Official site here. I'm there, and we've been encouraged to blog or tweet from the conference, in the federal building. (The security guards were a little surprised that we were allowed to bring electronic equipment upstairs.) If you have any questions you'd like to ask the judges, please post them. The point of the conference is to see if the federal judiciary and the media (new and old) can come to terms with each other. The comments below are my quick paraphrasings of what is being said.
The judges are stressing that they want to learn about new media. They know it's coming to their nook of the legal system.
Judge Illston: Providing survey of current rules in the N.D. Cal. Phones are rarely banned in the ND. We no longer ask you to leave your phone with the marshals. But once you permit phones, you're permitting cameras. Judge Illston doesn't prohibit using a laptop to send text back to the office or to the internet. She occasionally prohibits that if the tapping on the keyboard is too loud.
Peter Scheer (First Amendment Coalition): The ban on broadcasting from federal courts is nationwide and would need to be changed by the judiciary or Congress -- which is likely to happen in the next year or two. In the meantime, the public isn't learning about important cases the way they should. We're still in the era of pastel drawings that we call recall from the Watergate era.
Melissa Griffin (SweetMelissa) Give examples of legal blawgs.
Kelli Sager: The problem we're facing is that with the shrinking newspapers, we're getting less coverage of the courts. So the courts can reach out more.
Judge Illston: Our court is working hard to be accessible but we're still learning. For example, I have a high profile case [i.e., Barry Bonds trial] and we worked to make the system accessible. But there was a limit on how much room we had to accommodate that. And we didn't have to face the tough question, "who is a journalist?" We're adding audio and video systems so people covering the Bonds trial could sit in the building and watch it. (We're not permitted to broadcast outside the building.) And we're making other efforts to accommodate the new media. But we can't be out there policing the process.
James Bettinger: How should courts decide who is, and who isn't, a journalist?
Judge Illston: Here's what happened. We had people sign up, and so far that's worked fine. No one was turned away.
Peter Scheer: "Who's a journalist" comes up only when spots need to be rationed. There are no official bodies to determine that. The courts don't want to be in the business of answering that, and shouldn't. The line drawing should be left to the profession itself. Maybe if there are too many journalists there, we need to decide [by lottery]. Government shouldn't decide it.
Sager: Courts often allocate in various ways (type of media; amount of circulation; etc.) and hopefully that will include new media.
Griffin: So far the allocation hasn't been a problem. Right now the police give the press passes so that they can walk across police lines. But we need a new way of managing that problem. We need a way to be certified somehow. It has to evolve toward that. We also need to educate new media types about not interfering with the legal process.
Judge Illston: We tried to provide information about the ground rules for covering in the Bonds case. But the person who walks into court for the first time might not know the rules and we need to address that on a continuing basis. It's the same issue with jurors. They need to informed about the rules. We can do a better job of that.
Bettinger: We've mentioned that fewer reporters from traditional media are covering the courts. What damage results from that/
Scheer: Mainstream media have been the primary force behind going to court, hiring lawyers, to fight for greater access to public information, to fight gag orders, and the like. We've all benefitted from that. In the past many newspapers had monopoly profits to spend on that. They don't have those resources anymore. And if newspapers can't hire media lawyers to open up things, who will? It's a challenge for courts, for people who care about access, etc.
Audience member: The police don't give press passes if they don't like your politics.
Bettinger: What about jurors? What kinds of issues do new media raise for you as a judge in a jury trial?
Judge Illston: The first concerns is the jury and making sure that they don't learn anything outside the evidence. These days, the internet is the main problem. It's so accessible as a source of information. It might be someone contacting the juror. More innocently, it's the juror looking for information about the subject matter of the suit. It's an effort to sequester the jury. We rely on their good faith. Mostly it works. That's what we tell the jurors. Next week when I start a new trial, I will instruct the lawyers to tell the witnesses not to try to use the internet to find out what's been said at the trial.
Sager: I wonder if we don't get too concerned with all that stuff. Can we really keep all jurors and witnesses from learning anything about the matter?
Griffin: [Relates anecdote about potential jurors googling and thereby getting out of jury duty!]
Scheer: Pretrial publicity concerns, no matter how great, can be offset by instructions, voir dire, and where necessary sequestration or change in venue. But pretrial publicity cannot justify closing the trial.
Audience Member: [Can't we get cable in the court room?]
Judge Illston: A court in the First Circuit tried that, and was told not to.
Sager: We're all still trying to get over the OJ Simpson case. We need to move on; need to find a way to prevent what we didn't like in that case but still keep the court open.
Audience Member: Can we really prevent jurors from accessing the internet for long periods of time?
Judge Illston: So far it hasn't been a problem.
Bettinger: We've seen the Simpson and Peterson cases. Will greater access bring the courts into disrepute?
Scheer: No. People have more respect when they see how the courts work. The oral argument in the Prop 8 case is a good example. People listening realized that law isn't just political fiat; it was a legal matter. People didn't think it was fixed the way politics are. People would see that a branch of government actually decides on the merits sometimes. That will redound to the benefit of the courts and the system generally.
Sager: Whatever you think of the Simpson case, you'd be wrong to think that the cameras made the difference. Now think about the Oklahoma bombing case, a case run expertly by an experienced judge. That one was televised via closed circuit proceedings and it didn't affect anything, and the public should have seen that. If they had, they would have admired the courts more.
Audience Member: How might the policy be changed?
Scheer: It's a policy of the federal judiciary and the judges who administer those rules (the Judicial Conference) aren't as easily addressed as regulatory bodies are. The Jud Conf is sensitive to Congress on issues like this, and it's come up in Congressional hearings. The conventional wisdom was that the SCOTUS needed to change its views, and Justice Souter was anti-cameras. That may have changed things. [Chief Justice Roberts doesn't like the idea.]