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Courthouse News Service, an online news publication focused on civil litigation, has been doing a big favor for all of us whose jobs involve reading documents released by the courts: Getting clerks to hurry up and release them.
The publication has filed lawsuits against court clerks in several jurisdictions over the last few years, alleging that delays in releasing newly filed complaints to the public and the press violate the First Amendment. And perhaps surprisingly, many judges agree.
Courthouse News started filing lawsuits after its reporters started noticing delays in 2017. In one jurisdiction, their tracking found that only 19% of complaints were available to the public on the day of filing.
We doubt that these delays constitute intentional foot-dragging, especially given the federal judiciary's requests for more funding to handle its increasing workload. However, this litigation brings up an interesting question: At what point does a delay in getting court documents online violate the First Amendment?
The right of public access dates back to common law days, and the Supreme Court has acknowledged that right time and again. In 1986, SCOTUS held in Press-Enterprise Co. v. Superior Court that the First Amendment guarantees the right of access to judicial proceedings and records that "have historically been open to the press" and where public access "plays a significant positive role" in the functioning of the judicial process.
Both sides of this dispute agree there is a qualified First Amendment right of public access to newly filed complaints. However, they disagree on when that right attaches. Courthouse News argues that public access rights trigger when a new complaint is filed. But court clerks in the First Circuit contend that reporters have a right to view documents once they have been processed.
In April, the U.S. First Circuit Court of Appeals reinstated Courthouse News' case against court clerks in Bangor, Maine, who allegedly waited up to three days to release new complaints. By that point, as CN's Bill Girdner put it, "the news they contained was as stale as old bread."
The delay was built-in to a pilot electronic case filing system in Maine, which initially required court clerks to withhold public access to new complaints until three business days after at least one defendant had been served. Essentially, court clerks had to verify several pieces of information before formatting the complaints for online viewing and posting them.
In February 2021, Courthouse News and a group of local newspapers sued, and the court struck the delay from its rules. However, it still didn't specify how quickly clerks needed to make new filings available.
The district court dismissed Courthouse News's amended complaint for failure to state a claim. However, in March 2022, the First Circuit revived the case and sent it back to the state court system. Courthouse News will still have to prove their claim, but they're likely feeling confident after their win in the Fourth Circuit last year.
In July 2021, Courthouse News scored a big win in the U.S. Fourth Circuit Court of Appeals on this issue. The appeals panel held that court clerks in Virginia failed to make newly filed civil complaints "timely available" to the press and the public, violating the First Amendment right of access to public documents. Further, the Fourth Circuit affirmed the district court's conclusion that court clerks must make newly filed civil complaints available the day they are filed or, at the latest, at the end of the next court day.
Several well-known news organizations signed an amicus brief supporting Courthouse News in the Fourth Circuit case, including the Associated Press, the Boston Globe, Politico, and the New York Times. And while we sympathize with the difficulties that come with publishing content online, Judge Ralph Erickson of the Eighth Circuit summed the issue up pretty well when he handled another Courthouse News lawsuit:
"For about 230 years you could walk into a Missouri courthouse, into the clerk's office, and say, 'Hey can I see what's been filed today,' and now all of a sudden you can't."
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.