Transparency advocates decry proposed Maryland rule to restrict court audio recordings

The Maryland judiciary is considering a rules change that would bar the public from obtaining audio recordings of criminal court proceedings, a longtime practice that transparency advocates say is key to courtroom accountability.

The proposed policy is being considered on an "emergency" basis after a federal court ruled that a Maryland law controlling the publication of audio recordings violated the First Amendment. Known colloquially as the "Broadcast Ban," the law barred the public and journalists from publishing audio recordings in news reports, documentaries or advocacy campaigns - even though they had legally obtained the records through the court.

Just days after the law was deemed unconstitutional, the Maryland judiciary proposed a rule that would stop members of the public from obtaining copies of the recordings in the first place - though it would allow them to listen to the recordings at the courthouse under supervision of a court staffer.

The judiciary's proposal has alarmed free press advocates, community organizers and the plaintiffs in the case that ended Maryland's "Broadcast Ban." They said in interviews that the new rule is an overreaction - and one they believe is also a violation of the First Amendment. They are organizing to speak out against the proposal on Friday afternoon, when the justices of the Maryland Supreme Court will hear public comment before making a final decision on whether the rule should take effect.

To journalists and transparency advocates, ready access to the recordings gives more people the ability to see how the justice system in Maryland works, and accurately report on what happens in court proceedings. In putting forward the new policy, the committee cited a desire to protect the privacy of victims or witnesses, including testimony from a survivor of sexual assault, as a core reason for closing off access to court audio recordings, according to its report.

When contacted by The Washington Post with questions about the proposed rule, including why it is being considered on an "emergency" basis and whether it might be in violation of the First Amendment, a spokesman for the judiciary declined to comment.

"This matter is ongoing through the litigation and rulemaking process and to comment at this time would be premature," the spokesman said.

Dozens of people from 20 organizations have signed onto a letter advocating against the rule change, and more plan to speak at the public hearing Friday. Dan Morse, a Post reporter covering courts and crime in Montgomery County, is among those offering testimony.

"This would constitute a major step backward for court transparency and make Maryland's court system an outlier at a moment when most states are actively expanding public access to courts," attorney Seth Wayne wrote in the letter.

The U.S. Supreme Court makes audio recordings of its proceedings available, and the Judicial Conference of the United States recently announced an expansion of its audio streaming project to include 35 federal courts that will post audio recordings of proceedings online.

Through Georgetown University's Institute for Constitutional Advocacy and Protection, Wayne represented the plaintiffs in the case, Soderberg v. Carrión, that struck down the "Broadcast Ban." He said he has spent the last week and a half mobilizing other press freedom advocates, attorneys and community organizers to push back against the rule change. The timing of the proposal - announced just before Christmas, with a public comments deadline just after the new year - made it difficult to quickly engage people because they were on vacation during the holidays, Wayne said.

"It's particularly disappointing to see such a significant rule change be pushed through during the holiday season on an 'emergency basis' when there really is no emergency at all," said Jennifer Nelson, a senior staff attorney with the Reporters Committee for Freedom of the Press, one of the organizations that signed onto the letter.

In a lengthy report outlining the proposed policy, the judiciary's rules committee said it began planning changes to the audio recordings language months before the federal judge's final ruling in the Soderberg case.

In the letter to the court, Wayne said that attorneys for the state during the Soderberg litigation were unable to present the federal court with any evidence that public access and publication of audio recordings of court hearings had caused specific harm, in Maryland or elsewhere. Transparency advocates have pointed to the court's preexisting ability to redact or seal certain records and proceedings that are sensitive or introduce a security risk as a way to alleviate privacy concerns.

"I think that this paints far too broad a brush, which is precisely what the district court ruled in the original Soderberg case," Nelson said.

Qiana Johnson, whose organization Life After Release was plaintiff in the Soderberg case, said she wanted to be able to use the audio recordings of court proceedings for trainings and to share on the group's social media accounts. Life After Release packs courtrooms with community members and organizers to show judges and lawyers that defendants have support.

"We fight them in court for two years, and now we have to do direct action," Johnson said. "We won, and they just won't let it be."

"This just shows the layers of injustice," she added. "It's a machine."

Life After Release and its parent organization, Court Watch PG, have been pushing the judiciary for more than a year to increase court transparency by expanding virtual access to court proceedings. Last year, the organizations lobbied for a proposed bill to make virtual access to the courts a right under Maryland law, but the proposal died after the judiciary pushed back. The groups plan to push the bill again in the upcoming legislative session.

Rebecca Snyder, executive director of the Maryland, Delaware and D.C. Press Association, said she has been advocating for greater access and transparency in state institutions for years, but that the judiciary is "almost immovable."

"It's a huge step backward for Maryland," she said of the proposed rule change. "The state often prides itself as being so progressive and of the people, but in practice it really isn't. The court should not be this black box that nobody can understand."

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