasonably calculated to lead to the discovery of admissible evidence, regardless whether that information is ultimately admissible at trial. At the outset of litigation, a practitioner must formulate an effective discovery strategy that will result in obtaining relevant social media evidence. Spoliation or destruction of such evidence is a major concern, since information on a person’s social networking site can easily be altered, deleted, or otherwise not properly preserved. Guidelines regarding the preservation and discovery of social media evidence should be discussed at an early stage of litigation, and a component of the initial discovery conference and report under Federal Rule of Civil Procedure 26(f ) and its state equivalents.142 A comprehensive discovery plan should involve production of social media evidence from both the user and the social networking site. The best approach to obtaining information from a user is to request the information directly from the party through interrogatories143 and requests for production of documents.144 Interrogatories can be used to ask a party to identify the social networking sites to which he or she is subscribed, the duration of each subscription, the amount of time spent on each social networking site, and applicable screen names, user names, and passwords. Requests for production of documents can seek information and documents from a party’s social networking accounts, including information, pictures, videos, blog entries, or statements posted or shared online related to matters at issue in the case.145 Obtaining information from both the user and the social networking site will ensure that all relevant information has been discovered and produced. Serving subpoenas on social networking sites may seem like a good, simple approach to obtaining information from a party’s social networking accounts. However, this approach is unlikely to succeed in light of the SCA and the court’s decision in Crispin. Any subpoena served on a social The same rules and procedures networking site will likely result in a motion to quash and an order granting the same. apply to the discovery of social In order to avoid the problems discussed media evidence as they do to other in Crispin and ensure compliance with forms of evidence. the SCA, a practitioner should secure the consent of the user by obtaining an executed authorization pursuant to Section 2702(b)(3) of the SCA. Such an authorization form can be included with a request for production of documents. If a party fails to execute an authorization form, the requesting party can move the court to compel the user’s consent. As seen by the courts’ decisions in Simply Storage, McMillen, and Romano, most of the

142. Fed. R. Civ. P. 26(f ). 143. See id. at 33. 144. See id. at 34. 145. A party may also use requests for admission or a deposition to obtain information related to social media evidence. These methods, however, may be more effective to obtain facts and testimony necessary to authenticate social media evidence, as discussed more thoroughly below. Reynolds Courts & Media Law Journal

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The Intersection Between Social Networking and Litigation information contained on a social networking site will not be related to an issue in the case and a court will likely reject requests that appear harassing, lack privacy protections, are overly broad, unduly burdensome, unreasonably limited in time or scope, or not related to an alleged injury, claim, counterclaim or defense. A practitioner must be prepared in advance to respond to objections raised by a party opposing the production of his or her social media content. Properly drafted discovery requests that are narrowly tailored to ask for the production of relevant information can help overcome objections and avoid discovery disputes. Courts will not permit “fishing expeditions,” and a request simply seeking all content on a social networking site will likely be rejected. And although a particular request may be held permissible in one case, a similar request may be held impermissible in another case.146 The facts and circumstances of each case, and perhaps the jurisdiction governing the case, will dictate the appropriate scope of a request and the probability that a court will find the request proper. Facebook allows users to download all of the information from their accounts, including any photos or videos shared, wall postings, messages, and chat conversations. A request for a party’s Facebook archive, or relevant portions of the archive, can be included in a request for production of documents. The ability to download an archive of a user’s Facebook information with the click of a button eliminates the potential for an objection that such information is unduly burdensome. In addition, the ability for a party to obtain the archive of his or her Facebook information eliminates the need to obtain an executed authorization and subpoena Facebook itself. This is somewhat less reliable than downloading the material directly, as the user may choose to withhold some of the requested information. Any objections asserted by the user should be evaluated, and inquiry made of the user or the user’s counsel to ensure a full production has occurred. If a party fails to produce information in response to discovery requests, the requesting party can move the court to compel the party to produce the withheld information.147 As illustrated by the cases discussed above, the probability that a court will grant a motion to compel is increased when the moving party produces information contained on the public portions of a party’s social networking accounts that supports the position that the private portions of the party’s accounts may also contain relevant, discoverable information. A practitioner should anticipate the likelihood that a party will object to the production of his or her social media evidence and, therefore, obtain and preserve at the outset of litigation all information available on the public portions of a party’s social networking accounts.148 Once social media evidence has been obtained, the evidence must be, among other things, properly authenticated in order to be admissible at trial. 146. Compare McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (Pa. Com. Pl. Sept. 9, 2010) (granting defendants’ request for plaintiff ’s usernames and passwords), with McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524, 1525 (N.Y. App. Div. 2010) (affirming lower court’s denial of defendant’s motion to compel seeking plaintiff ’s Facebook account information). 147. See Fed. R. Civ. P. 37. 148. In doing so, a practitioner must be careful of the legal and ethical limitations that prevent an attorney or a person acting on the attorney’s behalf from “friending” or otherwise contacting a party during pending litigation. See, e.g., Kathleen Elliot Vinson, The Blurred Boundaries of Social Networking in the Legal Field: Just “Face” It, 41 U. Mem. L. Rev. 355, 393 (2010). See also Model Rules of Prof’l Conduct R. 4.2 (stating that “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order”); Model Rules of Prof’l Conduct R. 4.2 cmt. 4 (stating that “[a] lawyer may not make a communication prohibited by this Rule through the acts of another”); Model Rules of Prof’l Conduct R. 8.4 (a) (stating that it is misconduct for an attorney to “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another”).

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Social Media and the Law of Authenticating Evidence

ot all information considered relevant and discoverable for discovery purposes will be admissible as evidence at trial. One requirement for admissibility is the authentication of the evidence sought to be introduced.149 Federal Rule of Evidence 901, which controls authentication of evidence, provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support finding that the matter in question is what its proponent claims.”150 States have adopted similar rules regarding the authentication of evidence, and courts are beginning to apply these rules to social media evidence.

Commonwealth v. Williams In Commonwealth v. Williams,151 the Supreme Judicial Court of Massachusetts held that the State provided insufficient evidence to authenticate four MySpace messages as having been sent by the defendant’s brother.152 The defendant in Williams was convicted at trial on a number of charges related to a murder and attempted murder.153 On appeal the defendant raised several issues, including that certain MySpace messages used as evidence were not properly authenticated.154 In Williams, following the defendant’s arrest, the prosecution alleged that the defendant’s brother sent four MySpace messages to a witness who was with the defendant on the night of the murder, urging the witness not to testify or to claim a lack of memory about the events at her apartment the night of the murder.155 The witness printed the messages from her MySpace account at the courthouse on the morning of her testimony,156 and testified that the defendant’s brother was the person who sent the messages.157 The witness identified his picture on his MySpace account and his MySpace alias “doit4it.”158 In allowing the testimony, the trial court noted that the contents of the messages demonstrated that the sender was familiar with the witness and the pending criminal case against the defendant and desired to keep her from testifying.159 On appeal, the defendant argued that the State failed to prove that the defendant’s brother was actually the source of the MySpace messages.160 The appeals court, noting that authenticity is usually provided by testimony of a witness either “that the thing is what its proponent represents it to be, or … that circumstances exist which imply that the thing is what its proponent represents it to be,”161 concluded that there was insufficient evidence to authenticate the messages and they should not have been admitted.162 Specifically, the 149. Evidence must generally clear five evidentiary hurdles: relevance (Fed. R. EvId. 401), prohibition on hearsay (Rule 801–807), requirement of an original writing (Rule 1001–1008), probative value outweighs the danger of unfair prejudice (Rule 403), and authentication (Rule 901–902). 150. Id. at 901(a). 151. 926 N.E.2d 1162 (Mass. 2010). 152. Id. at 1173. 153. Id. at 1165. 154. Id. at 1171. 155. Id. at 1172. 156. The messages were immediately provided to defense counsel. Id. 157. Id. 158. Id. 159. Id. 160. Id. 161. Id. 162. Id. Reynolds Courts & Media Law Journal

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The Intersection Between Social Networking and Litigation appeals court said that although it appeared that the sender of the messages was using the account of the defendant’s brother, there was no testimony from the witness or anyone else regarding how secure the MySpace webpage is, who can access a MySpace webpage, and whether codes are needed for access.163 The appeals court compared a MySpace webpage to a telephone call, in that “a witness’s testimony that he or she has received an incoming call from a person claiming to be ‘A’ without more, is insufficient evidence to admit the call as a conversation with ‘A.’”164 The court held that “while the foundation testimony established that the messages were sent by someone with access to [the MySpace account of defendant’s brother] it did not identify the person who actually sent the communication. Nor was there expert testimony that no one other than [defendant’s brother] could communicate from that [account].”165 The court thus concluded that the MySpace messages were not properly authenticated and should not have been admitted into evidence.166

Griffin v. State In Griffin v. State,167 the Court of Appeals of Maryland reversed the decision of the State’s Court of Special Appeals, holding that the State improperly authenticated a printout of the defendant’s girlfriend’s MySpace page.168 In Griffin, the defendant was convicted of second-degree murder, first-degree assault, and the use of a handgun in the commission of a felony or crime of violence.169 At trial, the State sought to introduce printouts of the defendant’s girlfriend’s MySpace profile to demonstrate that, prior to trial, she allegedly threatened another witness called by the State.170 The printed pages contained a MySpace profile in the name of “Sistasouljah” and described a twenty-three-year-old female from Port Deposit with a birthday of October 2, 1983.171 The printouts also contained a picture of a couple embracing and a blurb stating “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”172 When the defendant’s girlfriend took the stand, the State did not question her about the pages allegedly printed from her MySpace profile.173 Instead, the State attempted to authenticate the printouts through the testimony of the lead investigator in the case.174 Defense counsel was permitted to voir dire the lead investigator outside of the presence of the jury.175 In lieu of the lead investigator’s testimony, defense counsel agreed to a stipulation regarding the lead investigator’s knowledge of the printouts.176 On appeal, the defendant argued that the printouts were not properly authenticated because the State failed to offer any extrinsic evidence describing MySpace, failed to indicate 163. Id. 164. Id. 165. Id. at 1173. 166. Id. at 1172. 167. 19 A.3d 415 (Md. 2011). 168. Id. at 428. 169. Id. at 415. 170. Id. at 418. 171. Id. 172. Id. 173. Id. 174. Id. 175. Id. 176. Id.

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The Intersection Between Social Networking and Litigation how the lead investigator obtained the pages and failed to adequately link both the profile and the posting to the defendant’s girlfriend.177 In reaching its conclusion that the printouts were not properly authenticated, the appeals court first noted that anyone can create a MySpace profile at no cost, so long as the person has an email address and claims to be over the age of fourteen.178 The court recognized that “[t]he identity of [the individual] who generated the profile may be confounding, because a person observing the online profile of a user with whom the observer is unacquainted has no idea whether the profile is legitimate.”179 The court acknowledged that this raises concerns because anyone can create a profile and purport to be someone they are not, or gain access to another’s account by obtaining the person’s username and password.180 With these concerns in mind, the court analyzed the requirements of authentication.181 Relying on the Maryland Rules of Evidence, which are nearly identical to their federal counterparts, the court held that the most applicable methods of authentication were “[t] estimony of a witness with knowledge that the offered evidence is what it is claimed to be” and “[c]ircumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be.”182 The court pointed out that although the Court of Appeals and the Court of Special Appeals had both applied the rules of authentication to a vast array of circumstances, including a toxicology report, recordings from 911 emergency calls, and text messages, neither court had previously considered the rules’ application to authenticating pages printed from a social networking site.183 The court thus looked to cases from other jurisdictions, including the decision in Commonwealth v. Williams,184 in reaching its conclusion.185 The court determined that: The potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that [defendant’s girlfriend] was its creator and the author of the ‘snitches get stitches’ language.186

In the instant case, then, the court held that the State failed to properly authenticate the MySpace printouts.187

177. Id. at 423. 178. Id. at 420. 179. Id. at 421 (citation omitted). 180. Id. In discussing the risks associated with fictitious online profiles and the relative ease with which one can create a fictional persona, the court reviewed the decision in United States v. Drew, 259 F.R.D. 449 (D.C.D. Cal. 2009), where the defendant, a mother, was prosecuted for creating a MySpace profile of a fictitious 16-year-old male, “friending” a female friend of her daughters, and through a serious of events, tormenting the friend to the point where she killed herself. Id. at 421–22. 181. Id. at 422. 182. Id. (citing Md. R. EvId. 5-901(b)(1) and (4)). 183. Id. 184. See supra notes 151–66, and accompanying text. 185. 19 A.3d at 424–26 (also citing and discussing People v. Lenihan, 911 N.Y.S.2d 588 (N.Y. Sup. Ct. 2010) (holding that photographs were not properly authenticated) and United States v. Jackson, 208 F.3d 633 (7th Cir. 2000) (holding that web postings were not properly authenticated). 186. Id. at 424. 187. Id. Reynolds Courts & Media Law Journal

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The Intersection Between Social Networking and Litigation The court next turned to potential methods that could be used to successfully authenticate social networking evidence.188 The first method would be to ask the purported creator if he or she created the profile and if he or she added the posting in question.189 The second method would be to search the computer of the person who allegedly created the profile posting and examine the computer’s Internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting.190 A third method may be to obtain information directly from the social networking site that links the establishment of the profile to the person who allegedly created it, and also links the posting sought to be introduced to the person who initiated it.191

State v. Eleck In State v. Eleck,192 the Connecticut Appellate Court affirmed a decision of the Superior Court that a criminal defendant failed to authenticate authorship of certain electronic messages sent to him from a prosecution witness’s account on a social networking site.193 In Eleck, the defendant was convicted of first-degree assault by means of a dangerous instrument after he attended a party and engaged in a physical altercation that resulted in two individuals suffering stab wounds.194 At trial the court excluded evidence from a printout from defendant’s Facebook account documenting certain messages allegedly between him and a witness to the altercation.195 As a witness for the State, the witness offered testimony that, prior to the altercation, defendant told her that “if anyone messes with me tonight, I am going to stab them.”196 During cross-examination, after the witness testified that she had not spoken to the defendant since the incident, defense counsel sought to impeach the witness’s credibility by showing a printout of messages between the defendant’s Facebook account and another account under the username “Simone Danielle.”197 The witness identified the user name as her own, but denied sending the messages to the defendant, stating that someone had “hacked” into her Facebook account and changed her password.198 During defendant’s testimony, his counsel attempted to offer into evidence a printout containing the messages purportedly between the witness and the defendant.199 The State objected on the grounds that the document was irrelevant and the authorship of the messages could not be authenticated.200 In response, the defendant attempted to authenticate the document by testifying that he downloaded and printed the messages directly from his 188. Id. at 427. The court acknowledged that methods to properly authenticate a profile or posting printed from a social networking site will undoubtedly continue to develop as efforts to use information from social networking sites increase. Id. 189. Id. This would fall under the “[t]estimony of a witness with knowledge that the offered evidence is what it is claimed to be.” Id. (citing Md. R. Evid. 5-901(b)(1)). 190. Id. The court referenced the comments of a managing director and deputy general counsel of a computer forensics firm, who noted that “[s]ince that user unwittingly leaves an evidentiary trail on her computer simply by using it, her computer will provide evidence of her web usage.” Id. at 427–28 (citing Seth P. Berman, et al., Web 2.0: What’s Evidence Between “Friends”?, Boston Bar J., Jan.–Feb. 2009, at 5, 7). 191. Id. at 428. 192. 23 A.3d 818 (Conn. App. Ct. 2011). 193. Id. at 825. 194. Id. at 819. 195. Id. at 820. 196. Id. 197. Id. 198. Id. 199. Id. 200. Id.

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The Intersection Between Social Networking and Litigation computer, that he recognized the username “Simone Danielle” as belonging to the witness, that the “Simone Danielle” profile contained photographs and entries identifying the witness as the account holder, and that the defendant was recently removed as a “friend” of “Simone Danielle.”201 The court sustained the State’s objection on the ground that defendant did not conclusively show that the messages were actually written by the witness.202 On appeal, the court noted that “[t]he requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be.”203 Further, authenticity can be shown by a variety of ways, including when “[a] witness with personal knowledge [testifies] that A greater degree of authentication is the offered evidence is what its proponent claims it to be, … [when t]he trier of fact or required for social media evidence an expert witness [authenticates] a conbecause of the potential for someone tested item of evidence by comparing it with preauthenticated specimens, … [and when to create a profile and purport to be t]he distinctive characteristics of an object, someone else. writing or other communication, when considered in conjunction with the surrounding circumstances, [provides] sufficient circumstantial evidence of authenticity.”204 The court further noted that the authentication of electronic messages from social networking sites had not yet been addressed in any Connecticut appellate opinions.205 As to the application of existing authentication rules to social media evidence, the court indicated that “the emergence of social media such as e-mail, text messaging and networking sites like Facebook may not require the creation of new rules of authentication with respect to authorship” and that “[a]n electronic document may continue to be authenticated by traditional means such as the direct testimony of the purported author or circumstantial evidence of ‘distinctive characteristics’ in the document that identify the author.”206 Nonetheless, the court recognized that “[t]hat is not to say that it might not be useful to the orderly development of the law of evidence to investigate the appropriateness of new rules specifically pertaining to electronic evidence.”207 In reaching its conclusion that the Facebook printout presented by the defense in Eleck was not properly authenticated, the appeals court noted that “the circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium.”208 In the instant case, the court indicated that defendant’s proffered evidence that the witness was the author was directly contradicted by the testimony of the witness.209 Specifically, “[w]hile admitting that the messages were sent from her Facebook account, she simultaneously denied their authorship. She also suggested that she could not have authored the 201. Id. at 820–21. 202. Id. at 821. 203. Id. 204. Id. at 821–22. The court pointed out that defendant did not argue that the Facebook messages were selfauthenticating, and that while electronic messages do have self-identifying features, such features have been treated as circumstantial evidence of authenticity that may be considered in connection with other circumstantial evidence. Id. at 821, n.4 (citation omitted). 205. Id. at 822. 206. Id. at 823 (citations omitted). 207. Id. at 823, n.8. 208. Id. at 823. 209. Id. at 824. Reynolds Courts & Media Law Journal

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The Intersection Between Social Networking and Litigation messages because the account had been ‘hacked.’”210 The court agreed with the trial court’s decision that “the fact that [the witness] held and managed the account did not provide a sufficient foundation for admitting the printout, and it was incumbent on the defendant, as the proponent, to advance other foundational proof to authenticate that the proffered messages did, in fact, come from [the witness] and not simply from her Facebook account.”211 The appeals court also found the defendant’s effort to prove the witness’s authorship of the messages by referring to their content was inadequate and did not provide “distinctive evidence” of the interpersonal conflict between the defendant and the witness.212 The exchange, the court said, could have been generated by any person using the witness’ account.213 The court observed that “[i]n other cases in which a message has been held to be authenticated by its content, the identifying characteristics have been much more distinctive of the purported author and often have been corroborated by other events or with forensic computer evidence.”214 The court concluded that “the reference in the message to an acrimonious history, with nothing more” was inadequate proof of authorship.215

How to Authenticate Social Media Evidence

nce social media evidence has been obtained through discovery, in order to be admissible at trial it must be, among other things, properly authenticated. As the decisions in Williams, Griffin, and Eleck demonstrate, applying rules and procedures established before the rise of social networking sites raises several questions, including what information is needed and what procedures must be followed to authenticate such evidence. As shown 210. Id. The court pointed out that this suggestion was “dubious under the particular facts at hand, given that the messages were sent before the alleged hacking of the account took place.” Id. Nonetheless, the witness’s testimony of the alleged hacking “highlights the general lack of security of the medium and raises an issue as to whether a third party may have sent the messages via [the witness’s] account.” Id. 211. Id. 212. Id. 213. Id. 214. Id. at 824–25 (citing United States v. Siddiqui, 235 F.3d 1318, 1322–23 (11th Cir. 2000) (emails authenticated not only by defendant's email address but also by inclusion of factual details known to defendant that were corroborated by telephone conversations), cert. denied, 533 U.S. 940 (2001); United States v. Tank, 200 F.3d 627, 630–31 (9th Cir. 2000) (author of chat room message identified when he showed up at arranged meeting); United States v. Safavian, 435 F. Supp. 2d 36, 40 (D.D.C. 2006) (email messages authenticated by distinctive content including discussions of various identifiable personal and professional matters); Dickens v. State, 927 A.2d 32 (Md. Ct. Spec. App. 2007) (threatening text messages received by victim on cell phone contained details few people would know and were sent from phone in defendant's possession at the time); State v. Taylor, 632 S.E.2d 218 (N.C. Ct. App. 2006) (text messages authenticated by expert testimony about logistics for text message receipt and storage and messages contained distinctive content, including description of car victim was driving); In re F.P., 878 A.2d 91, 93–95 (Pa. Super. 2005) (instant electronic messages authenticated by distinctive content including author's reference to self by name, reference to surrounding circumstances and threats contained in messages that were corroborated by subsequent actions); Massimo v. State, 144 S.W.3d 210, 215–17 (Tex. App. 2004) (emails authenticated where emails discussed things only victim, defendant, and few others knew and written in way defendant would communicate). 215. Id. at 825. The court further rejected defendant’s argument that the messages could be authenticated under the “reply letter” doctrine. Id. Under this doctrine, “letter B is authenticated merely by reference to its content and circumstances suggesting it was in reply to earlier letter A and sent by addressee of letter A.” Id. The court noted, however, that “[t]he mere fact that a letter was sent and a reply received does not automatically authenticate the reply; circumstances must indicate that the reply probably came from the addressee of the letter.” Id. (citations omitted). In the instant case, “there was a lack of circumstantial evidence to verify the identity of the person with whom the defendant was messaging.” Id. Thus, “the reply letter doctrine is inapposite.” Id.

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The Intersection Between Social Networking and Litigation by these decisions, a greater degree of authentication is required for social media evidence because of the potential for someone to create a profile and purport to be someone else, or to gain access to another personâ&#x20AC;&#x2122;s account. To authenticate social media evidence, a practitioner must first establish that the evidence being offered as an exhibit is actually a printout from the social networking site from which it purports to be. This can be accomplished by having a witness testify that he or she made the printout from the social networking site, that the printout accurately reflects what he or she saw on the social networking site, and that he or she recognizes the exhibit as that printout. If the person who made the printout from the social networking site is not available to testify, a different witness could testify that he or she visited the social networking site, recalls what he or she saw on that site, that he or she reviewed the printout, and that the information he or she saw on the social networking site is accurately reflected in the exhibit. Once it has been established that the evidence being offered as an exhibit is actually a printout from the social networking site from which it purports to be, it must be shown that the message or posting on the printout is attributable to a certain person. This element of authentication is significantly more complicated, as the decisions discussed above demonstrate. However, it seems apparent from these and other decisions that courts will look to combination of circumstances to determine whether there is sufficient evidence to attribute a message or posting to a particular person. The best approach to prove that a particular message or posting on the printout is attributable to a certain person is through the testimony of that person. During discovery, requests for admission can be used to ask a party to admit that he or she created a certain profile, username, screen name, and password, that he or she is the author of the The best approach to prove that message or posting, and that he or she is the only one that knows his or her password.216 a particular message or posting A deposition should be used to obtain the on the printout is attributable to testimony of the person and any additional facts and information necessary to link the a certain person is through the message or posting to that person.217 Specifitestimony of that person. cally, the person should be asked if he or she created the profile, if it is his or her picture, personal information and user name on the profile, if he or she is the author of the message or posting, if anyone else has access to his or her profile, and what computer(s) or device(s) he or she uses when on the social networking site. In the absence of cooperative witness testimony from the person who purportedly created the profile and message or posting, a practitioner must rely on circumstantial evidence to authenticate the evidence. The best circumstantial evidence may be obtained from the computer used by the person who allegedly created the profile, message, or posting. A forensic examination of the Internet history and hard drive on the personâ&#x20AC;&#x2122;s computer may determine whether that computer was used to originate the profile and the message or posting. If the computer was used for these purposes, an expert can be called to testify regarding this information and the data obtained from the computerâ&#x20AC;&#x2122;s hard drive. In addition, the distinctive characteristics of the message or posting may be sufficient to properly authenticate it as being authored by a particular person. Such distinct characteris 216. See Fed. R. Civ. P. 36. 217. See id. at 30. Reynolds Courts & Media Law Journal

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The Intersection Between Social Networking and Litigation tics that a court may find sufficient to authenticate a message or posting as being authored by the person in question include: if the message or posting contains facts or details known only to that person; if the person subsequently acts in a manner consistent with the message or posting; if the message or posting was made by a computer or device in the personâ&#x20AC;&#x2122;s possession at the time; or if the message or posting contains facts or details known only to that person or a few people, and it was written in a unique manner consistent with the way the person would communicate. The probability that a court will find a message or posting to be properly authenticated based on distinctive characteristics is increased if the characteristics can be corroborated by other events or perhaps with computer evidence. The decision in Williams further suggests that it may be possible to authenticate social media evidence through the testimony of an expert capable of establishing that no one other than the person in question could have authored the message or posting. This can perhaps be accomplished by testimony about how secure the social networking site is, who can access another personâ&#x20AC;&#x2122;s profile, and what codes are needed for access. In addition, the decision in Griffin suggests that it may also be possible for a practitioner to authenticate social media evidence by obtaining information directly from the social networking site that links the establishment of the profile to the person who allegedly created it, and also links the message or posting sought to be introduced to the person who initiated it. Methods to properly authenticate social media evidence will continue to develop as efforts to use evidence obtained from social networking sites increase.

Conclusion

s more people turn to the Internet and social networking sites to interact and communicate with one another, social media evidence will undoubtedly become a common component of litigation. The absence of modern legislation, rules, and procedures pertaining to social media evidence creates ambiguity regarding the proper methods to discover and admit this type of evidence at trial. Nevertheless, courts are beginning to establish applicable guidelines under current rules and procedures. These guidelines provide a framework for practitioners to follow when forming effective litigation strategies, and will further develop as courts continue to address issues involving the discovery and authentication of social media evidence.

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A Picture is Worth 999 Words: The Importance and Effectiveness of Courtroom Visual Presentations Daniel W. Dugan

ave you ever heard of PowerPoint?” asked a 62-year-old juror in a quaint courtroom in a small California town. She was a local bank teller serving on a jury in a 30-daylong civil trial. A witness was on the stand. The defense attorney, from a rather large and sophisticated firm in San Francisco, looked shocked by her outburst. And an outburst it was: an expression of exasperation; an expression of frustration; an expression of “I’ve had enough.” Nobody in the courtroom had ever heard a juror directly question an attorney before in open court.1 What triggered such a question from a juror during the examination of a witness? Was it the attorney’s inept use of an overhead projector? Was it that the document was illegible? Was it that he had put the document on the overhead upside down? Could it have been the fact that he was standing in front of the projector lens so that the document was actually shining on his pants? In all fairness, she did first warn him “It’s shooting on your trousers.” Perhaps it was prompted by the expectation jurors have developed that attorneys will use visual displays to help them understand difficult concepts and case evidence. For this particular juror, it was pure frustration. The attorney was asking the witness to read “paragraph 3 of this letter to the jury,” but the image of the letter was not on the screen, it was projected onto the attorney’s trousers. The adverse witness was not being overly helpful, and just kept answering, “No, I can’t read paragraph 3.” The jury all knew what the problem was and was leaning forward, straining to help the oblivious advocate. Finally, he asked the witness in a loud, angry voice, “Are you telling me that with your advanced degree from Harvard, you can’t read a paragraph from a letter you yourself wrote…?” The juror then spoke up to relieve the pressure. This attorney’s use of technology was so poor that the jury had to help him out of his predicament. He ended the incident by playing somewhat coy, saying, “Oh, these newfangled machines, I just don’t get them.” How does that incident replay itself during deliberations? What is his level of credibility at this point in the case? A senior litigator from a large

1. This occurred during a 2007 breach of contract trial in the Superior Court in Placer County, Cal., in which the author was involved. Reynolds Courts & Media Law Journal

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A Picture is Worth 999 Words firm in a large metropolitan city who cannot operate an overhead projector properly has put himself in a credibility hole. The law has had to adapt to the evolution of culture and technology. We have evolved from wrestling with the admissibility of phone calls or answering machine messages to complicated regulations regarding electronic data and e-discovery. Questions of personal service by postal mail have given way to issues about service via e-mail. The days of running paper documents to the county clerk’s office before its 5 p.m. close are almost over. There are trial courts (i.e., the Third Circuit Court in Detroit) that have declared themselves “paperless.” While the courts and the people who work in or deal with them (staff, jurors, law enforcement, etc.) have been adapting to this rapid change, trial attorneys — not all, but a lot — have somehow avoided, resisted, or ignored these changes in how they present their cases to jurors. This article will explain why trial attorneys can no longer afford to ignore the power of technology and visual displays in explaining their cases to jurors. The research is voluminous. The research is irrefutable. The combination of a visual display and an oral presentation is the most effective way to communicate to jurors. The combination will increase juror memory and comprehension. This combination is expected by jurors. This combination is the way people receive information. Attorneys can disagree with this postulate. Attorneys will disagree with this postulate. Fortunately or unfortunately, it does not change the truth of the postulate. It is like not believing in gravity — you are free to believe or not believe — but gravity will operate nonetheless. Visual and oral presentations together make the most lasting impact on juror memory, comprehension, and, ultimately, their decision-making process. This article will walk you through some of the research, factors, and methods that enable attorneys to communicate their message in the most efficient and persuasive manner.

Technology’s Impact on Culture and the Jury Pool

ere is a brief collection of facts to illustrate the changing mind-set of the people who are or will soon be called for jury duty. What might these facts mean when you are trying to prepare your case presentation? What adjustments to your style do they suggest? • The college class of 2015 (those 18 year olds entering college in the autumn of 2011) were born after the invention of the Internet, meaning they have lived their entire lives in its presence.2 • In a survey of these freshmen, more than half identified the term “Amazon” as an online store, not as a major river.3 • Universities are training students for jobs that don’t yet exist.4 • A 38-year-old, college educated juror has had, on average, 10 to 14 different jobs since leaving school.5 • In 2010, one in eight married couples first met over the Internet.6 • Technological information is doubling every two years, so about half of what college students learn is outdated by their junior year.7

2. Beloit College, The Mindset List for the Class of 2015 (2011), http://www.beloit.edu/mindset/2015/. 3. Id. 4. Karl Fisch, Scott McLeod, & Jeff Brenman, Did You Know?/Shift Happens 2.0 (2008), http:// www.youtube.com/watch?v=pMcfrLYDm2U. 5. Id. 6. Id. 7. Id.

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A Picture is Worth 999 Words • The number of personal internet devices in 1984 was 1,000. By 1992, that number rose to one million. In 2008, that number was one billion.8 • Gen X and the Net Gen (people born between 1970 and 1990) were raised with technology and now represent about 100 million potential jurors.9 • These technology-savvy people will make up over half of the adult population in this country (and, thus, almost the same proportion of eligible jurors).10 These people — who are potential jurors — are not afraid of technology and do not understand why attorneys are afraid to use it. They are used to getting their information from televisions, computer screens, and personal computing devices, which all employ an active mix of pictures and words. The expectation is that attorneys will convey case information to them the same way they are used to getting their information. From juror interviews we have conducted following trials, it is not so much that “the side” with technology gets “brownie points,” but it is the side without technology that gets demerits. The expectation is that good visual displays through courtroom media are the norm; anything short of that norm is “bad,” or “sloppy,” or “inadequate.”11 Jurors even ascribe personality characteristics to attorneys based on their use or nonuse of technology and visual images. Jurors have repeatedly remarked that they perceive attorneys using technology as organized, while they see attorneys who do not as disorganized or poorly prepared. As fair or unfair as these personality attributions may be, this is the way that many jurors think. Consider the following survey results from a Pew Research Center study in December 2010. (See Figure 1.)12 While the share of respondents getting their news from television and newspapers declined in the past decade, and while radio remained relatively stable, the sharing citing the Internet as a source has been rising steadily. The Internet, as a source of news, surpassed newspapers for the first time in 2008 and its lead appears to be increasing.13 This trend is only going to snowball. Attorneys who want to relay information to jurors need to pay attention to and respect this trend.

The Chicken or the Egg or the Microwave Oven?

hy is electronic media so captivating? Why has it become the dominant way for information to be transmitted? This is a classic “chicken or the egg” (or the other egg) dilemma. Which came first: 1) some learned preference for getting information visually, 2) an innate, hard-wired part of our brain that “sees” better than it “hears,” or 3) the Internet technology that forces us to adapt to a visual world whether we like it or not? There appears to be evidence for all three explanations.

8. Id. 9. Tara Trask, Communicating to Generations X and Net Gen jurors, 16(3) The Jury Expert 1 (March 2004), http://hwcdn.net/m8v3x6m7/cds/WEBSITE/Publications/2004.03.Tara_Trask_LLC.TTrask. TJE.Communicating_to_Gen_X_and_Net_Gen_Jurors.pdf. 10. Id. 11. These comments were specifically collected following a mock trial in Winnemucca, Nevada, in July 1999 but are consistently given in post-trial interviews by jurors who sat for actual trials. 12. Pew Research Center, Internet Gains on Television as Public’s Main News Source, Jan. 4, 2011, http:// people-press.org/2011/01/04/internet-gains-on-television-as-publics-main-news-source/ (based on survey conducted Dec. 1 – 5, 2010). 13. Id. Reynolds Courts & Media Law Journal

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Figure 1

Innate, Hard-Wired Reasons to Use Pictures Pictures have been around longer than language. Pre-historic man did not write instructions for hunting bison on the cave walls. He drew pictures. Experts in the fields of paleontology, cultural anthropology and evolutionary psychology argue that our very physical and cultural survival as a species required the ability to turn pictures into action. As long as primitive man remains a hunter, his tendency to imitation makes him, among other things, a painter and sculptor. The reason is evident. What does he need as a painter? Power of observation and deftness of hand. These are precisely the qualities which he also needs as a hunter. His artistic activity is therefore a manifestation of the very qualities which are evolved in him by the struggle for existence. When, with the transition to cattle-herding and agriculture, the conditions of his struggle for existence change, primitive man in large degree loses the tendency and ability for painting which distinguished him in the hunting period.14 Like all Aboriginal art, cave and rock paintings are inseparable from the 50,000-year-old Aboriginal society and culture. Aboriginal people did not develop a written language but communicated their religion, laws and history through song, poetry, painting and carving. The various art forms, such as body painting, song, dance and storytelling were not separate practices but were integrated into ceremonial performances. Art was not simply for enjoyment or self-expression but a means of passing on ideas and values that had complex social significance.15

Physiological data also tend to support an innate explanation for the power of visual images.16 Some physical features in the world that make vision more â&#x20AC;&#x153;efficientâ&#x20AC;? than 14. Georgi Plenkhanov, 5 Selected Philosophical Works 358 (1976). 15. Susan Allan, A Major Discovery of Aboriginal cave paintings in Australia, World Socialist Web Site (wsws.org), Aug. 5, 2003, http://www.wsws.org/articles/2003/aug2003/rock-a05.shtml. 16. Patricia Baggett, Understanding Visual and Verbal Messages, in Knowledge Acquisition from Text and Pictures 101, 110 (Heinz Mandl & Joel R. Levin, eds., 1989).

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A Picture is Worth 999 Words hearing. For instance, we all know that light travels faster than sound, so the brain truly has more time to process pictures than it does sound, even when both are introduced at the same time. Without going into human anatomy in too much detail, the nerves that take images from the back of the eye to the brain differ from the nerves that take sound from the eardrum to the brain.17 Some researchers even say that the cells in the optic nerve are really brain cells themselves, meaning the brain really has to work very little to translate light into an understandable image.18 On the other hand, sounds have to enter the ear, vibrate the eardrum and the hammers and “hairs” in the inner ear, which all have to be translated in the brain into our perception of sound. A sound stimulus must first be transferred into a mechanical process, then into an electro-chemical process before the brain can register the sound.19 Linguistic and memory studies make this distinction very clear.20 When we see a tree, the image can be stored directly in our brain for later recall. However, in order to hear or read the word “tree” in a way that we can comprehend, the brain first has to learn to associate the word with the picture. There is no language in our brain until we learn a language.21 Several people in a line in front of a tree all receive the same visual image in their brains, but each receives the same verbal message only if they share a common language. The sounds that make the English word “tree” are only paired with the image if you say “tree” to an English-speaker. To a French native, it’s “arbre.” It’s “koks” to a Latvian, and “mti” to a Kenyan. There are no innate words in the brain, but pictures can be stored in the brain from birth without having to learn anything.22 Memory researcher Allan Paivio describes the brain’s coding of visual images as “analogue codes” because the brain directly codes what it sees in the same image.23 Words, on the other hand, are “symbolic codes,” because they only represent an image and do not look like the image itself.24 The picture in your mind of a tree is universal, but the symbol (word) for a tree is arbitrary and varies from language to language. Both types of messages are important for storing, organizing, and retrieving information so that this knowledge can be acted upon, but the important notion is that visual information has a more direct route into memory.25 Not only do images get stored more quickly and directly into the brain than words, but the reverse is also true: visual images can be retrieved (and are, thus, available for use) more quickly than words.26 In furthering the argument that there are innate components that make visual images powerful, research shows that color is perceived first by the eye and brain, followed by

17. Richard F. Thompson, Introduction to Physiological Psychology 197, 213 (1975). 18. Id. 19. Id. at 213. 20. Baggett, supra note 16. 21. William C. Sheppard & Robert H. Willoughby, Child Behavior: Learning & Development 517 (1975). 22. Id. 23. Allan Paivio, Dual Coding Theory: Retrospect and Current Status, 45(3) Canadian J. Psychology 255 (1991). 24. Id. 25. Id. 26. Smith, M.C., & Magee, L.E., Tracing the time course of picture processing, 109 J. Experimental Psych.: Gen’l 373 (1980), abstract at http://www.ncbi.nlm.nih.gov/pubmed/6449530. Reynolds Courts & Media Law Journal

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A Picture is Worth 999 Words pictures, then symbols, and lastly, words.27 Color attracts and holds attention. Advertising research indicates that color images stimulate 40 percent more interest than their black and white equivalent.28 A color image also has four times the retention value of a black and white image.29 Color may also be closely connected in the brain to where emotions are triggered or experienced,30 making color an important component of a presentation where there is some advantage to arousing the audience.31 Attorneys don’t need to know all this evolution or anatomy or physics, but it is helpful to understand that there is a physiological reason to use pictures and sounds to make a persuasive argument to a jury. If attorneys ignore the visual component of their message, then they are opting for the lesser of the two systems we have for receiving and processing information.

Learned Components in Memory and Comprehension Ask any teacher how their students learn and, uniformly you will hear three responses: visual, auditory, and kinesthetic.32 These are the classic styles of learning with each individual preferring one over the others. Visual learners “get it” most easily when they see how something works (i.e., look at a map for directions). Auditory learners do best when they are told how something works (i.e., hear directions explained to them). Kinesthetic learners do best by moving or feeling how something works (i.e., making hand motions for left and right turns when learning how to get to a location).33 This “preference” or style probably has some hard-wired components, but also probably has to do with the person’s learning history, or the sum of rewards and punishments each lesson has brought along the way. For purposes of this paper, the focus will be on visual and auditory learners. Much research has been and is being done in the area of learning and visual and verbal stimuli. The most robust result of this line of research to date is that pictures result in better recall than their verbal labels do.34 In tasks that involve the collection and processing of information for later use (like for solving problems), known as “learning tasks,” visual stimuli communicate better than verbal stimuli.35 Serving on a jury is clearly a learning task. There are some twists and turns in this line of research. For instance, when researchers went to elegant lengths to make a verbal equivalent of the silent movie The Red Balloon, it was shown that the recall of events in a group who viewed the movie was equal to a group who read the equivalent description of the movie.36 This conclusion was interesting in that 27. Rodney Jew & Martin Q. Peterson, Envisioning persuasion: Painting the picture for the jury. Trial, Oct. 1995, available at http://www.thefreelibrary.com/Envisioning+persuasion%3A+painting+the+pi cture+for+the+jury.-a017431876. 28. Id. 29. Id. 30. Id. 31. Id. 32. See Bobbi DePorter with Mike Hernacki, Quantum Pathways: Discovering Your Personal Learning Style (2000). 33. For further information regarding kinesthetic learning strategies, see Mike Hernacki with Bobbi DePorter, Quantum Learning: Unleashing the Genius in You (1992). 34. Douglas L. Nelson, Valerie S. Reed, and John R. Walling, Pictorial superiority effect, 2 J. Experimental Psych.: Human Learning & Memory 523 (1976), abstract at http://psycnet.apa.org/journals/ xlm/2/5/523/. 35. Id. 36. Patricia Baggett, The Formation and Recall of Structurally Equivalent Stories in Movie and Test (1977) (Ph.D. dissertation, University of Colorado). See also Patricia Baggett, Structurally Equivalent Stories in Movie and Text and the Effect of the Medium on Recall, 18 J. Verbal Learning & Verbal Behavior 333-356 (1979), and Patricia Baggett & L. Samardzich, Summaries of Episodes from Structurally

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A Picture is Worth 999 Words the research was based on the hypothesis that words, whether auditory or written, were essential in conveying the message of the film. What the researchers found, however, was that the message was communicated just as well in the visual form as it was in the verbal form. What is most heartening for attorneys, though, is that both forms of input are available to present material to jurors. What is the relative strength of information recall in a learning task when people are given a visual-only, a verbal-only, or a combined visual and verbal presentation? In a study at the University of Washington School of Medicine, subjects were presented a series of facts via these three formats: verbal only, visual only, and verbal and visual. The subjects were then tested about the facts presented after a 3-hour time gap and a 72-hour time gap. (See Figure 2.)37 Recall was clearly the best when subjects both heard and saw the presentation, remaining high after 72 hours. Recall dropped precipitously after the same time period in the verbal only and the visual only groups. After three hours, the verbal only group recalled only 35 percent of the information it had acquired, and remembered only 8 percent — a 71 percent drop — after 72 hours. The visual only group initially recalled 62 percent of the information after three hours but that dropped to 19 percent after 72 hours, losing 69 percent of what they first acquired. The combined group that received the information both visually and verbally accurately recalled 80 percent of the information, losing only 19 percent of that after 72 hours. Based on these data, the study’s author commented that verbal presentations are not just less efficient, they are “way less efficient.”38

Figure 2

Equivalent Movie and Text Stories Are Medium Independent, presented at 19th Annual Meeting, Psychonomics Society (San Antonio, Tex., Nov. 1978). 37. John Medina, Brain Rules (2008). 38. Carmine Gallo. The Presentation Secrets of Steve Jobs 98 (2010). Reynolds Courts & Media Law Journal

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A Picture is Worth 999 Words Why are the 3- and 72-hour gaps between learning and recall important to attorneys? Three hours would almost always cover the time between closing arguments and the start of deliberations. Seventy-two hours may cover the time between opening statements and closing arguments, but surely it would cover the time between closing arguments and the end of deliberations. So the question is: For how long do I want my jurors to be able to recall my facts? The answer is surely from at least three hours, up to about 72 hours. The only way to make sure your facts last this long in jurors’ memories is to use a combination of a visual and verbal presentation. Another study demonstrated similar findings, subjects were 87 percent correct in completing a task one full week after learning it through pictures. This result far exceeded the results when the task was taught verbally.39 From the point of view of cultural or linguistic evolution, where did these phrases like “seeing is believing,” or “a picture is worth a thousand words” or “show and tell” come from? Was the kindergarten girl who brought in the lizard she got for her birthday better received than the boy who forgot to bring in his lizard, but told the class about it? It would be strange for a class to have just a “show” day or just a “tell” day. Teachers knew the results of these studies long before they were ever done. The combination of the showing and telling is the most effective means for acquiring and retaining knowledge. As a practical matter, there is no test that can be conducted reliably during voir dire to determine whether any single prospective juror is an auditory or a visual learner. The beauty is that the answer may not matter, as long as both learning modes are utilized in a presentation. The reason for the superior results of the combination of verbal and visual presentations has been the subject of much research, especially in the area of learning and memory. In fact, the volume of such research is daunting. Famed memory and learning scientist Karl Lashley stated, in frustration, “I sometimes feel, in reviewing the evidence on the localization of the memory trace, that the necessary conclusion is that learning just is not possible.”40 Very basically, the research boils down to an argument about whether information from the eyes and ears merges at some point in the brain (known as single track memory) prior to being incorporated into memory, or if two neural “rivers” flow separately into a common reservoir (known as dual-coding theory).41 From a practical point of view, this may not matter to attorneys, although one exception will be discussed later. It may be enough to know that words enhance pictures and pictures enhance words and the outcome is far better with both than either one alone.

A Technological Phenomenon Being Thrust Upon Us—Adapt or Perish There is a fair amount of anecdotal evidence that technology is changing us whether we have asked for those changes or not: • The proliferation of internet-access devices is exploding exponentially. Laws are being enacted42 to prevent people from using those devices while engaged in other dangerous activities, such as while they drive their cars or ride their bicycles. People often seem so 39. Roger N. Shepard, Recognition memory for words, sentences, and pictures, 6 J. Verbal Learning & Verbal Behavior 156 (1967). 40. K.S. Lashley, In search of the engram (1950), in Neurocomputing Foundations of Research (James A. Anderson & Edward Rosenfeld, eds., 1988), http://homepage.mac.com/sanagnos/lashley1950.pdf. 41. Allan Paivio, Mental Representations: A Dual Coding Approach (1986). 42. Cell Phone and Texting Laws, Governors Highway Safety Association (Sept. 2011), http://www.ghsa. org/html/stateinfo/laws/cellphone_laws.html.

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A Picture is Worth 999 Words intoxicated with the technology that they can’t even see that they might be harmed by attention to it. • “Television is our culture’s principal mode of knowing about itself. Therefore —and this is the critical point — how television stages the world becomes the model for how the world is properly to be staged.”43 • Many jurors in a recent federal court case revealed during voir dire that their basic assumption is that all business calls are being recorded and that this does not bother them, nor does it feel like an invasion of their privacy.44 • The movie industry and television have changed how stories are shot. A camera is always moving or the director changes the camera angle during editing so that, on the average, the eye perceives a change every 6.5 seconds. Try this: the next time you go to a movie, wait until the camera stops moving, then begin counting “one- thousand-one, one-thousand-two, etc.” Stop counting when you see the camera angle change. Most of the time you will not make it all the way to “one-thousand-seven.” Hollywood has discovered that there is a mathematical formula that optimizes holding viewer attention that has changed dramatically since 1935.45 In order to keep the attention of the average viewer today, commercial directors believe that the average-person’s eyes must be stimulated by these camera angle changes every one second, while movie directors will hold on a shot for up to six seconds.46 • Just two years ago many of us had to get new television sets or purchase a “black box” converter, because the type of signal travelling through our airways was changed to a type that our old TVs would not be able to receive. This change was mandated by Congress and the FCC; there was no way to opt out, if we still wanted to watch television. The Internet has changed the way we organize, seek, and trust information. We have been required to adjust to changing expectations at work because of the presence of technology (i.e., fax machines used to be really fast compared to postal mail, but now people expect electronic responses in a flash, even on complicated issues that merit research and contemplation). Again, we don’t have to like this or to believe in technology, but if we want to be successful, we do have to respect it when we are presenting information to jurors who live and work in this electronic culture.

Lawyers’ Concerns

ationalizations abound as to why trial attorneys refuse to adopt a more visual approach to case presentation. Two commonly expressed excuses — “I’ll look too slick” and “computers can fail” — also tend to be the flimsiest.

“I’m Afraid I’ll Look ‘Too Slick’” Attorneys often say that they fear being seen as too slick, too well-funded or too dominant if they use technology to present their case. My follow-up question is, “If jurors learn better from the visual and auditory combination that courtroom technology can provide and if jurors expect you to put on an engaging electronic presentation and if jurors get the major 43. Neil Postman, Amusing Ourselves to Death: Public Discourse in the Age of Show Business 92 (1985). 44. This was the sentiment during voir dire in a June 2011 breach of contract trial in the federal Western District of Texas in which the author was involved. 45. James E. Cutting, Jordan E. DeLong and Christine E. Nothelfer, Attention and the Evolution of Hollywood Film, 21 Psych. Sci. 432 (2010), available at http://pss.sagepub.com/content/21/3/432. 46. Personal communication with Director Dennis Dugan, Sony Pictures (May 2010). Reynolds Courts & Media Law Journal

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A Picture is Worth 999 Words ity of their information about the world through electronic media, then when are you going to jump on the bandwagon?” Answers vary. Geoffrey A. Moore47 describes five categories of people in their habits for adopting technology: • Innovators, making up about 2 percent of the population, aggressively pursue technology. They will buy a new piece of technology just to see what it does with little regard for its purpose. Innovators will figure out the purpose or practicality of the technology after they buy it and use it. • Early Adopters, the next 15 percent, are not “techno-geeks” like Innovators, but they are early in a cycle to see how technology can directly benefit them and their mission. They have the intuition and vision to see how technology can help them accomplish a task and are ready to give it a try. • Early Majority, accounting for the next 33 percent that makes up the first half of the bell curve of technology adoption, have some of the vision of the Early Adopters, but have a stronger sense of practicality. They are waiting to see how others use the technology, what glitches appear, and how the results are seen by others. • Late Majority, the first 33 percent of the backside of the bell curve, will not really adopt any technology until it is the established norm. These are the attorneys who say, “I’ve been trying cases with flipcharts and marking pens for X years and I have been pretty darn successful.” These attorneys will make the leap to a technology-based trial only after they lose a big case and their paralegal timidly says, “You know, you really need to start using some electronics in the courtroom if you want to be able to compete anymore,” as they run towards the exit before a three-day holiday weekend. • Laggards are the attorneys who will never, ever use technology no matter what data you put in front of them. This group makes up 17 percent of the legal world and many of them have been appointed to the bench or have reached a senior/supervisory role by this time in their career, so their duty to persuade on behalf of their client has long since passed. The one hurdle with Laggards on the bench is the haggling required before one or both parties are allowed to bring their technology into the courtroom itself. Fortunately, most judges, even the very skeptical ones, are open to trying the technology and allowing it, even embracing it, if it looks like it is being run smoothly and is an enhancement to the jurors’ understanding of the case. In my experience as a trial consultant helping attorneys present complicated information to juries, I have had judges come down from the bench to touch and play with images on a SmartBoard.48 We have had judges invite us after a trial to give CLE seminars on how well the technology works — the same judges who, prior to trial, we had to beg and plead to even bring the devices in the front door. I have been involved in cases where an appellate court overturned a decision because the trial judge did not allow technology to be used. The technology is so powerful that even laggards can become believers, if not users. Perhaps it is useful to do some self-examination and ask, “Into which category do I fit?” Certainly every category has highly successful attorneys as members. The question increasingly becomes, however, what does the jury want from you? What are the expectations of jurors? For how long can you compete effectively without adapting to the times? 47. Geoffrey A. Moore, Crossing the Chasm: Marketing and Selling High-Tech Products to Mainstream Customers 12-13 (2002). 48. A SmartBoard is a computer-based “white board” that allows the user to display documents or photos or videos and which allows the user to highlight, expand, or make written notes that are saved on the computer and can be printed as hard copies to be entered into evidence.

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“What If the Computer Goes Down?” This is the back-up excuse I hear from attorneys when I will not endorse their “I’ll look too slick” argument. First of all, computers are very reliable tools. Most technicians, however, do bring a back-up just in case there is a problem. Testing all equipment in advance usually cures almost all of the possible glitches that can arise.49 Second, virtually every juror now has a computer or works with one at some point during their day. Every juror knows there are glitches. The younger jurors think nothing of these little problems; at the worst they know you just reboot. You might be upset, but your audience isn’t. Finally, how is a computer going down any different from the attorney who is shuffling through a stack of foam boards, not finding the one he/she wants, or leafing through notebook after notebook to find a document or a deposition segment? To be fair to technology, hard copies of documents are also fraught with problems.

The Nuts and Bolts: Creating a Visually Persuasive Presentation

erhaps the best way to learn what a juror experiences when presented with a combined visual and verbal display is to try this experiment on yourself, then try it on family, friends, co-workers. The experiment is very simple and the outcome will be illuminating. Consider the following two figures.50 What is “going on” in each of the pictures? These are fairly simple figures, not unlike some that might be shown to a jury during opening statements or closing arguments to show a relationship between two parties and some transaction that transpired between them. For the purpose of this exercise, let’s say that the simple messages intended for the viewer to learn from these visual displays were: Figure 3: These are two gentlemen at a restaurant who know each other and one of the gentlemen is paying for both of the meals. Figure 4: These two gentlemen do not know each other, but for some reason one of the two paid for both of their meals. In our study51 with focus group members using these exact figures, some very interesting findings emerged: 1. Only half the subjects came up with the desired explanations listed above. 2. Some subjects commented that the “knows” or “does not know” arrows referred to one patron knowing what the other wanted to order for lunch. They were “mistaken” (in reference to the desired story) as to what “know” or “does not know” referred. 3. Many subjects made stereotypical comments, assuming the African-American man was a restaurant employee, such as a maître-de or concierge who owed the other man, the customer, something. 4. The only assumption drawn from Figure 3 was that this was some sort of business lunch and it is not uncommon in such a situation for one person to pay.

49. As a matter of fact, once we were using a very sophisticated electronic system in a huge construction defect case when a power failure hit the courtroom. The only things that kept going during the outage were the laptops, because they reverted to their batteries for power. 50. Baggett, Understanding Visual and Verbal Messages, supra note 16. 51. Trial Science, Inc. (2011) (unpublished study). We individually interviewed 48 participants in focus groups on various cases between January and March 2011. The interviewees were evenly split between men and women, and their age ranged from 19 to 67 years. All of the participants were juryeligible individuals. Reynolds Courts & Media Law Journal

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Figure 3

Figure 4

5. Figure 4 generated lots of discussion of the motivation of the person who paid, with answers varying wildly, such as: a. He is trying to bribe the other man. b. He is trying to get the other man to buy some real estate or something from him. c. He is “gay and is hitting on” the other man. d. He is just a really nice guy and buying lunch for a homeless person. e. He is thanking the other man for something, like for serving our country in the military. These are not great results if you apply them to the way a jury might see your figure, even though it is the superior way for jurors to learn. In this example, only half of the jury has received the intended message at this point (see conclusion #1) from seeing only the two visual figures, with no verbal explanation. Now try this with the figures: Point out the verb “knows” in Figure 3 to the subjects who did not understand the desired story. Say something to them like, “This arrow means that Man 1 knows Man 2 and Man 2 knows Man 1. What can you tell me now about what is going on?” Almost instantly, subjects begin to tell the desired story, the one you want them to understand. Do the same for Figure 4 with those who did not “get it” the first time. Again, almost all of these subjects will tell the “right” story on the second try, but they still may have linger-

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A Picture is Worth 999 Words ing questions regarding the two men’s motivations. This simple exercise points out three important factors for attorneys in designing their visual and verbal trial presentations: 1. A single verb must be emphasized to focus all the subjects on the important aspect of the picture. When they have that focus, they understand almost immediately.52 2. A juror’s learning history and biases can be uncovered by exposure to a picture. 3. Jurors want to know the motivations behind actions and this is so strong, they will make a motivation up if one is not provided.53

A Picture Is Worth 999 Words We are back to the title of this article. If a picture was worth 1,000 words, then all subjects would come up with the desired story on their own. It appears, though, that a picture is only worth 1,000 words to half the audience. The other half, to get up to speed, needs the one verb to focus them. A recent study by Pia Knoeferle & Matthew W. Crocker, using some very sophisticated research techniques from computational linguistics, demonstrated that guiding subjects with a single verb can direct the gaze of the viewer to the essential element of the picture and produce the desired interpretation of the picture or scene.54 Jurors need your verbal guidance to show them where and on what to focus. This is strong evidence for the combination of verbal and visual input. In the restaurant figure exercise above, the mere act of pointing out the verb “to know” clarifies the intended message of the scene immediately and completely.

Without Guidance, We Default to Stereotypes Attorneys always have to be aware of bias among jurors. Bias is not as easy to “set aside,” as some judges would like jurors to believe. The traditional thought is that when a decision has to be made and the factors going into the decision are ambiguous, people will default to their biases. There is probably some truth to this, but Knoeferle and Crocker’s study provides some hope. In their study, when the image in the picture was in conflict with a subject’s bias, the use of a directing verb was able to overcome the observer’s bias.55 In our study using the figures above, subjects who automatically assumed that the AfricanAmerican man was a restaurant employee immediately dropped that bias from Figure 3 when they were told, “Man 1 knows Man 2 and vice versa.” It is interesting that their bias could have remained: just because the African–American man knew the other man does not mean that the African-American was not an employee. Something about that guiding verb removes the stereotype that the African-American was an employee and immediately changes his status to friend or associate. A picture and a guiding verb can overcome a bias.

Jurors Want to Know Why Although both figures in our example are simple and only differ by the positive or negative context of the verb “to know,” Figure 4 poses a special challenge to jurors. In Figure 3 the desired scene is commonplace, part of almost everyone’s experience on multiple occasions in the past. It is not unusual for two people who know each other to have a meal at a res 52. Pia Knoeferle & Matthew W. Crocker, Stored knowledge versus depicted events: What guides auditory sentence comprehension? (2011) (Ph.D. dissertation, Saarland University, Saarbrucken, Germany), http://www.coli.uni-saarland.de/~crocker/pubs/knoeferle-cogsci2004.pdf. 53. Richard C. Waites, Courtroom Psychology and Trial Advocacy (2003). 54. Knoeferle & Crocker, supra note 52. 55. Id. at 5-6. Reynolds Courts & Media Law Journal

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A Picture is Worth 999 Words taurant where one of the two ends up paying for both meals. There is nothing controversial or ambiguous about this figure. Figure 4 is not so clear. We can point out the negative verb (does not know) and the scene can make sense, but there is the lingering question of why Man 1 would do such a thing as pay for the meal of a stranger. The action does not fit our usual experience in If attorneys ignore the visual a restaurant. When the action does not fit our experience, we tend to attribute some component of their message, then motivation to the scene so it will fit some part they are opting for the lesser of our experience. Thus, subjects produce longer stories like the ones listed above. of the two stystems we have for Motivation, or the “why” behind an action, processing information. is something civil attorneys tend to shy away from. In many cases, the “why” typically is one person’s word against another’s. The “why” typically has no firm evidence behind it and is circumstantial at best. However, as can be seen from the exercise, the “why” really matters to jurors. It may, in fact, be the most important thing to them and if you do not give them a reason behind an action, they will create their own. And as we have seen, their conclusion may not be the “right” one; none of the created motivations for Figure 4 in our exercise matched the desired story.

Guiding Principles for Multimedia Presentations Dr. Richard Mayer, a professor of educational psychology at University of California, Santa Barbara, identified several factors that influence effective multimedia presentations.56 These will be summarized here with some supporting information from other sources. 1. Redundancy Principle: Mayer’s studies confirm that the combination of verbal and visual stimuli is the most powerful mode of presentation for increased recall and accuracy. His studies have demonstrated this effect for up to 20 years following a learning task. He uses the term redundant because the visual and verbal are each enhancing the effect of the other: The learner is getting the lesson twice rather than once. The Redundancy Principle also insures that jurors, whether they are visual or auditory learners, will have their preferred mode of information. 2. Contiguity Principle: Mayer shows that words placed near the image (spatial contiguity) improve the comprehension of the entire picture by 65 percent. He also shows that presenting the visual and verbal information simultaneously (temporal contiguity) increases retention and understanding. This principle is vital to the building of effective presentations and is probably the principle that is violated the most by attorneys in court. Most courtroom presentations are created with a software program such as PowerPoint or Keynote. These programs allow the easy creation of bullet points to follow along with the speaker’s verbal message. The intoxicating problem is that some speakers either put their entire speech on the slide or put highlights of their speech on the slide but say something completely different from what is on the slide. These practices split the attention of the audience.

56. Richard E. Mayer, Multi-Media Learning (2nd ed., 2009).

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A Picture is Worth 999 Words The first error creates too much work for the audience. If they have to read your whole speech, then why are you there at all? In addition, reading off a screen from a distance is difficult if not impossible for some jurors. People have different vision challenges, lighting conditions might be poor, and people read at very different rates. Jurors, as a result, will not read your lengthy slides. As a corollary to this error, some attorneys simply project an entire page of a document on a screen, thinking this is fulfilling their “duty” to use technology. Documents shown like this need to be highlighted with relevant sections animated and enlarged. Bring some life to the dull, black and white document. Use a digital, electronic arrow to point to the guiding verb in the contract, use a quote box with a colored background, animate the relevant paragraph so that it draws the audience’s eyes right to the crucial spot. You haven’t fulfilled your duty to make your presentation visual if you are just finding some other way to simply show a document that could be shown in the same way on an overhead projector or in hard-copy form. The technology is there to make any document exciting. The second type of error, saying something that differs from the visual information, creates its own set of problems. If your words do not match the slide, then the audience is receiving competing signals between what they are hearing and what they are supposed to be reading. Slip in a picture to this mix and you are now requiring your audience to attend to three competing signals. These competing input signals must merge at some point to be processed by the brain, which makes organizing such signals a difficult task.57 One strategy that people use is to default to the picture (remember, the visual image is the most easily processed signal), but they may miss out on the guiding verb that shows them which part of the picture is most crucial. So, like in the restaurant exercise, if you are telling your audience about the time of day and the directions to the restaurant at the same time that they are reading the caption and deciphering the meaning of the symbolic arrows, they may get confused and default to one of the made-up stories and motivations, which is not the story you intend to tell. Finally, audience attention can be detrimentally split by moving too quickly through a slide presentation. Just as the audience is adjusting to and absorbing the contents of one slide, the attorney moves to the next slide. The rule of thumb here is to advance the slide first, then talk. It is better for comprehension if the visual image slightly precedes the verbal signal. Advance to the next slide, pause, let the image register, and then begin to tell the jurors about the concept being displayed. Don’t hurry. If you find yourself hurrying because you have to move through a certain number of slides in a certain amount of time, then you probably have too many slides. Consolidate and simplify your presentation during your rehearsals. 3. Coherence and Signaling Principles: Mayer shows that very a short message with a supporting an image is the most effective slide. There should be no extraneous words and no extraneous pictures. Mayer describes the concept of “signaling” the important part of the image by using an arrow to point at the part of the image you want to highlight. This is the visual version of the guiding verb described earlier.

57. Baggett, Understanding Visual and Verbal Messages, supra note 16. Reynolds Courts & Media Law Journal

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Figure5

For example, look at Figure 5, an illustration used in a mining/breach of contract case which depicts an open pit mining operation. It has a short message and a simple concept, with words placed near the picture, and the alleged breach of contract highlighted by an arrow. (Although this appears in black and white in this publication, the one used at trial was in color.) Where does your eye go first? The focus groups in this case said, First, the trucks (pictures are always seen before symbols), followed by the minerals symbols next, and then, finally, the point of the arrow, the emphasized point of the case. A subcontractor was allegedly not controlling the pollutants as promised, and knocked the mine out of compliance with environmental regulations. The essential elements of a fairly complex geochemical process and the legal concepts of the purpose of the contract and the alleged breach of that contract all appear in this figure. This slide gives the attorney the opportunity to expound with words as the image sinks in to the jurors’ long-term memory for use during deliberations. Figures 6 and 7 provide another example (unfortunately in black and white for this publication) from a medical malpractice case in which a surgeon removed the wrong Fallopian tube from a 17-year-old patient during a surgery for a tubal pregnancy. The surgeon, realizing the error, went back and also removed the tube in which the pregnancy resided, leaving this patient with no Fallopian tubes for the rest of her life. The slides look complicated and excessively wordy in this still, publication format. In trial, however, through the use of animation, these two slides were very persuasive. The first slide (Figure 6) begins with only the words “Treatment Decision Tree” appearing. Next, the bold down arrow slides in and the “non-surgical treatment” box appears. As the attorney describes each step a surgeon takes a new arrow and box fade in. The jurors can easily follow the flow chart and can completely understand the series of decisions a surgeon must make as the treatment continues. Once the entire flow chart has been described, the attorney re-

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Figure 6

Figure 7

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A Picture is Worth 999 Words turns to the start and, using a colored pen on a SmartBoard, circles the four main possibilities that can happen from this tree. Three of the courses end in a woman who has at least one intact, functioning fallopian tube. Only one course ends in infertility; which is highlighted by an “explosive” symbol because it is clearly not the desired outcome. With that background given, the next slide (Figure 7) appears with all of the flow chart steps intact, but what fades in now is the large circle labeled “WRONG DECISION” (which appears in red in the version used in court). The attorney, using a simple remote control, clicks once and each of the numbered circles fade in one at a time. The attorney does not speak during these fade-ins, but merely watches. The message to the jury was to be that multiple errors were made, not just one accidental one. A second message was that there were multiple places where the surgeon could have changed course and saved the Fallopian tube. When the jurors were reminded that all these errors took place on the wrong, healthy, and intact fallopian tube, the errors seemed even bigger. These two slides don’t include any pictures, but reaction of focus group members and mock jurors to the animation and symbols used convinced us that this violation was acceptable. Even if the entire flow chart was difficult for any juror to comprehend, the sheer number of errors, which appear prominently in red, cannot be ignored. The placement of the “WRONG DECISION” symbol next to the “Infertile” symbol was intended to equate those two ideas. Complicated slides are not to be avoided at all costs; tools such as animation, colorcoding, proximity, and use of SmartBoard pens to point to or highlight particular elements can make even very complicated slides come to life and be understood. Finally, Figure 8 depicts an opposing expert’s opinion that has been augmented by his trial testimony on cross-examination by the attorney using a SmartBoard. This graphic was used in a case concerning the complicated business of transferring water rights across state lines within an eminent domain action.58 The government’s expert had expressed three opinions in his deposition, which were transferred to this slide by our trial team for our cross-examination of this adverse expert in trial. First, our attorney (representing the landowner) showed this slide to the witness and asked the witness to confirm that these were his opinions from his prior testimony and report. The witness did so. Upon further questioning, the witness also conceded that he had no opinion about whether the transfer of the water rights would cause harm to the downstream users as had been alleged in the government’s opening statement. This new “non-opinion opinion” was handwritten on the slide by the examining attorney during the expert’s cross-examination. The witness was then asked if this newly written statement — that he had no opinion of that issue — was true as far as he was concerned. The witness agreed it was accurately written. Then the attorney asked about how the proposed sale and transfer of water rights off the land in question might affect the highest and best use of the land itself. He restated his deposition position that a water rights transfer would not change the theoretical highest and best use calculations. The examining attorney then underlined this part of the expert’s conclusion. What happened next is vital. Given this new testimony, the examining attorney turns to his technician and asks for this screen shot to be printed off in color. Within 58. This case, in which the author was involved, was tried in federal court in the Sacramento Division of the Eastern District of California in 2005.

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Figure 8

45 seconds a color copy rolls off the printer and is handed to the examining attorney, who then turns to the Court and asks for this “new” exhibit to be admitted into evidence, which it was. This now allows the slide to be re-shown to the jury during closing arguments and physically taken back with them into the jury room to be discussed during deliberations. This process was repeated with each key opposing witness and was persuasive in the end. The judge in this case was impressed enough with this “new” trial tactic that he labeled this case the “trial by PowerPoint.”59

Conclusion

trial attorney can no longer afford to “try cases like I always have.” Technology has changed us and has also provided us with the tools to teach a lay audience what they need to know to make important decisions on very complex issues. We can argue about the virtues and the vices of technology, but we cannot ignore it and hope it goes away. The combination of a visual and verbal message is clearly superior to any other mode of transmitting a message from one person to another. Whether this combination is superior because of our biology, our learning history, the realities of our culture, or a combination of all three, it is clear that we learn best when we are in a “show and tell” environment. Fears surrounding the use of technology can be real fears. But, the ultimate audience — the jurors — does not see those fears as rational. The jurors’ expectation is twofold: First, that this is not about what makes the attorney comfortable — it is about the client’s case. Second, a multimedia presentation is what jurors expect to see when they enter the courtroom. Just as we would expect our surgeons or our car mechanics to be up-to-date on the latest tools to help us with a problem, jurors expect attorneys to be up-to-date on the tools that will make deliberations meaningful and accurate. Before the next trial, take a concept from your case and draw it out on a napkin. It doesn’t matter if you draw well or not. Challenge yourself to make it as simple as possible and watch the case unfold before your eyes. With modern presentation technology, it is possible to recreate this experience — to tell a client’s story — with a jury. Transfer your napkin drawing to a computer and you will have the beginnings of a powerfully persuasive tool. 59. The software used was Trial Director, by inData Corporation of Phoenix, Ariz., in combination with a SmartBoard by Smart Technologies of Calgary, Alberta, Canada. Reynolds Courts & Media Law Journal

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For Further Reading Criminal Coverage Susan Hanley Duncan, Pretrial Publicity In High Profile Trials: An Integrated Approach to Protecting the Right to a Fair Trial and the Right to Privacy, 34 Ohio N.U. L. Rev. 755 (2008). Sara Fleisch, The Ethics of Legal Commentary: A Reconsideration of the Need for an Ethical Code in Light of the Duke Lacrosse Matter, 20 Geo. J. Legal Ethics 599 (2006-07). James A. Fry, I put away an innocent man, Dallas Morning News, May 14, 2009. Jean Hellwege, No Comment: Professors, Legal Groups Consider Ethical Codes for Legal Commentators, 34 Trial 16 (July 1998). Ernest F. Lidge III, Perp Walks and Prosecutioral Ethics, 7 Nev. L. J. 55 (2006-07). Jamie N. Morris, The Anonymous Accused: Protecting Defendants’ Rights in High-Profile Criminal Cases, 44 B.C. L. Rev. 901 (2003).

Taking Litigation for a Spin Michele DeStefano Beardslee, Advocacy in the Court of Public Opinion, Installment I: Broadening the Role of Corporate Lawyers, 22 Geo. J. L. Ethics 1259 (2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=1374595. Deborah A. Lilienthal, Litigation Public Relations: The Provisional Remedy of the Communications World, 43 N.Y.L. Sch. L. Rev. 895, 902, 904 (1999). Jonathan M. Moses, Note, Legal Spin Control: Ethics and Advocacy in the Court of Public Opinion, 95 Colum. L. Rev. 1811, 1829 (1995). The Risks, Rewards, and Ethics of Client Media Campaigns in Criminal Cases, 34 Ohio N.U. L. Rev. 687 (2008). Tanina Rostain, The Emergence of “Law Consultants,” 75 Fordham L. Rev. 1397 (2006-2007). John C. Watson, Litigation Public Relations: The Lawyer’s Duty to Balance News Coverage of Their Clients, 7 Comm. L. & Pol’y 77 (2002).

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For Further Reading (continued) Defense Investigative Web Sites Tom Farmer, Cops smell rodent at ‘rat’-outing Web site, Boston Herald, Aug. 23, 2004. Adam Liptak, Web Sites Listing Informants Concern Justice Dept., N.Y. Times, May 27, 2007, http://www.nytimes.com/2007/05/22/washington/22plea.html. Emillie Lounsberry, Site that snitches on snitches irks judges Whosarat.com, which profiles informants, worries some jurists, The Philadelphia Inquirer, July 22, 2007, http://articles.philly.com/2007-07-22/news/25241093_1_informants-federal-judges-web-site/. Amy E. McCann, Are Courts Taking Internet Threats Seriously Enough? An Analysis of True Threats Transmitted Over the Internet, as Interpreted in United States v. Carmichael, 26 Pace L. Rev. 523 (2006). The Risks, Rewards, and Ethics of Client Media Campaigns in Criminal Cases, 34 Ohio N.U. L. Rev. 687 (2008). Jenny R. Yampolsky, Wanted Posters on the Internet: United States v. Carmichael and New Criminal Defense Tools to Level the Playing Field, 32 New Eng. J. on Crim. & Civ. Confinement 279, 279-80 (2006).

The Intersection Between Social Networking and Litigation Kathleen Elliot Vinson, The Blurred Boundaries of Social Networking in the Legal Field: Just “Face” It, 41 U. Mem. L. Rev. 355 (2010).

A Picture is Worth 999 Words Patricia Baggett, Understanding Visual and Verbal Messages, in Knowledge Acquisition from Text and Pictures 101, 110 (Heinz Mandl & Joel R. Levin, eds., 1989). Rodney Jew & Martin Q. Peterson, Envisioning persuasion: Painting the picture for the jury. Trial, Oct. 1995, available at http://www.thefreelibrary.com/ Envisioning+persuasion%3A+painting+the+picture+for+the+jury.-a017431876.

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

Stewart Cheifet, an assistant professor at the Donald W. Reynolds School of Journalism at the University of Nevada, Reno, pioneered the field of technology journalism with the award-winning public television series “Computer Chronicles.” He also anchored “Net Café,” 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 media and technology, and CEO of WITF, a diversified broadcasting and media 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 Teacher of the Year. He previously worked for newspapers and as a national correspondent for Lafferty Publications, a Dublin-based news wire service for financial publications. Toni Locy is 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 nation’s biggest and best news organizations, specializing in the coverage of federal, state, and local law enforcement, the federal trial and appellate courts, and the U.S. Supreme Court. She is 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. Boyd School of Law, University of Nevada, Las Vegas. She clerked for the Honorable Joseph T. Sneed on the United States Court of Appeals for the Ninth Circuit and then practiced law (primarily bankruptcy law) with Morrison & Foerster in San Francisco. She started her academic career at the Ohio State University College of Law, then became Dean and Professor of Law at the University of Nebraska College of Law. She then served as Dean and Professor of Law at the University of Houston Law Center. Among her published works are Enron and Other Corporate Fiascos: The Corporate Scandal Reader 2d, and the Law School Survival Manual: From LSAT to Bar Exam.

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Board of Editors (continued) Rick Rodriguez,â&#x20AC;&#x201A; the former executive editor and senior vice president of The Sacramento Bee, joined the Walter Cronkite School at Arizona State University as the Carnegie professor, Southwest Borderlands Initiative, in March 2008. He was previously managing editor of the Bee, where he also worked as an assistant managing editor, recruiter, columnist, projects editor, editorial writer, deputy Capitol bureau chief, and reporter during a 25-year career at the newspaper. He also was a reporter at the Fresno Bee and the Salinas Californian, and was the first Latino to serve as president of the American Society of Newspaper Editors. Christina Wellsâ&#x20AC;&#x201A; 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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donald w. reynolds national center for

COURTS&MEDIA

A research and policy center of the Donald W. Reynolds School of Journalism, University of Nevada, Reno, affiliated with The National Judicial College