BOSTON (CN) — In a lawsuit brought by Courthouse News, media outlets sparred Wednesday with the Maine court system over whether dawdling by the state in the public release of newly filed lawsuits violates the First Amendment.
The episode of weighty constitutional debate had been slated to take 30 minutes, but arguments before the First Circuit in Boston lasted well over an hour this morning. In addition to voicing frustration at underdevelopment of the record, the justices grilled the lawyers about the technicalities of clerk’s office processing procedures, including an extended colloquy over what would happen if somebody electronically filed a document that simply said “I hate the county clerk.”
In the end they seemed inclined to send the case back to the trial court for further proceedings — which would be a win for the news media since the lower court had dismissed the case without a trial.
“At this point we have no idea what those delays are or are not. We have no idea because nobody’s briefed it,” U.S. Circuit Judge Sandra Lynch complained. “There seem to be all sorts of unanswered questions here.”
The case arose after the Maine court system released new rules for electronic access to court documents in August 2020. Courthouse News and other media outlets sued, claiming that the new system caused delays ranging from three days to several weeks for the public to get hold of the documents that formally commence a lawsuit, known as complaints in legal parlance.
While the court system responded with new rules that it said would result in access after four business hours, Courthouse News said more than a quarter of the cases were still not being released until the next day and some took much longer than that.
A federal judge ruled that there was no First Amendment right to “instantaneous” access, finding it acceptable for court clerks to process the complaints before releasing them. The appeal from Courthouse News brought the parties to the First Circuit on Wednesday.
Access has to be contemporaneous unless there’s a good reason for delay, the media outlets argued, citing a number of other courts that have held this way under the First Amendment. There’s no good reason for clerks to spend hours or days processing complaints — or letting them languish in a queue — before releasing the documents, they claimed, especially now that so much of filing is electronic.
Courthouse News was supported by an amicus brief written by The Reporters Committee for Freedom of the Press and signed by 28 media organizations including The Associated Press, NBC, The New York Times and The Boston Globe.
“Access delayed is access denied, for both the press and the public,” the amicus brief states. “Delaying access by even one day may imperil the news media’s ability to provide meaningful reporting on new lawsuits, as the next day’s headlines can eclipse yesterday’s news.”
Listen to Wednesday's oral arguments at the First Circuit
Clerks process complaints by making sure they meet all the technical requirements — that they’re filed in the right court, signed, presented in the proper format, include a filing fee and the filing attorney’s bar number, and so on. Clerks can reject a complaint that doesn’t meet the requirements and require that it be refiled. Under the Maine system, complaints aren’t released to the press until they’ve been processed and accepted.
“You seem to be arguing,” U.S. Chief Circuit Judge David Barron told Maine’s lawyer, that until that point “it’s not a complaint, so the First Amendment doesn’t apply. I don’t know any cases that support that.”
The lawyer, Maine's Assistant Attorney General Thomas Knowlton, compared an unprocessed filing to an unopened piece of mail. “There is no positive functional news value to a document that may never be accepted,” he said.
“So how much processing are you entitled to do before it becomes a judicial record?” asked Barron, an Obama appointee. “However long you want to take with it? What’s the test?”
Knowlton tried to change the subject but Barron pursued him. “How long can you delay opening the mail?” he demanded. “Forever?”
Timeliness is measured from when the document is first submitted, Knowlton said. “Then you’re conceding that’s it’s a document when submitted?” Barron asked.
“We’re not conceding that,” Knowlton insisted.
“But you just said that!” exclaimed U.S. Circuit Judge O. Rogeriee Thompson, an Obama appointee. And Lynch, who was appointed by President Clinton, said Knowlton was being “inconsistent.”
The judges also had tough questions for Courthouse News’ lawyer, Barbara Smith of Bryan Cave in St. Louis, focusing on whether a document is really a complaint if it hasn’t been accepted.
“I could file a piece of paper that says I hate the county clerk, is that correct?” Barron asked.
“If you filled in some gibberish and checked the boxes and the complaint was nonsense, yes,” said Smith.
“And do you have a right to that nonsense document?”
“Yes,” said Smith.
But “how do we articulate what a complaint is before the clerk’s office has done all it needs to do?” Barron asked. “You need a point in time at which it becomes a complaint. For the First Amendment I need some way to define what is a civil complaint.”
“If an attorney files a document and says it’s a complaint, it’s a complaint,” Smith said “We’re still entitled to a nonconforming complaint.” She noted that, even if a complaint is rejected and refiled, the original filing counts for statute of limitations purposes.
Barron suggested that unprocessed documents were merely “contingent complaints. We don’t know if they’ll be complaints.” But Smith said “there’s a presumption that it’s a complaint. The issue is not whether it’s a complaint, just whether it complies with the rules.”
As arguments concluded, Barron noted that “one way we could resolve the case in your favor” is to hold that, whatever First Amendment test applies, “it should still go forward for discovery.”
Smith agreed and said the government had the burden of justifying any delays and that required further proceedings.
Lynch said there was an argument that “there aren’t enough facts here and the district court was too hasty. And this morning we have been treated to differences of view as to what the facts are.” Suggesting a remand was necessary, she said the First Amendment result “may depend on what the facts show.”
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