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NPR challenges Md.’s broadcast ban on criminal trial recordings

Radio network seeks to air Ramos' proceedings

National Public Radio Inc. has become the latest news organization to challenge Maryland’s statutory ban on broadcasting official court recordings of criminal proceedings, saying the prohibition violates NPR’s constitutional right to air audio from the July trial of the man who murdered five Capital Gazette employees on June 28, 2018.

In a federal court filing last week, the radio network said the First Amendment right to freedom of the press entitles it to broadcast footage of the court proceedings in which Jarrod Ramos was found criminally responsible for the first-degree murders of Gerald Fischman, Rob Hiaasen, John McNamara, Rebecca Smith and Wendi Winters in their Annapolis newsroom.

NPR said it obtained the official recordings lawfully from the state yet is prohibited from sharing what it has with its listeners, the network stated in its constitutional challenge in U.S. District Court in Baltimore.

“The Broadcast Ban imposes a substantial and unconstitutional burden on NPR’s ability to freely report the news and convey stories to its listeners by way of its audio journalism,” wrote NPR’s attorneys with Ballard Spahr LLP in Washington and Philadelphia.

“It requires NPR to choose between publishing lawfully obtained criminal trial court recordings while risking being held in contempt of court, or to refrain from publishing lawfully obtained criminal trial court recordings for fear of being held in contempt,” the lawyers added. “The Broadcast Ban therefore creates a chilling effect on journalism that violates the First Amendment.”

NPR’s filing followed the 4th U.S. Circuit Court of Appeals’ published decision in June that the 40-year-old ban raises serious First Amendment concerns and passes constitutional muster only if the state can show a compelling reason for the prohibition.

That challenge, now headed back to U.S. district court, was brought by documentary film makers Brandon Soderberg and Baynard Woods, who plan to use recorded court proceedings in a documentary film about the Baltimore Police Department’s disgraced Gun Trace Task Force.

Maryland Attorney General Brian E. Frosh has defended the broadcast ban as necessary to ensure the state’s compelling interest in protecting 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,” Frosh added in the state’s 4th Circuit filing in Soderberg et al. v. Carrion, No. 20-1094. “This limited public disclosure carefully balances the public interest in information with trial participants’ interests in fair trials.”

NPR, in its district court challenge, said it intends to air excerpts of Ramos’ trial – “one of the most significant criminal proceedings in Maryland history” — on its podcast “Embedded” after Ramos’ scheduled sentencing in Anne Arundel County Circuit Court on Sept. 28.

NPR seeks a district court order declaring the ban unconstitutional, without which the network will be “in the untenable position of either using the recordings in its coverage while facing the risk of being held in contempt of court, or refraining from using the recordings solely out of fear that it, or one of its journalists, may be held in contempt of court,” wrote attorneys Charles D. Tobin, Maxwell S. Mishkin and Leslie Minora. “There is no conceivable ‘state interest of the highest order’ that could justify Maryland’s ban on broadcasting lawfully obtained recordings of trial court criminal proceedings.”

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.

NPR’s First Amendment challenge is docketed in the U.S. District Court in Baltimore as National Public Radio Inc. v. Hon. Glenn L. Klavans et al., No. 21-cv-2247.