JQC holds that live-Tweeting is not ‘broadcasting’

The use of instant electronic communication such as Twitter in courtrooms is not considered broadcasting under the Code of Judicial Conduct, but judges still have the discretion to reasonably regulate the use of such communication in their courtrooms, the Indiana Commission on Judicial Qualifications has held.

In an advisory opinion issued Tuesday, the commission wrote that the ban on broadcasting in courtrooms, which nationally began in 1937 and was implemented in Rule 2.17 of the Code of Judicial Conduct, has led to differing opinions over the years as to what the definition of “broadcasting” is. Traditionally, broadcasting has included radio and television transmissions of courtroom proceedings, but social media applications such as Twitter and Facebook have the ability to livestream court proceedings, just as radio and TV can, the commission said.

However, most messages transmitted on Twitter and other social media are “subjective written interpretations of the user’s impressions of what has occurred in the courtroom,” the commission wrote and further noted that “Twitter in many respects is similar to a reporter taking notes during a trial and then phoning those observations during a break to an editor for a news story.”

Different courts have different interpretations of Twitter’s implications under Rule 2.17, especially in terms of trial court proceedings, which are generally considered more restrictive on broadcasting than appellate proceedings. For its part, the Judicial Qualifications Commission agreed with the unpublished opinion in State of Connecticut v. Komisarjevsky, 2011 WL 1032111 (Con. Sup. Ct., Feb. 22, 2011). That opinion held that “absent the unusual case of a closed courtroom and sealed transcript – (the broadcast ban) cannot sensibly extend beyond voices and photographic or televised images to the actual words spoken in court of courtroom events.”

With that argument in mind, the JQC held Tuesday that unless Twitter or other social media is being used to share video or audio of trial court proceedings, citizens — including members of the media — who live-Tweet only the words of a court proceeding are not violating the broadcast ban. However, Rule 2.17 also allows judges to impose reasonable limitations on the use of such technology in the courtroom, and that discretion will remain intact.

“The Commission leaves it to the trial courts and Supreme Court committees tasked with advising on media/community relations to devise guidance on what constitutes reasonable restrictions,” the JQC wrote.

The Indiana Court of Appeals in an August decision in which it held a man was not deprived due process when the media live-Tweeted during his murder trial, suggested that it's time for the judicial branch to address social media use concerns. The Indiana Supreme Court denied transfer to the case in November.

The Indiana Community Relations Committee of the Indiana Judicial Conference has been working with the Hoosier State Press Association for the last few years to develop guidelines for in-court social media use.