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Editorial Advisory Board: News organizations need to get involved in rule discussion

On Jan. 6, 2023, the Supreme Court of Maryland unanimously referred a proposed rule on the distribution and broadcast of official criminal trial audio recordings back to the Maryland Judiciary Rules Committee for further consideration. We applaud that decision, which reflected the recommendation of the committee chair, Alan Wilner, and we urge the news media outlets that serve our state to play an active role in that reconsideration – in sharp contrast to their failure to participate in the initial development of the proposed rule.

This vital constitutional and public policy issue grew out of a 2019 attempt by a local journalist to use official trial recordings, legally given to her by the Baltimore City Circuit Court Reporter’s Office, in a podcast concerning a high-profile criminal case.

When she was told that her use of the recordings in this manner might violate the prohibition on broadcasting such recordings in the Maryland Code of Criminal Procedure, the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center challenged that position. In a lawsuit filed in the U.S. District Court here, the Institute asserted, inter alia, that the “Broadcast Ban” violated the First Amendment.

In January 2020, U.S. District Judge Richard Bennett issued a memorandum opinion and order dismissing the lawsuit, with prejudice, on several grounds, but principally that the ban was a valid “time, place and manner regulation” that survived an intermediate scrutiny analysis. But in June 2021, a panel of the 4th Circuit Court of Appeals vacated that dismissal and remanded for further proceedings, holding that the ban constituted a penal sanction for publishing information released to the public in official court records and, thus, was subject to strict – not intermediate – scrutiny.

On remand, Bennett applied strict scrutiny and, on Dec. 9, 2022, struck down the Broadcast Ban as violating the First Amendment, holding that it was not narrowly tailored to achieve the state’s compelling interest in protecting witness identities and the content of their testimony.

Well before this decision in Soderberg v. Carrión, the rules committee had begun to draft substitute regulations that would pass constitutional muster. The press was invited to participate at several points in the process, but, according to Wilner, no one showed up. Nor did other key actors affected by the rule, including prosecutors and defense attorneys.

As a consequence, the proposed rule was highly restrictive, quite the opposite of access and transparency called for by past pronouncements by our state Supreme Court and First Amendment jurisprudence. Most onerous was a provision barring any unauthorized person from obtaining an electronic recording of any criminal proceeding. That provision would circumvent the constitutional problem by withholding the recordings altogether, arguably within the courts’ administrative authority, rather than restricting the uses of the publicly available recordings.

Before the rule could be submitted to the Supreme Court, the press was suddenly all over the story. Wilner might have been forgiven had he just told the court that the press had its chance and blew it. But at a public hearing on Jan. 6, Judge Wilner generously recommended that the court refer the proposed rule back to the committee for further consideration, an action that would also allow the General Assembly to weigh in if it chose to do so.

To its credit, the court accepted that recommendation after briefly considering and rejecting a stopgap measure. It was exactly the right thing to do.

First Amendment history is replete with examples of the press mobilizing to challenge laws and regulations that jeopardized its obligation to inform the public, as well as examples of the press abdicating that responsibility. We hope the Maryland news media will take this second chance to help find the proper balance between the compelling interests of the criminal justice system and the public’s right to know.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Andre M. Davis

Eric Easton

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Roland Harris

Julie C. Janofsky

Ericka N. King

Susan F. Martielli

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.