The United States is well known for courtroom broadcasts, usually of criminal cases. The trials of famed former football player O. J. Simpson, the Menendez brothers, and mother-cum-public-hate-figure Casey Anthony captivated audiences in America and beyond. In fact, the use of traditional media in courtrooms for the purpose of publication or broadcast of court proceedings has actually been the subject of much debate among judges, attorneys, academics, and media entities. The advent of new media modalities such as Twitter and Facebook and their increasing use in courts and by court participants raises additional questions, many of which are ethical in nature.
Traditional Media in U.S. Courts
Traditional media, used here to refer to television, radio, and photographs taken for use in newspapers, has had a thorny relationship with the judicial system. The debate as to whether their use in the courtroom is beneficial or ethical has often been framed in the context of constitutional rights. In Estes v. Texas (1965) a Texas trial court permitted photographic, television, and radio coverage of all of a pretrial hearing and part of the trial itself. The media presence and activities were chaotic and almost certainly influenced the judge to eventually place limitations on what could be broadcast, in addition to setting rules for the physical location of both cameras and media personnel. Nevertheless, the defendant, Billy Sol Estes, appealed on the basis that he was deprived of due process.
The U.S. Supreme Court held that the freedom of the press as protected by the First Amendment did not give the media an automatic right to record or broadcast in court, and found that cameras in the courtroom had infringed the defendant’s fundamental right to a fair trial as guaranteed by the due process clause of the Fourteenth Amendment.
In contrast, in Chandler v. Florida (1981) the U.S. Supreme Court held that the Constitution did not automatically give rise to a ban on the use of electronic media in courts and, as such, states were permitted to authorize electronic media use in their courts. At trial, the two defendants, Chandler and Granger, both Florida police officers, had objected to the camera recording at their trial; nevertheless, the judge authorized it. The defendants appealed on the ground that their trial was unfair. The Supreme Court stated that the burden was on the defendant to show that the presence of cameras had in fact prejudiced the proceedings, and as the defendants had not demonstrated “prejudice of constitutional dimensions” the use of camera recording at their trial could not be deemed to have rendered it unfair.
Subsequent to Chandler many states instituted pilot programs to test the impact of the use of traditional media in courtrooms. Currently all 50 states permit some form of electronic media use in trial and/or appellate courts. However, in almost all scenarios judges are afforded the discretion to restrict, and in many cases completely ban, such use in the interest of justice.
The U.S. Supreme Court
Although audio recordings and transcripts of oral arguments and opinions are publicly available, live electronic broadcast of U.S. Supreme Court proceedings has never been permitted. Despite the repeated introduction of congressional legislation toward this goal, most recently the proposed Cameras in Courtroom Act of 2011 and continued lobbying from media outlets and some academics, the Supreme Court’s decision to ban all forms of electronic media for broadcasting has not wavered.
New Media and Controversial Conduct
New media, also commonly referred to as social media, encompass Web sites such as Twitter and Facebook as well as the video, audio, photographic, text, and e-mail capabilities of smartphones, tablets, and laptop computers. There are numerous cases that demonstrate that the use of new media in the courtroom is posing a number of legal dilemmas. Further, new media also raise a number of ethical ramifications for the outcome of cases, the individuals involved, and public perception of the justice system.
While there are examples involving journalists, members of the public gallery, judges, and lawyers, the stories most frequently reported involve the use of Twitter or Facebook by active jurors. In Michigan, for example, juror Hadley Jons prematurely posted on Facebook that the defendant was guilty before the trial had concluded. Although Jons was subsequently removed from the jury, it could nevertheless be argued that the damage had already been done and that the defendant would be incapable of having a fair trial with the existing, or any newly constituted, jury.
The issue of judges and lawyers being “friends” on Facebook or the equivalent on other social media sites has also caused controversy. Judge B. Carlton Terry, Jr. was publicly reprimanded by the North Carolina Judicial Standards Commission for inappropriate ex parte communications on Facebook with a lawyer in an active case. This action has the potential to breach a number of ethical duties imposed by the professional codes of conduct, particularly the need to maintain both actual and perceived impartiality. However, is it ethical that the freedoms of speech and assembly of judges and lawyers as private citizens are restricted on account of their chosen profession? The judicial ethics committees of Florida, Massachusetts, and Oklahoma would answer in the affirmative. They are of the view that online friendships between judges and lawyers inherently give the impression that judges may be improperly influenced and thus breach judicial ethics. The states therefore oppose the practice of judges being “friends” on social media sites with any lawyer who may appear before them.
In contrast, the judicial ethics committees of Kentucky and New York have found such conduct acceptable. Ohio’s committee even went so far as to state that the online friendships of a judge may extend to lawyers who do appear before him or her. A balance needs to be struck between freedom of speech and the right of the defendant to a fair trial and due process. A national consensus does not appear to be immediately forthcoming given the divergent approaches taken by states. Nevertheless, the recognition of potential ethical issues is acknowledged by the fact that even those states with a liberal view toward judge-lawyer online social interaction advise the judiciary to conduct themselves with caution so as to avoid impinging the long-held ethical principles contained in judicial codes of conduct.
A recent trend is the use of social media postings as the basis for criminal trials or simply as evidence, as was the case in Dexter v. Dexter (2007) a custody case in which the Ohio Court of Appeals found that the trial court had not acted improperly by considering evidence from the MySpace profile of one of the parties. The question arises as to whether owners may reasonably expect their online social profiles to attract a certain degree of privacy. A more controversial development is the creation of fake online profiles by law enforcement officers to collect evidence. Some may argue that such action is questionable. Interestingly, a LexisNexis survey found that 83 percent of law enforcement personnel surveyed were of the view that using fake profiles for the purpose of investigation was ethical.
Arguments in Support
An often-cited reason in support of electronic media use in the courtroom is the fact that most trials are open to the public, thus, opening the court to electronic media simply provides a practical alternative to being physically present in the courtroom. Another practical reason given is that social media enable the public to engage directly with the judicial process in a faster and more real manner. It is also argued that the presence of new media in the courtroom makes the judicial system, an institution often clothed in mystery, more transparent.
Social media enables users to view posts, videos, and pictures and comment and discuss issues with other users. Supporters would argue that this creates the capacity to stimulate debate and educate the public about the workings of the court system. Additionally, the use of electronic media in courts is likely to increase the level of operational standards and accountability and encourage efficiency, which in turn strengthens public confidence in the court system.
Finally, many of the grounds against the use of electronic media are due to the complexities that arise with juries and witnesses. Supporters therefore argue that most of these reasons cease to exist in the context of higher courts, where there are no juries or witnesses.
Arguments in Opposition
One of the most common reasons given by opponents for excluding the use of electronic media in the courtroom is that it detracts from the dignity of the proceedings. A case in point is that of New York judge Matthew A. Sciarrino, Jr., who changed his Facebook status while on the bench, at a time when he should have been focused on the proceedings before him. Examples such as that lend weight to the view that permitting the use of electronic media during proceedings damages a court’s credibility and legitimacy. Opponents also argue that such use renders the justice system a form of entertainment enjoyed by the masses at the expense of the parties whose lives may be seriously affected by the proceedings.
With specific regard to cameras, opponents argue that rather than improving standards as suggested by supporters, cameras may actually lower them as court personnel may, consciously or unconsciously, put on a performance or feel pressure to act in accordance with public opinion, especially in states where judges are elected.
Another argument against the use of social media in courtrooms relates to the fact that they operate in real time; therefore their use during court proceedings may unnecessarily compromise the administration of justice and in some instances potentially subject a court participant to harassment or harm. These issues were all features in a Kansas murder case where a journalist for the Topeka Capital-Journal newspaper tweeted, against the direction of the judge, a picture of the courtroom, which exposed a juror. Additionally, new media provide an effortless way in which perpetrators can influence jurors or witnesses who have not yet testified. They may also publicize information that may later be removed from the court record but cannot be retracted from the Internet or messaging services. These and other circumstances may lead to a mistrial and/or retrial, which results in wasted time and money.
The Future
It is clear that courtroom use of electronic media, both traditional and new, raises legitimate ethical questions. However, technology will continue to evolve and so, too, must the rules which govern its use in the legal system in order to ensure that the benefits of a technologically advanced society do not negatively impact what should be the fair operation of the judicial system.
Bibliography:
- Cohn, Marjorie and David Dow. Cameras in the Courtroom: Television and the Pursuit of Justice. Lanham, MD: Rowman & Littlefield, 2002.
- Janoski-Haehlen, Emily M. “The Courts Are all a ‘Twitter’: The Implications of Social Media Use in the Courts.” Valparaiso University Law Review, v.46/1 (2011).
- Johnson, Jeffery J. “The Entertainment Value of a Trial: How Media Access to the Courtroom is Changing the American Judicial Process.” Villanova Sports & Entertainment Law Journal, v.10 (2003).
- S. Senate Committee on Judiciary. “Cameras in the Courtroom.” Serial No. J–109–50, November 9, 2005.
- Wilson, Aurora J. “Let’s Be Cautious Friends: The Ethical Implications of Social Networking for Members of the Judiciary.” Washington Journal of Law, Technology & Arts, v.3/3 (2012).
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