First Amendment Bright Line in the Digital Age

A First Amendment line that grows steadily brighter is being drawn between American courts in the digital age.

It is the line between e-filing courts that give on-receipt access to reporters and e-filing courts that fight on-receipt access like it was the devil’s handiwork. In that second group, clerks want to first docket the new filings, which results in delay, which is the enemy of news.

On the access side of the line are the federal courts and state courts in Alabama, Connecticut, Hawaii, New York and Utah, all on a statewide basis, plus individual courts in California, Georgia and Nevada.

On the delay side of the line are e-filing state courts that are spread around the nation, including Illinois, Florida, Kansas, Minnesota, Missouri and Texas. A few individual clerks in California also have also opted for delay.

The evolution in state courts of a restrictive policy on public access roughly matches up with a wave of interest in privacy from administrators over the last decade.

The movement crystallized in a set of conferences in Williamsburg from 2013 to 2016 called “Privacy and Public Access,” sponsored by the Conference of State Court Administrators and attended by state clerks and administrators from all parts of the nation.

At that conference, the notion of “practical obscurity” emerged as a dominant theme. The idea behind practical obscurity is that court records in paper form are often difficult to find. Therefore paper records are different from electronic records which are easy to search. And therefore — this is the big leap — access to electronic records should be restricted.

That train of thought can be translated as saying the public record should be hard to see.

The intellectual dust storm that originated in Williamsburg has lingered in the restrictionist views of many state court administrators. In contrast, it is almost entirely absent from the federal courts.

I have never heard a federal official talk about “practical obscurity.”

And the state court opposition to on-receipt access is not isolated, it is organized. Williamsburg sponsor COSCA worked with the National Center for State Courts to oppose a 2016 ruling out of California’s Central District that said the First Amendment right of access attaches to newly filed court records upon the clerk’s receipt.

I recently saw a survey sent out by COSCA and the national center in support of that opposition. The survey asks administrators across the nation to opine on the terrible things that might result from on-receipt access. One answers that the public might see “unfounded allegations.” Oh my goodness!

But also scattered within the survey are answers from administrators who say on-receipt access is no problem.

Question: What is the timing: are documents provided upon submission or after acceptance.

Answer from Utah state court administrator Dan Becker: Public documents are available upon filing.

Q: If you were required to provide same-day access to civil complaints and all exhibits and other attachments when filed (before any review or acceptance process by the court) on paper or electronically, could you do so?

A: Yes.

Q: What challenges would this pose?

A: None.

The survey was intended to support an amicus brief arguing that no right of access existed to court pleadings before a court hearing — none at all. That argument was sent packing by the Ninth Circuit in its Planet III ruling.

But, in reviewing the brief recently, what I found most telling was its view of the press as simple scandal mongers. The brief concludes by saying on-receipt access is “an open invitation for those who would use such records to gratify private spite or promote public scandal.”

The rational answer to that bit of derision comes from Judge Henry Coke Morgan Jr. in the Eastern District of Virginia. His conclusions were forged in the fires of a four-day trial where he was looking at me from about ten feet away while I testified under oath.

I think he had a good idea of why I pursue First Amendment access, in the face of just about the entire administrative apparatus of state courts in America.

“Plaintiff, and other members of the press and public, have historically enjoyed a tradition of court clerks making most newly filed civil complaints publicly available on the day that they are filed,” said the judge.

“I think that the point the plaintiff’s making is that it has its news value as soon as it happens,” he added. “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.”

His court as well as the appellate court above provide on-receipt, public access to new pleadings.

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More stories and columns on the Virginia trial:

National Press Corps Enter First Amendment Fray to See Court Filings on Same Day * U.S. Judge Slaps Virginia Clerks With $2 Million Fee Award in First Amendment Case * E-Filing and the First Amendment  *  Matter of Choice   * The Dicta: Guesswork About Press Access  *  Presumption and Fact: The Ask for Access  *  ‘CNS’s View’ Accurately Told  *  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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