Courts and the First Amendment

To butcher the Vegas slogan, “What happens in court does not necessarily stay in court.” That is a lesson learned by an Iowa attorney in a quick series of decisions by justices of that state’s supreme court in December 2016.

Courts are part of our democratic system of government, and there is a strong presumption under the First Amendment that the public has a right to know what our government is doing. In the courts, that means nearly all courtrooms are open to the public and nearly everything parties file in their cases can be accessed by the public.

This isn’t often an issue, as a practical matter. Most court cases are very interesting to the parties, but not to anyone else. But sometimes what’s happening in court touches on questions of public interest. That appears to be what happened in Iowa. Reporters for the Des Moines Register were working on a story about an Iowa attorney, and obtained records in court cases where he was either the lawyer representing a party or a party himself. When he found out (because a reporter called him), the lawyer asked a judge to order the newspaper to not publish any of the information from those public records. The judge refused, so the lawyer took the issue to the Iowa Supreme Court. There, a justice did issue a temporary order restraining the Register from publication until the question could be reviewed more closely. A week later, that same justice lifted his order, allowing publication.

That ultimate decision fits with decades of jurisprudence from the United States Supreme Court and other courts across the country. Under the First Amendment, it is exceedingly rare for a court to order – or even to allow – what is known as “prior restraint” of speech. With very limited exception, the rule in the United States is that government (including judges) should not be allowed to prevent speech.
Parties to a lawsuit can try is to file documents they don’t want the public to see “under seal.” That means that only the parties, their lawyers and the court employees have access. But filing under seal is not a guarantee that documents will remain private. There are fairly strict limits on what can be kept sealed, and in recent years judges have become more critical of sealed filings. Also, the public (usually the news media) can challenge a filing under seal, and it then falls to the party to justify why the documents should be withheld from the public.

The lesson: If you are in a lawsuit, and if you have information or documents relevant to that lawsuit that you would rather the public didn’t see (such as company trade secrets or private medical information), talk to your lawyer early about whether and how to limit the risk that they will become public records. But also understand that there can be no guarantee that they will stay private once they are filed with a court.

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