Twitter in the court

Our view: A ban on updating social media sites from anywhere in the Baltimore circuit courthouse goes too far in shielding court business from public view

February 15, 2010

During the November trial of then-Mayor Sheila Dixon, journalists and others watching the proceedings sent a constant stream of short updates to the Web site twitter.com and other social media platforms about every twist and turn of the case. Those updates bounced instantly around the Web from one circle of acquaintances to another as ordinary citizens added comments and debated one of the most important events in recent Baltimore civic life. When the jury finally delivered its verdict, the stream of tweets and re-tweets multiplied into the thousands within minutes. Everyone was interested, and everyone had something to say.

You might call that civic engagement. But the Baltimore Circuit Court called it unacceptable. The day after Ms. Dixon agreed to a plea that included her resignation from office, Marcella A. Holland, the administrative judge for Baltimore City, issued an order banning "the use of any device to transmit information on Twitter, Facebook, Linked In or any other current or future form of social networking from any of the courthouses within the Circuit Court for Baltimore City." The order is predicated on the assumption that posting to Twitter is effectively the same as having television cameras broadcast court proceedings, which is already banned throughout the state. That analogy is false, and it exposes a misunderstanding of social networking and of the reasons why the courts have been justified in placing limited restrictions on the media in the first place.

The starting point for any conversation about what restrictions judges may place on courtroom behavior must be that our criminal justice system is predicated on the notion of openness. It is crucial for the public to be able to witness the proceedings in every court case, from a lowly traffic ticket to the embezzlement charges against the mayor. Determining guilt or innocence is fundamentally an act of community; that is why panels of ordinary jurors, not judges, are typically given the task of rendering a verdict. For this reason, the presumption in any question of access to the court and to any information about the proceedings in court must be weighted in favor of openness.

Other values in our judicial system can conflict with the need for openness. We must maintain order in the court so that the accused is given a fair trial, security is maintained and jurors are influenced solely by the evidence presented to them and not by the reactions of the crowd. In Baltimore in particular, the need to protect witnesses is a pressing concern. It is worth considering whether a blanket, state-wide ban on cameras in the courtroom is necessary to maintain security and decorum or whether that matter is one that should be decided on a case-by-case basis. But it is easy to imagine circumstances that justify at least some limits on video broadcasts of trials.

Likewise, it is unclear whether the current blanket ban on the use of "cell phones, pagers, beepers, text messaging or any other communication device in any courtroom in the Circuit Court of Baltimore City" is necessary. Talking on a cell phone in the middle of a trial would clearly provide a distraction (though so would talking to someone else in the courtroom), and it's possible to imagine a situation in which excessive texting or BlackBerrying would disrupt the court, though judges could control such behavior the same way they handle other disturbances.

But this order extends the scope of the restrictions to the entire courthouse, and at that point, any justification for them ends. It is impossible to imagine a situation in which posting information on Twitter from the hallway would be in the least bit disruptive, or that forcing someone to walk outside the courthouse before tweeting would do anything to enhance security. The absurdity of the court's order is underscored by the impossibility of enforcing it. Rather than tweeting from the hallway, a court observer could simply call someone outside and have him or her post the same information on a social networking site. The order doesn't stop someone from posting information directly onto a blog, or a radio reporter from calling the station and providing updates from the hallway live on the air.

Judge Holland couched her order in terms of security, but it is hard not to see it as an attempt to shield the workings of the courthouse from public scrutiny. It must be reversed.

Readers respond

The reason for the ban on broadcasting relates not to "openness" or security but the need to create ONE OFFICIAL RECORD of the criminal proceeding which is relied upon on appeal.

Thus it appears there is another reason besides "an attempt to shield the workings of the courthouse from public scrutiny" for Judge Holland to issue the ban.

Mary Massey

I recently wrote an article after much research on the use of anonymous juries in relation to a defendant's 6th Amendment right to a "public" trial by an impartial jury. While the "right" belongs to the defendant, the history behind the writing of the amendment demonstrates that the Founding Fathers believed the right to be as important to the general public. The importance of openness to a fair trial cannot be overstated.

As for the ban, I think it goes too far. There seems to be no need to have a ban that applies to the entire courthouse unless there is some legitimate security reason. But it cannot be a blanket ban. It must be dealt with on a case by case basis, otherwise it is a deprivation of the reporter's First Amendment right, the defendant's Sixth Amendment right, and the public's right to know.

Nancy

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