Maryland’s ban on broadcasting court recordings violates First Amendment, judge rules

A federal judge has handed a victory to a group of journalists and advocates who argued that Maryland’s ban on broadcasting legally obtained recordings of court hearings violated the First Amendment of the U.S. Constitution.

Senior U.S. District Judge Richard D. Bennett granted summary judgment in favor of the group late last week and ruled that the Maryland ban failed to pass strict scrutiny.

“The State of Maryland remains free to prohibit live broadcasting from the courtroom, and to regulate the release of shielded records and video recordings under the Maryland Rules,” Bennett wrote in his 48-page opinion.

“However, the State may not sanction the press for broadcasting ‘lawfully obtained, truthful information’ that the State itself has disclosed to the public.”

Baltimore reporters Brandon Soderberg and Baynard Woods, along with three criminal justice advocacy organizations, sued in 2019 because they feared being held in contempt of court if they broadcast legally obtained recordings of criminal proceedings in Maryland.

Soderberg and Woods said they planned to use recordings in a documentary film about the Baltimore Police Department’s disgraced Gun Trace Task Force. The organizations, Open Justice Baltimore, Baltimore Action Legal Team and Life After Release, wished to use the recordings to highlight their work and educate community members about the justice system.

Bennett concluded that Maryland’s broadcast ban could not pass strict scrutiny. He acknowledged that the state has compelling interests, including protecting the integrity of criminal trials and shielding witnesses from harassment.

But the ban does not actually serve those interests and burdens more speech than necessary, Bennett found. Once a court recording has been released, the state cannot limit how it is used by the public and the press.

Maryland could take other, more narrowly tailored steps to prevent the release of sensitive information in the first place, rather than trying to restrict the broadcast of information that has been made public already, Bennett wrote.

“Once the state has released sensitive information to the public, the horse is out of the barn—punishing the press is neither the least restrictive means of preserving the state’s interests nor a particularly effective means of doing so,” he wrote.

This case previously went before the 4th U.S. Circuit Court of Appeals, which revived the First Amendment challenge after Bennett threw it out in 2020. Bennett had concluded the broadcast ban was a content-neutral regulation on the time, place and manner of speech that passed intermediate scrutiny.

But the 4th Circuit ruled in June 2021 that the broadcast ban is “properly assessed as a penal sanction for publishing information released to the public in official court records” and should be subject to strict scrutiny.

Adam G. Holofcener, a lawyer for the plaintiffs and the executive director of Maryland Volunteer Lawyers for the Arts, said the ruling will mean better access to the courts for all citizens.

“After years of working on this litigation we are just thrilled that the District Court rightly held that (the ban) was unconstitutional under the First Amendment,” Holofcener said.

A spokesperson for the Maryland Attorney General’s Office, which represented the state in the lawsuit, declined to comment.

The Maryland Judiciary’s public information officer, Bradley Tanner, said in an email that “the Judiciary is working through counsel and reviewing the decision to determine next steps.”