CHICAGO – Twitter is increasingly putting reporters on a collision course with judges, who fear it could threaten a defendant’s right to a fair trial.
The tension was highlighted recently by a Chicago court’s decision to ban anyone from tweeting or using other social media at the upcoming trial of a man accused of killing Oscar winner Jennifer Hudson’s family. Reporters and their advocates insist the practice is essential to providing updates for the public as justice unfolds.
“We’re troubled by this ban,” said Ed Yohnka, Chicago spokesman for the American Civil Liberties Union. Tweeting and social media are “merely the 21st century version of what reporters have always done — gather information and disseminate it.”
Judges, he said, should embrace Twitter as a way to shed light on the judicial process, which, for many Americans, remains shrouded in mysterious ritual.
The judge in the Illinois case fears that feverish tweeting on smartphones could distract jurors and witnesses when testimony begins April 23.
“Tweeting takes away from the dignity of a courtroom,” said Irv Miller, media liaison for Cook County Judge Charles Burns. “The judge doesn’t want the trial to turn into a circus.”
Burns is allowing reporters to bring cell phones and to send e-mails periodically, a notable concession in a state that has only recently announced it will begin experimenting with cameras in court and where cell phones are often barred from courtrooms.
There’s also an overflow courtroom where reporters can tweet freely. But there will be no audio or video of proceedings in the room, just live transcripts scrolling across a screen.
The issue extends beyond journalists to jurors, whose tweets have raised issues of their own across the country.
Last year, the Arkansas Supreme Court threw out a death row inmate’s murder conviction after one juror tweeted during proceedings and another slept. Juror Randy Franco’s tweets ranged from the philosophical to the mundane. One read, “The coffee sucks here.” Less than an hour before the jury returned with a verdict, he tweeted, “It’s all over.”
There’s little gray area regarding jurors tweeting. The Arkansas trial judge had warned jurors, “Don’t Twitter anybody” about the case. Burns was similarly explicit during jury selection in Chicago.
But there’s no consensus among either state or federal judges about the propriety of in-court tweets, so individual judges are often left to craft their own rules.
For instance, the judge in the child sexual abuse case of former Penn State assistant football coach Jerry Sandusky has allowed reporters to tweet from pretrial hearings but not to transmit verbatim accounts or to take photographs. Judge John Cleland hasn’t indicated whether he will change that policy for the June trial.
In some ways, Judge Burns has gone further than others.
To ensure his ban is respected, he’s assigned a member of the sheriff’s department to track reporters’ Twitter accounts while court is in session. To get accreditation to cover the trial, reporters had to disclose their Twitter names.
If there appears to be a tweet from inside the courtroom, Penny Mateck will report it to the judge. “He’ll decide what action to take,” she said. Penalties could include contempt-of-court sanctions.
Peter Scheer, director of the California-based First Amendment Coalition, said having a sheriff’s employee monitor tweets makes him uneasy, but it doesn’t seem to violate anyone’s rights because most Twitter feeds are already open for anyone to see.
Still, some observers are puzzled why e-mails would be OK, but tweets are out of order.
The judge, Miller explained, believes that having reporters constantly hunched over their phones pecking out tweets is more disruptive than sending an email every 10 or 15 minutes.
“We have been dealing with this issue of tweeting in court a lot these days — but this is an approach I have never heard of before. It’s weird,” said Lucy Dalglish, director of the Virginia-based Reporters Committee for Freedom of the Press.
Radio journalist Jennifer Fuller is equally perplexed.
“We’ve been taking notes in courts for years,” said Fuller, president of the Illinois News Broadcasters Association. “If a dozen reporters put their heads down to start writing at the same time, couldn’t you say that’s as disruptive as tweeting?”
It’s not just Twitter’s potential to distract. Other judges worry that tweets about evidence could pop up uninvited on jurors’ cell phones, possibly tainting the panel.
In their request for a new trial, attorneys for Texas financier R. Allen Stanford, who was convicted of fraud last month, argued that tweeting by reporters distracted jurors and created other risks. The federal judge denied the request without explanation.
And a Kansas judge last week declared a mistrial after a Topeka Capital-Journal reporter tweeted a photo that included the grainy profile of a juror hearing a murder case. The judge had permitted camera phones in court but said no photos were to be taken of jurors.
Reporter Ann Marie Bush hadn’t realized one juror was in view, publisher Gregg Ireland said, adding that the company “regrets the error and loss of the court’s time.”
Journalists understand judges’ concerns, Dalglish said. But the better solution is for courts to do what they have done for decades — tell jurors not to follow news on their case, including by switching off their Twitter feeds.
One obstacle to reaching a consensus is that no one can agree on just what Twitter is or does. Some judges say it’s broadcasting, like TV, which is banned from courtrooms in some states. Fuller says tweets are more like notes that get shared.
Because Twitter has become the medium through which some consumers get most of their news, it’s all the more urgent for judges and journalists to come to an accommodation, Fuller said.
And her association’s policy on tweeting in court?
“We don’t have one yet,” she said. “We’re working at it. Finding a middle ground will take time.”