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.
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.
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.