National Press Corps Enters First Amendment Fray to See Court Filings on Same Day

The Lewis F. Powell, Jr. Courthouse, home of the Fourth Circuit, in Richmond, Virginia. (Acroterion via Wikipedia)

(CN) — The national press corps filed a brief Monday in the Fourth Circuit Court of Appeals in support of a ruling that said press and public have a First Amendment right to see new court complaints on the day they are filed.

Over entrenched resistance from Virginia’s state court clerks, a federal judge in Richmond ruled earlier this year that the First Amendment encompasses the press’s right to see new filings on the same day.

“The First Amendment requires that such documents be made available contemporaneously with their filing. Contemporaneously means the same day unless that’s not practicable,” ruled U.S. Judge Henry Coke Morgan Jr. after a four-day trial in the Eastern District of Virginia.

During the trial held late in January, two publicly elected clerks paid a private law firm in Virginia to use a full range of defense tactics — criticized by the judge as “an exercise in obfuscation” — to fight against the right of access. In addition to the public funds spent by the clerks to pay private lawyers, they were hit last week with a $2 million bill for attorney fees paid by Courthouse News in successfully pursuing the First Amendment rights of the press.

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Read the Schaefer trial transcript:  Volume 1   Volume 2   Volume 3   Volume 4

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Despite those defeats, the Virginia clerks have through their private lawyers continued to fight Morgan’s ruling. They have appealed his decision to the U.S. Fourth Circuit Court of Appeals where briefs are currently being submitted.

Entering the fray, the Reporters Committee for Freedom the Press filed an amicus brief Monday that said, “Because freshness and speed are key aspects of the news business, delay can result in a complete denial of meaningful access, both for reporters and for the member of the public who rely on the press for information.”

Signing onto the amicus brief — which the Fourth Circuit allowed in an order Tuesday — is a national roster of media, including The Associated Press, Boston Globe Media Partners, California News Publishers Association, The E.W. Scripps Company, Gannett Co., Inc., National Association of Broadcasters, The New York Times Company, POLITICO LLC, Radio Television Digital News Association, Sinclair Broadcasting Group, Inc. and the Virginia Press Association, among a host of others.

“By definition, news must be timely,” said their brief. “News is not breaking or hot unless it is contemporaneous. In the era of online publishing, especially, news is disseminated instantaneously, and the public expects to obtain up-to-the-second information.”

Among the courts of the nation, a line has emerged. The federal courts and a minority of state courts provide access to new complaints as soon as they are received. On the other side of the line are a large number of state court clerks who oppose such prompt access even in the digital age, saying they must first look over the new filings and enter them into their dockets.

The clerical work associated with that process often takes a day or two, causing the news in the new complaints to go stale. “I think that the point the plaintiff’s making is that it has its news value as soon as it happens,” said Morgan in the Eastern District of Virginia. “If you don’t get it when it’s fresh, it’s like stale bread.”

Among those state officials providing contemporaneous access to new complaints are clerks in Alabama, California, Connecticut, Georgia, Hawaii, Nevada, New York and Utah. Resisting that access are clerks in Florida, Illinois, Kansas, Minnesota, Missouri and Texas, among others.

Over the course of a decade, First Amendment law in the area has become increasingly well defined. In litigation over press access in a small court on the Central Coast of California, the U.S. Ninth Circuit Court of Appeals in January affirmed an injunction against the Ventura clerk’s “no-access-before-process policy.”

That ruling also entitles the prevailing party, Courthouse News, to recoup attorney fees resulting from hotly contested litigation that stretched from 2011 to the present day. “Significantly, however, through this litigation, Courthouse News Service (CNS) established that a First Amendment right of access to civil complaints at the time of filing exists,” said a brief order handed down last week.

The order sent the issue of attorney fees back to the district court to determine.

Among the tactics used by state clerks fighting contemporaneous access are both denigration of the press and an attempt to redefine “filing” to correspond to the time when the clerk’s clerical work is completed.

For example, state court officials submitted an amicus brief in the recently decided Ninth Circuit case, saying  contemporaneous access served as “an open invitation for those who would use such records to gratify private spite or promote public scandal.”

In terms of timing, the same state court clerks attempt to conflate filing and the later process of entering the new filing into the docket. That argument has been refuted by state and federal court rules themselves which, without exception, define the time of filing as the time of receipt.

Over the last decade, the battles for press access in the nation’s courts has been further complicated by private vendors that are attempting to control the public record. The vendors charge lawyers to file court documents and then charge press and public to see the same documents.

In contrast, federal courts and state courts in Connecticut, New York and Hawaii have set up their own systems for electronic filing and public access, and as a result avoided entanglements with private operators. Nearly all the courts that run their own filing operations provide press and public access at the time of receipt.

In their amicus brief filed Monday, the national media wrote, “Timeliness is a critical component of news. As one journalism scholar stated succinctly, ‘It is, after all, called the “news” business and not the “olds” business.’ The U.S. Supreme Court and the federal courts of appeals have repeatedly recognized timeliness as a fundamental feature of news.”

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More stories and columns on the Virginia trial:

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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