Twittering in Federal Court

Some federal judges are opening the door to the press reporting directly from their courtrooms in the interest of bringing more transparency to the judicial process.

Judge Tom Marten of the U.S. District Court for the District of Kansas in March allowed a reporter for the Wichita Eagle to send Twitter messages directly from the courtroom where a trial of gang members was under way. Judge Mark Bennett of the U.S. District Court for the Northern District of Iowa also this year allowed blogging from his courtroom in the trial of a landlord who pleaded guilty to fraud, but went to trial on income tax violations.

Many federal court judges have barred the use of electronic devices in their courtrooms, prohibiting everything from laptops to handheld devices that can send electronic messages, often in the interest of insulating jurors from media coverage to ensure a fair trial for defendants. Judges have also been concerned about the potential disruption to their courtroom proceedings. Still, the U.S. Judicial Conference has no formal policy on the matter, leaving such questions up to individual judges.

“We're by choice the most mysterious and least transparent branch of government, and I think we have an obligation to be more transparent,” Bennett said.

While there has been press blogging from some other high-profile federal trials, including that of I. Lewis “Scooter” Libby, former chief of staff to former Vice President Dick Cheney, in Washington, and newspaper publisher Conrad Black in Chicago, those dispatches were not made directly from the courtrooms, and such coverage would have been prohibited at those courts. Variations among federal courts on such rules have existed for years with some federal courts, such as the U.S. District Court for the Eastern District of Arkansas, allowing reporters to use tape recorders in courtrooms (the tape recorders are for the reporters' own use, not for broadcast).

Marten and Bennett both allowed the coverage after the individual reporters approached them and asked about doing it. Marten said he has known Ron Sylvester, the Wichita Eagle reporter Twittering from his courtroom, for years and respects his reporting, but would likely extend the same privilege to other reporters too. The judge said he was quickly able to overcome one defense lawyer's concerns that jurors might breach court rules to view the reporting and be inappropriately swayed.

“You either trust jurors to honor the admonishment or not,” Marten said. “This was pretty much a non-issue. I don't see any difference between this and a journalist sitting in there taking notes.”

Sylvester has also been allowed to send such messages during coverage of cases in Kansas state court trials. State courts also have a patchwork of policies with some, including Illinois, barring communication such as Twitter from a courtroom, and others, including New York, leaving such decisions up to individual judges.

When one New York judge came to David Bookstaver, communications director for that state court system, to voice a concern about reporters coming and going from his courtroom during the Christie Brinkley divorce trial last year, Bookstaver told him the disruption could be eliminated by allowing the use of BlackBerry devices. The judge took his advice.

“It goes to a judge controlling his or her courtroom,” Bookstaver says, noting that he has reminded judges and court officers alike that the New York system doesn't bar the devices. “I think this is a matter of changing a culture, not only with the judges but with the court officers.”

The use of such technology in the courtroom will become more accepted as a younger generation of judges that is less affected by media attention and more technologically savvy takes their places on the bench, says Judge Marten, who is 57. Bennett, the Iowa federal judge, is 58.

“We are moving to a time when there is more rather than less access to the courtroom by what judges view as non-intrusive elements of the press or public,” says First Amendment specialist Floyd Abrams, a partner at New York-based Cahill, Gordon & Reindel.

The reason some federal judges fear allowing electronic messaging from their courtrooms is that they believe it will lead to other types of coverage they consider more intrusive, such as TVs in the courtrooms, Abrams says. “There are a number of judges afraid of the slippery slope.”

Some federal judges are opening the door to the press reporting directly from their courtrooms in the interest of bringing more transparency to the judicial process.

Judge Tom Marten of the U.S. District Court for the District of Kansas in March allowed a reporter for the Wichita Eagle to send Twitter messages directly from the courtroom where a trial of gang members was under way. Judge Mark Bennett of the U.S. District Court for the Northern District of Iowa also this year allowed blogging from his courtroom in the trial of a landlord who pleaded guilty to fraud, but went to trial on income tax violations.

Many federal court judges have barred the use of electronic devices in their courtrooms, prohibiting everything from laptops to handheld devices that can send electronic messages, often in the interest of insulating jurors from media coverage to ensure a fair trial for defendants. Judges have also been concerned about the potential disruption to their courtroom proceedings. Still, the U.S. Judicial Conference has no formal policy on the matter, leaving such questions up to individual judges.

“We're by choice the most mysterious and least transparent branch of government, and I think we have an obligation to be more transparent,” Bennett said.

While there has been press blogging from some other high-profile federal trials, including that of I. Lewis “Scooter” Libby, former chief of staff to former Vice President Dick Cheney, in Washington, and newspaper publisher Conrad Black in Chicago, those dispatches were not made directly from the courtrooms, and such coverage would have been prohibited at those courts. Variations among federal courts on such rules have existed for years with some federal courts, such as the U.S. District Court for the Eastern District of Arkansas, allowing reporters to use tape recorders in courtrooms (the tape recorders are for the reporters' own use, not for broadcast).

Marten and Bennett both allowed the coverage after the individual reporters approached them and asked about doing it. Marten said he has known Ron Sylvester, the Wichita Eagle reporter Twittering from his courtroom, for years and respects his reporting, but would likely extend the same privilege to other reporters too. The judge said he was quickly able to overcome one defense lawyer's concerns that jurors might breach court rules to view the reporting and be inappropriately swayed.

“You either trust jurors to honor the admonishment or not,” Marten said. “This was pretty much a non-issue. I don't see any difference between this and a journalist sitting in there taking notes.”

Sylvester has also been allowed to send such messages during coverage of cases in Kansas state court trials. State courts also have a patchwork of policies with some, including Illinois, barring communication such as Twitter from a courtroom, and others, including New York, leaving such decisions up to individual judges.

When one New York judge came to David Bookstaver, communications director for that state court system, to voice a concern about reporters coming and going from his courtroom during the Christie Brinkley divorce trial last year, Bookstaver told him the disruption could be eliminated by allowing the use of BlackBerry devices. The judge took his advice.

“It goes to a judge controlling his or her courtroom,” Bookstaver says, noting that he has reminded judges and court officers alike that the New York system doesn't bar the devices. “I think this is a matter of changing a culture, not only with the judges but with the court officers.”

The use of such technology in the courtroom will become more accepted as a younger generation of judges that is less affected by media attention and more technologically savvy takes their places on the bench, says Judge Marten, who is 57. Bennett, the Iowa federal judge, is 58.

“We are moving to a time when there is more rather than less access to the courtroom by what judges view as non-intrusive elements of the press or public,” says First Amendment specialist Floyd Abrams, a partner at New York-based Cahill, Gordon & Reindel.

The reason some federal judges fear allowing electronic messaging from their courtrooms is that they believe it will lead to other types of coverage they consider more intrusive, such as TVs in the courtrooms, Abrams says. “There are a number of judges afraid of the slippery slope.”