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South Carolina must face NAACP suit over ban on court data scraping

A federal judge refused to dismiss a lawsuit challenging the South Carolina Supreme Court's rule prohibiting data scrapers from accessing online court records.

(CN) — Civil rights advocates applauded Wednesday after a federal judge decided that a First Amendment lawsuit over data scraping filed by the NAACP can proceed against South Carolina court officials.

U.S. District Judge Mary Geiger Lewis, a Barack Obama appointee, ruled late Tuesday that the South Carolina State Conference of the NAACP can move forward with its suit challenging the state high court’s prohibition on the automated data collection of online court records.

“True, the evidence may eventually show that Defendants have a sufficient reason to prohibit scraping. It may indicate that the NAACP’s access to the records is unburdened by the restriction. Or, it may demonstrate that Defendants have provided sufficient alternatives to access the information. But, as alleged, the restrictions state a claim for violation of the First Amendment,” Lewis wrote.

The American Civil Liberties Union filed the suit in March after the NAACP claimed the South Carolina Supreme Court had stymied its efforts to collect data on evictions – information it needs to quickly provide resources to distressed tenants.

“The eviction crisis is ravaging South Carolina,” Allen Chaney, legal director of the ACLU of South Carolina, said in a statement. “Today’s ruling is an important step towards ensuring that the NAACP’s housing programs have access to the public court records they need to advocate for the thousands of renters facing displacement across our state.”

Brenda Murphy, president of the South Carolina NAACP, said in a statement the civil rights group brought the suit to help tenants on the verge of eviction.

“Today’s ruling moves us toward a future in which we’re able to use court records to inform tenants in our state of their rights and, over time, advocate for fairer and more just eviction-related laws to protect these tenants,” she said.

In February 2021, the South Carolina NAACP launched the Housing Navigator Program to expand its advocacy and outreach work on behalf of tenants facing eviction amid the Covid-19 pandemic. But to help distressed tenants, the group needs to find them first.

Eviction records can be publicly viewed through the Public Index, the state court system’s filing website, but manually searching through the thousands of cases filed daily would make it impossible to help tenants within the 10-day window they have to request an eviction hearing under state law.

A data scraping computer program could automate the process, rapidly searching the website for eviction cases and recording the names and addresses of tenants facing eviction. However, the South Carolina Judicial Department prohibits the use of data scrapers on the Public Index.

The NAACP said in the suit that the court would not grant it an exemption, or provide regular updates on eviction filings in the state. The civil rights group maintains that the high court’s categorical prohibition against data scraping violates the First Amendment. State Court Administrator Tonnya K. Kohn and South Carolina Chief Justice Donald W. Beatty are the named defendants in the case.

Courthouse News has a long history of challenging state court officials over similar issues. Among the decisions Lewis cited in Tuesday’s opinion was Courthouse News Service v. Brown, a 2017 case filed in the U.S. District Court of Northern Illinois.

In that case, the judge found that Clerk Dorothy Brown of the Circuit Court of Cook County violated the news organization’s rights through a policy that withheld electronically filed civil complaints until they had been processed by her office.

The judge issued a preliminary injunction against the clerk’s office, but the Chicago-based Seventh Circuit later reversed the decision and ordered the case to be dismissed, finding that it was improper for the federal court to rule on state court policy.

Other district and circuit court judges have disagreed with the Seventh Circuit's decision, however. Attorney Jon Ginsberg, who has represented Courthouse News in its battles over access to court records, noted in an email the news organization has successfully obtained injunctions or declaratory judgments in other federal courts across the country.

Tuesday's decision in South Carolina correctly recognizes a First Amendment right of access to the information at issue, Ginsberg said.

As the case proceeds, "the defendants will have to justify their practice of prohibiting the scraping of court records under constitutional scrutiny, which will require them to come forward with record evidence to establish that the access restriction at issue is narrowly tailored to achieve a compelling or significant government interest," Ginsberg added.

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