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Maryland Supreme Court to hold hearing on rule to limit access to court recordings

The Maryland Supreme Court is considering an emergency rules change after a federal judge found earlier this month that Maryland’s ban on broadcasting legally obtained recordings of court hearings violates the First Amendment.

The state’s top court will hold a virtual open meeting on Jan. 6 at 2:30 p.m. to discuss the proposed change.

The proposal would require that members of the public listen to audio recordings of criminal proceedings “at a time and place designated by the court and under the supervision of a court official.” The public would not be allowed to obtain the recordings or make additional copies.

As it stands now, members of the public can request audio recordings of court hearings and receive copies via email or CD.

Maryland prohibits the broadcast of these recordings — a rule that brought a legal challenge in federal court from a group of journalists and advocates.  The group sued in 2019 because they feared being held in contempt of court if they broadcast legally obtained recordings of Maryland criminal proceedings.

Senior U.S. District Judge Richard D. Bennett granted summary judgment in favor of the group this month 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 the opinion.

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

In response to the decision, Maryland’s Standing Committee on Rules of Practice and Procedure submitted a report recommending the adoption of a new rule that would limit access to audio recordings on an emergency basis.

Members of the committee raised concerns about audio recordings being used to share sensitive information or intimidate crime witnesses, according to the report.

“Committee members noted that courtrooms remain open to public attendance and the provisions permitting later listening or listening and viewing at a courthouse maintain a level of public access to the recordings while eliminating risks,” wrote Sandra F. Haines, the rules committee’s director and reporter. “Several members stated that once a copy of a recording is out in the world, the Judiciary loses control over what can be done with it.”

People interested in the change have been asked to provide their written comments to [email protected] by Jan. 4.

Adam G. Holofcener, a lawyer who represented the plaintiffs in their federal lawsuit challenging the broadcast ban, said the group will speak in opposition to the proposed change at the upcoming meeting.

“We are extremely disheartened by the actions taken by the Supreme Court in regards to our recent win and their attempt to change rules that would make publicly accessible court recordings less accessible,” Holofcener said.

“We’re skeptical that any of the changes would pass constitutional scrutiny,” he said.

The rules committee also considered two other options: one that would prohibit broadcasting a recording of a criminal proceeding while the proceeding is still pending and another that would prevent court staff from providing copies of audio recordings while the proceeding is still pending.