Blog & Op-Eds, Blog RSS feed

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

In 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.


Highlights from Billion Dollar Divide: Virginia’s Sentencing, Corrections and Criminal Justice Challenge

(04/15/2014) The Justice Policy Institute (JPI) is out with a great new report, and its findings should serve as a wake up call to Virginia’s lawmakers: read more »

Equal Pay Day is a Call to Action! Let’s Continue Working to Achieve Equal Pay for Women

(04/08/2014) April 8 is Equal Pay Day, the symbolic day into 2014 a woman must work to earn as much as a man did in 2013 alone. On average women in the United States today still earn just 77 cents for every dollar that men earn and that is cause for concern. The wage gap needs to decrease and we are working hard to ensure that it will soon decrease for Virginia’s women. read more »

Will Manassas use its Zoning Law Update to Undermine Reproductive Freedom?

(04/02/2014) The Manassas City Council recently debated whether to update its decades-old zoning laws, including those that apply to medical facilities. read more »

Celebrating Five Amazing Women and Their Right to Love as We Close Women’s History Month

(03/27/2014) Virginia is for lovers, or so they say. Yet, for many Virginians this motto couldn’t be further from the truth. As Women’s History Month comes to an end, we honor five Virginia women who have stood up for their right to love the people they love – thus paving the way for a Virginia that is truly for ALL lovers. read more »

Attention Northern Virginians: Is law enforcement spying on you?

(03/21/2014) In January, the Washington Post published a shocking story – despite a clear Virginia Attorney General opinion to the contrary, a number of northern Virginia law enforcement agencies decided that they have the authority to compile massive databases of license plate records of ordinary Virginians. read more »

Legalized Discrimination Stops Here!

(03/10/2014) It was all over the news. Just a few weeks ago, Arizona Governor Jan Brewer vetoed legislation that would have allowed businesses to deny service to gay and lesbian customers. The legislation rightly received national attention – it conjured up memories of a time when people were refused service at hotels and lunch counters because of the color of their skin or the God they worship. read more »

A (Possible) First Step Toward Justice for Virginia’s Forced Sterilization Victims

(03/09/2014) During Virginia’s shameful eugenics program, from 1927 to 1979, the Commonwealth sterilized between 7,200 and 8,300 people without their consent. The rationale? Unbelievably, the Commonwealth deemed these individuals “unfit” to procreate (read more about this program here). It is a shameful chapter of Virginia’s history. read more »

Denying Funding for Abortion for Low-Income Women Is Not Fair

(03/08/2014) Receiving a diagnosis that your fetus has an incapacitating physical or mental anomaly can be heart wrenching for a woman and her family. It’s something no woman should ever have to go through, but if, in consultation with her doctor, a woman decides to have an abortion, we should ensure that the woman’s ability to exercise this constitutional right is not contingent on the size of her bank account. read more »

House of Delegates Refuses to Ban the Box

(02/28/2014) For an ever growing number of Virginians, the criminal history background box on employment applications makes it difficult for an otherwise qualified applicant to get the job. It’s past time for Virginia to ban the use of this box on employment applications – it is discriminatory, unnecessary, and unfair. read more »

Page 1 of 2312345...1020...Last »