An Impassioned Dissent

Circuit Judge Gregory has dissented from the denial of rehearing en banc of a decision of the United States Court of Appeals for the Fourth Circuit denying Courthouse News online access to public court documents

This case concerns two First Amendment challenges to Virginia’s regulations on online access to public court records. Virginia has created an online database, the Officer of the Court Online Remote Access System (“OCRA”), which allows attorneys and some government officials to access public court documents. However, by statute, access to this database is forbidden for non-attorney members of the public (“the Access Restriction”). Va. Code § 17.1-293(E)(7). In other words, Virginia has a blanket prohibition on journalists accessing OCRA. The second Virginia regulation at issue prohibits journalists and others—including attorneys—from disseminating any information obtained from OCRA (“the Dissemination Restriction”). Va. Code § 17.1-293(H).

Courthouse News, a news service primarily focused on covering developments in state and local courts, challenged Virginia’s restrictions as violations of the First Amendment. It argued that the Access Restriction infringed on its right of access and constituted content-based discrimination, and that the Dissemination Restriction was a form of prior restraint. The majority of a panel of this Court held that the Access Restriction was nothing more than a permissible time, place, and manner restriction. And without considering the Dissemination Restriction’s blatant unconstitutionality, the panel majority held that Courthouse News lacked standing to challenge it. I believe that this case presents three questions of exceptional importance warranting en banc review.

First, it concerns the proper standard of review when the government provides some members of the public, but not all, access to a repository of government records. In other words, what level of review is necessary when the government selectively bars the proverbial doors to the room where it happens? When the government makes information available, may it arbitrarily and with impunity ban some from hearing the news of the day? In my view, these questions are not only important, but timely and essential to protecting the freedom of the press—a freedom that in turn gives vigor and vibrancy to the people’s rights of free speech and assembly.

Second, it presents the question of which standard of review to apply when the government bars the press from disseminating admittedly public and non-confidential court documents. Respectfully, I believe that both we and the Supreme Court have squarely held that dissemination restrictions of the type that Virginia imposes here are subject to the highest level of scrutiny. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (1975) (“[T]he First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.”); see also Soderberg v. Carrion, 999 F.3d 962, 967 (4th Cir. 2021). To the extent that there is any uncertainty on this matter, it certainly warranted the review of the full court.

Third, this case presents questions on the scope of First Amendment standing jurisprudence. As the Supreme Court has repeatedly affirmed, standing requirements are lessened in the First Amendment context. Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984); see also Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013) (“First Amendment cases raise unique standing considerations that tilt dramatically toward a finding of standing”) (quoting Lopez v. Candaele, 630 F.3d 775, 781 (9th Cir. 2010)). Indeed, “[t]he leniency of First Amendment standing manifests itself most commonly in the doctrine’s first element: injury-in-fact.” Wikimedia Found. v. Nat’l Sec. Agency, 857 F.3d 193, 212 (4th Cir. 2017) (quoting Cooksey, 721 F.3d at 235). Yet, despite this, the panel majority’s opinion erects another roadblock in the way of First Amendment litigants: it requires journalists to identify their would-be sources (i.e. “a speaker willing to convey the information to [it]”) if the challenged restriction was lifted. Courthouse News Serv. v. Smith, 126 F.4th 899, 917 (4th Cir. 2025) (cleaned up). Because Courthouse News failed to name such an attorney, the panel majority concluded Courthouse News’s injury was “too speculative to support standing.” Id. (cleaned up). But, we have, in the past, balked at requiring journalists to identify to their would-be sources. Overbey v. Mayor of Baltimore, 930 F.3d 215, 228, 228 n.13 (4th Cir. 2019). And for good reason. But-for the Dissemination Restriction, Courthouse News certainly could find a lawyer in Virginia willing to provide it with information obtained from OCRA. Any assertion to the contrary strains credibility and contradicts common sense. The panel majority’s pleading requirement merely puts form over substance. To the extent that our precedent may suggest otherwise, en banc review was appropriate to correct this error.

These three questions are of monumental importance. And I believe the panel majority’s opinion—and its endorsement of Virginia’s restrictions—poses a grave threat to the independence and integrity of the press and our system of ordered liberty.

The majority’s retort is that the plaintiff can go to the courthouse to get the desired information

The panel majority’s solution ignores geography and consigns journalists to a never-ending road-trip. Virginia is a vast state, home to over one hundred courthouses. We live in an era of shrinking newsrooms, posing a particular threat to state and local news 7 coverage. See Andrew v. Clark, 561 F.3d 261, 272–73 (4th Cir. 2009) (Wilkinson, J. concurring). In reality, news organizations like Courthouse News are not able to fund the kind of trips the majority envisions. Instead, they focus coverage on Virginia’s most populous and centrally located jurisdictions. See J.A. 154. It is Virginia’s small and rural communities—those nestled in the foothills of the Appalachian Mountains or dotting the shoreline of the Chesapeake Bay—who suffer the most. The Court today has endorsed an effective media blackout on vast swaths of the Commonwealth and its people. But these small communities deserve a press capable of shining a light on the faults and failures of their local governments’ policies. As history has shown us, sometimes the smallest halls of power breed the greatest injustices.

As James Madison warned, “[a] popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both.” Branzburg, 408 U.S. at 728 (Stewart, J. dissenting) (quoting 9 Writings of James Madison 103 (G. Hunt. Ed. 1910)). For centuries, the judiciary has stood as a proud defender of the press—just as the press has served to protect the integrity of the justice system. See Neb. Press Ass’n, 427 U.S. at 559–60 (“[a] responsible press has always been regarded as the handmaiden of effective judicial administration.”) (cleaned up). But today, we abandoned our post.

As the saying goes, democracy dies in darkness. And today, this Court endorsed two regulations that cast a dark pallor over the functioning of Virginia’s justice system. Because this case warrants further review, I respectfully dissent from the denial of en banc review.

(Mike Frisch)