Twitter is often described as a microblogging platform. Is Twitter, therefore, distinguishable from conventional blogs when it comes to reporters’ use of the service from the courtroom? A Massachusetts judge recently thought so.

Judge Peter Lauriat initially banned the use of Twitter from inside the courthouse during the first-degree murder trial of Nathaniel Fujita, a trial that garnered high-profile media attention. A jury convicted Fujita of first-degree murder on March 7.  

The Twitter ban arose from Massachusetts Supreme Judicial Court Rule 1:19, which governs electronic access to the courts. The rule permits the use of electronic devices, subject to restrictions. The language on which Judge Lauriat appeared to rely came from Section 2(b):

“A judge may impose other limitations necessary to protect the right of any party to a fair trial or the safety and well-being of any party, witness or juror, or to avoid unduly distracting participants or detracting from the dignity and decorum of the proceedings.”

Members of the Boston media challenged the judge’s Twitter ban, seeking permission to tweet from inside the courtroom during the trial, and a hearing ensued. A transcript of that hearing can be found here. Judge Lauriat seemed skeptical of Twitter, overall. At least three times, the judge asked attorneys appearing on behalf of the Boston media what kind of information could be conveyed in 140-characters-or-less, the space limitation Twitter imposes on each tweet. Nevertheless, the judge relaxed the restrictions on his ban to permit reporters to tweet from the dedicated media room. The ban on tweeting from inside the courtroom itself, however, remained.

Curiously, Judge Lauriat always allowed reporters to “liveblog” from the courtroom to their respective media websites. In fact, the judge allowed the media wide access, as the transcript from the hearing indicates:  

“So in my discretion I have tried to allow as broad an access as possible to the news media—and just to summarize for the record I have allowed two T.V. cameras in the courtroom at all times with pool coverage; and access by all other media outlets through that pool coverage. I have allowed a still camera in the courtroom at all times. I have allowed those with proper media credentials to take notes and to blog from the courtroom. And I have allowed full and complete public access to the courtroom during the trial. The doors to the courtroom have never been locked, never been closed. No one has been excluded from the courtroom during any portion of the trial, and that would be the Court’s plan going forward.”

The access Judge Lauriat offered is not surprising. Massachusetts has fairly open access to the media (scroll down), allowing cameras, audio or video webcasts, and media guides. Compared with, say, Alabama, which only partially allows cameras, Massachusetts is among the more media-friendly states.

Nevertheless, a judge has discretion to control the manner of proceedings in his or her own courtroom, and Judge Lauriat’s ruling was not unprecedented. This was not the first Twitter ban in a courtroom. The Huffington Post discussed last year [link to: ] a very similar ban in a Chicago court:

“The judge in the Illinois case fears that feverish tweeting on smartphones could distract jurors and witnesses when testimony begins April 23…

 

‘Tweeting takes away from the dignity of a courtroom,’ said Irv Miller, media liaison for Cook County Judge Charles Burns. ‘The judge doesn’t want the trial to turn into a circus.’”

But more commonly, Twitter bans have targeted the service’s use by jurors. Cases like this one, this one, and this one indicate that the use of Twitter by jurors is a serious problem, enough to inspire legislation like this. But in the Fujita trial, with the judge opening the proverbial flood gates of access to the media—especially by allowing live blogging from inside the courtroom—the decision to prohibit in-courtroom tweets is strange. Functionally, there would be no difference between a reporter live blogging during the trial and that same reporter tweeting. Is this just another example of the judiciary’s failure to completely understand technology? The Wicked Local Blog questioned the effectiveness of the judge’s ruling, and the National Constitution Center suggests social media prohibitions inside courtrooms can only be justified for neutral reasons.

Perhaps intimating that the issue was an unsettled one in the law, Judge Lauriat suggested to the members of the media challenging his ruling to seek clarification from the higher courts:  

“And I have no objection, I think it’s fair for the media, if not satisfied with the Court’s handling of the media, to take the matter to the higher authority, either the Appeals Court or the Supreme Judicial Court, and get some kind of determination from them if they are willing to make a determination that will guide us all.”

But as the Digital Media Law Project reported, the media did not appeal—the docket did not reflect any further action on the Twitter question. The decision not to appeal was probably wise, as Judge Lauriat’s ruling was most likely constitutional. Reporters have a qualified right of access to most judicial proceedings, especially criminal trials, but as the First Amendment Center even notes, the right to broadcast is a different story:

Q: Do television networks have access to courtroom trials?

 

A: Television coverage is not allowed in federal courts. The state courts have been more receptive to allowing television coverage of trials, but none has recognized a right to broadcast a trial. The courts most receptive to cameras in the courtroom allow judges broad discretion in deciding whether to permit televised coverage. (emphasis added)

Some courts have addressed the issue of broadcasting as it relates to Twitter, and they reached adverse conclusions. In State v. Komisarjevsky, a case from Connecticut, a court rule prohibited the broadcasting, televising, recording or photographing of the trial because the defendant was charged with sexual assault. The defendant moved to prohibit the use of electronic devices during all court proceedings, and the motion specifically targeted Twitter, claiming it was a form of broadcasting and therefore prohibited under the court’s rule. The judge ruled that the use of Twitter was not considered broadcasting, and therefore, its use was allowed.

Conversely, the U.S. District Court for the Middle District of Georgia found that Twitter was a form of broadcasting. In United States v. Shelnutt, the court denied a reporter’s request to tweet, based upon Rule 53 of the Federal Rules of Criminal Procedure. And internationally, since 2011 the Supreme Court of the United Kingdom has allowed tweeting from inside its courtroom, subject to some restrictions.

Reporters, citizen journalists, or even interested members of the public face a tough road if they want to challenge rulings similar to Judge Lauriat’s. Unless those individuals’ physical access to court proceedings is jeopardized, these rulings do not raise compelling constitutional concerns. Moreover, social media policies will remain a patchwork system because of the broad discretion afforded to state judges. But as Twitter’s ubiquity continues, and the insatiable demand for instantaneously reported information grows, more and more state judges may allow its use from inside courtrooms.