By: Arend J. Abel, Attorney

You may remember just over a year ago when a partner in Barnes & Thornburg’s Chicago office was sanctioned for live-tweeting a trial.  That event makes all the more surprising an Ethics Opinion that the Indiana Commission on Judicial Qualifications issued last month.  According to the Commission, live-tweeting a trial does not amount to “Broadcasting,” which is barred by Rule 2.17 of the Code of Judicial Conduct, except in very narrow circumstances or with prior permission of the Supreme Court.

The opinion answers a question that the Court of Appeals raised last year in Compton v. State, when it declined to reverse a criminal conviction based on a defendant’s contention that he was denied due process when the judge permitted reporters to live-tweet the trial.  The Court of Appeals declined to decide whether tweeting amounted to “broadcasting,” resting its decision instead on the fact the defendant couldn’t show prejudice.  However, the Court wrote in a footnote that it had concerns, partially surveyed the law in the area, and said “We believe judges and attorneys are in need of guidance on how they approach the use of social media during criminal trials. Therefore, given the rapidly evolving relationship between Twitter and our judicial system, we believe it is time for all appropriate judicial, attorney, and ethics committees to come together to specifically address these concerns.”  As far as I know, there was no effort to form the sort of wide-ranging task force the Court of Appeals suggested, so the Judicial Qualifications Commission stepped into the breach, though without mentioning Compton.

After noting that the meager case law that existed was in conflict, the Commission opted to follow a 2011 Connecticut trial court decision, State v. Komisarjevsky, which based its decision permitting Twitter in court on its perception that the rule against broadcasting sexual assault trials had as its purpose to spare victims “the indignity of having his or her ordeal vividly conveyed to the world by the use of actual voices and photographic or televised images projected from the courtroom.”  The Judicial Qualifications Commission found “the analysis in this decision compelling and agrees that transmitting a person’s actual voice and image is qualitatively different, in terms of privacy, security, and reputation, than another person’s report of a witness’ testimony and mannerisms.”  Thus, the Commission opined “the use of Twitter and similar communication mediums or avenues is not broadcasting under Rule 2.17, unless the message contains video or audio of trial court proceedings or a link to videotaped testimony.”

Interestingly, the last part of the opinion suggests that Courts might even be required to permit live tweeting in some circumstances.  The Commission said the second “question presented” was “Even if microblogging or tweeting is not considered broadcasting, is it ethically permissible for a judge to impose reasonable restrictions on the use of these mediums (and other electronic modes of communication) in the courtroom?  Not surprisingly, the Commission answered that question in the affirmative, but the manner in which the question was phrased, together with the phrasing of the Commission’s answer, that “it is ethically permissible for a judge to impose reasonable restrictions on the use of Twitter and similar mediums in the courtroom” suggests that there is such a thing as unreasonable restrictions, and that imposing them would be a breach of judicial ethics.  The opinion further suggested that reasonable restrictions involved case or individual-specific situations.  If that implied conclusion is correct, the days of absolute bans on electronic devices in the courtroom may be over, though they were fast disappearing anyway, in light of the fact that most attorneys now must use their phones or other devices to access their calendars.