NPR wins preliminary challenge to Md.’s broadcast ban on criminal trials

National Public Radio Inc. has won a preliminary but significant legal victory in its bid to air audio from the July trial of the man who murdered five Capital Gazette employees on June 28, 2018, despite Maryland’s statutory prohibition on the broadcasting of official court recordings of criminal proceedings.

U.S. District Judge Richard D. Bennett ruled this week that the state’s ban likely violates NPR’s constitutional, freedom-of-the-press right to broadcast the recording it lawfully obtained from the Maryland Judiciary.

Bennett issued his ruling in preliminarily enjoining the state from enforcing the “broadcast ban” against NPR. The judge said he will hold a hearing Wednesday before deciding whether to make the injunction permanent in advance of NPR’s planned airing of the footage after Jarrod Ramos’ scheduled Sept. 28 sentencing for the  first-degree murders of Gerald Fischman, Rob Hiaasen, John McNamara, Rebecca Smith and Wendi Winters in their Annapolis newsroom.

NPR, in its district court challenge, said it intends to broadcast excerpts of Ramos’ trial – “one of the most significant criminal proceedings in Maryland history” — on its podcast “Embedded.”

“This is a big win for free speech,” NPR said in a statement Friday. “The public will likely be able to hear these recordings as part of our ongoing coverage of a story we’ve been following closely for three years and that is so important to Annapolis, Maryland, and the journalism community.”

The Maryland Attorney General’s Office, which is defending the Broadcast Ban, declined to comment on Bennett’s decision.

In a written opinion filed Wednesday, Bennett said the state has so far failed to show a “compelling interest” for restricting freedom of the press and that the ban is narrowly tailored to achieve that interest in NPR’s case.

Bennett rejected the state’s argument that the ban is necessary to ensure the integrity of the criminal justice system and to enable witnesses to crime to testify in court without fear that their testimony will mark them for retaliation by the defendant or his or her associates.

“This claim is unpersuasive, as public scrutiny of trials is preservative – not deleterious – of fairness,” Bennett wrote. “Although the Broadcast Ban does not close the courthouse doors, these bedrock principles run counter to (the state’s) assertion that broadcast coverage of trial proceedings will broadly undermine the fairness of Maryland’s judicial system.”

Bennett also called the state’s concern for witness intimidation “prophylactic at best, and speculative at worst” and inapplicable to NPR’s plan to air footage of Ramos’ trial, which occurred after he pleaded guilty to murder and in which a jury found him criminally responsible for the killings.

“Nothing on the record suggests NPR’s podcast will endanger witnesses or undermine the fairness of the proceedings against Jarrod Ramos – whose trial is concluded, whose sentencing is imminent, and whose potential appeal will not require witness involvement,” Bennett wrote. “Without specific evidence that NPR’s broadcast would endanger witnesses or undermine the fairness or security of the Ramos trial, (the state’s) assertion that applying the Broadcast Ban in this case would advance ‘a state interest of the highest order’ is tenuous at best.”

The state’s defense of the ban as necessary to prevent witness intimidation was also belied by the freedom reporters have to quote from the official court recordings and “even use voice actors to re-enact the trial,” Bennett wrote.

“Additionally, since well before the advent of broadcast media, witnesses who cooperate with the government have risked intimidation and retaliation by a criminal defendant’s associates,” Bennett added. “(I)t is unclear how prohibiting NPR from broadcasting trial recordings will meaningfully advance Maryland’s interest in protecting witnesses when alternative means of disclosure are available and create the same generalized risks of exposure.”

NPR’s constitutional challenge followed the 4^th 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.

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.