United States District Court, D. Maryland
Richard D. Bennett United States District Judge
Brandon Soderberg (“Mr. Soderberg”), Baynard
Woods (“Mr. Woods”), Qiana Johnson (“Ms.
Johnson”), Open Justice Baltimore (“OJB”),
Baltimore Action Legal Team (“BALT”), and Life
After Release (“LAR”) (collectively,
“Plaintiffs”), bring this lawsuit against
Defendants the Honorable W. Michel Pierson (“Judge
Pierson”), the Honorable Sheila R. Tillerson Adams
(“Judge Adams”), Patricia Trikeriotis (“Ms.
Trikeriotis”), and Robin Watson (“Ms.
Watson”) (collectively, “Defendants”),
alleging that Maryland's “Broadcast Ban, ”
prohibiting the recording or broadcasting of criminal
proceedings and codified at Maryland Code § 1-201 of the
Criminal Procedure Article, violates the Free Speech Clause
of the First Amendment and is unconstitutionally vague under
the Due Process Clause of the Fourteenth Amendment. Currently
pending before this Court is Defendants' Motion to
Dismiss. (ECF No. 23). The parties' submissions have been
reviewed, and no hearing is necessary. See Local
Rule 105.6 (D. Md. 2018). This Broadcast Ban closely follows
Rule 53 of the Federal Rules of Criminal Procedure applied by
this Court, which is guided by overwhelming federal case
authority upholding the constitutionality of such a
restriction. Accordingly, for the reasons that follow,
Defendants' Motion shall be GRANTED, and Plaintiffs'
Complaint (ECF No. 1) shall be DISMISSED WITH PREJUDICE.
ruling on a motion to dismiss, this Court “accept[s] as
true all well-pleaded facts in a complaint and construe[s]
them in the light most favorable to the plaintiff.”
Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d
193, 208 (4th Cir. 2017) (citing SD3, LLC v. Black &
Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015)).
The Court may consider only such sources outside the
complaint that are, in effect, deemed to be part of the
complaint, for example, documents incorporated into the
complaint by reference and matters of which a court may take
judicial notice. Sec'y of State for Defence v.
Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir.
1981, Maryland's General Assembly passed into law what is
now known as the Broadcast Ban, a statute prohibiting the
recording or broadcasting of criminal proceedings. Md. Code
Ann., Crim. Proc. § 1-201 (West 2019). Specifically, the
statute provides that “a person may not record or
broadcast any criminal matter, including a trial, hearing,
motion, or argument, that is held in trial court or before a
grand jury.” Id. Further, “[t]his
prohibition applies to the use of television, radio, and
photographic or recording equipment.” Id. A
person who violates this statute “may be held in
contempt of court.” Id. This Maryland statute
is consistent with Rule 53 of the Federal Rules of Criminal
Procedure, adopted in 1946, which similarly bans the
broadcasting of criminal proceedings in federal courts.
Plaintiffs in this case are three individuals and three
community organizations. (Compl. ¶¶ 20-23, ECF No.
1.) Plaintiffs Mr. Soderberg and Mr. Woods are
Baltimore-based journalists who are working on a book and
documentary film about the Baltimore Police Department's
Gun Trace Task Force. (Id. ¶ 21.) In their
documentary film and other reporting projects, Mr. Soderberg
and Mr. Woods intend to use audio recordings and one video
recording from proceedings in Baltimore City Circuit Court.
(Id.) Plaintiffs Open Justice Baltimore
(“OJB”) and Baltimore Action Legal Team
(“BALT”) are “organizations that support
community-centered efforts to improve the criminal-justice
system.” (Id. ¶ 22.) OJB and BALT intend
to use audio recordings of Baltimore City Circuit Court
proceedings by playing the recordings at community events,
posting the recordings online, sharing them on social media,
and potentially including them on podcasts. (Id.)
Plaintiff Ms. Johnson is a community organizer in Prince
George's County, Maryland and the founder of Plaintiff
Life After Release (“LAR”), a community-based
organization seeking to empower individuals, families, and
communities affected by the criminal justice system.
(Id. ¶ 23.) Ms. Johnson and LAR intend to use
audio recordings of Prince George's County Circuit Court
proceedings by posting the recordings on their websites and
playing them at meetings. (Id.)
2, 2019, Mr. Soderberg, Mr. Woods, OJB, and BALT sought
clarity from Judge W. Michel Pierson of the Circuit Court of
Maryland for Baltimore City about the ramifications of the
intended uses of their recordings under Section 1-201 of
Maryland's Criminal Procedure Article. (Id.
¶ 28; Compl. Exhibits A-B, ECF Nos. 1-1, 1-2.) They did
not receive a response. (Id.) On May 20, 2019, they
sent a follow-up inquiry, which also did not garner a
response from Judge Pierson. (Compl. ¶ 28, ECF No. 1.)
On May 14, 2019, Ms. Johnson and LAR sent a similar letter
seeking clarification from Judge Sheila R. Tillerson Adams of
the Circuit Court of Maryland for Prince George's County.
(Id. ¶ 30-31; Compl. Exhibit C, ECF No. 1-3.)
Judge Adams did not respond to that letter nor did she
respond to a follow-up email requesting a response.
28, 2019, Plaintiffs filed the instant suit in this Court
against Judge Pierson, Judge Adams, and two court reporters,
Ms. Trikeriotis and Ms. Watson, mounting a facial,
pre-enforcement challenge to Maryland's Broadcast Ban,
and contending that the prohibition on broadcasting violates
the First Amendment and that the statute is void for
vagueness. (Compl., ECF No. 1.) They allege that the
Broadcast Ban has had a “severe chilling effect”
on their speech and reporting activities. (Id.
¶ 24.) They also allege that they have not published or
shared the various court recordings in their possession out
of fear of being held in contempt under Section 1-201.
Motion to Dismiss under Rule 12(b)(1).
motion to dismiss under Rule 12(b)(1) of the Federal Rules of
Civil Procedure for lack of subject-matter jurisdiction
challenges a court's authority to hear the matter brought
by a complaint. See Davis v. Thompson, 367 F.Supp.2d
792, 799 (D. Md. 2005). This jurisdictional attack may
proceed either as a facial challenge, asserting that the
allegations in the complaint are insufficient to establish
subject-matter jurisdiction, or a factual challenge,
asserting “that the jurisdictional allegations of the
complaint [are] not true.” Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009) (citation
omitted). In a facial challenge, as asserted in this case, a
court will grant a motion to dismiss for lack of
subject-matter jurisdiction “where a claim fails to
allege facts upon which the court may base
jurisdiction.” Davis, 367 F.Supp.2d at 799. In
making this determination, “all the facts alleged in
the complaint are assumed to be true and the plaintiff, in
effect, is afforded the same procedural protection as he
would receive under a 12(b)(6) consideration.”
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
Motion to Dismiss under Rule 12(b)(6).
8(a)(2) of the Federal Rules of Civil Procedure provides that
a complaint must contain a “short and plain statement
of the claim showing that the pleader is entitled to
relief.” Rule 12(b)(6) of the Federal Rules of Civil
Procedure authorizes the dismissal of a complaint if it fails
to state a claim upon which relief can be granted. The
purpose of Rule 12(b)(6) is “to test the sufficiency of
a complaint and not to resolve contests surrounding the
facts, the merits of a claim, or the applicability of
defenses.” Presley v. City of Charlottesville,
464 F.3d 480, 483 (4th Cir. 2006). The United States Supreme
Court's opinions in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), “require that
complaints in civil actions be alleged with greater
specificity than previously was required.” Walters
v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation
omitted). In Twombly, the Supreme Court articulated
“[t]wo working principles” that courts must
employ when ruling on Rule 12(b)(6) motions to dismiss.
Iqbal, 556 U.S. at 678. First, while a court must
accept as true all factual allegations contained in the
complaint, legal conclusions drawn from those facts are not
afforded such deference. Id. (stating that
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.”); see also Wag More Dogs, LLC v.
Cozart, 680 F.3d 359, 365 (4th Cir. 2012)
(“Although we are constrained to take the facts in the
light most favorable to the plaintiff, we need not accept
legal conclusions couched as facts or unwarranted inferences,
unreasonable conclusions, or arguments.” (internal
quotation marks omitted)). Second, a complaint must be
dismissed if it does not allege “a plausible claim for
relief.” Iqbal, 556 U.S. at 679.
Defendants advance numerous grounds for dismissal. First,
they argue that Plaintiffs lack standing under the Broadcast
Ban, as codified in Section 1-201. Second, they argue that
Plaintiffs have not stated a claim against Ms. Trikeriotis
and Ms. Watson (“court reporter Defendants”).
Third, they argue that Plaintiffs have failed to join
indispensable defendants. Fourth, they argue that
Plaintiffs' First Amendment right to attend, review, and
report on court proceedings does not extend to broadcasting
court recordings. Fifth and finally, they argue that
Plaintiffs have not stated a void-for-vagueness claim upon
which relief may be granted.
argue that Plaintiffs lack constitutional standing because
they cannot show a credible threat of prosecution under
Section 1-201 and because Section 1-201 is a moribund
statute. (Defs.' Mot. at 8-11, ECF No. 23-1.) In
addition, Defendants assert that, even if Plaintiffs
establish constitutional standing, the Court should decline
to exercise federal jurisdiction under the prudential
standing doctrine. (Id. at 12-14.)
establish Article III standing, a plaintiff must (1) show an
injury in fact, (2) demonstrate a causal connection between
the defendants' actions and the alleged injury, and (3)
show that the injury will likely be redressed by a favorable
outcome. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1995).
A plaintiff mounting a pre-enforcement facial challenge to a
penal law can establish constitutional standing by
demonstrating (1) “an intention to engage in a course
of conduct arguably affected with a constitutional interest,
” and (2) “a ‘credible threat of
prosecution' under the challenged law.”
Hamilton v. Pallozzi, 165 F.Supp.3d 315, 320 (D. Md.
2016) (quoting W.Va. Citizens Def. League, Inc. v. City
of Martinsburg, 483 Fed.Appx. 838, 839 (4th Cir. 2012)
First Amendment context, “the assertion of a facial
challenge to an ordinance…may warrant some relaxation
of the prudential rule that a claimant may assert her own
rights only.” Benham v. City of Charlotte,
N.C. , 635 F.3d 129, 135 (4th Cir. 2011) (citing
Virginia v. Am. Booksellers Ass'n, 484 U.S. 383,
392-93, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988)). Nevertheless,
a plaintiff must still satisfy the injury-in-fact
Fourth Circuit recognizes “self-censorship” as a
cognizable injury under the First Amendment, which occurs
“when a claimant is ‘chilled from exercising her
right to free expression.'” Id. (quoting
Harrell v. Fla. Bar, 608 F.3d 1241, 1254 (11th Cir.
2010)). Accordingly, “to demonstrate injury in fact, it
[is] sufficient … to show that [one's] First
Amendment activities ha[ve] been chilled.” Id.
(quoting Smith v. Frye, 488 F.3d 263, 272 (4th Cir.
2007)) (alterations in original).
“‘Subjective' or speculative accounts of such
a chilling effect, however, are not sufficient, ” and
the chilling effect “must be objectively
reasonable.” Id. (first quoting Laird v.
Tatum, 508 U.S. 1, 13-14 92 S.Ct. 2318, 33 L.Ed.2d 154
(1972), and then quoting Zanders v. Swanson, 573
F.3d 591, 593-94 (8th Cir. 2009)). Government action is
“sufficiently chilling when it is ‘likely [to]
deter a person of ordinary firmness from the exercise of
First Amendment rights.'” Id. (quoting
Constantine v. Rectors & Visitors of George Mason
Univ., 411 F.3d 474, 500 (4th Cir. 2005)) (alterations
have sufficiently alleged the chilling effect of Section
1-201 on their speech to warrant Article III standing.
Specifically, Plaintiffs allege that they all seek to publish
and share copies of Maryland criminal proceedings in their
reporting and documentary projects “to enhance the
public's understanding of the criminal-justice
system.” (Compl. ¶¶ 20-24, ECF No. 1.) They
assert that they “have refrained from disseminating
these recordings, however, out of fear that they might be
held in contempt for doing so under § 1-201.”
(Id. ¶ 20.) To support their fear of
prosecution, Plaintiffs reference a December 21, 2016
Baltimore Sun article titled “Court Officials
Considered Contempt for ‘Serial' Producers for
Airing Courtroom Audio, ” which detailed how court
officials publicly warned the producers of the podcast
“Serial” that they may be held in contempt under
Section 1-201 for playing excerpts of criminal trial
proceedings on their podcast. (Id. ¶ 26 n. 6.)
addition, Plaintiffs allege that Judge Pierson sent two
letters in 2018 to a cable television network and a
journalist, respectively, warning them about their use of
video and audio recordings from Maryland court proceedings.
(Compl. ¶ 26.) Defendants attached these two letters to
their Motion to Dismiss, which the Court will consider as
part of the Complaint. See Tucker v. Specialized Loan
Servicing, LLC, 83 F.Supp.3d 635, 648 (D. Md. 2015)
(quoting CACI Int'l v. St. Paul Fire & Marine
Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009) (the Court
may consider “any document that the defendant attaches
to its motion to dismiss if the document was integral to and
explicitly relied on in the complaint and if the plaintiffs
do not challenge its authenticity”). In his March 20,
2019 letter to counsel for Home Box Office, Inc.
(“HBO”), Judge Pierson quoted Section 1-201 and
stated, “[i]n compliance with this prohibition, HBO
should immediately cease any broadcasting of Maryland
criminal trials.” (Defs.' Exhibit 3, ECF No. 23-4.)
In his April 21, 2019 letter to counsel for a journalist who
intended to use recordings of Maryland criminal proceedings
in an upcoming podcast, Judge Pierson referenced Section
1-201's prohibition on broadcasting and noted the