Md. Supreme Court will weigh new rule for release of court audio recordings

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Maryland’s Supreme Court will meet next month to consider a new rule that would govern the public’s access to audio recordings of court proceedings.

The proposal follows a federal court decision last year that found Maryland’s “broadcast ban,” which prohibited the broadcast of legally obtained recordings of court hearings, violated the First Amendment of the U.S. Constitution.

Under the new proposal, members of the public would be able to obtain copies of audio recordings of court hearings and would be allowed to disseminate or broadcast them freely — but recordings would first be subjected to a redaction process to shield sensitive information.

A judge would have to find there is “clear and convincing evidence” that there is a compelling reason for the redaction, such as protecting a vulnerable witness or a defendant’s right to a fair trial, and that “no substantial harm” will be caused by the redaction.

The redaction would only apply to copies of the audio recording that are given out to the public. Members of the public could still hear the complete recording upon request by coming to court and listening to it in person, but they would not be able to keep or broadcast the unredacted version.

Redactions should be “as narrow as practicable in scope and duration to effectuate the interest sought to be protected,” according to the proposed rule. Judges can order the redaction for a specific amount of time or indefinitely, but interested parties can ask for reconsideration if the reason for the redaction no longer exists.

Shielding of confidential proceedings will continue as it does now.

The new proposal has been approved by Maryland’s Standing Committee on Rules of Practice and Procedure and will be considered by the Supreme Court at an open meeting on Sept. 12.

“I’m glad to see that the proposal attempts to implement what the constitution and common sense require — that any limits on public access to these court proceedings be made on a case-by-case basis, and only when absolutely necessary,” said Seth Wayne, a lawyer for the plaintiffs in the federal lawsuit over the broadcast ban.

“If this rule is enacted, I hope that courts comply with its intent to limit redactions to those instances where there is truly evidence of a compelling need,” said Wayne, who is also senior counsel at the Institute for Constitutional Advocacy and Protection at Georgetown Law.

The new proposal is far more permissive than one the Maryland Supreme Court rejected in January following a backlash from news organizations and others. That emergency proposal would have forced members of the public to listen to audio recordings of court hearings only in person at the courthouse; they would not have been allowed to make copies of those recordings.

The earlier proposal drew opposition from media groups, including The Daily Record, and the plaintiffs in the federal lawsuit that led to the end of the broadcast ban.

Changes to the rules governing audio recordings became necessary after a federal judge found the broadcast ban unconstitutional late last year.

Under the ban, members of the public could request audio recordings of court hearings and receive copies via email or CD, but could be held in contempt of court if they broadcast them.

A group of journalists and advocacy organizations sued over the rule in 2019. After the case went to the 4th U.S. Circuit Court of Appeals, Senior U.S. District Judge Richard D. Bennett granted summary judgment in favor of the plaintiffs and found that Maryland’s ban restricted speech too broadly without accomplishing its goal of protecting witnesses.