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Journalists, advocates sue judiciary members over broadcast ban

A group of journalists and nonprofits is asking a federal court to declare unconstitutional Maryland’s law against broadcasting lawfully obtained recordings of criminal proceedings.

The complaint, filed Tuesday in U.S. District Court in Baltimore, claims the law “impedes the public’s ability” to know what is happening in court. The plaintiffs want to use the recordings for reporting, education and advocacy and argue the prohibition violates the First and Fourteenth amendments.

“Access to court proceedings plays a central role in ensuring that citizens can understand and ultimately shape how their justice system works,” the lawsuit says.

The Institute for Constitutional Advocacy & Protection, or ICAP, at Georgetown University Law Center represents the plaintiffs: journalists Brandon Soderberg and Baynard Woods and advocacy groups Open Justice Baltimore, Baltimore Action Legal Team and Life After Release, a Prince George’s County organization.

The complaint names the administrative judges and court reporters for Baltimore City and Prince George’s County. It claims the law infringes on free speech and is unconstitutionally vague because it fails to define the term “broadcast.”

A spokeswoman for the Maryland Judiciary declined to comment Tuesday.

Attorneys Nicolas Riley and Daniel Rice said that ICAP has not found any instances of someone being held in contempt — the only penalty provided in the law — but maintained that the threat is real and has a chilling effect on speech.

The lawsuit references recent incidents when the court threatened to institute contempt proceedings. Baltimore City Circuit Court officials publicly considered holding the producers of the “Serial” podcast in contempt for airing audio from the trial of Adnan Syed. Administrative Judge W. Michel Pierson sent a letter to HBO “admonishing the network” for using video footage of Syed’s trial in a recent documentary.

ICAP said it has asked the judges for an explanation about why the ban is in place but has not been successful in starting a dialogue.

Another ICAP client, Amelia McDonell-Parry, notified Pierson in April of her intent to use court audio in a podcast about Keith Davis Jr., who has been tried three times in the killing of a Pimlico security guard in 2015. The podcast has since released episodes, but McDonell-Parry’s attorneys said she has not been sanctioned.

The ban on broadcasting live or previously recorded trial court proceedings was enacted by the General Assembly in 1981, according to the complaint. It is currently codified in the criminal procedure article.

“Section 1-201 (the law) has had a severe chilling effect on Plaintiffs’ protected speech and reporting activities,” the complaint states. “Plaintiffs hope to publish and share the various court recordings in their possession, but they have not done so because they understand that court officials may seek to hold them in contempt under § 1-201.”

Soderberg and Woods purchased recordings related to the Gun Trace Task Force, a former unit in the Baltimore Police Department whose members were charged in a federal racketeering case, and want to use them in a documentary, according to the complaint. Open Justice Baltimore, Baltimore Action Legal Team and Life After Release seek to promote transparency in the criminal justice system and highlight deficiencies, according to the complaint.

“Not everyone has the time to visit a courtroom in the middle of the day to observe court proceedings,” Baltimore Action Legal Team member Iman Freeman said in a statement. “Hearing what happens in court can be both enlightening and startling. The ability to broadcast proceedings would be a powerful tool in showing the community what goes on in the criminal justice system.”

Soderberg, Woods, Open Justice Baltimore and Baltimore Action Legal Team submitted letters to Pierson in early May notifying the court of their intention to disseminate recordings of proceedings and stating their belief that the First Amendment authorized them to do so, according to the complaint. The court did not respond to the letter.

Similarly, Qiana Johnson, the founder of Life After Release, notified Prince George’s County Circuit Administrative Judge Sheila R. Tillerson Adams of plans to use court recordings and received no response.

The case is Brandon Soderberg et al. v. Hon. W. Michel Pierson et al., 1:19-cv-01559.

ICAP attorneys are also suing Pierson in state court on behalf of a reporter and blogger who says the Baltimore City Circuit Court “abruptly stopped processing requests for recordings from members of the public” by administrative order.

The lawsuit is a petition for writ of mandamus directing the court reporter to provide the recording or, alternatively, a complaint for injunctive relief precluding the court reporter and Pierson from relying on the administrative order.

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