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Courthouse News Service Courthouse News Service

The Quest

July 22, 2020

Courthouse News, joined by the national press corps, has been on a long journey to affirm the traditional First Amendment right of access at the time new court matters are filed. That right has now been confirmed.

Bill Girdner

By Bill Girdner

Editor of Courthouse News Service.

About 11 years and 30 million dollars ago, Courthouse News started on a quest for something that has now been outlined precisely.

The quest was for access to new civil court complaints at the point of filing, an access that had been taken away in many state courts as they moved into the electronic era.

After all those years and all those attorney bills, we now have a Ninth Circuit opinion affirming the First Amendment right to access at the point of filing.

Significantly, a brief order on the request for attorney fees spent during the long march came down a couple weeks ago.

“Significantly,” said the Ninth Circuit order, “through this litigation, Courthouse News Service (CNS) established that a First Amendment right of access to civil complaints at the time of filing exists.”

The time of filing, based on court rules throughout the nation, is the time of receipt. They are one and the same. The First Amendment right of access that exists at the time of filing also exists at the time of receipt, because it is the same moment.

We have filed eight complaints in federal courts over those eleven years, all to defend that right of access. At the trial court level, seven of eight results have been in favor of the right of access, through rulings or settlements.

The one trial court ruling that denied the right of access, decided in federal court in Orange County, was reversed in February.

The most recent trial court decision came out of the Eastern District of Virginia where I was asked on cross-examination about those years of litigation:

Q. CNS has filed several other lawsuits against clerks across the country; is that correct?

A. That’s right.

Q. These lawsuits are more or less very similar to this one; is that right?

A. The basic concept is the same.

Q. Basic concept is the same. You’ve sued clerks in California?

A. Yes.

Q. Illinois?

A. Yes.

Q. Texas?

A. Yes.

Q. New York?

A. Correct.

Q. And in all these lawsuits you allege that delays in access are being caused by clerks withholding access till after processing; is that correct?

I did not hit it cleanly at the time, but the answer to that question is, “Yes.”

So in the thousands of pages of motions, depositions, document discovery, declarations, briefs, rulings and opinions, that is really what it all boils down to.

We in the press want to see the new court filings when they are filed. Not at some later time after they are docketed.

In the context of the new electronic medium, the true colors of this ask were summarized correctly by the judge in the Eastern District, Henry Coke Morgan Jr.

“I think we probably have to hear what they have to do between the receipt of the complaint and pushing the accept button. That seems to be the period of time we’re talking about. Isn’t that what we’re talking about?”

And the true colors of the defending clerks were expressed by their lawyer: “We’ll get to that, Your Honor. Thank you.”

He never did get to that.

That failure is in keeping with the common tactic used by officials defending these First Amendment cases, which is strenuous obfuscation of the facts. Which are indeed simple. Docketing — variously called acceptance, processing, indexing or creation — takes time. And time is the enemy of news.

On redirect, I was asked about access in the federal courts:

Q. You mentioned that in federal courts you — most federal courts you see filings upon receipt; is that correct?

A. That’s correct.

Q. And does that mean before any clerk processing at all?

A. Yes.


More stories and columns on the Virginia trial:

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

Categories / Courts, Op-Ed

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