Image in Court Opinion

First Amendment Principles, the Insatiable Appetite of the Press for Instant News and the Tedious Work of Privacy Protection

This case is a big win for the press media plaintiffs pushing First Amendment rights to court documents, but a significant loss and challenge to all state court clerks and others like me, concerned with litigants’ privacy rights. Florida Circuit Court Clerks must comply with this mandate for near instant access to e-filings of new cases and at the same time fulfill their duty to preserve privacy rights. Time will tell how they will meet this challenge.

Below is the First Amendment reasoning by Judge Walker behind this unusual injunction.

In Broward County Circuit Court, most civil complaints are unavailable to the public the day they are filed. Plaintiff, Courthouse News Service, argues that this state of affairs violates its First Amendment right to timely access court documents. This Court must determine whether the First Amendment encompasses such a right, and whether the current delays in access violate it.

The eighteenth-century British politician Edmund Burke apocryphally said that “there were Three Estates in the Parliament; but, in the reporters’ Gallery yonder, there sat a fourth estate more important far than they all.” Slavko Splichal, Principles of Publicity and Press Freedom 44 (2002). Our Nation’s founders thought as much, providing in the first amendment to the Constitution that “Congress shall make no law . . . abridging the freedom of . . . the press.” U.S. Const. amend. I. Indeed, the press is the only profession the Constitution expressly protects.

Courthouse News, supra at pgs. 1-2.

The Eleventh Circuit has likewise resolutely enforced the “presumption of public access” to court records, finding that the common law guarantees access to judicial records. Callahan v. United Network for Organ Sharing, 17 F.4th 1356, 1359 (11th Cir. 2021). But the Eleventh Circuit has yet to decide whether the First Amendment guarantees access to newly filed, non-confidential civil complaints, “the cornerstone of every case,” to which “access . . . is almost always necessary if the public is to understand a court’s decision.” F.T.C. v. AbbVie Prods. LLC, 713 F.3d 54, 62 (11th Cir. 2013).

As explained below, the First Amendment guarantees such access, and Broward County’s current system violates that right. Thus, Plaintiff’s motion for a preliminary injunction is GRANTED.

Courthouse News, supra at pgs. 2-3.

It is interesting to note that Chief Judge Walker is same judge that is hearing the First Amendment lawsuit recently filed to try to block the “Stop WOKE” law just passed by the Florida legislature. In a hearing on October 13, 2022, where both sides presented argument on the constitutionality of the new law that restricts what teachers can say and teach in public schools, Judge Walker is reported to have said:

“You (the government) can pick and choose what viewpoint you like and, under the guise of stopping indoctrination, you promote indoctrination. Why is that not so? . . . (You say) ‘We believe in academic freedom, so long as you say what we want you to say.’ That sounds like something George Orwell wrote.”

Judge spars with lawyers at ‘Stop WOKE’ lawsuit hearing (Orlando Sentinel, 10/14/22)

Why a Spider-Man Meme is Included in a Federal Court Injunction Order

Back to the Spider-Man case on e-filing. Why is a color Spider-Man illustration placed in a serious court order like this on the First Amendment and Privacy? We will share Judge Walker’s own words to explain why he included this funny meme. He provides the express reason, but we would be remiss not to remind the reader of the obvious unstated reason, the meta-reason, that the judge does it, and we do it too, because we can. With e-filing today, and adobe format, it’s easy to include interesting color graphics like this in anything you e-file in court, even intimate cell phone photos, and, after all, media types like us love this sort of thing. First, a quick case background to set up the meme and explain what privacy has to do with this. The two defendants in this case are the Clerk of the Court for Broward County, Clerk Forman, illustrated by the Spider-Man on the left, and the Florida E-Filing Authority, Chair Rushing (ironic name as you will soon see), illustrated by the Spider-Man on the right (or is it visa versa?). The Florida E-Filing Authority (“Authority”) is an entity created in 2010 by agreement of all Clerks of the Court in Florida, and Chair Rushing is herself a Clerk, to run the state’s e-filing system. Courthouse News Serv. v. Forman, FN1 at pg. 4. The Authority developed, owns, and governs the web Portal through which all pleadings are filed in Florida state courts. As Judge Walker explains:

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Before filing a complaint, the filer must enter case information such as the relevant jurisdiction, the type of lawsuit, party details, claim amounts, remedies sought, and whether the complaint contains confidential information. Id. at 8–24. Then, before uploading the complaint, the filer is reminded of their sole responsibility to ensure the redaction of confidential information. Id. at 25. Once a complaint is received through the Portal, the Authority processes it by “stamp[ing] the filing with the official file stamp date and time” and sending “a Notice of Electronic Filing . . . to all parties selected on the E-Service list for that court case.” ECF No. 43-1 ¶ 3. After the Authority processes the complaint, it transmits the complaint “to the selected county for review and processing.” Id. ¶ 4. Despite all the information gathered during submission, the Authority only filters complaints by county and does not separate confidential filings from non-confidential filings. Id. The Authority simply transmits each complaint “in the order in which it is received.” Id. ¶ 3. “Generally speaking,” it takes “no longer than 5 minutes” to process and transmit a complaint from the Portal to the appropriate clerk of court. Id. ¶ 8.

Courthouse News Serv. v. Forman, supra at pgs. 4-5.

So the e-filings go from the Authority, who has set up a fully automated processing system, that provides no analysis, automated or human, as to filing confidentiality and privacy and the e-filers statements provided on confidentiality, sealing, and the like. The Authority simply forwards the e-filings to the various counties in Florida, including heavily populated Broward County, with Clerk Forman. The Authority does so in only five minutes for which Chair Rushing is justly proud and happy they their responsibility, at least as they conceived it, ends, and the poor clerks in the various counties begins. Then the Clerks, including Forman, have the task of trying to segregating the filings into two stacks (at least), one requiring special confidentiality treatment, and another where such special treatment has not been requested by the e-filers themselves (it used to be worse, but this is the streamlined version that went into effect in 2021, that places more confidentiality burdens on Florida lawyers, such as redactions, and less on Clerks). Courthouse News, Supra at pgs. 5-6.

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The Authority does not segregate out the new filings where special treatment for confidentiality has been requested, an omission that Judge Walker found objectionable. The various clerks have to both segregate and figure that out and comply with the parties confidential requests and rules. This is not an automated process for the Clerks, but rather a tedious manual task delegated to over-worked humans working at relatively low pay in the Clerk’s office. Some offices are slower than others, and according to the ever-impatient plaintiff news organizations, Broward’s office is the slowest in the state. Slow but careful, I’m sure.

The low benchmark of Broward County and Clerk Forman for new case filings that has Courthouse News and other media companies so enraged, and is really the heart of the alleged violation of the First Amendment, is uncontested: 13% of complaints are available the day they are filed, 44% a day after filing, 14% two days after filing, and 29% three or more days after filing. The whole case is about the alleged delays in allowing their reporters to see new case filings, to look for the latest Breaking News (a statement I for one am sick of from its over-use), celebrity gossip, and sometimes, although in my experience very rarely, some important stuff. The plaintiff’s alleged and the judge agreed that the First Amendment was threatened by the days delay (the worst in the state). As the plaintiff’s attorneys put it, its called News, not Olds, for a reason, and this kind of delay is just not acceptable. Courthouse News, Supra at pg. 7. The highly skilled plaintiff’s attorneys here argue successfully that the First Amendment guarantees that the public’s insatiable desire must be immediately met, the same day, for yet more and more court information, that “by the time Plaintiff learns of many of the civil complaints filed in Broward County, their newsworthiness has already faded.” Id.

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Personally, I am not convinced. No one seems to consider what an unreliable source of information new pleadings are, for they can say just about anything, are exempt from libel, and they often include all kinds of outrageous accusations with no real basis in the facts. Furthermore, rushing around does not help anyone. It breeds mistakes. Privacy is important too and deserves to be done right. After all, once a mistake is made, and the genie is of confidential information is out of the bottle, there is no putting it back.

Now finally we get to the Spider-Man graphic, the “You!” meme. The defendants here not so cleverly decided on a defense where each blamed the other. Clerk Forman points to Chair Rushing and says she is to blame for not segregating the thousands of e-filings they get every day into two piles and otherwise providing no help on the time consuming privacy work, whereas Chair Rushing points right back and says no, Clerk Forman is to blame for not doing her job faster. The plaintiff news companies meantime just look back and smile as the gooey Spidey mess goes everywhere. Experienced trial lawyers just sigh, maybe grin a bit at the circular firing squad.

Here is how the good Judge Mark Walker explains the use of the pointing blame defense and Spidey meme:

For the reasons articulated above, both Defendant Rushing and Defendant Forman are responsible for the delays in access in Broward County. Given the “unique” structure of Florida’s e-filing system, ECF No. 43 at 8; see also ECF No. 43-1 ¶ 11 (“Portal staff is unaware of any other state that uses an entity such as the Authority to operate an e-filing portal.”), it comes as no surprise to this Court that the Defendants’ litigation tactic is to point fingers, as illustrated below.

Neither can escape liability by shifting blame to each other, nor can they evade constitutional scrutiny by maintaining an administrative labyrinth. The way Defendant Rushing transmits complaints creates the delay, and Defendant Forman’s time-consuming review exacerbates the delay. Accordingly, both Defendants are responsible for the alleged constitutional violation.

Courthouse News, Supra at pgs. 24-25.

For more detail on the meme itself Judge Walker favored us with a footnote.

7 As one pop-culture commentator explains, “[t]he image of the two pointing Spider-Men has been captioned—and sometimes recreated—in all sorts of different ways. It’s been around since at least 2011. It’s been used by fans, celebrities and even politicians to make funny comparisons between people that either seem oddly similar or are engaged in the same activity.” Nicholas Raymond, The Origin of The Spider-Man Pointing Meme, Screen Rant (Jan. 4, 2020), https://screenrant.com/spider-man-pointing-meme-cartoon-origin/.

Courthouse News, Supra at Fn. 7, pg. 24

Conclusion

That’s right, one court clerk, Chair Rushing, points blame at another court clerk, Clerk Forman, when both clerks are super-heroes trying to do the same things. They are both trying to administer a rusty e-filing system, one severely strained by Florida’s population explosion and a pandemic, not to mention a system based on low-state-budget-technology. The Judge’s Injunction and Spider-Man graphic had a good effect. Courthouse News Serv. v. Forman, No. 4:22cv106-MW/MAF, 2022 U.S. Dist. LEXIS 103771 (N.D. Fla. June 10, 2022). After the injunction was entered the two clerks Spideys started to get along and everyone entered into a settlement agreement. Hopefully, peace will last for a while and the news media wont have to wait a day for the exciting news spewing out of state court e-filings. (Yawn.) Hopefully the privacy rights of citizens will not suffer due to the increased time demands. (A much more urgent concern.)

Image: Losey

In view of the history of the more expensive federal system’s Pacer, I am skeptical. For the latest Pacer leak impacting over 500,000 cryptocurrency owners who were not parties to the bankruptcy proceeding, see: Celsius Exchange Data Dump Is a Gift to Crypto Sleuths—and Thieves (Wired, Oct. 13. 2022); In re Celsius Network LLC, 642 B.R. 497 (Bankr. S.D.N.Y. 2022). The whole area of e-filing, state and federal, is in need of reform, including better infrastructure.

Some legislation is now in progress concern funding to update the aging Pacer system. See eg. Making PACER database free could require more money for U.S. judiciary, CBO says (Reuters, 9/28/22); Congressional Budge Office Costs Estimate, 9/26/22). For my past recent articles on this topic, see:

• DOJ’s Confidential Report Leaked in Trump v. U.S.
• The Right to Privacy in Modern Discovery: a review of another great law review article – Part 3, Part 2, and Part 1.
• Examining a Leaked Criminal Warrant for Apple iCloud Data in a High Profile Case – Part 3, Part 2, and Part 1.

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