The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today's decision by the U.S. Court of Appeals for the 3rd Circuit in Constand v. Cosby (3d Cir. 2016) rejects Bill Cosby's attempt to reseal "certain documents that reveal damaging admissions he made in a 2005 deposition regarding his sexual behavior." Such deposition testimony is often not a public record, but here the federal trial court unsealed it, partly on the grounds that
Defendant [Cosby] has donned the mantle of public moralist and mounted the proverbial electronic or print soap box to volunteer his views on, among other things, childrearing, family life, education, and crime [citing the Pound Cake speech and others]. To the extent that Defendant has freely entered the public square and "thrust himself into the vortex of th[ese] public issue[s]," he has voluntarily narrowed the zone of privacy that he is entitled to claim.
This rationale is controversial (see my post from last year for some thoughts on it), and the appellate court expressed "serious reservations about the District Court's 'public moralist' rationale. It has no basis in our jurisprudence regarding the conditions for modifying a protective order …. Moreover, the term 'public moralist' is vague and undefined." But the court declined to squarely address the issue.
Rather, the court pointed out that the documents were promptly and widely publicized, and any attempt to reseal them would be essentially futile; therefore, the court held, the appeal was "moot"—there is nothing that the court practically could do to undo the unsealing decision, and therefore there is nothing that the court should do:
[W]hen it comes to public awareness of the documents' contents, the feathers of the pillow are scattered to the winds; nearly everyone in America (and many more around the world) with access to a computer either know what Cosby has admitted to doing or could find out with a few clicks, and this will remain true even if we order the documents resealed.
Any effect that resealing the documents might have on the numerous other legal proceedings that result from sexual assault allegations against Cosby (or might occur in the future) is simply not enough to present a live controversy in this appeal. Cosby argues that resealing the documents would leave him "better positioned" to persuade "the various courts in which he finds himself a party" to limit the use of the documents in the proceedings before them. In particular, he asserts that he could persuade these courts that the documents are inadmissible and cannot otherwise be used against him….
[But] an appeal seeking "a 'firm basis'" to seek relief from another court "[i]n effect … ask[s] us to issue an advisory opinion, something we may not do." … [A]dvisory opinions are forbidden by Article III's requirement of a live controversy …. Moreover, even if we could issue such an opinion, Cosby cites no authority to the effect that sealing documents in a civil case would render them inadmissible in another litigation—indeed, sealed documents are often admitted into evidence. Hence this argument is also too speculative to present us with a live controversy.
I'm not an expert on this particular mootness question, so I won't speak to its substance. But Judge Thomas Ambro deserves praise for never once mentioning horses and barns, or saying "four winds" instead of just "winds." Instead, the court used a phrase that seems both apt and fresh (my quick Googling found no prior uses of "feathers of the pillow are scattered" in this sense). Nice.
UPDATE: Mark Yohalem points to a Hasidic parable condemning gossip from which the phrase might have been drawn:
A man went about the community telling malicious lies about the rabbi. Later, he realized the wrong he had done, and began to feel remorse. He went to the rabbi and begged his forgiveness, saying he would do anything he could to make amends. The rabbi told the man, "Take a feather pillow, cut it open, and scatter the feathers to the winds." The man thought this was a strange request, but it was a simple enough task, and he did it gladly. When he returned to tell the rabbi that he had done it, the rabbi said, "Now, go and gather the feathers. Because you can no more make amends for the damage your words have done than you can recollect the feathers."
So the phrase is not as novel as I thought, but it's nonetheless much fresher than horses and barns, at least for the likely 99+% of the population unacquainted with the Hasidic tale. Still nice (though knowing the possible antecedent is nicer still; thanks to my correspondent for letting me know).