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Soderberg v. Pierson

United States District Court, D. Maryland

January 14, 2020

BRANDON SODERBERG, et al., Plaintiffs,
HON. W. MICHEL PIERSON, et al., Defendants.


          Richard D. Bennett United States District Judge

         Plaintiffs 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.


         In 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. 2007).

         In 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).[1] 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.

         The six 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.)

         On May 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. (Id.)

         On May 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. (Id.)


         I. Motion to Dismiss under Rule 12(b)(1).

         A 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).

         II. Motion to Dismiss under Rule 12(b)(6).

         Rule 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.


         The 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.

         I. Standing.

         Defendants 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.)

         A. Constitutional Standing.

         To 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) (per curiam)).

         In the 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 requirement. Id.

         The 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 in original).

         Plaintiffs 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.)

         In 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 ...

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