I'm at the federal courthouse in San Francisco for the Northern California Courts Media Conference, which this year is focused on new media coverage of the federal courts, including coverage by bloggers.
This is the published description of the first panel, which will feature, among others, Judge Susan Illston:
Media Mania and the Courts: With "old media" imploding and the "new media" exploding, just who is reporting on the courts these days and how are they doing it? What should judges and courts expect from the new media? Join a distinguished panel in discussing how court coverage is changing and what that means for accuracy and access.
This is the description of the second panel, featuring (among others) Judge Jeremy Fogel:
Blogging, Tweeting: New Media in the Courtroom: Who qualifies as a journalist and does it really matter anymore? Are bloggers the new court reporters? How have courts responded to the challenge of instant reporting via wireless communications devices? Join a judge, a working journalist, legal blogger and Internet law expert in a discussion of new media in the courtroom.
I've said before that in my opinion, if you are a blogger, that makes you a journalist, whether you want to be one or not. It will be interesting to hear what the members of this panel think.
Judge Vaughn Walker is now speaking. He said that it is important for judges (andn other people on his side of the bench) to understand what is going on in new media, and that the program should be useful not only for journalists but also for the judicial side.
Judge Illston is saying they now allow camera phones in the N.D. Cal. courtrooms, and her department has no prohibition on laptops (which would allow live-blogging or twittering) so long as the keys are are not disruptive. Whether to allow laptops is a courtroom-by-courtroom decision.
Peter Scheer of the First Amendment Project is saying that the N.D. Cal. and other federal courts are operating under the purview of an older federal rule prohibiting TV cameras and recording devices (which technically covers things like camera phones). He says there's a lot of support for relaxing this rule and expects it to be greatly relaxed in the next couple of years. The rules limit public information about court proceedings. We are still limited to artist renderings of court proceedings because of this rule.
Melissa Griffin, blogger at thesweetmelissa.com, is pointing to the ABA Journal list of law blogs, and mentions SCOTUSblog as an example of a great law blog and to demonstrate how quickly information about court proceedings can get online.
Kelli Sager of the Ninth Circuit PICO Committee says that because of the economic situation, there are fewer and fewer people covering the courts, which means the courts need to be more proactive about getting information out there (e.g., PACER) to people and journalists. The committee is looking at ways to get information out beyond the courts' websites.
Judge Illston says that the N.D. Cal. is working very hard to be media-friendly, but their understanding of "media" may be a bit behind in terms of what's really out there. In recent years, they've made a lot of efforts to make proceedings in their courtrooms more accessible. For example, in the Barry Bonds case, the whole courthouse worked very hard to make it as media-friendly as it could be. The IT people worked overtime to find solutions to the limited space problem. They wired both audio and video into the larger ceremonial courtroom down the hall from hers where people could see the proceedings in real time. In that room it's okay for people to clatter on their computers or "second-guess the court's rulings" (laughter). If there's not enough room for everyone who wants to attend, the question becomes who is a journalist? This is a fascinating question that will be discussed today. The courts are willing to work with whoever are journalists these days to make things accessible to them.
The courts rely on the honor system re things like camera phones; if people abuse the rules, then the solution is to exclude the devices. But what they want to do is make the courtroom as accessible as possible within the rules.
There is a media room on the 1st floor of the courthouse. It's a place for journalists to interview people, such as witnesses or litigants, to whom they can't talk in the courtroom.
Question by moderator: How should the courts decide who is or is not a journalist in overflow cases in which seating is limited? Judge Illston: So far, they've taken sign-ups for passes, and didn't turn anyone down who signed up. So far, it's worked fine. We took journalists at face value when they sign up. Peter Scheer: Problem comes up only when you have to ration the space. This happened in the Scooter Libby trial. There's no official credentialing authority for "journalists." We all realize the definition now encompasses a lot more different kinds of people doing different things. The courts shouldn't be in the business of drawing lines & deciding who's a journalist and who's not and hopefully can defer those issues to the profession itself. Although not even the profession itself has resolved this question. If there comes a time when you have to limit people because you're rationing space, I'd let people decide for themselves whether they're journalists, and the question from the court's standpoint should be whether they are willing to abide by the court's rules. After that it's a matter of tossing coins until the journalism profession figures out how it will define a "journalist." This decision shouldn't be made by government.
Kelli Sager: In cases in which this comes up, courts have allocated based on circulation, type of media (e.g., TV vs. print), and hopefully in the future allocation will be made to new media journalists such as bloggers. The proposed federal shield law has a definition of a journalist: people who are regularly engaged in the business of distributing information to the public. If you had coverage of court proceedings on CSPAN for example there would be no space problems.
Melissa Griffin: Right now the decision is arbitrary. For coverage of a disaster, press credentials are issued by the police for journalists. Need to step away from the traditional notion of press credential; there needs to be a third way to define and recognize what a journalist is. The courts may need to be (or find themselves) at the forefront of this. How do you say that a small town newspaper has more right to be in the courtroom covering a case than SCOTUSblog? It becomes a very tricky distinction to make. There needs to be an education component to the credentialing so that journalists know the rules of the courtroom (such as contact with jurors, googling them, etc.) and can abide by them.Question by moderator: How well do journalists understand these rules? Judge Illston: A website was created with information for journalists covering Barry Bonds' trial. That doesn't mean everyone has read it. It's something the courts need to be vigilant about. Jurors also need to be educated about the fact that they shouldn't be twittering the trial from the jury box.
Peter Scheer: Traditionally, mainstream media (mainly large newspapers) has been the primary force behind going to court when necessary to fight for a greater degree of access, unsealing of records, opposing inappropriate gag orders, etc. So we've all been the beneficiary of that. In the past, they had the profits to be able to afford to do this and they saw it as part of their civic duty. Many of them no longer have the resources to do it as they used to or at all. Question becomes if the newspapers can't dispatch a media lawyer to court, who will? That's problematic, a challenge for the courts and those who care about access, and for the new generation of media. It's partly a responsibility that responds to the nonprofit sector, organizations like his (Peter's), who will have to pick up the slack. Possible that new media, as it develops business models that generate income, could pool their resources and/or tap into lawyers who will work on a pro bono basis to meet this need. It's already an issue; it's kind of below the radar. We're going to have to develop new mechanisms for providing that kind of representation of the public interest in first amendment matters.
Comment from audience: In SF the police still issue press passes, and it's not based on what kind of journalist you are (traditional vs. new) but rather what your political viewpoint is.
Question from moderator: What are your concerns regarding jurors, witnesses, etc. Judge Illston: We spend a lot of time making sure that only admissible evidence gets to the jury. Traditionally we instruct jurors every day, don't talk about the case, don't read about it in the newspapers etc. There's now a much longer list of things they are prohibited from doing, and the internet is a big one. Someone might be online trying to get a hold of the juror and pollute the jury, but more often it's a juror trying to find out more information about the case. We instruct them routinely not to do this, not to go anywhere to try to find out information. It's an effort to sequester w/out sequestering. We rely on their good faith in doing what we've ordered them to do. Mostly it works. On the question of witness tampering, the question becomses who do you instruct re this and what do you say? Monderator: What if a blogger is covering the trial and a witness reads that? There is a potential for mischief. What are you going to do about that? Judge Illston: What one could do is talk to the lawyers and say your witnesses are excluded from the courtroom and also ordered not to read any newspapers, do any research, etc. Some witnesses are not under control of the lawyers. Perhaps it may open up all sorts of new questions about what the witnesses have done before the took the stand. These are all completely live questions impt for us to think about.
Kelli Sager: We may be too concerned about this, because in the old English system, from which ours derives, the witnesses knew everything and knew all the people involved, and were told in advance about everything that happened. Sometimes we're so concerned about witnesses not knowing anything, even if a trial is televised, or jurors not knowing anything, and we assume they can't disregard what they know (like judges do).
Melissa Griffin: Also, it's becoming increasingly impossible. Juror was called to the pool for a three-month murder trial, heard the defendants' names, and that night Googled them to find out more. The next day when called for voir dire, he was asked whether he knew anyting about the defendants, he said yes, and got out of jury duty that way. There's a tip for you. Judge Illston: I've been stunned by the willingness of people to conscientiously serve on juries (i.e., not pull this kind of trick).
Peter Scheer: No degree of pre-trial publicity could justify the closing of proceedings to the public. The Supreme Court has taken a case this term re Skilling, the CEO of Enron. There's the opportunity to argue in this case that there's something different now about the ability to reach every potential juror, not just through intensive television (and traditional media) coverage of a scandal, but through the new media as well. So this may force a different calibration of the balance of the sixth amendment and the first amendment. The issue is potentially before the U.S. Supreme Court this term.
Question from audience: Wouldn't allowing cameras in the courtrooms solve the probems of space and credentialing? Judge Illston: There was a case in the First Circuit where the district court said it would be fine but the Circuit court said no. Kelli Sager: We'restill trying to get over the case from 15 years ago in which cameras were allowed (the OJ Simpson case). It's a slow process. CSPAN in the courtr0om would solve these issues.
Melissa Griffin: The Cal. Supreme Court live-streamed the argument in the marriage cases, which was a great help to journalists. Made it a lot easier to follow what was happening. Want to see this more in the lower courts.
Question from audience: What is the judiciary's concern about live-twittering etc. (contemporaneous reporting) during an open court proceeding? Judge Illston: I can't speak for the whole judiciary, but I think the concern would be in part distraction; you'd distract your neighbors w/noise; e.g., 50 laptops making little noises; theroetical concern about what constitutes prohibited "broadcasting"; we all mightily resist change and this would be a significant change.
Melissa Griffin: When you're on a primarily electronic medium, one issue the judge might have is their personalities may be brought into it; who made a face; who furrowed their brow; etc. This can be included because there's an unlimited amount of space online. So there might be a devolution of the conversation about some of these cases with more focus on the personalities involved. Also the need to sensationalize things to get the readership.
Question from moderator: Does the potential for greater access lead to the risk of reducing the public's respect for the system? Peter Scheer: No. The more coverage that's available of proceedings in American courts, the more respect people tend to have for them. E.g., the live-steream of the Prop. 8 case in the Cal. Supreme Court. Millions watched that. People who watched that could not have avoided realizing that the case raised serious legal issues and that deciding the case in a way that was consistent with precedent was not just an exercise in political fiat. This wasn't just a political trial; this was a legal trial. And I think that people watching it, even if they were disappointed with the outcome, would not feel as though this was somehow fixed, the way a political process in Congress sometimes feel fixed. And that's eye-opening for many people to see there's one branch that actually tries to decide cases on the merits. So when you provide more access, cases large and small can be covered, for those who are interested in smaller cases, that can only redound to the benefit of the federal courts and our justice system generally.
Kelli Sager: Will disprove the fallacy that things are done differently when the camera is on. Example of the Oklahoma City bomber case. It was in fact televised for a very limited group of interested people in Oklahoma City. The trial was the same every day regardless of the fact that it was televised for that interested group. What's sad is that everyone couldn't see the televised broadcast.
Melissa Griffin (in response to audience question): New media journalists can sometimes drive the conversation about a particular case. Journalists are sometimes put in the middle between the courts and the public, because of the way the public responds to new media postings (comments, email, etc.).
Judge Illston: Issue of getting the complete story out. If they are forced to wait for the end of the day (rather than live-reporting a proceeding online) they will have the complete story (or all the testimony) in mind before it's sent out to the public. Kelli Sager: Traditional courtroom reporters are disappearing; the ones who are left often can cover only part of a proceeding. Letting new media journalists do it will help.
Peter Scheer: Justice Souter's departure from the court may have changed the vote re cameras. Kelli Sager: Justice Roberts has publicly said he doesn't think there should be cameras in the Supreme Court. There was a three-year experiment in the federal courts, after which the district judges all said it should be in the judge's discretion. But then the circuits (all but one, the Second Circuit) adopted rules saying no cameras in the district courts; but the circuit panels can decide whether to allow them for their arguments. Ninth Circuit is now considering a resolution allowing cameras in district court for non-jury proceedings (e.g. bench trials, hearings, etc.).
Question from audience: What is the overwhelming reason why there shouldn't be televised court proceedings (such as via CSPAN)? Kelly Sager: Completely supports doing that. Comment from audience: Televising testimony is not an effective way to intimidate a witness. You do that by sending 8 gang bangers to talk to them. Peter Scheer: The best way to record court proceedings is by video or audio recording. This provides a far more complete and useful record of the proceeding, such as for appeal, and for journalists who are doing more thoughtful pieces later such as a book or long-form article, for research for those purposes, to research what happened at a trial with access to the actual testimony with images and sound. That would be invaluable and far better than what's currently available. Judge Illston: When I discovered that you could buy audiotapes of a few historical sessions of the U.S. Supreme Court that were recorded, it was so thriling to be able to listen to these wonderful advocates and jurists discuss issues that then turned into Miranda, etc. It was inspiring and made you so proud to be a U.S. citizen. I would not suggest you'd feel that way about most of our proceedings. But it could be invaluable. Also, the influence of court reporters is a force to be reckoned with; they've spent a lot of time & energy developing a skill and they are loath to give up territory.
[End of panel 1]
Judge Jeremy Fogel is now introducing the second panel: Eric Goldman, Associate Professor & Blogger, Santa Clara University Law School; Jennifer Granick, Civil Liberties Director, Electronic Frontier Foundation; Howard Mintz, Legal Affairs Writer, San Jose Mercury News.
Judge Fogel: To allow CSPAN-type coverage, the judicial conference rules would have to be changed. That's the biggest impediment right now. N.D. Cal. General Order No. 58 addresses electronic devices in the courtroom. It took six months to be born. It came out of a committee process and every word was argued over and refined. The order, adopted 4 years ago, is now completely obsolete. At the time, concerned about laptops and cell phones; the iphone hadn't been invented; twiter did not exist; the technology has exploded so fast, that while the order is an interesting artifact, it really doesn't mean anything. So even if you have a court striving to be media-aware, as this court is, it takes a lot to keep rules current with changing technology.
Jennifer Granick: PACER has been a revolutionary change in terms of being able to follow what's going on in the courts. It makes a huge difference to be able to follow cases without going to the courthouse. One concern is making it more accessible. It's behind a pay wall, and is fragmented by district (so you have to know what district the case you're looking for is in), and the search tool is not very useful at all. Some of these issues are being resolved by private action. What does it mean for every person who has access to the courts to be able to contribute to what's available to the public. There's a new browser extension (RECAP) that permits automatic upload of documents that you download from PACER so that it's accessible for everyone. Of course this raises privacy concerns with redacted or sealed documents etc.
Eric Goldman: I'm in the content-production business as a blogger. Academics have always been in this business but we traditionally had very poor ways of distributing our content. Blogging is both a compliment to and a subtitute for what law professors have done in the past. In addition to writing the big battleship law review articles, I also write shorter articles (blog posts) that are much more llikely to be read. Many law professors used to use the op-ed process to get their views out. Why not just put it on your blog? I've written 1500 op-ed articles over the course of the past 5 years. Blogging has allowed me to inject my brilliant thoughts into the discourse instanteously, rather than waiting the two-year period to get a law review article out, waiting for a reporter to call me, or writing op-ed pieces and shopping them around. What I've found is reporters find this very useful. In the first year as a blogger, I've tripled the amount of media coverage I received, and in the next year, tripled it again. Now I have two audiences, my blog, and the reporters' coverage. I'm now in the content-production business much more explicitly and more directly and more timely than I ever could be before. As a result, I can become a principal or primary source of information about legal proceedings in competition with reporters.
Jennifer Granick: As a lawyer-blogger, we have duties to the court, our clients, etc., that are part of what we have to consider when we do our blogging, twittering, etc.
Howard Mintz: Notwithstanding the emergence of blogs, traditional media remains the largest presence at every courthouse in this country. We are still the ones who are regularly, as an institution, reporting on the business of the courts. Many of the very popular blogs are huge compendiums of newspaper articles from around the country written by us, with our info and our journalism. And there's commentary and clearly an exchange, and there's an interrelationship now. The way you can find law professors who actually know what they're talking about is because they have blogs. But we're still in the game in terms of covering the courts. What has changed is how I do that. I used to go in with my pen and paper, retreat to the office at the end of the day and write my story, and it would appear the next day. We now have several layers. Immediacy is everything. Getting it right now is just as important for us as bloggers. I cover the Barry Bonds case. When I'm in Judge Illston's courtroom covering some important ruling, the minute she rules, as fast as I can get that on the web, that's me doing my job. That's new media in a different costume, the San Jose Mercury News. So the rules that are developing re what you can do in the courtroom are as impt for me as they are for bloggers. While Judge Illston allows laptops, Judge Walker allowed no devices to be on during the Prop. 8 case. That distinction needs to go away because there's no rational basis for it. There's no consistent policy. When Judge Walker ruled on SJ in that case I had to do it the old fashioned way by running out of the courtroom with my notepad and report it over the phone.
Eric Goldman: Many bloggers create content by aggregating news for other sources. I chose not to rely on any traditional media reporting; I go get the primary material.
Judge Fogel: In the 80s I was a member of the "Bench Bar Media Police Committee," for the Santa Clara County Superior Court. We met once a month or so. The committee still exists. It gave people a chance to talk candidly off the record about their frustrations. Out of that came a better understanding of what each constituency was dealing with. I don't think you can do that now. Who is the media? For example, the committee would address the tension between need to maintain fair proceedings vs. desire for transparency. Could talk about this issue with people you'd have ongoing relationships with (e.g., trade secret cases, victims in sex crimes cases). But now, anyone who can tweet and who has a cell phone can be a journalist. How do we have thatconversation now that the whole notion of media is different, and means by which info is distributed is so much, exponentially faster?
Jennifer Granick: There are different reasons why people choose to follow the rules. Understanding why there's a rule about protecting privacy/trade secrets; threat of retribution; putting into effect some kinds of safeguards. I see so many more things under seal these days precisely because of these kinds of fears. We haven't trusted people enough re the level of professionalism of reporters not connected to a big journalistic organization. We've been too cautions. In the old days and the new days, there will be leaks and mistakes. But this is not a reason to shut down transparancy. It's a reason to focus on education. Credentialing is not the answer. First of all I don't think it can be constitutionally done if the government is doing it. The profession doesn't have a real interest in doing it. Credentialing in the bar doesn't ensure any level of competency or professionalism; it functions as a price-regulating thing rather than a quality-regulating thing. People who are there are interested in the courts and want to distribute info to the public and that makes them press and that should be good enough, and courts can work with them. These are the same issues courts have been dealing with for a very long time.
Howard Mintz: It's also something reporters have been dealing with for a very long time. There are rules that reporters are supposed to know, but I've seen many a reporter approach a juror. It's not because they're bloggers. Journalists tend to police themselves as a group if it's a high-publicity case. For example in the Bonds case, sports bloggers are a different breed of journalist altogether. It's that isolated instance when someone wanders into your courtroom in a trade secret case that would be harder to police.
Judge Fogel: I agree we shouldn't over-regulate due to fear that one person might do something wrong, but it's much harder when you have a very diffuse group of people reporting. I get cases involving IP rights with incredible economic value; improper reporting can lead to stock price manipulation; loss of proprietary rights that can lead to losses of millions of dollars. I'd like the media to be in, but it's about thinking of the problem in terms of balancing the interests.
Prof. Goldman: Every single person in a courtroom is a potential distributor of information to the public, a potential publisher of content. You should assume everyone in the courtroom is wearing an "I'm blogging this" t-shirt. If there is sensitive information, only two options: close the courtroom altogether, or lay down substantive rules and advise every person who enters the courtroom. There is no security through obscurity anymore. That info will leak out one way or another.
Judge Fogel: If it's a public hearing, I do assume this if there's anyone sitting there. Prof. Goldman: So the question is when will you decide to close that courtroom? I don't think there's an easy answer to that question. Judge Fogel: Closing down the courtroom is contrary to the law, the first amendment, but what's the alternative? How do we talk about this? Who do we talk about it with? Can we have rules that are flexible or do we just have to trust people?
Howard Mintz: You do have to trust people. We're in a world when in many federal courts you can't have your blackberry on. We're still in this kind of archaic world where the rules haven't caught up, and they need to. The federal courts are very hidebound about these things. You put a judge on the spot when you ask why you can't have these things in the courtroom. In Judge Walker's courtroom a motion was made to allow televised coverage of the Prop. 8 trial, and one side has opposed it. Is that the standard, if one side opposes? It should be in the judge's discretion.
Prof. Goldman: It doesn't matter if blackberries are prohibited, because I've got my notepad and my pen and I'll blog it after I leave. The issue is that so many more people now have access to a way to communicate with people. There will either have to be blogger self-regulation or there will have to be substantive rules, and maybe each individual judge will have to impose them.
Judge Fogel: The other issue is that once the blogger leaves, info is immediately available online, permanently. It used to be at a diner party, someone would try to talk to me about their case; people don't always understand the rules, that's natural and manageable in that situation. And if someone at a dinner party starts talking to a juror about the case, hopefully the juror remembers the admonintions. That was fine 20 years ago. Fast-fwd to today, the juror can't escape this kind of thing. You turn your computer on, and there's Facebook and twitter talking about that case or the crazy judge or the stupid ruling, or whatever. Is this a problem of too much transparency/ information, is there such a thing, and if so is it something we should be concerned about?
Jennifer Granick: Everyone is bombarded with more media than they used to be, but it's not entirely possible to ignore things. There's a myth that jurors cannot do this. Judge Fogel: But let's say you're a juror and you open up your email and a friend emails you saying did you know the defendant has three priors? You're done aren't you? Jennifer Granick: You need to have more alternates on the panel. I used to do criminal defense and we did spend a lot of time trying to protect the defendant against prejudice, but the answer is maybe you have 6 alternates instead of 2. This may just be what we have to do. You can't protect people from that kind of contact, so you have to plan ahead for it. Also we as participants in the court system should be more respectful of jurors and their ability to disregard external stuff and make an independent decision based on the facts presented during the proceedings.
Prof. Goldman: We are forcing people to make decisions using methodologies they aren't used to in the current world. We are asking them not to use their usual systems for managing information in their lives. Judge Fogel: My experience is jurors made decisions not the way we tell them to but the way they are otherwise inclined to. There is a constitutional dimension, such as when highly relevant incriminating evidence is suppressed. What do we do if, as a matter of constitutional law, the jury isn't allowed to hear certain evidence, but we're in a technological age when we can't prevent them from hearing it?
Prof. Goldman: Are we systematically excluding people who are obsessive researchers, demographics that have easy access to techology, etc. This could also have constitutional implications.
Comment from audience: The key to getting jurors to follow the admonishments is to provide a detailed explanation, at the outset of the case, of the rationale behind the admonishments.
Another comment from audience: These are not new questions. In the olden days if a trade secret was revealed, someone could write it down, go to the phone and call the market makers. Judge Fogel: The biggest change is the speed with which things happen. Now things happen so much faster, and in ways I can't see, with no physcal dimension to it. With the ease of electronic communication, I don't know what jurors are seeing or who's contacting them and there's no way I can know. Now I spend about 10 mins talking about blogging, email, facebook, twitter, etc., and say none of it, nothing zero, and this will be a huge imposition on you and I thank you for that. The movie has sped up, even if the basic relationships have not changed.
Howard Mintz: Before, going to a pay phone and calling in a verdict was the fastest I could do it. But now, if you get your news to your web page first, you become the top search result, and that's a big deal. How the courts craft their rules to accommodate that speed becomes so important.
Jennifer Granick: Also, now much smaller news is covered to reach the small group who may be interested in a smaller case. Previously that news wouldn't have been covered at all. There's also this reverse flow, in which the litigants know much more about the jurors and perhaps the judges, and vice versa. This adds a new dimension to selecting a jury. A lot more info about people is available; what does it mean in terms of picking a jury that's representative of the community, etc.
Eric Goldman: Important not to generalize about bloggers and assume they are one monolithic entity. There are all kinds of different bloggers. It's a continuum, a spectrum. There's a component of the blogosphere that is very close to what we think of as journalists. The two biggest differences are formal training (such as on journalistic ethics), and whether you make a living from it.
Audience question: Is anyone who rights a blog a member of the "press" and entitled to constitutional protections? Jennifer: Yes. Howard: Where I differ from Eric is where you say you haven't been trained yet you want to be treated the same. It's like I've been covering law for a long time so I should be allowed to be a lawyer. There is training, there is oversight, accountability in traditional media. I'm not sure, other than losing your market, who you're accountable to. Jennifer: Pamphleteers didn't have to answer to anyone. Eric: Freedom of the press belongs to the person who owns the press. Jennifer: I'd put my money on Eric over Fox News any day.
Eric: Who am I accountable to? As a professor, many people. Every time I post a blog post, I'm betting my house behind the accuracy of every statement I make. I'm betting my house against people who are in the business of suing people and who have access to the courthouse. Every time I report I have to be as accurate as I can be. Howard has people behind him who are willing to go the mat to defend him.