RICHMOND, Va. (CN) — A federal judge in Richmond heard oral arguments Monday in a constitutional challenge to a Virginia policy that limits remote access to civil legal filings exclusively to attorneys and court staffers.
The First Amendment case brought by Courthouse News targets the policy adopted by clerks of local courts that restricts online access to court records to Virginia lawyers and employees of the court. One local publication, the Fredericksburg Free Lance-Star, threw its support behind the lawsuit in an op-ed last month.
The Officer of the Court Remote Access system, known as OCRA, makes civil filings available to authorized users via a per-court subscription fee. About 90 of 120 Virginia courts participate in the system. Once paid and authorized, a user can access filings from their subscribed courts anywhere they have internet access.
But the public and news outlets like Courthouse News have been shut out of OCRA and must instead physically go to state courts to view the very same documents lawyers and judges have easy online access to.
“That cat is already out of the bag,” attorney Jonathan E. Ginsberg with the law firm Bryan Cave argued on behalf of Courthouse News during a 90-minute hearing in Richmond federal court Monday, referring to court documents being posted online.
Courthouse News argued in its initial complaint filed last July that the limit on public access to court records was tested when it asked Prince William County Clerk Jacqueline C. Smith for access to the system. Both sides went back and forth before the clerk offered the news outlet access for $1,200 a year, more than six times the rate attorneys are charged. In addition, the clerk required that this news service avoid publishing any news derived from access to OCRA.
Though attorneys for Smith argued her offer should never have been made in the first place, the broader denial of access is the basis for the company's First Amendment claim.
Ginsberg argued before Senior U.S. District Judge Henry Hudson on Monday that while Courthouse News employs reporters to visit courts and access civil documents daily, being forced to travel to courts throughout the state amounts to an unconstitutional burden in the face of digital access being granted to a privileged few.
Virginia Assistant Attorney General Robert B. McEntee, representing the state high court's Executive Secretary Karl R. Hade, countered that the limits are needed. He said the requirement for the public and press to physically visit the courthouse creates a barrier for would-be exploitation, including the possibility of foreign actors using online filings to harvest data on those who file or are parties to cases.
“It’s more profitable to sit behind a desk and collect this sensitive data,” he said. “This is about protecting litigants.”
McEntee also argued Courthouse News failed to meet the threshold of a First Amendment claim. He argued the company still has access to court records and is merely bound by time and place restrictions rather than being denied access entirely.
“You didn’t have remote access until there was remote access,” McEntee said of the system developed and put into use by local courts individually over the last 15 years.
But Ginsberg called for a different constitutional test, one that looks at logic and precedent to discern a First Amendment violation. He argued OCRA exists for attorneys and court staff and discriminates against everyone else.
“Defendants discriminate against the media through disfavored treatment and impose restraints on protected speech,” Ginsberg said.
He pointed to his client's recent success at the Richmond-based Fourth Circuit, where a unanimous three-judge panel led by U.S. Circuit Judge Diana Gribbon Motz found efforts to delay physical access to new civil complaints by the clerk of Norfolk Circuit Court amounted to a First Amendment violation.
“The press and public enjoy a First Amendment right of access to newly filed civil complaints,” the Bill Clinton appointee wrote in a June 2021 opinion. “This right requires courts to make newly filed civil complaints available as expeditiously as possible.”
Hudson, a George W. Bush appointee, offered little Monday to indicate his stance on the OCRA issue, mostly probing procedural issues such as who has the authority to grant access to the system and who is responsible for making sure sensitive information gets redacted in public filings.
Narrowing down who grants access is a bit of a tangled web. The individual clerks are responsible for authorizing access to the system, and attorneys can face punishment from the state bar if they violate tenets of the law governing its use. Attorneys themselves are responsible for submitting filings void of sensitive information and they can file motions to seal information as needed.
Both Hade and Smith have pointed to the state law governing the issue, and argued it is state lawmakers who have final authority to define who has access.
“Perhaps the most expedient method would be to go to the General Assembly,” Hudson opined, suggesting a legislative fix multiple times during the hearing.
While court officials argue oversight from the Virginia State Bar helps ensure users are granted digital access without risking the release of sensitive data, Hudson wondered if news organizations like Courthouse News are bound by similar principals.
“A legal oath keeps forms from being disseminated. What about your client?” the judge asked Ginsberg.
“Courthouse News is bound by its own code of ethics,” the attorney responded.
Hudson acknowledged as much, calling the plaintiff a “fine organization.”
Ginsberg said if OCRA users were to violate other laws, the clerks who oversee the subscriptions would still be empowered to terminate those agreements.
Smith's office was represented in the hearing by attorney John C. Altmiller with Virginia-based Pesner Altmiller Melnick & DeMers.
Hudson did not issue a ruling from the bench nor did he offer a timeline for when he would hand down a decision.
Courthouse News is currently challenging similar access restrictions by state court clerks within the First, Second, Fifth, Sixth, Eighth, Ninth and Tenth circuits, in addition to the Fourth, which covers Virginia. It has already won First Amendment actions against clerks within the Second, Fourth, Fifth and Ninth circuits.
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