ACLU, ACLU-VA Board Member tell the Fourth Circuit: Apply the First Amendment, Unmask “Company Doe”

By Scott Michelman, Board Member, ACLU of Virginia

From October 2011 to October 2012, something very unusual happened in a federal court. A case was filed, litigated, and decided entirely in secret: secret facts, secret evidence, secret arguments, even a secret plaintiff.  The opinion, issued in July 2012, was kept from the public for three months, and when finally released it had the facts, witnesses, and name of the plaintiff blacked out.  What incredibly sensitive interest, you might ask, did the district court think could justify such secrecy?  National security?  An ongoing investigation of dangerous criminals?  Nope.  In this case, the district court granted a private company’s request to litigate under seal and under the pseudonym “Company Doe” to protect it from allegations it would rather the public not hear.  A coalition of non-profits, led by Public Citizen, and with amicus support from the national ACLU, has challenged this unprecedented break from our national tradition of court transparency under the First Amendment.  I argued the appeal yesterday before the U.S. Court of Appeals for the Fourth Circuit in Richmond.

The case concerns a report to the Consumer Product Safety Commission about a potentially dangerous product.  As specifically directed by Congress, the Commission maintains a public, web-accessible database of such complaints in order to keep the public informed about possible product hazards.  Any member of the public can submit a complaint about a product, and the manufacturer of the product is notified and has a chance to respond before the complaint goes into the public database.  In this case, Company Doe objected to the Commission that a complaint about one of its products intended for inclusion in the database was inaccurate.  Company Doe then sued to block the report from appearing in the database.  In addition, Company Doe argued that its entire lawsuit needed to be conducted in secret, even though proceedings like this are traditionally open to the public.  A coalition of consumer advocates objected to this secrecy on First Amendment grounds.

Curiously, while the district court considered Company Doe’s secrecy request, it even sealed our arguments challenging Company Doe’s secrecy request (even though we knew nothing about the company or its product, and thus our arguments could not shed light on the identity of Company Doe).  So we filed an additional motion to unseal our challenge to Company Doe’s secrecy request.  For months, we heard nothing.  Then in July 2012, we learned that the case was over, the seal was granted, our motion to unseal was denied, and Company Doe had won based on nine months of secret proceedings.  Yesterday, we argued our appeal of the district court’s decision.

The First Amendment requires that court proceedings be open absent a compelling interest.  Courts have consistently rejected the notion that corporate reputation is such an interest, as well as the claim that risk to anyone’s professional reputation (whether individual or corporation) justifies the use of a “Doe” pseudonym.  Yesterday’s appeal implicates profound issues about public oversight of the courts.  If any party can demand to litigate in secret when it fears embarrassment, the consequences could be far reaching, and litigants of all kinds — a criminal defendant accused of murder, a supervisor sued for sexual harassment, a company sued for pollution or fraud, and on and on — will be lining up to seek the same special treatment Company Doe received here.  The First Amendment guards the public’s right to know what its courts are doing and how they are performing their job.  This is how we ensure an accountable and transparent judiciary.  Anonymity has traditionally been available only for the most sensitive personal interests — such as children’s privacy, the risk of retaliation, and matters such as sexual orientation, immigration status, or intent to seek an abortion.  The ACLU’s amicus brief, importantly, urges the Fourth Circuit to impose additional procedural requirements to ensure that motions to seal are decided quickly so that cases do not proceed entirely in secret (as the case here did, because the district court did not decide the motion to seal until the case was over).  Let’s hope the Fourth Circuit applies the well established First Amendment right of access to judicial proceedings and rejects secret litigation for all but the most extraordinary cases.  Otherwise this won’t be the last “Company Doe” case.

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