Notes From the E-gallery: Live texts, tweets and postings by courtroom observers present new challenges

Courts frequently grapple with questions raised by the use of social media in the legal process. From the admissibility of social media to limitations on its use by jurors, courts are continuing to develop new tools and best practices to ensure the outcome of a case is not impacted by social media sites.

While the issues raised by new social media technologies have primarily concerned those actually involved in a trial (i.e., the parties, their counsel, and members of the jury), that is beginning to change. Outside observers and news reporters are utilizing social media to report on trial happenings, sometimes in real-time. During a recent murder trial, a reporter for the London (Ontario, Canada) Free Press used Twitter to provide hundreds of updates as events unfolded. Similarly, in the media firestorm surrounding the Casey Anthony murder trial in Florida, at least one news outlet has assigned a reporter whose sole job is to blog from the gallery throughout the trial. This sort of real-time, play by play coverage of high profile legal proceedings poses new issues for courts, and may pose particular concerns in those jurisdictions where cameras are not permitted in the courtroom.

Policing the tweets, texts and blog posts of courtroom observers may test the limits of judicial power. By way of example, a courtroom observer is not subject to lengthy pre-trial screening and instruction like jurors, does not fall within ethics rules like attorneys, and is not subject to sanctions like a party to a lawsuit. Assuming that tweeting and texting from a courtroom is prohibited (it is not clear that even well written courtroom rules would preclude the occasional tweet, and, as noted, at least some courts are readily allowing members of the media to openly tweet and blog), a judge has limited powers to deal with the misbehaving courtroom observer. In all likelihood, the tweeting observer would be removed from the courtroom, but little else would be done. It is especially unlikely that any sort of contempt proceeding would be initiated. Perhaps most importantly, courts can do nothing to scrub Twitter, Facebook or other social media site of the content posted from the back of the courtroom. Courts would have to rely upon its instructions to the jury and trust that the jurors are not viewing media coverage or social media sites discussing their case.

For the moment, the legal system’s primary focus is on ensuring that parties, counsel and jurors are not utilizing social media to post about a trial and/or educate themselves about a case. Increasing use of social media, especially Twitter, as a means of reporting about a legal proceeding may lead to the development of rules regarding observer use of social media and, perhaps, efforts to monitor social media coverage of legal proceedings, although it appears that in today’s information overload environment, such regulation may be unwelcome and ultimately impossible.