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Courthouse News Service Courthouse News Service

Virginia officials must face First Amendment suit over restricted online court access

Constitutional claims over strict limitations on access to Virginia’s online court records could go to trial this summer.

RICHMOND, Va. (CN) — Siding with Courthouse News on Friday, a federal judge in Virginia found the state’s online civil court system could run afoul of the First Amendment.

The Officer of the Court Remote Access system, known as OCRA, makes civil filings available to attorneys via a per-court subscription fee. About 90 of Virginia’s 120 courts participate in the system. Once authorized, a user can access filings from their subscribed courts anywhere they have internet access.

But the public and news outlets like California-based Courthouse News have been shut out of OCRA and must instead physically go to state courts to view the very same documents lawyers and judges have easy online access to. 

"It is well-settled that the press and public have a right of access to most, if not all, civil court records," wrote Senior U.S. District Judge Henry Hudson in an opinion released Friday afternoon.

The Ronald Reagan appointee also said shutting out non-attorneys is “not narrowly tailored to preserve a significant governmental interest and thus could violate the First Amendment."

Courthouse News bureau chief Ryan Abbott applauded the ruling in a statement Friday.

“An attorney can fire up their computer and see complaints from across the state in minutes while reporters have to drive hundreds of miles in a day only to make it to a number of courthouses you could count on one hand,” Abbott said. “That’s restricting access and violating the First Amendment.”

Friday’s 14-page ruling comes after Courthouse News filed a federal lawsuit last year challenging the closed-door OCRA policy adopted by clerks of local courts. The company’s case has been backed by a local publication, the Fredericksburg Free Lance-Star, which published an op-ed last month arguing the public should be let in.  

The limit on access to the system was tested when Courthouse News sought authorization from Prince William County Clerk Jacqueline C. Smith. Both sides went back and forth before the clerk offered the news outlet access for $1,200 a year, more than six times the rate attorneys are charged. In addition, the clerk required that this news service avoid publishing any news derived from access to OCRA.

Attorney Jonathan E. Ginsberg with the law firm Bryan Cave argued on behalf of Courthouse News in a hearing Monday. He told Hudson that the company hires reporters to visit courts and access civil documents daily, and said being forced to travel to throughout the state to visit additional courts amounts to an unconstitutional burden compared to the digital access being granted to a privileged few. 

While Hudson allowed two First Amendment counts to proceed, he dismissed an equal protection claim, finding Courthouse News failed to show the state's claimed interest in protecting confidential and private information contained in online court records was without merit. 

“The amended complaint does not contain any factual allegations that the government's interest is implausible or lacks all rationality,” he wrote. “It is, at a minimum, rational to believe that limiting OCRA access to attorneys would protect confidential and private information because attorneys are more easily regulated by the court system.”

Pending appeals from the state, the dispute could go to trial as early as July.

Attempts to reach outgoing Democratic Virginia Attorney General Mark Herring for comment were not returned by press time. Republican Attorney General-elect Jason Miyares, who takes over the office this weekend, was also unavailable for comment.

Courthouse News is currently challenging similar access restrictions by state court clerks within the First, Second, Fifth, Sixth, Eighth, Ninth and Tenth circuits, in addition to the Fourth, which covers Virginia. It has already won First Amendment actions against clerks within the Second, Fourth, Fifth and Ninth circuits.

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Categories / Civil Rights, Courts, Media, Technology

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