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High and low roads of access in Virginia attacked in First Amendment litigation

The fit between the 230-year-old Bill of Rights and the electronic age is at issue in an attack by news outlets on Virginia’s segregated system of access to court records, one for patricians with power and another for commoners with none.

There are two roads to court records in Virginia, a fast and easy road for insiders and a slow and hard road for everyone else. A case challenging that set-up presents a 230-year-old question in American law: as society changes how does the law catch up.

The question comes down onto a fundamental change in America and much of the world, the ascendance of the Internet Age. And how that great shift has been used by those with a quantum of power in Virginia.

If you are working for the government or a law firm in Virginia, you can look at court records over the world wide web at any time and from any place. If on the other hand you are a reporter or anyone else among the 8.6 million people in Virginia, you must travel around the state to different courthouses to see those same records.

An ongoing attack on the two-road system asks a federal court of appeals to apply the 1791 Bill of Rights to the new reality of these electronic times.

“Government employees, and other preferred groups have 24/7/365 online access to court records, the equivalent of the access superhighway,” said a brief filed Friday for Courthouse News. “Meanwhile, the press may be treated as a second-class citizen and relegated to the equivalent of the access horse and buggy.”

There is a second piece to the litigation puzzle.

The insiders, government officials and lawyers, are forbidden from passing to the outsiders, press and public, any information they get from their special access. No documents, no excerpts, no notes, no information at all. The restriction is unusual, not found in any other state, and resembles a gag order.

“Like gag orders, the dissemination restriction warrants a most rigorous form of review because it rests at the intersection of two disfavored forms of expressive limitations: prior restraints and content-based restrictions,” said Friday’s brief filed in the U.S. Fourth Circuit Court of Appeals.

And there is a third piece: money.

Virginia court clerks, low-profile politicians who have a tall presence in the Legislature, earn extra money from the sale of access. The restrictions are driven by the clerks’ desire to keep the money flowing, a point conceded by Assistant Attorney General Erin McNeill in oral argument.

In a trial court last year, U.S. Judge Henry Hudson asked if opening access to the public would cut into the clerk’s income: “That would have a detrimental economic impact on the clerk of the courts’ budget, is that correct?

McNeill answered: “Oh, I’m sure it would, Your Honor.  I don’t know that we’re permitted to make that argument under the First Amendment.”

The effect of the restrictions is to preserve a money-making monopoly on electronic access to court records. That point was laced into the Fourth Circuit brief filed by lawyers representing Courthouse News, Roger Myers, Rachel Matteo-Boehm and Jon Ginsberg with the Bryan Cave law firm.

As they put it, “Public records protected by the First Amendment right of access are just that: the public’s records, not something that can be withheld to preserve a government monopoly.”

In the trial court, Hudson ruled that no law and no appellate ruling said the press and public were entitled to access over the Internet. In other words, the law had not evolved to cover the situation before him. He then chose a low standard for judging the two-road system, saying the exclusion of press and public from Internet access was “rational.”

To defend the status quo, the state attorney general’s staff summoned a specter into the courtroom, the frightful image of internet robots and data miners. They argued that malicious operators would dig through the court records for private information.

Answering points that malicious bot activity can be defended against with simple measures and that bots, short for robots, are not by nature bad — Google Bot, for example, is what allows internet searches — were pushed aside by the parade of horribles.

At the same time, everyone in the courtroom, judge, government lawyers, press lawyers, agreed that traveling hundreds of miles to go from court to court — one by one — was a lot slower and harder than sitting back at the office or anywhere and using a computer or cell phone to look through documents from courts all around the state gathered together in one spot.

To demonstrate that point, two bureau chiefs and this editor drove last fall through the mostly rural courts in the Appalachian Mountains along the western edge of Virginia. The trip lasted for a week and covered 1000 miles. They looked through new court filings in 25 county and city courts, a small slice of the whole of Virginia courts.

What they found was a system of access dominated by computer hardware and software set up by the administrator of the Virginia courts, called the Executive Secretary. An early screen in the online software requires the user to certify he or she is a government worker or a lawyer in order to proceed to the next screen and begin a search.

Along the Appalachian way, the journalists talked with local clerks who were a varied and colorful bunch of characters and who were generally in favor of giving access to journalists. But they believed it was prohibited by rules coming from the Legislature and the executive secretary’s office.

In the Shenandoah Valley, at Salem City Circuit Court, one of the clerks, Chance Crawford, listened carefully to the journalists’ petition for online access. “I’m not saying I totally disagree with you,” he said, measuring his words. “I can’t allow it unless we get something from the federal court with regards to your lawsuit that it’s OK.”

And nearby in Roanoke City Circuit Court, Clerk Brenda Hamilton, a tall, stately black woman, answered their petition this way:

“Are you officers of the court!” she demanded.

“No, we’re journalists,” they answered in rough unison.

“I can’t give it to y’all,” she replied. “Sorry Harry, too big a weight to carry!”

Going further back in time, in 2020, this news service tangled with Virginia court officials in a case involving delays in access to new filings — a traditional source of news on the court beat.  Courthouse News won that case in the trial court and won again in the Fourth Circuit where Judge Diana Gribbon Motz wrote the opinion.

“The press and public enjoy a First Amendment right of access to newly filed civil complaints,” wrote Judge Motz. “This right requires courts to make newly filed civil complaints available as expeditiously as possible.”

As a result of those victories, Virginia ended up paying $2.4 million in attorney fees to this news service.

Nearly all the First Amendment cases brought by Courthouse News involve access takeaways brought on by a clerk setting up an electronic process, either scanning documents or filing through the Internet. The place of a 230-year-old foundational law in today’s altered landscape was maybe best put by Judge Lee Yeakel in federal court in Austin.

He was presiding last summer over a hearing in a case brought by Courthouse News against the director of the Texas Office of Court Administration, Megan LaVoie, attacking access delays brought on by the statewide switch in Texas from paper to electronic court records, a case that is ongoing.

“I think the problem we have here, really, is the problem of the electronic world. Society always is ahead of the law,” said the judge. “I can argue to you that that's good because we need one of the three branches of government that doesn't immediately react to the flavor of the day, that there's a little lag on it, a little not-quite-as-urgent as what the legislative branch or the executive branch feels.”

In black robes, at his high position above the lawyers and others in the courtroom, Yeakel then stretched his left hand out to represent the law and his right hand out to represent society. He then drew his left hand towards the right to illustrate the law catching up to society, and then pushed his right hand wide again to show society once again moving ahead.

“And it used to be society would advance and then the law would advance. Now we're in the electronic world, and society advances over here and the law advances to right here. And then society advances again.”

Coming back across the country to Virginia and moving into now, the same overarching question is at issue.

In the Fourth Circuit brief filed Friday, the Courthouse News lawyers concluded by writing, “Having joined the many other courts that provide online access, Virginia’s courts may not discriminate in who may use that access to exercise their fundamental First Amendment rights, nor prohibit those who use that access from disseminating any information about court records obtained online.”

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