Federal appeals court sharply questions legality of Maryland’s ‘broadcast ban’ on court proceedings

A federal appellate panel indicated in a unanimous ruling Tuesday that Maryland’s prohibition on broadcasting courtroom footage is constitutionally suspect, and sent the issue back to a lower court for more hearings.

Since 1981, Maryland has banned the broadcasting of criminal proceedings, both live and taped. Members of the public can watch or obtain recordings, but can’t disseminate them.

The Fourth Circuit Court of Appeals reversed a federal district judge’s affirmation of that ban, citing Supreme Court rulings in finding that “broadcasting of those lawfully obtained recordings cannot constitutionally be punished ‘absent a need to further a state interest of the highest order.'”

Nicholas Y. Riley, of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, said there is “no constitutionally sound justification for the ban.”

“The ban is just so expansive and overbroad, we think it will be difficult for Maryland to come up with a justification,” Riley said.

Riley brought the challenge on behalf of journalists Brandon Soderberg and Baynard Woods, who were putting together a documentary on the Gun Trace Task Force police corruption scandal; Open Justice Baltimore and Baltimore Action Legal Team; and Quiana Johnson, a Prince George’s County activist who founded a group called Life After Release. Tribune Publishing, the parent company of the Baltimore Sun, joined 23 news organizations in an amicus brief supporting the position.

“This is about transparency and accountability and it’s also about demystifying the courtroom, which is intentionally designed to be confusing and intimidating for the vast majority of people,” Soderberg said in a statement. “This is also about solidarity: Reporters, lawyers, and advocates are all part of this lawsuit because we share a common goal of wanting more information to be available to all people.”

Maryland Attorney General Brian Frosh’s office defended keeping the ban in place, arguing it helps ensure fair trials and protect witnesses from intimidation.

“It helps guard against the harm to the trial process that would result from the distraction of jurors and the intimidation of witnesses, if they knew that their participation in criminal trials might be televised on the nightly news … or disseminated worldwide on the internet,” attorneys for the state wrote.

In the initial challenge, U.S. District Judge Richard D. Bennett, ruling without a hearing, said that there was “overwhelming federal case authority upholding the constitutionality of such a restriction.” He said that the ability to attend the trial and report what was observed “satisfied” the Constitution.

“The interests in ensuring a fair trial, preserving order in the courtroom, and protecting the institutional accuracy of truth-seeking in a criminal trial are all directly served by the Broadcast Ban,” Bennett wrote.

The Fourth Circuit disagreed.

“The plaintiffs’ copies of the official court recordings of state criminal proceedings constitute ‘truthful information’ that was ‘released to the public in official court records,'” the judges wrote.

Rules vary from state to state. The trial of Derek Chauvin in Minnesota was broadcast live daily, while other states like Maryland prohibit even after-the-fact airing of footage.

In 2019, producers of the HBO documentary “The Case Against Adnan Syed” violated the state’s ban and aired courtroom footage from the Syed case. The courts have since responded by further restricting access to recordings. In Baltimore, members of the public wishing to watch footage must sign paperwork and place their cell phone in a lock box. Only audio recordings can be purchased, and only after getting the approval of the administrative judge.

State rules allow for broadcast of civil proceedings, but the court denied The Sun’s request to film when Baltimore State’s Attorney Marilyn Mosby took the stand in a civil suit filed against her.

Notably, the federal courts do not allow broadcasting and do not provide audio or video accounts of court hearings.