ICAP Challenges Maryland Ban on Broadcasting Criminal Trial Recordings

May 28, 2019

Journalists and community leaders sue to use court recordings to promote transparency in criminal justice system

Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP) together with Maryland Volunteer Lawyers for the Arts has filed a federal lawsuit challenging a Maryland law that prohibits people from broadcasting recordings of criminal trial proceedings.

Filed on behalf of a group of journalists and community organizations, the new lawsuit is the latest in an ongoing effort to oppose § 1-201 of Maryland’s Code of Criminal Procedure. That provision makes it illegal to broadcast a recording of any criminal “trial, hearing, motion, or argument” held in a trial court, including recordings that were lawfully obtained from court itself.

The plaintiffs argue that § 1-201 violates the First Amendment by barring them from disseminating accurate depictions of public court proceedings. Two of the plaintiffs, journalists Brandon Soderberg and Baynard Woods, hope to use trial recordings in future reporting and in an upcoming documentary about a now-defunct Baltimore police unit whose members were indicted on federal racketeering charges in 2017. Soderberg and Woods lawfully purchased trial recordings directly from the courthouse but are hesitant to use them in their film because of § 1-201’s broadcasting ban.

“Seeing evidence of sworn police officers lying in court is in the public interest,” said Soderberg. “And the ability for the public to hear—not only read about—what happens in court will bring some much-needed transparency to Baltimore.”

“We believe that criminal justice reform isn’t possible under the cloak of secrecy that currently covers what are supposed to be public proceedings,” added Woods. “A lack of transparency breeds corruption, as Baltimore knows all too well.”

The other plaintiffs in the suit hope to use court recordings for different purposes. Open Justice Baltimore and the Baltimore Action Legal Team, two community organizations, want to use audio recordings from high-profile criminal trials to promote transparency within Baltimore’s criminal justice system and to highlight structural deficiencies in that system. They hope to post the audio recordings on their websites, share them on social media, and play them at community events, like know-your-rights trainings.

“Not everyone has the time to visit a courtroom in the middle of the day to observe court proceedings,” said the Baltimore Action Legal Team’s Iman Freeman. “Hearing what happens in court can be both enlightening and startling. The ability to broadcast proceedings would be a powerful tool in showing the community what goes on in the criminal justice system.”

“For far too long, the people of Baltimore have been subjected to gaslighting and misinformation by the media, police, and other public officials,” said Open Justice Baltimore’s Megan Kenny. “The ability to hear public proceedings without having to travel to a courthouse not only makes this information more accessible to those with mobility or financial constraints, it also allows the people to make their own informed decisions.”

The legal fight is not limited to Baltimore. A Prince George’s County organization called Life After Release is also challenging § 1-201. The organization, which aims to promote accountability and transparency within the criminal justice system, wants to use courtroom audio to teach people how to advocate for friends and relatives facing criminal charges. The organization’s founder, Qiana Johnson, hopes to share recordings from cases in which she has been invited to address the court as a community advocate on behalf of defendants.

“These recordings showcase the powerful impact of greater community participation in the justice system,” said Johnson. “We should be allowed to use the recordings to tell that story—especially when the recordings feature our own voices.”

Before ICAP and Maryland Volunteer Lawyers for the Arts filed the suit on their behalf, all of the plaintiffs had sent letters to court officials asking them to identify any concrete harms that might result from the dissemination of trial recordings that the officials themselves had already made publicly available. To date, court officials have not responded to any of those letters.

In recent years, Maryland court officials have repeatedly considered holding members of the media in contempt for violating § 1-201. In 2016, Baltimore court officials publicly rebuked the producers of Serial, the popular investigative-reporting podcast, for playing excerpts of criminal trial proceedings on their show. Last month, court officials warned another journalist, Amelia McDonell-Parry, that it would be unlawful for her to include courtroom audio on her podcast.

The complaint seeks a judicial declaration that § 1-201 violates the First and Fourteenth Amendments and that the plaintiffs cannot be sanctioned for disseminating any lawfully obtained trial recordings.

About the Institute for Constitutional Advocacy and Protection (ICAP)

ICAP uses the power of the courts to defend American constitutional rights and values. Based at Georgetown University Law Center, ICAP draws on expert litigators, savvy litigation strategy, and the constitutional scholarship of Georgetown to protect America’s constitutional way of life. More information about ICAP can be found here.

About Maryland Volunteer Lawyers for the Arts (MdVLA)

MdVLA is a nonprofit organization dedicated to protecting Maryland artists’ legal rights through access to pro bono legal services, referrals, and education. More information about MdVLA can be found here.