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NOTICE OF PROPOSED RULES CHANGES

The Rules Committee has submitted its Two Hundred and

Thirteenth Report to the Supreme Court, recommending, on an

interim and emergency basis, adoption of proposed new Rule 16504.1 and amendments to current Rules 2-804, 16-502, 16-503, 16504, 16-901, and 16-914.

The Committee’s Two Hundred and Thirteenth Report and the

proposed Rules changes are set forth below.

Interested persons are asked to consider the Committee’s

Report and proposed Rules changes and to forward on or before

January 4, 2023 any written comments they may wish to make to

rules@mdcourts.gov or:

Sandra F. Haines, Esquire

Reporter, Rules Committee

Judiciary A-POD

580 Taylor Avenue

Annapolis, Maryland

21401

Gregory Hilton

Clerk

Supreme Court of Maryland

THE SUPREME COURT OF MARYLAND

STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

Hon. ALAN M. WILNER, Chair

Hon. DOUGLAS R.M. NAZARIAN, Vice Chair

SANDRA F. HAINES, Reporter

COLBY L. SCHMIDT, Deputy Reporter

HEATHER COBUN, Assistant Reporter

MEREDITH A. DRUMMOND, Assistant Reporter

Judiciary A-POD

580 Taylor Avenue

Annapolis, Maryland 21401

(410) 260-3630

EMAIL:

rules@mdcourts.gov

December 14, 2022

The Honorable Matthew J. Fader,

Chief Justice

The Honorable Shirley M. Watts

The Honorable Michele D. Hotten

The Honorable Brynja M. Booth

The Honorable Jonathan Biran

The Honorable Steven B. Gould

The Honorable Angela M. Eaves,

Justices

The Supreme Court of Maryland

Robert C. Murphy Courts of Appeal Building

Annapolis, Maryland 21401

Your Honors:

The Rules Committee submits this, its Two Hundred and

Thirteenth Report, and recommends that the Court adopt, on an

interim and emergency basis, new Rule 16-504.1 and amendments to

Rules 2-804, 16-502, 16-503, 16-504, 16-901, and 16-914.

The emergency arises from the Memorandum Opinion and

Judgment of the United States District Court for the District of

Maryland, entered on December 9, 2022, declaring Code, Criminal

Procedure Article, § 1-201 unconstitutional as applied to

lawfully obtained audio or video recordings of criminal

proceedings. See Soderberg v. Carrion, Civ. No. RDB 19-1559 (D.

Md.). The Memorandum Opinion is attached as Exhibit 1.

Although the challenge in that case was to the statute,

which prohibits the broadcasting of electronic recordings of

criminal cases, it necessarily impacted as well several Rules

that implemented the statute – Rules dealing with the electronic

recording of criminal cases and what could be done with those

recordings.

The pendency of that case and the prospect of the Federal

Court declaring the statute unconstitutional led the Committee

to consider and propose amendments to those Rules that would

form part of a much larger Report that the Committee intends to

file within the next three or four weeks. As the U.S. District

Court’s judgment is now in place, however, the Committee

believes that it is appropriate for the Court to have those

amendments sooner.

The major changes that the Committee believes necessary are

contained in new Rule 16-504.1. Section (a) generally permits

persons, upon request and subject to certain conditions, to

obtain a copy of an audio recording and to listen to an audio

recording or listen to and view an audio-video recording at a

time and place designated by the court and under the supervision

of a court official. Section (b) provides that, except for

certain listed authorized persons, no one may obtain a copy of

an electronic recording of a criminal proceeding. That does not

preclude a person from listening to or viewing such a recording

that is not lawfully shielded. Section (c) lists the authorized

persons who may receive a copy of the recording, subject to

certain conditions and restrictions. The bracketed language in

subsections (c)(1)(G) and (H) accomplish a drafting request from

the Chief Justice. Section (d) carries forward the “contempt”

sanction from Rule 16-504. The Committee considered three

options for new Rule 16-504.1. After considerable discussion,

the version in this Report is the recommendation of the

Committee. The Committee asked that the other two options be

transmitted to the Court as background. They are attached as

Exhibit 2.

Rule 16-502 governs proceedings in the District Court of

Maryland. It makes clear that, except for “extended coverage”

permitted by the Rules in Chapter 600, only official recordings

of judicial proceedings made in accordance with the Rule are

permissible and only judicial personnel or persons authorized by

the District Administrative Judge may get a copy of a recording

that is sealed, shielded, or otherwise not for public

inspection. New subsections (g)(4) and (g)(5) correct an

apparent omission in the current Rule. These subsections impose

the same restrictions and sanctions as the circuit court Rule on

use of a recording obtained by an authorized person.

Rule 16-503, applicable to Circuit Court proceedings,

requires that all proceedings must be recorded by a person

authorized by the court.

In Rule 16-504, also applicable only in the Circuit Courts,

sections (h), (i), and (j), dealing with who may obtain a copy

of an audio recording are proposed for repeal. That is dealt

with in new Rule 16-504.1.

The amendment to Rule 2-804 is a conforming amendment to a

Committee note.

The amendment to Rule 16-901 is a conforming amendment to a

cross reference.

The amendment to section (g) of Rule 16-914 excludes access

to a transcript or recording of a proceeding as to which all

documentary case records are shielded. This amendment was

requested by the Chief Judge of the District Court to implement

a statute, Chapter 12, 2020 Laws of Maryland (SB 314),

pertaining to access to records concerning juveniles who are

charged as adults.

For the further guidance of the Court and the public,

following the proposed new Rule and the proposed amendments to

each of the existing Rules is a Reporter’s note describing in

further detail the reasons for the proposals. We caution that

the Reporter’s notes are not part of the Rules, have not been

debated or approved by the Committee, and are not to be regarded

as any kind of official comment or interpretation. They are

included solely to assist the Court in understanding some of the

reasons for the proposed changes.

Respectfully Submitted,

/ s /

Alan M. Wilner

Chair

AMW:sdm

cc: Gregory Hilton, Clerk

MARYLAND RULES OF PROCEDURE

TITLE 16 – COURT ADMINISTRATION

CHAPTER 500 – RECORDING OF PROCEEDINGS

ADD new Rule 16-504.1, as follows:

Rule 16-504.1.

ACCESS TO ELECTRONIC RECORDING OF CIRCUIT COURT

PROCEEDINGS

(a)

Generally

(1) Request for Access

Except for proceedings closed pursuant to law, portions

of proceedings safeguarded pursuant to Rule 16-504 (g), as

provided in Rule 16-914 (g), as otherwise provided in this Rule,

or as ordered by the court, the authorized custodian of an audio

recording or audio-video recording made pursuant to Rule 16-504,

upon written request from any person, shall:

(A) make a copy of the audio recording or, if practicable,

the audio portion of an audio-video recording available to any

person upon payment of the reasonable costs of making the copy,

unless waived by the court; and

(B) permit the person to listen to the audio recording or,

if available, listen to and view the audio-video recording at a

time and place designated by the court, under the supervision of

the custodian or other designated court official or employee.

person listening to or listening to and viewing the recording

may not make a copy of it or have in that person’s possession

any device that, by itself or in combination with any other

device, can make a copy.

The custodian or other designated

court official or employee shall take reasonable steps to

enforce this prohibition.

Committee note: If space is limited and there are multiple

requests, the custodian may require several persons to listen to

or listen to and view the recording at the same time or

accommodate the requests in the order they were received.

(2) Redacted Recordings

Unless otherwise ordered by the County Administrative

Judge, the custodian of the recording shall assure that all

portions of the recording that the court has directed be

safeguarded pursuant to Rule 16-504 (g) are redacted from any

recording made available for a person under section (a) of this

Rule.

Delivery of the copy or access to the recording may be

delayed for a period reasonably required to accomplish the

redaction.

(b)

Recording of Criminal Proceeding – Copies Prohibited

The custodian shall not provide a copy of a recording in

a criminal proceeding to anyone other than a person listed in

subsection (c)(1) of this Rule.

(c)

Access to Unredacted Recordings by Authorized Persons

(1) Permitted Access

Upon written request and subject to the conditions in

section (c) of this Rule, the custodian shall make available to

the following persons a copy of the audio or, if available, the

audio-video recording, including a recording of proceedings that

were closed pursuant to law, proceedings that were subject to

Rule 16-914 (g), proceedings from which safeguarded portions

have not been redacted, and criminal proceedings:

(A) the Chief Justice of the Supreme Court;

(B) the County Administrative Judge;

authority over the court;

(D) the presiding judge in the case;

(E) the Commission on Judicial Disabilities or, at its

direction, Investigative Counsel;

(F) Bar Counsel;

[(G) with respect to audio recordings, unless otherwise

ordered by the court, a party to the proceeding or the attorney

for a party;

(H) with respect to audio-video recordings, with leave of

court, a party to the proceeding or the attorney for a party;]

(I) a stenographer or transcription service designated by

the court for the purpose of preparing an official transcript of

the proceeding, provided that (i) the transcript of unredacted

safeguarded portions of a proceeding, when filed with the court,

shall be placed under seal or otherwise shielded by order of

court, and (ii) no transcript of a proceeding closed pursuant to

law or containing unredacted safeguarded portions shall be

prepared for or delivered to any person not listed in subsection

(c)(1) of this Rule;

(J) any other person authorized by the County

Administrative Judge; and

(K) with respect to audio-video recordings, the Supreme

Court or Appellate Court pursuant to Rule 8-415 (c).

(2) Restriction on Use of Copies

(A) Generally

Except as provided in subsection (c)(2)(B) of this

Rule, unless authorized by an order of court, a person who

receives a copy of an electronic recording under section (c) of

this Rule shall not (i) make or cause to be made any additional

copy of the recording or (ii) play the recording for or give or

electronically transmit the recording to any person not entitled

to it under subsection (c)(1) of this Rule.

(B) Exceptions

A person who receives a copy of an electronic

recording under section (c) of this Rule may play the recording

for or give or electronically transmit the recording to (i) a

non-sequestered witness or (ii) an agent, employee, or

consultant of the authorized person.

A person permitted to

listen to or electronically receive the recording is subject to

the restrictions on use in subsection (c)(2)(A) of this Rule.

(d)

Violation of Restrictions on Use

A willful violation of any restriction on recording,

copying, or use of an electronic recording set forth in this

Rule may be punished as a contempt.

Source:

(2022).

This Rule is derived from Rule 16-504 (h) through (j)

REPORTER’S NOTE

Proposed new Rule 16-504.1 alters the availability of and

access to audio and audio-video recordings of criminal

proceedings in circuit court. The proposed Rule takes into

account the holding in Soderberg v. Carrion, __ F.Supp.3d __,

2022 WL 17552556 (D. Md.). In that case, the U.S. District

Court in Maryland held that the portion of Code, Criminal

Procedure Article, § 1-201 which prohibits the broadcast of a

recording of a criminal proceeding violates the First Amendment.

Applying strict scrutiny, the Court determined that “the State

may not sanction the press for broadcasting ‘lawfully obtained,

truthful information’ that the State itself has disclosed to the

public.” While acknowledging that the protection of witnesses

and integrity of criminal trials are compelling interests, the

Court found that “the [Broadcast Ban] sweeps too broadly, as it

applies even when there are no serious risks that a subsequent

broadcast would imperil the safety of witnesses or the fairness

of a trial.”

The Rules Committee began reviewing the operation of Rules

16-502, 16-503, and 16-504 and Code, Criminal Procedure Article,

§ 1-201 following the Fourth Circuit holding in Soderberg v.

Carrion, 999 F.3d 962 (4th Cir. 2021). At its June 2022

meeting, the Committee considered draft amendments, primarily to

Rule 16-504, to address the concerns raised by the Fourth

Circuit ruling in the case. After a lengthy discussion, the

Committee referred the matter to a subcommittee for further

consideration. A Special Subcommittee on Broadcast Recording of

Criminal Proceedings was formed and met on August 1, 2022. The

Subcommittee recommended that a series of options be provided to

the Rules Committee for discussion.

At its September 8, 2022 meeting, the Rules Committee

considered three options for new Rule 16-504.1 recommended by

the Special Subcommittee. The proposed new Rule contains the

provisions in current Rule 16-504 sections (h) through (j) and

new provisions prohibiting the dissemination of recordings of

criminal proceedings except to authorized individuals. The

proposed Rule permits an individual to listen to the audio of a

criminal proceeding at the courthouse or view and listen to an

audio-video recording, where one exists, subject to redaction

and shielding requirements.

Committee members expressed concern about the ability of an

individual to obtain and broadcast potentially sensitive

portions of a criminal proceeding, such as testimony of a victim

of sexual assault, as well as the possibility of witness

intimidation. Committee members noted that courtrooms remain

open to public attendance and the provisions permitting later

listening or listening and viewing at a courthouse maintain a

level of public access to the recordings while eliminating

risks. Several members stated that once a copy of a recording

is out in the world, the Judiciary loses control over what can

be done with it. They pointed to the possibility of abuse and

harassment using the internet and social media. The Committee

voted to recommend the version of the Rule that prohibits

dissemination of a recording of a criminal proceeding and to

provide the other two options considered by the Committee to the

Court as background.

One of the other options considered by the Committee

prohibited the broadcast of a recording of a criminal proceeding

during the pendency of the proceeding. “Broadcast” was defined

and there were two alternatives for what should be considered

the pendency of the proceeding: through entry of judgment,

including sentencing, or through the later of the expiration of

time to appeal or the exhaustion of appellate review. The other

option considered by the Committee prohibited providing a copy

of a recording of a criminal proceeding during the pendency of

the proceeding.

Rule 16-504.1 (a)(1) is derived from current Rule 16-504

(h) and (i) which provide that, except for proceedings closed

pursuant to law, as otherwise provided in the Rule, or as

othered by the court, a custodian of an audio or audio-video

recording shall make the recording available as provided.

Language is added to subsection (a)(1) to include portions of

proceedings shielded pursuant to Rule 16-504 (g) in the list of

exceptions. At its November 18, 2022 meeting, the Rules

Committee also recommended an amendment to Rule 16-914 (g) to

restrict public access to recordings of proceedings as to which

all case records are shielded or sealed. See the Reporter’s

note to Rule 16-914 for more information.

Current Rule 16-504 (h)(1) provides that the custodian

shall make a copy of the audio recording available to any person

on written request and payment of reasonable costs. This

provision is now contained in new Rule 16-504.1 (a)(1)(A).

Current Rule 16-504 (i)(1) requires the custodian to permit

any person to listen to and view the audio-video recording of a

proceeding, if available, on written request. This provision is

captured by new Rule 16-504.1 (a)(1)(B). The new subsection is

expanded to apply to requests to listen to audio of a proceeding

or listen to and view the audio-video recording of a proceeding,

if available. The prohibition against copying any part of the

proceeding while a person listens to or listens to and views a

recording under the supervision of the custodian is derived from

current Rule 16-504 (i)(3). The Committee note following

subsection (a)(1) is derived from the Committee note following

current Rule 16-504 (i)(1).

Rule 16-504.1 (a)(2) governs redaction of portions of a

recording that have been safeguarded pursuant to Rule 16-504

(g). It is derived from current Rule 16-504 (h)(2) and (i)(2).

Section (b) states that the custodian shall not provide a

copy of a recording in a criminal proceeding to anyone other

than those listed in subsection (c)(1), which governs access by

authorized persons.

Rule 16-504.1 (c) is derived from current Rule 16-504

(h)(3) and (j)(1). Subsection (h)(3) sets forth the persons

permitted to obtain a copy of the audio recording of a

proceeding, including closed proceedings and redacted portions

of proceedings. Subsection (j)(1) does the same for persons

permitted to obtain a copy of the audio-video recording of a

proceeding. The lists of authorized individuals are identical

except that subsection (j)(1)(I) is unique to copies of audiovideo recordings. Rule 16-504.1 (c)(1)(K) carries forward this

provision “with respect to audio-video recordings.”

Rule 16-504.1 (c)(2) is derived from current Rule 16-504

(j)(2). The goals of the subsection are to permit authorized

persons in possession of a copy of a recording to make

reasonable use of the recording and to ensure that no person who

is authorized to view a copy of a recording disseminates it

further. Subsection (c)(2)(A) states that, generally, a person

who receives a copy of a recording under subsection (c)(1) may

not make a copy or play or transmit the recording to an

unauthorized person. Subsection (c)(2)(B) makes certain

exceptions to the general prohibition in subsection (c)(2)(A)

for non-sequestered witnesses or agents, employees, or

consultants of the authorized individuals. The second sentence

of subsection (c)(2)(B) prohibits further dissemination of the

recording by a person who listens to or receives it from an

authorized person.

Rule 16-504.1 (d) punishes a willful violation of any of

the restrictions in the Rule as a contempt. This provision

exists currently in Rule 16-504 (i)(3) and (j)(3).

MARYLAND RULES OF PROCEDURE

TITLE 16 – COURT ADMINISTRATION

CHAPTER 500 – RECORDING OF PROCEEDINGS

AMEND Rule 16-502 by stating that recordings pursuant to

section (a) shall be made “by a person authorized by the court

to do so,” by adding Rule 16-504.1 to the Rules listed in

subsection (b)(2), by adding new subsection (b)(3) pertaining to

official recordings, by adding new subsection (g)(1)(B) related

to provisions in Rule 16-914 (g), by deleting “section (g) of”

from subsection (g)(3), by adding “that is subject to Rule 16914 (g)” to subsection (g)(3), by adding new subsection (g)(4)

pertaining to restrictions on use of copies of a recording

obtained pursuant to subsection (g)(3), by adding new subsection

(g)(5) establishing the penalty for violation of a restriction

on use, and by updating references to the Chief Judge of the

Court of Appeals to Chief Justice of the Supreme Court, as

follows:

Rule 16-502.

(a)

IN DISTRICT COURT

Proceedings to be Recorded

All trials, hearings, testimony, and other judicial

proceedings before a District Court Judge held either in a

courtroom or by remote electronic means shall be recorded

verbatim in their entirety by a person authorized by the court

to do so, except that, unless otherwise ordered by the court,

the person responsible for recording need not report or

separately record an audio or audio-video recording offered as

evidence at a hearing or trial.

Committee note: Section (a) of this Rule does not apply to ADR

proceedings conducted pursuant to Title 17, Chapter 300 of these

Rules.

(b)

Method of Recording

(1) Generally

Proceedings shall be recorded by an audio recording

device provided by the court.

(2) As Authorized By Chief Judge

The Chief Judge of the District Court may authorize

recording by additional means, including audio-video recording.

Audio-video recording of a proceeding and access to an audiovideo recording shall be in accordance with this Rule and Rules

16-503, and 16-504, and 16-504.1.

(3) Official Recordings

Except for extended coverage of court proceedings

permitted under Title 16, Chapter 600 of these Rules, only

official recordings of judicial proceedings made in accordance

with this Rule are permitted.

(c)

Control of and Direct Access to Electronic Recordings

(1) Under Control of District Court

Electronic recordings made pursuant to this Rule shall

be under the control of the District Court.

(2) Restricted Access or Possession

No person other than an authorized Court official or

employee of the District Court may have direct access to or

possession of an official electronic recording.

(d)

Filing of Recordings

Subject to section (c) of this Rule, audio recordings and

any other recording authorized by the Chief Judge of the

District Court shall be maintained by the court in accordance

with the standards specified in an administrative order of the

Chief Judge of the Court of Appeals Chief Justice of the Supreme

Court.

Cross reference: See Rule 16-505 (a) providing for an

administrative order of the Chief Judge of the Court of Appeals

Chief Justice of the Supreme Court.

(e)

Court Reporters and Persons Responsible for Recording

Court Proceedings

Regulations and standards adopted by the Chief Judge of

the Court of Appeals Chief Justice of the Supreme Court pursuant

to Rule 16-505 (a) apply with respect to court reporters and

persons responsible for recording court proceedings employed in

or designated by the District Court.

(f)

Safeguarding Confidential Portions of Proceedings

If a portion of a proceeding involves placing on the

record matters that, on motion, the court finds should and

lawfully may be shielded from public access and inspection, the

court shall direct that appropriate safeguards be placed on that

portion of the recording.

The clerk shall create a log listing

the recording references for the beginning and end of the

safeguarded portions of the recording.

The log shall be kept in

the court file, and a copy of the log shall be kept with the

recording.

(g)

Right to Obtain Copy of Audio Recording

(1) Generally

Except (A) for proceedings closed pursuant to law, (B)

as provided in Rule 16-914 (g), (B)(C) as otherwise provided in

this Rule, or (C)(D) as ordered by the court, the authorized

custodian of an official audio recording shall make a copy of

the audio recording available to any person upon written request

and, unless waived by the court, upon payment of the reasonable

costs of making the copy.

(2) Redacted Portions of Recording

Unless otherwise ordered by the District Administrative

Judge, the custodian of the recording shall assure that all

portions of the recording that the court directed be safeguarded

pursuant to section (f) of this Rule are redacted from any copy

of a recording made for a person under subsection (g)(1) of this

Rule.

Delivery of the copy may be delayed for a period

reasonably required to accomplish the redaction.

(3) Exceptions

Upon written request and subject to the conditions in

section (g) of this Rule, the custodian shall make available to

the following persons a copy of the audio recording of

proceedings that were closed pursuant to law, that is subject to

Rule 16-914 (g), or from which safeguarded portions have not

been redacted:

(A) the Chief Judge of the Court of Appeals Chief Justice

of the Supreme Court;

(B) the Chief Judge of the District Court;

authority over the court;

(D) the presiding judge in the case;

(E) the Commission on Judicial Disabilities or, at its

direction, Investigative Counsel;

(F) Bar Counsel;

(G) unless otherwise ordered by the court, a party to the

proceeding or the attorney for a party;

(H) a stenographer or transcription service designated by

the court for the purpose of preparing an official transcript of

the proceeding, provided that (i) the transcript of unredacted

safeguarded portions of a proceeding, when filed with the court,

shall be placed under seal or otherwise shielded by order of

court and (ii) no transcript of a proceeding closed pursuant to

law or containing unredacted safeguarded portions shall be

prepared for or delivered to any person not listed in subsection

(g)(3) of this Rule; and

(I) any other person authorized by the District

Administrative Judge.

(4) Restriction on Use of Copies

(A) Generally

Except as provided in subsection (g)(4)(B) of this

Rule, unless authorized by an order of court, a person who

receives a copy of an electronic recording under subsection

(g)(3) of this Rule shall not (i) make or cause to be made any

additional copy of the recording or (ii) play the recording for

or give or electronically transmit the recording to any person

not entitled to it under subsection (g)(3) of this Rule.

(B) Exceptions

A person who receives a copy of an electronic

recording under subsection (g)(3) of this Rule may play the

recording for or give or electronically transmit the recording

to (i) a non-sequestered witness or (ii) an agent, employee, or

consultant of the authorized person.

A person permitted to

listen to or electronically receive the recording is subject to

the restrictions on use in subsection (g)(4) of this Rule.

(5) Violation of Restrictions on Use

A willful violation of subsection (g)(4) of this Rule

may be punished as a contempt.

Source:

This Rule is derived from former Rule 16-504 (2016).

REPORTER’S NOTE

Proposed amendments to Rule 16-502 conform it to proposed

amendments to Rule 16-503 and incorporate provisions from

current Rule 16-504 and proposed new Rule 16-504.1.

Section (a) is amended to clarify that a recording pursuant

to the Rule can only be made by a person authorized by the court

to do so.

A conforming amendment in Rule 16-502 (b)(2) adds Rule 16504.1 to the list of Rules applicable to audio-video recording

and access to audio-video recording in District Court.

New subsection (b)(3) states that only official recordings

of proceedings are permitted, unless extended coverage of

proceedings is permitted pursuant to Title 16, Chapter 600.

Current Rule 16-504 (j) permits certain persons to obtain a

copy of the audio-video recording of a proceeding, including a

closed proceeding or redacted portions of an open proceeding.

Subjection (j)(2) of that Rule contains a provision restricting

use of that recording. Current Rule 16-504 (h) similarly

permits certain persons to obtain a copy of the audio of a

closed proceeding or redacted portions of an open proceeding but

does not contain restrictions on use. Proposed new Rule 16504.1 (c)(2) restructures and incorporates the restriction on

use in Rule 16-504 (j) to apply to an audio or audio-video

recording obtained by authorized persons.

Proposed amendments to Rule 16-502 (g) conform it to

proposed amendments to Rule 16-914 (g) pertaining to audio of

proceedings where all case records are shielded. Recordings

governed by Rule 16-914 are added to subsections (g)(1) and

(g)(3). See the Reporter’s note to Rule 16-914 for more

information.

Additionally, proposed amendments to Rule 16-502 (g) add

new subsection (g)(4), which is modeled after proposed new Rule

16-504.1 (c)(2). Proposed new Rule 16-502 (g)(5) is modeled

after the penalty provision in Rule 16-504.1 (d).

References to the Chief Judge of the Court of Appeals are

changed to Chief Justice of the Supreme Court throughout the

Rule.

MARYLAND RULES OF PROCEDURE

TITLE 16 – COURT ADMINISTRATION

CHAPTER 500 – RECORDING OF PROCEEDINGS

AMEND Rule 16-503 by stating that recordings pursuant to

subsection (a)(1) shall be made “by a person authorized by the

court to do so” and by adding new section (c) pertaining to

official recordings, as follows:

Rule 16-503.

(a)

IN CIRCUIT COURT

Proceedings to be Recorded

(1) Proceedings in the Presence of Judge

All trials, hearings, testimony, and other judicial

proceedings before a circuit court judge held either in a

courtroom or by remote electronic means shall be recorded

verbatim in their entirety by a person authorized by the court

to do so, except that, unless otherwise ordered by the court,

the person responsible for recording need not report or

separately record an audio or audio-video recording offered as

evidence at a hearing or trial.

. . .

(c)

Official Recordings

Except for extended coverage of court proceedings

permitted under Title 16, Chapter 600 of these Rules, only

official recordings of judicial proceedings made in accordance

with this Rule are permitted.

. . .

REPORTER’S NOTE

Proposed amendments to Rule 16-503 clarify information

pertaining to official recordings of court proceedings in

circuit court.

Subsection (a)(1) is amended to clarify that a recording

pursuant to the Rule can only be made by a person authorized by

the court to do so.

New section (c) states that only official recordings of

proceedings are permitted, unless extended coverage of

proceedings is permitted pursuant to Title 16, Chapter 600.

MARYLAND RULES OF PROCEDURE

TITLE 16 – COURT ADMINISTRATION

CHAPTER 500 – RECORDING OF PROCEEDINGS

AMEND Rule 16-504 by deleting sections (h), (i), and (j)

and by making stylistic changes, as follows:

Rule 16-504.

ELECTRONIC RECORDING OF CIRCUIT COURT PROCEEDINGS

· · ·

(h)

Right to Obtain Copy of Audio Recording

Upon written request, the custodian shall make available

to the following persons a copy of the audio recording or, if

practicable, the audio portion of an audio-video recording:

(1) the Chief Judge of the Court of Appeals;

(2) the County Administrative Judge;

(3) the Circuit Administrative Judge having supervisory

authority over the court;

(4) the presiding judge in the case;

(5) the Commission on Judicial Disabilities or, at its

direction, Investigative Counsel;

(6) Bar Counsel;

(7) unless otherwise ordered by the court, a party to the

proceeding or the attorney for a party;

Rule 16-504 (conforming amendment)

9/8/2022 R.C. approved

For Style S.C.

(8) a stenographer or transcription service designated by

the court for the purpose of preparing an official transcript of

the proceeding, provided that (i) the transcript of unredacted

safeguarded portions of a proceeding, when filed with the court,

shall be placed under seal or otherwise shielded by order of

court, and (ii) no transcript of a proceeding closed pursuant to

law or containing unredacted safeguarded portions shall be

prepared for or delivered to any person not listed in section

(h) of this Rule; and

(9) any other person authorized by the County Administrative

Judge.

(i)

Right to Listen to and View Audio-Video Recording

(1) Generally

Except for proceedings closed pursuant to law or as

otherwise provided in this Rule or ordered by the Court, the

authorized custodian of an audio-video recording, upon written

request from any person, shall permit the person to listen to

and view the recording at a time and place designated by the

court, under the supervision of the custodian or other

designated court official or employee.

Committee note: If space is limited and there are multiple

requests, the custodian may require several persons to listen to

and view the recording at the same time or accommodate the

requests in the order they were received.

(2) Safeguarded Portions of Recording

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For Style S.C.

Unless otherwise ordered by the County Administrative

Judge, the custodian of the recording shall assure that all

portions of the recording that the court directed to be

safeguarded pursuant to section (g) of this Rule are not

available for listening or viewing.

Access to the recording may

be delayed for a period reasonably necessary to accomplish the

safeguarding.

(3) Copying Prohibited

A person listening to and viewing the recording may not

make a copy of it or have in his or her possession any device

that, by itself or in combination with any other device, can

make a copy.

The custodian or other designated court official

or employee shall take reasonable steps to enforce this

prohibition, and any willful violation of the prohibition may be

punished as a contempt.

(j)

Right to Obtain Copy of Audio-Video Recording

(1) Who May Obtain Copy

Upon written request and subject to the conditions in

this section, the custodian shall make available to the

following persons a copy of the audio-video recording, including

a recording of proceedings that were closed pursuant to law or

from which safeguarded portions have not been redacted:

(A) the Chief Judge of the Court of Appeals;

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For Style S.C.

(B) the County Administrative Judge;

authority over the court;

(D) the presiding judge in the case;

(E) the Commission on Judicial Disabilities or, at its

direction, Investigative Counsel;

(F) Bar Counsel;

(G) unless otherwise ordered by the court, a party to the

proceeding or the attorney for a party;

(H) a stenographer or transcription service designated by

the court for the purpose of preparing an official transcript of

the proceeding, provided that, (i) if the recording is of a

proceeding closed pursuant to law or from which safeguarded

portions have not been redacted, the transcript, when filed with

the court, shall be placed under seal or otherwise shielded by

order of the court, and (ii) no transcript of a proceeding

closed pursuant to law or containing unredacted safeguarded

portions shall be prepared for or delivered to any person not

listed in subsection (j)(1) of this Rule;

(I) the Court of Appeals or the Court of Special Appeals

pursuant to Rule 8-415 (c); and

(J) any other person authorized by the County

Administrative Judge.

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For Style S.C.

(2) Restrictions on Use

Unless authorized by an order of court, a person who

receives a copy of an electronic recording under this section

shall not:

(A) make or cause to be made any additional copy of the

recording; or

(B) except for a non-sequestered witness or an agent,

employee, or consultant of the party or attorney, give or

electronically transmit the recording to any person not entitled

to it under subsection (j)(1) of this Rule.

(3) Violation of Restriction on Use

A willful violation of subsection (j)(2) of this Rule

may be punished as a contempt.

Cross reference: See Rule 16-505 (a) concerning regulations and

standards applicable to court reporting in all courts of the

State.

Source: This Rule is derived form from former Rules 16-404, 16405, and 16-406 (2016).

REPORTER’S NOTE

Proposed amendments to Rule 16-504 delete sections (h),

(i), and (j). These provisions have been relocated to proposed

new Rule 16-504.1.

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For Style S.C.

MARYLAND RULES OF PROCEDURE

TITLE 2 – CIVIL PROCEDURE – CIRCUIT COURT

CHAPTER 800 – REMOTE ELECTRONIC PARTICIPATION

AMEND Rule 2-804 by deleting a reference to Rule 16-504 (h)

and adding a reference to Rule 16-504.1 (a), as follows:

Rule 2-804.

CONDITIONS ON REMOTE ELECTRONIC PARTICIPATION

· · ·

(g)

Public Access

If a proceeding that otherwise would be open to the

public is conducted entirely by remote electronic means, the

court shall ensure that members of the public shall have the

ability to listen to the non-redactable portions of the

proceeding during the course of the proceeding through remote

electronic means.

Committee note: The “non-redactable” portions of a proceeding

are those portions of the proceeding that are not required to be

safeguarded or redacted from an audio recording obtained by a

member of the public in accordance with Rule 16-504 (g) and (h)

Rule 16-504.1 (a). Each court may need to include in its case

management plan a process to provide the public access to

proceedings conducted through remote electronic participation.

Source: This Rule is new.

REPORTER’S NOTE

The proposed amendment to Rule 2-804 deletes a reference to

Rule 16-504 (h) and replaces it with a reference to Rule 16Rule 2-804 (conforming amendment)

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504.1 (a). Rule 16-504.1 (a) governs copies of electronic

recordings that can be obtained by the public.

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MARYLAND RULES OF PROCEDURE

TITLE 16 – COURT ADMINISTRATION

CHAPTER 900 – ACCESS TO JUDICIAL RECORDS

DIVISION 1 – GENERAL PROVISIONS

AMEND Rule 16-901 by deleting reference to Rule 16-504 in

the cross reference following section (b) and adding a reference

to Rule 16-504.1, as follows:

Rule 16-901.

SCOPE OF CHAPTER

· · ·

(b)

Access by Judicial Employees, Parties, Attorneys of

Record, and Certain Government Agencies

The Rules in this Chapter do not limit access to (1)

judicial records by authorized judicial officials or employees

in the performance of their official duties or to government

agencies or officials to whom access is permitted by law, or (2)

a case record by a party or attorney of record in the action.

Cross reference: For other Rules that affect access to judicial

records, see Rule 16-502 (In District Court), Rule 16-504

(Electronic Recording of Circuit Court Proceedings) Rule 16504.1 (Access to Electronic Recording of Circuit Court

Proceedings), and Rule 20-109 (Access to Electronic Records in

MDEC Actions).

Source: This Rule is new.

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REPORTER’S NOTE

The proposed amendment to Rule 16-901 adds a reference to

Rule 16-502 concerning access to recordings in the District

Court and deletes the reference to Rule 16-504. Access to

electronic recordings in circuit court is governed by proposed

new Rule 16-504.1, which is added to the cross reference.

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MARYLAND RULES OF PROCEDURE

TITLE 16 – COURT ADMINISTRATION

CHAPTER 900 – ACCESS TO JUDICIAL RECORDS

DIVISION 2 – LIMITATIONS ON ACCESS

AMEND Rule 16-914 by adding a provision pertaining to

proceedings as to which all documentary case records are

shielded to section (g), as follows:

Rule 16-914.

CASE RECORDS--REQUIRED DENIAL OF INSPECTION--

CERTAIN CATEGORIES

Except as otherwise provided by law, court order, or the

Rules in this Chapter, the custodian shall deny inspection of:

(a)

All case records filed in the following actions involving

children:

(1) Actions filed under Title 9, Chapter 100 of the Maryland

Rules for:

(A) adoption;

(B) guardianship; or

for which there is no pending adoption or guardianship

proceeding in that county.

(2) Delinquency, child in need of assistance, public agency

guardianship terminating parental rights, voluntary placement,

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child in need of supervision, peace order, and truancy actions

in Juvenile Court, except that, if a hearing is open to the

public pursuant to Code, Courts Article, § 3-8A-13(f), the name

of the respondent and the date, time, and location of the

hearing are open to inspection unless the record was ordered

expunged.

Committee note: In most instances, the “child” or “children”

referred to in this section will be minors, but, as Juvenile

Court jurisdiction extends until a child is 21, in some cases,

the children legally may be adults. The Juvenile Court also has

jurisdiction over certain proceedings against an adult. Case

records pertaining to these proceedings are not subject to this

section. See Rule 11-507.

(b)

Case records pertaining to petitions for relief from

abuse filed pursuant to Code, Family Law Article, § 4-504, which

shall be sealed until the earlier of service or denial of the

petition.

(c)

Case records shielded pursuant to Code, Courts Article, §

3-1510 (peace orders), Code, Family Law Article, § 4-512

(domestic violence protective orders), or Code, Public Safety

Article, § 5-602(c) (extreme risk protective orders).

(d)

In any action or proceeding, a record created or

maintained by an agency concerning child abuse or neglect that

is required by statute to be kept confidential.

Committee note: Statutes that require child abuse or neglect

records to be kept confidential include Code, Human Services

Article, §§ 1-202 and 1-203 and Code, Family Law Article, § 5707.

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(e)

Except for docket entries and orders entered under Rule

10-108, papers and submissions filed in guardianship actions or

proceedings under Title 10, Chapter 200, 300, 400, or 700 of the

Maryland Rules.

Committee note: Most filings in guardianship actions are likely

to be permeated with financial, medical, or psychological

information regarding the minor or disabled person that

ordinarily would be sealed or shielded under other Rules.

Rather than require custodians to pore through those documents

to redact that kind of information, this Rule shields the

documents themselves subject to Rule 16-934, which permits the

court, on a motion and for good cause, to permit inspection of

case records that otherwise are not subject to inspection.

There may be circumstances in which that should be allowed. The

guardian, of course, will have access to the case records and

may need to share some of them with third persons in order to

perform his or her duties, and this Rule is not intended to

impede the guardian from doing so. Public access to the docket

entries and to orders entered under Rule 10-108 will allow

others to be informed of the guardianship and to seek additional

access pursuant to Rule 16-934.

(f)

The following case records in criminal actions or

proceedings:

(1) A case record that has been ordered expunged pursuant to

Rule 4-508.

(2) The following case records pertaining to search

warrants:

(A) The warrant, application, and supporting affidavit,

prior to execution of the warrant and the filing of the records

with the clerk.

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(B) Executed search warrants and all papers attached

thereto filed pursuant to Rule 4-601, except as authorized by a

judge under that Rule.

(3) The following case records pertaining to an arrest

warrant:

(A) A case record pertaining to an arrest warrant issued

under Rule 4-212 (d) and the charging document upon which the

warrant was issued until the conditions set forth in Rule 4-212

(d)(3) are satisfied.

(B) Except as otherwise provided in Code, General

Provisions Article, § 4-316, a case record pertaining to an

arrest warrant issued pursuant to a grand jury indictment or

conspiracy investigation and the charging document upon which

the arrest warrant was issued.

(4) Unless entered into evidence at a hearing or trial or

otherwise ordered by the court, a case record pertaining to (i)

a pen register or trace device applied for or ordered pursuant

to Rule 4-601.1, (ii) an emergency order applied for or entered

pursuant to Rule 4-602, (iii) the interception of wire or oral

communications applied for or ordered pursuant to Rule 4-611, or

(iv) an order for electronic device location information applied

for or entered pursuant to Rule 4-612.

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(5) A case record maintained under Code, Courts Article, §

9-106, of the refusal of an individual to testify in a criminal

action against the individual's spouse.

(6) Subject to Rules 16-902 (c) and 4-341, a presentence

investigation report prepared pursuant to Code, Correctional

Services Article, § 6-112.

(7) Except as otherwise provided by law, a case record

pertaining to a criminal investigation by (A) a grand jury, (B)

a State's Attorney pursuant to Code, Criminal Procedure Article,

§ 15-108, (C) the State Prosecutor pursuant to Code, Criminal

Procedure Article, § 14-110, or (D) the Attorney General when

acting pursuant to Article V, § 3 of the Maryland Constitution

or other law or a federal law enforcement agency.

Cross reference: See Code, Criminal Procedure Article, §§ 1203.1, 9-101, 14-110, and 15-108, and Rules 4-612 and 4-643

dealing, respectively, with electronic device location,

extradition warrants, States' Attorney, State Prosecutor, and

grand jury subpoenas, and Code, Courts Article, §§ 10-406, 10408, 10-4B-02, and 10-4B-03 dealing with wiretap and pen

11-110.1 and 11-114 dealing with HIV test results.

Committee note: Although this Rule shields only case records

pertaining to a criminal investigation, there may be other laws

that shield other kinds of judicial records pertaining to such

investigations. This Rule is not intended to affect the

operation or effectiveness of any such other law.

(8) A case record required to be shielded by Code, Criminal

Procedure Article, Title 10, Subtitle 3 (Criminal Records –

Shielding).

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Cross reference: See Code, Criminal Law Article, § 5-601.1

governing confidentiality of judicial records pertaining to a

citation issued for a violation of Code, Criminal Law Article, §

5-601 involving the use or possession of less than 10 grams of

marijuana.

(9) The following case records pertaining to a child

excluded from the jurisdiction of the Juvenile Court under Code,

Courts Article, § 3-8A-03(d)(1), (4), or (5):

(A) A case record pertaining to a case where a motion to

transfer jurisdiction to the Juvenile Court pursuant to Code,

Criminal Procedure Article, § 4-202 is pending or the time for

filing such motion has not expired.

(B) A case record pertaining to a case transferred to the

Juvenile Court.

Committee note: Nothing in this Rule precludes a clerk from

divulging a case number to an attorney for the purpose of

entering an appearance in the case or petitioning the court for

access to the court file to determine whether to enter an

appearance in the case.

(g)

A transcript or an audio, video, or digital recording of

(1) any court proceeding that was closed to the public pursuant

to Rule, order of court, or other law or (2) a proceeding in an

action as to which all documentary case records are required to

be shielded.

(h)

Subject to the Rules in Title 16, Chapter 500, backup

audio recordings, computer disks, and notes of a court reporter

that have not been filed with the clerk.

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(i)

The following case records containing medical or other

health information:

(1) A case record, other than an autopsy report of a medical

examiner, that (A) consists of a medical or psychological report

or record from a hospital, physician, psychologist, or other

professional health care provider, and (B) contains medical or

psychological information about an individual.

(2) A case record pertaining to the testing of an individual

for HIV that is declared confidential under Code, Health-General

Article, § 18-338.1, § 18-338.2, or § 18-338.3.

(3) A case record that consists of information, documents,

or records of a child fatality review team, to the extent they

are declared confidential by Code, Health-General Article, § 5709.

(4) A case record that contains a report by a physician or

institution concerning whether an individual has an infectious

disease, declared confidential under Code, Health-General

Article, § 18-201 or § 18-202.

(5) A case record that contains information concerning the

consultation, examination, or treatment of a developmentally

disabled individual, declared confidential by Code, HealthGeneral Article, § 7-1003.

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(6) A case record relating to a petition for an emergency

evaluation made under Code, Health-General Article, § 10-622 and

declared confidential under § 10-630 of that Article.

(j)

A case record that consists of the federal, state, or

local income tax return of an individual.

(k)

A case record that:

(1) a court has ordered sealed or not subject to inspection,

except in conformance with the order; or

(2) in accordance with Rule 16-934 (b) is the subject of a

pending petition to preclude or limit inspection.

(l)

A case record that consists of a financial statement

filed pursuant to Rule 9-202, a Child Support Guideline

Worksheet filed pursuant to Rule 9-206, or a Joint Statement of

Marital and Non-marital Property filed pursuant to Rule 9-207.

Cross reference: See also Rule 9-203.

(m)

A document required to be shielded under Rule 20-203

(e)(1).

(n)

An unredacted document filed pursuant to Rule 1-322.1 or

Rule 20-203 (e)(2).

(o)

A parenting plan or joint statement prepared and filed

pursuant to Rules 9-204.1 and 9-204.2.

(p)

An action for judicial declaration of gender identity

filed pursuant to Rule 15-902.

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Source:

(2019).

This Rule is derived in part from former Rule 16-907

REPORTER’S NOTE

The proposed amendment to Rule 16-914 addresses a question

raised by the Chief Judge of the District Court regarding access

to audio recordings of proceedings as to which documentary

records are shielded. Juvenile proceedings are generally open

to the public, unless the courtroom is closed by court order,

but records in those cases are shielded from public access.

Chapter 12, 2020 Laws of Maryland (SB 314), which was

enacted last year after the Governor’s veto was overridden,

shields court records concerning a juvenile charged as an adult

automatically under the Courts Article until after 1) the time

for filing a motion to transfer the matter to Juvenile Court has

expired and no motion has been filed or 2) a motion to transfer

has been denied. The statute was designed to treat the records

of a juvenile charged as an adult the same, in effect, as the

records of a juvenile that is the subject of a delinquency

petition until it is known whether the case will remain in the

criminal court or be transferred to Juvenile Court.

Chief Judge Morrissey raised a question regarding the

availability of recordings of bail review hearings in the

District Court for a juvenile charged as an adult. The bail

review is a public proceeding, but all police and court records

concerning the juvenile are shielded.

In the context of Title 16, the term “case records” appears

to have been intended to refer to documentary records in a case

and not the audio recording made pursuant to Title 16, Chapter

500. Rule 16-903 defines “case record” as “all or any portion

of a paper, document, exhibit, order, notice, docket entry, or

other record, whether in paper, electronic, or other form, that

is made, entered, filed with, or maintained by the clerk of a

court in connection with an action or proceeding.” The clerk

does not maintain the audio recording and it is not part of the

record of the case as defined in various trial Rules.

Rule 16-914 (g), however, does address access to a

transcript or recording of a court proceeding that was closed to

the public. Proposed amendments to Rule 16-914 (g) add “an

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action as to which all documentary case records are required to

be shielded” to the provision. The intent of the amendments is

to codify what appears to be existing practice as to access to

audio of juvenile cases shielded pursuant to Rule 16-914 (a),

petitions for relief from abuse shielded pursuant to Rule 16-914

(b) before the petition has been served or denied, and

guardianship cases shielded pursuant to Rule 16-914 (e).

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EXHIBIT 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

BRANDON SODERBERG, et al.,

Plaintiffs,

Civil No. RDB-19-1559

HON. AUDREY J. S. CARRIÓN, et al., *

Defendants.

MEMORANDUM OPINION

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 (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 (1989); Daily Mail, 443 U.S. at 103; Cox Broad. Corp. v.

Cohn, 420 U.S. 469, 495 (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 (2011). Although the State’s interests are compelling, the Broadcast Ban is

Defendants are the Administrative Court Judges of the Circuit Courts for Baltimore County

and Prince George’s County and are sued in their official capacities as stand-ins for the State of

Maryland. Accordingly, Defendants shall be referred to as “the State” throughout this opinion.

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. 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.)

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,

The Broadcast Ban was originally codified as Article 27, § 467B of the Maryland Code. 1981

Md. Laws ch. 748, at 2782. It was re-codified, without substantive change, as Section 1-201 of the

Criminal Procedure Article in 2001. 2001 Md. Laws ch. 10, at 85.

“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 officials, see Md. Rule 16-504(j)(1)(A)–(I), they

may also be released to “any other person authorized by the County Administrative Judge.”

Md. Rule 16-504(j)(1)(J).

The same rules that allow the public to view or obtain copies of official trial recordings

authorize the courts to shield sensitive content from public disclosure. Rule 16-504 provides

that each court “shall direct that appropriate safeguards be placed” on any portion of a

recording that “should and lawfully may be shielded from public access and inspection.” Rule

16-504(g); Rule 16-502(f) (district court). Additionally, court recordings may be withheld from

the public “as ordered by the court” or when a court proceeding is “closed pursuant to law.”

Md. Rule 16-504(h)(1)(C), (i)(1), (j)(2). In either case, the custodian of a recording is required

to redact safeguarded portions from any copy of a recording released to the public. Md. Rule

16-504(h)(2), (i)(2). Unredacted copies of shielded recordings may be obtained only by the

parties to a case, their attorneys, bar counsel, and select judicial officials, and are available to

others only upon approval of the County Administrative Judge. Md. Rule 16-504(h)(3).

This case covers the interaction of the Broadcast Ban and the recording requirements

of the Maryland Rules. The State of Maryland construes the Broadcast Ban “to cover not only

broadcasts of live court proceedings but also broadcasts of court recordings that the State itself

has made available to the public” under the Maryland Rules. (Pls.’ Mem. Supp. 4.)3 However,

3 As Plaintiffs note, a Baltimore City Circuit Judge considered holding the producers of Serial

in contempt for playing excerpts of the 2000 murder trial of Adnan Syed on their podcast. (Id.)

Additionally, in 2019, a Baltimore City Circuit Judge “sent a letter to HBO admonishing the network

the Broadcast Ban does not “prohibit any person from describing, transcribing, or reenacting

any portion of a criminal trial.” (Defs.’ Mem. Supp. 8.)

II.

Procedural History

As noted above, Plaintiffs are a collection of lawyers, journalists, and civil rights

organizations who seek to disseminate official recordings of criminal proceedings “as part of

their reporting, advocacy, and community-education efforts.” (Pls.’ Mem. Supp. 5.) Plaintiffs

Brandon Soderberg and Baynard Woods are Baltimore-area journalists who have lawfully

obtained official audio and video recordings from the Baltimore City Circuit Court for use as

part of “a documentary film about the Baltimore Police Department’s Gun Trace Task Force.”

(Id.; see also Decl. of Brandon Soderberg ¶¶ 3–6, ECF No. 71-7; Decl. of Brandon Woods ¶¶

3–5, ECF No. 71-6.) Plaintiffs Open Justice Baltimore and the Baltimore Action Legal Team

are community organizations advocating for criminal justice reform, who have lawfully

obtained official audio recordings that they plan to post online and play at “know-your-rights

events for community members and legal training for volunteer lawyers.” (Id. at 5–6; see also

Decl. of Zach Zwagil ¶¶ 2–4, ECF No. 71-8; Decl. of Matthew Zernhelt, ¶¶ 2–4, ECF No.

71-9.) Finally, Plaintiff Qiana Johnson and the nonprofit organization she founded, Plaintiff

Life After Release, have lawfully obtained official audio recordings from Prince George’s

County, and plan to distribute them “in order to highlight the impact of [their] participatorydefense work and to teach others how to become effective community advocates.” (Id. at 6–

7; see also Decl. of Qiana Johnson ¶¶ 2–6, ECF No. 71-10.)

for using video footage of the same trial in a documentary,” and “sent a similar letter to a local

journalist, warning her that it would be unlawful for her to include courtroom audio (from a different

case) on her podcast.” (Id. (citing Pierson Letter 3, ECF No. 71-5).)

Although Plaintiffs lawfully obtained these recordings, they have yet to publish them.

(See Pls.’ Mem. Supp. 5–7; Defs.’ Mem. Supp. 13–15; see also Soderberg Decl. ¶ 4; Woods Decl.

¶¶ 4–5; Zwagil Decl. ¶ 3; Zernhelt Decl. ¶¶ 3–4; Johnson Decl. ¶ 7.) In May 2019, Plaintiffs

contacted the respective administrative judges for Baltimore City and Prince George’s County

to seek clarification regarding whether their intended use of these recordings would violate the

Broadcast Ban. (Pls.’ Mem. Supp. at 7–8; Letters to Judge Pierson, ECF Nos. 1-1, 1-2; Letter

to Judge Adams, ECF No. 1-3.) They received no response. (Pls.’ Mem. Supp. 7–8.)

Accordingly, Plaintiffs assert that the legal uncertainty attendant to the Broadcast Ban “has

chilled their speech and deterred them from using the recordings in all of the ways that they

otherwise would.” (Pls.’ Mem. Supp. 8; see also Soderberg Decl. ¶ 6; Woods Decl. ¶ 8; Zwagil

Decl. ¶ 6; Zernhelt Decl. ¶ 8; Johnson Decl. ¶ 8.)

Plaintiffs filed the instant lawsuit on May 28, 2019, alleging that the Broadcast Ban

violates the First Amendment freedom of expression and is alternatively void for vagueness.

(Pls.’ Mem. Supp. 8–9.) They seek a declaratory judgment that Md. Code Ann., Crim. Proc. §

1-201 is unconstitutional “insofar as it prohibits them from disseminating court recordings

that they acquired through lawful means.” (Id. at 9; Compl. 22–23.) In January 2020, this Court

granted Defendants’ motion to dismiss, 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). On

June 15, 2021, the Fourth Circuit vacated the dismissal of Plaintiffs’ First Amendment claim

and remanded, holding that the Broadcast 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).4

Now pending are motions for summary judgment filed by both parties. (ECF Nos. 71,

72.) A hearing was held on November 3, 2022. Both motions are ripe for review.

STANDARD OF REVIEW

Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant

summary judgment if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact

is material if it ‘might affect the outcome of the suit under the governing law.’” Libertarian Party

of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986)). A genuine dispute over a material fact exists “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

When considering a motion for summary judgment, a judge’s function is limited to

determining whether sufficient evidence exists on a claimed factual dispute to warrant

submission of the matter to a jury for resolution at trial. Id. at 249. Trial courts in the Fourth

Circuit have an “affirmative obligation . . . to prevent factually unsupported claims and

defenses from proceeding to trial.” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526

(4th Cir. 2003) (quoting Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993)).

In undertaking this inquiry, this Court must consider the facts and all reasonable

inferences “in the light most favorable to the nonmoving party.” Libertarian Party of Va., 718

Although the Fourth Circuit vacated the dismissal of Plaintiffs’ First Amendment claim, it

did not disturb this Court’s dismissal of Plaintiffs’ Fourteenth Amendment void-for-vagueness claim.

See id. at 967 n.2. Accordingly, Plaintiffs’ vagueness claim is not before this Court on remand.

F.3d at 312; see also Scott v. Harris, 550 U.S. 372, 378 (2007). This Court “must not weigh

evidence or make credibility determinations.” Foster v. Univ. of Md.-Eastern Shore, 787 F.3d 243,

248 (4th Cir. 2015) (citing Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007));

see also Jacobs v. N.C. Admin. Off. of the Courts, 780 F.3d 562, 569 (4th Cir. 2015) (explaining that

a trial court may not make credibility determinations at the summary judgment stage). Indeed,

it is the function of the factfinder to resolve factual disputes, including issues of witness

credibility. See Tolan v. Cotton, 134 S. Ct. 1861, 1866–68 (2014).

When both parties file motions for summary judgment, as here, this Court applies the

same standard of review to both motions, considering “‘each motion separately on its own

merits to determine whether either of the parties deserves judgment as a matter of law.’”

Defenders of Wildlife v. N.C. Dep’t of Transp., 762 F.3d 374, 392 (4th Cir. 2014) (quoting Bacon v.

City of Richmond, 475 F.3d 633, 638 (4th Cir. 2007)). “[B]y the filing of a motion [for summary

judgment,] a party concedes that no issue of fact exists under the theory he is advancing, but

he does not thereby so concede that no issues remain in the event his adversary’s theory is

adopted.” Brown v. Perez, 835 F.3d 1223, 1230 n.3 (10th Cir. 2016) (citation omitted); see also

Sherwood v. Washington Post, 871 F.2d 1144, 1148 n.4 (D.C. Cir. 1989) (“[N]either party waives

the right to a full trial on the merits by filing its own motion.”). “However, when cross-motions

for summary judgment demonstrate a basic agreement concerning what legal theories and

material facts are dispositive, they ‘may be probative of the non-existence of a factual dispute.”

Syncrude Canada Ltd. v. Highland Consulting Grp., Inc., 916 F. Supp. 2d 620, 624 (D. Md. 2013)

(quoting Shook v. United States, 713 F.2d 662, 665 (11th Cir. 1983)); Ge. State Conf. of NAACP

v. Fayette Cnty. Bd. of Comm’rs, 775 F.3d 1336, 1345 (11th Cir. 2015).

ANALYSIS

This case involves a facial First Amendment challenge to a portion of Section 1-201 of

the Criminal Procedure Article of the Maryland Code (the “Broadcast Ban”). The Fourth

Circuit has held that the Broadcast Ban “is properly assessed as a penal sanction for publishing

information released to the public in official court records” and “is subject to strict scrutiny.”

Soderberg v. Carrion, 999 F.3d 962, 964, 970 (4th Cir. 2021). Plaintiffs assert that § 1-201 cannot

survive this rigorous analysis. They seek a declaration that the Broadcast Ban violates the First

Amendment to the extent that it prohibits them from broadcasting “lawfully obtained audio

or video recordings of criminal proceedings that occurred in open court,” and that they cannot

be held in contempt for publishing official state recordings obtained under the Maryland Rules.

(Compl. 22–23.) Accordingly, Plaintiffs do not challenge the portion of § 1-201 that would

prohibit them from providing live coverage inside the courtroom—only the Ban’s “distinct

prohibition on the broadcasting of the official court recordings of state criminal proceedings.”

Soderberg, 999 F.3d at 969.

Plaintiffs bring a facial challenge to the Broadcast Ban. “The difference between a facial

challenge and an as-applied challenge lies in the scope of the constitutional inquiry.” Educ.

Media Co. at Va. Tech. v. Insley, 731 F.3d 291, 298 n.5 (4th Cir. 2013). To succeed in a typical

facial challenge, plaintiffs must demonstrate that “no set of circumstances exists under which

[the challenged law] would be valid, or that the statute lacks any ‘plainly legitimate sweep.’”

United States v. Stevens, 559 U.S. 460, 472 (2010) (quoting United States v. Salerno, 481 U.S. 739,

745 (1987); Washington v. Glucksberg, 521 U.S. 702, 740 n.7 (1997)).5 In the First Amendment

context, “a plaintiff asserting a facial challenge may also prevail if he or she ‘show[s] that the

law is overbroad because a substantial number of its applications are unconstitutional, judged

in relation to the statute’s plainly legitimate sweep.’” Insley, 731 F.3d at 298 n.5 (quoting Stevens,

559 U.S. at 473) (alteration in original). This more permissive analysis reflects the concern that

an overbroad law risks curtailing protected speech and chilling the First Amendment freedom

of expression. See United States v. Williams, 553 U.S. 285, 292 (2008).6

The parties litigate the Broadcast Ban under both prongs of strict scrutiny and contest

the appropriate First Amendment principles to apply. The State argues that this case implicates

Supreme Court authority “involving electronic media coverage in the courtroom,” and that

the Broadcast Ban is carefully crafted to provide the broadest possible access to criminal trials

while preserving the integrity of the judicial process and protecting witnesses from harm.

(Defs.’ Mem. Supp. 4; Defs.’ Repl. 2, ECF No. 74.) Plaintiffs contend that this Court should

proceed under First Amendment authority governing laws that sanction “the publication of

lawfully obtained, truthful information,” and that the Broadcast Ban is not narrowly tailored

Plaintiffs argue that the “no set of circumstances” language cited in Stevens and Salerno is dicta

and should not be applied. See City of Chicago v. Morales, 527 U.S. 41, 55–56 n.22 (1999); see, e.g., Bruni v.

City of Pittsburgh, 824 F.3d 353, 363 (3d Cir. 2016) (emphasizing that strict scrutiny must be applied

“without trying to dream up whether or not there exists some hypothetical situation in which . . . the

statute might be valid”). As this Court proceeds under the more permissive overbreadth facial analysis

mandated by First Amendment caselaw, it is unnecessary to evaluate this argument.

Plaintiffs erroneously characterize overbreadth as a “less rigorous” alternative to the strict

scrutiny standard. (Pls.’ Repl. Supp. Summ. J. 4–5.) This characterization is incorrect. The overbreadth

analysis is a more permissive form of facial challenge, not a less rigorous strict scrutiny. See Stevens, 559 U.S.

at 472 (characterizing overbreadth as “a second type of facial challenge” (quoting Wash. State Grange v.

Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008))). Expressed differently, while most plaintiffs

asserting a facial challenge must show that there is “no set of circumstances” where the challenged

law is valid, First Amendment plaintiffs need only show that the law is invalid in a “substantial

number” of circumstances. The overbreadth doctrine helps the plaintiffs; it does not harm them.

to serve the state’s objectives. (Pls.’ Mem. Supp. 1; Pls.’ Repl. 1–2, ECF No. 73.) After careful

review of the parties’ arguments, this Court finds that the challenged portion of the Broadcast

Ban cannot survive strict scrutiny. Accordingly, the Broadcast Ban is facially unconstitutional,

and Plaintiffs are entitled to the declaration they request.7

First Amendment Framework

The First Amendment to the United States Constitution prohibits laws “abridging the

freedom of speech, or of the press.” U.S. Const. amend. I.8 These guarantees reflect a

“profound national commitment to the principle that debate on public issues should be

uninhibited, robust, and wide open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

Accordingly, “the States may not impose sanctions on the publication of truthful information

contained in official court records open to public inspection.” Cox Broad. Corp. v. Cohn, 420

U.S. 469, 495 (1975); accord Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103 (1979); Florida Star

v. B.J.F., 491 U.S. 524, 533 (1989). However, these freedoms are “subject to the maintenance

of absolute fairness in the judicial process,” and there is no “unlimited right of access to the

courtroom on the part of the broadcasting media.” Estes v. Texas, 381 U.S. 532, 539–40 (1965);

accord Chandler v. Florida, 449 U.S. 560, 581 (1981); Nixon v. Warner Comm’ns, 435 U.S. 589, 598

(1978); see also Estes, 381 U.S. at 589 (Harlan, J., concurring) (“Within the courthouse the only

relevant constitutional consideration is that the accused be accorded a fair trial.”).

In its Answer, the State raises affirmative defenses under the prudential standing doctrine

and the doctrine of waiver. (See Amended Answer 11–12, ECF No. 70.) The State has abandoned its

waiver argument. (Defs.’ Mem. Supp. 29 n.11.) Additionally, this Court already rejected the State’s

standing argument in its opinion addressing the State’s motion to dismiss, and that ruling was not

disturbed by the Fourth Circuit. See Soderberg, 999 F.3d at 967 n.2. Moreover, the State does not address

its prudential standing defense anywhere in its briefings, indicating that it has been abandoned.

The First Amendment has been incorporated against the states through the Due Process

Clause of the Fourteenth Amendment. New York Times Co. v. Sullivan, 376 U.S. 254, 277 (1964).

As a threshold matter, the parties dispute which First Amendment principles govern

the analysis of the Broadcast Ban. The State argues that the perils of online broadcasting call

for a “harmonization of the Estes v. Texas line of cases involving electronic media coverage in

the courtroom with the Cox Broadcasting line of cases upon which the Court of Appeals relied.”

(Defs.’ Mem. Supp. 3–4.) Plaintiffs aptly note that this Court should apply the “longstanding

Supreme Court precedent[] that the First and Fourteenth Amendments forbid the state from

punishing the publication of lawfully obtained, truthful information except where necessary

to further a state interest of the highest order.” (Pls.’ Mem. Supp. 1.) The Cox Broadcasting line

of cases address state efforts to punish the publication of “truthful information about a matter

of public significance”—precisely the circumstance at issue here. Daily Mail, 443 U.S. at 103.

Although Estes and Chandler recognize that broadcasting may harm the truth-seeking process

in some cases, they primarily address the prejudicial effects of live, in-court broadcasting. See

Estes, 381 U.S. at 589 (Harlan, J., concurring). The Supreme Court has never extended this

reasoning to validate laws that punish the publication of “information the state has released to

the public in official court records.” See Soderberg, 999 F.3d at 964.

A. Penal Sanctions for Publishing Information Released in Court Records

The First Amendment constrains the government’s authority to prohibit the press and

the public from publishing matters of public importance. “As a general matter, ‘state action to

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

Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (quoting Daily Mail, 443 U.S. at 102). In Smith v.

Daily Mail Publishing Co., the Supreme Court held that “if a [news organization] 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.” 443 U.S. at 103; see, e.g., Bartnicki, 532 U.S. at 528; Florida Star, 491 U.S.

at 533; Landmark Comm’ns, Inc. v. Virginia, 435 U.S. 829, 837–39 (1978); Okla. Publ’g Co. v. Okla.

Cnty. Dist. Ct., 430 U.S. 308, 310 (1977); Cox Broad. Corp. v. Cohn, 420 U.S. 469, 496 (1975). As

the Broadcast Ban “is properly assessed as a penal sanction for publishing information released

to the public in official court records,” it must be analyzed in accordance with these principles.

Soderberg, 999 F.3d at 964.

In Cox Broadcasting Corp. v. Cohn, the Supreme Court held that the First Amendment

precluded a lawsuit against a news organization for broadcasting the name of a rape victim

that a reporter had obtained from court records. 420 U.S. 469, 472–74 (1975). The plaintiff,

the father of the victim, brought an invasion of privacy action against a reporter who learned

the victim’s name after reviewing indictments which had been made publicly available in the

courtroom. Id. at 472. The reporter, who had taken notes during an open hearing and obtained

the indictments from a clerk of court during a recess, id. at 473 n.4, argued that the First

Amendment protected his reports, id. at 474. The trial court granted summary judgment to

the plaintiff, and the Georgia Supreme Court affirmed over the defendant’s First Amendment

objections, holding that a Georgia law which “ma[de] it a misdemeanor to publish or broadcast

the name or identity of a rape victim” was a “legitimate limitation on the right of freedom of

expression contained in the First Amendment.” Id. at 472, 475.

The Supreme Court reversed, emphasizing that imperative First Amendment interests

protect “accurate reports of judicial proceedings” in light of their critical importance to public

awareness and scrutiny of government conduct. Id. at 492, 495. The Court reasoned that “[t]he

commission of crime, prosecutions resulting from it, and judicial proceedings arising from the

prosecutions” are “without question events of legitimate concern to the public,” id. at 495,

and that press coverage of judicial proceedings “serves to guarantee the fairness of trials and

to bring to bear the beneficial effects of public scrutiny upon the administration of justice,”

id. at 492. In light of these policy considerations, the Court held:

[T]he First and Fourteenth Amendments command 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.

***

If 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. Their political institutions must weigh the interests in

privacy with the interests of the public to know and of the press to publish.

Once true information is disclosed in public court documents open to public

inspection, the press cannot be sanctioned for publishing it.

420 U.S. at 495–96. Accordingly, the State must protect sensitive information “by means

which avoid public documentation,” not by sanctioning the press for publishing it. Id. at 496.

As the defendant reporter had “based his televised report upon notes taken during the court

proceedings and obtained the name of the victim from the indictments,” the First Amendment

protected his reports from liability. Id. at 496–97.

Fourteen years later, in The Florida Star v. B.J.F., the Supreme Court held that the same

principles precluded a lawsuit against a newspaper for publishing the full name of a rape victim

in violation of Florida law. 491 U.S. 524, 526 (1989). In Florida Star, a police department

prepared a report detailing a robbery and sexual assault and left this report in its press room.

Id. at 527. When a reporter for the Florida Star transcribed the report and released a short

article about the crime that featured the victim’s name, the victim filed a negligence action

based on a Florida statute that proscribed printing, publishing, or broadcasting names of sexual

offense victims “in any instrument of mass communication.” Id. at 526, 528. The trial court

rejected the paper’s First Amendment defense, concluding that the law was narrowly tailored

to a compelling state interest, “as it applied only to a narrow set of ‘rather sensitive . . . criminal

offenses.’” Id. at 528. A jury awarded damages, and a state appellate court affirmed. Id. at 529.

The Supreme Court again reversed, applying the same principle, and emphasizing that

“where a newspaper publishes truthful information which it has lawfully obtained, punishment

may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest

order.” 491 U.S. at 541.9 The Court grounded this rule in “the overarching ‘public interest,

secured by the Constitution, in the dissemination of truth,’” as supported by three underlying

considerations. Id. at 534 (quoting Cox Broadcasting, 420 U.S. at 491). First, the Court observed

that the government “retains ample means of safeguarding significant interests” that may be

endangered by the widespread publication of information within its control. Id. Specifically:

To the extent sensitive information is in the government’s custody, it has [great]

power to forestall or mitigate the injury caused by its release. The government

may classify certain information, establish and enforce procedures ensuring its

redacted release, and extend a damages remedy against the government or its

officials where the government’s mishandling of sensitive information leads to

its dissemination. Where information is entrusted to the government, a less

drastic means than punishing truthful publication almost always exists for

guarding against the dissemination of private facts.

Id. Second, and relatedly, the Court observed that “punishing the press for its dissemination

of information which is already publicly available is relatively unlikely to advance the interests

As the Fourth Circuit has observed, “the [Florida Star] Court expressly avoided deciding whether

Florida’s asserted interest constituted ‘a state interest of the highest order’—resolving the case instead

solely on narrow-tailoring grounds.” Ostergren v. Cuccinelli, 615 F.3d 263, 275 n.10 (4th Cir. 2010) (citing

Daily Mail, 443 U.S. at 103).

in the service of which the State seeks to act.” Id. at 535. Third, and finally, the Court observed

the potential for “timidity and self-censorship” if media outlets are prohibited from publishing

truthful information contained in court records. Id. at 535–36.

These cases demonstrate that strong First Amendment interests protect the right of

the press to publish lawfully obtained, truthful material the state has released to the public—

and that laws punishing the press for doing so can rarely be upheld. As the Court emphasized

in Cox Broadcasting, public records of judicial proceedings serve imperative public interests, and

their dissemination “serves to guarantee the fairness of trials and to bring to bear the beneficial

effects of public scrutiny upon the administration of justice.” 420 U.S. at 492. Furthermore,

as the Court recognized in Florida Star, laws that punish the publication of those records are

more restrictive of First Amendment freedoms, and less effective at serving the state’s

interests, than laws that prevent the release of sensitive information in the first place. 491 U.S.

at 534–36. If the state wishes to protect sensitive information against the myriad dangers of

widespread publication in the digital age, it must do so “by means which avoid public

documentation or other exposure of private information”—not by sanctioning the publication

of material it has already chosen to release. Cox Broadcasting, 420 U.S. at 496.10

The Supreme Court has counselled that the conflict between privacy interests and the

First Amendment must be assessed “in a discrete factual context.” Florida Star, 491 U.S. at 534.

Following this logic, the State argues that Cox Broadcasting and its progeny are distinguishable,

as each addressed lawsuits against the media for publishing information that was inadvertently

While this rule is presented in stark terms, it is not absolute. The Supreme Court has declined

to hold that the publication of truthful information can never be constitutionally punished. Florida Star,

491 U.S. at 532.

released—and none evaluated the constitutionality of a statewide law such as the Broadcast

Ban, which restricts the publication of information the state has intentionally disclosed. (Defs.’

Mem. Supp. 2, 28–29.) See, e.g., Florida Star, 491 U.S. at 527 (lawsuit for publishing identity of

rape victim disclosed in discarded police report); Daily Mail, 443 U.S. at 100 (prosecution for

publishing identity of juvenile suspect obtained by monitoring police radio); Cox Broad., 435

U.S. at 496 (lawsuit for publishing materials given to reporter by clerk during court recess);

Okla. Publ’g, 430 U.S. at 310 (lawsuit for publishing information disclosed at closed juvenile

hearing). Thus, the State contends that applying these cases “would constitute an extension of

[their doctrine] not contemplated by the Supreme Court.” (Defs.’ Mem. Supp. 2.)

Even assuming this distinction is accurate,11 these cases are not limited to inadvertent

disclosures. In Cox Broadcasting and its progeny, the Court concluded that First Amendment

interests attached because the press had “lawfully obtain[ed] truthful information about a

matter of public significance”—not because that information had been inadvertently released.

Daily Mail, 443 U.S. at 103. Regardless of whether “the government itself provided or made

possible access to the information,” or the media “relied upon routine newspaper reporting

techniques” to obtain it, punishing the press for reporting truthful information is rarely

permissible. Id. The fact that disclosure was accidental in some of these cases only underscores

the strength of the First Amendment interests the Supreme Court has identified. See Ostergren

Not all of these cases featured information that was obtained inadvertently, and at least one

addressed a statewide publication ban with accompanying criminal sanctions. In Cox Broadcasting, the

defendant-reporter obtained the identity of the victim from documents that were readily provided by

court officials upon request. 435 U.S. at 472 n.3 (“[N]o attempt was made by the clerk or anyone else

to withhold the name and identity of the victim . . . and the said indictments were available for public

inspection upon request.”). Additionally, in Florida Star, the plaintiff’s negligence action was predicated

on a statute that barred the press from publishing the identity of a rape victim “in any instrument of

mass communication,” with criminal penalties for noncompliance. 491 U.S. at 526 & n.1.

v. Cuccinelli, 615 F.3d 263, 280 (4th Cir. 2010) (“Even where disclosure to the press was

accidental, Florida Star indicates that the press cannot be prevented from publishing the private

information.”); see, e.g., Bartnicki, 532 U.S. at 528, 530 (holding that press could not be punished

for publishing information that it lawfully obtained from a “non-law-abiding third party,” who

had unlawfully intercepted it in violation of a federal wiretap statute).

B. Regulation of Live Broadcasts in the Courtroom

In applying Cox Broadcasting, the State notes that “the right of the press and the public

to court access stops at the courthouse door,” and argues that this Court should apply Supreme

Court precedent considering the dangers of “electronic media coverage in the courtroom.”

(Defs.’ Mem. Supp. 4, 22.) It is well established that “the right to attend criminal trials is

implicit in the guarantees of the First Amendment.” Richmond Newspapers, Inc. v. Virginia, 448

U.S. 555, 580 (1980) (footnote omitted); accord Press-Ent. Co. v. Superior Ct., 478 U.S. 1, 13

(1986); Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 610 (1982); Nixon v. Warner Comm’ns,

Inc., 435 U.S. 589, 598, 610 (1978). Nevertheless, “[a]lthough the right of access to criminal

trials is of a constitutional stature, it is not absolute,” Globe Newspaper, 457 U.S. at 606–08, and

“must be balanced against other compelling interests protected by the Constitution, such as

the right of the accused to a fair trial,” In re Knight Pub. Co., 743 F.2d 231, 233 (4th Cir. 1984)

(citing Press-Enterprise Co., 487 U.S. at 511). Among other limitations, the Supreme Court has

emphasized that there is no “unlimited right of access to the courtroom on the part of the

broadcasting media.” Estes v. Texas, 381 U.S. 532, 539–40 (1965).

In Estes v. Texas, a criminal defendant who had been convicted of swindling argued that

a Texas court deprived him of his due process rights by televising and broadcasting his trial.

381 U.S. 532, 534–35 (1965). The pretrial hearings and portions of the trial had been broadcast

live, and the presence of the media in the courtroom had been highly disruptive. Id. at 536.

When the defendant appealed his conviction on due process grounds, the Court rejected the

state’s argument that “the freedoms granted in the First Amendment extend a right to the

news media to televise from the courtroom,” id. at 539; accord id. at 588 (Harlan, J., concurring)

(“No constitutional provision guarantees a right to televise trials.”). The Court cautioned that

“[t]elevision in its present state and by its very nature[] reaches into a variety of areas in which

it may cause prejudice to an accused,” and emphasized that “[w]hile maximum freedom must

be allowed the press in carrying on [its] important function in a democratic society its exercise

must necessarily be subject to the maintenance of absolute fairness in the judicial process.” Id.

at 539; accord id. at 573 (Warren, C.J., concurring) (“There would be a real threat to the integrity

of the trial process if the television industry and trial judges were allowed to become partners

in the staging of criminal proceedings.”) Applying this principle, and noting the disruptions

the press had caused,12 the Court held that the presence of the media and its coverage of the

trial had violated the defendant’s due process rights. Id. at 551.

These disruptions were substantial. As the Supreme Court recounted:

at least 12 cameramen were engaged in the courtroom throughout the hearing taking

motion and still pictures and televising the proceedings. Cables and wires were snaked

across the courtroom floor, three microphones were on the judge's bench and others

were beamed at the jury box and the counsel table. . . . The hearing was televised live

and repeated on tape in the same evening, reaching approximately 100,000 viewers. In

addition, the courtroom was a mass of wires, television cameras, microphones and

photographers. The petitioner, the panel of prospective jurors, who were sworn the

second day, the witnesses and the lawyers were all exposed to this untoward situation.

Id. at 536, 550–51. Moreover, although the structure of the courtroom was altered by the time of trial

to reduce disruption, substantial portions of the trial were televised—some in the entirety, others with

limited audio or video. Id. at 551. Trial recordings were also broadcast on the evening news following

Two decades later, in Chandler v. Florida, the Supreme Court held that “Estes is not to

be read as announcing a constitutional rule barring still photographic, radio, and television

coverage in all cases and under all circumstances.” 449 U.S. 560, 573 (1981). In 1977, the

Supreme Court of Florida established a 1-year experimental program allowing electronic media

to cover all judicial proceedings in the state. Id. at 564–65. Thereafter, a group of defendants

convicted of offenses related to a burglary argued that the presence of a television camera

during their trial violated their due process rights, and requested “a constitutional rule that all

photographic or broadcast coverage of criminal trials is inherently a denial of due process.”

Id. at 570, 574. The Court declined to pronounce this rule, observing that “no one has been

able to present empirical data sufficient to establish that the mere presence of the broadcast

media inherently has an adverse effect on [the trial] process.” Id. at 578–79. Accordingly, “[t]o

demonstrate prejudice in a specific case a defendant must show something more than juror

awareness that the trial is such as to attract the attention of broadcasters.” Id. at 581. As the

defendants could not show “that any participant in [their] case was affected by the presence

of cameras,” or that “[their] trial was compromised by television coverage, as was the case in

Estes,” their due process claim was unavailing. Id. at 581–82.

In its briefings and at the summary judgment hearing, the State urged this Court to

analogize Estes and Chandler, asserting that these cases demonstrate the inherent risks created

by broadcast media, and that the Broadcast Ban is necessary to guard against these dangers.

(Defs.’ Mem. Supp. 4, 17–20.) Both cases recognize that broadcast coverage of a trial “may

each day of proceedings, with reporters commenting in the foreground with excerpts of testimony

and editorial remarks. Id. As a result of this extended coverage, four jurors had seen portions of the

broadcasts, and “the trial judge was himself harassed.” Id. at 551.

adversely affect the conduct of the participants and the fairness of the trial, yet leave no

evidence of how the conduct or the trial’s fairness was affected.” Chandler, 449 U.S. at 577;

Estes, 381 U.S. at 544 (“Television . . . by its very nature, reaches into a variety of area in which

it may cause prejudice to an accused.”). Referencing these decisions and embracing their

reasoning, the appellate courts have universally upheld laws restricting live broadcasts of

criminal proceedings. See, e.g., United States v. Kerley, 753 F.2d 617, 621 (7th Cir. 1985);

Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 21–22 (2d Cir. 1984); United States v.

Hastings, 695 F.2d 1278, 1281 (11th Cir. 1983); United States v. Edwards, 785 F.2d 1293, 1295

(5th Cir. 1986) (“The First Amendment does not guarantee a positive right to televise or

broadcast criminal trials.”).

However, Plaintiffs do not challenge Maryland’s ban on live coverage of criminal trials.

Plaintiffs acknowledge that they do not have a constitutional right to bring cameras into the

courtroom, and the requested declaration would not affect the portion of the Broadcast Ban

that makes it unlawful to do so. (Pls.’ Repl. 7, 16.) As the Fourth Circuit observed in its opinion

remanding this case, Plaintiffs seek only a declaration that they may not be held in contempt

of court for publishing recordings that the State has released to the public in accordance with

the Maryland Rules. Soderberg, 999 F.3d at 969. Justice Harlan, casting the deciding vote in

Estes, observed that other forms of press coverage do not implicate the same concerns as live

broadcasting of proceedings from inside the courthouse:

The rights to print and speak, over television and elsewhere, do not embody an

independent right to bring the mechanical facilities of the broadcasting and

printing industries into the courtroom. Once beyond the confines of the

courthouse, a news-gathering agency may publicize, within wide limits, what its

representatives have heard and seen in the courtroom. But the line is drawn at

the courthouse door; . . . Within the courthouse the only relevant constitutional

consideration is that the accused be accorded a fair trial. If the presence of

television substantially detracts from that goal, due process requires that its use

be forbidden.

Estes, 381 U.S. at 589 (Harlan, J., concurring); Nixon, 435 U.S. at 609 (adopting this language).13

Accordingly, the State’s reliance on Estes and Chandler is unavailing. These cases do not affect

the strict scrutiny mandated by the Fourth Circuit and have little bearing on the declaratory

judgment Plaintiffs request.14 Regardless of the outcome of this case, Maryland’s ban on the

live broadcasting of criminal trials will remain in effect.

II.

Strict Scrutiny

This Court now turns to the strict scrutiny required by the Cox Broadcasting and Daily

Mail line of cases and mandated by the Fourth Circuit in its opinion remanding this case. As

the Supreme Court held in Cox Broadcasting, and as described above, “the First and Fourteenth

Amendments command 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.” 420 U.S. at 496. Once the media “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.” Daily Mail, 443

U.S. at 103; see, e.g., Bartnicki, 532 U.S. at 528; Florida Star, 491 U.S. at 533; Landmark Comm’ns,

The Supreme Court has observed that Justice Harlan’s concurrence in Estes is critical to the

Court’s holding. Chandler, 449 U.S. at 573 (“Justice Harlan’s opinion, upon which the constitutional

holding of Estes turns, must be read as defining the scope of that holding.”).

To the extent that these cases are relevant here, they do not support a categorical prohibition

on the distribution of official recordings of criminal proceedings, such as the Broadcast Ban. Chandler,

449 U.S. at 578–81 (“To demonstrate prejudice in a specific case a defendant must show something

more than juror awareness that the trial is such as to attract the attention of broadcasters.”). At most,

they stand for case-by-case restrictions on broadcast coverage in cases where the risk of prejudice is

apparent, as was the situation in Estes. Cf. id. at 575 (“[T]he risk of [juror] prejudice does not warrant

an absolute constitutional ban on all broadcast coverage.”).

Inc., 435 U.S. at 837–39; Oklahoma Publishing, 430 U.S. at 310; Cox Broadcasting, 420 U.S. at 496.

As the Broadcast 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, and must be

“narrowly tailored to a state interest of the highest order” to survive constitutional muster.

Soderberg, 999 F.3d at 964.

The State bears a high burden to sustain the Broadcast Ban under this rigorous analysis.

Under the First Amendment, strict scrutiny “requires the Government to prove that the

restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed

v. Town of Gilbert, 576 U.S. 155, 171 (2015) (quoting Ariz. Free Enter. Club’s Freedom Club PAC

v. Bennett, 564 U.S. 721, 734 (2011)); accord Republican Party of Minn. v. White, 536 U.S. 765, 774–

75 (2002); Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 798 (1988). “To survive strict scrutiny .

. . the State must do more than assert a compelling state interest—it must demonstrate that its

law is necessary to serve the asserted interest.” Burson v. Freeman, 504 U.S. 191, 199 (1992).

“With respect to narrow tailoring, [courts] require the government to prove that no ‘less

restrictive alternative’ would serve its purpose.” Central Radio Co. Inc. v. City of Norfolk, 811 F.3d

625, 633 (4th Cir. 2016) (quoting United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813

(2000)). “‘[I]t is the rare case’ in which a State demonstrates that a speech restriction is narrowly

tailored to serve a compelling interest.” Williams-Yulee v. Florida Bar, 575 U.S. 433, 444 (2015)

(quoting Burson, 504 U.S. at 211); accord Wash. Post. v. McManus, 944 F.3d 506, 520 (4th Cir.

2019) (“[S]trict scrutiny, in practice, is virtually impossible to satisfy.”).

Plaintiffs challenge the facial validity of the Broadcast Ban to the extent that it prohibits

members of the public from publishing recordings of criminal trials released by the State under

the Maryland Rules.15 The State argues that the Broadcast Ban is necessary to preserve the

integrity of criminal trials and to protect witnesses against intimidation and harassment.

Although these interests are compelling, the Broadcast Ban is not narrowly tailored to achieve

them. Any member of the public may obtain official trial recordings under the Maryland Rules.

Once they have, the Ban does little to protect witnesses, as it does not shield their identities

or the contents of their testimony. Cf. Florida Star, 491 U.S. at 534. (“[P]unishing the press for

its dissemination of information which is already publicly available is relatively unlikely to

advance the interests in the service of which the State seeks to act.”). It sweeps too broadly,

as it applies even when there are no serious risks that a subsequent broadcast would imperil

the safety of witnesses or the fairness of a trial. Less restrictive alternatives are already available,

as the Maryland Rules authorize judges to redact recordings on a case-by-case basis. Cf. Cox

Broad., 435 U.S. at 496 (“If 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.”). Accordingly, the challenged portion of the Broadcast Ban is facially

unconstitutional, and Plaintiffs are entitled to summary judgment.

A. Compelling State Interests

Under the first prong of the Daily Mail strict scrutiny analysis, the State bears the

burden to demonstrate that the Broadcast Ban advances a “state interest of the highest order.”

By its terms, Plaintiffs’ requested declaration applies only to lawfully obtained recordings of

criminal proceedings. (Compl. 22–23.) There is no serious question that these recordings constitute

“lawfully obtain[ed,] truthful information about a matter of public significance.” Daily Mail, 443 U.S.

at 103. As discussed throughout this opinion, the broadcast of information released by the state serves

substantial public interests in the operation of government and the transparency of the judicial process.

See Cox Broad., 420 U.S. at 495 (“Public records by their very nature are of interest to those concerned

with the administration of government, and a public benefit is performed by the reporting of the true

contents of those records by the media.”).

Soderberg, 999 F.3d at 968–69 (citing Daily Mail, 443 U.S. at 103). “In deciding what constitutes

a state interest of the highest order, courts are not bound by ‘the State’s view and its conduct,’”

and should consider “objective criteria.” Ostergren, 615 F.3d at 277. “The Supreme Court has

made clear that, when free speech values are at stake, states must supply rationales that are ‘far

stronger than mere speculation about serious harms.’” McManus, 944 F.3d at 522 (quoting

Bartnicki, 532 U.S. at 531). Expressed differently, “[t]he State must specifically identify an

‘actual problem’ in need of solving, and the curtailment of free speech must be actually

necessary to the solution.” Brown v. Ent. Merchants Ass’n, 564 U.S. 786, 799 (2011) (quoting

Playboy, 529 U.S. at 822–23; and citing R.A.V. v. City of St. Paul, 505 U.S. 377, 395 (1992)).

At the first prong of the strict scrutiny analysis, the State offers four justifications for

the Broadcast Ban:

(1) Ensuring that the criminal trial process is fair, efficient, and effective;

(2) Preventing the broadcast of altered recordings (“deepfakes”);

(3) Ensuring convictions by encouraging witness cooperation with the state;

(4) Protecting witnesses from threats, intimidation, and harassment.

(Pls.’ Mem. Supp. 16; see Amended Answer 11; Carrion’s Resp. to Pls.’ Interrog. No. 4, ECF

No. 71-11; Adams’ Resp. to Pls.’ Interrog. No. 4, ECF No. 12.) These may be characterized

as two compelling interests: (1) preserving the fairness and integrity of judicial proceedings,

particularly criminal trials; and (2) protecting witnesses, particularly those who cooperate

with the government, against intimidation, harassment, and violence.

There is no question that these are interests of the highest order. Decades of Supreme

Court caselaw demonstrates that the integrity of the court system is of paramount importance,

and that the right to a fair trial is “the most fundamental of all freedoms.” Estes, 381 U.S. at

540; accord id. at 589 (Harlan, J., concurring) (“Within the courthouse the only relevant

constitutional consideration is that the accused be accorded a fair trial.”); Nebraska Press Ass’n

v. Stuart, 427 U.S. 539, 551 (1976) (“A fair trial in a fair tribunal is a basic requirement of due

process.” (citation omitted)). Additionally, as this Court has previously observed, “since well

before the advent of broadcast media, witnesses who cooperate with the government have

risked intimidation and retaliation by a criminal defendant’s associates.” NPR v. Klavans, 560

F. Supp. 3d 916, 926 (D. Md. 2021).16 Those risks are “far stronger than mere speculation

about serious harms.” McManus, 944 F.3d at 522 (citation omitted). Rather, they are pressing

issues in Maryland. As State’s Attorney Anne Cole Leitess recounts:

The top challenge that prosecutors have is convincing victims and witnesses to

violent crimes to appear in court and testify. Witnesses fear retribution by

friends or family of defendants. Based on my experience, eyewitnesses and fact

witnesses are reluctant to provide even the most basic evidence to police, often

refuse to be interviewed about the crime, and regularly avoid coming to court

to testify. It has become so difficult to find cooperating witnesses that some

police agencies do not bother interviewing witnesses at a homicide scene until

they first gather video and forensic evidence and then work from there to

identify potential witnesses.

(Decl. of Anne Colt Leitess (“Leitess Decl”) ¶ 4, ECF No. 72-7.) Accordingly, it is beyond

question that the State of Maryland has compelling interests in protecting witnesses who

cooperate with criminal prosecutions and ensuring the fairness of criminal proceedings.

Whether the Broadcast Ban in fact serves these interests is a closer issue. As to fairness,

the State highlights Estes and Chandler to argue that the widespread broadcast of criminal trials

may have damaging effects on the truth-seeking process. (Defs.’ Mem. Supp. 18–19.) See Estes,

Although not directly applicable here, the Supreme Court has recognized that the State has

a “privilege to withhold from disclosure the identity of persons who furnish information of violations

of law to officers charged with enforcement of that law.” Rovario v. United States, 353 U.S. 53, 59 (1957).

This privilege is animated by “the furtherance and protection of the public interest in effective law

enforcement,” id., and aligns closely with the interest asserted by the State in this case.

381 U.S. at 550 (“[T]he mere fact that the trial is to be televised might render witnesses

reluctant to appear and thereby impede the trial as well as the discovery of the truth.”);

Chandler, 449 U.S. at 577 (“[E]lectronic coverage of a trial . . . may adversely affect the conduct

of the participants and the fairness of the trial, yet leave no evidence of how the conduct or

the trial’s fairness was affected.”). However, as detailed above, this line of cases addresses the

disruptions caused by media in the courtroom and the prejudicial effects of live broadcasts.17

Plaintiffs do not challenge § 1-201’s prohibition on live broadcasts—only the statue’s “distinct

prohibition on the broadcasting of the official court recordings of state criminal proceedings.”

Soderberg, 999 F.3d at 969. Coverage of judicial proceedings from beyond the courthouse walls

does not create the same fairness concerns as live broadcasts conducted inside the courtroom.

See Estes, 381 U.S. at 589 (Harlan, J., concurring).

Extending Estes and Chandler to support a universal ban on broadcasts of criminal trials

would require this Court to accept the proposition that expanding media coverage of criminal

trials endangers the fairness of those proceedings. However, it is firmly established that “[t]he

free press has been a mighty catalyst in awakening public interest in governmental affairs,” id.

at 550 (majority opinion), and that “[p]ublic scrutiny of a criminal trial enhances the quality

and safeguards the integrity of the factfinding process.” Globe Newspaper Co., 457 U.S. at 607;

accord Cox Broad., 420 U.S. at 492 (“[T]he function of the press serves to guarantee the fairness

As noted above, to the extent that these cases are relevant, they support only case-by-case

restrictions on broadcast coverage in circumstances where the risk of prejudice is apparent. Cf. id. at

575, 581 (“[T]he risk of [juror] prejudice does not warrant an absolute constitutional ban on all

broadcast coverage. . . . To demonstrate prejudice in a specific case a defendant must show something

more than juror awareness that the trial is such as to attract the attention of broadcasters.”). The State

offers no evidence that distributing the official recordings of trial proceedings will have a prejudicial

impact in all criminal cases.

of trials and to bring to bear the beneficial effects of public scrutiny upon the administration

of justice.”); Press-Ent. Co., 464 U.S. at 508 (“Openness . . . enhances both the basic fairness of

the criminal trial and the appearance of fairness so essential to public confidence in the

system.”); Landmark Comm’ns, 435 U.S. at 839 (“The press does not simply publish information

about trials but guards against the miscarriage of justice by subjecting the police, prosecutors,

and judicial processes to extensive public scrutiny and criticism.” (quoting Sheppard v. Maxwell,

384 U.S. 333, 350 (1966))). Although the Broadcast Ban does not close the courtroom doors,

these bedrock principles run counter to the idea that publishing recordings of criminal trials

will distort the factfinding process and undermine the integrity of the judicial system.

Accordingly, the challenged portion of the Broadcast Ban does not advance the State’s

compelling interest in the fairness and integrity of criminal trials. Plaintiffs seek a declaration

that they may not be held in contempt of court for publishing recordings that the State has

released to the public under the Maryland Rules—they do not assert a constitutional right to

cameras in the courtroom. Although the integrity of judicial proceedings is unequivocally a

“state interest of the highest order,” Daily Mail, 443 U.S. at 103, this form of press coverage

furthers “the basic fairness of the criminal trial” and “guards against the miscarriage of justice.”

Landmark Comm’ns, 435 U.S. at 839; Press-Ent. Co., 464 U.S. at 508. As this Court has previously

emphasized, openness and publicity are “preservative—not deleterious—of fairness.” Klavans,

560 F. Supp. 3d at 927.18

The State’s concern about “deepfakes” and other manipulations of trial recordings amounts

only to “mere speculation about serious harm.” McManus, 944 F.3d at 522 (quoting Bartnicki, 532 U.S.

at 531). The State fails to show that deepfakes are a tangible concern, as it does not offer even a single

example of trial recordings being manipulated in this manner in Maryland or in any other jurisdiction.

(Pls.’ Repl. 23.) See Ross v. Early, 746 F.3d 546, 556 (4th Cir. 2016) (requiring the state to “make some

The State has a stronger argument in favor of witness protection and cooperation. On

this issue, the State argues that the Broadcast Ban guards against the potential for the witness

intimidation if their participation in criminal trials might be “televised on the nightly news . . .

or disseminated worldwide via the internet.” (Defs.’ Mem. Supp. 18.) The State offers the

declarations of State’s Attorneys Anne Colt Leitess and Scott Shellenberger for the proposition

“that Maryland prosecutors already spend substantial precious time and resources attempting

to procure witness cooperation in criminal cases.” (Id. at 19 (citing Leitess Decl. ¶¶ 4–7; Decl.

of Scott Shellenberger (“Shellenberger Decl.”) ¶¶ 5–8, ECF No. 72-8).) Both prosecutors

attest that witnesses have expressed relief that their testimony will not be broadcast online,

and that allowing the press to publish recordings of criminal trials will “significantly reduce

the number of witnesses who are willing to testify in criminal matters.” (Shellenberger Decl. ¶

8; Leitess Decl. ¶¶ 9, 18 (opining that broadcasts will produce “a chilling effect on witness

cooperation”).) Additionally, Leitess offers grave examples of threats and violence against

witnesses who have testified in criminal cases. (Leitess Decl. ¶¶ 14–17.) The State argues that

these dangers would be aggravated if the Broadcast Ban was lifted, and images and voiceprints

of cooperating witnesses could be posted and shared online. (Defs.’ Mem. Supp. 18; see Leitess

Decl. ¶ 10 (“Permitting their recorded voices to be broadcast on radio, television or a podcast

evidentiary showing that the recited harms are real, not merely conjectural, and that the [law] alleviates

these harms in a direct and material way” (citations and alterations omitted)). In any case, this issue

may be more narrowly addressed by a law prohibiting misleading alterations of trial recordings. Cf.

Bartnicki, 532 U.S. at 529 (“The normal method of deterring unlawful conduct is to impose an

appropriate punishment on the person who engages in it.”). Moreover, as the Maryland Rules allow

anyone to request recordings, there is already a risk that malicious actors could engage in this conduct.

In such instances, § 1-201 makes it more difficult “to rebut manipulated recordings by disseminating

truthful, unaltered versions of the same proceeding.” (Pls.’ Repl. 24 (emphasis in original).)

won’t be any different than having a defendant’s friend, family member or gang associate also

obtain a copy of the hearing and play it over . . . social media.”).)

The dangers faced by cooperating witnesses are very real, and very compelling. In light

of these serious concerns, this Court concludes that the Broadcast Ban supports the State’s

compelling interest in protecting witnesses from harm. As noted above, witnesses have risked

retaliation, intimidation, and harassment “since well before the advent of broadcast media.”

Klavans, 560 F. Supp. 3d at 926. However, technology is evolving at a rapid pace, requiring

states and institutions to respond to new challenges that may jeopardize the judicial process.

In the age of the internet, when information posted online is made “available in perpetuity for

unlimited viewing, further dissemination, and easy manipulation,” Mirlis v. Greer, 952 F.3d 51,

56 (2d Cir. 2020), the Broadcast Ban slows the spread of that information, reducing the

exposure faced by witnesses who participate in criminal cases. Accordingly, this Court holds

that § 1-201 has at least a marginal impact on the State’s compelling interest in witness safety.

Whether the Ban is ultimately effective at serving this interest, and whether its needs can justify

its breadth, are questions properly addressed under the narrow tailoring analysis.

B. Narrow Tailoring

To satisfy the “narrow tailoring” prong of strict scrutiny, “a State must do more than

assert a compelling state interest—it must [also] demonstrate that its law is necessary to serve

the asserted interest.” Burson, 504 U.S. at 199. “A statute is narrowly tailored if it targets and

eliminates no more than the exact source of the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 487

U.S. 474, 485 (1988) (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,

808–10 (1984)). “With respect to narrow tailoring, [courts] require the government to prove

that no ‘less restrictive alternative’ would serve its purpose.” Central Radio, 811 F.3d at 633

(quoting Playboy, 529 U.S. at 813). Accordingly, “when [laws] affect First Amendment rights,

they must be pursued by means that are neither seriously underinclusive nor seriously

overinclusive.” Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore,

879 F.3d 101, 112 (4th Cir. 2018) (quoting Brown, 564 U.S. at 805) (alteration in original).

Although the State’s interests in preserving the integrity of criminal trials and protecting

witnesses are clearly compelling, the government has chosen to advance them by imposing “a

penal sanction for publishing information released to the public in official court records.”

Soderberg, 999 F.3d at 964. As the Fourth Circuit held in Ostergren v. Cuccinelli, the Cox Broadcasting

line of cases demonstrate that this is rarely a narrowly tailored solution:

Cox Broadcasting and its progeny indicate that punishing truthful publication of

private information will almost never be narrowly tailored to safeguard privacy

when the government itself released that information to the press. . . . Even

where disclosure to the press was accidental, Florida Star indicates that the press

cannot be prevented from publishing the private information.

615 F.3d at 280 (citations omitted); see also Florida Star, 491 U.S. at 534 (“Where information is

entrusted to the government, a less drastic means than punishing truthful publication almost

always exists for guarding against the dissemination of private facts.”). The same is true of the

Broadcast Ban. This Court concludes that the challenged portion of the Ban is both fatally

underinclusive and seriously overinclusive, and that less restrictive alternatives could serve the

State’s compelling interests in witness protection and trial fairness.

1. The Broadcast Ban is fatally underinclusive

The Broadcast Ban’s first shortcoming is its failure to meaningfully advance the State’s

interests. A challenged statute may be “fatally underinclusive if it ‘leav[es] appreciable damage

to [the government’s] interest unprohibited.’” Cent. Radio, 881 F.3d at 633 (quoting Reed, 135

S. Ct. at 2232) (alterations in original); accord Am. Ass’n of Pol. Consultants, Inc. v. FCC, 923 F.3d

159, 167 (4th Cir. 2019); Cahaly v. Larosa, 796 F.3d 399, 405 (4th Cir. 2015). This is because a

statute’s “[u]nderinclusiveness raises serious doubts about whether the government is in fact

pursuing the interest it invokes.” Brown, 564 U.S. at 802 (citing City of Ladue v. Gilleo, 512 U.S.

43, 51 (1994); Fla. Star, 491 U.S. at 540)). A challenged law “cannot be regarded as protecting

an interest of the highest order, and thus as justifying a restriction upon truthful speech, when

it leaves appreciable damage to that supposedly vital interest unprohibited.” White, 536 U.S. at

780 (quoting Fla. Star, 491 U.S. at 541–42 (Scalia, J., concurring in judgment)); see also Nat’l

Fed’n of the Blind v. F.T.C., 420 F.3d 331, 346 (4th Cir. 2005) (enumerating circumstances in

which “an underinclusive restriction of speech [may be] impermissible”).19

In Smith v. Daily Mail, the Supreme Court addressed penalties imposed under a West

Virginia law that made 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.” 443 U.S. 97, 98

(1979). Recognizing that the law sanctioned the publication of “lawfully obtained, truthful

information,” the Court synthesized the Cox Broadcasting cases and reasoned that the state

could not punish the press “absent a need to further a state interest of the highest order.” Id.

at 101–04. Although the State asserted that the law was necessary “to protect the anonymity

Underinclusive regulations may also be impermissible “where the law represents an attempt

by the government to give one side of a public debate an advantage over the other,” or “where the

regulation is so broad or narrow in scope that it ‘undermines the likelihood of a genuine governmental

interest.’” Nat’l Fed. of the Blind, 420 F.3d at 346 (citing City of Ladue, 512 U.S. at 51; then quoting F.C.C.

v. League of Women Voters of Cal., 468 U.S. 364, 396 (1984)). These categories are not at issue here. The

Broadcast Ban does not discriminate between viewpoints, and there is no serious doubt that the State’s

interests in protecting witness and preserving trial fairness are genuine.

of the juvenile offender,” the Court rejected this argument, observing that the challenged

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

from printing the names of youths charged in a juvenile proceeding.” Id. at 104–05.

Accordingly, “even assuming the statute served a state interest of the highest order, it does

not accomplish its stated purpose.” Id. at 105; accord Soderberg, 999 F.3d at 969 (observing that

the Daily Mail Court viewed “the limited nature of the ban” as “significant to the applicable

strict scrutiny analysis and fatal to the constitutionality of the statute”).

Likewise, in Washington Post v. McManus, the Fourth Circuit applied exacting scrutiny to

review a Maryland statute imposing disclosure and recordkeeping requirements on paid digital

advertisements in the wake of the 2016 election. 944 F.3d 506, 510–12 (4th Cir. 2019).20 To

defend the challenged statute, the State insisted that these requirements were necessary to

combat “pervasive attempts by foreign nationals to influence American elections by way of

the internet.” Id. at 511. While acknowledging that the integrity of elections was an important

state interest, the Fourth Circuit held that the law “burdens too much and furthers too little”

to survive exacting scrutiny. Id. at 523. The statute did “surprisingly little to further its chief

objective:” Where the law regulated paid advertising, “Russian influence [in the 2016 election]

Exacting scrutiny is a “more permissive framework” than strict scrutiny, requiring the state

to demonstrate “a ‘substantial relation’ between an ‘important’ government interest and ‘the

information required to be disclosed.’” Id. at 512, 520 (citing Buckley v. Valeo, 424 U.S. 1, 64–66 (1976)).

As the Fourth Circuit noted, “strict scrutiny, in practice, is virtually impossible to satisfy, while exacting

scrutiny is merely difficult.” Id. at 520. Accordingly, the form of narrow tailoring required by exacting

scrutiny does not require the state to employ “the least restrictive means” of achieving its objective.

McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 218 (2014) (plurality opinion) (citation omitted); Bd.

of Trs. of St. Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989) (requiring “a fit that is not necessarily perfect,

but reasonable”). As the law addressed in McManus could not satisfy this more permissive standard, it

would not survive strict scrutiny, which requires the government to show that the challenged statute

is the least restrictive means of achieving a compelling state interest. Central Radio, 881 F.3d at 663.

was achieved ‘primarily through unpaid posts’ on social media.” Id. at 521 (citation omitted).

As the State could not identify “a single foreign-sourced paid political ad that ran on a news

site, be it in 2016 or at any other time,” its law was not narrowly tailored to address the threat

of foreign interference. Id. at 521 (citation omitted). Moreover, the statute was overbroad, as

it regulated news outlets “[w]ithout direct evidence . . . of meddling on news sites,” while also

“fail[ing] to distinguish between platforms large and small.” Id. at 522.

Like the statutes at issue in Daily Mail and McManus, the challenged portion of the

Broadcast Ban “does not accomplish its stated purpose.” Daily Mail, 443 U.S. at 105. The State

insists that § 1-201 serves compelling interests in preserving the integrity of criminal trials and

protecting witnesses from intimidation, harassment, and violence. Although these dangers are

real, the statute does little to prevent them. The Maryland Rules permit “any person” to obtain

audio recordings of proceedings upon written request, Md. Rule 16-504(h)(1), and further

allow anyone to obtain a video recording with the approval of an Administrative Court Judge,

Md. Rule 16-504(j)(1)(J). Any member of the public, whether a journalist, an attorney, or a

concerned citizen, may walk into a courthouse and request a recording of a criminal trial. Their

ability to do so is regulated exclusively by the Maryland Rules—not by the Broadcast Ban. 21

Plaintiffs do not challenge the restrictions placed on video recordings under the Maryland

Rules, and this Court expresses no opinion regarding their constitutionality. Pursuant to Md. Rule 16504(j)(1), video recordings are available to the parties to a case, their attorneys, Bar Counsel, and select

judicial officials as a matter of right, and may be released to “any other person” with approval of the

County Administrative Judge. Md. Rule 16-504(j)(1)(J). Individuals who receive recordings under this

section may be held in contempt if they copy or transmit video recordings without court approval.

Md. Rule 16-504(j)(2). As this rule allows judges to make case-by-case determinations as to the release

of these recordings, sanctions for copying such recordings might be narrowly tailored to the State’s

interests in trial fairness and witness safety. Cf. Bartnicki, 532 U.S. at 529 (“The normal method of

deterring unlawful conduct is to impose an appropriate punishment on the person who engages in

it.”); Nixon, 435 U.S. at 609 (holding that the press had no right to make copies of the Nixon White

House tapes, “to which the public has never had physical access”). However, once a judge has released

The Broadcast Ban does nothing to stop motivated and aggrieved individuals, such as gang

members or a defendant’s friends and relatives, from viewing or obtaining these recordings,

or from requesting others to do so on their behalf.

Once someone has obtained a recording, the Broadcast Ban does nothing to prevent

them from disclosing the identities of trial participants. Although the Ban prohibits the release

of the recordings themselves, both parties acknowledge that it does not prohibit anyone from

publishing the “names, addresses, and photographs of witnesses and verbatim content of their

testimony,” or “from describing, transcribing, or reenacting any portion of a criminal trial.”

(Pls.’ Mem. Supp. 24–26; Defs.’ Mem. Supp. 8; see also Shellenberger Dep. 49:18–50:15, ECF

No. 71-14; Leitess Dep. 57:1–21, ECF No. 71-13.) Today, anyone who possesses an audio or

video recording obtained under the Maryland Rules may post the name and address of a

witnesses online, or share a complete transcript of their testimony on social media, without

violating the Broadcast Ban. Accordingly, the Broadcast Ban is no more effective at serving

the State’s compelling interests than the Florida law at issue in Daily Mail, which barred

“newspapers” from publishing the identities of juvenile offenders without imposing any

limitations on “the electronic media or any [other] form of publication.” 443 U.S. at 104–05.

Much like that law, § 1-201 restricts only one method of publication without shielding the

sensitive information that is the focus of the State’s concerns. At bottom, it “does very little

video recordings to the public and the press has lawfully obtained them, the same analysis applies, and

the Broadcast Ban cannot be used to sanction their distribution.

to materially advance witness protection when their identities are public record.” (Pls.’ Mem.

Supp. 25–26.)22

The State’s evidence demonstrates this problem. While both Leitess and Shellenberger

discuss the serious dangers that witnesses face, they fail to illustrate how the Broadcast Ban

forestalls those dangers in any meaningful way. Leitess offers “compelling examples of cases

involving real dangers to cooperating witnesses,” (Defs.’ Mem. Supp. 19), including instances

where witnesses were intimidated on the stand or threatened with death following their

testimony, (Leitess Decl. ¶¶ 11–16). She also recounts that “inmates, even in prison, keep track

of other criminal trials, know about other criminal defendants, and learn about witness

testimony by watching television and listening to the radio.” (Id. ¶ 14.) However, these

incidents occurred with the Broadcast Ban in place. As both prosecutors acknowledge,

“witnesses’ names and images” are used for intimidation, and the Broadcast Ban does not

prohibit their distribution. (Leitess Dep. 57:1–21; see also Shellenberger Dep. 49:3–50:15.)

Accordingly, just as a law regulating paid advertising does “surprisingly little” to prevent

foreign election interference achieved primarily through unpaid social media posts, McManus,

944 F.3d at 521, a law prohibiting the dissemination of trial recordings does little to prevent

witness intimidation when trials are open to the public, recordings are available to any person

The State argues that these limitations render the statute narrowly tailored, as the confluence

of the Maryland Rules and the Broadcast Ban “expands the public’s access to court proceedings while

providing narrowly tailored prevention of the particular harms posed by broadcasting: the widespread

dissemination of criminal trial participants’ voiceprints and video images ‘in perpetuity for unlimited

viewing, further dissemination, and easy manipulation.’” (Defs.’ Mem. Supp. 24 (quoting Mirlis, 952

F.3d at 56).) However, as the Fourth Circuit noted, the Daily Mail Court viewed “the limited nature of

the ban” at issue in that case as being “fatal to the constitutionality of the statute,” as it prevented the

law from accomplishing its stated purpose. 999 F.3d at 969. Here, too, the Broadcast Ban’s failure to

protect the identities of cooperating witnesses renders it ineffective as a measure promoting witness

safety. It is a mismatch to the interests that the State of Maryland asserts.

upon request, and witnesses’ identities are public record. “The State has not shown that the

ability to broadcast [official recordings], distinct from the ability to publish witnesses’ names

or testimony, performs any additional or distinct role in dissuading witnesses from testifying

or in putting them at risk.” (Pls.’ Mem. Supp. 26.)

As the Supreme Court noted in Florida Star, “punishing the press for its dissemination

of information which is already publicly available is relatively unlikely to advance the interests

in the service of which the State seeks to act.” Id. at 535. Such is the case here. None can deny

the risks faced by witnesses who testify in criminal trials, and none can deny the importance

of protecting them against intimidation, harassment, and violence. However, the Broadcast

Ban does too little in service of this goal to justify the burden it places on freedom of the press.

It does not prevent malicious actors from obtaining trial recordings, and it does not stop any

member of the public with access to those recordings from sharing witnesses’ identities,

addresses, images, and testimony online. As the Broadcast Ban “leaves appreciable damage to

[the government’s] interest unprohibited,” it is not narrowly tailored to achieve the State’s

goals. Cent. Radio Co., 811 F.3d at 633 (citation omitted).

2. The Broadcast Ban is unconstitutionally overinclusive

The Broadcast Ban also sweeps far too broadly, burdening freedoms of expression and

of the press in circumstances where it offers no meaningful benefit to the State. A regulation

is “unconstitutionally overinclusive if it ‘unnecessarily circumscrib[es] protected expression.’”

Cent. Radio, 881 F.3d at 633 (quoting White, 536 U.S. at 775) (alteration in original); accord FEC

v. Mass. Citizens for Life, Inc., 479 U.S. 238, 265 (1986) (reasoning that such a law “infring[es] on

speech that does not pose the danger that has prompted regulation”). This rule reflects the

requirement that a law may only survive strict scrutiny if it is the “least restrictive means” of

achieving the interest it serves. Sable Comm’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).

Accordingly, the law must “target[] and eliminate[] no more than the exact source of the ‘evil’

it seeks to remedy.” Frisby, 487 U.S. at 485 (citation omitted). “If a less restrictive alternative

would serve the Government’s purpose, the legislature must use that alternative.” Playboy, 529

U.S. at 813. “To do otherwise would be to restrict speech without an adequate justification, a

course the First Amendment does not permit.” Id.

The Broadcast Ban burdens far more expression than is necessary to achieve its goals.

It applies to all criminal trial proceedings, regardless of whether the government’s concerns

about witness protection and fairness are manifest in a given case. (Pls.’ Mem. Supp. 22.) The

Plaintiffs aptly summarize this concern in their briefings:

By its own terms, the Broadcast Ban applies to recordings from ‘any’ criminal

proceedings—regardless of when the proceeding occurred, who participated,

and what transpired. The statute applies equally to pending cases and cases that

ended years ago; to high-profile matters and obscure ones; to lengthy jury trials

with numerous witnesses and brief status conferences with no witnesses and no

evidence presented. The statute also applies equally to audio and video

recordings. In short, the statute draws no distinction between the types of

recordings whose dissemination might implicate Defendants’ stated interests

and those that surely will not.

(Id. at 22–23.) “Even if the Broadcast Ban were to serve a state interest in a particular case—

say, by convincing a reluctant witness to testify or reducing the chance a witness would be

harmed—it applies equally in cases where these issues do not arise.” (Id. at 23.)

Less restrictive laws could serve the State’s interests in witness protection and fairness.

By sanctioning the publication of official recordings, the State seeks to forestall the harm that

may result from the dissemination of sensitive information that the State itself has released.

The Cox Broadcasting line of cases hold that a more effective and less restrictive way to prevent

this harm is to avoid disclosing sensitive information in the first place. 420 U.S. at 495–96;

accord Florida Star, 491 U.S. 524 (reasoning that the state “may classify certain information,

establish and enforce procedures ensuring its redacted release, and extend a damages remedy

against the government” for inadvertent disclosures); Ostergren, 615 F.3d at 284 (“[P]unishing

truthful publication of private information [is] not narrowly tailored because the government

could have initially refused to disclose that information to the press.”). A rule authorizing

judges to redact the record on a case-by-case basis or to limit the dissemination of official

recordings in sensitive situations would be less restrictive than a blanket ban.23 Cf. Chandler,

449 U.S. at 582 (“[T]he risk of prejudice to particular defendants is ever present and must be

examine carefully as cases arise.”). But once the state has released sensitive information to the

public, the horse is out of the barn—punishing the press is neither the least restrictive means

of preserving the state’s interests nor a particularly effective means of doing so.

One such alternative is already available to the State: The Maryland Rules enable courts

to redact sensitive information from trial recordings on a case-by-case basis, allowing judges

to address public safety and fairness concerns as they arise. Specifically, Rule 16-504 directs

judges to place “appropriate safeguards” on any portion of a trial recording that “should and

lawfully may be shielded from public access and inspection.” Md. Rule 16-504(g). The court

The Maryland Judiciary is already considering amendments to Rule 16-504 that would limit

the circumstances in which recordings are released. Current proposals include limiting the prohibition

on broadcasts until a certain time after judgment becomes final in a criminal matter or limiting the

individuals who may receive a copy of a recording. (See Supplement to Record 41, ECF No. 78-1.)

Although not immediately dispositive, these discussions suggest that the State already recognizes the

availability of less restrictive alternatives.

is then required to redact shielded materials “from any copy of a recording made for a person.”

Md. Rule 16-504(h)(2). As Plaintiffs aptly note, “Maryland trial judges are well-positioned and

empowered to determine, based on the parties’ presentations, whether there are concerns

specific to a case that subsequent broadcast of a recording . . . would imperil a State interest.”

(Pls.’ Repl. 11.) Cf. United States v. Wecht, 537 F.3d 222, 239 (3d Cir. 2008) (holding that while

“in a given case, a risk of jury tampering or excessive media harassment may exist[,] . . . district

judges are well-positioned to address these risks on a case-by-case basis, and in such cases, to

make particularized findings on the record”). Redacting sensitive materials from the public

record is a less restrictive and more effective means of safeguarding witnesses than punishing

the press for publishing material the State has already released.

At the summary judgment hearing, the State argued that this rule may only be used to

redact private information such as Social Security Numbers, and that it does not apply to the

identities of witnesses or the content of their testimony. As an initial matter, Rule 16-504 does

not appear to include this limitation. But even if the State’s reading was correct, strict scrutiny

asks whether a less restrictive law could be enacted—not whether one is already on the books.

Playboy, 529 U.S. at 813 (“If a less restrictive alternative would serve the Government’s

purpose, the legislature must use that alternative.”). Even if Rule 16-504 does not authorize

the State to shield witnesses who fear harassment and intimidation, or to redact their testimony

from the recordings released to the public under the Maryland Rules, there is no reason why

the legislature could not craft such a provision.24

Notably, many states that grant public access to trial recordings allow judges to restrict access

when the distribution of those recordings would undermine the fairness of a trial or endanger its

participants. See, e.g., N.D. Sup. Ct. Admin. R. 40 (authorizing judge to withhold recordings if judge

The State fails to show that anything more is necessary. First, the State claims that “[a]

case-by-case approach . . . will not prevent the inevitable chilling effect on witness cooperation

that will occur if the broadcasting of audio and/or video recordings becomes routine.” (Defs.’

Repl. 7.) However, it is the State’s burden to satisfy strict scrutiny, Reed, 576 U.S. at 171, and

the State offers little to no evidence that this chilling effect would occur, much less that it is

“inevitable.” Shellenberger has never mentioned the Ban to potential witnesses, Leitess has

not spoken to any witness who would not have testified if the Ban was not in place, and neither

could point to a single case where Maryland’s recording system has led to witness intimidation.

(See Shellenberger Dep. 43:17–20, 45:9–13, 52:9–11; Leitess Dep. 83:6–17, 94:2–10, 97:14–18,

111:15–21.) Moreover, the State offers no evidence that the Broadcast Ban has actually

incentivized cooperation or curbed witness intimidation, or that other jurisdictions that allow

broadcasting have seen lower rates of cooperation or higher rates of harassment, retaliation,

and violence. (Pls.’ Mem. Supp. 21.)

At most, Leitess and Shellenberger assert that witnesses fear public exposure, and

would be deterred from testifying if their testimony could be recorded and broadcast online.

(See Shellenberger Dep. 49:3–17 (recounting that witnesses are “scared to death when there’s

. . . people in a courtroom” and that they would be “petrified” if “their name, picture, likeness,

[and] story” was going to be on the news); Leitess Dep. 83:16–17 (recounting that witnesses

concludes that the recording “would materially interfere with a party’s right to fair trial” or “a witness

or party has objected and shown good cause”); Vt. R. Civ. P. 79.2(e)(3) (permitting judge to restrict

or prohibit “the recording or transmitting of all or any part of a proceeding” after considering several

non-exclusive factors that include “the impact of recording or transmitting on the rights of the parties

to a fair trial” and “the likelihood that physical, emotional, economic, or proprietary injury may be

caused to a witness, a party, the alleged victim, or other person or entity”). These laws exemplify less

restrictive alternatives to Maryland’s Broadcast Ban, which proscribes the release of official recordings

of criminal proceedings in all circumstances.

have found it “reassuring” that their testimony “is not going to be on TV or the like”).)

However, many of these risks exist with the Broadcast Ban in place. (See Leitess Dep. 57:1-21

(acknowledging that “witnesses’ names and images” are already used for retaliation, and that

the Ban does not prohibit their publication).) More fundamentally, if a witness’s reluctance to

testify and fear of exposure is sufficient to sustain the Broadcast Ban, virtually any restriction

on trial publicity could survive strict scrutiny by the same reasoning. Cf. Ashcroft v. ACLU, 542

U.S. 656, 666 (2004). Restrictions on newspaper coverage of criminal trials could be upheld

by the prospect that witnesses will fear retaliation and decline to cooperate once their name,

likeness, and testimony are released in print. This is particularly true in the age of the internet,

where news articles, no less than audio or video broadcasts, are made “available in perpetuity

for unlimited viewing, further dissemination, and easy manipulation.” Mirlis, 952 F.3d at 56.

Such a result would be anathema to the First Amendment.

Compounding these concerns, the Fourth Circuit has held that “the burden of narrow

tailoring requires the [government] to prove that it actually tried other methods to address the

problem,” to “show [] that it seriously undertook to address the problem with less intrusive

tools readily available to it,” and to “demonstrate that [such] alternative measures would fail

to achieve the government’s interests.” Reynolds v. Middleton, 779 F.3d 222, 231 (4th Cir. 2015)

(quoting McCullen v. Coakley, 573 U.S. 464 (2014))) (emphasis omitted). The State does not

claim to have used Rule 16-504 or any other mechanism to redact sensitive information from

trial recordings on a case-by-case basis. Likewise, Leitess and Shellenberger acknowledge that

they could not recall a single case in which they have attempted to use this provision to shield

witness testimony. (See Shellenberger Dep. 73:11–17; Leitess Dep. 93:7–94:10, 120:21–121:9.)

To whatever extent recordings released under the Maryland Rules may jeopardize the State’s

interests, the State has not shown that the “readily available” mechanism provided by those

Rules is insufficient to achieve them. Reynolds, 779 F.3d at 231 (citation omitted).

Second, the State claims that it should not be required to provide empirical evidence

that the Broadcast Ban is necessary to prevent witness intimidation. (Defs.’ Repl. 3–5.) In so

arguing, the State cites Burson v. Freeman, in which the Supreme Court upheld a statute that

prohibited campaigning within 100 feet of a polling place, relying on a “widespread and timetested consensus” among states that such restricted zones are necessary to avoid voter

intimidation. 504 U.S. 191, 206, 211 (1992). The State argues that “the historical developments,

law review articles, and expert testimony” it offers demonstrates a similar consensus, (Defs.’

Repl. 6), and that the Broadcast Ban has been in place since 1981, limiting the State’s ability to

collect evidence of its effects without jeopardizing the critical interests it is trying to protect.

(Defs.’ Repl. 4–5.) Cf. Burson, 504 U.S. at 208 (“The fact that these laws have been in effect for

a long period of time . . . makes it difficult for the States to put on witnesses who can testify

as to what would happen without them.”).25

To support this argument, the State also cites Hollingsworth v. Perry, in which the Supreme

Court granted a preliminary injunction staying the implementation of a local rule that would have

permitted the media to conduct a live broadcast of a high-profile case addressing a same-sex marriage

ban. 558 U.S. 183, 192 (2010). However, the rule addressed in Hollingsworth would have “permit[ted]

the trial to be broadcast live via streaming audio and video to a number of federal courthouses around

the country.” Id. at 184. As discussed throughout, live broadcasting is not at issue in this case.

Moreover, the opponents of the broadcasting rule produced evidence that live broadcasts could have

a chilling effect on witnesses given the high-profile nature of the case. Id. at 713 (observing “71 news

articles detailing incidents of harassment related to people who supported [the same-sex marriage ban

at issue]”). Accordingly, Hollingsworth does not stand for the proposition that no evidence is required

to restrain broadcast coverage of judicial proceedings.

In making this argument, the State at once overestimates the national consensus and

underestimates its own ability to collect evidence of the Broadcast Ban’s effects. In Burson, the

Supreme Court observed that “all 50 states, together with numerous Western democracies”

had adopted laws prohibiting campaigning near polling places, evincing a broad consensus in

support of such regulations. 504 U.S. at 206. But there is no historical consensus in this case.

This case features a law that regulates rapidly evolving modern media, and courts around the

country permit electronic access to criminal proceedings in some manner. Plaintiffs reference

at least ten states that allow the public to obtain state-produced recordings of most criminal

proceedings, and fourteen that allow spectators to record trials themselves in certain conditions.

(Pls.’ Mem. Supp. 21–22 n.6–7.)26 The divergence in the states’ approach to this issue indicates

both that there is no “widespread and time-tested consensus” in favor of the Broadcast Ban,

Burson, 504 U.S. at 206, and that there are ample comparators that could be used to evaluate

whether the Ban is necessary to further the State’s compelling interests. As noted above, the

State offers no evidence that other jurisdictions without similar prohibitions have faced lower

rates of witness participation or higher rates of witness intimidation.

Third, and finally, the State claims that redacting information from public records, as

suggested by Cox Broadcasting and its progeny, would be more restrictive of First Amendment

rights than the Broadcast Ban. (Defs.’ Mem. Supp. 27.) This is incorrect. “The Supreme Court

Beyond Maryland, the Plaintiffs reference Alaska, Connecticut, Maine, Massachusetts, New

Hampshire, New Jersey, North Dakota, Utah, Vermont, and Wisconsin as states that allow members

of the public to obtain recordings of criminal proceedings upon request. (Public Access to Trial-Court

Recordings in Other States, ECF No. 71-15.) Many individual courts in other states do the same. (Id.)

Additionally, the following states allow members of the press and the public to record criminal trials

under certain conditions: Arizona, Connecticut, Florida, Massachusetts, Michigan, Mississippi, New

Hampshire, New Mexico, North Carolina, Ohio, Rhode Island, Tennessee, Utah, and Vermont. (See

Pls.’ Mem. Supp. 21 n.7.)

has ruled that the First Amendment does not ‘guarantee the public a right of access to

information generated or controlled by government.’” Fusaro v. Cogan, 930 F.3d 241, 249 (4th

Cir. 2019) (quoting Houchins v. KQED, Inc., 438 U.S. 1, 16 (1978) (Stewart, J., concurring in

judgment)); see also Nixon, 435 U.S. at 609 (“The First Amendment generally grants the press

no right to information about a trial superior to that of the general public.”). “Rather, the

decision to make government information available to the public is generally a ‘question of

policy’ for the ‘political branches.’” Fusaro, 930 F.3d at 249 (quoting Houchins, 438 U.S. at 12);

accord Cox Broad., 420 U.S. at 495 (“Their political institutions must weigh the interests in

privacy with the interests of the public to know and of the press to publish.”); Florida Star, 491

U.S. at 538 (“[W]here the government itself provides information to the media, it is most

appropriate to assume that the government had, but failed to utilize, far more limited means

of guarding against dissemination than the extreme step of punishing truthful speech.”).

Accordingly, the State of Maryland must exercise its judgment as a matter of policy to

determine whether to release information within its control. Once the State has disclosed

information to the public, the First Amendment protects the right of the press and the public

to publish it.

For the foregoing reasons, this Court concludes that the Broadcast Ban is not narrowly

tailored to achieve the State’s compelling interests. While witness protection and trial fairness

are “interest[s] of the highest order,” Daily Mail, 443 U.S. at 105, the Broadcast Ban “burdens

too much and furthers too little” to survive strict scrutiny under the First Amendment.

McManus, 944 F.3d at 523. It “does not accomplish its stated purpose,” as it does not prevent

the widespread dissemination of witnesses’ identities and the contents of their testimony, Daily

Mail, 443 U.S. at 105, and it “unnecessarily circumscribes protected expression,” as it restricts

publication in all criminal proceedings, regardless of whether the state’s compelling interests

are manifest, Cent. Radio, 881 F.3d at 633 (citation and alteration omitted). In light of the

Broadcast Ban’s expansive reach and narrow protections, this Court concludes that it is

unconstitutionally overbroad: “[A] substantial number of its applications are unconstitutional,

judged in relation to the statute’s plainly legitimate sweep.” Insley, 731 F.3d at 298 n.5.

Accordingly, Plaintiffs’ Motion for Summary Judgment (ECF No. 71) is hereby GRANTED,

and Defendants’ Motion for Summary Judgment (ECF No. 72) is hereby DENIED.

CONCLUSION

Witness protection and the integrity of criminal trials are interests of the highest order,

but the State must achieve these objectives through means consistent with the Constitution.

The State remains free to limit broadcasting from the courtroom, and to regulate the release

of recordings under the Maryland Rules. See Chandler, 449 U.S. at 577; Estes, 381 U.S. at 544.

However, the Supreme Court has held that states may rarely, if ever, sanction the publication

of lawfully obtained, truthful material that the government has disclosed in official court

records. See Cox Broadcasting, 420 U.S. at 496; Daily Mail, 443 U.S. at 103; Florida Star, 491 U.S.

at 533. The Broadcast Ban, Md. Code Ann., Crim. Proc. § 1-201, “burdens too much and

furthers too little” to survive strict scrutiny under this framework. McManus, 944 F.3d at 523.

Accordingly, Plaintiffs’ Motion for Summary Judgment (ECF No. 71) is hereby GRANTED,

and Defendants’ Motion for Summary Judgment (ECF No. 72) is hereby DENIED.

A separate order follows.

Dated: December 9, 2022

___________/s/____________

Richard D. Bennett

United States Senior District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

BRANDON SODERBERG, et al.,

Plaintiffs,

Civil No. RDB-19-1559

HON. AUDREY J. S. CARRIÓN, et al., *

Defendants.

ORDER

For the reasons set forth in the accompanying memorandum opinion, it is this 9th day

of December, 2022, hereby ORDERED that:

1. Plaintiffs’ Motion for Summary Judgment (ECF No. 71) is GRANTED;

2. Defendants’ Motion for Summary Judgment (ECF No. 72) is DENIED;

3. Section 1-201 of the Criminal Procedure Article of the Maryland Code is declared

unconstitutional as applied to lawfully obtained audio or video recordings;

4. Plaintiffs may not be held in contempt (or otherwise subject to state sanction) for

broadcasting or distributing any lawfully obtained audio or video recordings of

criminal trial proceedings held in open court, including:

(a) posting such recordings online;

(b) including such recordings in any films;

(d) sharing such recordings over social media; and/or

(e) including such recordings on podcasts.

5. JUDGMENT IS ENTERED in favored of the Plaintiffs; and

6. The Clerk is directed to CLOSE this case.

Dated: December 9, 2022

___________/s/____________

Richard D. Bennett

United States Senior District Judge

EXHIBIT 2

RULE 16-504.1 OPTION A – no BROADCAST during pendency (with

alternatives)

MARYLAND RULES OF PROCEDURE

TITLE 16 – COURT ADMINISTRATION

CHAPTER 500 – RECORDING OF PROCEEDINGS

ADD New Rule 16-504.1, as follows:

RULE 15-504.1.

ACCESS TO ELECTRONIC RECORDING OF CIRCUIT COURT

PROCEEDINGS

(a)

Generally

(1) Request for Access

Except for proceedings closed pursuant to law, portions

of proceedings safeguarded pursuant to Rule 16-504 (g), as

otherwise provided in this Rule, or as ordered by the court, the

authorized custodian of an audio recording or audio-video

recording made pursuant to Rule 16-504, upon written request

from any person, shall:

(A) make a copy of the audio recording or, if practicable,

the audio portion of an audio-video recording, available to any

person and, unless waived by the court, upon payment of the

reasonable costs of making the copy; and

(B) permit the person to listen to the audio recording or,

if available, listen to and view the audio-video recording at a

time and place designated by the court, under the supervision of

the custodian or other designated court official or employee.

person listening to or listening to and viewing the recording

Rule 16-504.1 (option A)

For 9/8/22 R.C.

RULE 16-504.1 OPTION A – no BROADCAST during pendency (with

alternatives)

may not make a copy of it or have in his or her possession any

device that, by itself or in combination with any other device,

can make a copy. The custodian or other designated court

official or employee shall take reasonable steps to enforce this

prohibition.

Committee note: If space is limited and there are multiple

requests, the custodian may require several persons to listen to

or listen to and view the recording at the same time or

accommodate the requests in the order they were received.

(2) Redacted Recordings

Unless otherwise ordered by the County Admi

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