Constitution Check: Can reporters be barred from using social media during a criminal trial?

Constitution Check: Fact-checking the newsIn a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: judges’ power to bar news reporters and spectators from tweeting or texting during a criminal trial.

The statement at issue:

“Tweeting takes away from the dignity of a courtroom. The judge doesn’t want the trial to turn into a circus.”

–Irv Miller, media liaison for Cook County, Ill., Judge Charles Burns, explaining to the Associated Press on April 16 why the judge has banned reporters and others attending a current murder trial from communicating from the courtroom via Twitter or other social media. The trial has attracted heavy publicity because it involves charges against a man for allegedly killing three members of the family of popular singer and actress Jennifer Hudson.

We checked the Constitution, and…

As long ago as 1947, the Supreme Court said that “what transpires in the courtroom is public property,” and it has also said that judges should not “place any direct limitations on the freedom traditionally exercised by the news media” during a public trial. But the Court occasionally has overturned criminal convictions in high-profile cases where the media’s behavior during the trial was so intrusive and boorish that a fair trial was deemed to be impossible.

Between the extremes of a hands-off attitude and assigning blame for destroying courtroom decorum, trial judges have very wide discretion to decide how to run their courtrooms. That includes the authority to control the conduct of the media and, of course, other spectators attending a trial.

The higher the media’s interest in a case, the more likely it is that a judge will use that authority to lay down specific rules to maintain calmness and solemnity. Often, judges will try to work out such rules in advance in cooperation with the media. But, sometimes, as in the case of Chicago’s Judge Burns, the judge will adopt a restriction that the media finds too tight.

There apparently have been a rising number of disputes in courts around the country over bans on using social media during criminal trials. Reporters these days cover trials with more than pads and pencils, and would like–where allowed to do so–to take various hand-held electronic devices into the courtroom to assist them.

In the past, of course, reporters who felt an urgent need to communicate some development during a trial would have to leave the courtroom, and go to a telephone. In the Digital Age, that is very yesterday. Going online instantly is a new mode of reporting the news, and it can be done from almost any location where Internet access is available.

If there is a sudden development in court–a witness’s damning statement from the stand, the offering of a dramatic new piece of evidence, a crucial ruling by the judge, an outburst from a spectator, a verdict–a news reporter would want to convey that instantly. Indeed, the demands of the ever-more-immediate news cycle can hardly be postponed until a reporter finds a more convenient time to report.

Is there something about this digital process that is more potentially disruptive than reporters taking notes or courtroom artists making sketches on a pad? If there is any noise from clicking–and, on most devices, there may not be any really noticeable sound–it can hardly be considered a threat to serenity. In today’s culture, it is commonplace.

But the very fevered nature of the demand for news immediacy might well be a negative factor. It is quite possible that what the reporter will want to send immediately will be a more sensational piece of news, and it is also quite possible that it would be conveyed out of context. Allowing that to happen may skew the public understanding of the trial process.

That, however, cannot be a legal basis for restricting courtroom use of digital devices, because it smacks of editorial control by a government official, and the First Amendment generally forbids that.

So, if there is going to be a judicial order against tweeting or texting during a trial, it would have to depend upon a more neutral justification–some objective reason to curb this new mode of communicating. It does not appear that judges or the media have given that a lot of thought. This may be a development that suggests, to both the media and the bench, to proceed with caution.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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