February 22, 2011
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION REGARDING USE OF ELECTRONIC DEVICES AND BROADCASTING
The motion now before the court seeks to prohibit the use of new forms of electronic communication in the courtroom. The defendant, Joshua Komisarjevsky, is awaiting trial on numerous charges, including capital felony; Conn. Gen. Stat. § 53a-54b; and sexual assault in the first degree; Conn. Gen. Stat. § 53a-101; arising out of a triple homicide in Cheshire in 2007. The case has aroused intense media interest.
Because the defendant is charged with sexual assault, "[n]o broadcasting, televising, recording or photographing" of the trial is permitted. P.B. § 1-11(b). This rule of practice plainly prohibits television and radio coverage of the trial proceedings in the courtroom. The rule is not clear whether new electronic forms of communication, particularly communication by the real-time information network known as Twitter, are similarly prohibited.
Media representatives wish to use Twitter to report on the trial. On February 4, 2011, the defendant filed the motion now before the court, seeking to prohibit "the use of electronic devices by spectators . . . during the course of all court proceedings." Although the motion addresses electronic devices generally, the bulk of it is aimed specifically at Twitter. The motion specifically claims that Twitter is a form of "broadcasting" and is thus categorically prohibited by P.B. § 1-11(b). The motion alternatively claims that, even if Twitter is not categorically prohibited by P.B. § 1-11(b), it and other electronic technology should be prohibited in this case as a matter of judicial discretion under P.B. § 1-10(b).
Other forms of live electronic communication, such as live blogging, raise many of the issues presented by Twitter but have not been specifically addressed by the parties.
The motion was heard on February 16, 2011. The State opposed the motion. Although no media representative sought to intervene, media interest in the issue was demonstrated by the fact that the hearing itself was reported on Twitter.
II. P.B. § 1-11(b)
The defendant's principal claim is that Twitter is a form of "broadcasting" within the meaning of P.B. § 1-11(b). If it is, Twitter coverage must be prohibited as a matter of law without exercise of judicial discretion.
No evidence was presented at the hearing, but Twitter's website (http://twitter.com/about) (visited February 16, 2011) provides a useful description of the service. The website explains that, "At the heart of Twitter are small bursts of information called Tweets. Each Tweet is 140 characters in length." The service allows users either to Direct Message (DM) specific individuals or to use "twitter posts" accessible to the public. The website claims 175 million registered users and the writing of 95 million tweets per day. While the service was initially used to communicate the trivia of everyday life, it has recently become a powerful tool of political information. Earlier this year, Twitter was used by antigovernment groups to publicize protests that brought down the government of Egypt.
Is this form of electronic communication "broadcasting" within the meaning of P.B. § 1-11(b)? The Practice Book does not define the term in question. Dictionary and unrelated statutory definitions of the term are of limited assistance.
"Broadcast" was originally an agricultural term, used to describe seed being "[s]cattered abroad over the whole surface, instead of being sown in drills or rows." 1 Oxford English Dictionary 37 (1933). By the 1920s, however, the agricultural meaning of the term had become obsolete and the term was instead understood to refer to the transmission of radio signals. The identity of "broadcasting" and "radio" was, at the time, so complete that the principal sponsor of the Radio Act of 1927, 44 Stat. 1162 (1927), stated that, "there is no question at all what is meant by broadcasting." 68 Cong. Rec. 2880 (1927) (statement of Sen. Dill). This asserted lack of doubt was short-lived. By the late 1940s, courts began to wrestle with the question whether the term included television as well as radio transmissions. Norman v. Century Athletic Club, Inc., 69 A.2d 466 (Md. 1949). By the late 1970s, the invention of cable television had created new definitional issues for the courts. Federal Communications Commission v. Midwest Video Corp., 440 U.S. 689 (1979). The recent proliferation of other electronic forms of communication — Twitter being the most prominent example — is now creating cutting-edge issues of its own.
When a term is not defined by the legal provision in question, courts often "look to the ordinary meaning of the term" as set forth in dictionaries. Ransom v. FIA Card Services, N.A., 131 S.Ct. 716, 724 (2011). One dictionary frequently considered authoritative is Webster's Third New International Dictionary (1971) ("Webster's). Id. Webster's defines "broadcast" as "to send out from a transmitting station (a radio or television program) for an unlimited number of receivers."
However authoritative elsewhere, Webster's is of minimal assistance here. Webster's was published in 1971, prior to the invention of cable television, not to mention that of more recent electronic media. No serious argument could be made in the modern world that a sexual assault trial could be shown on cable television because no "transmitting station" was involved.
Statutory definitions of the term "broadcasting" are subject to similar infirmities of age. The definition of "broadcasting" in the Communications Act of 1934, 47 U.S.C. § 153(6), for example, was drawn from the Washington International Radiotelegraph Convention of 1927; National Association for Better Broadcasting v. Federal Communications Commission, 849 F.2d 665, 676 (D.C. Cir. 1988) (Wald, C.J., dissenting); and was held inapplicable to cable television systems in Federal Communications Commission v. Midwest Video Corp., supra. The definition of "broadcaster" contained in Connecticut's taxation statutes, Conn. Gen. Stat. § 12-218(1)(2)(F), has been updated to include cable transmissions, but applies only to corporations and is, in any event, frozen in time by incorporating 1997 industry group definitions by reference. These statutory definitions are of little assistance here.
47 U.S.C. § 153(6) defines "broadcasting" as the dissemination of radio communications intended to be received by the public, directly or by the intermediary of relay stations." The term "radio communication" means "the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission." Id., § 153(33).
Conn. Gen. Stat. § 12-218(1)(2)(F) defines "broadcaster" as a corporation that is engaged in the business of broadcasting video or audio programming, whether through the public airwaves, by cable, by direct or indirect satellite transmission or by any other means of communication, through an over-the-air television or radio network, through a television or radio station or through a cable network or cable television system, and that is primarily engaged in activities that, in accordance with the North American Industry Classification System, United States Manual, 1997 edition, are included in industry group 5131 or 5132." Industry group 5131 "comprises establishments primarily engaged in operating broadcast studios and facilities for over-the-air or satellite delivery of radio and television programs." Industry group 5132 "comprises establishments that primarily assemble program material and transmit television programs for cable and satellite systems, or that operate these systems."
Under these circumstances, the appropriate judicial approach is to construct an interpretation that comports with the primary purpose of the rule in question and does not lead to anomalous or unreasonable results. See Rodriguez v. Testa, 296 Conn. 1, 11, 993 A.2d 955 (2010).
The primary purpose of P.B. § 1-11(b) is plainly to spare a sexual assault victim from 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. This interest is a powerful one, but — absent the unusual case of a closed courtroom and sealed transcript — it cannot sensibly extend beyond voices and photographic or televised images to the actual words spoken in court or descriptions of courtroom events. Although P.B. § 1-11(b) plainly bars the use of television cameras and radio transmitters in court, it does not bar the press and public from access either to the courtroom itself or to transcripts and other sources of courtroom words and events. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 610 (1982).
No party has requested a closed courtroom in this case.
This consideration is particularly important because the right of access to criminal trials is afforded protection by the First and Sixth Amendments. Waller v. Georgia, 467 U.S. 39 (1984); Globe Newspaper Co. v. Superior Court, supra. This openness is embedded both in the constitutional text and in centuries of experience. It also has a vital functional role with respect to the functioning of the judicial process and the government as a whole. As Globe Newspaper explains,
Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the fact finding process, with benefits to both the defendant and to society as a whole. Moreover, public access to the criminal trial fosters an appearance of fairness, thereby heightening public respect for the judicial process. And in the broadest terms, public access to criminal trials permits the public to participate in and serve as a check upon the judicial process — an essential component in our structure of self-government.
457 U.S., at 606. (Footnotes omitted.)
Courts traditionally have proceeded with caution in extending old legislation to new technologies. Richmond v. Southern Bell Telephone Telegraph Co., 174 U.S. 761 (1899), provides an early example of this caution. An 1866 statute provided federal assistance "to aid in the construction of telegraph lines." 14 Stat. 221, c. 230 (1866). At the time of the statute's enactment, the telephone had not been invented. When the telephone was first invented (it was made public in 1876), it was commonly referred to as a form of "telegraph." Norman v. Century Athletic Club, Inc., supra, 69 A.2d, at 469. When, however, purchasers of telephone lines seized on this new definition to claim government assistance under the 1866 statute, the Supreme Court declined to fill the old statutory bottles with new technological wine, explaining that, "It is not the function of the judiciary, because of discoveries after the act of 1866, to broaden the provisions of that act so that it will include corporations or companies that were not, and could not have been at that time, within the contemplation of Congress." 174 U.S., at 776.
Federal Communications Commission v. Midwest Video Corp., supra, provides a more recent example of judicial caution in this area. As mentioned, the Communications Act of 1934 applies to "broadcasting." The definition of this term is rooted in a 1927 international convention. See n. 1 accompanying text, supra. When confronted with the invention of cable television, the Court decided to proceed cautiously in this area, "[i]n light of the hesitancy with which Congress approached the access issue in the broadcast area . . . We think authority to compel cable operators to provide common carriage of public-originated transmissions must come specifically from Congress." 440 U.S., at 708-09.
The court should exercise a similar caution when asked to extend the categorical prohibition of P.B. § 1-11(b) to new electronic technologies. That decision, if it is to be made at all, ought to be made in the more deliberate context of P.B. § 1-9, which allows proposed rules to be published in advance and subjected to public comment prior to being debated and voted upon by the Judges of the Superior Court. This process invites input from interested members of the public (many of whom may be more familiar with new technology than members of the judiciary) and extended contemplation and debate by the entire judiciary itself. If § 1-11(b) is to be extended to apply to new electronic technologies, this deliberative process should be followed.
For these reasons, the Court declines to extend the categorical prohibition of P.B. § 1-11(b) to Twitter.
III. P.B. § 1-10(a)
Although, for reasons stated above, the mandatory prohibition of P.B. § 1-11(b) does not apply to Twitter, the court retains discretionary authority under a separate rule of practice to restrict the use of electronic devices in the courtroom when they are "disruptive of the court proceeding." P.B. § 1-10(a). Judicial discretion must be exercised on a case-by-case basis. If the behavior, electronic or otherwise, of any person in the courtroom becomes disruptive, the court can take appropriate action. The appropriate action is determined by the type of disruption involved. Most disruptive activity can be addressed by a simple request to the person involved to adjust the behavior in question. If, for example, a journalist uses an electronic device with a noisy keyboard, he or she can be instructed to obtain a silent keyboard or moved to a more distant location in the courtroom.
P.B. § 1-10(a) provides that, "Personal computers may be used for note-taking in a courtroom. If the judicial authority finds that the use of computers is disruptive of the court proceeding, it may limit such use. No other electronic devices shall be used in a courtroom unless authorized by a judicial authority or permitted by these rules."
The defendant suggested at argument that what is, in his view, the lack of social utility in electronic communications made from the courtroom should influence the exercise of judicial discretion. His specific argument is that these communications tend to be either trivial or inaccurate and thus play no useful role in educating the public about the judicial process. The short answer to this contention is that control of the substance of courtroom reporting is not an appropriate exercise of the judicial function in a free society. Jurors are routinely instructed to avoid media reports concerning the case. The court should ignore such reports as well.
This limited judicial role is recognized throughout the English-speaking world. The Supreme Court of Ireland has recently reminded us that, "The right of freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to worthy, serious and socially valuable works. The undoubted fact that news media frequently and implausibly invoke the public interest to cloak worthless and even offensive material does not affect the principle." Mahon v. Post Publications,  I.L.R.M. 1, 13-14 (Ir.S.C. 2007). A distinguished United Kingdom judge has explained that,
[I]n deciding upon the importance of press freedom in the particular case, [a judge] is likely to distinguish between what he thinks deserves publication in the public interest and things in which the public are merely interested. He may even advert to the commercial motives of the newspaper or television company compared with the damage to the public or individual interest which would be caused by publication.
The motives which impel judges to assume a power to balance freedom of speech against other interests are almost always understandable and humane on the facts of the particular case before them. Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which "right thinking people" regard as dangerous or irresponsible.
R. v. Central Independent Television PLC.,  Fam. 192, 202-03 (1994) (Hoffman, L.J.).
Although the court retains the ability to restrict disruptive activity, the content of electronic or other reporting cannot be considered in making this determination.
The motion to prohibit the use of electronic devices in court is denied. The court retains its discretionary ability to address particular behavior found to be disruptive, under the standards set forth above.