“I think that's a terrific idea,” said Steve Key, an attorney and executive director of the Hoosier State Press Association. “Right now the rules are a patchwork from judge to judge. Some don't think (cellphones) are a problem; others allow nothing (in the courtroom).”
But Allen County's policy and others like it should not be loosened simply for the convenience of journalists. As Heath asked in a letter to Bardach last month, “Isn't it time to consider a policy in which the media could make use of new technology under (their) First Amendment right of free press yet within the needs of the court to retain order and decorum?”
The answer is obvious and irrefutable: Yes.
It's important to note that Heath, who conferred with Key at my suggestion, advocates nothing that would undermine Gull's publicly stated justification for banning cellphones: a legitimate concern that spectators could use their phones and the internet to photograph and expose witnesses, perhaps for purposes of intimdation or revenge.
“That cannot and should not be permitted,” Heath wrote. “Imagine a multitude of media personnel taking photos or videos during trial. This would obviously disrupt the dignity of proceedings in court.”
But the case involving Wheaton illustrates the need for change precisely because he was doing nothing disruptive – but lost his phone and was cited for contempt anyway.
Wheaton, who was relatively new to town, claimed he was unaware of the no-phone rule when a guard caught him typing notes into his phone May 15 – actions no more disruptive than those of official court reporters or the sketch artists upon which the media have been forced to rely because of the ban on cameras.
And that's precisely Heath's point.
“Because of the Internet, the media can relay information instantaneously,” he wrote. “Media who wish to text could be restricted to a certain area of the courtroom so that members of the public would not be distracted.”
Some members of the media, of course, will not be satisfied until all restrictions are lifted. But Heath's suggestions are nevertheless a logical and relatively noncontroversial first step. In the wake of O.J. Simpson's murder and trial and other high-profile cases, even the most ardent defender of the First Amendment should be troubled by the degree to which cameras influence courtroom behavior – and possibly outcomes. But the public does have a right to receive information as quickly as reporters can get it to them, which a lifting of the ban on non-photographic electronic communications would allow.
Even if the judicial committee adopts a statewide policy, the devil will be in the details. As Heath notes, the courts may ask reporters to sign agreements governing their use of cellphones and other devices. It may also be necessary to provide official credentials for reporters who bring electronic devices into court, as St. Joseph County does. “(But) one of the newest issues to develop, because of Internet technology, is 'who are the media?' Are 'bloggers' part of the media? Our concern about bloggers is that they may not hold themselves to the same ethical obligations as the traditional mainstream media,” he wrote.
Key, who said he is willing to help craft a policy, called the notion of credentialing a “conundrum,” and he's right: Is a talented, credible Internet blogger really any less of a legitimate journalist than a bad reporter paid by a newspaper or TV station? The state “shield” law that allows reporters to protect confidential sources defines reporters in a traditional way, he said. Perhaps it – along with court rules – should be updated to reflect not only today's reality, but the future as well.
“Technology will continue to get more and more sophisticated,” said Heath, a 17-year civil judge who will succeed Judge Stephen Sims as a juvenile criminal judge following Sims' retirement next month. “We should have a rational discussion about this now, before it gets to critical mass.”
And blows up in everybody's face.