# STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

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## Record

- **Collection:** Court rules
- **Document type:** Court rule

## Text

STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE
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
1

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.

2

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

3

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.

4

A

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

5

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;
(C) the Circuit Administrative Judge having supervisory
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,
6

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.
7

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
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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
9

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.”

10

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).

11

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

12

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
13

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

14

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
15

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;
(C) the District Administrative Judge having supervisory
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,
16

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.
17

(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.
18

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.

19

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
20

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.

21

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;
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(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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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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(B) the County Administrative Judge;
(C) the Circuit Administrative Judge having supervisory
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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(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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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
(C) revocation of a consent to adoption or guardianship
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
register orders. See also Code, Criminal Procedure Article, §§
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,

*

v.

*

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

1

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.

2

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.
3

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

Maryland Rules Governing Broadcasts of Criminal Trials
The Maryland Code prohibits the public from recording or broadcasting criminal trials.

In 1980, the Court of Appeals of Maryland implemented an eighteen-month pilot program
authorizing judges to “experiment” with “extended media coverage of court proceedings.” See
7 Md. Reg. 2252–55 (Nov. 28, 1980) (ECF No. 72-3); see also Md. Rule 1209 (1983 Supp.)
(ECF No. 72-4) (mandating that extended coverage “be conducted so as to not interfere with
the right of any person to a fair and impartial trial[] and . . . the dignity and decorum which
must attend the proceedings”). This program was short-lived. In 1981, the Maryland General
Assembly enacted the Broadcast Ban, which prohibits the use of any “television, radio, and
4

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,

2

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.

5

“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

6

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).)

7

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

8

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

4

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.

9

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).
10

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,

11

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

5

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.
6
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.

12

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
I.

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.”).
7

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.
8
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).

13

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
14

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
15

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
16

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

9

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).

17

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

10

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.

18

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
11

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.

19

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.
20

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.

12

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

21

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.

22

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
23

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,
13

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.”).
14
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.”).

24

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
25

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.”
15

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.”).

26

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
27

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,

16

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.

28

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

17

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.

29

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

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

30

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).)

31

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 manipulatio

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A2272daac3cca838c. Public record. Not legal advice.