Free Speech

More on the Secret Speech Restriction in the Barley House Case

Can an American court punish a speaker for his speech, on the theory that he breached an agreement not to speak -- all the while keeping the speech-restrictive agreement secret?

|The Volokh Conspiracy |

I blogged two weeks ago about the latest twist in the Barley House YouTube video case. To recap, 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.

The case was then removed to federal court, and 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. But 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; and the federal court had also issued a temporary injunction further restricting Banks' speech, based on his alleged breach of the agreement.

I'd like to blog further about this case, and whether Banks can be properly punished for his speech. But I'm stymied by lack of one important factual detail: I can't get a copy of the agreement that the court is purporting to enforce. The agreement hasn't even been placed on the court docket, though it seems almost certain to me that the court must have considered it as evidence. So Patrick Kabat of Chandra Law kindly filed a pro bono motion on my behalf to intervene and to gain access to the agreement, citing the First Amendment and common law rights of access to documents that form the basis of judicial decisionmaking; but the parties objected, arguing simply:

[From the Defendants, joined by the Plaintiffs:] While Defendants appreciate and understand Professor Volokh's interest in reporting on First Amendment issues in general and on this case, the Confidential Partial Settlement Agreement that is at issue in his motion was intentionally not docketed, adopted into or approved by a court order or consent decree, was not attached to or included with any papers filed by any party, and was not admitted at any evidentiary hearing. Therefore, Defendants believe it remains confidential pursuant to its express terms and conditions .

[From the Plaintiffs:] There is no public need to consume the Confidential Private Settlement Agreement. As a private agreement, the Confidential Partial Settlement Agreement raises no First Amendment concerns. As a private, non-judicial document, it raises no common law right to public access.

While subject to Court enforcement, much like many other private agreements, the parties intended that the Confidential Partial Settlement Agreement would remain confidential. Confidentiality was a material term of the contract without which the parties would not have reached the agreement. The possibility of Court enforcement does not change this fact. Moreover, the parties have treated the agreement as confidential by not placing it on the public docket, attaching it to court filings or admitting it into evidence at an evidentiary hearing. Thus, confidentiality has not been waived by either party.

That's it: No legal analysis, no explanation of why the First Amendment and common-law rights of access don't apply, why they're trumped by some overriding interest, or anything else. Patrick Kabat has therefore filed the following reply, which I pass along for the benefit of readers who are interested in such open-courts questions; naturally, I'll post more when the court renders its decision:

The parties neither engage Prof. Volokh's authorities nor his core argument: The Agreement, though unfiled, is presumptively subject to public access because it was presented to the Court for adjudication, retained and used by the Court in entering rulings and orders, and necessary to understand the ongoing contempt proceedings. And the parties make no attempt to meet their burden to defeat this presumption by proving that disclosure would harm specific government interests.

Instead, they claim that the Agreement "should remain confidential pursuant to its express terms and conditions" or because they chose not to file it.[1] But as Prof. Volokh already demonstrated, these claims are irrelevant to the parties' burden on his motion, and provide no lawful basis to restrict public access to the Agreement.

The public has a qualified right of access to the Agreement.

The parties do not dispute that the Agreement is "necessary to understand the merits of [this] civil contempt proceeding." Newsday v. Cty. of Nassau, 730 F.3d 156, 164 (2d Cir. 2013). The Plaintiffs allege a "litany of violations,"[2] and Bengtson disagrees about what the Agreement "specifically states," asks this Court to accept his account of the "letter and spirit" of the Agreement, and rule that its jurisdictional clause cannot support contempt sanctions.[3] Following his testimony and a court Order, his lawyers submitted a sworn affidavit describing their advice about the Agreement's provisions.[4] However these issues may be resolved, the public—and Prof. Volokh—can only "understand the merits" of the contempt proceedings by knowing what the Agreement actually says. It is therefore "covered by the First Amendment's presumptive right of access." Newsday, 730 F.3d at 164.

Plaintiffs sought the Court's involvement to enforce the Agreement. MW Mapleleaf Partners v. Fifth Third Bank, 2010 WL 5387830, at *1 (E.D. Ky. Dec. 6, 2010) (when party "seeks court involvement in enforcing [settlement] terms, the common law and constitutional access rights presumptively apply to make the decisional basis open to the public."). And the Agreement must be used to adjudicate the contempt proceedings, making it a "judicial document" subject to the common-law right of access. See Volokh Mot., ECF No. 29 at 3-4 (Jan. 17, 2018) (citing cases); see also FTC v. Standard Fin. Mgmt., 830 F.2d 404, 409 (1st Cir. 1987) (access right applied to settlement-related documents submitted privately to court at post-settlement hearing because "submissions [that] come to the attention of the district judge . . . can fairly be assumed to play a role in the court's deliberations.").

At the Plaintiffs' request, the Court has already used the Agreement, determining that it had "continuing jurisdiction to enforce the agreement's terms," and that "Defendant Bengtson had violated the parties' December 13 agreement."[5] Presumably on this basis, the Court ordered him "to take [his video] down immediately" and enjoined further speech about the Barley House.[6] And the Court used the Agreement when it ordered Defendants' counsel to submit a sworn affidavit about how they advised their client to comply with it. On these undisputed bases alone, the public has a qualified common-law right of access to the Agreement, because "relevant documents which are submitted to, and accepted by, a court of competent jurisdiction in the course of adjudicatory proceedings, become documents to which the presumption of public access applies." Standard Fin. Mgmt., 830 F.2d at 409.

The parties' decision not to file the Agreement is immaterial.

The Defendants state that the Agreement was "intentionally not docketed."[7] But whether the right of access applies to the Agreement depends on whether it is used to adjudicate the contempt proceedings and is necessary to understand them,[8] not whether it was docketed. Newsday, 730 F.3d at 164 n. 13 ("To the extent the district court has failed to docket certain filings, we direct it to do so."); Jessup v. Luther, 277 F.3d 926, 929–30 (7th Cir. 2002) (reversing denial of motion to intervene and ordering disclosure of settlement agreement); Picard v. Perrigo, 951 F. Supp. 679, 684 (W.D. Mich. 1996) (document that party briefed but "intentionally chose not to submit" to the Court became judicial record once it was "submitted to the Court" "to induce reliance upon [it]").

Jessup is particularly instructive, because the trial court helped the parties reach a settlement agreement, and retained a copy "to resolve any disputes the parties may have over its meaning." 277 F.3d at 929–30. Even though it was not publicly docketed, the settlement agreement had to be disclosed because "the district court's files now contain a document that reflects input by a federal judge, and so the document is presumptively a public document." Id.

As Jessup recognized, judicial involvement in framing the terms of a settlement also implicates the access right. Even "judicial kibitzing" in settlement discussions "is official behavior," and "[t]he public has an interest in knowing what terms of settlement a federal judge would approve and perhaps therefore nudge the parties to agree to," because "the facts and consequences of [the judge's] participation are public acts." 277 F.3d at 929.

Had the parties not asked the Court to construe its provisions or adjudicate its enforcement, the Agreement might still have been considered "a private, non-judicial document" that did not have to be "place[d] . . . on the public docket."[9] They could have jointly sought leave to dismiss the dispute the Agreement resolved without presenting it to the Court for retention and continued adjudication, and "the settlement agreement that motivated the stipulation of dismissal [would] then have the identical status as any other private contract." Jessup, 277 F.3d at 928.

But the parties made different choices. They drafted an Agreement that permits them to request adjudication by the Court,[10] rather than selecting non-judicial fora to which the public's right of access would not apply. They submitted the Agreement to the Court on December 14, 2017,[11] and asked the Court to adjudicate its provisions. The Agreement is therefore subject to the public's qualified right of access, and the parties bear a heavy burden to justify sealing it.

The parties have failed to justify withholding the Agreement.

Prof. Volokh summarized the controlling standards in his motion, but the parties ignored them, and identified no information that could harm any government interest with any degree of likelihood. To the contrary, the parties have themselves made detailed allegations about many of its provisions.

The parties' sole justification for restricting access to the Agreement appears to be that they agreed it would be confidential, and treated it that way. But when the parties have "offered [no] reason for secrecy except that they have a confidentiality agreement," "[o]bviously that's insufficient," Goesel v. Boley, 738 F.3d 831, 835 (7th Cir. 2013), and "their reliance on the documents' confidentiality does not outweigh the interests in favor of permitting public inspection." Johnson v. Corr. Corp. of Am., 2014 WL 3970115, at *3 (W.D. Ky. Aug. 13, 2014).

Rather, "[t]he confidentiality agreement between the parties does not bind the court in any way," and the court "must apply the rules and principles governing the right of access to court documents as in any other civil case." Brown & Williamson v. FTC, 710 F.2d 1165, 1180 (6th Cir. 1983). Those principles required the parties to make showings they have declined to make, for "only the most compelling reasons can justify the total foreclosure of public and professional scrutiny" of documents that form the basis of an adjudication. Id. at 1180. The Agreement should therefore be docketed and made available for public access.

Conclusion

This is an important and unusual case. This Court has been asked to punish a prominent online speaker in contempt proceedings arising from a settlement agreement the parties placed before it. And this Court has already used that agreement to enjoin that speaker from speaking. Having "invoked the powers of the federal courts," the parties "cannot now claim exemption from the obligations of openness and public access concomitant with litigating in this forum." Rudd v. John Deere, 834 F.3d 589, 596 (6th Cir. 2016). Prof. Volokh therefore respectfully requests that the Agreement be made public.

[1] Defs.' Resp. to Volokh Mot., ECF No. 34 at 1 (Jan. 29. 2018); Pls.' Resp. to Volokh Mot., ECF No. 35 at 1 (Jan. 30, 2018) (joining Defendants' response).

[2] Pls.' Sanctions Br. ECF No. 25 at 2-3 & 4-6 (Jan. 10, 2018).

[3] Bengtson's Hrg. Resp., ECF No. 24, at 2, 5 & 8–10 (Jan. 8, 2018); Bengston's Sanctions Resp. ECF No. 26, at 3-5.

[4] Affidavit of Defense Counsel, ECF 33 at ¶ 7 (Jan. 26, 2018).

[5] Minutes of Dec. 21, 2017 Telephone Conference, ECF No. 18 at 2-3.

[6] Id. at 3. Even the parties' submissions to date required the Court to use the Agreement, and it must be deemed to have been expressly or implicitly introduced as evidence. See, e.g., Fed. R. Evid. 1002 ("An original writing . . . is required in order to prove its content unless these rules or a federal statute provides otherwise."); Fed. R. Evid. 1101(b) (the Rules apply to "contempt proceedings, except those in which the court may act summarily").

[7] ECF No. 34 at 1.

[8] These proceedings include the Court's entry of its December 21 Order. See fn. 6 above and accompanying text. And whether the Court ultimately determines that the Agreement supports contempt sanctions is immaterial to whether the access right applies, because that determination requires the Court to construe its remedies.

[9] ECF No. 35 at 1; ECF No. 34 at 1.

[10] ECF No. 24 at 3.

[11] ECF No. 33 at ¶7.

NEXT: The "Too Irrational to Be a Terrorist" Defense Goes Nowhere

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  1. Wouldn’t the overriding interest be to avoid the Streisand effect? Presumably the Agreement spells out what it is that the defendants were not allowed to say. If members of the public were allowed to access it, its central purpose would be frustrated.

    1. As noted in the response, the parties could have avoided the Streisand effect by choosing a different (non-public) conflict resolution process, such as AAA or other private arbitration companies. Those companies are under no obligation to the general public that is protected via access to court documents. They did not–they asked the government courts to render opinions on their contract. They didn’t advance any legally recognized reason for the contract to be sealed, but instead tried to have the court determine the legal effect of a contract without ever having the contract in evidence “because we wanted the contract to be private”. I just don’t see how that can happen . . .

      1. Never mind! Professor Volokh answered far more completely than I.

  2. Martinned: I appreciate the argument — and I wish that the defendants had actually made such an argument, and then discussed how it fits with the general caselaw.

    And the general caselaw is strongly in favor of openness, despite the Streisand effect. In almost every libel case, for instance, the plaintiff would like to have the underlying libelous statements sealed, since otherwise press accounts about the case would remind people of the allegations. But that’s generally not done, because of the value of public scrutiny of judicial decisionmaking: It’s hard for observers to evaluate whether the law is being soundly applied without knowing what exactly was said.

    Likewise, here it’s hard to evaluate whether the speech-restrictive agreement is being soundly interpreted — and, for instance, whether it justifies the very broad temporary restriction the court imposed based on its sense that the agreement was likely breached — without seeing the agreement. True, public disclosure of the agreement may hurt the plaintiffs, but that can’t be reason to allow the central justification for the injunction and the contempt proceedings to be kept secret.

    1. While I appreciate that that’s the law, I have to wonder what the point is of a contract that can only be enforced in a way that makes it redundant. (And, likewise, of libel laws where any attempt to actually use them results in the opposite effect that the law intended.) While openness is important, it shouldn’t be the only interest that the law protects.

      1. Executed contracts which contain information that both parties wish to remain confidential should include a remediation clause specifying a private arbitrator. Expecting public arbitration of a confidential agreement is simply foolish.

      2. re: “what the point is of a contract that can only be enforced in a way that makes it redundant”

        Good question – and one that should be posed to the lawyers who drafted such a self-defeating contract. The fact that they screwed up, however, is no reason to abuse the rest of the law.

  3. Isn’t the Professor’s argument: “The Agreement, though unfiled, is presumptively subject to public access because it was presented to the Court for adjudication, retained and used by the Court in entering rulings and orders, and necessary to understand the ongoing contempt proceedings.”

    invalidated by this, if true:

    “the Confidential Partial Settlement Agreement . . . was intentionally not docketed, adopted into or approved by a court order or consent decree, was not attached to or included with any papers filed by any party, and was not admitted at any evidentiary hearing.”

    Is there a hole in that list that indicates that the court actually does have a copy that it’s not releasing?

    1. That list, which was enumerated by the defendants, omits what their counsel swore in the attorney affidavit (cited in footnote eleven): that parties presented the agreement to the court. It’s a semantic dodge. Listing particular things that were not done do not undo what was.

      Nor does it unwork the Court’s own references to the agreement, and determinations as to what it requires, in minute entries. It does, however, appear to have had its intended effect?implying that the court doesn’t have a copy.

    2. tkamenick: PSK’s answer strikes me as quite right, but here’s another way of thinking about it: The Court has expressly stated that it had “continuing jurisdiction to enforce the agreement’s terms,” and that “Defendant Bengtson had violated the parties’ … agreement.” Presumably on this basis, the Court ordered him “to take [his video] down immediately” and enjoined further speech about the Barley House. Now the Court is deciding whether to hold Bengtson in contempt, presumably for violating the agreement (since that’s the only plausible basis that I can see for such a contempt hearing).

      How can the court do this without seeing the agreement? And if the answer is that it was shown the agreement but somehow without the agreement being docketed, isn’t that an impermissible end-run around the obligation of open judicial decisionmaking? (That’s not just theory — we cite cases in our original motion that point out that any documents used in such decisions must be made available to the public.)

  4. No links or docket number? (!)

    This is W. 6 Restaurant Group Ltd. v. Bengtson (1:17-cv-02521-DAP) in N.D. Ohio.
    Link: RECAP docket.

  5. If they want to simultaneously keep the agreement private and resolve a dispute about its applicability, they should have agreed to some private dispute-settlement mechanism. Maybe arbitration.

  6. Hey, I live in a country where the FBI/DOJ is comfortable with using what is basically a fictional (prepared by imaginative Russians) press release to annihilate the privacy rights of anyone who stands between Hillary Clinton and her ambitions.

    1. Which backwater religious school deserves credit for developing this level of insight?

      Republicans and Democrats wish to know, although for differing reasons.

      1. Yours.

  7. That’s a great reply. Well done, PSK.

  8. I’m a bit confused; if the agreement at issue was intentionally made private, if it was never docketed with the court, never presented to the court, and never approved by the court, then how can it possibly serve as a basis for contempt proceedings? Contempt proceedings are for wilful violations of a court order; but no such court order exists. If they want to obtain relief for breach of a private contract, then a damage claim for breach of contract lies. It seems plaintiffs are trying to have it both ways – you can’t see the agreement because it’s a private agreement that was never submitted to or approved by the court, but the court can enforce it through contempt proceedings because – WHY?

    1. I believe you have accurately summarized Prof. Volokh’s argument, yes.

  9. I don’t see why private dispute resolution would be adequate. Arbitration awards are enforceable only after confirmation by a court, which would seem to get one back into the problem discussed. Enforcement by a court of an arbitral decision enjoining conduct would put the basis for the decision before the court, wouldn’t it? I wonder what sort of line would be drawn regarding access to settlements is being proposed: the public has, I think, as much interest in the dollar amounts of agreements.

    1. Arbitration awards are not reviewed de-novo, but rather given substantial deference.

  10. Professor, this case reminds me of one that stood out to me as interesting from my home state of Iowa. The case was K.N.T. by Fox v. American Family Mutual Insurance Co., #14-0926 (Iowa Ct. App., 7/9/15). In that bad faith litigation, a plaintiff was allowed discovery of some internal company documents from the defendant insurance company, subject to a protective order. The case went to trial, and some of those internal documents were entered as exhibits. At the conclusion of trial, the defendant made a motion to the court to seal those exhibits, and that was done over the plaintiff’s objections. On appeal, the plaintiff argued that once they were entered as exhibits at a public trial, the internal documents were part of a public record and could be copied and used. Our court of appeals disagreed and kept them sealed. The court ruled that the plaintiff did not have standing to vindicate some larger right of public access. Anyway, just thought you might find that interesting.

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