Super double-secret takedown injunction

|The Volokh Conspiracy |

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My research on Internet libel takedown orders has profited tremendously from the Lumen Database (formerly ChillingEffects.org), a website to which Google and others archive takedown requests. I've seen a couple of orders, though, that purport to bar search engines from posting the orders on Lumen.

That, I think, is an unconstitutional restriction on the search engines' First Amendment rights. Such gag orders are controversial even when they're entered in response to national security letters, where there's a government interest in national security and the underlying order only seeks to gather information from Internet services—they should be unconstitutional when there's no national security interest and the underlying order is an attempt to take down speech outright. I can understand why libel litigants might want to hide the very existence of the underlying lawsuit. But American civil litigation is supposed to be a publicly open process, and there is no exception to that for libel cases.

One such order, from Clark County, Nev., struck me as especially troubling: It purported to outright command search engines to de-index certain material—even though the search engines were not parties to the case—and ordered them not to submit copies of the order to Lumen. And when I tried to check the authenticity of the order, I was told that the entire court file was sealed, even though Nevada law seems to prohibit such categorical sealing.

I'm pleased to say that yesterday, pro bono counsel Kristen T. Gallagher and Adam D. Hosmer-Henner of McDonald Carano LLP filed a motion on my behalf, seeking the unsealing of the file. (Thanks to my UCLA Scott & Cyan Banister First Amendment Clinic student Stefan Caris Love for his help with the motion.) Here is the text of the motion, in case our readers are interested in such open records questions. Out of deference to the court's having sealed the case, I'm not mentioning the name of the case or the parties, or enclosing or quoting the underlying injunction. As you can see in Part IV, part of the relief I seek is an order clarifying that, even if the case remains sealed, third parties such as me are not bound by any sealing order.

Eugene Volokh is a law professor at UCLA School of Law, and a legal blogger at the Washington Post site (http://washingtonpost.com/news/volokh-conspiracy); in both capacities, he has been writing about Internet libel takedown orders. This case attracts his attention because it led to an unusual, and possibly unjustified, gag order enjoining non-party internet search engines from presenting certain search results and from providing the gag order to third-party repositories, such as the Lumen Database. Cf. Johanson v. Eighth Judicial Dist. Court ex rel. Cty. of Clark, 124 Nev. 245, 250-53, 182 P.3d 94, 97-99 (2008) (holding a gag order unconstitutional because the affected party lacked notice or hearing). Volokh would like to write about this order on his blog and in a law review article. Later, he may also move to vacate the order on behalf of one of its targets, the search engine DuckDuckGo.com.

Volokh has a copy of the order, … which he received from a source other than the parties, search engines, ChillingEffects.org, or the Lumen Database (the successor to ChillingEffects.org); the copy also does not indicate that it is a sealed document, and he only learned that the case was sealed when he called the Clerk's Office to determine whether the copy is authentic. He wishes to unseal the record to confirm that his copy is indeed authentic. To better understand why the order was entered, he also wishes to unseal the pleadings, findings, other orders on motions, and judgment, as well as any other papers connected with the order.

The record should be unsealed for two reasons. First, in all divorce cases, the pleadings, findings, orders on motions, and judgment must remain open to the public. See NRS 125.110(1). This rule is categorical, and does not leave room for judicial discretion. See Johanson, 124 Nev. at 250, 182 P.3d at 97. Second, the statute under which the record was sealed is unconstitutional. The statute allows either party to a divorce to seal "all other papers" on request, without regard for purpose or scope. See NRS 125.110(2). This sweeping provision violates the public's First Amendment right of access to court records.

If the Court declines to unseal the record, Volokh asks that the Court clarify whether he may nevertheless post his own copy of the order, and write about the order.

Argument …

II. Nevada law requires the pleadings, findings, orders made on motions, and judgment to be unsealed

Nevada law requires that "in any action for divorce," "the pleadings, the finding of the court, any order made on motion . . . , and the judgment" "shall be open to public inspection." See NRS 125.110(1). A "district court has no discretion in divorce cases to seal" any of these documents. Johanson, 124 Nev. at 250, 182 P.3d at 97.

And "[e]ven if the district court retains inherent authority to seal the record in divorce cases," id., the sealing of the entire record here is illegal. Any sealing that exceeds NRS 125.110 is governed by the SRCR. See SRCR 1.4 (stating that the SRCR governs sealing outside of specific statutory exceptions). SRCR 3.5(c) declares, "Under no circumstances shall the court seal an entire court file"—at a minimum, the court must keep open, among other documents, "the order to seal and written findings supporting the order."

Indeed, a court must leave open the sealing order and supporting findings even if parties stipulate to these documents' sealing. See SRCR 3.4. The findings must show "compelling privacy or safety interests" in favor of sealing "that outweigh the public interest in access." See id. These "compelling interests" must go beyond the mere "desire to avoid unnecessary embarrassment," See Howard v. State, 128 Nev. Adv. Op. 67, 291 P.3d 137, 144 (2012). And even in Nevada Public Records Act cases, which use a "balancing of interests" test rather than the more demanding compelling interest used in First Amendment right of access cases, any restrictions on public access must rest on more than just "supposition" of possible harm. See Reno Newspapers v. Sheriff, 126 Nev. 211, 218-19, 234 P.3d 922, 927 (2010).

Here, if the Court has found compelling interests in favor of sealing, the Court should nevertheless, at a minimum, release its findings and all other documents required under SRCR Rule 3.5(c). Beyond this, because redaction is always preferable to sealing, See SRCR 3.5(b); Reno Newspapers, 126 Nev. at 219-20, 234 P.3d at 927-28, the Court should release redacted copies of other sealed documents wherever possible.

III. All other documents related to the gag order should be unsealed because the statute under which they were sealed violates the First Amendment right of access to court records.

In divorce cases, Nevada law provides for "all other papers" besides pleadings, findings, orders on motions, and judgments to be sealed from the public "upon the written request of either party," without qualification. See NRS 125.110(2). This provision is inconsistent with the First Amendment right of access to court proceedings and records, See Del Papa v. Steffen, 112 Nev. 369, 373-75, 915 P.3d 245, 248 (1996).

To movant's knowledge, every court to consider the First Amendment question has recognized a constitutional right of access to divorce cases equal to that in other civil matters. For instance, in Burkle v. Burkle, 37 Cal. Rptr. 3d 805, 814-19 (Cal. App. 2006), the court recognized this right using the "tradition/utility" test from Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9, 106 S. Ct. 2735, 2740-41 (1986). First, there was no tradition "supporting the notion that divorce proceedings" were "excepted" from the general rule of access. See Burkle, 37 Cal. Rptr. 3d at 814-15. Second, the "intrusions into family privacy" inherent to divorce cases did not automatically outweigh the utility of open access; instead, privacy rights in such cases should be treated no "differently from any other potentially overriding interest." See id. at 817-19. Therefore, the First Amendment right of access "appl[ies] with equal force in divorce cases as in any other ordinary civil case." See id. at 819; See also Wendt v. Wendt, 706 A.2d 1021 (Conn. Super. Ct. 1996) (recognizing First Amendment right of access to divorce proceedings); accord Cable News v. Superior Court, No. CIV. 93-00082, 1994 WL 315850, at *1-2 (D. Guam App. Div. Jan. 31, 1994).

Indeed, the court in Burkle held that the right of access to divorce cases was violated even by a statute limited to on-request sealing of documents containing financial data. See 37 Cal. Rptr. 3d at 820-24. All denials of public access, even those intended "to inhibit the disclosure of sensitive information," must advance "a compelling governmental interest" and be "narrowly tailored to serve that interest." Id. at 821 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07, 102 S. Ct. 2613, 2620 (1982)). The risk of identity theft associated with financial data was not sufficiently compelling to categorically overcome the right of access. See 37 Cal. Rptr. 3d at 821-22. And the statute in question allowed no narrow tailoring because it sealed entire documents rather than redacting sensitive information. See id. at 822-24.

The reasoning in Burkle is consistent with Stephens Media LLC v. Eighth Judicial Dist. Court ex rel. County of Clark, 125 Nev. 849, 221 P.3d 1240 (2009). In Stephens Media, a newspaper sought to open sealed juror questionnaires in a high-profile trial. See 125 Nev. at 855-56, 221 P.3d at 1245-46. The lower court had denied access for fear that publicizing the questionnaires would prejudice the jury. See id. Reversing the lower court and granting access, the Supreme Court held that the risk of prejudice did not overcome the newspaper's right of access because the evidence had not established a "substantial probability" of prejudice: the lower court had not given "detailed specific findings" in support of sealing. See 125 Nev. at 862-65, 221 P.3d at 1249-51 (citing Press-Enterprise Co., 478 U.S. at 13-15, 106 S. Ct. at 2743). The Court also instructed courts to "consider alternative options" like redaction—although even redaction must be based on "specific findings" and proceed according to explicit "criteria." See 125 Nev. at 866-70, 221 P.3d at 1252-54.

This Court should follow Burkle and acknowledge that the First Amendment right of access applies to divorce cases. Given this right, the provision in NRS 125.110(2) for on-request sealing of "all other papers" fails the right-of-access tests applied in Burkle and Stephens Media. First, NRS 125.110(2) does not indicate any "compelling interest" advanced by sealing, either in the statute itself or by requiring courts to specify reasons or findings. Litigant privacy by itself is not an adequate basis for overcoming the First Amendment right of access. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 502, 104 S. Ct. 819, 820 (1984); Stephens Media, 125 Nev. at 866-67, 221 P.3d at 1252. Second, as in Stephens Media, the statute does not require the movant to establish a "substantial probability" (or any probability) of harm. Third, NRS 125.110(2) calls for complete sealing, rather than allowing narrowly tailored solutions such as the release of redacted papers.

Because the documents in this case were sealed under an unconstitutional statute, the Court should unseal them.

IV. If the Court declines to unseal any documents, the Court should clarify whether Volokh may write publicly about the order, using his own copy.

Courts have sometimes limited the rights of third parties to write about sealed documents acquired independently. For example, in one recent case, a gag order required "any party receiving a copy of" the gag order itself to "treat it as sealed by this Court and confidential." See Order, Doe v. Doe, 1:16-CV-07359, at 3 (N.D. Ill. Aug. 24, 2016). In another case, a party sought to bar Volokh from writing about parts of a brief that had been sealed. Appellant's Emergency Motion, Wolk v. Olson, 10-3352, at 4 (3d Cir. Jan. 17, 2011). (The brief in that case was later unsealed.) Likewise, in Roe v. United States, 428 F. App'x 60, 64-67 (2d Cir. 2011), the court enjoined a lawyer from disseminating a sealed pre-sentence report from a different case, even when he had not been a party or lawyer in that case. And in Google, Inc. v. Expunction Order, 441 S.W.3d 644 ([Tex.] Ct. App. 2014), an expunction order required a nonparty—there, Google—not to disclose the newly expunged material; it took an appeal on Google's part to have that vacated.

Here, Volokh received a copy of the Order of June 27, 2014 through a party not subject to the order. Even if this Court declines to unseal any documents, Volokh wishes to write about this order, using his copy. But Doe and similar cases give him pause; as a member of the California bar, Volokh wants to be certain that his actions, even in his capacity as a writer rather than a lawyer, do not violate any court orders. He therefore asks this Court to make clear that, even if the case remains sealed, there is no barrier to Volokh's posting the order online and writing about it.

Conclusion

The sealing of this case violates Nevada law and the First Amendment right of access. Therefore, the Court should unseal the June 27, 2014 Order and related documents, along with the pleadings and other papers held open under NRS 125.110(1). The parties' privacy concerns could be addressed through redaction (for example, of financial information) without restricting Volokh's ability to research and write about free speech and libel takedown litigation.