Maryland Statute Banning Attempts to Influence Judges and Jurors Through "Corrupt Means" Upheld

The case arose following plaintiff's arrest, allegedly for telling Justice Kavanaugh's wife that "he might ruin [Justice] Kavanaugh's career and reputation"; but the charges against him were dropped, and he challenged the statute on its face, rather than as applied to his speech.

From Schiff v. Brown, decided Monday by Magistrate Judge J. Mark Coulson (D. Md.):

Plaintiff was allegedly arrested unlawfully in October 2022 pursuant to Md. Code Ann., Crim. Law § 9-305 "due to a statement he made to the wife of Supreme Court Justice Brett Kavanaugh." Specifically, Plaintiff avers that he was arrested for stating that "he might ruin J. Kavanaugh's 'career and reputation.'" The case was later dismissed, but Plaintiff asserts that he now has grounds to sue the Kavanaughs "for various torts related to abuse of court process and free speech retaliation." Plaintiff "would like to freely opine to the Kavanaughs, his opinions on how such a potential suit would further harm Kavanaugh's career and reputation," but is currently self-censoring himself out of fear of the Kavanaughs "using [the statute] to retaliate against him once again." Plaintiff submits that "This is also affecting his pro se effective counsel rights" because Plaintiff's effective representation of himself is hindered by his inability to contact the Kavanaughs….

Md. Code Ann., Crim. Law § 9-305 provides, in pertinent part:

(a) A person may not, by threat, force, or corrupt means, try to influence, intimidate, or impede a juror, a witness, or an officer of a court of the State or of the United States in the performance of the person's official duties.

(b) A person may not solicit another person to, by threat, force, or corrupt means, try to influence, intimidate, or impede a juror, a witness, or an officer of the court of the State or of the United States in the performance of the person's official duties….

The court rejected the claim that the statute was substantially overbroad, on its face, in violation of the First Amendment:

Threats are not protected speech under the First Amendment.

Moreover, "A prohibition against corrupt acts does not proscribe constitutionally protected speech and is clearly limited to unprotected activity." And with regard to § 9-305's use of the word "influence," perhaps merely influencing another individual is protected speech. But § 9-305 does not simply prohibit influencing others; it prohibits influencing a juror, witness, or court officer "in the performance of the persons' official duties" by improper means, which the Supreme Court has previously recognized is not permitted by the First Amendment. The Supreme Court has recognized the validity of prohibiting impermissibly influencing judicial proceedings for at least the last century. See Patterson v. Colorado (1907) ("The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print."). Even the Appellate Court of Maryland has noted—in the face of similar challenges to § 9-305—that "attempts to undermine the jury process through threats or other means are far removed from the values of persuasion, dialogue, and free exchange of ideas that would support protecting speech."

Even if the words Plaintiff takes issue with encompassed forms of protected speech, Plaintiff does not plausibly allege that § 9-305 substantially impacts those forms of protected speech, especially considering § 9-305's legitimate sweep. Section 9-305 has the plainly legitimate sweep of prohibiting the impermissible tampering of judicial proceedings by impeding a juror, witness, or court officer in the performance of their duties. The statute does not criminalize the above forms of speech in a vacuum; rather, it operates to protect individuals and institutions from attacks on the integrity and orderly administration of judicial proceedings in the very specific context of witnesses, jurors, and court officers performing their official duties during judicial proceedings.

So even assuming arguendo that Plaintiff is correct that the statute's inclusion of the words "threat," "intimidation," "corrupt means," and "influence" may impact some constitutionally protected free speech, prohibiting such speech has a plainly legitimate sweep in the specific context in which it operates. Nor does Plaintiff advocate that there are no circumstances under which § 9-305 would be valid. In fact, Plaintiff even concedes this point by providing examples of conduct that Plaintiff notes would violate § 9-305 without raising constitutional eyebrows. Thus, … Plaintiff has failed to plausibly allege that § 9-305 is unconstitutional on its face for being facially overbroad in violation of the First Amendment….

And the court rejected the claim that the statute was unconstitutionally vague:

"To succeed [on challenging a law as unduly vague], the complainant must demonstrate that the law is impermissibly vague in all of its applications." …

Plaintiff's vagueness challenge argues exclusively that the terms "corrupt means" and "influence" are unconstitutionally vague …. Plaintiff has not alleged that either term is impermissibly vague in all of its applications or that the statute is insufficiently vague as to provide for arbitrary and discriminatory enforcement. Again, Plaintiff concedes as much in his Complaint by highlighting situations in which criminal punishment under § 9-305 would be warranted, such as a criminal defendant marrying a state's witness while incarcerated for the purpose of trial tampering. Coincidentally, Maryland courts have expressly analyzed this exact situation and likewise concluded that marrying a potential witness with the intent to invoke spousal privilege constitutes "corrupt means" under § 9-305….

Plaintiff's challenge to the vagueness of the word "influence" likewise fails to pass muster. Section 9-305 does not simply prohibit influencing a witness, juror, or court officer. If it did, then the statute would almost surely encroach on otherwise permissible conduct and invite arbitrary enforcement ranging from persuading jurors during a closing argument to attempting to convince an off-duty court official that their favorite sports team will lose an upcoming matchup. But § 9-305 goes beyond such a vague standard by (1) specifically outlawing influencing a witness, juror, or court official in the performance of their official duties (2) through threats, force, or corrupt means.The Supreme Court has regularly affirmed the importance of preventing impermissible influences from impacting judicial proceedings, and Plaintiff has not set forth plausible arguments demonstrating that § 9-305 is problematic in all of its applications such that Plaintiff's claim may be allowed to proceed….

James Nelson Lewis represents the state.