Filed Date: July 17, 2019
Closed Date: May 4, 2021
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This is a case about whether the First Amendment of the U.S. Constitution requires public access to audio recordings of bail hearings before the Philadelphia Municipal Court. In Philadelphia, defendants who are arrested and then charged with a crime remain held in a divisional booking center, where they participate via videoconference in bail hearings. Philadelphia Municipal Arraignment Court Magistrates (ACMs) conduct these hearings and determine whether to release a defendant and what conditions, if any, to impose on release. Although the preliminary arraignments are open to the public and recorded for “internal review purposes,” neither these recordings nor transcripts of the hearings are made available for public access. Members of the public are generally barred from making their own recordings of bail proceedings pursuant to three court rules: P.A. Rule of Criminal Procedure 112(C), P.A. Rule of Judicial Administration 1910 and Local Arraignment Court Magistrate Rule 7.09.
On July 17, 2019, the Philadelphia Community Bail Fund and an independent journalist sued six ACMs of the Philadelphia Municipal Court, as well as the President Judge and the sheriff in their official capacities, in the U.S. District Court for the Eastern District of Pennsylvania. Represented by lawyers from the Institute for Constitutional Advocacy and Protection of Georgetown University and a private law firm, the plaintiffs sued under 42 U.S.C. 1983 and sought a declaratory judgment that these court rules, in so far as they prevented the public from making audio recordings of bail proceedings, violated their First Amendment public access rights to court proceedings. They also requested attorney’s fees. The case was assigned to Senior Judge Harvey Bartle III.
On September 4, 2019, the defendants moved to dismiss, arguing that the First Amendment right of access to attend judicial proceedings does not extend to a right to record such hearings. Instead, defendants contended that permission to record is a policy choice for each judicial system. After hearing oral argument, Judge Bartle denied the motion to dismiss on November 13, 2019.
The plaintiffs and the defendants both proceeded to file motions for summary judgment on December 20, 2019. Judge Bartle found for the plaintiffs on February 25, 2020, 440 F.Supp.3d 415, holding that the defendants had failed to present an overriding governmental interest to justify their denial of access to the public. Judge Bartle determined that the right to be physically present and take notes at bail hearings was inadequate to satisfy the First Amendment right to public access. Accordingly, he found that the three court rules were unconstitutional, insofar as they prevented the public from recording bail hearings in a non-disruptive and quiet manner, because of the absence of available alternatives, such as official audio recordings or transcripts of the bail hearings. If the municipal court were to make these alternative records of proceedings available, however, Judge Bartle noted that the First Amendment would not require a right to make one’s own recordings.
The defendants appealed to the U.S. Third Circuit Court of Appeals on March 24, 2020. A panel for the Third Circuit initially reversed the district court’s decision to grant summary judgment on September 29, 2020. 976 F.3d 302. The Court agreed that the First Amendment right of access to the courtroom includes physical attendance and meaningful access to documents produced during proceedings. The panel – composed of Senior Circuit Judge Morton I. Greenberg, Circuit Judge Peter J. Phipps and Circuit Judge Cheryl Ann Krause – found, however, that the right of access does not include “an affirmative requirement that the judiciary create or allow the creation of verbatim records of its proceedings” under First Amendment precedent. Therefore, the Court determined that that the district court erred by broadening the right to access beyond the ability to obtain a “comprehensive record” of proceedings. According to the majority, the fact that the public “may not be able to capture every word spoken does not meaningfully interfere with the public's ability to inform itself of the proceeding” because other methods were available, such as obtaining the criminal complaint and accessing online dockets. Judge Krause authored a lengthy dissent in which she contended that allowing courts to prohibit audio recordings stands to “eviscerate” the right of access and that the majority’s reasoning unjustly applied to all judicial proceedings, not just bail hearings.
The plaintiffs submitted a petition to rehear the case en banc on November 12, 2020, arguing that the panel’s decision directly conflicted with the Court’s precedents, including Whiteland Woods v. Township of West Whiteland, 193 F.3d 177 (3d Cir. 1999), which held that the government cannot prevent the public from obtaining a comprehensive record of an open proceeding. Several interested organizations filed amicus briefs supporting the plaintiffs’ petition, including the ACLU of Pennsylvania, Pennsylvanians for Modern Courts, the CATO Institute, the R Street Institute, Professor Eugene Volokh and the Reporters Committee for Freedom of the Press, which was joined by nineteen media organizations. In addition, the Philadelphia District Attorney's Office and the Philadelphia Defender Association both expressed their support for allowing records of bail proceedings. On January 11, 2021, the Third Circuit granted the plaintiffs’ petition, and voted to vacate the panel opinion and rehear the case en banc. 984 F.3d 273. Shortly thereafter, however, the bail magistrates voluntarily dismissed their appeal, a decision which may have been influenced by pressure from interested parties. The Third Circuit proceeded to reaffirm that the earlier panel opinion was vacated and dismissed the case. 2021 WL 1897359. Therefore, the district court’s holding remains in force: absent official court records, such as recordings or transcripts, the First Amendment right of access requires a court to allow the public to record bail hearings. The case is now closed.
Summary Authors
Chris Miller (12/16/2022)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/15930867/parties/reed-v-bernard/
Bartle, Harvey (Pennsylvania)
Daley, Michael (Pennsylvania)
KIRBY, AMY MARIE (Pennsylvania)
Mallek, Megan L (Pennsylvania)
MCGRATH, SEAN J. (Pennsylvania)
Bartle, Harvey (Pennsylvania)
See docket on RECAP: https://www.courtlistener.com/docket/15930867/reed-v-bernard/
Last updated March 9, 2024, 3:09 a.m.
State / Territory: Pennsylvania
Case Type(s):
Special Collection(s):
Fines/Fees/Bail Reform (Criminalization of Poverty)
Key Dates
Filing Date: July 17, 2019
Closing Date: May 4, 2021
Case Ongoing: No
Plaintiffs
Plaintiff Description:
Nonprofit advocating for reform of bail practices and an independent journalist.
Plaintiff Type(s):
Non-profit NON-religious organization
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Defendants
Arraignment Court Magistrates of the First Judicial District (Philadelphia, Philadelphia), State
Defendant Type(s):
Case Details
Causes of Action:
Available Documents:
Injunctive (or Injunctive-like) Relief
Outcome
Prevailing Party: Plaintiff
Nature of Relief:
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