Philly ban on courtroom recording violates First Amendment, suit says

Two groups have filed suit against officials in Philadelphia’s First Judicial District to challenge a ban on recording audio in certain courtrooms.

The nonprofit Philadelphia Bail Fund and a journalist affiliated with the Philly Declaration, an independent news outlet, are named as plaintiffs. The suit asserts that the ban on recording violates the First Amendment. 

While the recording ban affects all court activity within the city’s First Judicial District, the lawsuit focuses on magisterial bail hearings, which have been a source of controversy for criminal justice advocates. No stenographer is present at these relatively minor proceedings, and although the public can observe them, they’re not allowed to record what takes place.

Decisions made in 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,” the lawsuit states.

“These decisions can greatly disrupt an individual’s life, resulting in days, weeks, or months in jail without ever being convicted,” said Maia Jachimowicz, from the Philadelphia Bail Fund, which has sought to abolish cash bail. “Audio recording will enable to us to shed even more light on the injustice of these life-altering hearings which go largely unseen and unnoticed by the public.”

In the past, the Bail Fund had organized volunteers to independently document some of these bail hearings, as had Declaration journalist Merry Reed. The Wednesday filing states that because no official record is kept of these hearings, the ban “severely hinder[ed] Plaintiffs’ ability to document, report, and comment on Philadelphia’s bail process.”

The suit references calls from Philadelphia District Attorney Larry Krasner and City Council to minimize the use of cash bail, which they argue disadvantages people with lower incomes. The Pennsylvania Supreme Court recently announced an investigation into “systemic failures” in Philly’s cash bail system.

Although some states allow courtroom recording, the state’s administrative rules do not, and violators can be held in contempt of court. The ban is nominally designed to minimize courtroom disruptions and to prevent witness intimidation. 

The suit argues that the ban on recordings at bail hearings does not accomplish either goal, as there are no witnesses present.

The lawsuit names a string of top judges, like President Judge Patrick Dugan, who are charged with setting administrative policies for city courts. The suit also names Sheriff Jewell Williams, whose office is charged with enforcing courtroom rules, which include surrendering any recording devices before entering. 

A spokesperson for the FJD did not immediately respond to a request for comment.

The Bail Fund will be represented in court by attorneys from the Institute for

Constitutional Advocacy and Protection, at Georgetown University Law Center, and attorneys from Ballard Spahr, a top local law firm.

This is a breaking story and will be updated as more information becomes available.