Nat'l Pub. Radio, Inc. v. Klavans

• Decision Date: 15 September 2021
• Docket Number: Civil Action No. RDB-21-2247
• Parties: NATIONAL PUBLIC RADIO, INC., Plaintiff, v. Hon. Glenn L. KLAVANS, et al., Defendants.
• Court: U.S. District Court — District of Maryland

560 F.Supp.3d 916

NATIONAL PUBLIC RADIO, INC., Plaintiff,

v.Hon. Glenn L. KLAVANS, et al., Defendants.

Civil Action No. RDB-21-2247

United States District Court, D. Maryland.

Signed September 15, 2021

Leslie Minora, Pro Hac Vice, Ballard Spahr LLP, Philadelphia, PA, Maxwell S. Mishkin, Charles D. Tobin, Ballard Spahr LLP, Washington, DC, for Plaintiff.

Ann Marie Sheridan, Robert A. Scott, Maryland Office of the Attorney General, Baltimore, MD, for Defendants.

MEMORANDUM OPINION

Richard D. Bennett, United States District Judge

This case features an as-applied First Amendment challenge to Maryland's ban on the broadcast of any recordings of criminal proceedings held before a jury (the "Broadcast Ban"). Plaintiff National Public Radio, Inc. ("NPR") brings this action against the Honorable Glenn L. Klavans and the Honorable Fred S. Hecker, (collectively "Defendants"), two Maryland State Circuit Court Judges.¹ NPR seeks to enjoin the anticipated enforcement of the Broadcast Ban against a podcast episode featuring official state recordings of the recent trial of Jarrod Ramos, who was convicted of five murders in connection with the June 2018 Capital Gazette shooting in Annapolis, Maryland. Pending now is NPR's Motion for Preliminary Injunction (ECF No. 3). The parties' briefings have been reviewed, and a hearing was held on September 13, 2021. (ECF No. 14.) For the reasons set forth on the record at the hearing, and as supplemented by this opinion, NPR's Motion for Preliminary Injunction has been GRANTED. (ECF No. 15.) A permanent injunction hearing has been scheduled for September 22, 2021. (Id. ).

BACKGROUND

I. Access to Court Recordings in Maryland

Since 1980, Maryland court rules have required the verbatim recording of all state trial court proceedings, and provided the public a right to inspect or obtain copies of those records. (Compl., ECF No. 1 ¶¶ 13–15; Resp. in Opp., ECF No. 11, at 2.); see 7 Md. Reg. 2252-55 (Nov. 28, 1980) (authorizing pilot program for "extended media coverage" of criminal trials). Per the Maryland Rules, "[a]ll trials, hearings, testimony, and other judicial proceedings before a ... judge held either in a courtroom or by remote electronic means shall be recorded verbatim in their entirety." Md. Rules, Rule 16-502 (District Court); Rule 16-503(a)(1) (Circuit Court). Members of the public may listen to or view trial recordings at the courthouse, Rule 16-504(i), or obtain official copies of the recordings on written request. Rule 16-504(h).

In 1981, the Maryland General Assembly enacted a law against the recording or broadcasting of criminal proceedings. (Resp. in Opp. 3.) Section 1-201 of the Criminal Procedure Article of the Maryland Code (the "Broadcast Ban") prohibits the use of any "television, radio, and photographic or recording equipment" to broadcast "any criminal matter ... that is held in trial court or before a grand jury." Md. Code Ann., Crim. Proc. § 1-201(a). Violators "may be held in contempt of court." Id. § 1-201(c). The Broadcast Ban does not restrict the public access to court records provided in Rules 16-502, 16-503, and 16-504. Nor does it "prohibit any person from describing, transcribing, or reenacting any portion of a criminal trial." (Resp. in Opp. 3.)

II. NPR's Efforts to Broadcast the Trial of Jarrod Ramos

On June 28, 2018, Jarrod Ramos entered the Capital Gazette office in Annapolis and murdered 5 journalists in what the Pulitzer Prize Board has called "the largest killing of journalists in U.S. history." (Compl. ¶¶ 21–22.) The State charged Ramos with five counts of murder, one count of attempted murder, six counts of assault, and eleven counts of illegal use of a firearm. (Id. ¶ 23.) Ramos pleaded Guilty but Not Criminally Responsible to all twenty-three counts. (Id. ¶ 24.) His plea was rejected by a jury after a two-week trial in July 2021. (Id. ) He is scheduled to be sentenced on September 28, 2021. (Id. ¶ 25.)

NPR is "the leading provider of non-commercial news, information, and entertainment programming to the American public." (Id. ¶ 7.) The network describes its work as "fact-based, independent journalism" that "helps the public stay on top of breaking news, follow the most critical stories of the day, and track complex issues over the long term." (Id. ¶ 7.) NPR distributes its broadcasts through over 1,000 non-commercial radio stations and reaches a weekly audience of sixty million Americans through multimedia audio and video content. (Id. ) The NPR podcast Embedded , hosted by Kelly McEvers,² provides "deep-dive coverage" of ongoing news stories. (Id. ¶ 27.) An upcoming episode of Embedded , scheduled for release on or after September 30, 2021, will cover the Jarrod Ramos murders and his subsequent trial. (Id. ¶¶ 28–30.) As part of this episode and related radio broadcasts, NPR intends to publish excerpts of the audio from the trial court proceedings, lawfully obtained pursuant to Maryland Rule 16-504(h)(1). (Id. )

NPR is concerned that its upcoming coverage of the Ramos trial will subject it to criminal sanctions under the Broadcast Ban. Following the opinion of the United States Court of Appeals for the Fourth Circuit in Soderberg v. Carrion , 999 F.3d 962 (4th Cir. 2021),³ NPR sent a letter to the Office of the Attorney General on August 23, 2021, to "respectfully request that the State commit not to seek sanctions against NPR" under the Broadcast Ban for broadcasting official recordings of the Ramos trial. (Id. ¶ 34.) On August 31, the Office of the Attorney General responded by letter, declining "to commit in advance to take enforcement action for a hypothetical violation of the law that has not yet occurred." (Id. ¶ 35.) NPR filed its Complaint and Motion for Preliminary Injunction on September 1, 2021, seeking a declaration that the Broadcast Ban is unconstitutional as applied to NPR, and both preliminary and permanent injunctive relief against its enforcement. (Id. ¶ 6; see also Mot. for Preliminary Injunction, ECF No. 3.)

STANDARD OF REVIEW

"The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held." United States v. South Carolina , 720 F.3d 518, 524 (4th Cir. 2013) (quoting University of Texas v. Camenisch , 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) ). A preliminary injunction is an "extraordinary remed[y] involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances." MicroStrategy Inc. v. Motorola, Inc. , 245 F.3d 335, 339 (4th Cir. 2001). "[M]andatory preliminary injunctions—those that alter rather than preserve the status quo—are disfavored," and should only be granted where "the applicants' right to relief [is] indisputably clear." Mtn. Valley Pipeline, LLC v. 6.56 Acres of Land , 915 F.3d 197, 216 n.8 (4th Cir. 2019).

In determining whether to issue a preliminary injunction, the Court must follow the test set forth by the Supreme Court in Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), which requires a showing that: (1) the movant is likely to succeed on the merits; (2) the movant is likely to suffer irreparable harm absent preliminary relief; (3) the balance of equities favors the movant; and (4) an injunction is in the public interest. 555 U.S. at 20, 129 S.Ct. 365 ; accord Roe v. Dep't of Def. , 947 F.3d 207, 219 (4th Cir. 2020) ; League of Women Voters of N.C. v. N.C. , 769 F.3d 224, 236 (4th Cir. 2014).

The movant must show more than a "grave or serious question for litigation;" instead, it bears the "heavy burden" of making a "clear showing that [it] is likely to succeed at trial on the merits." Real Truth About Obama, Inc. v. Fed. Election Comm'n , 575 F.3d 342, 346 (4th Cir. 2009) ; see also Int'l Brotherhood of Teamsters v. Airgas, Inc. , 239 F. Supp. 3d 906, 912 (D. Md. 2017) ("Because a preliminary injunction is ‘an extraordinary remedy,’ it ‘may only be awarded upon a clear showing that the plaintiff is entitled to such relief.’ " (quoting Winter , 555 U.S. at 22, 129 S.Ct. 365 )). Still, an injunction "is not granted as a matter of course, and whether to grant the injunction still remains in the equitable discretion of the [district] court even when a plaintiff has made the requisite showing." Bethesda Softworks, L.L.C. v. Interplay Entm't Corp. , 452 F. App'x 351, 353 (4th Cir. 2011) (internal citations omitted).

ANALYSIS

In Soderberg v. Carrion , 999 F.3d 962 (4th Cir. 2021), the United States Court of Appeals for the Fourth Circuit held that the Maryland Broadcast Ban "is properly assessed as a penal sanction for publishing information released to the public in official court records," and is subject to strict scrutiny.⁴ 999 F.3d at 964. The parties center their arguments on the first prong of the Winter analysis, analyzing whether the challenged application of the Broadcast Ban can survive this demanding test. (Mem. in Supp., ECF No. 3-1 at 12–16; Resp. in Opp. 9–14.) On the facts of this case, the state's asserted interests in witness protection and trial fairness are too speculative—and its solution too loosely tailored—to justify prohibiting NPR's broadcast of the Ramos trial. Accordingly, Plaintiff's request for a preliminary injunction will be granted, and a permanent injunction hearing will be scheduled.

I. NPR has made a clear showing that it is likely to succeed on the merits.

To obtain a preliminary injunction, NPR must make "a clear showing" that it is likely to succeed on the merits of its constitutional challenge. Winter , 555 U.S. at 22, 129 S.Ct. 365. "As a general matter, ‘state action to punish the publication of truthful information seldom can satisfy constitutional standards.’ " Bartnicki v. Vopper , 532 U.S. 514, 527, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) (quotation omitted). The Supreme Court has repeatedly held that " ‘if a [news organization] lawfully obtains truthful information about a matter of public significance...