In 2017, the Indiana Commission on Judicial Qualifications (the “Commission”) issued an advisory opinion that the conveyance of information via microblogging platforms, such as Twitter, does not constitute prohibited “broadcasting” under Rule 2.17 of the Code of Judicial Conduct. Under Rule 2.17, judges are required to prohibit the broadcasting of courtroom proceedings to the public except under a narrow set of circumstances. Although this issue may seem geographically limited at first glance, courts and commissions around the country are considering this issue as microblogging activity becomes more prevalent.
At the heart of this issue, as the Commission noted, is, on one hand, the tension between the public’s interest in freedom of the press, the free flow of information, and a transparent justice system, and, on the other hand, the public’s interest in order, fairness, and due process in all court proceedings, untainted by external influences.
The current Rule 2.17 of the Indiana Code of Judicial Conduct, which generally prohibits courtroom broadcasts, is a remnant of the (now withdrawn) American Bar Association Canon 35, which prohibited broadcast coverage of courtroom proceedings. This canon was established in the wake of the Bruno Hauptmann trial (the man convicted of murdering the Lindbergh’s child in 1937). Of course, some states have already welcomed broadcasting courtroom proceedings in the digital age.
In reaching the conclusion that microblogging does not constitute “broadcasting” under Rule 2.17, the Commission acknowledged the characteristics that microblogging shares with broadcasting, which explains why courts have reached opposite conclusions on the matter. Microblogging platforms such as Twitter are capable of disseminating information instantaneously to the public at large, including video, audio, and links to video and audio recordings. In fact, recent studies have suggested that as many as 2/3 of American adults get their news from social media. In an age when prominent and reputable media sources themselves are using microblogging to broadcast news, the Commission’s conclusion the microblogging is not “broadcasting” may seem counterintuitive. The Commission, however, reasoned that there is an important qualitative difference between information observed first-hand, such as watching events transpire or hearing a person’s actual voice, and information gleaned from another’s report of their observations.
Ultimately, the Commission concluded that the “tweeting” of events is not “broadcasting” under Rule 2.17 as long as no audio, video, or links to either, are transmitted as a part of the message. In reaching this conclusion, the Commission also noted that Indiana judges are permitted to impose reasonable restrictions on the use of microblogging and similar media in an effort to maintain order and fairness.
As technology changes, so do our means of communication, which are sure to continue to present legal implications on a broader scale.