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4th Circuit revives challenge to Maryland broadcast ban on criminal trial recordings

A federal appeals court has revived a freedom of the press challenge to Maryland’s statutory ban on the broadcasting of official court recordings of criminal proceedings, saying the prohibition will pass constitutional muster only if the state can show a compelling reason for it.

In its ruling, the 4th U.S. Circuit Court of Appeals vacated a federal district judge’s decision upholding the broadcast ban as a constitutional restriction on the manner in which information is transmitted while permitting it to be disseminated by other means, such as by publication of the trial transcript.

The 4th Circuit, in remanding the case to district court, said the state cannot limit how publicly available information is disseminated absent a compelling reason.

The 4th Circuit rendered its published 3-0 decision Tuesday in a First Amendment appeal brought by journalists and community groups.

Baltimore reporters Brandon Soderberg and Baynard Woods plan to use recorded court proceedings in a documentary film about the Baltimore Police Department’s disgraced Gun Trace Task Force, and three organizations want to broadcast the recordings as part of their mission to improve the criminal justice system.

The plaintiffs have legally obtained court recordings of the criminal proceedings but would face contempt of court charges if they violate the 40-year-old ban on broadcasting them.

“Such strict scrutiny review of the broadcast ban is clearly required here,” Judge Robert B. King wrote for the 4th Circuit in its remand decision. “Simply put, the plaintiffs’ copies of the official court recordings of state criminal proceedings constitute truthful information that was released to the public in official court records. As such, the broadcasting of those lawfully obtained records cannot constitutionally be punished absent a need to further a state interest of the highest order.”

King was joined in the opinion by Judges Pamela A. Harris and Allison Jones Rushing.

The Maryland attorney general’s office, which has defended the broadcast ban, said in a statement Wednesday that it is reviewing the 4th Circuit’s decision.

In court papers, Maryland Attorney General Brian E. Frosh has called the ban necessary to protect a defendant’s constitutional right to a fair trial.

The prohibition is “narrowly tailored to disfavor a particular evil – the deleterious effect of broadcasting criminal trial proceedings,” Frosh wrote. “Interested members of the public can review or obtain copies of the recordings, but the recordings cannot be beamed into living rooms with the nightly news. This limited public disclosure carefully balances the public interest in information with trial participants’ interests in fair trials.”

The plaintiffs’ attorney, Nicolas Y. Riley, praised the 4th Circuit Wednesday for recognizing “what we’ve always known: that Maryland’s broadcasting ban raises serious First Amendment concerns.”

“We believe that this case has major implications for the public’s ability to monitor Maryland’s criminal legal system and, ultimately to hold that system accountable,” Riley stated via email.  “We look forward to proving our case in the district court.”

Riley is with Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection.

U.S. District Judge Richard D. Bennett had declined to apply strict scrutiny to the broadcast ban in upholding it in January 2020.

Bennett said that “the inevitable technological advancement in the way people communicate with one another, from text messages to podcasts, does not eliminate the state’s vital interest in ensuring fair criminal trials.”

The Maryland law “is not a total prohibition on the publication of information that is conveyed in criminal proceedings” but instead “simply prohibits” broadcasting such proceedings, said Bennett, who sits in the federal courthouse in Baltimore.

“The public and the media remain free to publish the information they glean from attending or listening to the criminal recordings provided by the courts,” he said, prompting the journalists and community groups to appeal to the 4th Circuit.

Several individuals and organizations have violated the broadcast ban in recent years, either intentionally or unknowingly, according to court testimony.

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. Former Administrative Judge W. Michel Pierson also sent a letter to HBO admonishing the network for using video footage of Syed’s trial in a 2019 documentary.

The Reporters Committee for Freedom of the Press submitted a brief to the 4th Circuit in support of the plaintiffs.

The 4th Circuit rendered its decision in Brandon Soderberg et al. v. Audrey J. S. Carrion, administrative judge for Maryland’s Eighth Judicial Circuit et al., No. 20-1094.

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