The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As I blogged last month, the Barley House bar in Cleveland got a temporary injunction—with very short notice to the defendants—barring two YouTube personalities, Alissa Violet and FaZe Banks (who have millions of followers), from "publishing on social media platforms any statements" about the business. The business claimed that the personalities' video criticism of the business was libelous, and that this led to a flood of negative reviews and some electronic threats of violence. But though this might be the basis for a damages lawsuit, I argued, this can't justify a categorical restriction on defendants' further speech about the business, or even a narrower restriction imposed before a trial on the merits.
There have been many developments in the case since: The case was removed to federal court, with a fight over whether Violet was still legally resident in Ohio or was now a Californian. The parties entered a partial settlement agreement in which Violet and Banks promised not to say certain things about Barley House. This agreement apparently led to the original injunction lapsing. And now there's a contempt of court proceding against Banks, claiming that Banks had breached the agreement, by posting a new video—which was viewed hundreds of thousands of times—further criticizing Barley House. (I haven't found anything in the court docket reflecting that the agreement was actually incorporated into a court order, but I assume from the proceeding that the court's theory is that such an order was indeed issued.)
But while in principle breaches of speech-restrictive contracts can lead to lability (see, e.g., Cohen v. Cowles Media (1991)), this still leaves the question: Did Banks' speech breach the agreement? And this question, which is the subject of the contempt hearing, is hard for me to analyze because the agreement is apparently being kept secret. It was never docketed on the court docket, even though the court is obviously referring to it during the proceeding. Presumably the parties' and the court's view is that the agreement somehow merits being sealed. But can an American court really punish a speaker for his speech, based on an agreement whose contents the court system will not disclose to the public, at least absent some especially powerful showing of need for secrecy?
I think the answer is "no," and I'm glad to report that Patrick Kabat of Chandra Law has filed a motion on my behalf to intervene and to gain access to the speech-restrictive agreement that the court is considering enforcing. (Many thanks to Patrick, who has worked in this field for a long time—co-founded and directed the MFIA Media Freedom & Information Access clinic at Yale Law School, taught First Amendment law at Case Western, and has just launched a new First Amendment program at Cleveland State University's Cleveland-Marshall College of Law.) All members of the public, we argue, have a right of access to this agreement, so I have standing to intervene (that is not a controversial point), especially since I need the agreement to write further about the proceedings. You can read the whole motion, but here is a longish excerpt:
This lawsuit raises important issues in the roiling public debate about the rights and responsibilities of online speakers. It also implicates important questions about the role of the courts in policing this speech. And it has been hotly litigated, giving rise to contempt proceedings before this Court arising from a partial settlement agreement between the parties.
The public has a right to access these proceedings and records. Secured by the First Amendment and Sixth Circuit common law, that right is independent of the parties' substantive claims and interests, and enforceable by members of the public. And the right cannot be limited until the parties make specific factual showings, and after the Court (after providing an opportunity for the public to be heard) makes specific findings justifying redaction or partial sealing of documents.
Here, the parties have made no such showings to justify restricting public access to records in the contempt proceedings, including the settlement agreement that appears to undergird the dispute they have presented to the Court. And based on the information presently available to the public, they cannot.
Movant Eugene Volokh is a law professor who focuses on First Amendment and Internet law. He has written about this suit on his Washington Post blog.
Prof. Volokh's right of access to the documents based on which the Court adjudicates the parties' disputes, including the settlement agreement at issue in the contempt proceedings, is vital to his continued coverage of this important controversy. He therefore requests leave to intervene and be heard to assert the public's right of access, and that the Partial Settlement Agreement (the "Agreement") be docketed and made publicly available.
[I.] Documents used in contempt proceedings, and settlement agreements considered by courts, are subject to public access.
The public's right of access to civil proceedings is guaranteed by the First Amendment and the common law. Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177 (6th Cir. 1983); see also Karl v. Bizar, 2009 WL 3644115, at *2 (S.D. Ohio Oct. 28, 2009) (public right of access to "documents forming the basis for adjudication" is not outweighed by commercial self-interest or parties' interests in avoiding adverse publicity) (applying Brown); Wedgewood Ltd. v. Twp. of Liberty, 2007 WL 1796089, at *3 (S.D. Ohio June 21, 2007) ("a strong public right of access attaches when a document is filed or utilized in public proceedings") (citing Brown).
The public's right of access attaches to civil-contempt proceedings, and "documents necessary to understand the merits of a civil contempt proceeding are covered by the First Amendment's presumptive right of access." Newsday v. Cty. of Nassau, 730 F.3d 156, 164 (2d Cir. 2013); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir. 1983) ("the protection of the First Amendment extends to proceedings for contempt"); In re Motion for Civil Contempt by John Doe, 2016 WL 3460368, at *3 (E.D.N.Y. June 22, 2016) (First Amendment right of access applies to contempt proceedings and documents that are a "necessary corollary of the capacity to attend" those proceedings). [The common-law right of access also applies to documents considered by courts in civil-contempt proceedings. See, e.g., BASF Agro B.V. v. Makhteshim Agan of N. Am., Inc., 2015 WL 12991090, at *3 (M.D.N.C. July 21, 2015) (documents that "will be used in adjudicating the motion for contempt" are "judicial documents" subject to the common-law right of access).]
The public's right of access also attaches to settlement documents, particularly when they are presented for consideration by the court, or subject to enforcement in court. United States v. Erie Cty., N.Y., 763 F.3d 235, 242-43 (2d Cir. 2014); Goesel v. Boley Int'l (H.K.) Ltd., 738 F.3d 831, 834 (7th Cir. 2013) ("the presumption of a right of public access to court documents should apply" where "the settlement is sought to be enforced."); Wells Fargo Bank, N.A. v. Wales LLC, 993 F. Supp. 2d 409, 414 (S.D.N.Y. 2014) (enforcing public's right of access to "documents that were integral to its approval" of a settlement agreement).
The Agreement is therefore subject to the public's right of access. The parties disagree about how it should be interpreted and enforced, and they have presented their dispute to the Court for adjudication. This Court has "considered," "used," and "utilized" the Agreement to adjudicate potential sanctions arising from its alleged violation. The Agreement should therefore be docketed, and may only be lawfully withdrawn from public access in whole or part after the parties satisfy mandatory legal burdens, and the Court makes mandatory on-the-record findings. Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 594 (6th Cir. 2016) ("When a district court opts to seal court records, it must set forth specific findings and conclusions 'which justify nondisclosure to the public.'") (quoting Brown, 710 F.2d at 1176); United States v. DeJournett, 817 F.3d 479, 485 (6th Cir. 2016) ("The interest [justifying nondisclosure] is to be articulated along with findings specific enough that a reviewing court can determine whether" access was lawfully restricted).
[Footnote moved: See Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir. 2004) (holding that the First Amendment right of access extends to docket information, noting that docketing "endow[s] the public and press with the capacity to exercise their rights guaranteed by the First Amendment," and without docketing sealed records and proceedings, the public's right of access "would be merely theoretical").
The Agreement does not appear to have been electronically docketed, whether under seal or otherwise, but appears to have been submitted to the Court for consideration and adjudication. The Jan. 16, 2018 minutes, as well as the briefs filed related to the contempt hearing (ECF Doc. Nos. 24, 25, and 26) reflect that the contempt proceedings will focus closely on whether the Agreement has been knowingly violated—something that will surely require further "consideration," "use," and "utilization" of that document. And if the Notice of Partial Settlement, ECF No. 15, is correct in stating that "the Court shall retain jurisdiction to enforce [the Agreement's] terms and conditions," that enforcement must likewise "consider" "use," and "utilize" the document.]
[II.] There is no lawful basis to restrict public access to the Agreement.
As an initial matter, parties cannot eliminate the public's right of access simply by entering into a confidential agreement, which "does not bind the court in any way." Brown, 710 F.2d at 1180 (vacating sealing orders, upon request by non-party public interest research group, despite confidentiality agreement between plaintiff and the Federal Trade Commission). Nor do "explicit confidentiality provisions" in settlement agreements suffice to justify sealing them. See, e.g., Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241 (10th Cir. 2012) (denying unopposed motions to file court records under seal on the basis that they "involve the terms of confidential settlement agreements," even though "preserving the confidentiality of settlement agreements may encourage settlement" and "denying a motion to seal may chill future settlement discussions"); Wells Fargo v. Wales, 993 F. Supp. 2d 409, 414 (S.D.N.Y. 2014) (whether settlement agreement "contains a confidentiality clause is not binding here, given the public's right of access to 'judicial documents'").
Parties are not the arbiters of the public's right of access. They cannot, by agreement among themselves, strip third parties like Prof. Volokh of their right to understand what transpires in court, or relieve themselves of their burden to justify limiting access. "The judge is the primary representative of the public interest in the judicial process and is duty-bound therefore to review any request to seal the record (or part of it)," Citizens First Nat'l Bank v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999), and courts may not "turn this function over to the parties." Procter & Gamble. v. Bankers Tr. Co., 78 F.3d 219, 227 (6th Cir. 1996).
Even reliance on judicial sealing orders is "too thin a reed" to justify restrictions, and "litigants' reliance on the confidentiality of certain documents in reaching a court-approved settlement agreement fails to overcome the presumption of public access." Rudd, 834 F.3d at 595 (quoting Johnson v. Corr. Corp. of Am., 2014 WL 3970115, at *2–3 (W.D. Ky. Aug. 13, 2014). To justify a proposed restriction, parties must prove that (1) it is necessary to prevent harm to a compelling interest; (2) no alternative will suffice; (3) it is narrowly tailored; and (4) it will be effective. [For further details on why these elements have not been shown here, see the PDF.]