Soderberg v. Carrion

Amicus brief filed by the Reporters Committee for Freedom of the Press and 23 media organizations

Court: U.S. Court of Appeals for the Fourth Circuit

Date Filed: April 13, 2020

Update: On June 15, 2021, the U.S. Court of Appeals for the Fourth Circuit held that the district court erred in treating the Broadcast Ban as a content-neutral time, place and manner regulation subject to intermediate scrutiny, holding that it is instead subject to strict scrutiny pursuant to precedent governing restrictions of the broadcast of lawfully-obtained material. The Fourth Circuit vacated and remanded the case to the district court for application of strict scrutiny.

Background: A group of Maryland journalists and community organizations, who each possess recordings of criminal hearings and trials made by and given to them by the state court, filed a lawsuit challenging the constitutionality of the “Broadcast Ban,” a Maryland rule of criminal procedure that prohibits the recording or dissemination of proceedings in court or before a grand jury.

Despite the fact that the recordings in question are routinely made available by Maryland courts themselves, the U.S. District Court for the District of Maryland ruled that the Broadcast Ban is a reasonable “time, place, and manner” restriction on speech, and dismissed the case. The plaintiffs have since appealed the decision to the U.S. Court of Appeals for the Fourth Circuit.

Our Position: The Fourth Circuit should reverse the district court’s decision and instead rule that the Broadcast Ban is an unconstitutional, content-based prohibition on speech, because it bars journalists from disseminating audio recordings from Maryland criminal proceedings.

• The Broadcast Ban hinders reporting on Maryland’s judicial system, depriving the public of unique, newsworthy information.
• The Broadcast Ban violates the public’s right of access to judicial records and impermissibly restricts the publication of lawfully-obtained information on a matter of public concern: state court proceedings and the justice system.
• Even if the Court construes the Broadcast Ban as a content-neutral regulation, medium-specific regulations on speech, like the Broadcast Ban, pose unique and significant constraints on news reporting and should be invalidated.

The First Amendment Clinic at the University of Virginia Law School represented the media coalition in this friend-of-the-court brief.

Quote: “[H]olding journalists in contempt for publishing information released by the court itself, publicly available to anyone who requests it, would contravene nearly 80 years of constitutional law. The First Amendment soundly prohibits the punishment of a journalist for the publication of lawfully obtained information on a matter of public concern.”

Related: In November 2019, the Reporters Committee and Fix the Court urged the Fourth Circuit to provide live-stream audio recordings of oral arguments in two cases concerning accusations that President Trump violated the “Emoluments Clause,” which prohibits executives from accepting gifts from foreign or domestic interests. The Court accepted the coalition’s request, and the hearing for both cases was live-streamed on C-SPAN on Dec. 12.