News groups challenge Virginia’s prior restraint on distribution of court records

ROANOKE, Va. (CN) — One of the biggest newspaper publishers in the nation is taking on Virginia’s court administration in a lawsuit filed Tuesday.

The First Amendment action by Lee Enterprises and Courthouse News challenges a statute that prohibits attorneys from sharing public court records.

Lee Enterprises is the fourth-largest newspaper chain in the nation with 12 newspapers and 100,000 subscribers in Virginia. Lee and this news organization claim in a federal court complaint that the Virginia law violates the First Amendment and a basic principle of British common law prohibiting prior restraints on speech.

In Virginia, where public access to court records is restricted in a number of ways, only lawyers can see court documents online and they are prohibited from distributing those records to a nonlawyer.

Court administrators in Virginia run a subscription-based, online system that allows only legal teams and government officials to access court records remotely. Attorneys are then prohibited from sharing any of those documents with the public or reporters. The public can see court records only by traveling to the individual courthouse where the record is filed and only when that courthouse is open — not during lunch in some courts, for example.

A lawyer who violates the prohibition on distribution faces penalties that range from seeing online access cut off to the extreme sanction of disbarment, meaning the lawyer could no longer practice law. Subscription fees paid by the lawyers and copy fees paid at the local courthouses by the public are a regular source of income to court clerks — local politicians who run for a generously paid office.

In the rest of the nation, lawyers regularly provide journalists with copies of court records. But in Virginia, reporters from Lee’s newspapers and Courthouse News say they can’t even get new civil complaints from their own counsel due to the terms of online subscription system called Officer of the Court Remote Access, or OCRA.

“For example, on Friday afternoon, Sept. 26, 2025, the court reporter for the *Richmond Times-Dispatch *learned a complaint had been filed in Richmond Circuit Court against the parent company of the digital music streaming service Spotify and its American subsidiary, alleging Spotify had stolen an idea created by students as a class project that allows users to stream music with friends, and seeking $10 million in damages,” the news groups say in their complaint.

“The reporter, Luca Powell, could not get to the Richmond courthouse before it closed for the weekend, so he contacted the Times-Dispatch’s attorney, David Lacy, asking if he could pull the complaint off OCRA and email it to him. Lacy replied that he did have access to the filing through OCRA and would like to assist, but unfortunately his subscription agreement contained a restriction prohibiting Lacy from sending Powell a copy to review and report to the public.”

The state’s restriction on public court documents is “classic prior restraint,” the plaintiffs say, asking the court to enjoin the enforcement of the restraint and issue a judgment declaring the statute unconstitutional.

A total of 120 circuit courts distributed across an area of 30,000 square miles participate in the online subscription system. Sending reporters driving thousands of miles to cover each individual courthouse is not possible for any news organization, the groups point out.

Lee, which has six daily newspapers in Virginia, is only able to regularly cover eight of the state’s circuit courts, but would have much more expansive court coverage if reporters could obtain copies of court records uploaded in the court access system.

Courthouse News is only able to cover on a daily basis five of the commonwealth’s circuit courts, with 12 other courts covered on an intermittent basis. The news service can only report “bare-bones” docket information —  the names of the parties, court name and case type — for the remaining 103 circuit courts.

Lee’s newspapers, which don’t have the resources to send a reporter to every court in their circulation area weekly, are dependent on sources to tip them off to case updates, or luck, the plaintiffs said. “The public’s right to know about newsworthy developments in its courts should not need to depend on luck,” they say in Tuesday’s federal court complaint.

In contrast to the commonwealth’s policy, the federal courts in Virginia and throughout the nation — and state courts all around the rest of the U.S. — provide public access online to anyone who is interested, including newspaper reporters.

“None of these jurisdictions restrict online access only to state-barred attorneys or government employees,” the plaintiffs said. “And none purport to prohibit those with access from disseminating any information in or copies of public court records obtained via remote access to members of the press or other third parties for reporting to the public.”

‘Can’t give it to y’all’

In 2022, journalists from Courthouse News traveled through western Virginia, where multiple clerks said they would be happy to take subscription fees for the online record system but could not, based on rules enforced by the chief court administrator, Karl Hade, whose title is executive secretary.

“The journalists discovered that the local clerks were caught in a web of payments to the executive secretary, contracts with the executive secretary, and rules made by the executive secretary,” they said intheir report. “All of which prevented the clerks from allowing the journalists to sign up for online access. The executive secretary’s dominance of access was so pervasive that one clerk compared the secretary’s software to the Wizard of Oz because it controlled ‘everything.’”

As bureau chiefs Ryan Abbott and Adam Angione and editor Bill Girdner traveled from one court to the next, word spread and the journalists were expected by clerks who said, “I heard.” It emerged that the clerks and officials from the executive secretary’s office had been having active online discussions about the journey of the journalists and their request to subscribe for online access.

During the 2022 road trip, the three visited Roanoke City Circuit Court. They approached the clerk’s counter and were directed to a waiting area around the corner from the office of Clerk Brenda Hamilton. They sat down in a row in seats along the wall and she soon came striding around the corner.

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

They answered in rough unison that they were not, they were journalists.

“I can’t give it to y’all," she said. “Sorry Harry, too big a weight to carry!” She said Supreme Court rules prevented her from giving online access to journalists.

News like bread

The Virginia court administrators have been sued a number of times by new organizations. Courthouse News prevailed in its first action over delays in access but lost in the second action challenging the state’s refusal to allow public access online.

The first case resulted in a ruling against individual clerks by the late Senior U.S. District Judge Henry Coke Morgan Jr., who agreed that news is like bread: fresh on the day it’s made, stale the next.

“If you don’t get it when it’s fresh, it’s like stale bread,” said the George H.W. Bush appointee from the bench. Morgan granted an attorney fee award of $2.4 million in favor of Courthouse News.

The second case over the online access system went to the Fourth Circuit Court of Appeals, where a panel of judges upheld the state’s access refusal to allow journalists online access, over a strong dissent. Separately, the majority found that Courthouse News did not have standing to challenge the prior restraint because it had not pointed to an individual lawyer who would be willing to distribute a court record.

Tuesday’s action seeks to remedy the standing problem by alleging the counsel for Lee Enterprises wanted to send a court record to a journalist, but could not because he would have violated the commonwealth statute against such an action.

Lee and Courthouse News are represented by Roger Myers and Rachel Matteo-Boehm at Bryan Cave in San Francisco and Dabney Carr at Troutman Pepper in Richmond. In past litigation, Virginia has been represented by the state attorney general’s office.

“The dissemination restriction thus constitutes a ‘classic prior restraint on speech’ that is ‘subject to strict scrutiny,’ and defendants cannot satisfy strict scrutiny,” the news groups say.

“Plaintiffs thus ask this court to enter a declaratory judgment that Virginia Code § 17.1-293(H) is unconstitutional on its face, and/or unconstitutional as applied by defendants’ policies and practices. Plaintiffs also ask this court to enjoin defendants from continuing their policies, practices, and customs that prohibit the dissemination of public documents and information.”

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