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Media jumps into Vermont First Amendment fray

News organizations join appellate arguments over Vermont clerk’s policy of blocking access to new complaints for a limitless time until clerical work is completed.

(CN) — A coalition of media filed a brief Wednesday in the Manhattan-based Second Circuit Court of Appeals supporting a decision that found Vermont court clerks in violation of the First Amendment.

The clerks were blocking public access to new complaints in order to first run through clerical work, often called “docketing.” U.S. District Judge Christina Reiss in Burlington enjoined their blocking practice which had destroyed a centuries-old tradition of public access to new paper filings when they crossed the clerk’s counter.

Local court clerks are often virulent in their opposition to press access ahead of their clerical work and they drive opposition. As a federal judge in a related case remarked recently, the clerks appear to be trying to protect their little fiefdoms.

In Vermont, the clerks’ reaction to the judge’s ruling was to appeal to the Second Circuit, a court that has developed a strong body of law protecting the First Amendment right of access.

“Robust, accurate news reporting requires timely access to civil complaints,” said the media brief. “Because freshness and speed are key features of the news business, a delay of even a day can result in a complete denial of meaningful access.”

News organizations signing onto the amicus brief include The Associated Press, The Boston Globe, The New York Times, Politico and The Seattle Times, among many others.

The underlying case was brought in Vermont by Courthouse News and the resulting opinion by Judge Reiss serves as a paradigm opinion in the area of First Amendment access to the public record of the courts.

She rejected weaker strands within First Amendment law, such as allowing clerks a few hours to docket or using a weak standard tied to speech in public forums. Instead she stuck to the main line of Supreme Court precedent that analyzes access to court proceedings and records in light of the 1983 Supreme Court opinion Press Enterprise v. Riverside Superior Court.

Referred to as Press Enterprise II, the ruling sets out a demanding test for any clerk attempting to limit public access to the public record. That test requires that the clerk have an overriding reason for the restriction and use the least restrictive alternative.

Once placed in that legal paddock, clerks usually lose. Because there is no overriding need to do clerical work before public access and because there are a number of easy electronic alternatives that provide public access as quickly as the old way, at the counter.

Judges hearing access cases were once practicing lawyers and they often remember the clerk’s office. “What we’re saying is, ‘Oh for about 230 years you could walk into a Missouri courthouse, into the clerk’s office, and say, ‘Hey, can I see what’s been filed today,’ and now all of a sudden you can’t, right?”

That comment by Judge Ralph Erickson who is based in Fargo, North Dakota and sits on the Eighth Circuit was made earlier this year to a lawyer defending the St. Louis County clerk’s practice of blacking out new complaints for one to two weeks before allowing public access.

Likewise, U.S. District Judge Sarah Morrison in a recent scheduling conference in Columbus, Ohio, remembered that access at the clerk’s counter. “I remember those days, when they had them there, some sitting there in the little cubicle, and they were there, that's what they did.”

Because their goose is cooked in the Press Enterprise II box, clerks scramble to stay out of it.

Their most recent tactic is to play hide the evidentiary ball. In both Texas and Maryland, lawyers working for the state attorney general have tried to withhold evidence of delays in access. The evidence, which is in electronic form, is pivotal for proving injury, a key element in any First Amendment case.

In an electronic filing system, the date and time a new complaint is received is recorded, and so is the date and time it becomes public. With that electronic data, delays can be proven in a manner that is unassailable.

So the clerks simply refuse to give up the electronic evidence.

In Baltimore, Maryland, U.S. District Judge Ellen Hollander this week expressed a high degree of skepticism about the effort by government lawyers to withhold the electronic records, but allowed them two weeks to file a written response to a Courthouse News motion to compel production of the evidence.

And this afternoon, U.S. Magistrate Mark Lane granted a motion to compel brought by Courthouse News seeking electronic records that had been denied by the Texas Office of Court Administration. The Texas case is headed for a trial in roughly one week before U.S. Judge Lee Yeakel in Austin.

Resistance from court clerks coalesces under an anti-public access rubric called “practical obscurity.” The notion is premised on an inaccurate idea that paper records were hard to find or “obscure,” and therefore electronic records should also be made hard to find even though they are public, thus, “practical obscurity.”

Paper records were in fact well organized in courthouse records rooms, and traditional access at the counter was at the time of receipt.

The clerks' motives are regularly shown to be less than altruistic, however. The clerks are openly trying to hang onto the records as a source of income from copy fees, and are defiant of federal court orders in defense of their local fiefdoms.

In a survey of Texas court clerks asking what they had to say about a request by the media for access at the time a new complaint is filed, one clerk wrote, “THAT REQUEST IS TOTALLY RIDICULOUS!!!”

In the Vermont case, the media amicus brief set the table for the appellate panel, invoking the test of Press Enterprise II.

“As the District Court found, Defendants have made no showing to justify that restricting public access to civil complaints until a clerk completes a multi-point administrative review is ‘necessary to protect the orderly administration of justice,’” said the media brief.

“Moreover, it is difficult to imagine that there are no less restrictive means available to advance Defendants’ purported interest than to deny public access to civil complaints for an indefinite period of time—which could range from hours to weeks—while a court clerk completes an administrative review.”

The brief also provided a strong example of the need for reporting on new civil complaints:

“For example, on the morning of August 26, 2021, seven U.S. Capitol police officers filed a complaint in the U.S. District Court for the District of Columbia, alleging that former President Donald Trump and others conspired to incite the violent attack on the U.S. Capitol. By 11:11 a.m., BuzzFeedNews legal reporter Zoe Tillman tweeted a link to the complaint which was quickly re-shared by users more than one thousand times.

"Within the next two hours, Tillman and other reporters published articles reporting on the lawsuit in greater depth. And, that evening, MSNBC news anchor Chris Hayes examined the lawsuit in detail during his 8:00 p.m. ET news broadcast. Without contemporaneous access to the complaint, this level of timely reporting and robust discussion would not have been possible."

The amicus brief is written by Katie Townsend with The Reporters Committee for Freedom of the Press.

The main brief on behalf of Courthouse News is written by Jonathan Ginsberg with Bryan Cave in New York.

The brief on behalf of the Vermont clerks is written by David Boyd working for Vermont Attorney General Susanne Young.

New entities signing in support of the media brief also include: BuzzFeed, The Center for Investigative Reporting, First Amendment Coalition, First Look Institute, Hearst Corporation, The Inter American Press Association, The Media Law Resource Center, Mother Jones, The National Association of Black Journalists, The National Association of Broadcasters, The National Freedom of Information Coalition, The National Press Club, National Press Photographers Association, News Media Alliance, Online News Association, Pro Publica, Inc., Pulitzer Center on Crisis Reporting, Radio Television Digital News Association, The Society of Environmental Journalists, Society of Professional Journalists and the Student Press Law Center.

Categories / Appeals, Civil Rights, Media

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