Charles D. "Chuck" Tobin is a Partner in our Washington, D.C. office
The federal courts, long hostile to most forms of electronic journalism, are showing signs of accepting increased coverage by social and broadcast media. But messages from the courts remain mixed.
The U.S. Court of Appeals for the Ninth Circuit, through Chief Judge Alex Kozinski, recently announced an experimental program that will permit increased video coverage of civil cases. The program will apply only to non-jury proceedings. It also will not apply to criminal cases, where the Federal Rules of Criminal Procedure flatly prohibit photography in and broadcasting from the courtroom.
Still, the Ninth Circuit's experiment in civil cases reflects the court's acknowledgement, according to its press release, that electronic coverage "will lead to a better public understanding of our judicial processes and enhanced confidence in the rule of law." Under the experimental policy, the chief judge in each of the trial courts within the Ninth Circuit will determine the first proceedings in which video cameras may be present.
A federal trial judge in Roanoke, Virginia, took an even bolder step in December 2009, permitting a newspaper reporter to blog from inside the courtroom during the trial of a neo-Nazi. Western District of Virginia Judge James C. Turk permitted a reporter for the Roanoke Times newspaper to use a laptop and cellphone to email coverage to the newspaper's newsroom during the eight-day trial of William White, who was convicted at the end of trial on four of seven counts of making racist threats over the Internet and by telephone. The reporter's updates to the newsroom were posted on a special website set up by the newspaper and on Twitter.
The Virginia judge's progressive decision is in stark contrast with another federal judge's ruling just a month earlier. In November 2009, Middle District of Georgia Judge Clay D. Land denied a request from the Columbus Ledger-Enquirer to use his BlackBerry or cellphone to tweet from a high-profile criminal trial. The defendant in that case, a lawyer later acquitted on drug and money-laundering charges, had objected to the request, citing the federal criminal rule banning broadcast media from the courtroom.
The Georgia judge, consulting a dictionary definition, broadly held that the word "broadcast" in the rule bans all "contemporaneous transmission of electronic messages from the courtroom describing the trial proceedings, and the dissemination of those messages in a manner such that they are widely and instantaneously accessible to the general public." The court went on to hold that the criminal rule did not violate the First Amendment, as "the press will be able to attend, listen and report on the proceedings."
Most state courts allow some form of electronic coverage – some by a presumption permitting coverage, others requiring special permission from the court. The federal court system, especially with the encouragement of the influential Ninth Circuit Chief Judge Kozinski, may be showing signs of following suit.
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