Order, and No Tweeting, in the Court!

(Guest blog post presenting a US perspective on social media, law and the courts)

Changes in communication technology require that existing social institutions, such as lawmaking bodies, the news media, and the courts, adapt themselves to such changes on almost a “case by case” basis. A recent (November, 2009) case serves as an example of such adaptation by noting how modern technology has changed the legal definition of the word “broadcasting.”

Case: United States v. John Mark Shelnutt
Middle District of Georgia, Columbus Division
Case No. 4:09-CR-14 (CDL)

Citing the First Amendment right of Freedom of the Press, a reporter from the Columbus (GA) Ledger-Enquirer asked the court for permission to use a hand-held device to file reports to his employer’s web site which would, in turn, forward those reports to its “Twitter” subscribers. The defense objected on the grounds of prejudicial pre-trial publicity.

Citing Rule 53 of the Federal Code of Criminal Procedure, Presiding Judge Clay D. Land denied the request on the grounds that the “broadcast” prohibition of Rule 53, although it originally (ca 1944) applied only to live radio broadcasting, should be extended to include any form of electronic communication from within the courtroom while the court was hearing any aspect of the case. Judge Land denied the request and his ruling in the matter was not appealed by the reporter or his employer.


Prior to the 1930s, federal courts had no standard rules regrading procedural matters in the trial of criminal cases. Instead, each court was obligated to follow the “practice and procedure” of the state in which the court was sitting. Since each state had its own laws regarding things such as admissibility of evidence, pretrial motions, and appeals, there was no uniformity in how cases were tried. The United States Code of Criminal Procedure was thus created in order to provide for a “normalized, or “standard,” set of rules governing the prosecution of criminal cases in the federal courts and has since been periodically updated to reflect changes in both statutory law as well as judicial precedent decisions.

Returning to the case at hand, the portion of Rule 53 relevant to Judge Land’s ruling states:

“Except as otherwise provided … the court must not permit … the broadcasting of judicial proceedings from the courtroom. “

Judge Land properly exercised his judicial discretion in this case when he noted that, at the time of the most recent revision of the Code of Criminal Procedure in 2002 a note attached to Section 53 by the Judicial Advisory Council had observed that changes in technology would require future updating of the Code if specific technologies were to be either allowed or excluded. The Advisory Council therefore recommended that each presiding judge could use his or her discretion as to what was indeed a “broadcast.”


Some two years later, and not as a result of the above-discussed ruling, the federal judiciary authorized a pilot study allowing fourteen federal courts to allow digital recordings during sessions of each court. The conditions under which such recordings can be made are:

* The presiding judge must approve recordings in his or her courtroom;
* Only civil, rather than criminal, proceedings can be recorded
* Both contesting parties must approve recordings of each session;
* The recordings must protect the identity of the jury pool as well as the jury members and alternate jurors.

In addition to the above restrictions the presiding judge, at his or her discretion, may order that recording be stopped to for purposes of:

* Preserving the dignity of the court, or
* Protecting the rights of any party, including witnesses.

Since the pilot study specifically excludes “live” broadcasting, and prohibits digital recording of the proceedings in criminal cases, it is likely that challenges to Rule 53 will arise in the future. However, given the wording of the current statutes and recent judicial interpretation of those statutes, such restrictions do not seem to conflict with the Constitutional guarantees of public trial and free press.

About the author

This article was composed by Otter Boone for the team at Kanetix.ca; be sure to visit them and find out about Vintage car insurance

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