Federal Judge Enjoins Houston|State Court Clerk on First Amendment

(CN) - U.S. District Court Judge Melinda Harmon on Tuesday enjoined Houston's court Clerk Loren Jackson on First Amendment grounds, ordering that Courthouse News Service be given same-day access to newly filed civil complaints, an important and traditional source of news. "There is an important First Amendment interest in providing timely access to new case-initiating documents," the judge wrote. "It is ordered that Plaintiff CNS's employee assigned to the Harris County District Court be given access on the same day the petitions are filed except where the filing party is seeking a temporary restraining order or other immediate relief or has properly placed the filed under seal."

Courthouse News Service publishes reports on new civil litigation that are subscribed to by a host of Houston law firms, as well as television stations and newspapers, including the Houston Chronicle and the Dallas Morning News.

Similar reports across the nation, as well as trial coverage and reports on appellate rulings, feed into the Courthouse News Web page, which receives more than 250,000 individual visitors per month.

The timeliness and accuracy of the reports on new litigation depend on access to the publicly filed complaints. Review of those petitions is a traditional task of a news reporter covering a courthouse beat, and reporters from Los Angeles to Chicago to New York check the new filings at the end of the day.

That traditional access has been under siege in some courts, as local newspapers have pulled back on daily court coverage as a result of diminished competition and fewer reporters, while at the same time, courts have cut into the access under a range of pretexts that include conversion of documents to digital images.

"Plaintiff claims that there is a longstanding tradition for state and federal courts around the country to provide reporters who make daily visits to these courts with access to newly filed complaints or petitions at the end of the business day on which these documents are filed," wrote Harmon.

"Specifically, Plaintiff asserts that, since it began visiting the Harris County District Court in 1999, reporters were permitted to review most new civil petitions in their original paper form on the same day that they were filed regardless of whether they had been fully processed, scanned or posted online."

The judge noted that Clerk Jackson had started a campaign to post the new filings online, with paper filings available on the court's Web site within 72 business hours, or just under two weeks. At oral argument, the Harris County lawyer representing the recently elected Democratic clerk concluded her points by reiterating Jackson's slogan, "Get online not in line."

In declarations accompanying the news services's request for an injunction, reporter Cameron Langford said he is currently limited by the clerk's office to same-day review of about 5 newly filed petitions, out of 70 to 100 new civil petitions filed on a daily basis in Harris County District Court. Courthouse News is represented by Rachel Matteo-Boehm with Holme Roberts & Owen in San Francisco and John Edwards with Jackson Walker in Houston.

Judge Harmon, who was appointed by President George H.W. Bush, began her analysis by saying, "The First Amendment to the United States Constitution prohibits use of any law `abridging the freedom ... of the press.' It requires a presumption of openness of both the courtroom and court files."

Quoting from appellate rulings, Harmon wrote, "Public access serves important interests, such as `to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial process, including a better perception of its fairness.'"

In addressing the central issue of delay in access, the judge said, "Defendants argue that the 'slight delay' in availability is a reasonable time, place or manner restriction. The Court disagrees with Defendants' contention and instead finds that the 24 to 72 hour delay in access is effectively an access denial and is, therefore, unconstitutional."

Harmon found that the key elements required for an injunction are present in the case.

"The threatened injury to Plaintiff outweighs any damage the injunction could cause Defendants," said the judge's 9-page ruling. "Plaintiff will be denied its First Amendment right of acces to new case-initiating documents unless the Court issues this preliminary injunction, while Defendants have alternative, constitutional ways to achieve their goals and address their administrative concerns."

"It is clearly in the public interest to enjoin Defendants' conduct. There is an important First Amendment interest in providing timely access to new case-initiating documents. Defendants attempt to argue that providing Plaintiff with same day access interferes with their important objective of 'getting online and not in line.' The Court acknowledges that Defendants' goal is also in the public interest. However, as Plaintiff argues, same-day access and online access are not mutually exclusive. Defendants may provide Plaintiff with same-day access to newly-filed petitions while working in furtherance of their goal to make documents available online."

"Accordingly, it is hereby ORDERED that plaintiff CNS's motion for injunctive relief is GRANTED. It is further ORDERED that CNS's employee assigned to the Harris County District court be given access on the same day the petitions are filed except where the filing party is seeking a temporary restraining order or other immediate relief or has properly filed the pleading under seal."

The judge also ordered the news service to post a $1,000 bond as security.

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