Soderberg v. Carrion

• Decision Date: 15 June 2021
• Docket Number: No. 20-1094,20-1094
• Citation: 999 F.3d 962
• Parties: Brandon SODERBERG; Baynard Woods; Open Justice Baltimore; Baltimore Action Legal Team; Qiana Johnson; Life After Release, Plaintiffs - Appellants, v. Hon. Audrey J. S. CARRION, Administrative Judge for Maryland's Eighth Judicial Circuit; Hon. Sheila R. Tillerson Adams, as Administrative Judge for Maryland's Seventh Judicial Circuit, Defendants - Appellees, and Patricia Trikeriotis, as Court Reporter for Baltimore City; Robin Watson, as Court Reporter for Prince George's County, Defendants. Cato Institute; Floyd Abrams Institute for Freedom of Expression; The Reporters Committee for Freedom of the Press and 23 Media Organizations, Amici Supporting Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

999 F.3d 962

Brandon SODERBERG; Baynard Woods; Open Justice Baltimore; Baltimore Action Legal Team; Qiana Johnson; Life After Release, Plaintiffs - Appellants,

v. Hon. Audrey J. S. CARRION, Administrative Judge for Maryland's Eighth Judicial Circuit; Hon. Sheila R. Tillerson Adams, as Administrative Judge for Maryland's Seventh Judicial Circuit, Defendants - Appellees,andPatricia Trikeriotis, as Court Reporter for Baltimore City; Robin Watson, as Court Reporter for Prince George's County, Defendants.Cato Institute; Floyd Abrams Institute for Freedom of Expression; The Reporters Committee for Freedom of the Press and 23 Media Organizations, Amici Supporting Appellants.

No. 20-1094

United States Court of Appeals, Fourth Circuit.

Argued: January 28, 2021

Decided: June 15, 2021

ARGUED: Nicolas Y. Riley, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellants. Steven Marshall Sullivan, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. Eugene Volokh, UCLA SCHOOL OF LAW, Los Angeles, California, for Amicus Cato Institute. ON BRIEF: Adam Holofcener, MARYLAND VOLUNTEER LAWYERS FOR THE ARTS, Baltimore, Maryland; Daniel B. Rice, Institute for Constitutional Advocacy & Protection, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellants. Brian E. Frosh, Attorney General, Michele J. McDonald, Assistant Attorney General, Joseph Dudek, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. Clark Neily, CATO INSTITUTE, Washington, D.C.; Robert Bowen, Megan McDowell, Emily Rehm, UCLA SCHOOL OF LAW, Los Angeles, California, for Amicus Cato Institute. David A. Schulz, Alexandra Dudding, Julu Katticaran, Zoe Rubin, Media Freedom and Information Access Clinic, YALE LAW SCHOOL, New Haven, Connecticut, for Amicus Floyd Abrams Institute for Freedom of Expression. Jennifer A. Nelson, Gabriel Rottman, First Amendment Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Amici The Reporters Committee for Freedom of the Press and 23 Media Organizations.

Before KING, HARRIS, and RUSHING, Circuit Judges.

Vacated and remanded by published opinion. Judge King wrote the opinion, in which Judge Harris and Judge Rushing joined.

KING, Circuit Judge:

Relevant to their appeal, the plaintiffs in this District of Maryland civil action have lodged a First Amendment challenge to section 1-201 of the Criminal Procedure Article of the Maryland Code, insofar as that statute prohibits and punishes the broadcasting of the official court recordings of state criminal proceedings (the "Broadcast Ban," or simply the "Ban"). In January 2020, the district court dismissed the entire action pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. See Soderberg v. Pierson , No. 1:19-cv-01559, 2020 WL 206619 (D. Md. Jan. 14, 2020), ECF No. 30 (the " Opinion"). The court deemed the plaintiffs’ First Amendment claim to be deficient on the premise that the Broadcast Ban constitutes a content-neutral regulation of the time, place, and manner of speech that survives intermediate scrutiny. As explained herein, we conclude that — because the Ban is properly assessed as a penal sanction for publishing information released to the public in official court records — it is subject to strict scrutiny under the Supreme Court's decisions in Cox Broadcasting Corp. v. Cohn , 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), and Smith v. Daily Mail Publishing Co. , 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979). Accordingly, we vacate the dismissal of the First Amendment claim and remand.

I.

A.

In 1981, the Maryland General Assembly enacted the Broadcast Ban, which was originally codified in article 27, section 467B of the Maryland Code. The Ban was recodified in 2001, without substantive change, in section 1-201 of the Criminal Procedure Article. In delineating the Ban, section 1-201 provides that "a person may not ... broadcast any criminal matter, including a trial, hearing, motion, or argument, that is held in trial court or before a grand jury." See Md. Code Ann., Crim. Proc. § 1-201(a)(1). The statute further provides that a person who violates the Ban — one who broadcasts the official court recordings of state criminal proceedings — "may be held in contempt of court." Id. § 1-201(c). The same language of section 1-201(a)(1) and (c) prohibits and punishes live broadcasts of criminal proceedings. Section 1-201 also bars and penalizes the recording of such proceedings, though the statute includes an exception for court-approved recordings made "to perpetuate a court record." Id. § 1-201(a)(1), (b)(2), (c).

Meanwhile, the Maryland Rules broadly require the electronic recording of proceedings, including criminal proceedings, in the state trial courts. See Md. R. 16-503 (rule for circuit courts); id. 16-502 (rule for district courts). The recording requirement applies to trials, hearings, the taking of testimony, and other proceedings conducted before a judge in a courtroom or by remote electronic means. According to the Complaint in this civil action, see Soderberg v. Pierson , No. 1:19-cv-01559, 2019 WL 2268956 (D. Md. May 28, 2019), ECF No. 1, most state trial courts create audio recordings and some create video recordings of their proceedings.

The public generally has a right to obtain copies of official court recordings under the Maryland Rules, which provide that the circuit courts "shall make a copy of the audio recording or, if practicable, the audio portion of an audio-video recording, available to any person upon written request and, unless waived by the court, upon payment of the reasonable costs of making the copy." See Md. R. 16-504(h)(1); see also id. 16-502(g)(1) (similar rule for district courts). The Complaint reflects that courts also have "occasionally provided copies of video recordings to members of the public upon written request." See Complaint ¶ 11 (explaining that the Maryland Rules neither require nor preclude courts from providing copies of video recordings). The Maryland Rules exclude from public disclosure the recordings of just a few types of proceedings, such as "proceedings closed pursuant to law" and those involving matters that "the court finds should and lawfully may be shielded from public access and inspection." See Md. R. 16-504(g), (h)(1) (exclusions for circuit court proceedings); see also id. 16-502(f), (g)(1) (same exclusions for district court proceedings).

The Complaint alleges that, although members of the public may legally obtain copies of the official court recordings of criminal proceedings, they are barred by the Broadcast Ban from then broadcasting those recordings. As the Complaint explains, the Ban "prohibits people from disseminating digital recordings of criminal court proceedings — even though the State itself makes copies of those recordings publicly available." See Complaint ¶ 4. That is because section 1-201 "prohibits the broadcast not only of live court proceedings but also of previously recorded proceedings, including recordings from cases that have long since ended." Id. ¶ 15. People are free, however, to broadcast official court recordings of state civil proceedings, as well as recordings of state appellate proceedings in both civil and criminal cases.

B.

The six plaintiffs in this federal civil action assert that the Broadcast Ban unconstitutionally stands in their way of disseminating lawfully obtained copies of the official court recordings of state criminal proceedings. Plaintiffs Brandon Soderberg and Baynard Woods are Baltimore-based journalists who are writing a book and working on a documentary film about the Baltimore Police Department's Gun Trace Task Force. In their film and other reporting projects, Soderberg and Woods intend to use audio recordings and a video recording of criminal proceedings conducted in the Circuit Court of Baltimore City. Plaintiffs Open Justice Baltimore and Baltimore Action Legal Team are organizations that provide support for community-centered efforts to improve the criminal justice system. They intend to play audio recordings of Baltimore City criminal proceedings at community events, post the recordings online, share them on social media, and potentially include them on podcasts. Plaintiff Qiana Johnson is a community organizer in Prince George's County and the founder of plaintiff Life After Release, a community-based organization that seeks to empower individuals, families, and communities that are impacted by the criminal justice system. Johnson and Life After Release intend to use audio recordings of criminal proceedings in the Circuit Court of Prince George's County by posting them on websites and playing them at meetings.

The plaintiffs filed their Complaint on May 28, 2019, against four defendants, including Judge W. Michael Pierson and Judge Sheila R. Tillerson Adams, state court judges in Baltimore City and Prince George's County sued in their official capacities. Judge Pierson has since been replaced as a defendant by his successor on the state court bench, Judge Audrey J. S. Carrion. We refer herein to the defendant judges, who are represented by the Attorney General of Maryland, as the "State."¹

The Complaint alleges the plaintiffs’ First Amendment claim pursuant to 28 U.S.C. § 1983 as a facial, pre-enforcement challenge to the Broadcast Ban. In support thereof, the Complaint asserts that the Ban is subject to — and cannot withstand — the strict scrutiny review required by the Supreme Court's Cox Broadcasting and Daily Mail decisions. See, e.g. , Complaint ¶ 5 (alleging that the Ban contravenes the First Amendment principle that "when the press or the public ‘lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order’ " (quo...