SOCIAL MEDIA'S INFLUENCE ON THE OUTCOME OF TRIALS

SOCIAL MEDIA’S INFLUENCE ON THE OUTCOME OF TRIALS:

STATE V.CASEY ANTHONY &DEPP V.HEARD—HOW

FLORIDA CAN PREVENT A BREAKDOWN IN THE

ADVERSARIAL PROCESS

BRITTANY STERN*

I. INTRODUCTION 112

II. RIGHT TO FREE PRESS AND AN IMPARTIAL JURY 113

A. First Amendment: Right to Free Press 113

B. Sixth Amendment: Right to an Impartial Jury 116

III. THE MEDIA’S INFLUENCE ON TRIAL OUTCOMES 118

A. The Negative Impact the Media has on the Court 120

IV. STATE V. ANTHONY: 2011 COURT CASE TRIED BY SOC IAL MEDIA 122

A. Implications of Media Reports 122

B. The Impact of the Media on the Jury & The Courts Attempt to

Combat Bias 124

C. The Verdict 125

V. DEPP V. HEARD: 2022 COURT CASE TRIED BY SOCIAL MEDIA 126

A. The Effect of Public Opinion on the Trial and the Social

Repercussions 127

B. A Dangerous Precedent 130

VI. “SOCIAL MEDIA TRIALS” 2011 TO 2022 130

VII. FLORIDA MOVING FORWARD 131

A. Florida’s Current Rules Regarding Media in the Courtroom

132

B. Preventing a Breakdown in the Adversarial Process 133

VII. CONCLUSION 135

* Brittany Stern earned her Bachelor of Business Administration degree in

International Business with minors in Business Law, Economics, and Marketing at Florida Atlantic

University. Brittany is currently a Juris Doctorate candidate for May 2024 at Nova Southeastern

University, Shepard Broad College of Law. Brittany would first like to thank the executive board

members, the editorial board members, and her fellow colleagues of Nova Law Review, Volume

47, for all their hard work and dedication to her publication. She would also like to give additional

thanks to her family and friends for their continuous support and constant encouragement. Lastly,

Brittany extends a special thank you to her boyfriend, Jordan Spitzberg, for his unwavering support

and for constantly challenging her to reach new heights in both her personal and professional

endeavors, to dream big, and to believe that anything is possible if you put your mind to it. Brittany

is beyond grateful for the support, enthusiasm, and encouragement she has received, especially in

the course of her law school journey!

112 NOVA LAW REVIEW [Vol. 47

I. INTRODUCTION

Social media has become entrenched in our lives.

The progressive

advancement of technology has given individuals the ability to use social media

to communicate and share information.

Although social media can be

beneficial, it can also be used to spread disinformation and influence public

opinion.

The vast use of social media by billions of people around the world is

having an impact on the American legal system.

More specifically, the use of

social media platforms presents challenges to individuals’ Sixth Amendment

right to an impartial jury.

Today, overwhelming numbers of people share their

opinions through social media platforms.

While prominent figures are regularly

subjected to these opinions—extensive media coverage of their pretrial and trial

experiences can potentially impact the outcome of their cases.

The law today

has not evolved to take the prejudice that arises from social media into

consideration.

Like fire, social media needs to be handled with caution because

user opinions can turn from something small to something large in the blink of

an eye—which can be very difficult to control.

Florida has not reconsidered the media’s presence in the courtroom in

over thirty years.

This Comment seeks to address the question, how can Florida

protect the media’s right to free press while combating the effects of social media

1. Emily M. Janoski-Haehlen, The Courts Are All a ‘Twitter’: The Implications

of Social Media Use in the Courts, 46 VAL. U. L. REV. 43, 43 (2011).

2. Id.

3. See id. at 44.

4. See Nicola A. Boothe-Perry, Friends of Justice: Does Social Media Impact

the Public Perception of the Justice System?, 35 PACE L. REV. 72, 82–84 (2014); Ethan Wall, How

Social Media Affects the Law, NEAL SCHAFFER: SOC. MEDIA & THE L.,

http://nealschaffer.com/social-media-affects-law/ (July 12, 2022).

5. See Leslie Y. Garfield Tenzer, Social Media, Venue, and the Right to a Fair

Trial, 71 BAYLOR L. REV. 421, 422 (2019).

6. See Thomas R. Romano, Note, Modern Media and Its Effect on High–Pr ofile

Cases, 32 SYRACUSE J. SCI. & TECH. L. 1, 2 (2016).

7. See Douglas E. Lee, Cameras in the Courtroom, FREEDOM F. INST.,

http://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-the-

press/cameras-in-the-courtroom/ (last visited Nov. 17, 2022).

8. See Riley Moran, Casey Anthony and the Social Media Trial, WOMEN LEADING

CHANGE: CASE STUD. WOMEN, GENDER, & FEMINISM, May 2019, at 44, 48.

9. See id. at 54–55.

10. See Martin Dyckman, Cameras in Florida’s Courts, THE FLA. BAR (Apr. 1,

2009), http://www.floridabar.org/the-florida-bar-news/cameras-in-floridas-courts/.

2023] SOCIAL MEDIA’S INFLUENCE ON TRIALS 113

on one’s right to a fair trial?

To protect the adversarial process and highly

talked about individuals during their trial, it is imperative for Florida to take into

consideration the effects of social media on a trial and narrow their laws

regarding publ ic access to information and the media’s presence in the

courtroom.

This Comment will begin by highlighting the media’s right to report on

trials under the First Amendment right to free press as well as the defendant’s

right under the Sixth Amendment to a fair and impartial jury.

From there, the

obsession with social media today and how it presents a major problem for

courtrooms will be discussed.

Following this discussion, this Comment will

examine the effects of the media on two cases that received extensive publicity—

a case from the pioneer days of social media and a more recent case that was

litigated during the height of the evol ution of social media and the vast expansion

of user platforms.

Lastly, this Comment will view the current remedies that are

in place in Florida to ensure that a fair trial is provided without affecting the

rights of the media, analyze whether those remedies are effective, and suggest

further remedies to prevent a breakdown in the adversarial process.

II. RIGHT TO FREE PRESS AND AN IMPARTIAL JURY

In the age of social media, one’s Sixth Amendment right to a fair trial

and reasonable punishment conflicts with the media’s First Amendment right to

free expression, as well as the general public’s right to consume news sources of

their choosing.

Balancing the freedom of the press and the rights of parties

during trial is essential to upholding the United States Constitution’s goal of

protecting the rights of the people.

A. First Amendment: Right to Free Press

The First Amendment of the United States Constitution states: “Congress

shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press; or the right

11. See discussion infra Part VII.

12. See discussion infra Part VII.

13. See discussion infra Section II.A–B.

14. See discussion infra Section III.A.

15. See discussion infra Parts IV–VI.

16. See discussion infra Section VII.A–B.

17. See Moran, supra note 8, at 50, 56.

18. See id.

114 NOVA LAW REVIEW [Vol. 47

of the people peaceably to assemble, and to petition the Government for a redress

of grievances.”

Despite the improvements in media technology, courts have so

far refused to recognize televised court proceedings as a First Amendment right.

Throughout the years, the rights of the media to report on court cases have been

decided by policymakers in the federal and state courts.

These rights allow the

media to essentially conduct almost unrestricted reporting.

While trials are

“presumptively open to the public . . . many state legislatures and the courts have

exercised their power to limit the media’s access to such information when the

rights of the parties to the case could potentially be harmed.”

There are varying

rules governing the use of cameras in the courtrooms.

For instance, the District

of Columbia prohibits televised coverage of all proceedings.

However, many

state courts allow cameras into the courtroom whenever the trial judge deems it

appropriate, while other states allow coverage only if all trial participants agree.

In 1965, the United States Supreme Court ruled unfavorably towards

allowing courtroom media covera ge in Estes v. Texas.

In this case, the

defendant was charged with defrauding several farmers which created extensive

national media coverage.

The defendant presented a pretrial motion to prevent

media coverage of the trial via telecasting, photography, and radio broadcasting;

the Court’s discussion on the pretrial motion was covered by the media and

broadcasted to the public during the same pretrial hearing.

The pretrial hearing

also garnered significant attention from the public.

The trial judge ultimately

allowed television coverage of the trial.

After the defendant was found guilty

of the charges, he later appealed his conviction arguing the television coverage

had denied him a fair trial.

Upon appeal, the Court agreed with the defendant

and held that live television coverage was distracting to jurors, judges, and

defendants, and was likely to impair witness testimony.

The Court recognized

19. U.S. CONST. amend. I.

20. Lee, supra note 7.

21. See id.

22. Romano, supra note 6, at 3.

23. Id. at 3–5.

24. See Lee, supra note 7.

25. Id.

26. Id.

27. 381 U.S. 532, 534–35 (1965).

28. See id. at 534 n.1.

29. Id. at 532.

30. Id.

31. Id. at 535, 537.

32. See Estes, 381 U.S. at 534–35.

33. Id. at 546, 547, 548, 549.

2023] SOCIAL MEDIA’S INFLUENCE ON TRIALS 115

that technology could make cameras less disruptive in the future, but nonetheless

held: “[o]ur judgment cannot be rested on the hypothesis of tomorrow but must

take the facts as they are presented today.”

In 1981, the Court revisited courtroom media coverage and its ruling in

Estes.

In Chandler v. Florida,

the Court held that Florida could allow radio,

television, and still photography coverage of a trial even if the defendant

objected.

In doing so, the Court analyzed the various opinions in Estes,

concluding the majority did not offer any constitutional rule that all photographic

or broadcast coverage of trials was inherently a denial of one’s constitutional

right.

Therefore, the Court held that absent a showing of prejudice, there was

no reason to endorse or to invalidate Florida’s experiment.

The ruling in

Chandler prompted some states to adopt rules allowing cameras in courtrooms.

While technology has advanced significantly since these rulings,

denying cameras access to courtrooms has not changed considerably since

1965.

“The Judicial Conference and the federal courts still believe live

television coverage distracts trial participants, unfairly affects the outcome of

trials and diminishes the [integrity] of the courts.”

Meanwhile, the media

continues to argue that courtroom coverage is no longer “distracting” or

“disruptive,” and televising the proceedings are beneficial to both the courts and

the public.

Even though state courts have been more accepting of these

arguments, none have granted a general right to broadcast a trial.

The courts

that are most accepting of cameras in the courtroom give judges broad discretion

to determine whether to allow televised coverage of the proceedings.

Other

states limit that discretion in certain cases, such as those involving minors.

34. Id. at 551–52.

35. See Chandler v. Florida, 449 U.S. 560, 570, 573, 574 (1981); Lee, supra note

7; Estes, 381 U.S. at 551–52.

36. 449 U.S. 560 (1981).

37. Id. at 573, 574, 582–83; Lee, supra note 7.

38. Chandler, 449 U.S. at 570, 573, 574; Lee, supra note 7.

39. Chandler, 449 U.S. at 582; Lee, supra note 7.

40. Lee, supra note 7; see also Chandler, 449 U.S. at 582–83 (holding that the

Constitution does not prohibit a state from adopting a program for televising its judicial

proceedings).

41. See Lee, supra note 7.

42. Id.

43. Id.

44. Id.

45. Id.

46. Lee, supra note 7.

116 NOVA LAW REVIEW [Vol. 47

States that are the most restrictive only allow trial coverage if all parties

consent.

B. Sixth Amendment: Right to an Impartial Jury

The United States Constitution, through the Sixth Amendment provides

the inalienable right to a speedy and public trial by an impartial jury.

This right

was established to “prevent a prejudiced application of justice and provide

transparency and fairness. . . .”

While the Sixth Amendment presents many

important rights, for the purpose of this Comment, the focus will be on the right

to an impartial jury.

With respect to civil trials, language in the Seventh

Amendm ent may make it seem as though there is no cons titutional right to an

impartial jury however, this is not the case.

Even though the Seventh

Amendm ent states that a party is entitled only to a trial by jury, not necessarily

an impartial jury, the drafters envisioned a civil jury trial because it also states

under the Seventh Amendment, “where the value in controversy . . . exceed[s]

twenty dollars , the right of a trial by jury [will] be preserved, and no fact tried by

a jury, [will] be . . . re-examined in any Court of the United States . . . .”

An impartial jury can be defined as a jury that does not hold any bias

surrounding the case.

In theory, a juror should be barred from participating in

a trial if the juror is unable to provide a fair verdict based solely on the facts

presented at trial.

A problem that is becoming more prevalent due to the

evolution of media is that jurors may receive information from extraneous

sources, which may affect their impartiality.

It is problematic for jurors to lack

impartiality because the purpose of the jury is to ensure the courts punish

wrongdoers and prevent arbitrary decisions against United States citizens.

For

47. Id.

48. Moran, supra note 8, at 47; U.S. CONST. amend. VI.

49. Moran, supra note 8, at 47.

50. See discussion infra Part I; U.S. CONST. amend. VI.

51. Tatum Lowe, Note, The Power of the Modern Media on an “Impartial” Jury:

A Deeper Look at the Ko be Bryant Wrongful Death Lawsuit, 42 LOY. L.A. ENT. L. REV. 43, 49

(2021).

52. Id.; see also U.S. CONST. amend. VII.

53. Impartial Jury: Definition & Legal Meaning, THE L. DICTIONARY,

http://thelawdictionary.org/impartial-jury (last visited Nov. 17, 2022).

54. Romano, supra note 6, at 6.

55. See id.

56. Moran, supra note 8, at 47.

2023] SOCIAL MEDIA’S INFLUENCE ON TRIALS 117

the judicial syst em to function fairly, jurors must remain impartial.

“Puni shment by a court of law results in serious lasting consequences, and thus

the judicial process is meant to err on the side of freedom.”

Therefore, many

measures have been implemented to ensure the impartiality of the jury.

ensure the court’s objective stance, “[j]ury members need an accurate and

transparent account of all the facts surrounding [the case] so they can [choose]

the most effective course of action within the context of our judicial system’s

freedoms.”

While no trial will be completely free from bias, the courts have

established legal rules and standards to ensure that the initial jury selection and

decision-making processes are as fair as possible.

The prosecution and defense

must select jurors from a panel that is indicative of the demographics of the

community.

Once the court determines that the panel is fair, the prosecution

and defense determine bias by asking the potential jurors questions.

A certain

number of pot ential jurors can be dismissed by the prosecution or defense

without reason on “peremptory challenges” and on “valid challenges for cause

that prove a person unable to make a fair decision.”

In some instances, selected

jurors are subjected to jury sequestration, which means they are isolated from the

public to prevent incurring accidental bi ases.

When jurors are sequestered, they

cannot access Wi-Fi, phones, or the media.

During this period of sequestration,

jurors usually stay in hotels and are only allowed to visit with people that have

no connection to the case under police supervision.

While sequestration

ensures a jury remains untampered and uninfluenced by public discourse during

the trial, it is ineffective in preventing the jury from bias pretrial.

57. Id.

58. Id. at 48.

59. Id. at 47.

60. Id.

61. Moran, supra note 8, at 48.

62. Id.; see also Taylor v. Louisiana, 419 U.S. 522, 538 (1975).

63. Moran, supra note 8, at 48.

64. Id.

65. Id.

66. Id.

67. Id.

68. See Moran, supra note 8, at 48.

118 NOVA LAW REVIEW [Vol. 47

III. THE MEDIA’S INFLUENCE ON TRIAL OUTCOMES

Modern technology has drastically impacted not only how we access

information–but how we process and interpret it.

In today’s globalized world,

social media is now one of the most important tools for communicating,

spreading information, and entertaining.

Over 4.76 billion people around the

world use social media, which equates to fifty-nine percent of the total global

population, and this number continues to increase rapidly with the advancement

of technology.

Within the last year, 137 million new users joined social

media.

Over si xty percent of Americans rely on social media as their main

source of news.

Due to the audience reach that social media provides, the news

is no longer contained in the area where the event occurred, and there is no “delay

in the mass population hearing some interpretation of the events that

[transpired].”

Thus, the public may not only have knowledge of specific events

before a trial but may have also already formulated a preconceived opinion on

the matter.

While these opini ons may have been centered on some facts, many

of these opinions are shaped by what users are saying on social media and by

how the media portrays the story.

While traditional media outlets cannot

release material such as confidential information, these outlets are able to

69. See, e.g., id. at 54. An example of modern technology drastically impacting

how we process and interpret information was seen in the Casey Anthony trial. Id. The prosecution

presented “expert attestation and crime scene material,” meanwhile the media published images of

Anthony “scantily clad at parties, getting a tattoo on her shoulder, [and] participating in a hot body

contest at the Fusion nightclub . . . .” Id. The media’s publications “incited frustration among the

general public,” and despite jurors being sequestered, “the jury had access to sources within and

outside of the courtroom,” inevitably influencing the jury. Id.

70. See Dave Chaffey, Global Social Media Statistics Research Summary 2023,

SMART INSIGHTS (Jan. 30, 2023), http://www.smartinsights.com/social-media-marketing/social-

media-strategy/new-global-social-media-research/; Sydelle Fernandes, 58% of World’s Population

Now Use Social Media, BIZZ BUZZ (Mar. 10, 2022, 11:24 PM),

http://www.bizzbuzz.news/trendz/58-of-worlds-population-now-use-social-media-1116814.

71. Chaffey, supra note 70.

72. Global Social Media Statistics, DATAREPORTAL,

http://datareportal.com/social-media-users (last visited Nov. 17, 2022); Chaffey, supra note 70.

73. See Andrew Hutchinson, New Research Shows That 71% of Americans Now

Get News Content via Social Platforms, SOC. MEDIA TODAY (Jan. 12, 2021),

http://www.socialmediatoday.com/news/new-research-shows-that-71-of-americans-now-get-

news-content-via-social-pl/593255.

74. Lowe, supra note 51, at 72.

75. Id.

76. Id.

2023] SOCIAL MEDIA’S INFLUENCE ON TRIALS 119

“sensationalize reports and overemphasize aspects of a story [to] appeal to

viewers.”

The media is a participant in the market economy, and the success

of their business centers on their network ratings.

By sensationalizing reports

and overemphasizing pieces of a story, traditional media outlets make these

events more appealing to the public, and it follows that more viewers will be

inclined to tune into that specific outlet.

The press has exercised their freedom of speech, reporti ng to the masses

both facts and opinions in high-profile cases, even prior to television and the

internet.

Though, it has long been acknowledged by members of the court that

the media’s influence is an injury to one’s right to a fair trial.

As early as 1931,

“Judge Stuart H. Perry took issue with [the] local newspaper reports’ [ability to]

influence . . . court trials . . . .”

During his time in the courts, Perry noticed that

newspapers had “asserted their moral authority over their audiences,” and if the

jury did not conform to “the verdict championed by the media,” widespread anger

would result.

While Perry had admitted that the press’ critiques to the court

offer a vital check to their judicial power, he also claimed that “the function of

newspapers as a forum for mobilization is compromised when it is the papers

influencing the general public, and not the other way ar ound.”

Social media profiles, unlike traditional media formats, are held to a no sub

judice standard.

The public can post information that news networks are not

allowed to.

Additionally, a person can make a TikTok video or a Facebook

post about a court case without corroborating any of the information they decide

to discuss.

The phrase “trial by social media,” describes the impact that “media

coverage of a court case can have on the public perception of guilt or innocence

of an accused . . . .”

The press’ infringement on the inviolability of jury trials

has drawn increased attention due to the growing diversification of media

outlets.

77. Moran, supra note 8, at 49.

78. Id.

79. Id.

80. Id. at 48–49.

81. Id. at 49.

82. Moran, supra note 8, at 49.

83. Id.

84. Id.

85. Id.

86. Id.

87. Moran, supra note 8, at 49.

88. Id. (explaining the phrase “trial by social media”).

89. Id.

120 NOVA LAW REVIEW [Vol. 47

A. The Negative Impact the Media Has on the Court

Under the Sixth Amendment, all defendants are entitled to a trial by an

impartial jury.

With the vast use of social media today, the exacerbated present

trends of spectacle, and the need to choose sides, it makes it rather difficult for

trials to be impartial.

Additionally, jurors may decide differently knowing that

they will be scrutinized by the world based on their decisi on and opinion.

According to the latest data from Pew Research, “[a] little under half

(48%) of U.S. adults say they get news from social media.”

That number has

fluctuated since 2018.

This demonstrates how social media has become a

critical news source.

The reliance on social media platforms like Facebook and

TikTok for news and information greatly influences how people think.

These

platforms show you other users’ opinions about a particular topic.

Given the

level of interest in high profile cases, content creators on social media platforms

are using trials that are highly publicized to drive their engagement numbers.

These easily accessible insights into what others think greatly influences

individuals’ own opinions.

This can be very prejudi cial to a party if mass media

portrays these types of events in a “dooming or fault-assigning” light to only one

of the parties.

100

What follows is a party being stuck with a prejudicial jury or a

90. U.S. CONST. amend. VI.

91. See Media Influence in Capital Cases, CAP. PUNISHME NT IN CONTEXT,

http://capitalpunishmentincontext.org/issues/media (last visited Nov. 17, 2022).

92. Id.

93. MASON WALKER & KATERINA EVA MATSA, PEW RSCH. CTR., NEWS

CONSUMPTION ACROSS SOCIAL MEDIA IN 2021, at 3 (2021),

http://www.pewresearch.org/journalism/wp-

content/uploads/sites/8/2021/09/PJ_2021.09.20_News-and-Social-Media_FINAL.pdf.

94. Id.

95. Id.

96. See id.

97. See id.

98. Zama Ndlovu, The Bad Lessons from Johnny Depp and Amber Heard for

Victims of Abuse, MAIL & GUARDIAN (June 15, 2022), http://mg.co.za/thoughtleader/2022-06-15-

amber-heard-crucified-in-the-court-of-public-opinion/; Heavy Spoilers, Johnny Depp vs Amber

Heard Trial Recap | Full Breakdown and Analysis, Y OUTUBE (Apr. 26, 2022),

http://www.youtube.com/watch?v=71ACRkNlhQg&t=1s.

99. See Hutchinson, supra note 73.

100. Lowe, supra note 51, at 72; see also Romeo Vitelli, How “Trial by Media”

Can Undermine the Courtroom, PSYCH. TODAY (Aug. 22, 2018),

http://www.psychologytoday.com/gb/blog/media-spotlight/201808/how-trial-media-can-

undermine-the-courtroom.

2023] SOCIAL MEDIA’S INFLUENCE ON TRIALS 121

jury with subconscious biases because of the news and media the jury

consumed.

101

Jurors are likely to develop biases about the case based on the media

coverage they have been exposed to prior and during trial.

102

While jurors are

supposed to avoid the media, it is virtually impossible to abstain from hearing

and viewing the media’s perc eption in this day and age, especially when it

involves prominent figures.

103

Due to how rapidly social media is changing,

jurors are more vulnerable to unintentionally hearing about a trial since they are

likely to see pop-up social media notifications on their electronic devices.

104

Approximately eighty-five percent of Americans own a smartphone, a thirty-five

percent increase from a survey that was taken in 2011.

105

With eighty-five

percent of Americans having a sm artphone, it makes it challenging for courts to

ensure that jury members render their verdicts based only on what they see and

hear in the courtroom, as is required.

106

The impact of today’s modern media on jury impartiality has never been

more prevalent.

107

Courts are increasingly being faced with adjudicating cases

with constant media coverage both in criminal and civil trials.

108

This becomes

concerning when these issues gain nationwide coverage, leaving very few people

without some sort of opinion on the case.

109

Courts today are now facing jury

pools that come in with knowledge of the “facts” and predetermined opinions

before any party has had an opportunity to present their case.

110

Research st udies

regarding highly publicized cases have consistently found that “potential jurors

often have extremely negative attitudes toward the accused.”

111

However,

studies have also shown that jurors have “extremely positive attitudes” towards

“high-profile litigants.”

112

This was the instance in Florida’s first “Trial by

101. Lowe, supra note 51, at 72–73.

102. See id. at 73; Vitelli, supra note 100.

103. A Non-Biased Jury: Do They Really Exist?, LEXISNEXIS,

http://www.lexisnexis.co.uk/research-and-reports/bar/a-non-biased-jury-do-they-really-exist.html

(last visited Nov. 17, 2022).

104. New Jury Instructions Strengthen Social Media Cautions, U.S. CTS. (Oct. 1,

2020), http://www.uscourts.gov/news/2020/10/01/new-jury-instructions-strengthen-social-media-

cautions.

105. Mobile Fact Sheet, PEW RSCH. CTR. (Apr. 7, 2021),

http://www.pewresearch.org/internet/fact-sheet/mobile/.

106. See id.; Lowe, supra note 51, at 64–65.

107. Lowe, supra note 51, at 45, 71–72.

108. See id.

109. See id.

110. Id. at 46.

111. Id. at 73; Vitelli, supra note 100.

112. Lowe, supra note 51, at 73.

122 NOVA LAW REVIEW [Vol. 47

Media” case—the trial of Casey Anthony—and the recently litigated case in

Virginia—Depp v. Heard.

113

IV. STATE V. ANTHONY: 2011 COURT CASE TRIED BY SOCIAL MEDIA

Casey Anthony was charged in Florida back in 2008, with the first degree

murder of her two-year-old daughter, Caylee Anthony.

114

Casey Anthony’s trial

was one of the first court cases tried by social media.

115

While the trial began in

2011, the media was already in a frenzy before the start of the trial reporting on

interpretations of the evidence and accounts of Anthony’s personal life prior to

the crime.

116

As a result of the media’s craze, a mass amount of information

became easily accessible to the public before jury selection began.

117

Although

Anthony had been acquitted by the selected jury in the courtroom, outside the

courtroom, social and economic punishments were imposed on Anthony because

the court of public opinion found her guilty of murdering her daughter.

118

A. Implications of Media Reports

The few years between the death of Caylee Anthony and jury selection,

the media reported extensively on the disappearance of Caylee Anthony, the

investigation, and what the trial would look like for Casey Anthony.

119

Over the

course of the forty-two day trial, the atmosphere inside and outside the

113. No. CL-2019-2911, 2019 WL 2683058 (Va. Cir. July 25, 2019); see also

Elizabeth Blair & Ayana Archie, Amber Heard Says Social Media Was a Factor for Her

Defamation Trial Jury, NPR, http://www.npr.org/2022/06/15/1104925752/amber-heard-says-

social-media-was-a-factor-for-her-defamation-trial-jury (June 15, 2022, 5:00 AM); Nicholas A.

Battaglia, Comment, The Casey Anthony Trial and Wrongful Exonerations: How “Trial by

Media” Cases Diminish Public Confidence in the Criminal Justice System, 75 ALB. L. REV. 1579,

1586–87 (2011).

114. Battaglia, supra note 113, at 1587; Moran, supra note 8, at 45.

115. Moran, supra note 8, at 48. “[T]he court of public opinion—a term coined by

government official Alger Hiss in his book In the Court of Public Opinion to refer to public support

for one side of a court case due to the influence of news media . . . .” Id. at 47. To win in the court

of public opinion, a person involved in the case must gain majority support from the public. See

Battaglia, supra note 113, at 1584–85.

116. Moran, supra note 8, at 47.

117. Id. at 48, 49.

118. Id. at 55.

119. Id. at 47.

2023] SOCIAL MEDIA’S INFLUENCE ON TRIALS 123

courthouse was chaotic.

120

Several million onlookers tuned in to the trial.

121

The

media grappled for coverage, swarming the area surrounding the county

courthouse where the trial took place.

122

Broadcast news stations assembled

multi-story, air-conditioned structures in an open lot directly across from the

courthouse because the screen time dedication to Anthony’s trial was so

intense.

123

In their news reports, the media relied on documents, interviews,

tapes, and photos made or received by public agencies during the course of the

investigation, which described the details of the case.

124

This was allowed

because Florida’s Public Records Laws provide that documents made or received

by public agencies in the course of official business may be inspected by any

individual who wants to examine such documents, unless a document is exempt

from inspection.

125

These measures were established to “ensure transparency in

the Floridian government and court system.”

126

Due to Florida’s law and the media’s obsession with this event, the court

of public opi nion, was able to easily form an opinion on Anthony and what a

judicious outcome for her should look like, since they had access to information

on Anthony’s life, character, and the alleged crimes.

127

The court of public

opinion focused on Anthony’s character, and the commentary was highly

gendered.

128

A majority of the public “perceived Anthony as cold and unfeeling,

not the image of a grieving mother society expects of a pretty, white, middle-

class woman.”

129

Unfortunately, narratives like this, which obstruct justice have

existed long before the influence of the media and public opinion; but with the

creation of social media, such narratives became wide-spread.

130

Instances of

Anthony laughing and smiling during the investigation and her lack of emotion

during the trial spiked discussions on social media of nearly 100 posts per

minute.

131

Access to media has had positive effects for many, but for Casey

Anthony, it was a powerful punishment.

132

120. Id. at 52–53.

121. Moran, supra note 8, at 52–53.

122. Id. at 53.

123. Id.

124. Id. at 47.

125. Id.; FLA. STAT. §§ 119.011(12), .07(1)(a), .071 (2022).

126. Moran, supra note 8, at 47; see also FLA. STAT. § 119.07(1)(a).

127. Moran, supra note 8, at 47.

128. Id. at 54.

129. Id.

130. Id. at 56.

131. Id. at 54.

132. Moran, supra note 8, at 56.

124 NOVA LAW REVIEW [Vol. 47

Prior to the trial, the media had years to make their case through

newspapers, television, and social media platforms.

133

These outlets led to

Anthony’s conviction in the court of public opinion long before the official

trial.

134

Commentators argue that although “a conviction in the court of public

opinion holds no legal weight, the social repercussions of this decision entail

punishment through ostracization.”

135

They further argue that even though

Anthony was acquitted by the court appointed jury using all credible information

and evidence from the trial, the verdict was still widely perceived as a wrongful

discharge.

136

Public consensus would arguably recall this case as “miscarriage

of justice,” regardless of whether the jury was impartial.

137

The court of public

opinion raises questions as to the effectiveness of the United States judicial

system.

138

The media’s ability to reach a wide audience reflects highly on the

attainments of the First Amendment;

139

however, could this same wide-re aching

quality compromise one’s right to a fair trial?

140

B. The Impact of the Media on the Jury & the Courts Attempt to Combat

Bias

Deliberation on social media over Anthony’s innocence began to occur

before the jury selection process, resulting in information flowing freely and the

risk of prejudiced jurors.

141

“Over the years leading up to the Casey Anthony

trial, [the media] retold the events preceding and following the death of Caylee

Anthony.”

142

The judicial process of the Casey Anthony case became difficult

as a result of the media’s sensationalized reports and overemphasized aspects of

the events, as the spread of disinformation by the media preceded the selection

of the jury.

143

Commentators state that “[t]he impact of the media on the Casey

133. Id. at 54.

134. Id. at 50.

135. Id.

136. Id.

137. Moran, supra note 8, at 50.

138. Id.

139. Id.

140. Id.

141. Id. at 49.

142. Moran, supra note 8, at 49.

143. Id.; The Fight Against Disinformation, MINISTERIO DE ASUNTOS EXTERIORES,

UNIÓN EUROPEA Y COOPERACIÓN,

http://www.exteriores.gob.es/en/PoliticaExterior/Pa ginas/LaLuchaContraLaDesinformacion.aspx

(last visited Nov. 17, 2022) (“Disinformation is one of the major concerns of democratic countries.

Behind false news or fake news, strategies are often articulated to manipulate public opinion . . . .

2023] SOCIAL MEDIA’S INFLUENCE ON TRIALS 125

Anthony trial is a pertinent example of the difficult balance between the

fundamental right to access information and speak freely and the right to a fair

trial.”

144

The Florida courts acknowledged the threat of biased public opinions

and took action to ensure Casey Anthony’s due process.

145

However, the Casey

Anthony trial was among the first cases to attract significant media attention

where the public was offering predictions as to the cause of death of Caylee

Anthony.

146

Given the novelty of social media, no historical precedents could

offer a solution for the influence of social media platforms on the impartiality of

not just the jury but also the population at large.

147

Due to how widely circulated

this case’s media coverage was, the court had to select jury members from a

county nearly a hundred miles away because “media coverage may have been

less prominent there.”

148

Despite selecting jurors from a different county, the

jury selection occurred three years after police arrested Anthony, making it,

arguably, highly probable that people from this county already had knowledge

on the highly publicized case.

149

In an effort to combat bias, the defense

dismissed all potential jurors who had already made up their mind about

Anthony’s guilt due to the information they learned from the media and

sequestered the selected jurors for forty-three days.

150

C. The Verdict

On July 5, 2011, the jury returned their verdict and found that Casey

Anthony was not guilty of murder because they could not confirm how Caylee

Anthony died beyond a reasonable doubt.

151

Despite the decision, society did

not accept Casey Anthony back.

152

Everyone had something to say about the

verdict: from popular news networks like CNN, Fox, and A&E, to Nancy Grace,

and Facebook groups.

153

Society vehemently rejected the jury’s decision,

The development and widespread use of digital media allow for campaigns to spread quickly,

making disinformation a more pressi ng problem.”).

144. Moran, supra note 8, at 50.

145. Id. at 48.

146. Id.

147. Id.

148. Id.

149. See Moran, supra note 8, at 48.

150. Id.

151. Battaglia, supra note 113, at 1590; see also Moran, supra note 8, at 56.

152. Moran, supra note 8, at 56.

153. Id. at 55.

126 NOVA LAW REVIEW [Vol. 47

particularly on social media platforms like Twitter.

154

Criticism against

Anthony’s verdict was so robust that the release of juror names was postponed

by the judge because of concerns about the jurors’ safety due to public

disagreement with the final decision.

155

Following the verdict, Casey Anthony

went into hiding.

156

While the jury decided not the punish Anthony, the public

felt she deserved punishment and decided to impose social and economic

punishments on her.

157

Following the trial, it was difficult for Anthony to find

work and businesses frequently denied her services.

158

“The function of the court

system is to legitimize and substantiate punishments,” but the laws do not require

the public to agree with the court’s outco me and they cannot stop the effect of

the public’s social force.

159

Anthony’s trial is a testament to the current

deterioration of the United States court systems as a result of the media’s wide-

reaching impact.

160

Social media’s presence today is far larger than it was during the 2011

Casey Anthony trial.

161

With the pioneer days of social media far behind us, we

have now entered an era of immense gl obal use of social media.

162

With over

half the world on social media platforms and an enormous increase in the num ber

of users posting their opinions online daily, it is imperative we find a way to

ensure American citizens have unobstructed access to both fundamental pillars

of democracy.

163

The following section will emphasize that, like Casey Anthony,

others are feeling the wrath of social media during their trials and the social

punishments implicated by public opinion.

164

V. DEPP V. HEARD: 2022 COURT CASE TRIED BY SOCIAL MEDIA

Johnny Depp, an American actor, sued Amber Heard, an American

actress, claiming that an op-ed Heard wrote for the Washi ngton Post in which

154. Id.

155. See id.

156. Id.

157. Moran, supra note 8, at 55.

158. Id.

159. See id. at 56.

160. Id.

161. See Brian Dean, Social Network Usage & Growth Statistics: How Many

People Use Social Media in 2022?, BACKLINKO, http://backlinko.com/social-media-users (Oct. 10,

2021).

162. See id.

163. Id.; see also Moran, supra note 8, at 56.

164. See discussion infra Part V.

2023] SOCIAL MEDIA’S INFLUENCE ON TRIALS 127

she claimed to be “a public figure representing domestic abuse,” was defamatory

and caused him to lose lucrative acting roles.

165

Heard countersued Depp

claiming that Depp’s attorney’s statements asserting that her op-ed was “an abuse

hoax” which she considered an attempt to capitalize on the #MeToo movement,

were defamatory.

166

On June 1, 2022, in a Virginia court, the seven-person jury unanimously

ruled in favor of Depp.

167

The court awarded Depp $15 million for the three

counts of defamation that Depp claimed were inflicted on him by Heard in her

Washington Post article, however, that number was reduced to $10.35 million

due to Virginia law.

168

Heard won on one counterclaim, with jurors awarding the

actress $2 million in damages.

169

However, these rulings came after social media

was already flooded with pro-Johnny Depp and anti-Amber Heard content

throughout the six-week trial.

170

A. The Effect of Public Opinion on the Trial and the Social Repercussions

Public opinion on the trial was hard to avoid.

171

The negative coverage

that was immeasurably spread throughout the media “likely influenced the jury

and the outcome of the trial. ”

172

In addition to the impartiality of jurors that

arguably resulted from the mass public opinion, Heard faced and continues to

face social punishments from the public.

173

165. Emily Yahr, What to Know About Johnny Depp and Amber Heard’s

Defamation Trial, WASH. POST (Apr. 10, 2022, 12:09 PM), http://www.washingtonpost.com/arts-

entertainment/2022/04/10/johnny-depp-amber-heard-case/.

166. Matthew Weaver, Amber Heard Reportedly Plans to Appeal Against Johnny

Depp Defama tion Verdict, GUARDIAN (June 2, 2022),

http://www.theguardian.com/film/2022/jun/02/amber-heard-reportedly-planning-appeal-johnny-

depp-defamation-verdict.

167. Edward Helmore, Depp-Heard Trial Verdict: Jury Rules in Favor of Johnny

Depp, GUARDIAN (June 1, 2022), http://www.theguardian.com/film/2022/jun/01/johnny-depp-

amber-heard-verdict-trial-ruling.

168. Id.; Weaver, supra note 166.

169. Weaver, supra note 166; Helmore, supra note 167.

170. See Anya Zoledziowski, Did Social Media Sway the Johnny Depp Jury?, VICE

NEWS (June 3, 2022, 6:43 PM), http://www.vice.com/en/article/qjkd4q/johnny-depp-heard-trial-

jury-social-media.

171. See id.

172. Id.

173. Kayla Cotter, Johnny Depp, Amber Heard, and the Court of Public Opinion,

DAILY PENNSYLVANIAN: 34TH ST. (June 28, 2022, 12:00 AM),

http://www.34st.com/article/2022/06/johnny-depp-amber-heard-domestic-violence-court-trial-

social-media-public-opinion.

128 NOVA LAW REVIEW [Vol. 47

In this case, social media reached a verdict long before the jury reached

theirs.

174

The burden of proof fell on Johnny Depp to prove by clear and

convincing evidence that Heard acted with actual malice, but one look at social

media will tell you it did not.

175

For over a month, platforms like TikTok,

Twitter, Facebook, and Instagram, had become saturated with online jokes and

memes, a majority of which painted Depp in a favorable light.

176

Even if social

media had convinced many to believe that Depp was not the primary aggressor,

some commentators believe the media put Depp on a pedestal.

177

When Depp lost his United Kingdom libel case in 2020, Heard

supporters did not declare that justice had been served or that Depp was the

wrongdoer, although the judge found that twelve of the fourteen allegations of

abuse were “substantially true.”

178

When the United Kingdom’s verdict was

decided, many of Depp’s fans claimed that the outcome was unjust.

179

From the

start, the media had cast Depp as misunderstood and a victim, and assigned Heard

as the villain.

180

Content creators mocked Heard’s testimony throughout the 2022

defamation trial, for profile engagement.

181

From “#AmberTurd . . . to comedy

skits mocking her legal team’s performance, her viral ridicule was impossible to

escape” for anyone with a smartphone or internet.

182

Internet users became crime

experts and body language analysts, capable of deciphering how a victim should

behave.

183

Trends sparked on these platforms with creators cutting and editing

trial footage to make Heard’s accusations seem unfounded.

184

As of June 3, there

were over 20 billion views on TikTok for the hashtag #justiceforjohnnydepp; in

comparison, #justiceforamberheard had only approximately 80 million views

174. Id.

175. Id.; Zoledziowski, supra note 170; see also Smriti Sneh, ‘You Think This Has

Been Fair?’: Amber Heard Ca lls Johnny Depp Fans Cowards Who Can’t Look Her in the Eye,

ANIMATED TIMES (June 13, 2022), http://www.animatedtimes.com/you-think-this-has-been-fair-

amber-heard-calls-johnny-depp-fans-cowards-who-cant-look-her-in-the-eye/.

176. Cotter, supra note 173.

177. Id.

178. Id.; Yahr, supra note 165; see also Sneh, supra note 175.

179. Cotter, supra note 173.

180. Id.

181. Id.

182. Id.; see also Benita Fernando, Explained: The Social Media Trial of Amber

Heard, INDIAN EXPRESS, http://indianexpress.com/article/explained/explained-the-social-media-

trial-of-amber-heard-7945993 (last updated June 1, 2022, 7:23 AM).

183. Cotter, supra note 173; see also Fernando, supra note 182.

184. See Zoledziowski, supra note 170; Cotter, supra note 173.

2023] SOCIAL MEDIA’S INFLUENCE ON TRIALS 129

and about 900 million views for the hashtag #amberheardisguilty.

185

The public

believed that Heard was a liar long before her testimony was found to be

inconsistent.

186

On social media, Depp’s abnormal “behaviors were written off

as courtroom quirks.”

187

Depp’s “stardom won over [the social media] platforms

before Heard had the chance to take the stand, and when she did [take the stand],

her every move worked to dismantle her case.”

188

Heard’s every move was

scrutinized—to many, it was proof that furthered the narrative depicting her as a

“manipulative, cruel, and an emotionally unstable” woman.

189

Unlike Depp,

Heard was not “given sympathy or the benefit of the doubt.”

190

If Heard cried,

she was faking it and exaggerating; if she did not cry, she was unsympathetic.

191

Regardless if Heard’s claims were fabricated, the fight was never fair in the court

of public opinion.

192

When Heard openly alleged “disturbing, graphic

accusations of sexual violence such as a ‘cavity search’ for cocaine and being

penetrated with a liquor bottle,” the allegations of abuse were mocked by social

media users rather than the public being skeptical.

193

Heard’s “visible bruises in

photos, text message [evidence], and even Depp’s . . . aggressive comments and

destructive rampages [were not] given their due diligence.”

194

“Heard wasn’t

somebody the public began to gradually doubt . . . she was the target of [an attack

by] social media seeking to poke holes in her story.”

195

Nonetheless, there was also evidence working against Heard.

196

audio recording exposed her instigating Depp to “‘tell the world’ that he’s a

victim of domestic violence,” and it was discovered that the promise she made

to donate the entirety of her divorce settlement to the American Civil Liberties

Union and the Children’s Hospital Los Angeles was not done.

197

“Yet, Depp’s

vile text messages to . . . Paul Bettany, in wh ich [Depp] said he would ‘f—

[Amber Heard’s] burnt corpse’ after drowning and burning her ‘to make sure

she’s dead’ were brushed off by many as an unfortunate error in judgment.”

198

185. Sneh, supra note 175.

186. Cotter, supra note 173.

187. Id.

188. Id.

189. Id.

190. Id.

191. Cotter, supra note 173.

192. Id.

193. Id.

194. Id.

195. Id.

196. Cotter, supra note 173.

197. Id.

198. Id.

130 NOVA LAW REVIEW [Vol. 47

Neither Depp nor Heard conformed to the idea of a perfect victim, but, as

journalists point out, the public was undoubtedly “more inclined to excuse

[Depp’s] toxicity over [Heard’s].”

199

B. A Dangerous Precedent

Every allegation should be properly investigated, which requires

accusations to be taken seriously.

200

For Heard, her accusations were “met with

global humiliation.”

201

Making a big media display of Depp v. Heard is a

dangerous precedent to set.

202

Undoubtedly, there were multiple issues with

Heard’s case that tarnished her credibility; however, the issue is not that Heard

was found liable, it is that the public considered her liable from the start.

203

In a

way, Heard is still in an abusive relationship, but now it is with the world.

204

Like Casey Anthony, Amber Heard was met with social punishment.

205

Viewers heard distressing testimony, particularly from Heard, who alleged she

was sexually assaulted and attacked by Depp, causing her to fear for her life.

206

Since Heard’s Washington Post article, her life has been consumed by public

anger and embarrassment.

207

Heard mentioned “it was ‘humiliating’ to relive

those moments in front of cameras.”

208

VI. “SOCIAL MEDIA TRIALS” 2011 TO 2022

Since the Casey Anthony trial, social media platforms have “almost tripled

their total user base . . . from 970 million in 2010 to [over] 4.48 billion users in

July 2021.”

209

Since 2015, the growth rate of social media has been “an average

of 12.5% year-over-year.”

210

As of 2021, “[t]he average social media user

199. Id.

200. Id.

201. Cotter, supra note 173.

202. Id.

203. Id.

204. See id.

205. See Moran, supra note 8, at 44; Cotter, supra note 173.

206. See Cotter, supra note 173; Gene Maddaus, Why Was Depp-Heard Trial

Televised? Critics Call It ‘Single Worst Decision’ for Sexual Violence Victims, YAHOO! FIN. (May

27, 2022), http://finance.yahoo.com/news/why-depp-heard-trial-televised-231520293.html.

207. See Cotter, supra note 173.

208. See Helmore, supra note 167; Maddaus, supra note 206.

209. Dean, supra note 161.

210. Id. (emphasis omitted).

2023] SOCIAL MEDIA’S INFLUENCE ON TRIALS 131

engages with an average of 6.6 various social media platforms.”

211

Hence, “with

the growth of technology, media, and information sharing today, there has been

[increasing] concern over whether jurors can fulfill their constitutional duty to be

‘impartial’. . . .”

212

Even before social media, trials have been highly

publicized.

213

However, the manner in which the public consumes the news, the

speed at which news spreads, and the information potential jurors learn prior to

the trial largely owed to social media is particularly new.

214

Not only has social

media erroneously convinced potential jurors that they know the facts prior to a

high-profile trial, learning information beforehand gives “jurors additional time

to form [biased] opinions on guilt or liability.”

215

Are courts supposed to turn a blind eye to the power and influence the

modern media has over pot ential jurors and adjudicators?

216

“Subj ecting parties

with legitimate impartiality concerns to the media in the courtrooms hardly seems

to be the correct legal solution, especially when access to an impartial jury is a

constitutionally protected right.”

217

VII. FLORIDA MOVING FORWARD

Unfortunately, it is unlikely that the Casey Anthony and Johnny Depp

trials are the last trials subjected to mass public opinion.

218

Social media’s impact

on swaying the public’s perception of an individual can be highly detrimental to

one’s ability to obtain a fair trial.

219

With the increasing number of social media

users, Florida must examine how the State can adapt to the existence of social

media and still protect the principles of a fair trial.

220

Florida must go farther

than confiscating electronic devices from jurors in the courtroom and reminding

them of their zealous duty as jurors.

221

Realistically, just because judicial

directions are given, does not mean that they will be followed.

222

Giving

211. Id. (emphasis omitted).

212. Lowe, supra note 51, at 45.

213. See Moran, supra note 8, at 48–49.

214. Lowe, supra note 51, at 45.

215. Id.

216. See Moran, supra note 8, at 48–49.

217. See U.S. CONST. amend. VI; Lowe, supra note 51, at 47.

218. See Lowe, supra note 51, at 43, 45 (discussing how the media has changed

over time and the increase of the public expressing their opinions on social media platforms).

219. See Narrelle Harris, Social Media and the Fair Trial, LA TROBE UNIV.,

http://www.latrobe.edu.au/nest/social-media-and-the-fair-trial/ (last visited Nov. 17, 2022).

220. See Janoski-Haehlen, supra note 1, at 68.

221. See id. at 48.

222. See id.

132 NOVA LAW REVIEW [Vol. 47

direction will not stop a juror from googling the contents of the case or seeing

opinions on social media when they get home.

223

A. Florida’s Current Rules Regarding Media in the Courtroom

Florida’s Rules of Judicial Administration permit “electronic media and

still photography coverage of public judicial proceedings in the appellate and

trial courts . . . .”

224

Rule 2.450 provides that the media coverage is subject only

“to the authority of the presiding judge” who may limit or prohibit coverage of

the proceedings to “control the conduct of proceedings before the court . . . and

ensure the fair administration of just ice . . . .”

225

Judges have the ability to

exclude or limit the use of cameras in the courtroom only if a party can show that

the presence of cameras will cause harm.

226

This burden is high for the parties,

and attorneys representing the media must be heard in oppos ition.

227

Currently,

Florida’s Rules of Judicial Administration regarding media in the courtroom are

broad, with some claiming Florida has the “nation’s broadest rule allowing

cameras into courtrooms.”

228

The media’s reporting of proceedings has always been thought to be

sufficient to keep the public informed by making citizens more knowledgeable

and better able to partake in bringing necessary changes to the justice system.

229

It has been more than thirty years since the Florida Supreme Court heard the

concerns about cameras in the courtrooms.

230

Despite “Florida’s success with

cameras [in the courtrooms] for [over thirty] years and the successes experienced

in the courtrooms of numerous other st ates,” social media has taken a drastic turn

within the last few years.

231

223. See id.

224. FLA. R. JUD. ADMIN. 2.450(a).

225. Id.

226. Dyckman, supra note 10.

227. Id.

228. Id.

229. See id.

230. See id.

231. See Dyckman, supra note 10; Lowe, supra note 51, at 45; Cameras in the

Court: A State-by-State Guide (Alabama-Idaho), RTDNA,

http://www.rtdna.org/article/cameras_in_the_court_a_state_by_state_guide (last visited Nov. 17,

2022).

2023] SOCIAL MEDIA’S INFLUENCE ON TRIALS 133

B. Preventing a Breakdown in the Adversarial Process

Many high-profile cases have sparked a plethora of discussions on social

media, and wh ile public discourse has its benefits, it can also be extremely

detrimental in upholding the fairness and reliability of the adversarial process.

232

Protecting the rights of news sources is essential because they provide the public

with reliabl e information and enable the public to make informed decisions,

which benefits society at large.

233

However, one of the hallmarks of a democratic

political system is the protection of the right to a fair trial.

234

If parties are to

receive a fair trial, assessments of their guilt or innocence should be decided in

the confines of a controlled courtroom by an impartial jury, untainted by the

frenzy of sensationalistic press bombardment.

235

Nevertheless, “[a] limit to

journalism would compromise both the Constitution and our democratic

processes.”

236

So, how can Florida ensure the protection of the vital fundamental

right of an accused person to an impartial jury without compromising the media’s

ability to report?

237

To prevent the breakdown of the adversarial process caused by social

media, Florida should re-evaluate its laws regarding media in the courtrooms and

consider adopting a practice similar to the United Kingdom.

238

In the United

Kingdom, the media is banned from reporting on rulings made at pretrial hearings

until after the trial has fully concluded.

239

The reporting ban on pretrial hearings

can only be lifted if the judge assigned determines it is in the interests of justice

to do so.

240

By contrast, under the First Amendment, the press in the United

States generally has a right to report on pretrial hearings.

241

However, a judge

could close a pretrial hearing from the public if requested by the defense or

232. See Moran, supra note 8, at 50.

233. Id.

234. See id.; U.S. CONST. amend. VI.

235. See U.S. CONST. amend. VI; Moran, supra note 8, at 47.

236. Moran, supra note 8, at 50.

237. Id.; see also Romano, supra note 6, at 26.

238. See Dayna M. Chikamoto, Trial by Media: The Risks to Defendants of

Differing US and UK Approaches, KRAMER LEVIN (Mar. 3, 2022),

http://www.krame rlevin.com/en/perspectives-search/trial-by-media-the-risks-to-defendants-of-

differing-us-and-uk-approaches.html (describing the United Kingdom’s practice regarding media

in the courtroom).

239. Id.; Criminal Procedure and Investigations Act 1996, c. 25, pt. VI, § 41(1), (6)

(UK), http://www.legislation.gov.uk/ukpga/1996/25/section/41.

240. Chikamoto, supra note 238; Criminal Procedure and Investigations Act 1996,

c. 25, pt. VI, § 41(3)–(4).

241. U.S. CONST. amend. I; Chikamoto, supra note 238.

134 NOVA LAW REVIEW [Vol. 47

prosecution.

242

Special findings are required to be made on the record that:

“closure [is] necessary to preserve ‘higher’ or ‘overriding’ values, and the order

[is] narrowly tailored to serve those hi gher or overriding values.”

243

It is essential for Florida to provide leeway in what journalists report and

how they cover ongoing trials because “the American system values the scrutiny

of the press in criminal proceedings and views the media’s criticisms as a tool to

hold the justice system accountable.”

244

However, to protect parties from the

barrage of social media, Florida should consider limiting the information released

to the public as well as limiting the presence of the media during bot h pretrial

and trial proceedings.

245

Currently, Florida has laws that govern limitations on

media in court proceedings, but the burden for limitations is high.

246

For

instance, cases involving minors cannot be televised from inside the courtroom,

and certain information is concealed from the public.

247

A couple of Florida’s

reasons for adopting this law are “[t]o provide an environment that fosters

healthy social, emotional, intellectual, educational, and physical development”

and “[t]o ensure the protection of society.”

248

Implementing a system in Florida

that postpones, not bans, the media from recording the trial and getting insights

on a case until after the verdict will ensure that the public violence entrenched in

our societies does not find itself in courtrooms, “perpetuating injustice against

those brave enough to seek justice.”

249

Limiting the press’ knowledge of

information before and during trial wi ll significantly decrease media

sensationalism and will still allow the media to freely report.

250

The compromise

of allowing the media to continue to report but delaying the availability of

information until the end of trial will allow parties to obtain a fair trial in addition

to giving the public all available information at once to make an informed

opinion—not one resting on prediction.

251

Although the legal system has many significant deficiencies, some

parties go to trial and are tried by a jury that has not been contaminated by pretrial

publicity.

252

As previously discussed, the media participates in a market

242. Chikamoto, supra note 238.

243. Id.; Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9–10 (1986).

244. Chikamoto, supra note 238.

245. See id.

246. Lowe, supra note 51, at 56; see also FLA. STAT. § 985.035(1) (2022).

247. See FLA. STAT. §§ 985.035(1), .04(1)(a)–(b), (7)(a), (8).

248. Id. § 985.01(1)(c), (d).

249. Ndlovu, supra note 98; see also Chikamoto, supra note 238.

250. See Moran, supra note 8, at 49.

251. See Chikamoto, supra note 238.

252. See Moran, supra note 8, at 48.

2023] SOCIAL MEDIA’S INFLUENCE ON TRIALS 135

economy and wants to report on what will bring in viewership.

253

Not all trials

are sufficiently newsworthy to garner press attention.

254

However, some parties

are not so lucky.

255

In these circumstances, the media is eager to publish all the

evidence they can find without regard to the effects on prospective jurors.

256

Therefore, it may be argued that this deferment of information is not beneficial

to all Floridians.

257

However, the delay of the release of information and

courtroom footage of the trial will reap many benefits in addition to fair trials for

parties.

258

The Florida Bar conducted a poll in 2005 that showed most of

Americans’ understanding of the court system came from what they learned in a

single high school class.

259

Livestreaming and reporting court proceedings one

day at a time would likely mis-educate the American people because only a

portion of the proceedings would be shown.

260

Unless all portions of a legal

proceeding are shown and viewed, lay citizens may not be able to understand the

issues at hand and how the court resolves those issues.

261

The criticism of ‘mis-

education’ regarding media reporting has not really been discussed; therefore, it

is difficult for the remark to be taken seriously.

262

Proper education of the court

system will increase educated opinions rested on facts.

263

Releasing trial foot age

and key details on the case all at once will better educate the American people

on our judicial system and the steps that are crucial to reaching a verdict.

264

VIII. CONCLUSION

This Comment identifies the dangers that social media can conjure in the

courtroom and the compromise of a right to a fair trial in the court of law by a

simultaneous trial in the court of public opinion.

265

Thus, greater protections in

Florida are imperative to extinguish the negative effects caused by social media

that have been imputed on the justice system.

266

Attempting to find a solution

253. See id. at 49.

254. Id.

255. See id.

256. See id.; Garfield Tenzer, supra note 5, at 436.

257. See Moran, supra note 8, at 50; Chikamoto, supra note 238.

258. See Chikamoto, supra note 238.

259. Dyckman, supra note 10.

260. Id.

261. Id.

262. Id.

263. See id.

264. Dyckman, supra note 10.

265. See Janoski-Haehlen, supra note 1, at 45.

266. See Garfield Tenzer, supra note 5, at 465.

136 NOVA LAW REVIEW [Vol. 47

for cases like Casey Anthony’s and Depp v. Heard are crucial with the ongoing

rise of social media and the easy access to both accurate and inaccurate

information.

267

Without a concrete solution for this increasingly inherent

problem, a party who must go up against the court of public opinion will continue

to put their livelihood on the line as they try to combat not only the issue at trial,

but also the modern media.

268

When the concern of public opinion is brought to light, citizens begin to

question the fairness and reliability of the United States legal system and the

purpose it serves.

269

It is the responsibility of legal practitioners and the courts

to address this matter head on and begin to consider the standards that are in place

and the changes that need to be made to better serve the needs of those utilizing

the legal system under these circumstances.

270

267. See Janoski-Haehlen, supra note 1, at 45.

268. See Moran, supra note 8, at 49, 55.

269. See Boothe-Perry, supra note 4, at 94–95.

270. See Janoski-Haehlen, supra note 1, at 68.