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New rule could end tweets from trials statewide: Policy would bar electronic devices in courthouses [The Baltimore Sun]
[February 22, 2010]

New rule could end tweets from trials statewide: Policy would bar electronic devices in courthouses [The Baltimore Sun]

(Baltimore Sun (MD) Via Acquire Media NewsEdge) Feb. 22--A judiciary rules committee plans to adopt a statewide policy next month that would likely prohibit people from taking communications devices -- including cell phones and computers -- into Maryland courthouses.

The move raises issues of inconvenience for the public and access for journalists, who use their handhelds to post information to blogs and social media sites such as Twitter from courthouse hallways, not to mention conduct interviews and call their editors.

"By shutting this down, you're really shutting down information," said Ron Sylvester, a Wichita (Kansas) Eagle reporter who has spent the past two years live-Tweeting trials. At the end of the day, he could have 200 Twitter posts filed -- three times the information he will publish in the Kansas paper.

A Baltimore judge last month banned posts to such sites from the Circuit Court, as Mayor Sheila Dixon's much-Tweeted corruption case wrapped up. And though the rule targeted media, it affected everyone. This new ban would be much wider.

Proponents say it could keep witnesses safer (particularly in Baltimore, where visitors have photographed so-called "snitches" with cell phone cameras) and minimize some disruptions, such as the cell phone ring that always seems to come mid-trial. But opponents say such restrictions are inconvenient and unrealistic.

Some 4.6 billion people -- most of the planet's population -- regularly carry some kind of cell phone.And people have become accustomed to accessing information in real time from online media, rather than waiting for regularly scheduled broadcasts or newspaper deliveries.

"The idea of public trials goes way back ... to English common law, where they used to have trials in the public square," Sylvester said. "Twitter now has broadened your public square to the rest of the world." Most individual courts make their own rules when it comes to electronic media. The policies are put in place piecemeal, and they vary widely, often according to the technological sophistication of the rule makers.

"There's a great potential to confuse the public," said Gene Policinski, executive director of the First Amendment Center in Tennessee.

A federal court in New York's Southern District, for example, recently added laptops to its list of banned devices, though attorneys can take them in with a court order. But a Boulder, Colo., federal judge last year allowed blogging and tweeting from her courtroom during a high-profile child abuse trial. And a Boston U.S. District Court judge was willing to Webcast a trial in April, though an appeals court vetoed the plan.

Meanwhile, in Howard County, state courts won't even let visitors have cell phones.

"The courts are going to have to decide at some point ultimately is the system going to be open, and are we past the era when this would be an intrusive" thing, Policinski said. "This is really all about balancing the right of the public to know what's going on in the courts versus the right of the public to have a fair trial. Those ought to be the considerations." Florida is considering a statewide policy, as is Maryland, where the Standing Committee on Rules of Practice and Procedure also looked at a blanket policy in October, but members voted against it 11 to 5. The issue was resurrected last month, however, after Robert M. Bell, chief judge of the Maryland Court of Special Appeals, requested it.

In a Jan. 15 memo to rules committee chairman Judge Alan M. Wilner, Bell said he "inquired of the Court whether it was its preferences that there be a state-wide rule on cell phones, applicable to all Maryland courts. The response was 'yes,' a majority of the court concurring." And with that, the issue was again on the table. It's listed on the agenda for the March 5 meeting of the rules committee.

Bell did not respond to an interview request, but he has previously noted the educational role of the media. "Most of our citizens do not see court proceedings firsthand," he acknowledged in the Journalists Guide to Maryland's Legal System. "They get most of their information about their courts and the justice system from the media." Bell made no recommendations about the substance of a statewide electronics-device policy in his memo, though the previous proposal recommended a ban. "A person may not bring any electronic device into any court facility," it reads. That's pretty much what the new proposal says, too, Wilner said in an interview.

Judges, court employees, jurors, attorneys, certain government agents, law enforcement officers and "other persons" with written permission could be exempted, however. And while most members of the public wouldn't make that cut, media could possibly fall into the "other" category or be specially credentialed to carry electronic devices.

"I don't have any problem with your bringing them in personally, as long as you have proper ID," Wilner said. "You don't want some blogger saying, 'I'm part of the press' when you don't know who they are. That's one of the issues that the committee, the court will have to work through." But whether journalists could actually use the phones is another matter that could be left up to individual administrative judges.

The focus on the public's use of electronic devices in courthouses is relatively new. Typically, jurors have been the concern.

The Maryland Court of Special Appeals overturned at least two convictions last year after jurors used the Internet to look up the meaning of scientific terms used in court. And, recognizing the increase in social media site usage, judges have begun expressly banning blogging, tweeting and Facebook use in their instructions to jurors.

"You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the Internet service, or any text or instant-messaging service; or any Internet chat room, blog, or Website such as Facebook, MySpace, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until [the judge accepts] your verdict," reads a recommendation sent to all federal judges last month.

Dixon's trial was also marked, and some say marred, by online social networking.

It was the first Baltimore case covered en masse on social media sites by journalists, who posted regular tweets from courthouse hallways, and even the courtrooms, where phones aren't allowed.

Five jurors became Facebook friends during the trial and some posted generic public messages about it, leading Dixon's attorneys to call for a new trial. They abandoned the effort after a plea deal was struck Jan. 6 -- the day after Baltimore City Circuit Judge Marcella A. Holland banned posting to social sites from the courthouse.

The order was roundly ignored, judging from the myriad Tweets about the plea deal.

Holland's addendum updates a 2006 order banning communication devices and cameras from courtrooms. It was first amended in 2008 to preclude the use of audio recording devices in courtrooms, jury rooms and "adjacent hallway[s]." The Jan. 5 addendum bans posting to social media sites, even in the courthouse hallways, equating it with news broadcasting, which is also banned.

"It has come to the Court's attention that new technology is available through such mediums as Twitter, Facebook, Linked In, and the like, to provide up to the minute details of any action or occurrence, and that the news media now uses these types of systems regularly to report on news in our City," the order now reads, banning the "use of such systems." Penalties include fines and contempt of court charges; the devices might also be confiscated.

Some media and legal professionals have complained that singling out social media sites is unconstitutional and that publishing via phone is not "broadcasting." It's no different from calling the office to dictate a story to someone else who posts it, they say, it's just more efficient.

Through an e-mail message, sent by an assistant, Holland said she did not have time to e-mail or discuss the addendum or proposed statewide policy. "Like all other jurisdictions, we are awaiting the Rules Committee's discussion and decision on electronic devices," the message said.

During the committee's October meeting, members raised many of the same issues they're expected to address next month, including who should be able to take cell phones into courthouses, where they can be used and how those rules could be enforced.

Other issues under consideration when it comes to a potential ban is how people without cars will adapt -- where will they leave their phones? -- and how to notify the public. Members also discussed whether courthouses were equipped to store the devices for people, but in a day, that could mean more than a thousand phones being handled.

"Of course, the vote was not to do anything, so they never really got too deeply into what the policy ought to be, but now they're going to have to do that, at least to the point of getting something to the Court of Appeals," said Wilner, the rules committee chairman.

He said he expects the committee to pass a policy at the March meeting.

"I've always thought there ought to be a uniform statewide policy on this, whatever it is, that you shouldn't be able to bring it in to one courthouse and not another," Wilner said, pointing to Baltimore County, where phones are allowed inside Catonsville District Court, but not Towson. "To leave it, you know, to each court to decide for itself what it wants to do, to me, just doesn't make any sense." There's no easy answer, he said. But come March 5, there will be some kind of decision.

"The notion of saying 'let's leave it the way it is' is now off the table," Wilner said. "The court wants a rule." To see more of The Baltimore Sun, or to subscribe to the newspaper, go to

Copyright (c) 2010, The Baltimore Sun Distributed by McClatchy-Tribune Information Services.

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