UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ NICHOLAS PAUL SOMBERG, │ Plaintiff-Appellant, │ > No. 23-1872 │ v. │ │ KAREN D. MCDONALD, in her official capacity as │ Prosecutor of Oakland County, Michigan, │ Defendant-Appellee. │ ┘

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.

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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 _________________

THAPAR, Circuit Judge. A Michigan court rule forbids recording, photographing, or livestreaming judicial proceedings. Nicholas Somberg claims that rule violates the First No. 23-1872 Somberg v. McDonald Page 2

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 t