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‘CNS’s View’ Accurately Told

April 15, 2020

CNS has at extraordinary cost sought to enforce traditional forms of press access to new court filings. That same form of access, apparently unbeknownst to some jurists, is what the federal courts themselves enforce in the electronic age.

Bill Girdner

By Bill Girdner

Editor of Courthouse News Service.

In the recent Ninth Circuit ruling called Planet III, one of the three voices in the opinion wrote in reference to Courthouse News Service: “In CNS’s view, anything short of immediate access violates its First Amendment rights.”

That statement about CNS’s view is not correct.

It is certainly what our opponents, the California court bureaucracy run by the state’s chief justice, sought to tar us with. And that falsehood found its mark.

Under oath, I testified about CNS’s view during a February trial in Virginia. William Hibsher is our lead lawyer. U.S. Judge Henry Coke Morgan Jr. is presiding.

BY MR. HIBSHER: Now, in this case Courthouse News is seeking contemporaneous access to newly filed complaints; is that correct?

A. That’s correct.

Q. So what do you mean by contemporaneous access?

A. I mean, traditional access on the end of the day in which the case has been filed.

Q. So is Courthouse News seeking instantaneous access in this case?

A. No.

Q. Immediate access?

A. No.

Q. So why is contemporaneous access by the end of the day of filing so important to Courthouse News Service?

A. Courthouse News’ cycle follows the basic cycle of life. News happens during the day, it’s reported during the day, it’s consumed, it’s read, seen, heard, that day and discussed, and then everybody goes to sleep and the whole cycle starts again the next day. If you try to take old news and push it into that current cycle, the old news automatically goes in underneath, like a lower strata. It’s not as widely read, it’s not as valuable or important.

THE COURT: When you used to go around — excuse me for interrupting. When you used to go around to these boxes, box one with the filings, box two with the orders, you went at 4:30, I think you said?

THE WITNESS: That’s what I said, yes, Your Honor.

THE COURT: Well, if somebody filed something at five minutes to 5:00 you might not see it.

THE WITNESS: Almost all these courts gave us a grace period.

THE COURT: You mean they let you stay after they closed?

THE WITNESS: Yeah. So the federal courts often close at 4:30 to the public, but folks are still in line. We could stay until 5:00.


Read the Schaefer trial transcript:  Volume 1   Volume 2   Volume 3   Volume 4


So I don’t know why the Ninth Circuit opinion would mischaracterize our view on access. Because what we have consistently said is that Courthouse News seeks to keep in place what these days seems like an ancient tradition, that of seeing the stack of new paper cases at the end of the day.

Planet III concerned Michael Planet, the defending clerk in Ventura Superior Court, which to this day does not accept e-filing and relies entirely on paper. The tradition in paper courts that we tried to enforce was access by the end of the day.

By contrast, in federal courts that accept electronic filings, like the Ninth Circuit itself, new filings do become public right away. So when the Ninth Circuit writer says, “In CNS’s view, anything short of immediate access violates its First Amendment rights,” the writer may not realize how the federal courts themselves operate.

When a lawyer submits a filing in a federal court — it can be on Sunday at midnight — the filing becomes public right then and there. That is not because of CNS’s view of our First Amendment rights. It is because of the federal courts’ view of the public nature of their proceedings.


More stories and columns on the Virginia trial:

Access Solution: The E-Inbox  *  Access Law in the Electronic Age  *   Bread and News  *   Flip Side of Court Tech  *   First Amendment Right to See Court Documents on Day of Filing  *   Tradition of Same-Day Access  *   The News Cycle

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