02/22/2011 TUE 11:44 FAX 203 867 6240 NH CRIMINAL DIV oz No, CRO7-241860 STATE OF CONNECTICUT ) SUPERIOR COURT v. ) NEWHAVEN JUDICIAL Dis1RICT JOSHUA KOMISARIEVSKY ) FEBRUARY 22, 2011 MEMORANDUM OF DECISION RE DEFENDANT'S MOTION REGARDING USE OF ELECTRONIC DEVICES AND BROADCASTING L INTRODUCTION. ‘The motion now before the court secks to prohibit the use of new forms of electronic communication in the courtroom. The defendant, Joshua Konisarjevsky, is awaiting trial on numerous charges, including capital felony; Conn. Gen, Stat. § 53a-$4b; and sexual assault in the first degroc; Conn, Gen, Stat. § 534-101; arising out of a triple homicide in Cheshire in 2007. The case has aroused intense media interest. Because the defendant is charged with sexual assault, “[nJo broadcasting, televising, recording or photographing” of the trial is permitted, P.B. § 1-11(b). This rule of practice plainly prohibits television and radio coverage of the trial proceedings in the courtroom. The rule is not clear whether new electronic forms of communication, particularly communication by the real- ‘time information network known as Twitter, are similarly prohibited. Media representatives wish to use Twitter to report on the trial. On February 4, 2011, the defendant filed the motion now before the court, seeking to prohibit “the use of electronic devices by spectators ... during the course of all court proceedings.” Although the motion bO+ VY 22 934 We 301440 S.WHII9 J31HO 1 £unoo yolysdn ‘OP NGAVH AGN02/22/2011 TUE 11:45 FAX 203 867 6240 NH CRIMINAL DIV Boos addresses electronic devices generally, the bulk of it is aimed specifically at Twitter!. The motion specifically claims that Twitter js a form of “broadcasting” and is thus categorically prohibited by PBB. § 1-11(b). The motion alternatively claims that, even if Twitter is not categorically prohibited by P.B. § 1-11), it and other electronic technology should be prohibited in this case as a matter of judicial discretion under P.B. § 1-10(b). The motion was heard on February 16, 2011. The State opposed the motion, Although no media representative sought to intervene, media interest in the issue was demonstrated by the fact that the hearing itself was reported on Twitter. TI. P.B. § 1-11(b). The defendant's principal claim is that Twitter is a form of “broadcasting” within the meaning of PB. § 1-11(b). Ifit is, Twitter coverage must be prohibited as a matter of law, without exercise of judicial discretion, No evidence was presented at the heating, but Twitter’s website (http://twitter.com/about) (visited February 16, 2011) provides a useful description of the service. The website explains that, “At the heart of Twitter are small bursts of information called Tweets. Each Tweet is 140 characters in length.” The service allows usors either to Direct Message (DM) specific individuals or to use “twitter posts” accessible to the public. The website claims 175 million registered users and the writing of 95 million tweets per day. While the service was initially used | +o communicate the trivia of everyday life, it has recently become a powerful tool of political | information. Earlier this year, Twitter was used by antigovernment groups to publicize protests ' Other forms of live electronic communication, such as live blogging, raise many of the issues presented by Twitter but have not been specifically addressed by the parties, 202/22/2011 TUE 11:45 FAX 203 867 6240 NH CRIMINAL DIV Boos that brought down the govemment of Egypt. Is this form of electronic communication “broadcasting” within the meaning of P.B. § 1- 11(b)? ‘The Practice Book does not define the term in question. Dictionary and unrelated statutory definitions of the term are of limited assistance. “Broadcast” was originally an agricultural term, used to describe seed being “[s]eattered abroad over the whole surface, instead of being sown in drills or rows.” I Oxford English Dictionary 37 (1933). By the 1920's, however, the agricultural meaning of the term had become obsolete and the term was instead understood to refer to the transmission of radio signals. The identity of “broadcasting” and “radio” was, at the time, so complete that the principal sponsor of the Radio Act of 1927, 44 Stat. 1162 (1927), stated that, “there is no question at all what is meant by broadcasting.” 68 Cong. Rec. 2880 (1927) (statement of Sen. Dill). This asserted lack of doubt was short-lived. By the late 1940's, courts began to wrestle with the question whether the term included television as well as radio transmissions, Norman v, Century Athletic Club, Inc., 69 A.2d 46 (Md. 1949). By the late 1970's, the invention of cable television had created new definitional issues for the courts. Federal Communications Commission v. Midwest Video Corp., 440 U.S. 689 (1979). The recent proliferation of other electronic forms of communication - ‘Twitter being the most prominent example - is now creating cutting-edge issues of its own. When a term is not defined by the legal provision in question, courts offen “look to the ordinary meaning of the term" as set forth in dictionaries. Ransom v. FLA Card Services, N.A., 131 8.Ct, 716, 724 (2011), One dictionary irequently considered authoritative is Webster's Third New Intemational Dictionary (1971) (“Wehster’s). Id. Webster's defines “broadcast” as “to send out from a transmitting station (a radio or television program) for an unlimited number of02/22/2011 TUE 11:45 FAK 203 867 6240 NH CRIMINAL DIV receivers.” However authoritative elsewhere, Webster's is of minimal assistance here, Webster's was published in 1971, prior to the invention of cable television, not to mention that of more recent electronic media. No serious argument could be made in the modern world that a sexual assault trial could be shown on cable television because no “transmitting station” was involved. Statutory definitions of the term “broadcasting” are subject to similar infirmities of age. ‘The definition of “broadcasting” in the Communications Act of 1934, 47 U.S.C. § 153(6),, for example, was drawn from the Washington Intemational Radiotelegraph Convention of 1927; National Association for Better Broadcasting v. Federal Communications Commission, 849 F.2d 665, 676 (D.C. Cir. 1988) (Wald, C.J., dissenting); and was held inapplicable to cable television systems in Federal Communications Commission v. Midwest Video Corp., supra. The definition of “broadcaster” contained in Connecticut’s taxation statutes, Conn, Gen. Stat. § 12 218(1)(2)(F)’, has been updated to include cable transmissions, but applies only to corporations 747 U.S.C. § 153(6) defines “broadcasting” as the dissemination of radio communications intended to be received by the public, directly or by the intermediary of relay stations.” The term “radio communication” means “the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission.” /d., § 153(33). > Conn. Gen. Stat. § 12-218()(2)(F) defines “broadcaster” as a corporation that is ‘engaged in the business of broadcasting video or audio programming, whether through the public airwaves, by cable, by direct or indirect satellite transmission or by any other means of communication, through an over-the-sir television or radio network, through a television or radio station or through a cable network or cable television system, and that is primarily engaged in activities that, in accordance with the North American Industry Classification System, United States Manual, 1997 edition, are included in industry group 5131 or 5132.” Industry group 5131 “comprises establishments primarily engaged in operating broadcast studios and facilities for over-the-air or satellite delivery of radio and television programs.” Industry group 5132 “comprises establishments that primarily assemble program material and transmit television 4 Boos _