02/22/2011 TlIE 11:44 FAX 203 867 6240

NH CRIMINAL DIV

No. CR07-241860

STATE OF CONNECTICUT

) ) )

FEBRUARY 22, 2011

SUPERlOR COURT

v.

NEW l-IA YEN JUDICIAL DISTRICT

JOSHUA KOMISARJEVSKY

:MEMORANDUM OF DECISION

RE DEFENDANT'S MOTION REGARDING

USE OF ELECTRONIC J)EVICES AND BROADCASTING

1. INTRODUCTION.

The motion now before the court 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; COM. Gen. Stat. § 53a-54b; and sexual assault in the

first degree; Conn. Gen. Stat. § 53a-1 01; 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, "[n]o 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

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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-ll(b). The motion alternatively claims that, even if Twitter is not categorically

prohibited by P.B. § 1-1 1 (b), 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.

JI. P.B. § i-nn»,

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

meaning of P.B. § 1-11 (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 (http://twitteLcomJabout)

(visited February 16, 2011) provides a useful description of the service. The website explains

that, "At the heart of Twitter are small bursts ofinfonnation 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

I 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.

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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 ofradio 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 (l927), 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 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 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 conununicatiollTwitter 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). Id. Webster's defines "broadcast" as "to send out from a transmitting station (a radio or television program) tor an unlimited number of

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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)2, for

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

National Association for Beller 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 Commisston 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." Id., § 153(33).

3 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 or 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 ofP.B. § l-Lltb) is plainly to spare a sexual assault victim from the

indignity of having his orher 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

onc, 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. § I-I I (b) plainly bars the use of television

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

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

Newspaper Co. v. Superior Court, 457 U.S. 596,610 (J 982).

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

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

Globe Newspaper Co. v. 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

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 factflnding 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 omitted.)

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

technologies. Richmond v. Southern Bell Telephone & Telegraph Co., 174 U.S. 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., supra, 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 fin 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." J 74 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

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television, the Court decided to proceed cautiously in this area, "[i]n 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- or igina ted 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. § 1-9, 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 ofthe

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

judiciary) and extended contemplation and debate by the entire judiciary itself. If § 1·11 (b) is to

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

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

11(b) to Twitter.

Ill. P.B. § 1-10(a).

Although, for reasons stated above, the mandatory prohibition ofP.B. § 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. § 1-10(a). 5 Judicial discretion must be exercised on a case-by-case basis. If the

S P.B. § 1-1 OCa) provides that; "Personal computers may be used for note-taking in a courtroom. 11' 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 about the judicial process. The

short answer to this contention is that control of the $UbStaJ.1CC 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 Court 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 docs 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,

[1]11 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

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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 are 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 10 individuals or harm other aspects of the publi.c 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 110t be published. It means the right to say things which "right thinking people" regard as dangerous or irresponsible.

R. v. Central Independent Television PLe., [1994] Fam. 192,202-03 (1994) (Hoff Ulan, L.1.).

Although the court retains the ability to restrict disruptive activity, the content of

electronic or other reporting cannot be consi.dered in making this determination.

IV. CONCLUSION.

The motion to prohibit the use of electronic devices in com1 is denied. The court retains

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

set forth above.

Jon C. Blue

Judge of the Superior Court

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