ACLU of N.C., Free Press Foundation, and I Are Challenging Sealing of Documents Related to Gag Order
In Doe v. U.N.C. Sys. (W.D.N.C.), a case challenging the expulsion of plaintiff Jacob Doe for alleged sexual assault, the court issued a quite remarkable TRO last week: It, among other things,
- required defendants “to direct all individuals”—including UNC students—”over whom they exercise control to refrain from publishing or disclosing any information concerning the Plaintiff, the disciplinary proceedings, or the outcomes of such proceedings,” and
- required defendants “to inform any media outlet, or any other third party, that receives information concerning the Plaintiff’s disciplinary outcome about the filing of this motion for a temporary restraining order and preliminary injunction, and notifying such media outlets or other third party, that they are prohibited from publishing any information concerning the Plaintiff, the disciplinary proceedings, or the outcomes of such proceedings.”
This strikes me as likely unconstitutional, because of its substantive scope, because it was entered as an ex parte TRO with no opportunity for the defendants to be heard, and because it purports to restrict the free speech rights of third parties who also had no opportunity to be heard. But when I tried to figure out why the court entered such a broad restriction, I couldn’t, because the motion for the TRO and the supporting memorandum were sealed. And when I tried to figure out the basis for the sealing, I couldn’t, because there was no official sealing order authorizing and explaining the sealing (even though the W.D.N.C. local rules seem to require such sealing orders).
I’m therefore delighted that the ACLU of N.C., representing itself and the Freedom of the Press Foundation, joined by my pro bono local counsel Mark Sigmon, representing me, (many thanks!) have just filed a motion to intervene and unseal the sealed documents. (I should note that Kristi Graunke and Samuel Davis of the ACLU of N.C. have taken the laboring oar on the drafting, and I’m delighted to be free-riding on their efforts.) Here’s the heart of the argument:
In the American judicial system, civil proceedings are “traditionally open.” Virginia Dep’t of State Police v. Washington Post, 386 F.3d 567, 580 (4th Cir. 2004). “[I]n some civil cases the public interest in access, and the salutary effects of publicity, may be as strong as, or stronger than, in most criminal cases.” Gannett Co. v. DePasquale, 443 U.S. 368, 386 n.15 (1979). Transparency is the general rule: the public’s right of access “may be abrogated only in unusual circumstances.” Stone v. Univ. of Maryland Med. Sys. Corp., 855 F.2d 178, 182 (4th Cir. 1988).
In this case, records that this Court relied upon to fix the substantive rights of the parties—and of non-parties whose constitutional rights are burdened by the temporary restraining order (TRO)—remain secret. If “unusual circumstances” exist to justify this deviation from the norm of transparency, these circumstances have not been disclosed to the public. There is no publicly available order explaining why certain judicial records are currently under seal. Accordingly, Intervenors respectfully move to unseal [the motion for the TRO and supporting memorandum, and any papers related to sealing] …. Unsealing is necessary to protect Intervenors’, and the public’s, right to “judge the product of the courts in [this] case.” Columbus–America Discovery Group v. Atlantic Mut. Ins. Co., 203 F.3d 291, 303 (4th Cir. 2000)….
[I.] Intervenors have common law and First Amendment rights to access the orders and filings in this case.
“The right of public access to documents or materials filed in a district court derives from two independent sources: the common law and the First Amendment.” Virginia Dep’t of State Police, 386 F.3d at 575. Each source provides a different level of “substantive protection.” Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (
Article from Reason.com
