Should Prosecutors Blog, Post, or Tweet?: The Need for New Restraints in Light of Social Media

Prosecutors’ out-of-court statements to the press and the public at large have been of concern for over a century. Consequently, ethical rules and standards have been implemented to protect defendants from undue reputational harm as well as to strike a balance between trial participants’ right to free speech and defendants’ right to due process. Although these rules and standards are periodically revised, they have not yet accounted for the differences between traditional media, for which the rules and standards were written, and social media. Recently, however, prosecutors have used social media to discuss pending cases and other aspects of the prosecutorial function, which has raised concern regarding how social media may magnify both the benefits and the harms associated with prosecutors’ extrajudicial statements. This Note analyzes the differences between traditional media and social media, as well as how those differences impact the effect of prosecutors’ extrajudicial speech on pending matters, the reputation of the accused, and public perception of prosecutors and the justice system as a whole. In particular, this Note focuses on the way in which social media enables prosecutors to editorialize and communicate directly with the public in a manner that traditional media forms, like print newspapers and televised broadcast, could never make possible. This Note concludes by arguing that the increased risk of harm presented by prosecutors’ use of social media to discuss pending cases and other aspects of the prosecutorial function necessitates new restraints to restore the free speech – fair trial balance and promote professionalism in the social media age.