In a significant vindication of the public’s right of access to court proceedings, Judge Harvey Bartle III of the U.S. District Court for the Eastern District of Pennsylvania held that court rules barring the public from using audio recording devices at bail hearings in Philadelphia Municipal Court are unconstitutional.

The lawsuit was brought in July 2019 by the Philadelphia Bail Fund. The Philadelphia Bail Fund is a non-profit organization that advocates for reform of Philadelphia’s bail system, including by observing and reporting about bail hearings in Philadelphia. The lawsuit challenged the application of three Pennsylvania Court Rules that bar the public from using audio recording devices in court and were used to prohibit the Philadelphia Bail Fund from recording bail hearings in Philadelphia. The Philadelphia Bail Fund sued the Magistrate Judges of the Philadelphia Municipal Court Arraignment Court, as well as the Philadelphia Sheriff, who enforces the rules being challenged.

At the urging of Judge Bartle, the parties cross moved for summary judgment based on facts to which the parties had stipulated. On February 25, 2020, the court granted the Philadelphia Bail Fund’s summary judgment motion. The court held that “Rule 112(c) of the Pennsylvania Rules of Criminal Procedure, Rule 1910 of the Pennsylvania Rules of Judicial Administration, and the Philadelphia Municipal Court Arraignment Magistrate rule 7.09 are unconstitutional under the First Amendment insofar as they prohibit the public to audio-record bail hearings.”

The court’s ruling hinged on the fact that, under present practice, no official recording or transcript of bail proceedings in Philadelphia Municipal Court is made available to the public. The court explained that allowing the public to monitor and observe bail proceedings only based on “attendance and notes” was insufficient to satisfy the First Amendment interest at stake. The court further explained that, in its view, the public “is not entitled under the First Amendment to make its own audio recordings if the public can obtain official audio recordings or transcripts,” and that “the validity of the court rules in question may be saved by making such audio recordings or transcripts publicly available.”

Accordingly, the court stated that its ruling would not take effect for 45 days, explaining that, if following that period, “the Philadelphia Municipal Court has not made official judicial recordings or transcripts of bail hearings available to the public . . . , the plaintiff may then make its own audio recordings of said hearings by use of silent hand-held recorders.”

In essence, the court held that the public has a First Amendment right to some kind of verbatim record of court proceedings. Thus, under circumstances where a court does not itself furnish such a record to the public, the court cannot constitutionally prohibit members of the public from making their own such recordings.

The Philadelphia Bail Fund was represented by Nicolas Y. Riley and Robert D. Friedman of the Institute for Constitutional Advocacy & Protection at the Georgetown University Law Center and Ballard Spahr attorneys Michael Berry, Paul Safier, Michael McDonald, and Shawn Summers from the firm’s Media and Entertainment Law Group.