PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1094

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.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:19-cv-01559-RDB) Argued: January 28, 2021 Decided: June 15, 2021

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.

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.

2 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 (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,

(1975), and Smith v. Daily Mail Publishing Co.,

(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

3 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

(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.”

§ 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 (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)

4 (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

5 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

6 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

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’” (quoting Daily

Mail,

)); id. ¶ 39 (emphasizing that the “principle applies with special force

to information about public court proceedings” (citing Cox Broad.,

)). The

Complaint seeks declarations that the Ban is unconstitutional and that the plaintiffs may

not be held in contempt for disseminating lawfully obtained copies of the official court

recordings of state criminal proceedings.

C.

On July 18, 2019, the State filed a motion to dismiss the Complaint and argued, in

pertinent part, that the plaintiffs’ First Amendment claim should be dismissed under

1 The district court dismissed the other two defendants, Patricia Trikeriotis and Robin Watson, court reporters in Baltimore City and Prince George’s County also sued in their official capacities. Because the plaintiffs do not contest the dismissal of the defendant court reporters, they are not parties to this appeal.

7 Federal Rule of Civil Procedure 12(b)(6) on the theory that the Broadcast Ban need only

satisfy intermediate scrutiny because it is a content-neutral regulation of the time, place,

and manner of speech. As part of its theory, the State likens the Ban to Federal Rule of

Criminal Procedure 53, a prohibition on live broadcasts of criminal proceedings that has

been subjected to intermediate scrutiny by several of our sister courts of appeals and

determined to be constitutional. See Fed. R. Crim. P. 53 (“Except as otherwise provided

by statute or these rules, the court must not permit . . . the broadcasting of judicial

proceedings from the courtroom.”); see also, e.g., United States v. Kerley,

(7th Cir. 1985) (recognizing consensus that Rule 53 is constitutional and upholding

it as “reasonable and neutral” time, place, and manner restriction).

Under the State’s theory, the Broadcast Ban is not subject to the strict scrutiny

standard developed by the Supreme Court in Cox Broadcasting and Daily Mail because

that standard applies only to absolute prohibitions on the publication of information in any

form. The State underscores that, although the Ban proscribes the broadcasting of the

official court recordings of criminal proceedings, it does not limit other means of

disseminating the same information, such as publishing transcripts, reporting on what

occurred during the proceedings, and airing reenactments.

For reasons explained in its Opinion of January 14, 2020, the district court adopted

the State’s theory and dismissed the First Amendment claim on the premise that the

Broadcast Ban is akin to Federal Rule of Criminal Procedure 53. The Opinion faulted the

plaintiffs for “offer[ing] no basis for this Court to deviate from the well-established

precedent in its sister circuits that a prohibition on broadcasting criminal proceedings is a

8 valid time, place, and manner regulation.” See Opinion 29. Moreover, the Opinion

declared Cox Broadcasting and Daily Mail to be inapposite because “Maryland’s

Broadcast Ban is not a total prohibition on the publication of information that is conveyed

in criminal proceedings.” Id. at 24.

The plaintiffs have appealed from the district court’s judgment, specifically

contesting the dismissal of their First Amendment claim. 2 We possess jurisdiction pursuant

to

.

II.

Upon our de novo review, we conclude that the district court erred in dismissing the

plaintiffs’ First Amendment claim under Federal Rule of Civil Procedure 12(b)(6). See

Akers v. Md. State Educ. Ass’n,

(4th Cir. 2021) (“We review a Rule

12(b)(6) dismissal de novo.”). As we first explain, the Broadcast Ban is subject to strict

scrutiny under the Supreme Court’s decisions in Cox Broadcasting Corp. v. Cohn,

(1975), and Smith v. Daily Mail Publishing Co.,

(1979). Accordingly,

as we next explain, it was error for the district court to instead apply intermediate scrutiny

2 At the same time that it dismissed the plaintiffs’ First Amendment claim, the district court made several rulings that are not at issue in this appeal. Those include rulings: dismissing the defendant court reporters, see supra note 1; declining to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of standing; declining to dismiss the Complaint under Rule 12(b)(7) for failure to join indispensable parties; and dismissing the only other claim brought by the plaintiffs, a Fourteenth Amendment void- for-vagueness claim, under Rule 12(b)(6) for failure to state a claim on which relief can be granted.

9 in upholding the Ban. In these circumstances, we must reinstate the First Amendment

claim for the district court’s further consideration.

A.

The First Amendment provides, in pertinent part, that “Congress shall make no

law . . . abridging the freedom of speech, or of the press.” See U.S. Const. amend. I. In its

Cox Broadcasting decision in 1975, the Supreme Court ruled that the First Amendment

barred an invasion-of-privacy action against a television station for broadcasting a rape

victim’s name learned from publicly available court records. See

(explaining that lawsuit relied on Georgia law making it misdemeanor to publish or

broadcast name of rape victim). In so doing, the Court highlighted “[t]he special protected

nature of accurate reports of judicial proceedings.”

. The Court also emphasized

the public interest in such reports and their “critical importance to our type of government

in which the citizenry is the final judge of the proper conduct of public business.”

. As the Court saw it, by placing “information in the public domain on official court

records, the State must be presumed to have concluded that the public interest was thereby

being served.”

From there, the Cox Broadcasting Court reasoned that the First Amendment,

together with the Fourteenth, “command[s] nothing less than that the States may not

impose sanctions on the publication of truthful information contained in official court

records open to public inspection.” See

. The Court reiterated:

At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records. . . . Once true information is disclosed

10 in public court documents open to public inspection, the press cannot be sanctioned for publishing it.

. The Court also cautioned that to the extent “there are privacy interests to be

protected in judicial proceedings, the States must respond by means which avoid public

documentation or other exposure of private information.”

Nevertheless, the Court did

not go so far as to hold that the publication of truthful information contained in official

court records may never be punished.

In the wake of Cox Broadcasting, in its Daily Mail decision in 1979, the Supreme

Court ruled that a West Virginia statute contravened the First and Fourteenth Amendments

by making it a crime for a newspaper to publish, without the written approval of the

juvenile court, the name of any youth charged as a juvenile offender. There, two

newspapers had been indicted for printing the name of a minor accused of shooting and

killing a classmate at a local junior high school. The newspapers learned the alleged

assailant’s name by interviewing witnesses, police officers, and a prosecutor at the school,

and the name was also broadcast over several radio stations. See Daily Mail,

(describing events leading to indictment of newspapers and issuance of writ of

prohibition by Supreme Court of Appeals of West Virginia).

Viewing the West Virginia statute “as a penal sanction for publishing lawfully

obtained, truthful information,” the Daily Mail Court easily concluded that the statute was

unconstitutional. See

. Indeed, the Court observed that the Cox

Broadcasting decision and other recent precedent “demonstrate that state action to punish

11 the publication of truthful information seldom can satisfy constitutional standards.”

. 3

From Cox Broadcasting and the other precedent, the Daily Mail Court drew and

applied the following standard: “[I]f a newspaper 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.”

See

. The Court instructed that it “is not controlling” whether “the

government itself provided or made possible press access to the information” (as in Cox

Broadcasting), or whether the information was lawfully obtained in some other manner,

such as by way of “routine newspaper reporting techniques” (as in Daily Mail).

So

long as the information was lawfully obtained, “the state may not punish its publication

except when necessary to further [a sufficiently substantial] interest.”

.

Notably, although the Daily Mail Court did not refer to its standard as “strict

scrutiny,” that term has since been used to describe the standard. See, e.g., Bartnicki v.

The cited precedent included cases involving both penal sanctions, see, e.g., 3

Landmark Communications, Inc. v. Virginia,

(1978), and prior restraints, see, e.g., Oklahoma Publishing Co. v. District Court,

(1977). The Daily Mail Court explained that — although prior restraints had “been accorded the most exacting scrutiny in previous cases” — it was “not dispositive” whether the challenged West Virginia statute was “view[ed] as a prior restraint or as a penal sanction” because “even [a penal sanction] requires the highest form of state interest to sustain its validity.” See

. The Court invoked Landmark Communications for the principle that “when a state attempts to punish publication after the event it must . . . demonstrate that its punitive action was necessary to further the state interests asserted,” and Oklahoma Publishing for its holding that once “truthful information was ‘publicly revealed’ or ‘in the public domain’ the court could not constitutionally restrain its dissemination.”

at 102-03 (citing Landmark Commc’ns,

; Okla. Publ’g,

).

12 Vopper,

(2001) (Rehnquist, C.J., dissenting); Peavy v. WFAA-TV, Inc.,

(5th Cir. 2000). And of course, we employ the term “strict scrutiny”

herein. The Daily Mail standard has been explained and applied by both the Supreme Court

and our Court, in decisions including Florida Star v. B.J.F.,

(1989)

(concluding in an as-applied First Amendment challenge that the state statute at issue was

not “narrowly tailored to a state interest of the highest order”), and Ostergren v. Cuccinelli,

(4th Cir. 2010) (same).

Such strict scrutiny review of the Broadcast Ban is clearly required here. Simply

put, the plaintiffs’ copies of the official court recordings of state criminal proceedings

constitute “truthful information” that was “released to the public in official court records.”

See Cox Broad.,

. As such, the broadcasting of those lawfully obtained

recordings cannot constitutionally be punished “absent a need to further a state interest of

the highest order.” See Daily Mail,

.

B.

Instead of engaging in the strict scrutiny assessment required by Cox Broadcasting

and Daily Mail, the district court erroneously treated the Broadcast Ban as a content-neutral

time, place, and manner regulation and thus subjected it to intermediate scrutiny. The

court’s first mistake was analogizing the Ban, at the State’s urging, to Federal Rule of

Criminal Procedure 53. As heretofore explained, Rule 53 prohibits live broadcasts of

federal criminal proceedings. To be sure, section 1-201 of the Criminal Procedure Article

of the Maryland Code — which contains the Broadcast Ban — similarly bars live

broadcasts of state criminal proceedings. But section 1-201’s prohibition on live

13 broadcasts is not the subject of this civil action. Rather, the plaintiffs are challenging the

Broadcast Ban, i.e., section 1-201’s distinct prohibition on the broadcasting of the official

court recordings of state criminal proceedings. Consequently, the district court’s

comparison of the Ban to Rule 53 was inapt and the court erred in relying on persuasive

authority upholding Rule 53 as a valid time, place, and manner regulation.

The district court further erred in refusing to apply strict scrutiny on the premise,

advanced by the State, that Cox Broadcasting and Daily Mail demand such scrutiny only

where there is an absolute prohibition on the publication of information in any form. That

proposition is belied by Daily Mail itself, which involved a partial ban on the publication

of information. As the Daily Mail Court explained, the challenged West Virginia statute

did “not restrict the electronic media or any form of publication, except ‘newspapers,’ from

printing the names of youths charged in a juvenile proceeding.” See

.

Rather than treating the limited nature of the ban as a reason to subject it to intermediate

scrutiny as a time, place and manner regulation, the Court considered it to be significant to

the applicable strict scrutiny analysis and fatal to the constitutionality of the statute.

Specifically, in light of the statute’s narrowness, the Court concluded that “even assuming

the statute served a state interest of the highest order, it does not accomplish its stated

purpose.”

.

14 At bottom, the district court was wrong to apply intermediate scrutiny, rather than

strict scrutiny, to the Broadcast Ban. The court therefore must reevaluate the Ban, in

accordance with the principles of Cox Broadcasting, Daily Mail, and their progeny. 4

III.

Pursuant to the foregoing, we vacate the district court’s dismissal of the plaintiffs’

First Amendment claim. We remand for such other and further proceedings as may be

appropriate.

VACATED AND REMANDED

4 Because the district court incorrectly characterized the Broadcast Ban as a content- neutral time, place, and manner regulation, it never addressed whether the State can show that the Ban is “narrowly tailored to a state interest of the highest order,” as required under the proper strict scrutiny standard. See Fla. Star,

. Consistent with “the principle that the district court should have the first opportunity to perform the applicable analysis,” see Fusaro v. Cogan,

(4th Cir. 2019), we remand so that the district court may decide in the first instance whether the Broadcast Ban can survive that rigorous review. We also do not unnecessarily reach and resolve other arguments raised by the plaintiffs, including that the Ban cannot withstand even intermediate scrutiny.

15