Fair trials and tweeting can coexist

Tuesday, April 17, 2012

Twitter has become a tool of the trade for America’s journalists, but judges are grappling with how to deal with the messaging in courtrooms.

According to an article by the Associated Press, “the micro-blogging site is increasingly putting reporters on a collision course with judges who fear it could threaten a defendant’s right to a free trial.”

We’ve been down this path before, most notably with television. Anxiety about cameras in the courtroom persists, particularly in the U.S. Supreme Court, which adamantly refuses to permit video recording.

At the heart of these concerns is the potential conflict between the First Amendment, which guarantees a free press, and the Sixth Amendment, which promises a fair trial. The televised coverage of the O.J. Simpson criminal trial — and its perceived excesses — continues to haunt judges, and no one wants to be criticized for letting news coverage impair a trial. Yet courts have repeatedly acknowledged the value of the press in a courtroom, providing scrutiny of the judicial process and keeping the public informed.

The judge overseeing the trial of a man charged with killing Jennifer Hudson’s family has banned the use of Twitter in the courtroom, according to the AP. His concern is that reporters feverishly tapping away on their smart phones might distract a jury.

Cook County Judge Charles Burns has a point, but the truth is that any jaw-dropping testimony that causes two dozen reporters simultaneously to put their heads down and tweet will already have drawn the attention of the jury. Without stunning developments, reporters aren’t likely to tweet in unison. Reporting isn’t synchronized swimming.

The judge is allowing reporters to send e-mail from the courtroom — an odd distinction to make. A reporter typing an e-mail is making the same physical motion, with hands on a mini-keyboard. The only differences are that the reporter has more than 140 characters to work with, and a colleague back in the newsroom would have to edit and tweet on his behalf.

To a large extent, Twitter anxiety is generational. For a younger generation, seeing someone texting is no different from seeing someone glancing at a watch. It’s not a significant — or even audible — distraction.

Judges have tools to maintain decorum, including an overflow courtroom in the Chicago case. By running an audio — or better yet video — feed to the overflow courtroom, the judge could exile tweeters from the main courtroom while giving the press full access to the proceedings. Sometimes technology can solve a perceived problem caused by other technology. The First and Sixth amendments can both be accommodated with care and common sense.

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