The Public Is Thems That Pays

So I once thought that after so many First Amendment wins, the tide would turn.

Bureaucrats would see that resisting a founding principle of American law buttressed by judges from all points on the political spectrum was indeed like trying to hold back the tide.

We have prevailed in seven out of eight federal district courts on First Amendment complaints for press access to court records, with the one loss recently reversed by the Ninth Circuit. And we have collected and are continuing to collect a portion of our attorney fees for those wins.

But even in courts where we have already won and obtained fees, it doesn’t matter. The clerks still dig in their heels opposing timely access to electronic records.

I have come to the conclusion that it’s because of two things. One is that a small army of state court bureaucrats have adopted an almost religious adherence to a doctrine that says access to electronic court records should be restricted. The second is that clerks are not spending their own money.

They don’t pay for the lawyers to fight against press access and they don’t pay our fees if they lose. The public, unknowing, burdened, tired of the bureaucracies that run their lives — them's the ones that pays.

A few weeks ago, a federal judge in Virginia gave us the highest award yet for a First Amendment victory, $2 million in fees. Now has that loss influenced the clerks who fight against access?

Not one bit. They stick to their faith in a bureaucratic religion that has taken hold among a broad swath of state court clerks, especially those who are political in the sense that they like to be on committees.

Their doctrine is simple. It came out of a series of conclaves called in Williamsburg by the Conference of State Court Administrators in the middle of the last decade.

What the Williamsburg conclaves revealed was a doctrinal schism, not entirely unlike those that emerge in a nascent religion, between those who give the press and public on-receipt access to electronic court records and those who deny it.

Out of the conclaves, the doctrine that emerged as the true path of the bureaucratic faithful was called “practical obscurity.” This branch of the faith holds that paper court records were hard to find in practice so access to electronic records should be restricted. If that logic seems nutty, it is because logic is not a factor in matters of faith.

The doctrine has been remarkably pervasive among state courts, flipping court committees that once adhered to First Amendment principles over to official cabals muttering over a complex matrix of restrictions.

A break-away group of state courts, however, has since returned to the original teachings of the First Amendment. Courts in eight states now provide on-receipt electronic access to newly filed court records, following the old tenets still kept in the federal courts.

Reason has been shown to be unpersuasive for those on the Restrictionist side of the great schism. But so too has a multimillion-dollar fee award. So if a hammer blow to his budget cannot convince a clerk to move away from the Restrictionist path, what can.

State court administrative offices, operating under the aegis of the state’s chief justice, will almost never move them. In none of our eight cases has a state administrative office intervened to support press access.

In California, as in other states, it has been the opposite. The administrative office bankrolls the clerk’s private-firm defense and does no more than wave a hand towards settlement.

And what about the legislatures. We tried that in Colorado. The Legislature wound up taking over the e-filing system because Colorado could save money that way. But, perversely, the politicians left public access in the hands of the very vendor they had just disenfranchised. They cared not a whit about access to public records.

So who is left. Well, the only folks left to control the state clerks directly — before they start tapping the public bank account to pursue Restrictionism — are the presiding judges.

So it is that we in the press could use some help from presiding judges who have indeed, in some state courts, intervened to enforce First Amendment access. But where they wave the matter off to the clerk, which is more common, that powerful civil servant will most times start tapping the public account in the name of Restrictionism.

And by the time the fight gets into federal court, the spigot is open wide and the public’s precious coins are draining away. So on behalf of the public and the press, I am asking the presiding judges of state courts, those who have not already done so, to get their clerks under control.

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More stories and columns on the Virginia trial and the First Amendment fights:

Clarity * The Quest * Two Judges and the Williamsburg Ghost * First Amendment Bright Line in the Digital Age * National Press Corps Enter First Amendment Fray to See Court Filings on Same Day * U.S. Judge Slaps Virginia Clerks With $2 Million Fee Award in First Amendment Case * E-Filing and the First Amendment * Matter of Choice * The Dicta: Guesswork About Press Access * Presumption and Fact: The Ask for Access * ‘CNS’s View’ Accurately Told * Access Solution: The E-Inbox * Access Law in the Electronic Age * Bread and News * Flip Side of Court Tech * First Amendment Right to See Court Documents on Day of Filing * Tradition of Same-Day Access * The News Cycle