Can’t Skip The Trip
The United States Court of Appeals for the Fourth Circuit affirmed a decision denying remote access to records made by Courthouse News
The Circuit Court for Prince William County, Virginia, makes civil court records available to the public at the courthouse. Courthouse News Service would like to skip the trip to the courthouse and view civil court records remotely on the internet, like Virginia attorneys can. But Virginia law prohibits the clerk of court from granting Courthouse News the same remote access given to attorneys. So Courthouse News sued, alleging that the Virginia law violates its First Amendment and Equal Protection rights. The district court ruled in favor of the Commonwealth. We agree with that conclusion.
No First Amendment violation
Having identified the asserted right, we can see that the Access Restriction, and the clerk’s application of it, resembles a time, place, and manner regulation. Courthouse News undisputedly has access to all the civil court records it seeks, including the records the First Amendment entitles it to view. The clerk’s rejection of its OCRA application does not deny Courthouse News access to those documents. Rather, the denial of OCRA access limits when, where, and how Courthouse News may access those court records: during business hours at the courthouse using public access terminals instead of all hours of every day, remotely, using a personal computer with internet access. Cf. Schaefer, 2 F.4th at 328 (reasoning that clerks’ practices of delaying public access to newly filed civil complaints for days after filing “resemble[d] time, place, and manner restrictions”).
GREGORY, Circuit Judge, dissenting:
I respectfully dissent from the majority opinion. As the United States Court of Appeals for the Ninth Circuit observed, “[t]he free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press.” Courthouse News Serv. v. Planet, 947 F.3d 581, 589–90 (9th Cir. 2020) (citation omitted). In this case, the press invokes our promise of protection and, I fear, the majority has failed to provide it.
I would find that both the Access and Dissemination Restrictions are subject to First Amendment strict scrutiny. And, because this case could be resolved on purely First Amendment grounds, I would decline to consider Courthouse News’ equal protection challenge. I would, therefore, reverse the district court’s grant of summary judgment to the government and remand for reconsideration of both restrictions under the strict scrutiny standard.
(Mike Frisch)