A key element in the First Amendment cases brought by Courthouse News over the years has been the damage caused by delay. But how do I explain the idea that news evaporates with the passage of time.
The best explanation is the most basic one, that the news follows the daily cycle of life. Events take place during the day, they are reported during the day and the reporting is read or heard or seen at the end of the day.
Then everybody goes to sleep, newsmakers and journalists alike. And the whole rat race starts all over again the next morning.
It is the explanation I finally put to words under oath in the witness box during a four-day trial in federal court in Norfolk.
Our lead attorney, William Hibsher with Bryan Cave, started off by asking me about changes in how the media covers the courts.
Q: Over the years, did you notice that the number of reporters covering the courts had declined?
A: Yes. The number has been decimated.
Q: So what is Courthouse News’ role in reporting on new civil litigations or media subscribers?
A: For much of the media we’ve become their eyes and ears. The LA Times, they don’t staff the press room anymore, but they want to see the new civil complaints. So they subscribe to our news service for federal court in Los Angeles.
Q: So how do lawyer subscribers rely on the New Litigation Reports?
A: They rely on the reports to tell their clients that they have been sued, to warn them. Preparing a defense. They also want to see related litigation that may affect their client. They want to see what their opponents are up to, what cases they’re filing. They’re human. They work at the courthouse. They want to know what’s happening at the courthouse.
Q: Besides the interest of your lawyer subscribers, in what ways are civil litigations generally newsworthy?
A: I call it the gong of war. What was a private dispute is brought up into the public sector. The plaintiff invokes the power of the court, the power of the public. And many of the cases are certainly ordinary, but some of them are of great interest.
Q: So why is contemporaneous access by the end of the day of filing so important to Courthouse News Service?
A: The news cycle follows the basic cycle of life. News happens during the day, it’s reported during the day, it’s consumed, it’s read, seen, heard, that day and discussed, and then everybody goes to sleep. And the whole cycle starts again the next day. If you try to take old news and push it into that current cycle, the old news automatically goes in underneath, like a lower strata. It’s not as widely read, it’s not as valuable or important.
COURT: When you used to go around – excuse me for interrupting – when you used to go around to these boxes, box one with the filings, box two with the orders, you went at 4:30, I think you said?
WITNESS: That’s what I said, yes, Your Honor.
COURT: Well, if somebody filed something at five minutes to 5:00 you might not see it.
WITNESS: Almost all these courts gave us a grace period.
COURT: You mean they let you stay after they closed?
WITNESS: Yeah. So the federal courts often close at 4:30 to the public, but folks are still in line. We could stay until 5:00.
BY MR. HIBSHER:
Q: Sir, with regard to what you just said, Mr. Girdner, about exceptions, is it fair to say Courthouse News does not insist on seeing 100 percent of the new filings on that day?
A: We never ask for perfection. We don’t. I don’t expect that.
Q: Okay. But overall what is the harm to Courthouse News if new cases are not made available for one, two, three days?
A: Our reports are more – I think [opposing counsel] Mr. Prince said this in his opening, our reports are more valuable because they’re timely. We’re harmed when they’re late, when we’re reporting on late cases. Our reputation is built on speed and thoroughness. So the reports are less valuable to the subscribers. I think they’re less valuable to the subscribers because they’re late. And I, I believe it’s harmful to the court, a veil is put on the court, so that they’re less open.
Q: So the veil is a veil of silence if the case isn’t made available; is that correct?
A: Yes. Cutting us off from seeing them.
I held up my hand flat and drew it from left to right, to illustrate the veil drawn over the court when we cannot see the documents on the day they come into court.
At the conclusion of a four-day trial, U.S. Judge Henry Coke Morgan Jr. ruled in favor of Courthouse News. He said the press and public have a First Amendment right to see the new filings on the day they are filed, where “practicable.” The word is defined by Merriam-Webster as “capable of being put into practice or of being done or accomplished: feasible.”
The judge got it right. That is what we have always asked for, not perfection, but instead what a clerk is fully capable of putting into practice.