Thursday Thinkpiece: Hall-Coates on Digital Media and the Open Court Principle

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Following Digital Media into the Courtroom: Publicity and the Open Court Principle in the Information Age
(2015) 24 Dalhousie Journal of Legal Studies 101

Shauna Hall-Coates
Shauna Hall-Coates completed a combined JD/MLIS from Dalhousie University in 2015, and will be called to the Nova Scotia Bar in June 2016.

Excerpt: Abstract, Introduction, and Sections III-IV
[Footnotes omitted. They can be found in the original via the link above]

Abstract

Despite the pervasive integration of technology into various social institutions, one public body—the courtroom—has largely resisted such efforts. This separation is collapsing, however, as trial spectators increasingly arrive at court expecting to use their handheld digital devices inside to publish information about trials in real-time on live-blogging platforms. Consequently, Canadian courts have been forced to grapple with what role, if any, digital media is to play within their walls as this new information age puts pressure on a centuries old legal tradition.

This article examines the debate on the use of digital devices in the courtroom from the perspective of the “open court principle,” as articulated in both law and general jurisprudential theory. It argues that using digital media as a platform to disseminate courtroom narratives has the potential to strengthen many of the open court principle’s foundational values, including accessibility, judicial accountability, and freedom of speech. These benefits may nonetheless come at a cost to the open court’s normative functions, since multiple, non-linear courtroom narratives created by digital media can undermine the publication of clear, determinate norms around which people can structure their lives. Accordingly, this article suggests that in deciding whether to permit digital media use in the courtroom, the justice system must determine which of the democratic values that underpin the open court principle ought to be given decisive weight in modern society.

INTRODUCTION

An incontrovertible truth of the modern age is that technology has been, and will undoubtedly continue to be, one of the defining characteristics of 21st century life. In Canada, individuals increasingly live their lives with the Internet literally at their fingertips, as the proliferation of digital technologies in increasingly diminutive forms has made it possible to stay connected at any time and from any location. Yet despite the pervasive integration of technology into various social institutions, one dimension of civil society—the courtroom—has remained relatively immune from technology’s noisy demands for recognition. Walk into any courtroom today, critics venture, and it will look stunningly similar to those of the past; the judge will be sitting behind the bench, the jury in its box, and the witness on the stand. As everyone settles into his or her place selected by centuries of ritual and status quo, the courtroom may even appear as a sanctuary from the trappings of digital technology, so doggedly pursued outside its walls.

This segregation between the courtroom and digital technology is nonetheless collapsing, as trial spectators increasingly arrive to court expecting that they will be able to use their digital devices inside to publish information about the trial in real-time through social media such as Twitter and other live-blogging platforms. Moreover, despite the judicial system’s wariness of digital media technologies, their integration into the courtroom is strongly supported on the basis of the “open court” principle—that venerated ideal within the English justice system that holds court proceedings must be open to the public and that publicity as to those proceedings must be unconstrained. As a result, courts across Canada have been forced to grapple with what role, if any, digital media technology is to play within the modern casting of the open court principle, and who, if anyone, is given recourse to its use in the courtroom.

Entering this critical fray, this article examines the debate on both sides of the coin for the inclusion and exclusion of digital devices and the attendant use of social media within the courtroom, based primarily on its accordance with the theoretical and legal underpinnings of the open court principle as they exist at the level of both Canadian law and general jurisprudential theory. At its root, this article rejects critics’ suggestion that social media use within the courtroom merely acts as the 21st century equivalent of the reporter’s pen and paper, and thus does not represent a radical break from past journalistic practices. On the contrary, this article argues that these platforms create wholly new and challenging courtroom narratives, characterized by the immediacy, interactivity, abundance, and permanence of the information disseminated through them. Likewise, since the Internet has democratized information dissemination, these courtroom narratives may be increasingly relayed in jurisdictions where it is permitted, such as Nova Scotia, by anonymous civilians who remain deeply unaccountable to a professional or organizational body in a manner commensurate with the accredited media.

Accordingly, the revolutionary nature of this information dissemination platform exposes both digital media’s promises and problems in relation to the normative values that support the open court principle. The normative values underpinning the open court principle are complex, and deliberation on them is found in canonical Supreme Court of Canada case law, as well as in the writings of legal philosophers and critics such as Jeremy Bentham, Lon L. Fuller, and Jeremy Waldron. Distilled to their bare essence, the values of the open court principle centre on the self-legitimization of the judicial system in a democratic system of governance and the self-determination of individuals in a functioning democracy. This latter value involves the dual-pronged ability of citizens to self-govern according to a clear understanding of their legal entitlements and obligations within a democratic order, while simultaneously being free to publicly question the efficacy and legitimacy of these same laws to which they know that they are coercively beholden.

Using digital media as a platform to disseminate courtroom narratives has the potential to strengthen many of the open court principle’s foundational values, including accessibility, accountability of the judiciary, and freedom of speech. However, even as digital publicity in all its multiple, non-linear narratives has the profound ability to increase discursive debate, it undermines the publication of clear, determinate norms around which people can structure their lives. This argument is heavily steeped in humans’ troublesome online truth-seeking practices and in critics’ suggestions that digital media is a constant, and perhaps unavoidable, purveyor of misinformation in society. Accordingly, this article suggests that in deciding whether to integrate digital media use within the courtroom, the justice system must determine which of the democratic values that underpin the open court principle ought to be given decisive weight in modern society. Once the judicial door has been opened to use of digital media, it is legally and practically difficult to close the door, given that the test to obtain a common law publication ban is onerous, and cries of censorship target judges who refuse to accommodate the multiplicity of perspectives that social media’s proponents celebrate. Consequently, the wariness of some Canadian courts to welcome digital media technology into their fold may be prudent in light of this technology’s capacity to problematize fulfillment of the very core values they hold as sacrosanct.

…

III. THE GOOD NEWS: JUSTIFYING DIGITAL MEDIA USE ON THE BASIS OF THE OPEN COURT PRINCIPLE

A. Accountability and Freedom of Information

Live-blogging in the courtroom by journalists and the public is supported on the basis that it further demystifies the judicial process, which, despite the open court principle, “remains shrouded in mysterious ritual” to the eyes of many. As noted in Part I, the notion of transparency has long been entangled with the integrity of the justice system, as the democratic legitimization of judicial power flows from the public’s collective confidence in the legal system as an impartial and independent arbiter of rights. For critics, exposing the courtroom to a virtual audience would have the effect of promoting its accountability to both the general public and to those associated with the case who were unable to attend in person, including family and friends of the parties. The logic here is simple: the more open that the process is in terms of witnesses and the more extensive its public record, the less likely it is that judges and members of the court will stray from the proper administration of justice. Support for live-blogging on the basis of increased public oversight is evident in the words of Chief Justice Kennedy, who welcomed digital media into Nova Scotia courtrooms by acknowledging that the “whole premise [of the courts] is based on the fact that we think an informed public will have confidence in [them]. We think that the more they know, the better off we’re going to be. Twitter is the latest technology that allows it.”

The right to live-blog courtroom proceedings has also been cast as a fundamental issue of access for those positioned outside the courtroom. As digital media can provide information to citizens “with an immediacy and thoroughness never before available,” anyone with Internet access can monitor a trial as it unfolds without having to traverse the physical barriers that have long kept courtrooms both paradoxically open and closed. Moreover, given that the information transmitted about the parties, witnesses, and action can far surpass that of a traditional newspaper article or even a written judgment, the public may be better equipped to make an informed and empathetic analysis of the case. Sujoy Chatterjee explains: “An informed public that knows the names, backgrounds, and socio-economic conditions of the people involved in…court cases will be better equipped to critique a particular court decision in the hope of creating real social change.” In this sense, social media’s ability to transmit vast quantities of information, which can be augmented by links and images as discussed in Part II, directly aligns with the democratic ideal of opening up the courtroom for the world to see its contents and to judge its outcome. As Charles Nesson eloquently puts it, tweeting and live-blogging can “facilitate [the] coveted ideal [of the open court principle] and allow the whispers, now made in the inner rooms of our public courthouses, to be proclaimed from the digital roof tops for all to hear.”

B. Freedom of Expression: Open Court Meets Court of Public Opinion

Conversely, live-blogging during a court proceeding has also been championed as a right of access for those positioned inside the courtroom on the basis of the freedom of expression guarantee under section 2(b) of the Charter. Specifically, section 2(b) has been used to challenge any distinction between journalists and non-journalists’ permitted use of digital media in court—a division reinforced by some of the policies of different jurisdictions and at different levels of court across Canada, as discussed in Part II. Though the debate in Canada regarding discrimination of access in this regard is nascent, prominent media law scholar Michael Geist has challenged the tendency to privilege the accredited media’s right to live-blog court proceedings to the exclusion of all others on the basis that it fundamentally conflicts with section 2(b)’s inclusive guarantee.

According to Geist, the Ontario Superior Court’s ban on general public tweeting is arguably unconstitutional:

Either everyone should be free to tweet or no one should…but to limit “authorized tweeting” to a special group is “enormously problematic.” [This ban] leaves journalism students, freelancers, bloggers, and responsible citizens who wish to attend trials and communicate about them in a situation that is likely to end in a violation of their rights….Presumptively banned from using the same communications medium as reporters, they can be kicked out if they try, and charged with contempt. Under the Charter, “everyone” has the right to freedom of expression, including freedom of the press and other media of communication.”

Others have made equivalent arguments on section 2(b) grounds, noting that what previously entitled journalists to act as the exclusive purveyors of courtroom content was their hegemonic control over mass media in a print-based economy. Since this hegemony has declined in the Internet’s wake, the justice system, in upholding section 2(b), is correspondingly compelled to accommodate a world in which everyone has an equal ability to report from the courts. In this vein, critics have pointed out the capricious underpinnings of a ban on the public’s live-blogging, contending that

…the policy is simply unfair and arbitrary. […] [I]n the case of courtrooms, the access provided [to] journalists and non-journalists is basically the same. Indeed, barring exceptional circumstances, courtrooms are open to anyone who can get there. […] [I]mposing a class structure on attendees in open court is untenable.

Consequently, if information dissemination is held as a public service and not a consumer good, and the media is accepted under section 2(b) as having no freedom of expression rights in the courtroom over and above those of average citizens, distinctions drawn between the accredited media and the public may indeed prove legally flawed.

Support for live-blogging courtroom proceedings and discrediting class distinctions drawn in this regard also stems from a promotion of the model of discursive democracy outlined above in Part I. Drawing on the work of theorists including Lon Fuller, recall that the Supreme Court of Canada and legal scholars such as Jeremy Waldron held that the fair functioning of the liberal democratic order required civilian access to information and the attendant opportunity to deliberate upon that information critically. Since critics like Waldron suggest the law itself is a site of civic contestation and debate, public institutions like the courts have an obligation to provide citizens with the information they need to actively resist dominant judicial interpretations of their civic rights and obligations. Though previously undiscussed, implicit in this argument is the assumption that the public has access to communal sites of information exchange in which they are able to freely engage in political and social debate regarding the law without government interference or censorship.

The Internet, in its ability to generate infinite knowledge and function as a medium for human interaction free from temporal and spatial boundaries, has been cast as the locus for civic debate in the 21st century. Generally, the Internet is a sphere of inclusivity and unconstrained dialogue—elements critical to a democratic system of information exchange and argument. In this light, scholar Geoffrey Leane explains the Internet’s normative function as it relates to deliberative discourse:

The grea[t] ambition for the Internet as a communicative medium is that it can facilitate not only access to information and data but also the possibility of narrative exchange and collective will formation—the opportunity to become informed, to argue and to reach reasoned and rational positions which might become part of a public sphere consensus.

Through platforms like Twitter, which open up inclusive public space for the exchange of information and perspectives, civilians may discover increased opportunities “for political communication and engagement, for political contestation—and thus for agency.” The emancipatory power of these online communities are further evidenced by the fact that users can overcome traditional barriers to political recognition, including race or gender, in the anonymous world of online discourse.

If live accounts of trials are wellsprings for an informed citizenry, the online public debate that encircles these virtual watering holes may subsequently enrich “both the substantive positions of participants and also their political selves as citizens.” As enthusiasm for deliberative democracy in liberal societies is “driven by a perceived distance between the drives and motivations of citizens and the political decisions made in their name,” live-blogging in all its informational immediacy may be able to narrow the temporal distance between lawmaker and subject, as the latter is able to instantly respond to the actions of the former. Emphasizing the narrowing distance between the judge and the public, Charles Nesson suggests:

[The] Internet can provide a vision of the future in which the court is truly recognized as a public place. This is a concept that harkens back to the original idea of trials from a foundational time of our nation, when trials were the cent[re] of community activity….

Thus, live-blogging may offer a nexus between conversations about the law both inside and outside the walls of the courtroom, functioning as an inclusive and interactive site for public debate not yet experienced in the often staid world of discourse about the courts.

IV. THE BAD NEWS: THE RISKS OF DIGITAL MEDIA USE IN THE COURTROOM

“When you’re trying to correct things through Twitter alone, it’s a losing battle from the beginning. […] You end up chasing Tweets that spread faster than you can keep up; it’s like putting toothpaste back in the tube, except the toothpaste is alive and didn’t like it in the tube and is dreaming of Broadway.”
—DAVID HOLMES

A. Twitter and the Troubling Search for Truth

Despite these strong arguments in favour of live-blogging, problems inherent in its use persist. First and foremost, the Supreme Court has held that the open court principle fundamentally operates on the assumption that the reporting of legal information will be done in an accurate and fair manner. Critics, in turn, have argued that this presumption is an indispensable element to the practical operation of the open court principle, insofar as it relieves judges, in the absence of countervailing evidence, of the onerous task of having to vet or screen the integrity of the press when presiding in full view of the media. The requirement for accurate reporting is undeniably crucial, as the Supreme Court in Edmonton Journal recognized that truthful and clear reporting of the law’s content is necessary for individuals to understand their legal obligations and entitlements. Likewise, returning to the analysis of the law through theorists such as Fuller and Waldron, the clear manifestation of its content affords individuals the critical capacity to apply the law to their own behaviour through self-governance, and lends stability and predictability to the lives of citizens in a manner that underscores their dignity as legal subjects capable of self-determination.

Nonetheless, in a media landscape where Twitter and other live-blogging platforms act as frenetic sources of information, it is apparent that falsehoods will be made in quantities and qualities never before seen, threatening public perception of the clarity and determinate nature of the law’s content. On a basic level, misrepresentations may be made by accident and by anyone: a misquotation, an incorrect name, or a detail that was to remain off the record. However, in the great echo chamber of the Internet, these slips will nevertheless travel in large circles, and critics warn that corrections—if they come—may not come in time to prevent people from walking away with mistaken impressions of reality. On a more malevolent level, those outside the accredited media may intentionally circulate misinformation, as occurred recently when Oscar Pistorius’ supporters took to social media to deliberately recast key facts during his trial for murder.

Similarly, anonymous sources of information may take advantage of the lack of oversight and accountability to skew facts in a manner beneficial to their point of view, either by decontextualizing information to present it in a different light or by emphasizing choice bits of information that are inflammatory outside of the complete narrative. As these retweeted reframings could still be linked to an established media source, a veneer of credibility may problematically gloss over otherwise unreliable information. Lastly, between accident and intent lies a host of other troubling states, including insufficient objectivity, voyeurism, gossip, speculation, half-truths, and bare sensationalism. Whatever the method and motive, the risk of distortion is real and the challenges of effectively containing the viral spread of misinformation in large-scale social networks are substantial.

This problem raises a secondary concern involving individuals’ online truth-seeking behaviour, or lack thereof. Simply put, as the Internet presents individuals with massive quantities of information, their filtering mechanisms—which are premised on their preconceptions, biases, and prejudices—can often become survivalist techniques. Geoffrey Leane explains:

Given the sheer quantity of information available in complex modern societies and now relatively accessible in unprecedented quantities on the Internet, information seekers typically need a filtering process that renders incoming information reasonably manageable, comprehensible, and amenable to analysis. One can self-select filters to suit one’s own needs, interests and preferences. But therein lies the corollary problem of too much filtering.

On the topic of “too much filtering,” technology critics have warned users about the tunnel vision effect that the Internet has on individuals’ search for truth, noting that while the

…advantage of technology is that it allows people to filter information and customize their selection, this advantage at the same time limits people’s exposure. Because the Internet allows users to visit websites that are very specialized and often geared towards specific audiences, the Internet eliminates an element of randomness, reduces exposure to a variety of views and perspectives, and potentially creates a biased worldview.

As individuals’ egocentrism may dominate their online information-seeking behaviours, their freedom to “self-select…information sites, news and opinions [may] simply confirm [their] prejudices and [cause them to] become more politically segregated and intolerant.”

On this point it is important to emphasize that critics see the self-filtering nature of online information as a break from traditional news media of the past. For instance, Leane writes:

Modern mass media have traditionally served as filtering devices and, whilst self-selecting themselves, at least exposed readers and viewers to some variety of perspectives in, for example, editorial pages of print media. We may choose our newspaper and preferred editorial writers on the basis of our personal predilections but our attention might still be caught by others. […] There is at least the possibility of inadvertent exposure to contrary arguments and opinions. Not so with pre-chosen Internet sites if one so wishes.

Returning to the context of truth-seeking in the midst of misinformation, individuals are unlikely to recognize a falsehood if they do not seek or gain exposure to alternative perspectives and narratives. Therefore, misinformation about the law will be increasingly rooted in the social discourse of live-blogging, as it meets the radical grounds for confirmation bias laid by the Internet.

When competing narratives emerge for a single court proceeding, it may be difficult to discern fiction from fact, particularly as the information travels further away from its original source. In the context of the open court principle, reliance on live-blogging and Twitter as mechanisms for dissemination thus troublingly places the truth-seeking function of the open court principle in direct tension with its deliberative function. The problem is deceptively simple: the more opportunity there is to create multiple narratives regarding judicial proceedings, the more likely it is that misinformation will be produced and that mistakes will be made. As a result, the ability for individuals to self-govern on the basis of legal determinacy, which the publicity principle is supposed to ensure, is fundamentally weakened, as the deliberative conversation surrounding the law amplifies. Furthermore, the problem begs a choice as to which critical facet of the open court principle deserves to be privileged: is it the self-determinative function, which underscores individuals’ human dignity in their self-governance, or is it the self-deliberative function, which underscores individuals’ human dignity in their engagement in public debate and action?

For theorists like Waldron, the conflict between legal clarity and public conversation arising from the publicity principle comes as little surprise and offers little resolution. Waldron explicitly highlights how these dual values of democratic order can come into tension with one another, writing that the argumentative nature of deliberative democracy “has a price: it probably brings with it a diminution in law’s certainty.” Elsewhere, Waldron explicitly brings Fuller into the fold, asserting:

The tension may be also represented as a tension between various strands of dignity associated with the Rule of Law. Fuller, we saw, associated his formal criteria with a dignitarian conception of the legal subject as an agent capable of monitoring and freely governing his own conduct. […] But how, it may be asked, can we maintain this mode of respect if law becomes contestable and uncertain as the result of argumentation? Insisting on an opportunity for argumentation respects dignity too but at the cost of diminishing the confidence that we can have in the dignity of law’s self-application at the hands of ordinary individuals.

Importantly, in Waldron’s account there does not appear to be any way in which the deliberative and determinative dimensions of informational freedom can be reconciled. By way of conclusion, he notes:

To say that we should value aspects of governance that promote the clarity and determinacy of rules for the sake of individual freedom, but not the opportunities for argumentation that a free and self-possessed individual is likely to demand, is to slice in half, to truncate, what the Rule of Law rests upon: respect for the freedom and dignity of each person as an active intelligence.

Consequently, the formal qualities of clarity, predictability, and determinacy simply bend with the “positive freedom” of individuals to actively engage in the administration of public affairs. It is this bending of the truth to accommodate deliberate discourse that appears particularly acute in the context of digital media in the courtroom, as the free flow of information presents itself in all its possibility and forbiddance in this novel form of publicity.

B. Publication Bans and Lingering Challenges of Free Expression

Barring digital media use from the courtrooms on the basis that it obscures the truth by creating multiple and potentially divergent narratives is deeply problematic for two reasons. Firstly, the Supreme Court in Mentuck held that once information has entered the public domain of the courtroom, access to disseminate this information should be denied only where its publication would present a real and substantial risk to the proper administration of justice (e.g. a risk to the accused’s section 11(d) Charter right to a fair trial), and where the salutary effects of denying access outweigh the deleterious effects. In framing this common law test for imposing a publication ban, the Supreme Court held that the risk to the administration of justice must be grave and non-speculative; a generalized assertion of a risk, or a fear based on “common sense and logic alone, without the benefit of real and substantial evidence,” is not sufficient. Finally, under this test, the Supreme Court concluded that publication bans should be ordered only in exceptional cases.

This threshold for publication bans—meant to uphold freedom of speech in relation to the open court principle—is thus unquestionably high. To this end, the test may pose issues in jurisdictions like Nova Scotia where live-tweeting is presumptively allowed, but where the judge has concerns that a truthful account of its proceedings may be obscured, distorted, or lost in the volley of tweeting. Such circumstances may arise during highly controversial or sensational cases, where media scrutiny and public attendance are atypically intense. In these circumstances, implementing a ban on publication via digital media based on a
desire to preserve a ‘correct’ or uncontested narrative might not rise beyond the level of speculative evidence of harm to the administration of justice. This would be an untenable ground on which to exercise judicial discretion under the Dagenais/Mentuck test. Moreover, given the fact that sensational, high-stakes criminal cases attract most publicity, the judge may be simultaneously under pressure to allow extensive trial coverage to ensure the accused’s right to a fair trial under section 11(d) of the Charter.

Secondly, judicial attempts to ban social media use on the basis that it leads to multiple, contestable narratives may attract suspicion of censoring the public’s freedom of speech. Such bans have been strongly criticized by scholars as obstructionist and self-interested. It is important to see that judicial decisions are, in the words of Elaine Craig, “normative—they make a claim to truth. ‘Every judicial narrative is a claim of knowledge. […] When judges narrate, our initial reaction is to treat their narration as an accurate reflection of reality.’” As a result, in a scathing critique of the justice system’s attempt to limit trial information to the ultimate judgment at the expense of alternative media’s involvement, Charles Nesson wrote:

The courts are trying to contain the news. The courts are trying to manage the content released to the world. The courts are trying to create their vision of trial—a vision of an isolated proceeding in which a record is carefully crafted and submitted as truth. This record provides justification for the judicial result and is ideally not vulnerable to media assaults along the way. The courts are trying to avoid the commenting and critiquing that comes with sensational trial[s]; they are trying to avoid the talking heads.

Based on these concerns, judges may find themselves in uncomfortable positions as they attempt to harness digital media’s potential, while avoiding unjust infringements on free speech. Thus, out of concern for similar cries of obfuscation or censorship of section 2(b)’s freedom of expression, judges may be forced to cede control over the flow of information in a manner that makes them “just a participant in a connective community, rather than the person in control of a legal process.” Consequently, while the fight may be waged between the normative value of the law’s content and the discursive nature of its debate in the context of the open court principle, freedom of speech under section 2(b) may be the ultimate trump card, particularly in circumstances where the courts have already brought digital media technologies into the fold.