(Not) Wired: Electronic Coverage in the Federal Courts

Boston Bar Journal: A Peer Reviewed Publication of the Boston Bar Association

Read the article on the Boston Bar Journal Here

By: Nancy Gertner

I supported electronic coverage of court proceedings throughout my career, both as a lawyer — when I tried high profile cases in state court with camera coverage — and during the seventeen years that I was a federal judge — when I did not because of the federal ban on cameras.  I understand the concerns of the opponents, but they pertain to how to implement electronic coverage, not whether.  In fact, there is something quaint about the way some still characterize the debate — “cameras in the courtroom.”  In the 80’s, cases referred to the disruptive “glare” of the television lights and bulky cameras.  Now a handheld video camera, one hidden in the courtroom wall (I had a security camera behind a hollowed out law book), or even a smart phone can do the trick.  In the 80’s, with CourtTV broadcasting “gavel to gavel” coverage of trials, the debate was about televising proceedings.  Today, we talk about streaming videos over the Internet, or posting them on electronic dockets or court websites, even as the federal court posts transcripts and pleadings.  More stunning, only a short time ago reporters covered court proceedings with paper and pen.  Today they blog or “tweet” minute-by-minute accounts as in the recent trial of James “Whitey” Bulger.  (Gone is the “Perry Mason” moment of my first murder case, when, after a dramatic development, members of the press rushed out to find the public telephones and phone in their stories.)

To say I chafed at the federal ban on cameras in an understatement.  I testified before Congress in favor of legislation giving judges discretion to allow electronic coverage, with representatives of the Judicial Conference of the United States on the other side.  In Sony BMG v. Joel Tenenbaum, believing that the District Court’s rules permitted it, I allowed “narrowcasting” a legal argument to a specific publicly available web site.  The case pitted the record companies against college students accused of illegally downloading copyrighted music from the Internet.  I said: “This case is about the so-called Internet Generation – the generation that has grown up with computer technology in general, and the Internet in particular….  It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if not … exclusively, over the Internet.”  The First Circuit reversed, in part based on a rule buried in the archives of the First Circuit Judicial Council, which no party had noticed before.  In Limone v. United States, which involved accusations of FBI misconduct in connection with the imprisonment of four men, I announced my decision in open court.  Because of intense public interest, there was an overflow courtroom into which a record of the proceedings was streamed, just as in the Whitey Bulger case.  The difference between streaming the proceedings to another courtroom, rather than to the public more broadly, is to me a distinction without a difference. Indeed, the public’s right of access to trials should not depend upon whether the case is high profile or not, whether it is of interest only to the parties, or of interest to the press.

Public proceedings in the 21st century necessarily mean electronic coverage.  We understand generally that to make something public requires affirmative efforts — courtrooms big enough to meaningfully include as many people as possible, overflow rooms, even handicapped access.  And today, it requires provision for media to bring in smartphones and computers — to stream the video, to blog, to tweet.

The federal courts lag woefully behind the states.  Forty eight states (including Massachusetts) permit electronic coverage; study after study has reported favorable results.  It does not impede the fair administration of justice and does not impair the orderly conduct of proceedings.  This is so even though the state court’s docket — with murders and rapes — is far more vulnerable to distortion than the federal courts’.

As the states move into their fourth decade of electronic coverage, federal courts are stuck in yet another “experiment.”  The first was a three year trial experiment in cameras (from 1991 to 1994), at the end of which a judicial committee recommended its continuation, namely televised coverage of civil proceedings at the trial and appellate level.  The United States Judicial Conference rejected the recommendation, except with respect to appellate courts.  Apparently, appellate courts can be trusted to exercise their discretion to broadcast arguments (as the 2nd and 9th circuit do); district court judges cannot.  After Congress threatened legislation, the Judicial Conference in 2010 recommended yet another pilot — a gesture at once unnecessary and inadequate.  It is unnecessary because the data is in.  And it is inadequate because it covers only civil proceedings, and requires all parties to consent.  Small wonder that since 2010, few if any cases have been televised.

Massachusetts Rule 1:19 goes much further, allowing “electronic recording or transmitting of courtroom proceedings open to the public” by the news media.  The definition of “news media” has recently been expanded to include private individuals who “regularly gather, prepare, photograph, record, write, edit, report or public news or information about matters of public interest for dissemination to the public in any medium whether print or electronic.”  In short, blogs are allowed — so long as the blogger is registered with the court (a potential issue as distinctions between traditional media and the citizen media grow more obscure).

In a recent murder case, the Superior Court judge barred Twitter, allowing online blogging only.  Tweeting, he suggested, with only 140 characters, could not adequately report the trial, and would be cumulative to other modes of real time access.  The line the judge drew was troubling.  If the tweeting is not disruptive of the proceedings — and it is not, any more than any other social media — it is not clear that a court should try to determine which electronic communications are adequate to the task, which outlet really needs to do it.

Trial judges plainly need to be the gatekeepers with respect to what is covered and how.  We have to learn how to draw careful and reasoned lines, particularly as the technology evolves. (“No cameras,” no matter how the technology and the audience has changed, is not a thoughtful policy; it is the opposite.)  Social media creates extraordinary challenges for the conduct of jury trials — especially, to warn jurors about going online during the trial, when they are used to doing that from the moment they wake up.  But we are a long way from the OJ Simpson case of twenty years ago, when the conduct of a televised trial was widely disparaged.  The challenge now is to appropriately regulate the new technology — not to ignore it.

Judge Nancy Gertner was appointed to the bench in 1994 by President Clinton. She has written and spoken widely on various legal issues and has appeared as a keynote speaker, panelist or lecturer concerning civil rights, civil liberties, employment, criminal justice and procedural issues, throughout the U.S., Europe and Asia. In September of 2011, Judge Gertner retired from the federal bench and became part of the faculty of the Harvard Law School teaching a number of subjects including criminal law, criminal procedure, forensic science and sentencing, as well as continuing to teach and write about women’s issues around the world.