In April, the Pennsylvania Supreme Court rejected a proposal that would have banned real-time reporting — including tweeting and live-blogging from cell phones, tablets or laptops — from inside state courtrooms. Without the ban, Pennsylvania judges will continue to permit or prohibit real-time reporting on a case-by-case basis.
That ad hoc approach appears to be how the majority of courts across the country still treat courtroom reporting. At this time, there is no broad consensus about whether to permit journalists to use portable electronic devices to publish updates from the courtroom.
Even when cameras are permitted in the courtroom and a trial is broadcast live, some judges still restrict the use of cell phones or computers by observers. That’s the case in the murder trial now proceeding in Colorado against James Holmes, who killed 12 people in a movie theater in Aurora three years ago. Reporters who want to live-tweet the proceedings have to be stationed outside the courtroom and provide updates based on the live camera feed.
It may seem inevitable that real-time reporting will become more common as more courts permit such activity without incident, as judges more comfortable with mobile technology join the bench, and as the public increasingly consumes news on social and mobile platforms. But courts that permit real-time reporting as a matter of course are still in the minority, according to a Reporters Committee review of media and cell phone policies from all 50 states.
A brief note on methodology: the 62 policies reviewed for this article are not necessarily representative of the roughly 900 federal and state judicial districts across the country. We examined one or two policies per state, which we identified using online searches. In a few cases, we contacted court information officers directly for more information. Some of the policies set default rules for the entire state, while others concern only a single district or courthouse. The purpose of this analysis was to better understand the variety of approaches that courts take on courtroom media coverage, not to review a statistically representative sample of policies.
Only nine of the 62 policies examined permit real-time reporting with electronic devices as a matter of course or set up a presumption in favor of such activity. Twelve policies either ban the coverage or set up a presumption against it. Another 15 policies expressly leave the decision to the individual judge, without setting a default rule. The balance of the policies do not address the media’s or the public’s use of cell phones or computers in court, with most focusing on the procedures the media must follow to use cameras or other recording equipment.
Jurisdictions that permit real-time reporting by rule generally allow electronic devices to be used in the courtroom to transmit data or connect to the Internet, provided that the devices are silent and do not disrupt the proceedings, and further provided that the devices may not be used to take photographs or record audio without permission. At all times, the use of electronic devices is subject to the discretion of the judge.
Some of the policies, like the one in Florida’s Ninth Judicial District, permit the use of electronic devices only for authorized members of the media; others, like that in Colorado’s Fifth Judicial District, extend the right to members of the public generally. In Utah, judges may restrict the use of electronic devices in court, but the rule expressly discourages judges from doing so unless “use of a portable electronic device might interfere with the administration of justice, disrupt the proceedings, pose any threat to safety or security, compromise the integrity of the proceedings, or threaten the interests of a minor.”
Many jurisdictions leave the matter to the discretion of the judge. In Kansas, cell phones are generally banned but may be used with court approval. The state’s media coverage rule acknowledges that the use of cell phones and other devices in courts “continually challenges a court’s legitimate concerns for courtroom security, participant distraction, and decorum.” Nonetheless, the rule states that devices “are redefining the news media, the informational product disseminated, and the timeliness of the content. They also result in new expectations for the court and participants for immediate access to information. … The courts should champion the enhanced access and the transparency made possible by use of these devices while protecting the integrity of proceedings within the courtroom.”
In the Eighth Judicial District of Nevada, which encompasses Las Vegas, real-time reporting is permitted by custom, but not expressly authorized by a formal rule or guideline. In West Virginia, each judge "is in charge of his or her own courtroom and can allow or not allow any cameras/audio/electronic device, or not, depending upon the case and circumstance," Jennifer Bundy, public information officer for the Supreme Court of Appeals of West Virginia, wrote in an e-mail. "Some do, some don’t. Some allow for some cases and not others. It varies widely."
The policy used in the Delaware Court of Chancery, which expressly bans the use of laptops “to broadcast, webcast, record audio or video, photograph, e-mail, blog, tweet, text, post, or transmit by any other means” information from court, is notable because it offers a scientific rationale for the ban: “electronic transmissions” and “Internet usage” “interfere with the court reporters’ equipment and ability to provide a ‘live feed’ to the parties,” and therefore “electronic transmissions via WiFi, air card, wave card or any other means is strictly prohibited.”
Other examples of policies that expressly permit or create a presumption in favor of real-time reporting include those in Arizona, Georgia, Mississippi, New York, and Washington. Policies that generally ban or leave the matter to the discretion to the judge include those in Arkansas, California, Connecticut, Iowa, Maine, Michigan, and Oklahoma.
Whether and how to handle electronic courtroom reporting is a debate currently taking place at the Tennessee Supreme Court, which is considering adding cell phones, tablets and laptops to the list of equipment approved for use by journalists in the courtroom. Currently, the state’s media access rule outlines the procedure for bringing cameras or audio recording equipment into courtrooms but is silent on whether journalists must request permission to transmit real-time, text-based updates from personal devices.
“These proposed changes embrace the tools used by the media to keep the public informed about what’s happening in our court system,” Chief Judge Sharon Lee said in a statement. She observed that reporters routinely use electronic devices to transmit descriptions of court proceedings.
Jack McElroy, editor of the Knoxville News Sentinel, said he appreciates the Supreme Court’s efforts “to make courtrooms as accessible to the public as possible,” but is concerned that the proposed rule “actually will result in a substantial step backward in public access to court proceedings.”
McElroy recently outlined his concerns in written comments sent to the Tennessee Supreme Court. One problem: by expanding the rule’s definition of media “coverage” to include information transmitted from personal devices, the rule’s formal request mechanism, which now governs only requests for cameras or other recording devices in the courtroom, would be triggered by journalists seeking to blog or post to social media from personal devices. Thus, reporters would be required to obtain permission from the court as much as two days in advance of any proceeding. Currently, McElroy points out, “judges in Knox County allow reporters virtually unrestricted use of digital phones and tablets as reporting tools” without making formal requests, and the added administrative hurdle “would seriously hamper the flexibility of reporters to cover a variety of proceedings, even if the 48-hour deadline routinely were waived.”
McElroy is also concerned that by adding tweeting or blogging to the definition of media coverage, the current ban on “coverage” of the jury selection process, which now only bans audio-visual recording of that process, would subsume other kinds of reporting, too. “This would mean that a reporter using a traditional pen and notebook could take notes on voir dire” but that a “reporter would be prohibited from posting the same information from an electronic device.”
The Tennessee Supreme Court has extended the comment period on the proposed rule change to August 15.