By Ian P. Goodman, Cantrell Strenski & Mehringer LLP
On February 14, 2017, the Indiana Commission on Judicial Qualification issued its Advisory Opinion #1-17 regarding Rule 2.17 of the Code of Judicial Conduct. Rule 2.17 prohibits the broadcast of court proceedings except under a narrow set of exceptions. While 20 years ago Rule 2.17 likely contained little to no ambiguity, such is not the case in today’s increasingly technology-centric, on-demand society. A litigant may wonder, for example, about the extent to which a judge will permit a member of the gallery or another attorney to post on Twitter regarding the happenings in the courtroom. On its face, such an act probably appears to fall within the “broadcasting” prohibited under Rule 2.17. Alas, in Opinion #1-17 the Commission analyzed whether “Rule 2-17’s broadcast prohibition includes activities like microblogging or ‘live tweeting’ of witness testimony....”
(Google tells us “microblogging” is “the activity or practice of making short, frequent posts to a microblog.”)
First: a brief lesson in history. The Opinion contains a comprehensive and interesting overview of the history behind the prohibition on broadcasting from the courtroom. It provides that in 1937 the American Bar Association adopted Canon 35, prohibiting broadcasting and photographic coverage of courtroom proceedings. Canon 35 was adopted in response to the “massive media coverage and ‘circus atmosphere’ of the trial of Bruno Hauptmann....” Hauptmann was eventually convicted of the murder of aviator Charles Lindbergh’s baby. The Opinion provides that, as technology has advanced, various states have relaxed the prohibition on broadcasting. Still, the policy behind the Rule – balancing the public’s interest in transparency (and freedom of the press) with the judiciary’s requirement to maintain the order and dignity of the proceedings and to protect the due process/fair trial rights of defendants – is of no less relevance today than it was in 1937. Times have simply changed.
Turning to the issue before it, the Commission writes that its view is that “microblogging, tweeting, or electronically relaying a written message does not constitute broadcasting under Rule 2.17, unless the transmitted message contains video or audio of court proceedings or a link to videotaped court testimony.” The Commission further wrote that, notwithstanding its pronouncement, judges may place reasonable restrictions on such activities.
So, tweet away! But no audio or video recordings of courtroom action. The Opinion provides a great deal more explanation and context than is written here, so please review the Opinion at your leisure. The Commission’s full Advisory Opinion may be accessed here.
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