Editorial Advisory Board//May 12, 2023
//May 12, 2023
On April 28, George W. Liebmann, president of the Library Company of the Baltimore Bar wrote a President’s Letter urging members of the bench and bar to write the Supreme Court of Maryland addressing the issue of broadcasting criminal trials in Maryland.
We support Liebmann’s call for a vigorous response at the appropriate time to the Rules Committee’s proposal to permit access to video recordings to parties and counsel – and thus to the media – “with leave of the court and for good cause shown.” We do not, however, expect that response to be as overwhelmingly negative as Liebmann supposes; rather, we would anticipate a robust debate that exposes both the costs and benefits of that proposal.
In any event, we believe that debate should be free from some of the misinformation that has found its way into Liebmann’s letter. We respectfully submit the following corrections.
The letter, which was sent to 12,000-13,000 members of the Maryland legal community, asserts that, in Estes v. Texas (1965), the U.S. Supreme Court “emphatically reversed the criminal conviction of a celebrated malefactor because of prejudice from broadcasting.”
First, the decision might better be described as “narrow,” rather than “emphatic,” as there was a vigorous dissent signed by four justices. Second, a careful reading of the opinion shows that the court’s reversal was based largely on the failure of the trial judge to control the courtroom during pretrial hearings and the incremental way restrictions on broadcasting were imposed during the trial, rather than the inherent problems associated with broadcasting that the majority cited at length.
Indeed, the court held that Estes’s due process rights were violated by the conduct of this proceeding as related to broadcasting, not by the broadcast itself. If broadcasting a trial were facially unconstitutional, it would not be an issue for any state court.
The letter takes issue with U.S. Court of Appeals 4th Circuit ruling in Soderberg v. Pierson (2022) requiring strict scrutiny of any restrictions imposed on broadcasting where a party or counsel has provided copies of trial recordings to the press. While strict scrutiny is indeed the standard associated with viewpoint discrimination, it is not “usually reserved” for that purpose as the letter states.
In fact, there is a long line of Supreme Court decisions, culminating in Bartnicki v. Vopper (2001), holding that state action to punish the publication or broadcast of truthful information on matters of public concern, without illegal conduct by the publisher or broadcaster, violates the First Amendment absent a need of the highest order – the very definition of strict scrutiny.
Enumerating the evils of broadcasting trials, the letter states that “The hydraulic force provided by the temptations of money and fame (which in the O.J. Simpson case affected the behavior of almost all participants in the trial, including the prosecutors and trial judge) will be withstood only by exceptionally brave judges, who will be subjected to orchestrated media vilification if they refuse access to parties.”
We submit that the opposite is true, that only exceptionally weak judges – like Judge Lance Ito of O.J. Simpson fame – will succumb to either temptation or vilification when the interests of the defendants outweigh the interests of the public. We think that is proven every day in courts all around the country.
Finally, we take exception to the characterizations in the letter of what Liebmann sees as the two opposing sides on this issue: “decentralized courts and juries” versus a “concentrated mass media,” “individual members of the bench and bar” versus a “pre-organized and orchestrated self-interested media.”
To suggest that the bar is less “organized” than the press is absurd on its face, but to place these two institutions in other than a constructive competition to reconcile sometimes conflicting rights is, we think, woefully unhelpful.
Thus, again, we endorse Liebmann’s call for our assistance in helping the Supreme Court of Maryland to find the right balance.
Editorial Advisory Board members Arthur F. Fergenson, Susan F. Martielli and Debra G. Schubert did not participate in this opinion.
EDITORIAL ADVISORY BOARD MEMBERS
James B. Astrachan, Chair
James K. Archibald
Gary E. Bair
Andre M. Davis
Arthur F. Fergenson
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.