Third Circuit OKs Philly Ban on Recording Bail Hearings

A dissenting liberal judge wrote that the majority’s decision “covers the public’s ears and shrouds the public’s eyes.”

(AP Photo/Brennan Linsley, File)

PHILADELPHIA (CN) — Philadelphia courts are not violating spectators’ constitutional rights by preventing them from recording audio of bail hearings, the Third Circuit ruled Tuesday.

The underlying lawsuit was brought last July by the Philadelphia Bail Fund, a nonprofit organization that helps post bail for those who cannot afford it. The group argued that its members’ First Amendment rights were violated when they were not allowed to record the hearings, despite having no other way to have access the proceedings besides attending hearings in person.

The courts in the City of Brotherly Love had argued that there is only a constitutional right to be able to attend the hearings and take notes, not to make an audio recording.

A federal judge ruled in favor of the Philadelphia Bail Fund in February, finding the policy is unconstitutional.

But the Philadelphia-based Third Circuit reversed that ruling in a 2-1 decision Tuesday, with the majority concluding there is no constitutional right to record audio of a bail hearing.

“We acknowledge that a verbatim record may further assist the Bail Fund with its mission. Our role, however, is not to determine whether it would be a good policy to require the creation of on-the-record bail hearings and the dissemination of a transparent and verbatim record of those hearings,” Senior U.S. Circuit Judge Morton Greenberg wrote. “Rather, we must determine the parameters of the First Amendment and whether the creation of such verbatim recordings is constitutionally mandated.”

Greenberg, a Ronald Reagan nominee, added, “Put simply, just because something may be a good policy does not mean that it rises to the level of a constitutional right.”

U.S. Circuit Judge Peter Phipps, appointed by President Donald Trump, joined Greenberg in the majority.

In a scathing 41-page dissent, U.S. Circuit Judge Cheryl Ann Krause argued her colleagues dropped the ball in their ruling.

“All parties and members of the panel agree that the First Amendment right of access applies to bail hearings,” the Barack Obama appointee wrote. “Yet the majority proceeds to eviscerate that right.”

Krause said the panel should have affirmed the lower court’s ruling, which required Philadelphia municipal courts to provide an audio recording. She stressed that the current system is hindering the Philadelphia Bail Fund’s ability to do its job.

“The Bail Fund, whose mission is to collect comprehensive information about Philadelphia bail hearings to be shared with city officials and the public, must send volunteers into the Criminal Justice Center at all hours of the day and night armed only with a pen and paper—and a hope that their furious scribblings during the hearings they happen to witness will produce useful data,” she wrote.  

The judge added, “In reversing, the majority neglects that the First Amendment protects the right to comprehensive and accurate information and glosses over undisputed evidence that the challenged restrictions meaningfully interfere with that right.”

Concluding her dissent, Krause said the First Amendment’s promise of access to information about happens in courts is “unfulfilled” by the majority’s ruling. She expressed concern over the impact this will have in the future.

“While this case arises in the context of bail hearings, the majority’s holding will reverberate far beyond the confines of the magistrates’ basement courtroom, with troubling consequences for a wide range of judicial and other governmental proceedings,” Krause wrote. “Public dialogue is only as rich as the information on which it is based, but today’s decision covers the public’s ears and shrouds the public’s eyes.”

Michael Daley, representing the Philadelphia courts, did not immediately respond to an email seeking comment on the ruling.

Philadelphia Bail Fund attorney Nicolas Riley of the Georgetown University Law Center expressed disappointment with the majority’s decision but praised Krause for pushing back on her fellow judges.

“We found Judge Krause’s dissent to be both powerful and persuasive,” Riley said in an email. “Her opinion reflects a keen understanding of why it’s so important for the public and the press to be able to document what takes place during these bail hearings.”

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