Editor’s Note: At a Relativity Fest 2023 Session entitled “Law and Policy: Cameras in the Courtroom,” a panel of experts from across the legal industry shared their thoughts on this very modern issue in the practice of law. Today, we’re sharing the first piece of our two-part coverage from their discussion.
A few months back, I sat down to embark upon an age-old pastime: scanning desperately through every streaming service I subscribe to for something worth bingeing after I got the kids to bed.
My Previously Watched catalog looks a lot like many of my millennial counterparts’. It’s a blend of riveting true crime stories, lighthearted comfort comedies, playful historical and romantic dramas, random reality TV, and the occasional history or science lesson.
But on this particular evening, I found a series in which my personal and professional interests collided (a rare treat when you work in a field called “e-discovery,” and everyone you know stares blankly and nods upon hearing the term).
Hosted by Netflix, it was a limited series called Trial by Media and each of its six episodes covered a legal case whose frenzied media coverage defined its investigation, trial, and the long-term ripple effect it had on popular culture.
Highly recommend it if you need something to watch this weekend (or during those stolen weeknight hours when you should go to bed, but the rare comfort of having the couch all to yourself in a quiet house is simply irresistible). It was a fascinating look at the intersection of the justice system, reality TV, and how people can get so swept up by the shock value of a case that they forget how real humans are involved in the story they follow from afar.
Not long after I watched that show, the session catalog for Relativity Fest 2023 came along—and right there was a panel promising to take a deep-dive into the challenging discussion of whether cameras should be allowed to record proceedings in a court of law. Naturally, I added it to my agenda immediately.
During the session, five speakers from the bar, the bench, and the media discussed the controversies and challenges of inviting broadcast news coverage into today’s courts. Panelists included:
- David Horrigan, Discovery Counsel & Legal Education Director, Relativity (as moderator)
- Joe Patrice, Senior Editor, Above the Law
- Isha Marathe, reporter, Legaltech News
- Stephanie Wilkins, Editor-in-Chief, Legaltech News
- U.S. Magistrate Judge William Matthewman (S.D. Fla.)
Keep reading to learn what they had to say.
The Ethics of Modern Journalism
“If it’s a public proceeding and media have a right to be there, let them in. But if it’s private, such as an attempt for a judge to settle a case with parties, no one else is allowed to be there—lawyers, individuals, or press. Federal rules require that confidentiality,” Judge Matthewman told the audience, in the simplest terms possible.
But while that’s a good starting point, he and the other panelists made it clear that determining whether journalists’ cameras will (or should) be permitted in courtrooms is not always so straightforward.
David Horrigan opened up the floor for the journalists on our panel, noting that the Society of Professional Journalists Code of Ethics states that “legal access to information differs from an ethical justification to publish or broadcast” that information.
In other words, David said, “Just because there’s not a gag order doesn’t mean you can just do it.” He asked our panel: “How do you balance a suspect’s right to a fair trial with the public’s right to know what’s going on?”
“I was a practicing lawyer on the defense side, so I have sympathies to the idea of protecting people on trial and not exploiting that situation,” Joe Patrice, senior editor at Above the Law, said. “I see why someone would not want too much media presence without a good reason for it.”
“These rules are commonsense to me, like Joe said,” Stephanie Wilkins, editor-in-chief at Legaltech News, added. “Just because you can doesn’t mean you should.”
This set the tone for much of the discussion; though our panelists’ opinions sometimes varied, each was thoughtful of the consequences of either extreme on the spectrum between “media silence” and “media frenzy.”
Judge Matthewman, who shared that he is largely in favor of media coverage of court proceedings (where circumstances permit), did have a request for the journalists in the room: “The only thing I would ask is that when reporters cover these matters, they don’t take one side. Present a balanced, factual basis so readers can decide for themselves whether a judge’s decision was correct or not—as opposed to trying to lead the reader to a decision.”
Isha Marathe, a reporter for Legaltech News, shared some thoughts on just why balanced journalism is so important in legal reporting.
“I don’t think what is written by journalists will have an outcome on cases,” she said. But that isn’t the only reason writers should be cognizant of what they write and the impact it can have.
“I will say that, especially because of social media and particularly TikTok, it definitely affects the court of public opinion if not the court of law,” she went on to explain. “Think about the Johnny Depp and Amber Heard trial, and how it was tried in the court of public opinion in many ways.”
Stephanie emphasized the need for good editorial processes in this regard, too.
“Part of my role is to have a finger on the pulse of what’s going on, to make sure writers are following ethical rules to begin with, and that any story that may be contentious or controversial gets my eyes on it,” she said. “More than one of us will read it before publishing. At the end of the day, even if another journalist writes a story, the buck stops with me. So if something may cause a stir in any way, I want to make sure I’m on it.”
Cautioning Lawyers on Extrajudicial Statements
David went on to note that, as journalists should examine their own code of conduct in deciding how to cover a potentially sensitive legal proceeding, lawyers on a case must always be mindful of how they handle themselves with the media.
Specifically, ABA Model Rule 3.6 states that attorneys participating in a matter “shall not make an extrajudicial statement that the lawyer knows, or reasonably should know, will … have a substantial likelihood of materially prejudicing and adjudicative proceeding on the matter.”
In other words, making thoughtless, overly detailed, inflammatory, or other statements to members of the media that could influence or jeopardize the outcome of a case is a big no-no.
But does that mean it never happens?
“I’ve never had a problem with trial publicity as a lawyer because I knew not to talk. As a journalist, there have been instances that have been a little dicey,” Joe recalled. “People involved in cases want to get their two cents in to spin a narrative. I don’t feel obligated to tell them they shouldn’t do it, but sometimes I do feel I’m hearing things they shouldn’t be saying.”
Stephanie Wilkins agreed: “I’ve seen it, definitely.”
She’s also experienced lawyers who were all too anxious to rewrite coverage of their cases.
“I recall one example where we wrote an article with a headline that had language from a complaint, but the parties contacted us and hated it so much we had to argue it,” Stephanie continued. “They wanted to argue their case to us. People are constantly trying to follow up on what they said, asking us to change it as it’s written, and sometimes it surprises me.”
Judge Matthewman also expressed concern in this area.
“Over the past several years, proliferation of social media and blogging, I think this line gets crossed more and more,” he said. “We talk about not making comments on the investigation of a matter, but you’ll sometimes see defense lawyers angry at prosecution and they get frustrated with each other as they make comments to media throughout a case.”
In an era where so much of what’s said ends up on the record somewhere, lawyers would be wise to avoid the all-too-common pitfalls that could tempt them to speak out of turn, give too much away, or take personally a bit of media coverage that isn’t exactly as they’d like it to be. That’s as true in the courthouse as anywhere else.
Graphics for this article were created by Natalie Andrews.
