Allow Social Media in Every Courtroom… NOW!

“I watched the whole thing unfold on Twitter. The information came in faster, more clearly, and much more accurately than the reporting on the news.”

– A friend discussing using Twitter to learn more about the Boston Bombing.

With fewer and fewer trained journalists reporting on local, regional, and national events – a 30% decrease since 2000, according to the Pew Research Center, our media discourse has suffered greatly. Local newspapers, who used to provide most of the reporting on local issues, are closing up shop or cutting their reporting resources drastically. Courtrooms, with the exception of celebrity-style show trials, have become all but ignored by the media.

The dearth of coverage by the media has led to ignorance of how the law truly works. Ignorance has consequences.

When people don’t know how the law works, the voices of the pundits and politicians who seek to limit general access to the courthouse sound more reasonable. By holding up a few cases as examples of a litigation system run amok, they cry out for tort reform, increased application of arbitration, and new discovery rules that disproportionately favor large companies. An uninformed electorate stands willing to accede. (Want an example? Go out and ask your non-lawyer friends about the McDonald’s “hot coffee” case, and see how many of them even have the facts straight!)

The cure to this courthouse apathy is daylight. The best way to provide daylight is to allow social media in every courtroom. Now.

Recently, Master-of-the-Blawgosphere Kevin O’Keefe wrote a fantastic article about a recent case in Providence, Rhode Island. Kate Mulvane of the Providence Journal asked Federal District Court Judge William Smith for permission to use Twitter and Live Blogging to report on a widely-followed criminal sentencing hearing. Judge Smith, definitely one of the more tech-savvy and social-media-literate judges you’ll find, decided to allow it (although only for credentialed journalists). Judge Smith’s permission was crucial, as laptops and cell phones were not otherwise allowed in the courtroom.

Discussing the matter, Judge Smith was pleasantly surprised with the results:

“I thought it went great, actually,” Smith said. “I was surprised there were so many tweets. [Channel 10 (WJAR) reporter] Jim Taricani’s thumbs must have been falling off.” He said the tweeting was not distracting in court, and “I heard from the public saying they had it on their iPhones and enjoyed following it.”

Judge Smith was so encouraged that allowing journalists to live-report via social media is now the rule in his courtroom:

“Each judge has the responsibility to administer his or her own courtroom, but I was comfortable enough with the way it went that I am planning to make it the regular, default policy to allow credentialed journalists to bring phones, laptops or tablets to communicate via Twitter or blogs or other online social media.”

Allowing the use of social media in courtrooms may not be a huge step forward to the general public. However, for judges and lawyers, it is actually a pretty big leap. More importantly, as far as improving media coverage of the courtroom, it’s the near-equivalent of a Trans-Atlantic flight.

It’s no longer effective for small blurbs about what happens in the courtroom to appear in a local newspaper or even on the local nightly news. Information about the courts must get to the general public in the form and via the tools they use to regularly get news.

As lawyers, we frequently come up with reasons not to do something. It’s part of our training as lawyers. We’re great at coming up with worst-case scenarios, and we’re programmed from 1L year to look out for potential legal land mines.

In the case of live-reporting social media, the reasons one could think of to postpone open access are numerous: Distractions in the courtroom; information published before it’s completely discussed; hurried reporting could be inaccurate; witnesses excluded from the courtroom could learn of testimony they’re not supposed to hear.

However, none of these reasons truly justifies excluding live reporting, and many of them are easily addressed by provisions that are already in regular use. Judges already have authority to exercise reasonable control over potential distractions in the courtroom, and existing policies regarding media coverage are easily applied to social media. In Michigan, live blogging was stopped recently due to potential for excluded witnesses to improperly learn about other testimony, but its application was limited to that trial, in those specified circumstances.

It’s routine for courts to limit reporting on specific matters, but they’re only allowed to do it when the situation requires exclusion. It’s the exception to exclude, not the rule. The same should apply to social media.

While Kevin O’Keefe has called for allowing even non-journalists to live-report via social media, I believe that it is reasonable to limit the use of live-reporting to credentialed journalists. For now, at least. By so regulating, courts can best ensure that any social media use causes as little a distraction as possible. Moreover, social media should be allowed in more than just local courtrooms. Let’s stop calling on the Supreme Court to televise their hearings. Instead, we should call on them to open their hearings to live-reporting (and they should let SCOTUSblog in, for Pete’s sake!).

For those concerned about the quality of reporting that would be done by live-reporting on social media, recall the coverage of the Boston Bombing. CNN couldn’t stop getting the story wrong, but my friend who was following the events on Twitter, in real time, was getting accurate information well before the major news networks.

Democracy requires a well-informed electorate. Before we decide that the American public can’t handle or understand what happens in a courtroom, I think they should be given a true opportunity to try. Live reporting by social media will give the general public that chance, providing real time impressions of reporters, made as they occur, to courtroom events as they unfold.

What information the public receives about what happens in the courtroom shouldn’t be up to an editor who needs to clear room for ad space or a producer looking for better ratings. Live reporting via social media will give unprecedented access to the legal process to the general public. A little daylight goes a long way.