Why Are Lawyers and Judges Still Tweeting About Trial?

shutterstock_186292982

Lawyers and judges have discovered the power and pitfalls of tweeting.

Snap a picture of your morning cereal and tweet away about brushing your teeth, but think twice about what you post publicly on Twitter or any other form of social media when you are in the courtroom.

The Rules of Being Social in Court

While state judges are guided by procedural rules, federal judges have wide discretion on how to run trials when it comes to emerging online technologies—with some guidance from precedent.

One landmark case is United States v. Shelnutt, where the court denied a member of the press’s request to tweet a criminal trial on Twitter under Rule 53 of the Federal Rules of Criminal Procedure.

The relevant part of Rule 53 is:

The court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.

The judge in Shelnutt decided that broadcasting includes sending messages or live-tweeting from trial.

Some state courts operate under the presumption that photography is not allowed other than in specific circumstances. Then there are others operating under the opposite presumption.

Judges have expressed concern that electronic devices may be disruptive to proceedings or that live-blogging or photography may intimidate witnesses, jurors, or prospective jurors.

Nevertheless, tech-savvy federal judges are becoming increasingly receptive to live courtroom coverage using emerging technologies.

Even in more relaxed jurisdictions where electronic devices and Twitter are allowed, for example, rules governing ex parte communications still apply.

While some courts are more phone and photo friendly than others, even those allowing photography at the discretion of the judge still carve out limitations for proceedings that are off limits.

StateTweeting in CourtPhotography in CourtSource
AlabamaDiscretionary Generally noState v. Komisarjevsky, Al. Canons of Judicial Ethics Canon 3A
AlaskaDiscretionary Discretionary Alaska Rule of Admininistration 50
ArizonaDiscretionary Discretionary Rule 122, Rules of the Arizona Supreme Court
ArkansasDiscretionary Discretionary Arkansas Judiciary Administrative Order 6
CaliforniaDiscretionary Discretionary Rule 1.150
ColoradoDiscretionary Discretionary Colorado Lawyer
ConnecticutDiscretionary Generally noConn. Super. Ct. Rules Ch.1
DCDiscretionary Generally noD.C. Super. Ct. R. Crim. P. 53(b)(1)
DelewareGenerally noDiscretionary Interim Order Regarding the Use of Cell Phones
FloridaDiscretionary Discretionary Rule 2.450, Technological Coverage of Judicial Proceedings
GeorgiaDiscretionary Limited, on requestUnited States v. Shelnutt
HawaiiDiscretionary Discretionary Hawaii Supreme Court Rules 5.1-5.3
IdahoDiscretionary Discretionary Idaho Court Media Guide
IllinoisDiscretionary Discretionary Illinois Supreme Court Rule 63
IndianaGenerally noGenerally noIndiana Code of Judicial Conduct, Rule 2.17
IowaLimited, on requestLimited, on requestIowa Court Rules Chapter 25
KansasDiscretionary Discretionary Kansas Supreme Ct. Rules 1001-1002
KentuckyDiscretionary Discretionary Rule 19, Formal Judicial Ethics Opinion JE-119
LouisianaGenerally NoGenerally NoLouisiana Code of Judicial Conduct Canon 3A (9)
MaineDiscretionary Discretionary Administrative Order JB-05-15 (A. 2-09)
MarylandGenerally noGenerally noRule 16-110
MassachusettsDiscretionaryDiscretionary Massachusetts Supreme Judicial Court Rule 1:19
MichiganDiscretionary Discretionary Michigan Supreme Court Media Coverage
MinnesotaLimitedLimitedADM09-8009
MississippiGenerally noGenerally noMississippi Rules for Electronic and Photographic Coverage of Judicial Proceedings
MissouriGenerally yes, on requestDiscretionary Missouri Court of Appeals Eastern District
MontanaDiscretionary Discretionary Judicial Ethics Cannon 35
NebraskaGenerally yes, on requestGenerally yes, on requestExpanded Media Coverage in Nebraska Courts
NevadaGenerally yes, on requestGenerally yes, on requestSCR 229-247
New Hampshire Generally yes, on requestGenerally yes, on requestSup. Ct. Rule 19, Cir. Ct. Rule 1.4
New JerseyLimitedLimitedCode of Judicial Conduct Canon 3A(9)
New MexicoDiscretionary Discretionary Reference Guide on Media Issues
New YorkDiscretionary Discretionary 22 NYCRR 29.1-29.4
North CarolinaDiscretionary Discretionary Rule 15
North DakotaDiscretionary Discretionary N.D. Administrative R.21
OhioGenerally yes, on requestGenerally yes, on requestRules of Superintendence for the Courts of Ohio 11-12
OklahomaDiscretionary Discretionary Title 5, Oklahoma Statutes, Chapter 1, Appendix 4, Canon 3B(10)
OregonGenerally yesGenerally yesOregon Rules of Appellate Procedure, Uniform Trial Court Rule 8.1, 3.010
PennsylvaniaGenerally noGenerally noPa. R. Crim. P. 112, Pa. Code of Judicial Conduct Canon 3A(7)
Rhode IslandGenerally noGenerally noR.I. Sup. Court Rules Article VII, Canon 4
South DakotaDiscretionary Discretionary South Dakota Supreme Court Rules 10-8, Judicial Code Canon 3B(13)
South CarolinaDiscretionary Discretionary Article VI, Rule 605
TennesseeGenerally yes (Proposed changes require request)Discretionary Rule 30
TexasLimited LimitedTRCP 18c, Appellate Procedure Rule 14, Sup. Ct. Misc. Docket No. 92-0067
UtahDiscretionary Discretionary Rule 4-401
WashingtonGenerally yesGenerally yesSupreme Court Rules Chapter 61
VermontGenerally noGenerally noSupreme Court Administrative Directive 28
VirginiaDiscretionary Discretionary Va. Code Ann. § 19.2-266.1
West VirginiaDiscretionary Discretionary W.V. Code of Judicial Conduct Canon 3(B)(12); Appellate Procedure Rule 1, W.V. Trial Court Rule 8
WisconsinDiscretionary Discretionary Wisconsin Bar
WyomingDiscretionary Discretionary W.R.Cr.P. Rule 53, Uniform Court Rule 804, Supreme Court Rule 5

Biglaw Blunder

One tweetastrophe in 2015 occurred when a Biglaw partner was caught using his cellphone and posted nine tweets—with pictures—from inside the courtroom of a high profile case.

Apparently, the lawyer had missed the 4-foot-tall sign posted by the courtroom’s door that said:

PHOTOGRAPHING, RECORDING OR BROADCASTING IS PROHIBITED.

After being spotted by an FBI agent, the presiding judge ordered the lawyer to come to court and explain what happened.

Claiming he was motivated by a desire to share knowledge with “interested members of the bar and public” after being so “struck by the evidence” on display during the trial, the lawyer said he thought that “it would be helpful for individuals not in court to see and thereby gain a better understanding of the evidence.”

Sometimes understanding comes at a cost. In this case, $5,000, in the form of a donation to the Chicago Bar. In addition to the $5,000 sanction, the lawyer was ordered to do 50 hours of pro bono work and attend a seminar on social media and legal ethics.

Had the case been one of his own clients, the photo-tweeting law partner probably would have been in even more trouble.

That was the case for a Louisiana lawyer, who was disbarred last summer for a Twitter blitz attacking two judges involved in a domestic case involving a bitter custody dispute. This wasn’t the first time she had taken to social media to voice her grievances about the courtroom. Going back as far as 2011, the lawyer created and tweeted about online petitions.

The Disciplinary Board found she violated Rules of Professional Conduct regarding impartiality, decorum of the tribunal, and misconduct. She continues to advocate on Twitter, but no longer in the courtroom.

Judicial Twitterati

Judges have had their fair share of Twitter troubles.

Despite including the phrase “These rules apply to jurors the same as they apply to the parties and to me,” in an admonition to the jury about social media usage during trial, Texas Judge Michelle Slaughter disregarded her own warning while presiding over the hotly contested “boy in the box” case of 2015. She posted updates about what was going on in the courtrooms and links to articles about the case. She was later removed from the case after defense counsel filed a motion to recuse her, claiming that she had improperly commented about the trial on social media and improperly posted a link to a news article about the case.

Judge Slaughter argued at her discipline hearing that her posts were to promote “transparency” and to “encourage individuals to come watch the proceedings.” She claimed that all of her posts were true, based on publicly available information, and intended to promote “transparency” and “encourage individuals to come watch the proceedings.” The disciplinary committee required the judge to obtain four hours of instruction with a mentor in addition to her required judicial education on social media use.

In September, however, a special court of review ruled that the State Commission on Judicial Conduct did not meet its burden to prove that Judge Slaughter violated the constitution or the Texas Code of Judicial Conduct.

YouTube Ukulele Evidence

A federal judge presiding over Sierra Pacific Industries’ appeal of a $122.5 million wildfire settlement raised some brows—and a motion for judicial notice—after tweeting an article about the case to a then-public Twitter account.
Requesting judicial notice that the Twitter handle belonged to the judge, the forest products company alleged that the tweet was evidence of bias in favor of the District Attorney’s Office charged with prosecuting the case.

After the company called federal prosecutors’ contention that a hacker actually was responsible for the judge’s tweet “highly inaccurate and prejudicial,” the company remained adamant that additional evidence should be allowed to rebut this “unsupported hypothesis.” In December, the company argued that YouTube videos that had since been made private proved that the judge owns the Twitter account in question.

The government, on the other hand, urged the appellate court to prohibit the introduction of the YouTube videos into evidence. Arguing that the judge’s Twitter activity isn’t a proper subject for judicial notice, the government claimed that even if the feed in question is the judge’s Twitter feed, his tweeting the headline to an article about a ruling he already made “would not show bias or even an appearance of partiality.”The Ninth Circuit has yet to rule on the admissibility of the YouTube videos which purportedly contain close-ups of the judge singing songs while playing the ukulele.

Judges are held to an even higher standard of conduct than lawyers. The Model Code of Judicial Conduct clearly spells out that when a judge discusses aspects of a pending case or when the judge’s words or actions indicate that they cannot remain impartial. Most jurisdictions have held these rules apply equally to social media such as Twitter. Almost any comment a judge makes on a case pending in their courtroom is off-limits—and, in many cases, grounds for disqualification or even sanctions.

Tweetaholics in 2016

In early 2015, Bill Cosby’s lawyer filed a motion for the disqualification of the DA prosecuting the case after the DA tweeted a link to a Rolling Stone article about the case in a manner similar to one of the tweets that caused Judge Shubb so much strife. Although a judge rejected the motion, Cosby’s lawyer is currently appealing. Like many of the issues surrounding tweeting in court, it has yet to be resolved.

It’s not too late to resolve to stop tweeting from the courtroom.

Twin Design / Shutterstock.com

Subscribe

Get Lawyerist in Your Inbox, Daily

Current Articles
Current Lab Discussions
  • Bob Ambrogi

    Thanks for this helpful chart. Regarding whether tweeting is allowed in Mass., you say “generally no.” The correct statement would be that it’s discretionary. Many Mass. judges do allow tweeting from their courtrooms. There is no express rule for or against tweeting. The problem in Mass. is getting your smartphone or laptop into the courtroom in the first place. In order to use a computer in the courtroom, you either have to be one of the lawyers in the case or a member of the news media. Bloggers do qualify as members of the media.