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The Second Circuit and the First Amendment

April 25, 2023

A hearing before Second Circuit judges Richard Sullivan and Pierre Leval raised a question about where consideration of our First Amendment case stood in the context of history and reality in the Second Circuit itself.

Bill Girdner

By Bill Girdner

Editor of Courthouse News Service.

It was the rumble of the trains. That’s when I felt the vibe of New York City.

It came after the car went from the Roxy Hotel then through the narrow, crowded blocks of Chinatown, across the Manhattan Bridge and then along Atlantic Avenue through Brooklyn. Alongside Atlantic ran the elevated train tracks I had seen in chase scenes from movies and TV shows set in New York City.

I kept asking the car driver as we covered mile after mile, “So what neighborhood are we in now.”

He answered with a laugh the third time, “We’re still in Brooklyn.”

I am used to driving to airports on freeways, so it was a pleasure to look out the window at passing Indian restaurants and car repair shops on the hour-long drive. At intervals, I heard the clack and rumble of the train overhead, and then it hit me. I was in the fabled city.

Long planned but not scheduled until the Second Circuit set the date, the occasion for the trip was arguments on our First Amendment action against the Vermont clerks. U.S. Judge Christina Reiss in Vermont had enjoined them from sealing the new cases while the clerks docketed them.

Never content to provide timely public access, the clerks had appealed.

With three lawyers, three bureau chiefs and two New York reporters for Courthouse News, we enter the refurbished Second Circuit courthouse on Foley Square in Lower Manhattan. It reminds me of the old Central District courthouse in Los Angeles, abandoned by the judges for a white cube a couple blocks away.

Rich wood molding in the ceiling, brass and marble and dark, carved wood elevators. The 17th floor courtroom for our panel has an ornate ceiling molding of white and rust-red. A total of 11 law clerks file into the room, with our case first up.

As the argument gets under way, Judge Denny Chin says, “It doesn’t seem to be much of a problem,” referring to the total of two complaints where lawyers had included exhibits with private identifiers. But Judge Richard Sullivan is especially concerned about privacy and asks if the lawyer for Courthouse News would want his identifying information on the internet. And Judge Pierre Leval is concerned about the injunction, thinking declaratory relief would have been better.

I was surprised by the comments from Sullivan and Leval. When I testified in 2008, in our first case over delays imposed by state court clerks as they switched to e-filing, I remember how interested Judge Melinda Harmon was in the access procedure followed in her own federal courthouse in Houston.

From the witness chair, I explained that we saw the new complaints in paper form at the counter in a white plastic box normally used for transporting mail. In the transition to e-filing, the Southern District of Texas had kept the same access-on-receipt standard in place, showing the new cases online and at the courthouse as soon as they were received.

I had hoped the Second Circuit judges would have the same curiosity about how access works in the federal courts, including the Second Circuit itself.

The access is on-receipt, when the new filing is received. That is the very same access that resulted from the injunction in Vermont. So the Vermont injunction is not a radical departure from widespread practice.

It is simply the continuation of the same access that has been in place for decades if not centuries in American courts, and it is the same access currently in place throughout the federal courts.

As for Reiss’ injunction, it is pretty much identical to the injunction ordered by Judge Edgardo Ramos five years ago in the Southern District of New York, basically across the street from the Second Circuit courthouse. As a result of that injunction, New York state courts started giving public access at the time of receipt and have done so for five years now.

The sky has not fallen.

I had planned to stay on after the arguments. The bureau chiefs had bought tickets for the Broadway show "Moulin Rouge" the next night. But to my chagrin I had to get a car to take me out to JFK for a flight to Austin.

Where the next morning we had a status conference in our case over the same access take-away — in the switch from paper to e-filing — in Texas. Newly assigned to the case, Judge David Ezra remembered from the bench how access worked in Hawaii when he started out as a lawyer.

“When I was in Hawaii, in the Clerk’s Office there, a new complaint would be filed, they would have a box, it actually was made of metal if I remember right,” said Ezra. “And it was sitting there and the clerk would give you one copy and she’d throw a copy in there, and that was for the press. And my understanding is that that’s kind of the way it was done here before they went to electronic filing.”

Just so.

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