Nicholas Somberg, 31 F.4th 1006

Nicholas Somberg, a Michigan attorney, took a screenshot of a May 2020 state-court video hearing and posted it to Facebook; the county prosecutor sought contempt charges for violating court rules on recording/broadcasting.
The contempt charge was later dismissed on procedural grounds, but Somberg filed a federal pre-enforcement suit challenging the prosecutor’s recording/broadcasting policy as violative of the First and Fourteenth Amendments.
Somberg moved for summary judgment; the district court denied his motion, concluding the First Amendment does not protect a right to record publicly livestreamed proceedings, but it did not grant the prosecutor summary judgment because no cross-motion was filed.
The district court certified its order denying summary judgment for interlocutory appeal under 28 U.S.C. § 1292(b) and stayed proceedings pending this court’s decision on permission to appeal.
The Sixth Circuit denied permission to appeal, reasoning that interlocutory review would not materially advance termination of the litigation and noting the court’s discretion to avoid piecemeal appeals.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether interlocutory appeal under 28 U.S.C. § 1292(b) should be allowed	§1292(b) factors met: controlling legal question, substantial ground for difference, and immediate appeal would materially advance the case	Immediate review unnecessary; interlocutory appeal would not materially advance termination and risks piecemeal appeals	Denied: appeal would not materially advance litigation; discretion favors deferring to final judgment
Whether the First Amendment protects the right to record publicly livestreamed proceedings	Somberg: recording publicly livestreamed hearings is protected speech/recording under the First Amendment	Prosecutor: no protected right to record/broadcast such proceedings (consistent with court restrictions)	District court ruled the First Amendment does not protect the right to record publicly livestreamed proceedings (district court ruling not disturbed here)
Whether the parties’ failure to oppose interlocutory review or consent can substitute for the court’s discretion	Somberg implied consent; non-opposition should enable review	Court retains independent discretion; parties cannot confer appellate review by agreement or silence	Denied: court emphasized §1292(b) factors are discretionary; party non-opposition does not compel review

Buccina v. Grimsby, 889 F.3d 256 (6th Cir. 2018) (final-judgment rule governs appellate jurisdiction)
Page Plus of Atlanta v. Owl Wireless, LLC, 733 F.3d 658 (6th Cir. 2013) (§1292(b) as a safety valve to final-judgment rule)
In re Trump, 874 F.3d 948 (6th Cir. 2017) (§1292(b) criteria are guiding, and appellate review is discretionary)
Little v. Louisville Gas & Elec. Co., 805 F.3d 695 (6th Cir. 2015) (immediate appeal warranted when it prevents protracted, expensive litigation)
In re Baker & Getty Fin. Servs., Inc., 954 F.2d 1169 (6th Cir. 1992) (interlocutory review allowed where a court might wrongly proceed to a trial it lacked authority to conduct)
In re City of Memphis, 293 F.3d 345 (6th Cir. 2002) (deny interlocutory review when appeal would not alter the litigation’s course)
Sheet Metal Emps. Indus. v. Absolut Balancing Co., 830 F.3d 358 (6th Cir. 2016) (interlocutory review appropriate when litigation may proceed in a substantially different manner depending on the legal question)
In re Lindsey, 726 F.3d 857 (6th Cir. 2013) (parties cannot by agreement confer appellate jurisdiction or compel interlocutory review)