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First Amendment fight for press access takes center stage in Florida federal court

The Broward County court clerk withheld nearly half of all lawsuits filed for two or more days, rendering any news they might have contained as useless as stale bread.

TALLAHASSEE, Fla. (CN) — A federal judge in Tallahassee heard oral arguments Thursday in a constitutional challenge to the practice by Florida court clerks of withholding access to new civil complaints until clerical processing is complete.

During an injunction hearing held in Tallahassee before Chief U.S. District Judge Mark Walker, Courthouse News attorney Carol LoCicero argued the clerks’ practice of processing complaints after filing cause unnecessary delays that restrict the public’s right to access.

“We are saying there is a substantive right to access,” said LoCicero, with the firm Thomas & LoCicero. “There is no justification for holding up the complaint.”

Courthouse News filed the lawsuit in March against the Florida Courts E-Filing Authority, which controls the e-filing portal, its chair Karen Rushing and Broward County Clerk of Court Brenda Forman. Although several circuit courts in Florida have delays due to clerical processing, Broward County has one of the most egregious records of delay.

For a six-month period ending in February 2022, about half of all civil complaints filed in the county were not available for viewing for two or more days, according to statistics compiled by Courthouse News reporters. Only 14% were seen on the day of filing.

Before the Florida Supreme Court mandated e-filing in 2013, reporters across the state could walk into courthouses and view paper complaints filed the same day and before docketing.

LoCicero argued the e-filing authority and court clerks should “mimic the paper way.”

“We are asking for the electronic equivalent of what used to be done,” she told the judge.

LoCicero suggested new complaints filed through the e-portal should be automatically placed in a “public queue” for viewing upon receipt. She pointed to a similar approach used by Arizona’s courts, made possible through a software system developed by Granicus.

Florida’s e-filing portal also uses software developed by Granicus.

“There’s a reasonable less restrictive alternative available at minimum cost,” she said.

Attorneys for the Broward County clerk and the e-filing authority defended their clients' methods, albeit in different ways.

Read the transcript of the hearing here

“The Broward County Clerk of Court is not here to suggest there is no First Amendment right to access nonconfidential circuit civil complaints,” Sidney Calloway of Shutts & Bowen told Judge Walker.

But public access must be balanced with confidentiality concerns, he said, such as ensuring a complaint dealing with sexual assault of a child is not released publicly. Currently, that responsibility is on the filer to mark documents as confidential.

Calloway also took umbrage with suggestions that the county alone should develop a software solution.

“The authority has exclusive control over the portal,” he said. “The clerk has no power to enter into discussions with the plaintiff or other parties.”

Even if Broward County could develop such a solution, Calloway argued, there are not enough resources to do it alone.

“The [Broward County] court could be ordered to modify its system, but it would result in budgeting expenditure of precious statewide resources,” he said. “It would definitely diminish the intricate balance between the court of clerks relating to the budget.”

Gregory Stewart, representing the e-filing authority, said Courthouse News’ request for a public access point on the e-portal would create “a system that never existed.”

That would require some type of directive from the Florida Supreme Court or the Florida Legislature, he argued.

Furthermore, Stewart said, the purported delays are not the fault of the e-filing authority. Once an attorney files a complaint, the e-portal nearly instantaneously sends the documents to the respective county court clerk.

“That’s the last action of the authority,” said Stewart of the firm Nabors, Giblin & Nickerson.

When pressed by Judge Walker on whether a public queue could be created, however, Stewart acknowledged it's possible.

"Yes, a public access portal can be created. We agree with that," Stewart said.

On rebuttal, LoCicero noted the e-filing authority and court clerks have a “mutual obligation” to provide timely access to court documents.

“The only reason for the delays is human intervention,” she said, adding these clerical duties can take days and fundamentally harm the ability of news organizations like Courthouse News to timely report on the legal issues of the day.

Walker, a Barack Obama appointee, seemed to agree on that point.

“It seems to me it’s not hyperbolic to talk about the critical nature of the Fourth Estate,” Walker said. “How long is too long when we balance those concerns?”

He added rhetorically, “Is it fair to suggest that 48 hours in a news cycle is a lifetime? Can I really so glibly say there is not such a delay when half of the complaints we don’t get until after two days or more?”

Walker also appeared to reject Calloway's argument the access delays in Broward County court do not cause irreparable harm constitutionally and do not chill the press' First Amendment rights.

"How can they speak at all if they don't have access to the information?" Walker asked Calloway. "That seems to me to be the
ultimate chill."

LoCicero closed by saying delays in all branches of government hurt public accountability — a point Walker latched onto.

“If you don’t release it, you don’t have scrutiny,” he said and indicated a ruling would come soon.

Courthouse News has won similar First Amendment lawsuits using precedent set by the 1986 U.S. Supreme Court ruling in Press-Enterprise Company v. Superior Court of California, which guarantees the right of timely access to most judicial proceedings and records.

In addition to LoCicero, Courthouse News is represented by Mark Caramanica and Daniela Abratt with Thomas & LoCicero, along with Jonathan Ginsberg from Bryan Cave.

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