[co-author: Alexandria Pritchett]

This month, Courthouse News Service (CNS) filed suit against several clerks of the Superior Court of California for allegedly violating the First Amendment rights of members of the press by restricting access to newly filed civil complaints. This suit follows on the heels of CNS’ recent lawsuit in Virginia that also asserted the First Amendment rights of the press to access court records, which Troutman Pepper reported here.

In the California suit, CNS alleges that press access to court records is restricted through the use of “press review queues” that delay access to newly filed cases, while providing immediate access to “registered users.” The lawsuit names the clerks of Merced, Stanislaus, Yolo, Butte, Sutter, and Yuba counties in California as defendants. CNS is seeking injunctive relief, declaratory relief, and attorneys’ fees.

This lawsuit follows a recent decision by the Court of Appeals for the Ninth Circuit in Courthouse News Service v. Planet, No. 16-56862, where the court ruled that CNS had a First Amendment right to timely access to court filings but that courts may still impose ‘reasonable restrictions’ and need not grant ‘immediate access.’

The suit also follows a lawsuit filed in the Eastern District of Virginia by CNS against Virginia court officials. That suit similarly asserts violations of the press and public’s First Amendment rights by restricting access to newly filed civil complaints. In the Virginia lawsuit, CNS alleges that Virginia barred attorneys are provided digital access to newly filed court records through the Officer of the Court Remote Access system (OCRA) for an annual fee, while members of the public and press can only access these records by in-person request at Virginia courthouses. Thus, while the California lawsuit focuses on the timeliness aspect of public access to court records, the Virginia lawsuit focuses on the means and ease of access to such records.

The Eastern District of California and the Eastern District of Virginia have not issued rulings in these suits yet, but one defendant in the Virginia case – Karl R. Hade, the Executive Secretary of the Supreme Court of Virginia – filed a motion to dismiss CNS’ claims as against him, arguing that he is an improper party to sue. Additionally, Hade argues that CNS does not allege an injury under the First Amendment, that the Virginia law permitting Virginia attorneys’ access to court records is facially valid, and that it does not violate the Equal Protection Clause of the Fourteenth Amendment. Troutman Pepper will continue to monitor and provide updates on these cases and others impacting the right of access to public records.