By: Will Pylant

Associate Editor,  American Journal of Trial Advocacy

Lawyers and judges across the country would do well to heed the old adage “think before you speak” or perhaps more accurate today, “think before you tweet.” As technology permeates all facets of modern life, contemporary officers of the courtroom are grappling with how to implement rules pertaining to live blogging and tweeting in a way that stays fair to all parties.

Although federal judges enjoy a large degree of autonomy in how they run their courtroom, one landmark case takes a stand against live tweeting. In United States v. Shelnutt, a Georgia district court was forced to determine whether tweeting is considered broadcasting from the courtroom. Federal Rule of Criminal Procedure 53 expressly prohibits live broadcasts of courtroom proceedings or even pictures taken during proceedings. The judge ruled that live tweeting did constitute broadcasting and thus, the wary public was forced to wait for old-fashioned periodic updates from outside the courtroom.

The very fact that the Federal Rules of Criminal Procedure do not expressly forbid – or authorize – social media use in the courtroom is perhaps a sign that the rules need to catch up with the present. Nevertheless, as social media becomes a more familiar pastime to tech-savvy judges, we can expect to see more of the judiciary embrace the transparency and uptick in interest that follows live blogging. That was the case with Galveston, Texas, judge Michelle Slaughter, who received sanctions in the form of social media education and instruction after posting links on social media about a hot button case. Those sanctions were later overturned, however.

Lawyers who are caught tweeting during trials receive varying punishments based on circumstances. A Chicago attorney who was caught tweeting nine photos of trial evidence was forced to work 50 pro bono hours and donate $5,000 to the local bar. He also received a strong admonition from the bench: “You could be in your office generating $650 an hour, and instead you’re covering a federal trial, putting stuff on the Internet.”[1] A Louisiana lawyer received an even stiffer punishment after taking to twitter to disparage the judges involved in a family law dispute. A disciplinary board found that her twitter rants (which dated back to 2011) were serious enough, and she was subsequently disbarred.

The issue of social media has important fairness aspects that may reverberate in the Bill Cosby trial. Mr. Cosby’s defense team, which had already questioned the motives of the District Attorney, filed a motion to disqualify the District Attorney after it came to light that he had tweeted a link to an article about the Cosby case. The Cosby legal team is currently appealing a lower court ruling that rejected the disqualification motion.

For a profession notoriously slow in embracing change, the day of court sanctioned live tweeting of trials is probably a long way off. Still, lawyers and judges would do well to set out clear rules on what flies in the courtroom. Social media provides an important avenue for lawyers to generate business, and although social media in the courtroom poses hazards, it also poses opportunities.

[1] http://www.chicagobusiness.com/article/20151210/NEWS04/151219977/federal-court-sanctions-tweeting-barnes-thornburg-lawyer