A narrow challenge to a law banning broadcasts of criminal proceedings may help expand journalists’ ability to cover trials.
The production team of Embedded, the NPR podcast that chronicled the aftermath of a 2018 mass shooting in Annapolis, Md., won a narrow victory for the First Amendment with the latest installment of their series.
“Capital Gazette: All Of A Sudden … It’s Different” includes emotional testimony from a jury trial of the gunman who was sentenced Sept. 28 to multiple life terms for killing five people in the newsroom of Annapolis’ local daily newspaper.
The episode, released Thursday, incorporated excerpts of audio recorded during the trial, including testimonies of journalists who witnessed and survived the attack, the reading of the guilty verdict and heart-wrenching victims’ statements from families of the journalists who died. In one clip from the trial, Capital Gazette reporter Selene San Felice, a survivor of the shooting, told the gunman that she would continue to “write stories that made people like him angry.”
The first four episodes in the series, which were released months before the trial, relied on first-person accounts of survivors of the shooting and how they continued publishing while recovering from the trauma. Producers had always planned to cover the trial, knowing that one big obstacle blocked them from taking listeners inside the courtroom: Maryland’s ban on broadcasting official court recordings of criminal trials. Violators can be held in contempt of court.
“As an audio journalist, I obviously believe you get something extra from hearing an event that print can’t always capture,” said Chris Benderev, founding producer and reporter of Embedded, which features deep takes on complex news stories.
NPR’s legal counsel made the case for Embedded to use audio from the courtroom during a September hearing in the U.S. District Court of Maryland. On Sept. 15, District Judge Richard Bennett granted a permanent injunction that prevents the state from enforcing its broadcast ban in this case.
Embedded is not the first public media podcast to run up against Maryland’s broadcast ban. Producers of Serial, the true-crime podcast about the murder conviction of Adnan Syed, were nearly held in contempt for using audio from the 2000 trial that ended with a guilty verdict, according to the Baltimore Sun.
NPR decided to challenge the ban because it restricts journalists from publishing courtroom recordings that they legally obtain from the courts, said Micah Ratner, associate general counsel.
Maryland law requires the courts to record audio of criminal proceedings and provide copies of those recordings to anyone who asks, Ratner said. He described the restriction on broadcasting or publishing the audio as a violation of the First Amendment.
Lawyers representing Maryland Attorney General Brian Frosh had urged Bennett to uphold enforcement of the ban. In a court filing responding to NPR’s lawsuit, State Attorney Anne Leitess told the court that the ban protects witnesses. Knowing that their testimony won’t be published makes them feel more comfortable on the stand, she said. State Attorney Scott Schellenberger said publication of court recordings harms public safety and stymies prosecutors’ ability to win trials.
In his ruling, Bennett said that Maryland’s application of the law to preserve trial integrity was “too speculative” to prevent publication of the audio from the Capital Gazette trial.
“Applying a never-enforced law in a case based on hypothetical fairness concerns does not outweigh NPR’s well-established and tangible interest in its constitutional rights,” Bennett wrote.
Bennett concluded that enforcement of the ban infringed on NPR’s First Amendment rights. He granted the injunction based on the previous application of the law in the U.S. Court of Appeals for the 4th Circuit, which has jurisdiction over the District Court of Maryland. In that case, Washington Post v. McManus, the court ruled that restrictions of freedom of the press cannot be based on speculative concerns or overly burden journalists’ ability to publish public records.
‘Helpful to the broader challenge’
Though Judge Bennett’s ruling granted an exemption only for NPR and Embedded, another case pending in federal courts seeks to overturn Maryland’s broadcast ban as an infringement on the First Amendment. Plaintiffs in Soderberg v. Carrion include local organizations seeking to publish audio from Baltimore City criminal proceedings and two Baltimore-based journalists who are producing a film about the Baltimore Police Department’s Gun Trace Task Force. NPR joined 24 media organizations in filing an amicus curiae brief supporting the plaintiffs.
“This was a resounding win for free speech, under our narrow set of facts, and I think it will reverberate in a helpful way.”
Micah Ratner, NPR associate general counsel
When Soderberg came before the District Court of Maryland earlier this year, Bennett dismissed the lawsuit. However, the appeals court overruled his decision in June, sending the case back to district court.
Ratner described the narrow exemption granted for NPR to publish courtroom audio as a victory for freedom of speech. But he also believes it strengthens the case for overturning the ban with Soderberg.
“It will be helpful to the broader challenge because we have established some of the elements that they will need to prove in front of the same judge,” Ratner said. “We have shown that the state’s asserted interest in this law is very weak.”
“This was a resounding win for free speech, under our narrow set of facts, and I think that it will reverberate in a helpful way,” he added.
Providing full access to courtroom audio without restrictions on publication provides transparency in how the courts administer justice, said Kelly McEvers, creator and host of Embedded.
“The public deserves to know. Always,” McEvers said. “We’re in the business of shining a light, so it was the right decision.”
Deciding to sue
During the production of the first four episodes of Embedded, the team considered using courtroom audio for the third episode, according to Benderev. That episode focused on how the Capital Gazette had covered the shooter’s plea hearing. They ultimately decided the audio wasn’t necessary for the story.
Those earlier episodes focused on the stories of survivors of the shooting and how they struggled to continue reporting. The Embedded team wanted to minimize talking about the shooter and focus on the recovery of the journalists and their newspaper.
But they also planned to cover the gunman’s trial, which concluded in July with a guilty verdict, and knew Maryland’s broadcast ban would restrict their access, Benderev said. They considered many options on how and whether to use courtroom audio in the podcast, including defying the ban.
Producers of Serial and documentaries about Maryland’s criminal proceedings “had totally just used the audio — and in some cases video,” Benderev said. “As best I could tell, they got a slap on the wrist from some judges who wrote, like, an angry letter.”
“We had a simple conversation with our legal team,” McEvers said. “They asked, ‘Do you think this story is better with this tape?’ We said ‘Yes.’ … It’s a compelling proceeding because, in a lot of mass shootings, the shooter doesn’t survive.”
NPR wrote to the Maryland Attorney General’s Office asking the state to commit to not sanctioning Embedded for publishing official recordings from the trial, according to the ruling. The request was denied Aug. 31. NPR filed its complaint requesting an injunction the next day.
NPR’s staff attorneys and outside counsel from Ballard Spahr LLP decided to pursue a selective lawsuit against the ban, Benderev said, because they believed they could win.
Max Mishkin, a Ballard Spahr associate specializing in First Amendment law, represented NPR at the hearing, Ratner said. The judge appeared receptive to his argument from the beginning, he said.
“Our goal for this podcast is trying to put you as best we can in the shoes of people who survive something like this or lose a loved one,” Benderev said. “You need to give the experience as best you can and what it was like to be in the courtroom.”
‘It was like a dual tragedy’
Benderev first approached staff at the Capital Gazette about the podcast in August 2018, about two months after the shooting. Nearly a year later, the staff agreed to participate. Benderev first visited the newsroom in the spring of 2019.
“There was … a lot of hesitation to give journalists too much access because it could potentially be emotional or triggering for the staff,” said Danielle Ohl, a reporter who wasn’t in the newsroom during the shooting but was deeply affected by its aftermath. Ohl said she teamed up with San Felice to convince colleagues that granting access to Embedded would be a good idea. “I was always interested in being part of it,” she said.
Ohl said she supported NPR’s decision to sue Maryland for the right to publish the audio recordings. She left the paper this year and now works for Spotlight PA, an investigative news collaboration among Pennsylvania newspapers and three public media stations.
She said Embedded has done a good job of covering the shooting and all that has happened to the Capital Gazette’s staff afterward. That includes an episode on whether the newspaper, a Tribune publication, would survive a takeover by Alden Global Capital.
“It was like a dual tragedy that we were trying to recover from this very violent, traumatic event, but also trying to deal with a shrinking newsroom,” she said.