Nicholas Paul Somberg v. Karen D. Mcdonald, in her official capacity as Prosecutor of Oakland County, Michigan

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0202p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NICHOLAS PAUL SOMBERG,
Plaintiff-Appellant,
v.
KAREN D. MCDONALD, in her official capacity as
Prosecutor of Oakland County, Michigan,
Defendant-Appellee.
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No. 23-1872
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:20-cv-11917—Gershwin A. Drain, District Judge.
Decided and Filed: August 28, 2024
Before: BATCHELDER, THAPAR, and MATHIS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for
Appellant. Brooke E. Tucker, OAKLAND COUNTY CORPORATION COUNSEL, Pontiac,
Michigan, for Appellee. Andrew Geronimo, CASE WESTERN RESERVE UNIVERSITY,
Cleveland, Ohio, for Amicus Curiae.
THAPAR, J., delivered the opinion of the court in which BATCHELDER, J., joined.
MATHIS, J. (pp. 9–19), delivered a separate dissenting opinion.
_________________
OPINION
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THAPAR, Circuit Judge. A Michigan court rule forbids recording, photographing, or
livestreaming judicial proceedings. Nicholas Somberg claims that rule violates the First
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Amendment. Because Somberg lacks Article III standing to pursue his claim, we remand with
instructions to dismiss.
I.
Nicholas Somberg is an attorney in Michigan. In mid-2020, he was representing a
criminal defendant in the 52d Judicial District—the regional court covering Oakland County.
That court limits participants’ and spectators’ ability to use electronic devices during
proceedings. Specifically, “[n]o one . . . in a courtroom . . . may use a portable electronic device
to take photographs or for audio or video recording, broadcasting, or live streaming.” R. 32-5,
Pg. ID 451. A person may, however, seek permission to do so from the courtroom’s presiding
judge. Those who violate the Electronics Rule face contempt—the only punishment the Rule
allows.
As trial neared, Somberg and an assistant prosecutor met the judge in a virtual courtroom
for a conference. During the conference, and without the judge’s permission, Somberg used his
cell phone to take a picture of the Zoom meeting on his computer. He later posted the picture on
his Facebook account to his followers’ delight.
The Oakland County Prosecutor had a different reaction. Believing that Somberg’s
conduct violated Michigan court rules, she filed a motion asking the court to hold him in
contempt. Somberg moved to dismiss the motion based on various procedural infirmities. The
court granted Somberg’s motion without addressing the Electronics Rule’s merits. The
prosecutor’s office never renewed its request.
Somberg says he wants to continue recording online judicial proceedings in the 52d
District. And he’s afraid that the prosecutor’s office will again ask the court to hold him in
contempt. So he sued the prosecutor in her official capacity, seeking a declaration that the
Electronics Rule violates the First Amendment and an injunction barring her office from
enforcing the Rule against him. See 42 U.S.C. § 1983; Ex parte Young, 209 U.S. 123, 159–60
(1908). After dueling summary-judgment motions, the court granted the prosecutor’s and denied
Somberg’s, concluding that the Electronics Rule satisfied First Amendment scrutiny. Somberg
now appeals.

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II.
Our inquiry begins and ends with standing. Standing is a “bedrock constitutional
requirement” that applies “to all manner of important disputes.” United States v. Texas, 599 U.S.
670, 675 (2023). As the Supreme Court recently emphasized, federal courts do not operate as an
“open forum for citizens ‘to press general complaints about the way in which government goes
about its business.’” Food & Drug Admin. v. All. for Hippocratic Med., 144 S. Ct. 1540, 1554
(2024) (quoting Allen v. Wright, 468 U.S. 737, 760 (1984)). Standing doctrine thus requires an
individual to have a personal stake in a case’s outcome. Id. at 1554–55. It also sometimes
means that the federal courts “decide some contested legal questions later rather than sooner,” to
respect political processes. Id. at 1555.
To establish Article III standing, Somberg must show that (1) he faces a concrete injury,
(2) a causal relationship exists between that injury and the challenged conduct, and (3) the relief
he seeks would redress the injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
Because this case comes to us after a grant of summary judgment, Somberg must make that
showing with “specific facts” and can’t rest on “mere allegations.” Id. at 561.
Somberg brings a pre-enforcement challenge to the Electronics Rule. Ordinarily, a
litigant challenging a state law’s constitutionality must wait for the state to enforce that law
against him. Otherwise, he’d have no concrete injury to satisfy Article III’s standing
requirement. See Allen, 468 U.S. at 754–55. Then, during enforcement proceedings, he may
raise the Constitution as a defense. See Whole Woman’s Health v. Jackson, 595 U.S. 30, 49–50
(2021). But in certain cases “arguably affected with a constitutional interest,” he need not wait
on enforcement to challenge the state’s law. Susan B. Anthony List v. Driehaus, 573 U.S. 149,
159 (2014) (citation omitted). He may instead seek to restrain the government on the front end if
he faces an “imminent” and “credible threat” of injury. Id. (citations omitted).
A.
Somberg claims he faces an imminent and credible threat of injury in two ways. First,
Somberg fears contempt itself, which could expose him to a hefty fine and up to 93 days in jail.
See Mich. Comp. Laws § 600.1715. His appellate briefing reiterates this concern, noting that

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without relief from this court, the prosecutor “will simply renew her demand for imposition of
contempt.” Appellant Supp. Br. 4. Second, Somberg suggests that being subject to contempt
proceedings—even if he’s never actually held in contempt—is itself a constitutional injury.
No matter how he slices it, neither theory satisfies Article III because Somberg can’t
demonstrate causation and redressability. See All. for Hippocratic Med., 144 S. Ct. at 1555
(2024) (explaining that “causation and redressability” are often “flip sides of the same coin”
(citation omitted)). Somberg wants an injunction barring the prosecutor from seeking a contempt
sanction if he records another proceeding. But regardless of what the prosecutor might do,
courts have the authority to hold Somberg in contempt sua sponte by issuing a show cause
order.1 See Mich. Comp. Laws §§ 600.1701, 600.1711; Shindorf v. Shindorf, No. 355083, 2021
WL 5755137, at *7 (Mich. Ct. App. Dec. 2, 2021) (“[T]he trial court sua sponte issued a show-
cause order . . . .”). So even if we enjoined the prosecutor from initiating contempt proceedings,
nothing about that injunction would stop the court from holding Somberg in contempt after a
hearing. Mich. Comp. Laws § 600.1711.
In addition, a third party—not just the prosecutor—can refer Somberg for contempt
proceedings. See, e.g., DeGeorge v. Warheit, 741 N.W.2d 384, 387 (Mich. Ct. App. 2007) (per
curiam) (party to a contract in a suit for breach); In re Contempt of Henry, 765 N.W.2d 44, 49
(Mich. Ct. App. 2009) (per curiam) (court-appointed receiver directed to disburse child-support
funds); Gregory v. Gregory, No. 363988, 2024 WL 302048, at *3 (Mich. Ct. App. Jan. 25, 2024)
(per curiam) (ex-spouse in divorce proceeding). For example, in DeGeorge, the court explained
that “it is manifest that the Michigan Court Rules contemplate that a private party (and by
1Michigan’s law on criminal contempt is clear. When a party commits contempt in the immediate view
and presence of the court, the court may punish it summarily by fine, or imprisonment, or both. Mich. Comp. Laws
§ 600.1711(1). For contempt committed “other than in the immediate view and presence of the court,” the court
may “punish it by fine or imprisonment, or both, after proof of the facts charged has been made by affidavit or other
method and opportunity has been given to defend.” Mich. Comp. Laws § 600.1711(2). But even under this second
provision, a court can sua sponte issue a show-cause order requiring a party to show why they should not be held in
criminal contempt. See Shindorf v. Shindorf, No. 355083, 2021 WL 5755137, at *7 (Mich. Ct. App. Dec. 2, 2021).
So long as certain procedures are observed, the court can still sua sponte issue a finding of contempt. See id.; In re
Contempt of Auto Club Ins. Ass’n, 243 Mich. App. 697, 713–14 (2000). And, in any event, a court can appoint a
special prosecutor to prosecute a contempt charge. In re Contempt of Mitan, No. 222230, 2002 WL 31082190, at *9
(Mich. Ct. App. Sept. 17, 2002) (“We…hold that courts in Michigan also possess such inherent authority and the
concomitant power to appoint private counsel to prosecute criminal contempt actions.”).

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obvious extension that party’s attorney acting in a representative capacity) may initiate and
prosecute a motion to hold an opposing party in criminal contempt.” 741 N.W.2d at 391. At
bottom, the relevant actor here—the one capable of inflicting the injury Somberg fears—is the
court, not the prosecutor. In other words, the prosecutor isn’t the cause of Somberg’s asserted
future injury, and an injunction against the prosecutor wouldn’t redress that injury.
To be sure, Somberg would have a tough time enjoining the state court or its judges. See
Young, 209 U.S. at 163 (“[A]n injunction against a state court would be a violation of the whole
scheme of our government.”); Jackson, 595 U.S. at 39 (holding Young “does not normally permit
federal courts to issue injunctions against state-court judges or clerks”). But the practical
difficulties of pre-enforcement review aren’t an excuse to distort the boundaries of Article III.
See TransUnion, LLC v. Ramirez, 594 U.S. 413, 429–30 (2021) (quoting INS v. Chadha, 462
U.S. 919, 944 (1983)). And Somberg remains free to raise his First Amendment arguments as
defenses in contempt proceedings—if they ever happen—and on direct appellate review.
B.
Somberg argues that our precedent dictates a different result and points to two cases:
Speech First v. Schlissel, 939 F.3d 756 (6th Cir. 2019), and Kareem v. Cuyahoga Cnty. Bd. of
Elections, 95 F.4th 1019 (6th Cir. 2024). But those cases are distinguishable.
Start with Speech First. That case dealt with the University of Michigan’s “Bias
Response Team,” a university body that received individual students’ reports of allegedly
discriminatory behavior. 939 F.3d at 762. If the Team received a report, it could “invite” the
accused offender to a voluntary meeting. Id. But don’t let the friendly titles fool you: the Team
could investigate the offender and refer him to the police or the University’s Title IX office. Id.
at 762–63.
A group of students sued the university, arguing that the Team’s program violated the
First Amendment. The University claimed the students lacked standing since they hadn’t
suffered an injury. Why? The University asserted that the referrals to the Title IX office weren’t
punitive. We disagreed because while the referral itself wasn’t punitive, it began the “process[]
which could lead to” punishment. Id. at 765 (emphasis omitted). Additionally, the Response

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Team “appear[ed] to have punitive authority,” because an invitation to meet with it carried an
“implicit threat” of referral. Id. at 764–65 (emphasis omitted). Thus, we held that the students’
speech was objectively chilled and that they’d suffered an Article III injury. Id.
But Speech First doesn’t control here. That case hinged on the fact that the Response
Team was a constituent part of the University. And the University indisputably had the power to
punish students. That’s why the Response Team “appear[ed]” to have punitive authority.
Speech First, 939 F.3d at 764; see also id. at 765 (explaining that the Response Team is a
“mechanism” instituted “by the University”). If, as Speech First acknowledged, only the
University could punish students, then the Response Team’s intimidation derived from its
relationship with the University.
Somberg’s prosecutor, on the other hand, is not a subsidiary part of the court. She can’t
claim the mantle of judicial authority when dealing with opposing parties. Cf. Bloom v. State of
Ill., 391 U.S. 194, 207–09 (1968). In that respect, she’s no different from any other litigant
asking the court to hold Somberg in contempt. In Speech First terms, Somberg’s prosecutor is
less like a Response Team and more like an individual student. And nothing in Speech First
suggested that the plaintiffs could have enjoined a student from filing a complaint with the
Response Team.
Consider another example: Suppose a state passed a law abridging the freedom of
speech. Now suppose a citizen violated that law in his backyard. If the police credibly
threatened to arrest him for that conduct, he could likely enjoin them from enforcing the law
against him. But what if his neighbor—who happens to work for the state—threatens to call the
police? We wouldn’t grant an injunction against the neighbor because the neighbor—unlike the
police—can’t bring the coercive power of the state to bear on the citizen. Moreover, an
injunction running against the neighbor wouldn’t stop any other neighbor from calling the police.
Nor would it prevent police from noticing the righteous scofflaw’s disobedience on their own.
Such is the case here. It’s one thing to say that when a plaintiff sues the head of an entity
with punitive power (i.e., the University), that plaintiff can enjoin lower-level actors that kick-
start the punitive process (i.e., the Response Team). It’s another thing entirely to say that a

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plaintiff may enjoin independent third parties (i.e., the prosecutor) who report unlawful conduct
to the punishing entity (i.e., the court). Somberg seeks to do the latter. But Speech First didn’t
blaze that trail, and neither will we.
By the same token, a motion for contempt doesn’t carry the same “implicit threat” of
consequences as an invitation to meet from the Response Team. The Response Team had the
full power to make good on its “implicit threat” to refer students who declined to meet with
them. Speech First, 939 F.3d at 765; see also Fischer v. Thomas, 52 F.4th 303, 309 (6th Cir.
2022) (per curiam); Wolfson v. Brammer, 616 F.3d 1045, 1056 (9th Cir. 2010) (explaining that
plaintiff had standing to sue defendants because they “ha[d] the power to discipline” the
plaintiff). By contrast, to whatever extent a contempt motion carries an “implicit threat” of being
held in contempt, the prosecutor has no ability to follow through because she doesn’t wield the
contempt power. Any threat of contempt from the prosecutor thus doesn’t carry the same weight
as the threat of a referral from the Response Team. Cf. In re Contempt of Murphy, 7 N.W.3d 72,
78 (Mich. Ct. App. 2023).
To the extent Somberg and the dissent see Speech First as setting out a broader
proposition, they run directly into recent Supreme Court precedent foreclosing such a reading.
Just this year, in Murthy v. Missouri, the Court explained that a plaintiff lacked standing to
challenge the government’s actions because a third-party social media site, an “independent
actor,” exercised its “own judgment” when sanctioning the plaintiff. 144 S. Ct. 1972, 1988
(2024) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 562 (1992)). In doing so, the Court
made clear that when one party encourages a second actor to take some adverse action against a
plaintiff, the plaintiff doesn’t have standing if the second actor retains a degree of independent
judgment. To the degree Speech First held otherwise, that holding doesn’t survive Murthy.
What remains is a narrow reading: a plaintiff satisfies the standing requirement if the state actor
with power to inflict the penalty makes an implicit threat of imminent consequences. That didn’t
happen here.
Similarly, Kareem doesn’t save Somberg. 95 F.4th 1019 (6th Cir. 2024). There, a citizen
sought pre-enforcement review of Ohio’s “ballot selfie” laws. Id. at 1021. Those criminal laws
forbade voters from posting pictures of their completed ballots online, which the plaintiff wanted

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to do. Id. So she sued the Ohio Secretary of State, the county board of elections, and the county
prosecutor. Id. Kareem had standing to sue because each of the actors she sued, by Ohio law,
enforced the ballot selfie laws. See id. at 1027. Thus, each defendant played a direct role in
enforcing the election code. See id. Here, by contrast, the prosecutor in this case plays only a bit
part in a contempt proceeding. Indeed, the prosecutor’s role is no different from any other
counterparty requesting that the court hold Somberg in contempt.
The fact Somberg’s case centers on contempt is significant. Contempt is “peculiar within
our system.” Ronald Goldfarb, The Constitution and Contempt of Court, 61 Mich. L. Rev. 283,
283 (1962). It has both statutory as well as judge-made components and draws heavily from an
ancient practice rooted in English common law. Id. at 283–85. In the early Republic, courts had
power to punish contempt summarily. See Bloom, 391 U.S. at 203 (citing Anderson v. Dunn, 6
Wheat 204, 227–28 (1821)). While courts’ power to punish contempt has retreated from days
past, see id., contempt remains “sui generis” in that it is primarily the purview of courts, not
parties. Goldfarb, The Constitution and Contempt of Court, 61 Mich. L. Rev. at 283. This
distinction is material. If the Electronics Rule were a criminal statute enforceable by
prosecution, Somberg’s case would deserve the same treatment as Kareem. But contempt isn’t a
crime that hinges on the prosecution. Instead, it depends on the court.
* * *
In sum, Somberg has failed to demonstrate that he has standing. Thus, we vacate the
district court’s order granting summary judgment and remand with instructions to dismiss for
lack of jurisdiction.

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_________________
DISSENT
_________________
MATHIS, Circuit Judge, dissenting. Attorney Nicholas Somberg appeals the district
court’s grant of summary judgment to Oakland County, Michigan prosecutor Karen McDonald
on his First Amendment claim. Somberg contends that he has a First Amendment right to record
virtual judicial proceedings that take place in Oakland County’s 52nd Judicial District Court
despite that court’s policy barring such recording. McDonald tried, and failed, to have Somberg
held in contempt after he took a screenshot of a virtual hearing. Somberg then sued McDonald
to enjoin her from pursuing contempt proceedings against him. I would affirm the district
court’s decision.
The majority does not reach the merits because it holds that Somberg lacks standing. I
respectfully dissent.
I.
I begin with a bit of background to put this matter in the proper context. In the wake of
the COVID-19 pandemic that hit Michigan state courts in early 2020, the Michigan Supreme
Court issued Administrative Order 2020-6 to allow judges to conduct proceedings virtually. On
May 1, 2020, the 52nd Judicial District Court adopted the Electronics Rule. The Rule prohibits
anyone from using “a portable electronic device to take photographs or for audio or video
recording, broadcasting, or live streaming unless that use is specifically allowed by the judge
presiding over that courtroom through a written Order.” R. 1-4, PageID 31. A violation of the
Electronics Rule can lead to a person being held in contempt of court, which subjects such
person to 93 days’ imprisonment, up to a $7,500 fine, or both imprisonment and a fine.
On May 27, 2020, Somberg represented a client during a virtual judicial proceeding in
the 52nd Judicial District Court. Somberg took a photographic screenshot of the proceedings
and posted the screenshot on social media. The next day, McDonald’s predecessor purported to
initiate contempt proceedings by filing a motion to show cause. See Mich. Ct. R. 3.606(A).

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On July 10, the Michigan district court dismissed the contempt proceedings because the motion
to show cause was procedurally defective.
Four days after the dismissal of the contempt proceedings, Somberg sued the prosecutor.
After the United States District Court for the Eastern District of Michigan denied Somberg’s
motion for summary judgment, it granted McDonald’s motion for summary judgment.
McDonald did not argue that Somberg lacked standing before the district court. She also
did not challenge standing during her initial briefing before us. It was only after we asked the
parties to address the issue that McDonald first suggested that Somberg lacked standing.
II.
Article III of the U.S. Constitution requires plaintiffs to have standing before a federal
court has the power to adjudicate their case. See U.S. Const. art. III, § 2; Murthy v. Missouri,
144 S. Ct. 1972, 1985 (2024). This means that Somberg must show that: (1) he suffered an
injury in fact, (2) that the defendant caused the injury, and (3) that the court can redress the
injury with a decision in his favor. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). He has
done so for his First Amendment claim.
A.
To establish an injury in fact, Somberg must show that he suffered harm “that is concrete,
particularized, and actual or imminent.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021)
(citation omitted). This ensures he has a “personal stake in the outcome of the controversy.”
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quotation omitted).
True, McDonald has not yet successfully enforced a violation of the Electronics Rule
against Somberg. But “the Supreme Court has emphasized that a law need not be enforced
against a speaker to pose a threat to [his] speech.” Kareem v. Cuyahoga Cnty. Bd. of Elections,
95 F.4th 1019, 1022 (6th Cir. 2024) (citing Susan B. Anthony List, 573 U.S. at 158). If Somberg
shows the following, then he can establish “an imminent injury in fact under the First
Amendment”: (1) he has an intent to engage in activity that the First Amendment arguably
protects; (2) that this activity is arguably prohibited by the Electronics Rule; and (3) “that there

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exists a ‘credible threat of enforcement’ for engaging in that” activity. Id. (quoting Fischer v.
Thomas, 52 F.4th 303, 307 (6th Cir. 2022) (per curiam)). Somberg checks all three boxes.
Somberg has produced evidence that he has recorded and intends to continue recording
courtroom proceedings. Specifically, Somberg stated in a declaration:
I want to, intend to, and desire to make recordings of public proceeding[s] being
publicly broadcasted via live-streamed court proceedings for reposting,
broadcasting, commentary, expressive activity, and advocacy, but have been
prevented by the fear of the credible and ongoing threat of prosecution by
Oakland County Prosecutor’s Office undertaken in violation of the First
Amendment.
R. 7-11, PageID 146. Somberg’s actions are arguably protected by the First Amendment under a
right-to-record theory.
Also, the Electronics Rule proscribes Somberg’s intended conduct. A plain reading of
that policy demonstrates that it would apply to his proposed recording of virtual court
proceedings.
But has Somberg shown a credible threat of prosecution? To make such a showing,
Somberg must first establish “an actual and well-founded fear that” McDonald will attempt to
enforce a violation of the Electronics Rule against him. See Virginia v. Am. Booksellers Ass’n,
484 U.S. 383, 393 (1988). Somberg’s declaration establishes that fear of enforcement.
In addition to Somberg’s “self-censorship” due to fear that McDonald will seek to have
him held in contempt for violating the Electronics Rule, see id., Somberg must also show a
combination of the following factors: (1) “a history of past enforcement against [him] or others”;
(2) “enforcement warning letters sent to [him] regarding [his] specific conduct”; (3) “an attribute
of the challenged statute that makes enforcement easier or more likely, such as a provision
allowing any member of the public to initiate an enforcement action”; and (4) “a defendant’s
refusal to disavow enforcement of the challenged statute against a particular plaintiff,” McKay v.
Federspiel, 823 F.3d 862, 869 (6th Cir. 2016) (explaining that allegations of “a subjective chill”
alone are not enough to establish a credible threat of enforcement). “[T]hese ‘factors are not

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exhaustive, nor must each be established.’” Kareem, 95 F.4th at 1023 (quoting Online Merchs.
Guild v. Cameron, 995 F.3d 540, 550 (6th Cir. 2021)).
Multiple factors weigh in Somberg’s favor. First, McDonald’s office attempted to have
Somberg held in contempt. “[P]ast enforcement is not necessary to establish a credible threat of
enforcement[.]” Id. at 1025. But such prior enforcement “against the same conduct is good
evidence that the threat of enforcement is not chimerical[.]” Russell v. Lundergan-Grimes,
784 F.3d 1037, 1049 (6th Cir. 2015) (quoting Susan B. Anthony List, 573 U.S. at 164). Even
initiating a formal enforcement process “itself is chilling.” Kareem, 95 F.4th at 1026 (quoting
Speech First, Inc. v. Schlissel, 939 F.3d 756, 765 (6th Cir. 2019)). Second, McDonald has not
disavowed attempting to enforce a violation of the Electronics Rule against Somberg. And third,
a violation of the Electronics Rule is easier to enforce because anyone can initiate contempt
proceedings “[f]or a contempt committed outside the immediate view and presence of the court,
on a proper showing on ex parte motion supported by affidavits.” Mich. Ct. R. 3.606(A).
Consider Kareem. There, the plaintiff challenged Ohio’s “ballot selfie” law that
criminalized displaying a photograph of a marked ballot. Kareem, 95 F.4th at 1021–22. The
plaintiff “took just such a photograph” that “she wished to display” yet chose not to because of
her fear “that Ohio’s ballot prohibitions could be enforced against her.” Id. at 1022. As
evidence of a credible threat of enforcement against her, she pointed to a prior instance of an
election official ordering “an individual to take down a ballot photograph that had been posted
online” which caused that individual to comply. Id. at 1026. The district court found that the
plaintiff lacked standing, giving “little weight to this instance of removal because it was never
referred for prosecution or subject to any threat of enforcement proceedings.” Id. (internal
quotation marks omitted). We disagreed, reasoning that even “a directive by an official can
establish a credible threat of enforcement because it initiates the formal [enforcement] process,
which itself is chilling.” Id. (alteration in original) (internal quotation marks omitted). No
further evidence of enforcement was necessary, we explained, because the election official
ordered the individual “to remove the photograph, the individual complied,” and “potential
expression” thus was chilled. Id.

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The majority’s attempt to distinguish Kareem falls flat. The majority suggests Kareem is
inapplicable because that case involved defendants attempting to enforce criminal laws where
this case involves contempt proceedings. But that misunderstands the nature of the contempt
proceedings at issue here.
Recall that McDonald’s office sought to have Somberg held in contempt under Michigan
Court Rule 3.606(A). That rule governs indirect criminal contempt proceedings. In re Contempt
of Henry, 765 N.W.2d 44, 53, 57 (Mich. Ct. App. 2009) (per curiam). “Criminal contempt is a
crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by
fine or imprisonment or both.” In re Grand Jury Proc. No. 93,164, 179 N.W.2d 383, 388 (Mich.
1970) (emphasis added) (quoting Bloom v. Illinois, 391 U.S. 194, 201 (1968)). A prosecutor or a
private party can initiate and prosecute indirect criminal contempt claims. In re Contempt of
Henry, 765 N.W.2d at 53. And “a criminal contempt proceeding requires some, but not all, of
the due process safeguards of an ordinary criminal trial.” In re Contempt of Dougherty, 413
N.W.2d 392, 395 (Mich. 1987). To that end, a defendant has the right to have notice of the
charges against him, the right against self-incrimination, the right to counsel, the presumption of
innocence, and, importantly, the right to a hearing where the prosecuting party must prove the
contempt charge beyond a reasonable doubt. DeGeorge v. Warheit, 741 N.W.2d 384, 388
(Mich. Ct. App. 2007) (per curiam); Mich. Comp. Laws § 600.1711(2).
Somberg has sufficiently established an injury in fact. I consider next whether McDonald
caused the alleged injury.
B.
Somberg has satisfied the causation prong. “To establish causation, a plaintiff must show
a ‘causal connection between the injury and the conduct complained of.’” Durham v. Martin,
905 F.3d 432, 434 (6th Cir. 2018) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).
This requires a showing that Somberg’s claimed injury flows from McDonald’s conduct “rather
than the plaintiff’s own actions or the actions of a third party.” Grow Mich., LLC v. LT Lender,
LLC, 50 F.4th 587, 592 (6th Cir. 2022). But beyond that, proving a causal connection is a

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“relatively modest” burden. Id. (quotation omitted). “Any harm flowing from the defendant’s
conduct, even indirectly, is said to be fairly traceable.” Id. (internal quotation marks omitted).
McDonald caused Somberg’s alleged injuries. Her office sought to have Somberg held in
contempt after he screenshotted a virtual court proceeding and posted it on social media. But
McDonald’s office was unsuccessful only because the motion to show cause failed to comply
with the Michigan Court Rules. Somberg filed suit against McDonald just days after the
dismissal of McDonald’s contempt request.
McDonald has made no argument that Somberg cannot establish causation. But the
majority argues that Somberg cannot trace his injury to McDonald because the 52nd Judicial
District Court enforces the Electronics Rule. That argument, however, runs headlong into
Speech First. That case involved allegations that the University of Michigan’s “Bias Response
Team,” which served as the primary authority through which individual students could report
instances of peer discrimination, violated the alleged offenders’ First Amendment rights. Speech
First, 939 F.3d at 762–63. After receiving a complaint, the Bias Response Team “invited”
alleged offenders to a “voluntary” meeting and then had the power to investigate the alleged
offenders and refer them to the police, the university’s office of student rights and
responsibilities, or other school resources. Id. Although the Bias Response Team’s referrals did
not “punish a student” and only initiated “the formal investigative process,” we held that this
chilled the alleged offenders’ speech such that they suffered an Article III injury. Id. at 764–
65. This was because the Bias Response Team’s invitations subjected “students to processes
which could lead to those punishments” and the Team’s apparent “punitive authority” implicitly
threatened referrals. Id.
The same rationale applies here. McDonald filing a motion to show cause does not
punish Somberg. Still, it does initiate contempt proceedings against him. And McDonald can
prosecute a contempt claim against him. This is enough to show causation.
The majority also argues that Somberg cannot establish causation because the 52nd
Judicial District Court, not the prosecutor, enforces criminal contempt claims. It is accurate that
the state court must determine whether the defendant has acted in contempt of court and impose

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any punishment. But that occurs only after the prosecuting party has proven the defendant guilty
of contempt beyond a reasonable doubt. DeGeorge, 751 N.W.2d at 388, 390. The majority’s
argument is like saying parties do not have standing to try to enjoin a prosecutor from enforcing
criminal laws because other parties make the guilt determination (the jury) and impose the
sentence (the judge). But our precedent confirms that is not the case. See Kareem, 95 F.4th at
1020, 1027; Universal Life Church Monastery Storehouse v. Nabors, 35 F.4th 1021, 1034–36
(6th Cir. 2022). And that reasoning should apply here.
C.
Redressability requires a showing that Somberg’s alleged “injury will be redressed by” a
decision in his favor. Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.
167, 181 (2000). Causation and redressability are “flip sides of the same coin.” FDA v. All. for
Hippocratic Med., 602 U.S. 367, 380 (2024) (quotation omitted). Thus, “[i]f a defendant’s
action causes an injury, enjoining the action . . . will typically redress the injury.” Id. at 381.
Because Somberg has shown that McDonald caused his injury, granting Somberg injunctive
relief against McDonald would redress that injury.
The majority contends that enjoining McDonald from seeking to hold Somberg in
contempt would not redress his injuries. This is because, according to the majority, Michigan
courts can hold him in contempt sua sponte. But Somberg does not seek to enjoin a Michigan
court from initiating criminal contempt proceedings against him or from holding him in
contempt sua sponte; he seeks only to enjoin McDonald from initiating and prosecuting him for
indirect criminal contempt.1
III.
Although Somberg has standing to sue McDonald, his claim fails on the merits. Somberg
sued McDonald under 42 U.S.C. § 1983. To succeed on a § 1983 claim, a plaintiff must prove:
(1) “a right secured by the United States Constitution,” and (2) “the deprivation of that right by a
1To be clear, even if a Michigan court can initiate indirect criminal contempt proceedings against an
individual, a prosecutor or a private party must prove to the court beyond a reasonable doubt that the offending party
has violated a court order or rule. See DeGeorge, 741 N.W.2d at 388.

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person acting under color of state law.” Troutman v. Louisville Metro Dep’t of Corr., 979 F.3d
472, 482 (6th Cir. 2020) (quotation omitted). Somberg claims he has a right, under the First
Amendment, to record court proceedings despite the Electronics Rule’s prohibition on him doing
so.
The First Amendment bars the government from “abridging the freedom of speech.”
U.S. Const. amend. I. Flowing from this prohibition is the First Amendment’s protection of the
spoken or written word and expressive conduct—conduct that is “sufficiently imbued with
elements of communication to fall within the scope of the First and Fourteenth Amendments.”
Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 409
(1974)). Somberg seems to argue that his right to record is one of freedom of expression.
We use a three-step analysis to determine whether the government has violated a person’s
free-speech rights:
(1) we ask whether the speech is protected under the First Amendment; (2) if so,
using the public-forum doctrine, we ascertain whether the applicable forum is
public or nonpublic; and (3) applying the appropriate standard for the forum, we
ask whether the government’s prohibition on speech passes muster under the First
Amendment.
S.H.A.R.K. v. Metro Parks Serving Summit Cnty., 499 F.3d 553, 559 (6th Cir. 2007) (citing Parks
v. City of Columbus, 395 F.3d 643, 647 (6th Cir. 2005)).
The Supreme Court has not decided whether the act of recording is expressive conduct
protected by the First Amendment. Expressive conduct includes that which was intended to
“convey a particularized message” that would likely “be understood by those who view it.”
Johnson, 491 U.S. at 404 (quotation omitted). Still, “a narrow, succinctly articulable message is
not a condition of constitutional protection.” Hurley v. Irish-American Gay, Lesbian & Bisexual
Grp. of Bos., 515 U.S. 557, 569 (1995). And the Court has “extended First Amendment
protection” to conduct that is “inherently expressive.” Rumsfeld v. Forum for Acad. &
Institutional Rights, Inc., 547 U.S. 47, 66 (2006). What is more, the Court has held “that
expression by means of motion pictures is included within the free speech and free press
guaranty of the First and Fourteenth Amendments.” Joseph Burstyn, Inc. v. Wilson, 343 U.S.
495, 502 (1952).

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But what about the act of recording itself? Does that act, without more, convey a
message? Some courts say yes:
It defies common sense to disaggregate the creation of the video from the video or
audio recording itself. The act of recording is itself an inherently expressive
activity; decisions about content, composition, lighting, volume, and angles,
among others, are expressive in the same way as the written word or a musical
score.
Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1203 (9th Cir. 2018). Other courts seem to
punt the question, evaluating recording bans under the First Amendment’s right to access
information about public officials instead. See, e.g., Whiteland Woods, L.P. v. Township of West
Whiteland, 193 F.3d 177, 182–83 (3d Cir. 1999). Further still, some courts have explicitly held
that the act of capturing an image “does not partake of the attributes of expression; it is conduct,
pure and simple.” D’Amario v. Providence Civic Ctr. Auth., 639 F.Supp. 1538, 1541 (D.R.I.
1986). At any rate, we have explained that “[a] prohibition on recording speech is not a
prohibition on speaking.” Hils v. Davis, 52 F.4th 997, 1001 (6th Cir. 2022).
Assuming an act of recording is expressive conduct protected by the First Amendment, is
the courtroom a public or nonpublic forum? S.H.A.R.K., 499 F.3d at 559. We have already
answered this question: “The courtroom is a nonpublic forum . . . where the First Amendment
rights of everyone (attorneys included) are at their constitutional nadir. In fact, the courtroom is
unique even among nonpublic fora because within its confines we regularly countenance the
application of even viewpoint-discriminatory restrictions on speech.” Mezibov v. Allen, 411 F.3d
712, 718 (6th Cir. 2005) (citations omitted).
The final task is to determine whether the Electronics Rule limiting speech in a nonpublic
forum violates the First Amendment under the appropriate standard. “The government may
lawfully restrict speech in a nonpublic forum” if “the restrictions are viewpoint neutral and
reasonable” considering “the purpose served by the forum.” Helms v. Zubaty, 495 F.3d 252, 257
(6th Cir. 2007); accord Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788,
808 (1985). The government’s restriction “need not be the most reasonable or the only
reasonable limitation.” Cornelius, 473 U.S. at 808. Moreover, “[t]he First Amendment does not

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forbid a viewpoint-neutral exclusion of speakers who would disrupt a nonpublic forum and
hinder its effectiveness for its intended purpose.” Id. at 811.
The Electronics Rule is viewpoint neutral. It prohibits all electronic recordings of all
judicial proceedings conducted via Zoom without the state court’s permission. The regulation
“places no restrictions on . . . either a particular viewpoint or any subject matter that may be
discussed[,]” or, here, recorded. See Hill v. Colorado, 530 U.S. 703, 723 (2000).
The Electronics Rule need only be reasonable considering the purposes of the courtroom.
The Rule protects the legitimate government interest of ensuring criminal defendants receive fair
trials by lessening courtroom distractions, preventing juror and witness intimidation, and
guarding against online influence. Banning recordings via portable electronic devices is, at a
minimum, a reasonable method for protecting this interest. See Estes v. Texas, 381 U.S. 532,
545–57 (1965); Hils, 52 F.4th at 1004. And so, even if recording is an expressive act protected
by the First Amendment, the Electronics Rule is constitutional.
Somberg points to cases from our sister circuits that he says require a different result.
But most of those cases hold that a right to record government officials engaged in their duties in
a public place exists under the Supreme Court’s “right to gather” jurisprudence, not its freedom-
of-expression analysis. See, e.g., Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978) (finding that
the First Amendment confers the right “to gather news ‘from any source by means within the
law’” (quoting Branzburg v. Hayes, 408 U.S. 665, 681–82 (1972))).
Take, for example, the First Circuit’s decision in Glik v. Cunniffe, 655 F.3d 78 (1st Cir.
2011). The Glik court considered whether there was “a constitutionally protected right to
videotape police carrying out their duties in public[.]” Id. at 82. Because “the First Amendment
goes beyond the protection of the press and the self-expression of individuals to prohibit the
government from limiting the stock of information from which members of the public may
draw[,]” the Glik court held that there was a right to record police doing their jobs in a public
place. Id. (quoting First Nat’l Bank v. Bellotti, 435 U.S. 765, 783 (1978)).
Other courts have reached similar conclusions under similar reasoning. See, e.g., Smith v.
City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (finding that the claimants had a First

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Amendment right to record police conduct on public property as part of their “right to gather
information about what public officials do on public property”); Fordyce v. City of Seattle, 55
F.3d 436, 439 (9th Cir. 1995) (recognizing a “First Amendment right to film matters of public
interest”); Fields v. City of Philadelphia, 862 F.3d 353, 359 (3d Cir. 2017) (rejecting arguments
to analyze the case under a freedom of expression analysis as it was “not about people attempting
to create art with police as their subjects” and holding, under a right to access analysis, that there
is a right to record police performing their official duties); see also Turner v. Lieutenant Driver,
848 F.3d 678, 687–90 (5th Cir. 2017) (blending the right to access analysis with freedom of
expression analysis to conclude that “[p]rotecting the right to film the police promotes First
Amendment principles”).
Even more to the point, none of the cases Somberg points to concerns a right to record
live courtroom proceedings. The same is true for those cases where courts have held that the act
of recording is expressive conduct. See Animal Legal Def. Fund, 878 F.3d at 1203–05 (finding
unconstitutional a law that prohibited recordings of private agricultural production facilities);
ACLU of Ill. v. Alvarez, 679 F.3d 583, 595–96, 606 (7th Cir. 2012) (striking down an
eavesdropping statute that prevented individuals from recording police officers performing their
jobs in public places).
IV.
For these reasons, I respectfully dissent from the majority’s conclusion that Somberg
lacks standing. I would affirm the district court’s judgment in McDonald’s favor.

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