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Courthouse News Service Courthouse News Service

First Amendment vaccination

December 2, 2021

A scourge was spreading from a federal judge in Bangor to another in Albuquerque and was in the course of infecting another in Burlington. Then it stopped.

Bill Girdner

By Bill Girdner

Editor of Courthouse News Service.

At a hearing in federal court in Albuquerque on Wednesday, Judge James Browning quoted my testimony almost two years ago before Judge Henry Morgan in Norfolk, Virginia, where I said that traditionally journalists checked the new paper complaints at the end of the day.

That’s true.

But they could check them any time during the day. Because they had access to the box where the new complaints were put as they crossed the counter.

In New Mexico, our reporter could not be in two places at once. So she worked as a kind of circuit rider, checking Santa Fe or Bernalillo or Los Lunas in the late morning, and heading over to Albuquerque in the afternoon. All those courts gave her behind-the-counter access where she could see the new cases that had just come across the counter.

She was not, for example, limited to cases that had come in five hours earlier and been docketed in the meantime.

That is the intellectual conundrum Browning has set up by ruling the clerk can withhold new cases for five hours, and saying that bright line rule approximates traditional access.

I could not literally scratch my head in the Albuquerque courtroom on Wednesday morning, which would not have been well received. But I did metaphorically.

If the reporter, say me in federal court in Los Angeles back in the day, were checking new cases at the end of the day — as all the press room denizens did — and a five-hour rule were in place, well then we would be only seeing cases filed up to 11:30 in the morning and none filed in the afternoon.

That was not traditional access.

And it would traditionally have been worthless access. Because we would have seen a majority of the new cases, if we saw them at all, the next day. And by the next day, the new cases were already winding their way through the clerk’s office as they were docketed, put in jackets, and transferred to the file room.

And by then the news was stale.

So where did the judge’s idea for a five-hour rule come from. The state did not argue for it and we certainly did not.

But I think I figured it out.

Our lawyers are in the process of writing a First Circuit brief that challenges a ruling by Judge Nancy Torresen in federal court in Bangor, and in reviewing the draft earlier this week I was reminded that the court administrator in Maine had said he “expects” to be able to process the cases within “four hours.” And then Torresen ran with that number in finding the administrator had not violated the right of access, basically it was good enough.

Torresen’s ruling in Bangor was in turn cited by Browning in Albuquerque on other points. 

So I not quite literally went “ah hah!” The five hours in Albuquerque came from the four hours in Bangor. It had to.

And you see, that is how an intellectual virus spreads.

Because the next judge to consider the same set of facts, where an e-filing court is holding up access while the clerical work of processing or docketing is completed, was Judge Christina Reiss in Burlington, Vermont. She told our lawyers at oral argument at the end of October that she thought the jurisprudence was going in the direction of a setting a number of hours in order to define what “contemporaneous” access means under the First Amendment. 

“I'm looking at the New Mexico decision and the court found that the plaintiffs were ‘not entitled to a preliminary injunction which gives them pre-processing, on-receipt, or immediate access to newly filed non-confidential civil complaints’ and said instead ‘I'm going to give you five hours to do whatever you need to do, and you should get it.’ It seems to me that the jurisprudence is coalescing around how much time.”

I heard that sitting just inside the bar in her courtroom and thought the contagion was spreading — I was worried.

But the developing law was at that point vaccinated by our lawyer Bill Hibsher.

“Five business hours means that everything filed from about 11:00 in the morning until the end of the court day will be held over until the next day,” he argued. “That is not contemporaneous access. And so we think that the issue is not so much for the Court to divine the number of hours’ delay that is acceptable but, rather, for the Court to ask the defendant: 'How do you justify any delay now that a presumption of access has arisen, because I have determined that complaints are entitled to a First Amendment right.'”

And in her opinion handed down three weeks later, Reiss rejected the contagion, the scourge, of the number-of-hours definition for constitutional access. I was relieved beyond measure.

So I was thinking about this on the American Airlines flights from Burbank to Phoenix to Albuquerque on Tuesday afternoon, before the next morning’s hearing. And I reread Reiss’ opinion on the plane to see how she handled the stop, the decision to not go along with the spreading contagion, and I kinda smiled when I spotted it. 

She called it a “bright line rule.” That reminded me of Judge James Otero who back in 2016 in the Planet summary judgment ruling refused to say we had a First Amendment right to same-day access because that would be, yes indeed, “a bright line rule.” (He also said the right attaches on receipt and access must be “timely” thereafter ((no bright line there.))

So I gathered from those two artifacts of judicial reasoning that bright line rules are disfavored in federal court.

And that is how Reiss went about jumping off the Bangor-Albuquerque line of jurisprudence, leaving it on a spur next to the main line of First Amendment analysis that runs through federal judges from Houston to Los Angeles, New York, Chicago and onto Norfolk and Burlington.

She wrote: “Although some courts have sought to impose a bright-line rule for permissible delay, here the focus must be on whether any delay is appropriate because any restriction on the First Amendment right of access must have ‘sufficient justification.’ As the Second Circuit has observed, when a governmental entity contends that the ‘limited denial of access’ is insubstantial, it ‘begs the question of whether there was a sufficient factual basis for denying access at all.’"

And thus the body of law on the First Amendment right of access was healed and put back on the road to full recovery.

Categories / Civil Rights, Courts, Media, Op-Ed

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