Fourth Circuit Vindicates First Amendment Right to Access Court Proceedings, Rejects Secret Litigation

By Scott Michelman, board member of the ACLU of Virginia and an attorney with Public Citizen

Scott_MichelmanIn a resounding victory for the First Amendment right of access to court records, the U.S. Court of Appeals for the Fourth Circuit in Richmond held this week in Company Doe v. Public Citizen that a district court should not have sealed records and allowed the use of a pseudonym in a challenge to the inclusion of a product safety report in a federal consumer product safety database. The district court had decided the case entirely in secret, with secret facts, secret proceedings, and a secret plaintiff. In ordering that the record of the litigation be unsealed and the name of the company revealed, the Fourth Circuit sent a strong message disapproving of secret litigation.

By way of background, in the fall of 2011, a company sued the Consumer Product Safety Commission (CPSC) to keep a complaint about one of the company’s products out of the product safety database that the CPSC had created to help consumers learn about product hazards. When it filed its suit, the company also moved to seal the case and proceed under a pseudonym. I represent a coalition of consumer groups, led by Public Citizen, who objected to the seal before the district court. A year later, the district court not only granted the seal and pseudonym, but also ruled in the company’s favor. As it turns out — unbeknownst to the consumer groups or the public — the court had been holding hearings on the merits of the case behind closed doors for months. The court’s 73-page redacted decision on summary judgment contains large blocks of blacked-out text that at times make it nearly unreadable. (Here’s an excerpt: “[T]he report states that [REDACTED]. But the report does not indicate how [REDACTED] is connected to [REDACTED].”)

The consumer groups appealed, and this week we won a unanimous decision from the Fourth Circuit (with one judge writing separately but agreeing with the result) reversing the district court and holding that:

-Injury to corporate reputation is not enough to justify sealing court records under the First Amendment;

-Judicial opinions, summary judgment materials, and docket sheets are protected by the First Amendment right of access to courts;

-Permitting a company to use a pseudonym to challenge the inclusion of a report in the CPSC database was an abuse of discretion in light of the public interest in the operation of the database; and

-District courts must act expeditiously on sealing requests because the right of access to court proceedings is the right of contemporaneous access.

The court ordered the district court record unsealed in its entirety, so the public will learn the identity of Company Doe once the case is sent back to district court. This decision will stand as a bulwark against the type of secret litigation that occurred in this case. It puts litigants on notice that if they call on the courts for relief, they must (absent a compelling interest in secrecy) accept the publicity that normally accompanies court proceedings in an open and democratic society.

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