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News coalition joins case attacking Virginia access policy

National news organizations have joined in a First Amendment challenge to a Virginia policy that allows insiders to look at court records online while denying access to the public.

(CN) — A coalition of national and regional newspapers have piled into a legal brief attacking Virginia’s two-road system of access to court records where one privileged group can review the records online while the press and public are cut off.

Virginia’s court clerks sell access to court records online to pad their budgets which are initially set by the Legislature of the Virginia Commonwealth. They allow lawyers to sign up and then give access to government officials for free.

But they deny access to news reporters and all others. The Virginia Attorney General is defending the policy with the argument that internet bots might look for private information if access is opened up.

The brief by the Reporter Committee for Freedom of the Press was filed late Friday in the Fourth Circuit Court of Appeals which has jurisdiction over Virginia, Maryland, North Carolina and West Virginia. The coalition joining in the brief includes The Washington Post and The New York Times as well as regional news groups such as The Virginian-Pilot and the North Carolina Press Association.

Virginia’s policy operates as a restriction on access and therefore invokes scrutiny under the First Amendment, the brief argues. A restriction on access to court records and proceedings must be tested under Supreme Court precedent laid down in a case called Press Enterprise II.

Following that case, a government entity is required to justify any access restriction by showing an overriding interest and by showing it has used the least restrictive method to uphold that interest.

Virginia’s clerks have relied on the danger of bots as their justification. But rather than using the least restrictive method to protect against that danger, they have used a machete. They have simply cut off online access for reporters and the public, according to the brief which refers to the clerks and court administrators as “appellees.”

“It defies reason to contend there are no less restrictive means available to advance Appellees’ purported interest in ‘promoting critical privacy and security interests of Virginia litigants’ than the wholesale denial of access to anyone other than Virginia-licensed attorneys and select government agencies,” said the brief. “This approach is in no way narrowly tailored and, thus, it cannot pass constitutional muster under Press Enterprise II.”

The original First Amendment case was brought by Courthouse News, challenging Virginia’s online policy because in practice it blocks coverage of most Virginia courts. A reporter can still travel from court to court and look at local court records.

And a group of reporters for Courthouse News did just that last fall, driving to 25 courts in the Shenandoah Valley and other regions alongside the Appalachian Mountains. The trip took five days and covered 1000 miles to review court records in only a portion of the roughly 100 Virginia courts that put their records online.

“The time and personnel necessary to travel to multiple courthouses over multiple counties make obtaining access to civil court records in proceedings across the Commonwealth impracticable, if not impossible, thus depriving the public of reporting on matters of public interest and concern,” said the brief filed late Friday.

In addition to the impracticability of making that kind of trip on a regular basis, the policy of requiring travel from court to court delays coverage of news coming out of those courts.

”Delaying access by even one day may imperil the news media’s ability to provide meaningful reporting on newly filed, newsworthy lawsuits, as the next day’s headlines can eclipse yesterday’s news,” said the brief. “In contrast, timely access to civil court records allows the news media to report on them when their newsworthiness is at its apex.”

And it has the effect of denying people in smaller communities any news about what is happening in their local courts. That is because the last two decades have devastated local news outlets, creating what the brief called “news deserts” where no local coverage exists. Allowing long-distance access through the internet would let other publications cover local cases when they are of high interest.

However, those arguments did not work in the trial court where a federal judge ruled that no law or court decision says there is a constitutional right to access via the internet.

Courthouse News has appealed that ruling and filed its brief earlier this month. The amicus brief followed.  Representing Courthouse News are Roger Myers, Rachel Matteo-Boehm and Jon Ginsberg with the Bryan Cave law firm. Representing the amicus coalition are Bruce Brown, Katie Townsend, Shannon Jankowski and Tyler Takemoto.

The list of new organizations joining the coalition is long.

It includes: The Associated Press; The Atlantic Monthly Group LLC; Axios Media Inc.; The Center for Investigative Reporting (d/b/a Reveal); The E.W. Scripps Company; First Amendment Coalition; Freedom of the Press Foundation; Gannett Co., Inc.; Institute for Nonprofit News; International Documentary Association; Investigative Reporting Workshop at American University; The McClatchy Company, LLC; The Media Institute; Mother Jones; National Freedom of Information Coalition; National Newspaper Association; The National Press Club; National Press Club Journalism Institute; National Press Photographers Association; New England First Amendment Coalition; The New York Times Company; The News Leaders Association; News/Media Alliance; North Carolina Open Government Coalition; North Carolina Press Association; Pro Publica, Inc.; Radio Television Digital News Association; Society of Environmental Journalists; Society of Professional Journalists; South Carolina Press Association; Student Press Law Center; TEGNA Inc.; TIME USA, LLC; Tribune Publishing Company, d/b/a the Daily Press and The Virginian-Pilot; Tully Center for Free Speech; Virginia Coalition for Open Government; Virginia Press Association; and The Washington Post.

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