The top judge in England and Wales ruled this week that there is no ban on observers in the courtroom using Twitter to communicate with the outside world. It is a good and important ruling, which recognizes the ways in which technology can be used to make legal proceedings more accessible. And it's one that the U.S. should follow in an effort to let technology play a greater role in opening up the justice system to the public.
The English dust-up over Twitter arose, appropriately enough, during a pair of hearings for Julian Assange, the controversial founder of WikiLeaks, where he was fighting extradition to Sweden on sexual assault charges, which he has denied. At a bail hearing last week, the judge allowed observers to tweet from the courtroom. But a judge at a hearing for Assange two days later barred the use of Twitter. On Monday, Lord Chief Justice Igor Judge stepped in and declared that the use of Twitter, which he described as an "unobtrusive, hand held, virtually silent" medium, could be allowed.
The Lord Chief Justice decreed that requests from the media to tweet would be decided on a case-by-case basis. Judges have to consider whether the tweeting would "interfere with the proper administration of justice," he said. But the Lord Chief Justice noted that Twitter could "enable the media to produce fair and accurate reports from the proceedings.
It was a somewhat surprising ruling, since smart phones and laptops have generally been prohibited for people in the audience. But while Britain's highest judge took a laudable leap into the future, earlier this year the United States Supreme Court took an unfortunate step backward on the issue of technology in the courts.
The Supreme Court has not yet considered Twitter, and lower courts are divided about it. A Connecticut state court judge allowed reporters to tweet updates from the high-profile murder trial of Steven J. Hayes, a decision that defense lawyers are trying to argue prejudiced the proceedings. And last year, a federal judge allowed a reporter to tweet from a gang trial in Wichita, Kansas. But a federal judge in Georgia, also last year, refused to let a reporter tweet from his courtroom, saying the tweets would run afoul of federal rules prohibiting "broadcasting" from criminal court.
The Supreme Court's big anti-technology-in-the-courtroom ruling came in January of this year, in the constitutional challenge to Proposition 8, California's anti-same-sex-marriage referendum. Judge Vaughn Walker, a federal judge in San Francisco, had originally tried to have the proceedings taped and broadcast over YouTube and live broadcast to courthouses in other cities. When the YouTube taping ran into technical problems, Judge Walker went ahead and ordered that the trial proceedings be aired in five courthouses, from Pasadena to Brooklyn, New York.
There was widespread interest in the trial — more than 140,000 people had signed petitions asking for it to be televised. The judge's order meant that at least some people around the country who were interested in the important legal issues raised by the case would be able to watch it for themselves at nearby courthouses.
Although the order was consistent with California federal court rules that authorized this sort of courthouse-to-courthouse broadcast, the Supreme Court stepped in and blocked it. In a 5-4 ruling, known as Hollingsworth v. Perry, the court overruled Judge Walker's decision and stopped the Prop 8 trial from being broadcast.
The court's majority insisted that broadcasting the trial, even just to other courtrooms, would be a burden on the witnesses, putting them in danger of being harassed because of their testimony. The majority was unable to see any harm if the trial was not broadcast.
Justice Stephen Breyer, writing for the four dissenters who would have allowed the courthouse-to-courthouse broadcast to proceed, saw things differently. In evaluating the various factors for and against allowing the trial to be broadcast to other courthouses, he put considerable emphasis on "the public's interest in observing trial proceedings to learn about this case and about how courts work."
The Supreme Court has long held that the First Amendment generally requires trials to be open to the public — an openness principle that the court has, of course, declined to apply to its own proceedings. As Chief Justice Warren Burger wrote in 1980, "People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing."
Judge Walker's original order — that the trial be aired on YouTube — and the Lord Chief Justice's Twitter order are in keeping with this spirit of holding open trials, and they are the sort of forward-looking decisions the courts need more of.
In another age, people could amble down to the county courthouse and watch trials first-hand. In modern times, when people are busy and populations are spread out, members of the public generally cannot make it to the courthouse to watch trials for themselves. It's high time to let technology help bridge the gap, allowing people to virtually observe, as Chief Justice Burger said, the institutions they are expected to accept.
Cohen, a lawyer, is a former TIME writer and a former member of the New York Times editorial board. Case Study, his legal column for TIME.com, appears every Wednesday