CR 07-241860

STATE OF CONNECTICUT

SUPREME COURT

V.

HARTFORD

JOSHUA KOMESARJEVSKY

MARCH 10, 2011

STATE'S OPPOSITION TO THE DEFENDANT'S APPLICATION FOR A PUBLIC INTEREST APPEAL

The defendant is awaiting trial on numerous charges including several capital felonies

and first degree sexual assaults for crimes committed against the Petit family in Cheshire in

the summer of 2007. The defendant is challenging the trial court's ruling (Blue, J.) that denied

his motion to prohibit spectators at his trial from using the social network Twitter to report on

the case during the trial.' The defendant is seeking review of this ruling as a public interest

appeal pursuant to General Statutes § 52-265 and Practice Book § 83-1.

This application should be rejected, however, because the defendant lacks standing

to pursue the claim he presents in his application, and any issues that might affect his rights

do not satisfy the criteria for a public interest appeal because they can be addressed during

trial and on appeal, should he be convicted.

BRIEF HISTORY OF THE CASE

As the defendant noted, during the trial of co-defendant Steven Hayes, the trial court,

Blue, J, permitted spectators to tweet," In light of this history, the defendant filed a pretrial

1 The process of doing this is known as "tweeting," and the message itself is a "tweet."

It is limited to 140 characters and can be dispersed to specific parties or posted on a website to be accessed by members of the public. Posting is accompliSPtetJ bylu~loflal>H9iable phone or other device that can access the internet.

l '.'':'1r, ']I"r1l"JddV 2 Hayes was convicted and sentenced to on Novembet~J!~g~-OJ(d~jdns

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motion to prohibit spectators from reporting on the trial on the social website Twitter during trial

proceedings. In his motion, the defendant claimed that tweeting during the trial violates

Practice Book § 1-11 (b) because it constitutes a prohibited "broadcast" during the trial of a

sexual assault. He also claimed that tweeting during trial violates Practice Book § 1-10 (b).

In a memorandum of decision dated February 22, 2011, the trial court denied the

defendant's motion." The trial court ruled that tweeting was not "broadcasting" as delineated

by § 1-11 (b) and, therefore, was not prohibited by that rule. App. at 2,7. The court determined

that any decision whether to permit the use of electronic devices fell under the rubric of

Practice Book § 1-10 (a), which leaves that decision to the trial court's discretion. App. at 7.

The court also rejected the defendant's claim that tweeting should be prohibited because of

the lack of "social utility" of the various transmissions. Id. at 8. The trial court refused to venture

into the world of regulating communication based on its content. Id.

Finally, recognizing its authority pursuant to § 1-10 (a), the trial court made clear its

willingness to exercise "its discretionary ability to address particular behavior problems found

to be disruptive ... " Id. at 9.

SPECIFIC FACTS AND LAW RELIED UPON

The defendant persists in his claim that tweeting is a broadcast and thus is prohibited

by Practice Book § 1-11 (b).4 He asserts, as a substantial public interest, the fact that this is

3 The trial court's memorandum of decision is appended hereto.

4 The defendant has limited his challenge to the trial court's ruling on Practice Book § 1-11 (b), stating the issues as follows: Does Rule of Practice 1-11 (b), which forbids the broadcasting of sexual assault trials, prohibit speGt~oIs in~i@1 tQ~.JcRNf1:room from utilizing Twitter in order to provide real-time descriptions-dt tlleqria~ tdjiihl~bdience outside the courtroom?" The defendant no longer makes a claim under Practice Book § 1-10 (a). Moreover, he does not make a claim that the trial coudt'$10[iJng~ip~la~}qe guidelines for "The .

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a notorious case which must, nevertheless, proceed in an atmosphere of "judicial serenity and

cairn.'" Defendant's application quoting Estes v. Texas, 281 U.S. 532, 536 (1965). As a matter

of public interest, the defendant posits that the ruling in this case will influence "more mundane

proceedings in trial courts." Application at 6. Finally, he argues that this matter must be

decided now because of a concern that post-conviction review may be useless if the error

. committed proves to be harmless. Application at 7.

The defendant's application must be rejected, however, because he lacks standing to

complain about a violation of Practice Book § 1-11 (b), and this Court will be able to provide

the defendant with a remedy for any violation of his personal rights should he be convicted.

Moreover, any concern that the trial court's ruling will "influence" other cases is questionable

because one superior court judge is not bound by ruling of another.

I. THE DEFENDANT LACKS STANDING

Standing is a prerequisite for this Court to obtain subject matter jurisdiction over a

matter. Gold v. Rowland, 296 Conn. 186,207 (2010) (Standing is legal right to set judicial

machinery in motion). Absent subject matter jurisdiction, this Court is powerless to act. Id. at

209 (without jurisdiction case dismissed). Subject matter jurisdiction is also required when

deciding the merits of a public interest appeal. Connecticut Coalition for Justice in Educ. 295

Conn. 240, 254-255 (2010) (court determines case is justiciable before reaching merits).

Because subject matter jurisdiction is non-waivable, it can be raised at anytime. Practice Book

§ 66-8.

This Court already has ruled that a criminal defendant lacks standing to assert the rights

Use and Possession of Electronic Devices in Superior Court Facilities." Appended hereto at A-10

3

of others. state v. Iban C., 275 Conn. 624, 664-666 (2005). In Iban C., the defendant appealed the trial court's decision to appoint a guardian ad litem for the child victim claiming that the ruling violated the parents' constitutional right to care for their child. Id. This Court rejected that claim and ruled that the right in question "belonged to the parents of the victim, and the defendant cannot acquire it by cloaking his claim in a violation of the court's rules and procedures." Id. The claim was not improved by the defendant's argument that his rights were "intertwined" with victim's parents. Id.

Similarly, in State v. Figueroa, 22 Conn. App. 73, cert. denied, 215 Conn. 814 (1990), the Appellate Court rejected a defendant's claim that he could file an interlocutory appeal premised on the rights of the victim. In Figueroa, the defendant appealed a trial court's ruling to unseal a police report. Id. at 74. The defendant claimed that he satisfied the final judgment requirements of State v. Curcio, 191 Conn. 27,30-31 (1983), and thus was entitled to a review of his claim. State v. Figueroa, 22 Conn. App at 77. One of the grounds asserted in this regard was that the "unsealing of the police report will injure the reputation of the minor victim." Id. at 79. Although the Court lauded the defendant's chivalry, it determined nevertheless, that he lacked standing. As to the effect release of the report had on his rights, the Court held, "In the event that he is convicted and is of the opinion that the verdict has been tainted by pretrial publicity, he may challenge the trial court's unsealing of the police report in a timely posttrial appeal." Id. at 79.

A brief review of Practice Book § 1-11 reveals that subsection (b) was added to protect the rights and sensitivities of sexual assault victims and not those who violate them. In 2007, the Practice Book permitted "media coverage" of a "criminal trial" without the limitations set

4

forth in § 1-11 (b). See Practice Book § 1-11 (c) (Rev-2008) (Subsection (c) was subsection

(b) prior to 2008). Indeed, subsection (b) came into existence in 2008 to, as the trial court

found, "spare a sexual assault victim from the indignity of having his or her ordeal vividly

conveyed to the world by use of actual voices and televised images projected from the

courtroom." App. at 5. See also General Statutes § 54-86e (prohibiting use of the name or

identification of sexual assault victims at trial).

The drafters of the Practice Book rules regarding media coverage certainly knew how

to extend standing to challenge such coverage. In Practice Book § 1-11C, the pilot program

for media coverage, subsection (5) (d) begins as follows:

(d) Any party, attorney, witness or other interested person may object in advance of electronic coverage of a criminal proceeding or trial if there exists a substantial reason to believe that such coverage will undermine the legal rights of a party or will significantly compromise the safety of a witness or other person or impact significant privacy concerns.

(Emphasis added). There is no comparable language in Practice Book § 1-11 (b).

The defendant's application should be rejected, therefore, because he lacks standing

to assert the interest protected by Practice Book § 1-11 (b). Consequently, this Court lacks

subject matter jurisdiction.

II. THIS CASE DOES NOT SATISFY THE CRITERIA FOR A PUBLIC INTEREST APPEAL BECAUSE ANY THREAT TO THE DEFENDANT'S RIGHTS CAN BE ADDRESSED DURING THE TRIAL OR, IF HE IS CONVICTED, ON APPEAL

As this Court has recognized, General Statutes § 52-265a provides the Court with

discretionary jurisdiction to entertain appeals from interlocutory orders. As such, it is properly

invoked only when an applicant satisfies its requirements that the case presents significant

ramifications affecting public interest and "injustice from delay that cannot be substantially

5

addressed by appellate review of the final judgment after completion of the trial." Melia v. Hartford Fire Insurance Co., 202 Conn 252, 256-257 (1987). These concerns are heightened in the criminal justice context, where the policy against piecemeal litigation and the concern for efficient operation of the judicial system are strongest. See, State v. Parker, 194 Conn. 650, 656 (1984) (Piecemeal appeals disfavored because delay resulting therefrom does not serve the public's interest in swift and certain justice). The defendant's application does not satisfy these criteria.

For example, the defendant eschews any effort to prove that the trial court's ruling has aggrieved him in any way or compromises the substantial public interest in the fair administration of justice. Indeed, the defendant wants to be relieved of proving harm by arguing that, if he awaits his appeal, any error might be deemed harmless. He also complains that "the harm arising from tweeting is difficult to demonstrate to an appellate court." Application at 7. The primary flaw in this logic is that the defendant assumes he will be convicted. Acquittal after a claimed error is the paradigm of harmless error. A primary reason criminal cases are not litigated in a piecemeal fashion is to avoid deciding questions that an acquittal might render moot.

Nevertheless, this Court, like others, prefers to evaluate claims of error in light of the entire trial so an issue can be reviewed in the midst of an active controversy. For example, in State v. Harrell, 199 Conn. 255, 266 (1986), the defendant sought review of the trial court's ruling that, if he testified, he could be impeached by his prior crimes. After deciding the matter for Harrell, this Court required future defendants to actually testify and be cross-examined in order to preserve the same claim on appeal.

The reasons for requiring the defendant to testify are several. If the defendant 6

testifies at his trial and then challenges the trial court's ruling on the admissibility of impeachment evidence, the reviewing court would then have had a complete record detailing the nature of [the appellant's] testimony, the scope of the cross-examination, and the possible impact of the impeachment on the jury's verdict. In addition, Luce acknowledged that a reviewing court is particularly handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true [where a court is called upon] to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. Therefore, to accomplish this balancing, the court must know the precise nature of the defendant's testimony, which is unknowable when ... the defendant does not testify.

(Internal citations and quotations omitted). Id. adopting Luce v. United States, 469 U.S. 38

(1984). I n other words, without certainty that the defendant will testify, or that he will be cross-

examined about his prior crimes, there was no way to determine whether the error would

infiltrate the trial, and, if it did, whether it was prejudicial. The same is true here.

The need to test whether an "erroneous" ruling influences a criminal trial is especially

pressing when a defendant claims possible prejudice from media coverage. State v. Marra,

215 Conn. 716, 732 (1990) (General rule that defendant must prove prejudice from publicity).

In Marra, the defendant claimed that he was prejudiced by the release of certain information

during his trial. Id. The defendant claimed, moreover, that he was relieved of proving actual

prejudice because he suffered inherent prejudice. Id. This Court rejected the defendant's

appellate claim that release of the information was inherently prejudicial and set forth the

following factors it considered: 1) the limited duration of the publicity; 2) the defendant failed

to show that the press conduct, in gathering its information, disrupted the courtroom such that

"the trial proceedings were conducted in an atmosphere utterly corrupted by press coverage;"

3) only two jurors were exposed to the information released during trial, and; 4) the Court's

confidence that the jury would comply with the trial court's instruction to consider only the

7

evidence presented in court. State v. Marra, 215 Conn. at 732-733.

What is most notable about Marra is that every factor this Court considered, when

determining whether inherent prejudice existed, arose during the course of the trial. In other

words, even inherent prejudice-which relieves the defendant of proving actual prejudice-

cannot be discerned without first having a trial. Indeed, one of the most notorious cases

involving a trial overrun by media coverage is Shepard v. Maxwell, 384 u.s. 333 (1966). In

Shepard, the defendant claimed that he was denied his due process rights because of biased

pretrial publicity and media coverage of the actual trial. It was the fallout from events involving

the actual trial that tipped the scales in his favor.

While we cannot say that Sheppard was denied due process by the judge's refusal to take precautions against the influence of pretrial publicity alone, the court's later rulings must be considered against the setting in which the trial was held ....

The fact is that bedlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Shepard.

Having assigned almost all of the available seats in the courtroom to the news media the judge lost his ability to supervise that environment. The movement of the reporters in and out of the courtroom caused frequent confusion and disruption of the trial. And the record reveals constant commotion within the bar. Moreover, the judge gave the throng of newsmen gathered in the corridors of the courthouse absolute free rein. Participants in the trial, including the jury, were forced to run a gauntlet of reporters and photographers each time they entered or left the courtroom. The total lack of consideration for the privacy of the jury was demonstrated by the assignment to a broadcasting station of space next to the jury room on the floor above the courtroom, as well as the fact that jurors were allowed to make telephone calls during their five-day deliberation.

Sheppard v. Maxwell, 384 U.S. 333, 354-355. "The carnival atmosphere at trialcould easily

have been avoided since the courtroom and courthouse premises are subject to the control

of the court." Id. There are two notable aspects to Sheppard. First, as in Marra, the trial had

8

to be completed to determine whether the defendant was prejudiced by media coverage. Second, had the trial court controlled the proceedings inside the courtroom itself, Sheppard's rights could have been protected.

Here, Judge Blue has announced his intentions to "address particular behavior found to be disruptive ... " App, at 9. Moreover, the defendant did not offer any evidence that, during the course of the Hayes trial, the atmosphere was so polluted that Hayes was denied a fair trial. Thus, it is premature for this Court to evaluate whether the trial court's decision to permit tweeting during this trial is the type of error that compromises the defendant's rights because there is no way of knowing. Put another way, the rights and interests the defendant asserts can fully be addressed after trial. Thus, a public interest appeal is not warranted.

III. ADDITIONAL MATTERS

The defendant is concerned that if this Court fails to rule now, other "more mundane" proceedings might be influenced by Judge Blue's ruling. Of course, no coordinate trial court is bound by Judge Blue's ruling. So that concern is speculative.

The defendant also claims that review is warranted because "it is one of those issues likely to recur but-not easily susceptible to review." Application at 7. If this is the defendant's stab at transforming an application for a public interest appeal into a final judgment capable of review, it fails because, as set forth in the previous section, this claim is most certainly capable of review on direct appeal. Indeed it is incapable of review without a trial.

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CONCLUSION

The application for a public interest appeal pursuant to General Statutes § 52-265a,

should be denied.

Respectfully submitted,

THE STATE OF CONNECTICUT

-~

Seni sistantSf;te's Attorney

Office of the Chief State's Attorney Appellate Bureau

300 Corporate Place

Rocky Hill, CT 06067

Tel. (860) 258-5807

Fax. (860) 258-5828

Juris # 401859

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CERTIFICATION

The undersigned attorney hereby certifies that this document complies with the provisions of Practice Book § 66-3, and that a copy of the same was mailed to: Jeremiah Donovan, Esq., 123 Elm Street, Unit 400, P.O. Box 554, Old Saybrook, CT 06475, Tel. (860) 388-3750, Fax. (860) 388-3181; Walter C. Bansley, III, Esq., Bansley Law Offices, LLC, 20 Academy Street, New Haven, CT 06510, Tel. (203) 776-1900, Fax. (203) 773-1904; and Todd

A. Bussert, Esq., 103 Whitney Avenue, Suite 4, New Haven, CT06510-1229, Tel. (203)495- 9790, Fax. (203) 495-9795.

I

ssistant State's Attorney

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No. CR07-241860

STATE OF CONNECTICUT

) ) )

SUPERIOR COURT

v.

NEW HAVEN JUDICIAL DISTRICT

JOSHUA KOMISARJEVSKY

FEBRUARY 22,2011

MEMORANDUM OF DECISION

RE DEFENDANT'S MOTION REGARDING

USE OF ELECTRONIC DEVICES AND BROADCASTING

I. INTRODUCTION.

The motion now before the COUlt seeks 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-54b; and sexual assault in the

first degree; Conn. Gen. Stat. § 53a-lOl; arising out of a triple homicide in Cheshire in ~007.

The case has aroused intense media interest.

Because the defendant is charged with sexual assault, "[n]o broadcasting, televising,

recording or photographing" of the trial is permitted. P.B. § 1-I1(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

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addresses electronic devices generally, the bulk of it is aimed specifically at Twitter', The motion

specifically claims that Twitter is a form of "broadcasting" and is thus categorically prohibited by

P.B. § l-Llfb). The motion alternatively claims that, even if Twitter is not categorically

prohibited by P _B. § 1-11 (b), it and other electronic technology should he prohibited in this case

as a matter of judicial discretion under P _B. § 1-1 O(b).

The defendant's principal claim is that Twitter is a form of "broadcasting" within the

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.

II. r.B. § 1-11(b).

meaning ofP.B. § 1-1 1 (b). If it is, Twitter coverage must be prohibited as a matter of law,

without exercise of judicial discretion.

No evidence was presented at the hearing, but Twitter's website (b.ttp:lltwitter.comlabout)

(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 users 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

to 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

2

1 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.

that brought down the government of Egypt.

Is this form of electronic communication "broadcasting" within the meaning ofP.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 "[sjcattered 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 Congo Rec. 2880 (1927) (statement of Sen. Dill). This asserted lack of doubt was short-lived. By the late 19401s; 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 466 (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 communicationTwitter 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 often "look to the ordinary meaning of the term" as set forth in dictionaries. Ransom v, FlA Card Services, N.A., 131 S.Ct. 716.724 (2011). One dictionary frequently considered authoritative is Webster'S Third New International Dictionary (1971) ("Webster's). ld Webster's defines "broadcast" as "to send out from a transmitting station (a radio or television program) for an unlimited number of

3

receiv ers. ,.

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.

4

Statutory definitions of the term "broadcasting" are subject to similar infirmities of age.

The definition of vbroadcasting" in the Communications Act of 1934,47 U.S.c. § 153(6)2, for

example, was drawn. from the Washington International Radiotelegraph Convention of 1927;

National Association/or 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(l)(2)(FY\ has been updated to include cable transmissions, but applies only to corporations

247 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." t«. § 153(33).

:; Conn. Gen. Stat. § 12- 218(l)(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 OJ: by any other means of communication, through an. over-the-air 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

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and is, in any event, frozen in time by incorporating 1997 industry group definitions by reference.

These statutory definitions are of little assistance here.

Under these circumstances, the appropriate judicial approach is to construct an

interpretation that comports with the primary purpose of the rule in question and does not lead to anomalous or unreasonable results. See Rodriguez v. Testa, 296 Conn. 1) 11,993 A.2d 955

(2010).

The primary purpose of P.B. § 1-11 (b) is plainly to spare a sexual assault victim from the

indignity of having his or her ordeal vividly conveyed to the world by the use of actual voices

and photographic or televised images projected from the courtroom. This interest is a powerful

one, but - absent the unusual case of a closed courtroom and sealed transcript" - it cannot sensibly

extend beyond voices and photographic or televised images to the actual words spoken in court

or descriptions of courtroom events. Although P.B. § 1-11 (b) plainly bars the use of television

cameras and radio transmitters in court. it does not bar the press and public from access either to

This consideration is particularly important because the right of access to criminal trials is

the courtroom itself or to transcripts and other sources of courtroom words and events. See Globe

Newspaper Co. v. Superior Court, 457 U.S. S96~ 610 (1982).

afforded protection by the First and Sixth Amendments. Waller v, Georgia, 467 U.S. 39 (1984);

Globe Newspaper Co. 11. Superior Court, supra. This openness is embedded both in the

constitutional text and in centuries of experience. It also has a vital functional role with respect to

the functioning of the judicial process and the government as a whole. As Globe Newspaper

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programs for cable and satellite systems, or that operate these systems." 4 No party has requested a closed courtroom in this case.

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explains,

Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process, with benefits to both the defendant and to society as a whole. Moreover, public access to the criminal trial fosters an appearance of fairness, thereby heightening public respect for the judicial process. And in the broadest terms, public access to criminal trials permits the public to participate in and serve as a check upon the judicial process - an essential component in our structure of self-government.

457 U.S., at 606. (Footnotes ornitted.)

Courts traditionally have proceeded with caution in extending old legislation to new

technologies. Richmond v. Southern Bell Telephone & Telegraph Co., 174 U.8. 761 (1899),

provides an early example of this caution. An 1866 statute provided federal assistance "to aid in

the construction of telegraph lines." 14 Stat. 221, c. 230 (1866). At the time of the statute's

enactment, the telephone had not been invented. When the telephone was first invented (it Was

made public in 1876), it was commonly referred to as a form of "telegraph." Norman v. Century

Athletic Club, Inc., s~pra, 69 A.2d, at 469. When, however, purchasers of telephone lines seized

on this new definition to claim government assistance under the 1866 statute, the Supreme Court

declined to till the old statutory bottles with new technological wine, explaining that, .. It is not

the function of the judiciary, because of discoveries after the act of 1866) to broaden the

provisions of that act so that it will include corporations or companies that were not, and could

not have been at that time, within the contemplation of Congress." 174 U.S., at 776.

Federal Communications Commission v, Midwest Video Corp; supra, provides a more

recent example of judicial caution in this area. As mentioned, the Communications Act of 1934

applies to "broadcasting." The definition of this term is rooted in a 1927 international

convention. See n. 1 & accompanying text, supra. When confronted with the invention of cable

6

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television, the Court decided to proceed cautiously in this area, "[ijn light of the hesitancy with

which Congress approached the access issue in the broadcast area .... We think authority to

compel cable operators to provide common carriage of public-originated transmissions must

come specifically from Congress." 440 U.S., at 708-09.

The court should exercise a similar caution when asked to extend the categorical

prohibition of P .B. § 1-11 (b) to new electronic technologies. That decision, if it is to be made at

all, ought to be made in the more deliberate context ofP.B. § I~9, which allows proposed rules to

be published in advance and subjected to public comment prior to being debated and voted upon

by the Judges of the Superior Court. This process invites input from interested members of the

public (many of whom may be more familiar with new technology than members of the

be extended to apply to new electronic technologies, this deliberative process should be followed.

j udiciary) and extended contemplation and debate by the entire judiciary itself If § 1-11 (b) is to

For these reasons, the Court declines to extend the categorical prohibition ofP .B. § 1-

11 (b) to Twitter.

ID. P.B. § I-tO(a).

Although, for reasons stated above, the mandatory prohibition of P.R § 1-11 (b) does not

. .

apply to TWitter, the court retains discretionary authority under a Separate rule of practice to

restrict the use of electronic devices in the courtroom when they are "disruptive of the court

proceeding)'. P.B. § 1-IO(a). 5 Judicial discretion must be exercised on a case-by-case basis. If the

5 P.B. § I-IO(a) provides that, "Personal computers may be used for note-taking in a courtroom. If the judicial authority finds that the use of computers is disruptive of the court proceeding, it may limit such USe. No other electronic devices shall be used in a courtroom unless authorized by a judicial authority or permitted by these rules."

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behavior, electronic or otherwise, of any person in the courtroom becomes disruptive, the court

can take appropriate action. The appropriate action is determined by the type of disruption

involved. Most disruptive activity can be addressed by a simple request to the person involved to

adjust the behavior in question, If, for example, a journalist uses an electronic device with a noisy

keyboard, he or she can be instructed to obtain a silent keyboard or moved to a more distant

location in the courtroom,

The defendant suggested at argument that what is, in his view, the lack of social utility in

electronic communications made from the courtroom should influence the exercise of judicial

discretion. His specific argument is that these communications tend to be either trivial or

inaccurate and thus play no useful role in educating' the public ab~ut the judicial process, The

short answer to this contention is that control of the substance of courtroom reporting is not an

appropriate exercise of the judicial function.in a free society. Jurors are routinely instructed to

avoid media reports concerning the case. The court should ignore such reports as well,

This limited judicial role is recognized throughout the English-speaking world. The

Supreme COUlt of Ireland has recently reminded us that, "The right of freedom of expression

extends the same protection to worthless, prurient and meretricious publication as it does to

worthy, serious and socially valuable works. The undoubted fact that news media frequently and

implausibly invoke the public interest to cloak worthless and even offensive material does not

affect the principle." Mahon 'V_ Post Publications, [2007] I.L.R-M. 1~ 13-14 (Ir, S. C. 2007). A

distinguished United Kingdom judge has explained that,

[I]n deciding upon the importance of press freedom in the particular case, [a judge] is likely to distinguish between what he thinks deserves publication in the public interest and things in which the public are merely interested. He may

8

VVI VVI .... V~J- J-V .. U_ .L .L~1.. .. vV , V~

, ..

even. advert to the commercial motives of the newspaper or television company compared with the damage to the public or individual interest which would be caused by publication.

The motives which impel judges to assume a power to balance freedom of speech against other interests are almost always understandable and humane On the facts of the particular case·before them. Newspapers ate sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which "right thinking people" regard as dangerous or irresponsible.

R. v. Central Independent Television PIC., (1994] Fam. 192, 202~03 (1994) (Hoffinan, L.J.).

----- A1though·-tJ:.H,)-.e0'l:1:ft.~etains··tE.e-ahl-l-i-ty-te--restriet-disruptive activity, the content of

electronic OJ; other reporting cannot be considered in making this determination.

IV. CONCLUSION.

set forth above.

The motion to prohibit the use of electronic devices in court is denied. The court retains

its discretionary ability to address particular behavior found to be disruptive, under the standards

Jon CrBlue

Judge of the Superior Court

9

The Use and Possession of Electronic Devices in Superior Court Facilities

The following guidelines are subject in all cases to a judge or other judicial authority issuing additional specific orders or guidelines for the use of electronic devices in his or her courtroom or hearing:

A person may have any of the following electronic devices:

A cell phone

A camera phone

A personal computer with or without video or audio recording capabilities

A digital or tape audio recorder

A personal digital assistant (PDA) with or without video or audio recording capabilities

Any other electronic device that can broadcast, record, or take photographs

A person may use a cell phone:

to make phone calls, send and receive e-malls and/or send and receive text messages only, but not in a courtroom, lockup, chambers, or offices

A person is prohibited from using a cell phone, or any other electronic device to: take pictures

take videos

make sound recordings

broadcast sound

broadcast still or moving images (video)

Exceptions with the permission of the judge or other judicial authority;

A person may use a personal computer for note-taking in a courtroom.

A person who is a participant in a hearing or trial may use a personal computer or other electronic device in a courtroom.

Other electronic devices may be used in a courtroom if permitted by the judge or other judicial authority or permitted by court rules.

Miscellaneous:

A person may use an electronic device to make an audio or video recording or to take photographs of a public meeting that is subject to the Freedom of Information Act and which is taking place in a superior court facility subject to the following:

• The recording or photographing is done as inconspicuously as possible.

• The recording or photographing is done in a safe, non-disruptive manner.

}~

• The group holding a public meeting subject to the Freedom of Information Act may decide before the meeting reasonable rules controlling the recording or photographing of the meeting based on the

need for '

• order,

• safety, and

• decorum

of the public agency and those attending the meeting.

• Persons using equipment for recording or photographing a public meeting may use the equipment only for those purposes and shall not use it for any other purposes except as permitted by these guidelines.

The judicial marshals shall make sure that equipment is only used as allowed by these guidelines and any rule adopted by a group holding a meeting that is subject to the Freedom of Information Act. The equipment or the film or other media used in making a recording or photograph may be confiscated if the equipment is used in a way that violates these guidelines or if it is used in a way that violates the rules set by the group holding the meeting subject to the Freedom of Information Act, as long as there is notice of those rules before the meeting.

The right to use an electronic device to make an audio or video recording or to take photographs of a public meeting that is not subject to the Freedom of Information Act and which is taking place in a superior court facility will be decided by. the group holding the meeting and the judicial marshals shall make sure that equipment is only used as allowed by the group.

Any person employed in a state's attorney's office or a public defender's office that is located in a court facility may use a cellular telephone or other electronic device in such office and may authorize another person to use a cellular telephone or other electronic device in such office. These guidelines do not apply to employees of the judicial Branch who must comply with Judicial Branch pollcles concerning the possession and use of electronic devices in court facilities. These guidelines do not restrict in any way the possession or use of electronic devices in court facilities by judges of the superior court, judge trial referees, state referees, family support magistrates or family support referees or the authority of such judicial authorities to permit others to use electronic devices in chambers.

Hon. Barbara M. Quinn Chief Court Administrator

Effective August 1, 2008 and revised on January 5, 2009 and November 16, 2010

in accordance with Practice Book § 1-10.

Electronic Devices in the Supreme and Appellate Courts