Soderberg v. Carrión

645 F.Supp.3d 460

Brandon SODERBERG, et al., Plaintiffs, v. Hon. Audrey J. S. CARRIÓN, et al., Defendants.

Civil No. RDB-19-1559

United States District Court, D. Maryland

Signed December 9, 2022

Adam G. Holofcener, Maryland Volunteer Lawyers for the Arts, Baltimore, MD, Seth Daniel Tychsen Wayne, Pro Hac Vice, Shelby Bradford Calambokidis, Pro Hac Vice, Institute for Constitutional Advocacy and Protection, Washington, DC, for Plaintiffs Brandon Soderberg, Baynard Woods.

Seth Daniel Tychsen Wayne, Pro Hac Vice, Shelby Bradford Calambokidis, Pro Hac Vice, Institute for Constitutional Advocacy and Protection, Washington, DC, for Plaintiffs Open Justice Baltimore, Baltimore Action Legal Team, Qiana Johnson, Life After Release.

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

MEMORANDUM OPINION

Richard D. Bennett, United States Senior District Judge

Section 1-201 of the Criminal Procedure Article of the Maryland Code prohibits the use of "television, radio, and photographic or recording equipment" to "record or broadcast any criminal matter ... that is held in trial court or before a grand jury." Md. Code Ann., Crim. Proc. § 1-201. The State of Maryland interprets this statute to prohibit members of the public from broadcasting official recordings of criminal proceedings that are made available to the public under the Maryland Rules. See Md. Rules 16-502, 16-503, 16-504. The sole issue in this case is whether this prohibition, known as the "Broadcast Ban," is consistent with the First Amendment. After careful analysis, this Court concludes that the challenged component of the Broadcast Ban "burdens too much and furthers too little" to survive strict scrutiny. Washington Post v. McManus, 944 F.3d 506, 523 (4th Cir. 2019). The State of Maryland remains free to prohibit live broadcasting from the courtroom, and to regulate the release of shielded records and video recordings under the Maryland Rules. However, the State may not sanction the press for broadcasting "lawfully obtained, truthful information" that the State itself has disclosed to the public. Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 101, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979).

Plaintiffs, a collection of lawyers, activists, and civil rights organizations, filed suit in May 2019, seeking a declaration that the Broadcast Ban is facially unconstitutional to the extent that it prohibits them from publishing "lawfully obtained audio or video recordings of criminal proceedings" that the State itself has made available under the Maryland Rules. (Compl. 22-23, ECF No. 1.)¹ In January 2020, this Court dismissed this case, characterizing the Broadcast Ban as a content-neutral regulation of the time, place, and manner of speech that survives intermediate scrutiny. See Soderberg v. Pierson, No. RDB-19-1559, 2020 WL 206619, at *13 (D. Md. Jan. 14, 2020). In June 2021, the United States Court of Appeals for the Fourth Circuit vacated and remanded, holding that "the Ban is properly assessed as a penal sanction for publishing information released to the public in official court records" and accordingly "is subject to strict scrutiny." Soderberg v. Carrion, 999 F.3d 962, 964, 970 (4th Cir. 2021). This demanding standard places the burden on the State to prove that the Broadcast Ban is "narrowly tailored to a state interest of the highest order" to survive constitutional muster. Florida Star v. B.J.F., 491 U.S. 524, 541, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989); Daily Mail, 443 U.S. at 103, 99 S.Ct. 2667; Cox Broad. Corp. v. Cohn, 420 U.S. 469, 495, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975).

The State of Maryland contends that the Broadcast Ban is necessary to preserve two compelling state interests: the protection of witnesses and the integrity of criminal trials. However, "when [laws] affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive." Brown v. Ent. Merchants Ass'n, 564 U.S. 786, 805, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011). Although the State's interests are compelling, the Broadcast Ban is not narrowly tailored to achieve them. It does precious little to protect witnesses against intimidation, harassment, and violence, as it does not prevent the widespread publication of their names, their images, and the verbatim content of their testimony. It is far more expansive than necessary to achieve its desired ends, as it restricts the publication of official recordings in all criminal proceedings held in trial court—even where there are no manifest concerns that a subsequent broadcast might undermine the fairness of the trial or endanger its witnesses. And there are already less restrictive means available to the State to pursue these objectives, as the Maryland Rules authorize judges to shield sensitive material from trial transcripts and official recordings on a case-by-case basis.

Ultimately, the State seeks to forestall the harm that may result from the publication of sensitive information that the State itself has disclosed. However, once the State has released information to the public, the First Amendment protects the right of the press to publish it. While this case does not address the component of § 1-201 that prohibits live broadcasting, or the independent restrictions on shielded records and video recordings that exist under the Maryland Rules, the Broadcast Ban's limited protections and expansive scope make it a poor fit for the interests the State asserts. Although the integrity of the judicial process and the safety of witnesses are interests of the highest order, the State of Maryland must pursue these ends through less restrictive means than by sanctioning the press and the public for publishing "lawfully obtained, truthful information" that the State has released in official court records. Daily Mail, 443 U.S. at 101, 99 S.Ct. 2667. Accordingly, Plaintiffs' Motion for Summary Judgment (ECF No. 71) is hereby GRANTED, and Defendants' Motion for Summary Judgment (ECF No. 72) is concurrently DENIED.

BACKGROUND

This case features a facial First Amendment challenge to a portion of Section 1-201 of the Criminal Procedure Article of the Maryland Code (the "Broadcast Ban"). "Plaintiffs are journalists, lawyers, and community organizations who seek to publish and disseminate recordings of Maryland criminal proceedings as part of their reporting, advocacy, and community-education efforts." (Pls.' Mem. Supp. Summ. J. 5, ECF No. 71-1.) Each Plaintiff has lawfully obtained recordings of Maryland court proceedings that were released under the Maryland Rules. (Id. at 5-7.) Collectively, they claim that the Broadcast Ban has deterred them from broadcasting these recordings, chilling their journalistic and educational endeavors. (Id. at 8.) They seek a declaration that the Broadcast Ban violates the First Amendment to the extent that it prohibits the press and the public from broadcasting "lawfully obtained audio or video recordings of criminal proceedings that occurred in open court," and that they may not be held in contempt for publishing these recordings. (Id. at 9; see Compl. 22-23.)

I. Maryland Rules Governing Broadcasts of Criminal Trials

The Maryland Code prohibits the public from recording or broadcasting criminal trials. In 1980, the Court of Appeals of Maryland implemented an eighteen-month pilot program authorizing judges to "experiment" with "extended media coverage of court proceedings." See 7 Md. Reg. 2252-55 (Nov. 28, 1980) (ECF No. 72-3); see also Md. Rule 1209 (1983 Supp.) (ECF No. 72-4) (mandating that extended coverage "be conducted so as to not interfere with the right of any person to a fair and impartial trial[] and ... the dignity and decorum which must attend the proceedings"). This program was short-lived. In 1981, the Maryland General Assembly enacted the Broadcast Ban, which prohibits the use of any "television, radio, and photographic or recording equipment" to broadcast "any criminal matter, including a trial, hearing, motion, or argument, that is held in trial court or before a grand jury," subject to criminal sanctions for contempt of court. Md. Code Ann., Crim. Proc. § 1-201.² Although bills have been proposed to amend this prohibition and allow recording or broadcasting in limited circumstances, none have passed through the General Assembly. See, e.g., Md. Fisc. Note, 2020 Sess. H.B. 1376 (recounting that similar bills were introduced in the 2007, 2008, 2009, 2016, 2017, and 2019 legislative sessions).

Concurrently, the Maryland Rules require the recording of all proceedings that are held in state trial courts. Under the Maryland Rules, "[a]ll trials, hearings, testimony, and other judicial proceedings ... shall be recorded verbatim in their entirety." Md. Rule 16-502(a) (District Court); Md. Rule 16-503(a)(1) (Circuit Court). This recording system was originally implemented in the 1990s as an alternative to the traditional court reporter system and has expanded in recent decades. (Defs.' Mem. Supp. 8, ECF No. 72-1.) Most Maryland trial courts maintain audio recordings; according to the State, only the Baltimore City and Cecil County circuit courts produce video recordings. (Pls.' Mem. Supp. 2; Supplement, ECF No. 78.)

The Maryland Rules regulate access to these recordings, and grant members of the public a qualified right to view them or to obtain copies upon written request to the court. Recordings produced pursuant to the Maryland Rules remain "under the control of the court," and are held in the custody of court employees. Md. Rule 16-504(a). However, "any person" may listen to audio-video recordings at the courthouse. See Md. Rule 16-504(i). Additionally, "any person" may obtain copies of audio recordings upon written request. Md. Rule 16-504(h). Although audio-video recordings are only available as a matter of right to the parties to a case, their attorneys, bar counsel, and select judicial...