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Lawyers for judiciary defend ‘broadcast ban’ in motion to dismiss lawsuit

Judges and court employees are asking a federal judge to dismiss a lawsuit challenging the constitutionality of a law that prohibits sharing audio or video of criminal court proceedings.

The “broadcast ban” has been on the books since 1981 and prevents individuals from broadcasting recordings of criminal cases even if they were lawfully obtained from the court. Violators can be held in contempt of court.

A lawsuit filed in May claims the law “impedes the public’s ability” to know what is happening in court and asks for it to be declared unconstitutional. The plaintiffs, represented by the Institute for Constitutional Advocacy & Protection, or ICAP, at Georgetown University Law Center, want to use the recordings for reporting, education and advocacy and argue the prohibition violates the First and Fourteenth amendments.

But in a motion to dismiss filed Tuesday, administrative judges for Baltimore City Circuit Court and Prince George’s County Circuit Court, as well as the court reporters in those counties, defended the ban as a protection for the due process rights of criminal defendants.

“Broadcasting criminal trials chips away at that fairness by influencing all parts of the trial,” the motion states.

Jurors would be “self-conscious and uneasy” if they learned “their face, conduct and voice may be broadcast not just on the evening news, but in perpetuity through films, podcasts, and on-demand streaming services,” the defendants claim. Witnesses can also be affected, according to the motion.

“These fairness interests are systemic, because after-the-fact broadcasting (or routine broadcasting) of criminal trials affects future jurors, witnesses, and defendants to create more unfairness,” the motion states. “If broadcasting becomes the norm, every trial participant would enter the trial with this awareness.”

The defendants also claim the plaintiffs “propose a method of making trials less fair so that they can entertain and enlighten the public.”

The public does not have a First Amendment right to broadcast court proceedings, according to the defendants, though members of the public are free to attend trials.

The defendants cite a Supreme Court concurring opinion arguing that prohibiting live broadcasts of a case does not create a First Amendment problem so long as the media can send reporters to sit in court. Every court in which the federal rule against taking photos or broadcasting proceedings in federal cases has been challenged has upheld the rule, according to the motion.

The law restricts only how the plaintiffs can convey information about what happened in a trial, not what information can be shared, according to the motion.

Standing

The defendants also argue that the plaintiffs cannot prove they have been harmed by the law, which has never been enforced, and that they have no First Amendment right to broadcast criminal proceedings.

Several individuals and organizations have violated the broadcast ban in recent years, either intentionally or unknowingly, according to the lawsuit. Baltimore City Circuit Court officials publicly considered holding the producers of the “Serial” podcast — who pleaded ignorance of the law — in contempt for airing audio from the murder 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 documentary earlier this year.

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 2015 killing of a Pimlico security guard. The podcast has since released episodes that incorporate court audio, but McDonell-Parry’s attorneys said she has not been sanctioned.

The defendants claim the plaintiffs have not been held in contempt and do not have standing to challenge the law.

Though no one has been subject to a contempt proceeding, the plaintiffs argue the threat of one has a chilling effect on their free-speech rights because they worry a court may decide to enforce the law. But the defendants say the alleged chilling effect is not enough to give the plaintiffs standing.

“The complaint does not allege that any of the plaintiffs have been threatened with prosecution, so no plaintiff faces a ‘particular and concrete’ threat,” the motion states. “Instead, plaintiffs speculate about future enforcement and ‘speculative’ allegations of threatened enforcement do not convey standing.”

The defendants also contend the plaintiffs’ policy arguments about the benefits of wider circulation of court recordings should be brought to the Maryland General Assembly and, if any of the plaintiffs are ever held in contempt, they can challenge the finding in state court.

“Maryland’s courts have a significant interest in their own contempt procedures and expertise in interpreting and administering them,” the motion states.

The defendants also argue that the plaintiffs should have sued other potential enforcers of the rules, not just the administrative judges, and the individuals whose criminal proceedings they seek to broadcast.

“Proceeding without these criminal defendants would be inequitable,” the motion states. “Rendering a judgment that permits the unbridled broadcasting of someone’s criminal trial without giving that person notice and an opportunity to be heard ‘prejudice[s] that person.’”

The court reporter defendants say they should be dismissed from the lawsuit because they have nothing to do with contempt proceedings and do not enforce the rule.

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


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