Quasi Courts

     As newspapers recede in the face of the Internet, so courts are becoming publishers in their own right through the Internet.
      Most courts, state and federal, see their public duty as one that includes providing access to public documents to members of the media. An open look at the government’s business – and the courts are a central part of government in the United States – is a basic element of our nation’s political philosophy.
      Just so in Los Angeles Superior Court where the Los Angeles Times complained through published articles over the sealing of a minor business complaint involving the actress Sharon Stone. The court’s public database, if you plugged in the case number, said that the case did not exist, which is not good.
      There is a way to handle sealed cases, by acknowledging the case’s existence and its nature. And by requiring that the party to the case who wants it sealed must make a motion to be ruled on by the judge in the case.
      None of that happened in the Stone case. But the judge in the case eventually opened the case up and the court is looking to make sure that a case that does exist is not declared to be non-existent. In other matters, as well, the court’s officials have made sure that media access to public documents remains prompt and unencumbered.
      Not so in other state courts, primarily in the southern states.
      What is happening is that the courts are getting into the publishing business because they want to make money at it. In tandem with that transformation, a small minority of the courts have gone further and sought to squeeze out the competition, i.e. the media.
      In the state courts in Birmingham, for example, the clerk has been explicit about the connection between cutting off access to the media and the desire to make money by publishing online.
      But in others, the pressure is more subtle. The court pushes the media back generally citing two all-purpose reasons, security and staffing shortages. It should be clear that those reasons do not withstand examination. The press has a long tradition of looking at public documents promptly in court after court, without jeopardizing the “security” of the documents. We are just looking at them, after all.
      The staff shortage issue is also a phantom reason that vanishes under examination. Because access for the media does not require staff time. In one court, in St. Louis, it was literally a matter of reopening a door that had been locked.
      That’s all it takes, either in fact or by analogy, opening a door, letting us in to look at public documents. That is why so many courts do provide the press with prompt access, despite the fact that no court that I have ever dealt with will say they have enough staff.
      Many clerks and many presiding judges are thoughtful and understand the role of the press and will grant the access when the issue is brought to their attention. State courts in Los Angeles, San Francisco, Chicago and Manhattan are that way.
      But a few don’t get it. They publish first, make money at it, usually by selling copies of documents, but also by selling electronic feeds of docket data. And then block press access. They have monopoly power and they behave like a private monopolist.

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