Bread and News

(CN) — Matters of bread and herring, and technology: A federal judge in Virginia advances First Amendment law in ruling that news is best consumed when it’s fresh.

It all started with a push-off. A new court clerk had been elected in Virginia, and she was changing things. News reporters would no longer be able to see new court filings as soon as they crossed the counter, as they had done in courts around the U.S. since time beyond memory.

They would now have to go to computer screens and see electronic scans of the paper documents instead of the paper filings themselves. That meant delay. It meant stale news, like stale bread.

But what was the reporter’s word against a powerful state official who flat-out denied any delays in access. The new clerk, Jacqueline Smith, said in essence: It didn’t happen.

And that led to a high-stakes game of hide-and-seek, as lawyers for Courthouse News looked for the evidence that would prove their case. They were seeking electronic date stamps, sometimes called metadata, that would show when documents had been scanned.

The lawyers could already show with certainty when the court documents were filed because each document bore the imprint of a deputy clerk’s stamp. If they could only find the electronic metadata that showed when those same documents were scanned – voila! The difference between file date and scan date would irrefutably prove delay.

But the clerks in Prince William and Norfolk, both sued by Courthouse News, seemed to have foreseen that the scan metadata would be pivotal. They hid the ball. And the staff of the Virginia Supreme Court, called the Office of the Executive Secretary, joined in.

After months of formal legal requests for the information, the Office of the Executive Secretary defied a subpoena asking for the scan dates. During a deposition under oath, the Supreme Court’s chief tech officer continued steadfastly to deny they existed.

“But OES is able to identify a scanned date within its data?” asked Bryan Harrison, a former law clerk for a federal judge and now a lawyer with the Bryan Cave law firm, working for Courthouse News.

“No,” answered the technology chief for the state’s high court.

That answer was false.

After persistent questioning, the tech officer admitted late in his deposition that his office did indeed have the scan dates.

“All we have is the present-day date and timestamp the document was scanned,” he conceded.

In a motion for summary judgment during the litigation, Heather Goldman, also with the Bryan Cave law firm, described the tooth-pulling nature of the information extraction.

“Despite being asked for the scan date data in September 2018 and on several occasions thereafter, defendants failed to produce it, claiming that it did not exist. It took a subpoena to OES and pointed questions during a December 2018 deposition of OES to receive confirmation that the scan date data did in fact exist,” she wrote.

If litigation is like war, then the battle that changed the tide of conflict was the one over the data. It later persuaded a federal judge that the clerks had acted in violation of the U.S. Constitution.

But even after the metadata was revealed, the clerks did not give up. They set up a defensive wall. The wall was made out of claims that that the scan dates were unreliable because they might be overridden and replaced. Unfortunately for the clerks, their employees could not remember when a re-scan had changed the original scan date.

The wall finally crumbled before U.S. Judge Henry Coke Morgan Jr. in the Eastern District of Virginia. On the bench earlier this week, with a full head of gray hair, dressed in a bow tie and black robes, he leaned back in his high-backed chair and opined that the re-scan argument was “an exercise in futility – or obfuscation.”

On Wednesday, he came back to the same subject and called it “a red herring,” an argument that distracts from the water of the law, the ocean of truth.

Morgan then went on to succinctly summarize the argument made by this news service, that news must be reported while it’s fresh. “I think that the point the plaintiff’s making is that it has its news value as soon as it happens. We’re all going through that,” said Morgan. “The current situation in Iowa illustrates what that means. If you don’t get it when it’s fresh, it’s like stale bread.”

“So I think the plaintiff’s point on that is well-taken” he added.

Morgan also referred a few times to testimony from Ryan Abbott, the Courthouse News bureau chief in charge of Virginia. The bureau chief, a former designated hitter for a college baseball team and now leading a band called “The Dead Pens,” testified with shoulder-length hair in a rubber band wearing a blue suit bought for the occasion.

He had been put into the witness box by lawyer Goldman, who asked about press access in the Prince William court, where he had been pushed off to the computer terminals.

“It was not good,” he said. “I believe we saw 38, 40 percent of the new civil complaints the same day that they were filed.”

The judge who sat at eye level a few feet away then took over the questioning, in a gravelly voice. “Why is that not good?”

“Because that means the majority of the cases that were filed we could not see on the day that they were filed,” Abbott answered.

“What is good?

“Well, if we could see 85 or 90 percent of the cases it wouldn’t be as big of a problem,” Abbott replied.

The judge returned to that standard when he ruled Wednesday afternoon.

Courthouse News is represented by William Hibsher, a former federal prosecutor and an experienced trial lawyer from the New York office of Bryan Cave, working with Goldman and Harrison from the firm’s Washington, D.C. office. Conrad Shumadine with the Willcox Savage firm, a legendary First Amendment lawyer in Virginia, is also on the legal team.

On the other side, representing the clerks, are William Daniel Prince, IV and Michael Gordon Matheson with the Thompson McMullan firm. They have represented Virginia clerks in the past in cases brought by Virginia newspapers.

And in some ways it was a family affair. All three firms working in the courtroom subscribe to the new litigation reports published by Courthouse News. All were gathered at opposing tables in Morgan’s federal courtroom in Norfolk to hear closing arguments Wednesday morning, on the final and fourth day of trial.

In her argument for an injunction, Goldman, a former television reporter in her first full trial as a lawyer, said: “To the extent access has improved because the clerk’s offices are doing intake, indexing and scanning more quickly, those efforts can be relaxed due to human nature. And to the extent the clerk’s offices have allowed access before indexing and scanning, those ad hoc exceptions can be taken away once this lawsuit is over. And Your Honor, that is our fear.”

In his closing argument for the clerks, Prince said: “Are you going to impose a timeliness requirement on clerks to make their filings publicly available? The Fourth Circuit has never done that. They do the best they can with what they have. And I would suggest to the Court and ask the Court respectfully, don’t set the clerks up to fail. Don’t set them up to fail. What happens when they’ve got people out? What happens when they have a staff shortage?”

After a lunch break, Morgan came onto the bench and read from a yellow notepad in front of him: “The Court finds that news has a rapidly diminishing shelf life, and therefore access delayed is access denied. Accordingly, the Court finds that the First Amendment guarantees a qualified right of access to newly filed court documents.”

“The First Amendment requires that such documents be made available contemporaneously with their filing. Contemporaneously means the same day unless that’s not practicable.”

The judge dismissed the analysis by the clerks’ expert, David Harless, an economics professor at Virginia Commonwealth University, as “of little benefit.” He gave more credit to the news service’s expert, Amita Kancherla with Alvarez and Marsal, as “of some benefit.”

Instead he relied on the analysis by his own law clerks of the data from the Office of the Executive Secretary — the evidence that was extracted like an old tooth from the jaw of Virginia’s state courts.

Based on that data, Morgan concluded that there had been a practice of not providing constitutional access to public filings in both Prince William and Norfolk. He then defined what the clerks needed to do in order to comply with his order. “Obviously some courts may be able to file higher percentage than others, but I think 85 to 90 percent is a range that the evidence supports can be filed with current staffing and levels of filing.”

The judge refused to issue an injunction but he kept jurisdiction over the case and told the parties they could return in six months to see if the clerks were sticking to his order. “We’re going to get a written opinion out as soon as possible. However, the Court’s ruling is effective today.”

The clerks have all but promised to appeal Morgan’s decision to the U.S. Fourth Circuit Court of Appeals.

The ruling in Norfolk is the latest in a series of decisions coming out of actions filed by Courthouse News against state court clerks in California, Texas, New York, Illinois and now Virginia. The news service has won at the district court level in six out of seven cases, with the one loss coming in Orange County, California.

In another of those cases, against the clerk in Ventura, California, the Ninth Circuit issued a ruling in January that confirmed in lofty principle the notion that the press has the right to see new filings on the day they are filed. But the panel of judges, in what appeared to be compromise ruling, promptly and paradoxically took an ax to those principles by overturning the lower court’s injunction and allowing the clerk to physically shut the door on the press while continuing to accept new filings.

That mid-afternoon closing of the door to the records room in Ventura, the only room where the new filings could be reviewed, was permitted in the name of “administration of justice.”

Morgan’s ruling in the Eastern District of Virginia cuts a clearer path through the forest of First Amendment law. The word “practicable” is defined by Webster’s as “something that is possible to do or put into practice.”

As for the cost of all those legal sorties against the clerks, the Ninth Circuit in its recent decision sent the Ventura case back to the district court with an instruction to adjust attorney fees accordingly, strongly suggesting that a fee award in favor of Courthouse News, already cut in half, would be reduced further.

Over the last two decades, Courthouse News has spent roughly $30 million in legal fees to fight against First Amendment violations. It has prevailed in the great majority of those cases, which would, according to federal statutes, allow the news service to recoup its legal fees. Yet it has recovered only $585,000 – slightly less than 2% of what it has spent.

Looking to the future, Morgan’s decision advances First Amendment law and his formulation may well be applied in legal confrontations to come. Because in practice, what is evolving in American courts is a double standard when it comes to the First Amendment.

The federal courts have used new technology such as e-filing to continue the age-old tradition of press access to new court filings. Where in decades past federal courts put new paper complaints in a box on the counter as they were received, they now put new e-filed complaints online as they are received. That way, the traditional standard of First Amendment access is maintained in the transition from paper to electronic filing.

On the flip side, state courts in Texas, Florida, Virginia and some in California have used the change in the filing medium to disrupt and tear up the tradition of same-day press access to new court filings. They have replaced it with a lower standard, one that delays access while the clerks run through administrative tasks called processing. The result is stale news, like stale bread.

The double standard is most clearly outlined in California, where some state court clerks keep to the traditional standard and provide the press with access to new electronic filings as soon as they are received, like the federal courts. But in neighboring counties stand other clerks who, using precisely the same e-filing software, refuse to follow the traditional standard, instead imposing a debased, delayed standard of First Amendment access.

Using Judge Morgan’s formulation, it is obviously “practicable” for them to allow on-receipt access, yet they refuse. The conflict between those two standards – one on-receipt, the other delayed — could well be the next First Amendment issue for a federal judge to decide.

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