Seventh Circuit Hears First Amendment Arguments Over Press Access

CHICAGO (CN) – The Seventh Circuit was keenly aware of the national repercussions of the issue before the court at oral arguments Friday in Courthouse News Service’s First Amendment lawsuit seeking same-day access to new civil complaints filed in Chicago.

“Today’s news is tomorrow’s fish and chips wrapper,” attorney Brian Sher of Brian Cave LLP told the Seventh Circuit panel in his argument on behalf of Courthouse News, urging the appeals court to uphold an injunction requiring the Cook County clerk to give the press timely access to newly filed complaints.

For decades, the Cook County Circuit Court provided journalists from news outlets including the Chicago Tribune, Chicago Sun Times, Daily Law Bulletin, Bloomberg News, Reuters, and Courthouse News with a paper copy of just-filed complaints to review them for newsworthy cases.

But as the court has transitioned from paper to electronic filing, many new complaints are withheld from the press until court staff “accepts” the case into the court’s computer system.

Cases e-filed in the afternoon, when most big cases are filed, are often unavailable until the following day.

Electronic filing of all complaints became mandatory this summer, which has only exacerbated the problem. For example, on Thursday, the court’s website had technical difficulties from approximately 9:30 a.m. until 2 p.m. which created a major delay in access to filings, many of which were unavailable until Friday.

Seventh Circuit precedent in Grove Fresh v. Everfresh Juice sets a very high standard for public access to court documents, stating that access “should be immediate and contemporaneous.”

The three-judge panel Friday grappled with the scope of that 1994 ruling.

“When you say immediate, what do you mean by immediate?” U.S. Circuit Judge Michael Scudder asked Cook County State’s Attorney Paul Castiglione.

And U.S. Circuit Judge David Hamilton later asked Sher how much of a delay would be unacceptable.

“Are we measuring constitutional delays in minutes, hours or days?” Hamilton asked.

U.S. Circuit Judge William Bauer, who wrote the opinion in Grove Fresh, sat on Friday’s panel but did not ask any questions.

In January, U.S. District Judge William Kennelly ruled that the First Amendment requires Cook County Clerk Dorothy Brown to provide the press with immediate access to new filings, just as she did under the old paper filing system.

On appeal, the county argues that there is no First Amendment violation under the new system. Rather, it says the clerk needs the additional time to ensure no confidential information is filed electronically.

Judge Hamilton asked Castiglione, “What evidence is there that e-filers have been making mistakes that the clerk has been fixing?”

The county’s attorney admitted that there is no record on the issue, to which a frustrated Hamilton responded, “That’s your whole foundation.”

Judge Scudder pointed out that everything “was fine when we had papers on the counter,” and questioned why press access should be worse with e-filing.

Castiglione argued that the new system, while worse for the press, is better for litigants, allowing them to file at 3 a.m. from another country, instead of just during business hours at the clerk’s counter.

“I think it’s a reasonable trade-off,” he said.

But Courthouse News’ attorney Sher told the court that the current system clearly violates the First Amendment, with 40 percent of filings not available the same day they were filed.

Both Judges Hamilton and Scudder pointed out that federal courts also have a review process that results in a short delay before electronic filings are available for public access.

“So the First Amendment does not permit the court to process filings?” Scudder asked in an incredulous tone.

Sher said that in this case, “We’re unclear what they’re even reviewing.” He said Cook County did not review paper complaints for privacy concerns, and there’s no evidence the clerk is doing that now. He also clarified that Courthouse News is not asking for 24/7 access, only “contemporaneous access with filing” during business hours.

“Did you guys sit down and try to work this out?” Judge Scudder asked Sher, seeming frustrated that this issue couldn’t be worked out between the parties without federal court intervention.

Sher responded emphatically, “For months and months.”

Courthouse News was joined by 40 other news organizations as amici, represented Friday by Caitlin Vogus with the Reporters’ Committee for Freedom of the Press.

Vogus told the court that major national news organizations such as the Associated Press, Wall Street Journal and Detroit Free Press are Courthouse News subscribers and rely on its daily reports to cover newsworthy cases.

“Yes, one business day can have an impact,” Vogus told the court in no uncertain terms. “It can mean that the story is not reported at all, or has a much less prominent place in the paper.”

Courthouse News has filed a parallel case in California challenging Orange County state court clerk David Yamasaki’s withholding policy, which similarly limits same-day press access to court filings.

In that California case, U.S. District Judge Andrew Guilford in Santa Ana ruled last year in favor of the clerk, saying that “minor delays simply do not constitute a First Amendment violation.”

Judge Kennelly in Chicago expressly rejected this reasoning, however, and saw no reason why Brown could not set up a system that would give the press same-day access to complaints while protecting confidential filings.

For example, many federal courts require that confidential filings be made in paper form, while other courts require a filer to designate a filing as confidential via the e-filing system.

Courthouse News also has a case currently pending before the Ninth Circuit seeking timely access to new civil complaints in Ventura County, California.

California’s Judicial Council backed the clerk in that case, and joined Brown in the case before the Seventh Circuit as amici.

Attorney Robert Naeve represented the Judicial Council on Friday, urging the appeals court to vacate the lower court’s injunction.

The Seventh Circuit took the case under advisement, and is expected to issue a ruling within three months.

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