States Are Blocking Courtroom Recording. But Reform Requires Transparency.

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Last week, court watchers from the Philadelphia Bail Fund and a journalist filed a federal lawsuit to challenge a ban on audio recording during bail hearings, arguing that the ban violates the First Amendment. Recording is prohibited in all court proceedings in the district, but the lawsuit focuses only on bail hearings, where no stenographer is present. The plaintiffs argue that these hearings can determine “whether an arrestee will spend the ensuing days, weeks, or months awaiting trial at home with family or alone in a jail cell.” Maia Jachimowicz, from the Philadelphia Bail Fund, told WHYY that “audio recording will enable to us to shed even more light on the injustice of these life-altering hearings.”

Although some states allow courtroom recording, Pennsylvania does not. “The ban is nominally designed to minimize courtroom disruptions and to prevent witness intimidation,” reports WHYY. “The suit argues that the ban on recordings at bail hearings does not accomplish either goal, as there are no witnesses present.”

In May, a Baltimore-based journalist sued the city’s court officials “over an abrupt policy change restricting public access to audio from court proceedings—in violation of a Maryland state rule requiring courts to make recordings available to members of the public,” wrote Alice Speri for The Intercept. “Justine Barron, an independent reporter who has investigated a series of high-profile cases involving the Baltimore Police Department, was denied access to court records last week, just two days after a podcast on the controversial prosecution of Keith Davis Jr. aired its first episode, including clips of legally obtained court audio.” Maryland law requires courts to grant the public access to audio recordings of court proceedings, but prohibits broadcasting those recordings. Journalists say that provision violates the First Amendment.

Barron had paid for records, but when she went to pick them up from the court, she received an email denying her request. Court officials told her that members of the public were still permitted to review court recordings at the courthouse by appointment, but copies would no longer be given to non-litigants. “Baltimore court officials are trying to replace one unlawful policy with another,” Nicolas Riley, a litigator at the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, wrote in a statement to The Intercept. “They know that it would be unconstitutional to punish people for broadcasting publicly available recordings of court proceedings, so they’re now trying to restrict the public’s access to those recordings in the first place, which violates state law.”

This month, a committee in Massachusetts proposed developing a statewide code that would allow police to exempt their body camera footage from public records laws. It has already faced pushback, reports New England Public Radio. “Allowing police departments to withhold any footage captured on these cameras would interfere with the public’s ability to oversee their own government,” Secretary of State William Galvin wrote to the committee. “This is an issue of particular importance to minority communities, and withholding videos of police interactions would only breed mistrust.”

In the face of such naked attempts to shield the daily injustices of the system from public view, it can be tempting to assert that everything should be made public. But legal scholar Nancy S. Marder urges some caution. In a 2013 academic article focused specifically on the question of cameras in federal courtrooms, she wrote that those who favored the cameras had a higher level of distrust in federal judges and a “public-centered” view of proceedings. “In contrast, opponents, most of whom are federal judges, generally trust the way they perform their job and are more inclined to take ‘a participant-centered’ view,” aiming to respect the privacy of litigants. Marder also points out that cameras might actually result in less judicial activity being open to the public, as judges choose to do more in chambers.

It is true that defense attorneys, concerned for the privacy and well-being of their clients, often resist media exposure, while activists, who hope to change the system as a whole, embrace it.

Another law professor, Jordan M. Singer, discussed a pilot program where cameras were installed in federal courtrooms around the country, and found it promising. In that program, recording was placed in the hands of the courts, not the media. The program addressed concerns by eliminating the sensationalist needs of the television news cycle. “Posting uncut proceedings, accompanied by meaningful information about the case, responds to fears that events depicted in the videos will be taken out of context,” he writes. The pilot also focused on typical cases, not outliers. He concludes that managed in that careful manner, the program revealed an important and unanticipated benefit: “improving the quality and integrity of future adjudication.”

This conclusion was echoed by law professor Matthew I. Fraidin, in a different and more emotionally charged context: child welfare hearings. In a 2010 law review article, he argues that confidentiality laws perpetuate an inaccurate narrative, according to which foster care is a “haven for child-victims savagely brutalized by ‘deviant,’ ‘monstrous’ parents.” Confidentiality also precludes other stories from informing or influencing that narrative, including stories that expose neglect within foster care and the fact that many children would be better off if left at home and not taken away. The laws dictate which kinds of stories may be told, and who may speak. The dominance of the law-sanctioned narrative affects even those involved in child welfare, and influences their worldview, which diminishes the quality of care they provide to children. Laws that require silence about these cases outside the courtroom “permit the acceptance of pervasive dysfunction in child welfare, and affect the administration of justice inside the courtroom.”