Free Speech

Magistrate Rejects Sealing in Discrimination Lawsuit Against Novelist Nicholas Sparks and the School He Founded

A good example of a court properly protecting the public right of access to court records.

|The Volokh Conspiracy |

I've posted a good deal recently about court proceedings in which documents were, in my view, unjustifiably sealed; so I thought I'd pass along a decision from earlier this week that struck me as the right way of doing these things. It comes from Magistrate Judge Kimberly Swank, in a case where Saul Hillel Benjamin, former headmaster of the Epiphany School of Global Studies—founded by bestselling author Nicholas Sparks (The Notebook and many others)—sued Sparks and the School for alleged discrimination, defamation, and various other claims. Here's a short excerpt:

While Defendants "very well may desire that the allegations lodged against [them] in the course of litigation be kept from public view to protect [their] image[s], the First Amendment right of access does not yield to such an interest." The adjudication of claims involving embarrassing, injurious, and sensitive information such as that involved in this case is part of the "day-to-day" operations of the federal courts. Having reviewed the materials sought to be sealed and the interests articulated by Defendants, the court determines that Defendants have not shown that the circumstances here are so unusual as to overcome the First Amendment's right of access….

Indeed, if "internal business procedures," "sensitive financial information," and "employment decision-making" are deemed sufficient here to overcome the First Amendment, the court fails to see why these interests would not be invoked in every case involving an employment matter….

And a longer one:

"The public's right of access to judicial records and documents may be abrogated only in unusual circumstances." This is so because "public access promotes not only the public's interest in monitoring the functioning of the courts but also the integrity of the judiciary." …

In support of their motions to seal, Defendants identify three interests they contend are sufficient to rebut the First Amendment and which require wholesale sealing of the above-mentioned documents: (1) information relating to students; (2) information relating to internal governance and decision-making processes of Defendant School and Defendant Foundation; and (3) personnel matters relating to third parties.

Defendants also argue that Plaintiff has failed "to articulate any reason why the public needs access" to the materials sought to be sealed. "The burden to overcome a First Amendment right of access rests on the party seeking to restrict access." Furthermore, a member of the press [journalist Amanda Holpuch (who had previously published an article about this lawsuit)] has objected to the motions to seal the summary judgment materials. Lastly, this argument fails to address the judicial integrity component of the right of access. Accordingly, the court rejects this argument and turns to Defendants' asserted compelling interests.

Information Relating to Students

The court has reviewed the various documents Defendants seek to seal on the ground they reveal identifying information about students of Defendant School. Some of these documents contain the names of students; some of these documents contain the names of parents of students which could be used to deduce the identities of students; and some of these documents contain absolutely no identifying information about students. Redaction of students' names and those of their parents is practicable as to these documents and is a less drastic alternative than the wholesale sealing that Defendants request….

Internal Governance and Decision-Making Procedures

Defendants also seek to seal certain documents on the ground they reveal information about the internal governance and decision-making procedures of Defendants School and Foundation. More specifically, they contend these documents contain strategic information about the operation of their organizations (hiring and firing, recruitment of faculty and staff, donor fundraising, organizational grievance reports, regulation of student clubs, and internal finances) and that the revelation of this information would frustrate the respective organizations' purposes (i.e., to educate its students and to further the charitable aims of the Foundation).

Defendants analogize this information to strategic, internal business information which they contend courts have held to be a "higher value" sufficiently on par with a government interest to, on occasion, constitute a compelling interest sufficient to overcome the First Amendment right of access to judicial records…. [Board of Trustees Member Samuel McKinley Gray, III] states that disclosure of the documents would hinder Defendant School's recruiting and retention efforts because (1) parents would be concerned that confidential information about their children would be publicized; and (2) board members and staff would be "alarmed" that discussions and information about personnel issues, educational challenges, and student welfare would no longer be confidential. Defendant [Nicholas] Sparks indicates similar concerns as to the Foundation, noting that it would hinder donor and staff recruitment if private employment matters discussed on a "need to know" basis were disclosed.

The court shares Defendants' concern about the disclosure of the identities of the schoolchildren, and, therefore, has granted Defendants' request to redact from the documents the names and other information from which the students could be identified. However, a review of the materials sought to be sealed leads the court to conclude that these materials are overwhelmingly about the handling of a particular employment matter, namely, the circumstances leading to the termination of Plaintiff's relationship with the School and Foundation.

While Defendants "very well may desire that the allegations lodged against [them] in the course of litigation be kept from public view to protect [their] image[s], the First Amendment right of access does not yield to such an interest." The adjudication of claims involving embarrassing, injurious, and sensitive information such as that involved in this case is part of the "day-to-day" operations of the federal courts. Having reviewed the materials sought to be sealed and the interests articulated by Defendants, the court determines that Defendants have not shown that the circumstances here are so unusual as to overcome the First Amendment's right of access….

Indeed, if "internal business procedures," "sensitive financial information," and "employment decision-making" are deemed sufficient here to overcome the First Amendment, the court fails to see why these interests would not be invoked in every case involving an employment matter….

iii. Third-Party Personnel Information

The court has reviewed the various documents Defendants seek to seal on the ground they reveal personnel information about third parties. The majority of the information regards the employment of Plaintiff, which is the heart of the lawsuit. Moreover, redaction of sensitive information regarding third parties (i.e., email addresses) is a less drastic alternative than the wholesale sealing sought by Defendants and is practicable here….

[As to certain other documents], Defendant Sparks has failed to show that "countervailing interests heavily outweigh" the right of access to these judicial records. The deposition excerpts from Jenna Dueck and Thomas Plihcik contain information specifically relating to the circumstances under which Plaintiff's employment with Defendants began and ended, which is central to the lawsuit. Review of these deposition excerpts reveals no sensitive information relating to the internal governance or decision-making of the Defendant School or Defendant Foundation that would justify sealing. Moreover, aside from the very names of Ms. Dueck and Mr. Plihcik, there is no sensitive third-party information disclosed….

NEXT: Food Freedom and the First Amendment: Is Feeding the Homeless a Constitutional Right?

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  1. And if an employer wishes to maintain its privacy it could always insert an arbitration clause into a contract. Arbitrators are not bound by these pesky rules about public access/

    1. Might work for people you have a contract with, but no use for alleged torts or people who are aggrieved at your disinclination to enter into a contract with them. Or people who allege you entered into a contract, where you disagree.

  2. I’m probably misunderstanding this “sealing” business. I had assumed that it involved ruling that documents that litigants have provided to the court, and which are not yet public, remain not public. If so, it’s not easy to see whose 1st Amendment rights could be infringed by such a ruling. Certainly not those of a journalist who just doesn’t have the documents she would like to write about.

    Conceivably the rights of either or both of the litigants, who do have the documents already ?

    But I guess I must be wrong. These are documents that are already in the publc domain, and a “sealing” involves forbdding people from speaking about them or reprinting them publicly ?

    Incidentally, glancing in a non lawyerish way at the 1st Amendment, I didn’t spot anything at all about the public having a “right of access” to other people’s documents, whether the other peope are litigants or the government.
    Where does this 1st Amendment right of access come from ? Presumably ancient case law ?

    Leaving the mysteries of th 1st Amendment aside, it’s not obvious to me that the interest of the public in finding out the details of a litigant’s affairs outweighs the interests of the litigant in keeping his affairs private – particularly if the litigant did not initiiate the legal action, and wins it. That sounds like punishing the innocent for the amusement of the public. Lions and Christians time.

    1. Generally the public does in fact have a right of access to court documents, that if someone wants to use something in order to prove their case or rebut the other side they have to disclose it. This is seen as an essential step for the public to be able to judge whether the courts are doing a good job.

      1. >whether the courts are doing a good job.

        I think also, having public court documents people to know how the courts interpret documents do that they can better understand what the law means when writing future contracts of deciding how to behave in the future. It’s also necessary to allow people to determine whether the courts enforce equal protection for all rather than interpreting the law one way for one group and differently for another.

      2. I’m sure you’re right. But what does this have to do with the 1st Amendment ?

        1. I could be wrong, but I think it’s related to the first amendment right to petition the government.

    2. I’m probably misunderstanding this “sealing” business. I had assumed that it involved ruling that documents that litigants have provided to the court, and which are not yet public, remain not public.

      This is mostly it, except you beg the question. Except under unusual circumstances, it is the very fact of providing the documents to the court that makes them public.

      If you and I just exchange documents with each other in discovery as part of a suit, then they aren’t public. But once we submit them to the court for the court to use to adjudicate our dispute, they are public records.

      If you – a member of the public or the press – walk over to your local court clerk’s office, you can obtain the documents filed in any lawsuit. (In federal court and some states, you can now do it online.) Sealing requires certain documents out of one of those files to be withheld.

      1. Except under unusual circumstances, it is the very fact of providing the documents to the court that makes them public

        Except that the exception refutes this “very fact.”There must be a stage between presentation to the court and making the documents available to the public, duing which the judge – if invited – has the option not to make the documents public. Consequently the right of some third party to peruse the documents and make 1st Amendment protected remarks about them must involve something other than the liberty to speak freely. It must involve some right to have non public documents made public.

        Presumably there is some ancient case law that discovered this right somewhere in the 1st Amendment. Otherwise people would be referring to the nth Amendment right to see documents presented in court, not 1st Amendment rights. But ignorant as I am about ancient case law, it’s not obvious to me where such a right could be found in the 1st Amendment. Not being able to see other people’s documents doesn’t affect your freedom to speak. Obviously you may have more to say if you were better informed about other people’s affairs, but lacking access to interestng facts that you might want to talk about is not the same thing as not being allowed to speak freely.

        1. The government has all sorts of facts about which people, especially journalists, would like to talk. Such people acquire a right to demand that the government release the facts, in certain circumstances, pursuant to the FOIA. They don’t -so far as I am aware – have some independent 1st Amendment right to find out what the government has been up to.

          Shosei located this right in the 1st Amendment as part of the right to petition the government. Which is a jolly good try, but fanciful, IMHO.

        2. “Not being able to see other people’s documents doesn’t affect your freedom to speak.”

          They aren’t “other people’s documents”. They’re mine. It’s a right of access argument under freedom of speech and freedom of press clauses of 1A. It’s no different than if the court had declared that the trial should be closed to the press. See Richmond Newspapers v. Virginia.

          1. Thanks for Richmond Newspapers v. Virginia which is what I was looking for, ie an actual precedent placing the right to have information disclosed to you, within the right to speak freely (ie the 1st Amendment.)

            It turns out to be rather a recent precedent, and so far as I can see, it’s largely handwaving. Insofar as there is any attempt at reasoned justification for the invocation of the 1st Amendment, it’s :

            ? “without some protection for seeking out the news, freedom of the press could be eviscerated.” Branzburg v. Hayes, 408 U.S. 665, 681 (1972).

            Even this is disingenuous, since “seeking out the news” is not the same thing as “being able to require that you have access to other people’s documents.”

            1. The main logical point is that the right of access is not alleged to rest ? as some here allege ? on the notion that the documents are already public, that they are already “our” documents rather than those of the litigants, or of the court ? ie the 1st Amendment right is not of the form ” these documents are already public, it is an infringement to prevent anyone from looking at them.” It is of the form “the press would have less important stuff to write about, and the public less important stuff to talk about, if they were not allowed to see this stuff, therefore the stuff ought to be made public.”

              Which is pretty weak tea. The only non handwaving constitutional provision that is mentioned, as an after thought without naming it – is the 9th Amendment. All of the historical chatter about English legal history is irrelevant to the 1st Amendment. But it is relevant to the 9th Amendment. If it is really the case that citizens had a right to attend and see all the evidence in, all trials, then blocking them from access might well be a 9th Amendment violation. But if there’s a good argument that it’s a 1st Amendment violation then Richmond Newspapers v. Virginia failed to mention it.

              1. “…ie the 1st Amendment right is not of the form …”

                It was in Richmond. The trial was public. The court issued an order making it private. The order “prevent[ed] anyone from looking at [the trial]”. More generally, “documents . . . of the court” are public.

            2. They aren’t other people’s documents. They’re mine. Because they’re public records.

              “Even this is disingenuous…”

              I agree with you that Richmond is wrong. But disingenuous? It was a 7-1 decision.

              1. They aren’t other people’s documents. They’re mine. Because they’re public records.

                So y’all keep saying. But they must be public records for some reason antecedent to the invocation of the 1st Amendment, otherwise the argument is circular – ie “there’s a 1st Amendment right to see the docs because they’re public records. How do we know they’re public records ? Because there’s a 1st Amendment right to see them.”

                Based on the offerings in Richmond, the likeliest location for such an antecedent reason is the common law via the 9th Amendment. From which we would at least get a coherent non circular argument – ie “there’s a 1st Amendment right to see the docs because they’re public records, and they’re public records because there’s a 9th Amendment right to see them.”

                I say “disingenuous” in relation to the argument in the Chief Justice’s opinion that says that the mischief is the government preventing jouralists “seeking out the news” – I doubt that every Justice who signed on to the opinion must be held responsible for every unfortunate turn of phrase within it. For example I entirely acquit Justice Kagan, who is a smart and articulate woman, from blame for signing on to various Kennedy blancmangefests. She’s obviously willing to put up with his mush to get the votes lined up right.

        3. Except that the exception refutes this “very fact.”There must be a stage between presentation to the court and making the documents available to the public, duing which the judge – if invited – has the option not to make the documents public.

          No. There is no such stage. As soon as you submit it to the court, it is public by default; there is no action by the judge to make them such. (Indeed, the way the procedure works in most jurisdictions, it is filed and thus public before it ever gets to the judge’s desk.) If you want to file something w/o it being public, you must ask the judge first, and only if the judge grants your request can you file it under seal.

  3. The 6th amendment guarantees a right to a public trial in criminal (but not civil) matters. I generally take the view that every clause in the constitution must be necessary. So an interpretation of one clause that renders another clause completely redundant must be too expansive. Simce the framers thought it necessary to put Clause B in, they must have concluded that Clause A didn’t cover it.

    This interpretation of the First Amendment, while accepted by most lower courts, renders the 6th Amendment’s public trial right a complete nullify. If it weren’t there it would make no difference. I would conclude this means it can’t be a correct interpretation of the First Amendment.

    1. There’s an alternative interpretation that avoids your argument. The 6A is an absolute right of the accused to a public trial. The 1A could be a (non) absolute right of the press and public to have access to criminal and civil records, subject to exceptions.

  4. ReaderY,
    Could you explain how interpreting the 1st amendment to allow the public to view a evidence presented in a public trial renders the 6th Amendment guarantee to a public trial a nullity? Or do you mean something else.

    Because I’m really not understanding what you are claiming. Obviously, the ability of the public to see public documents doesn’t automatically guarantee any sort of trial. So, the 6th would still be required to guarantee the right to a trial at all, and in particular, guarantee the right to a public one rather than either having the right to a private one or being forced to have a private one.

    1. Could you explain how interpreting the 1st amendment to allow the public to view a evidence presented in a public trial renders the 6th Amendment guarantee to a public trial a nullity? Or do you mean something else.

      I don’t think he means “nullity.” I think he means “superfluous.” His argument is, in essence: “If the 1A protects the public’s right to see documents that are filed, then it must also protect the public’s right to attend a trial, and therefore the 1A guarantees public trials, which means that the 6A’s public trial clause is redundant.”

  5. A touch disappointed. I was hopeful that one of my cases would be cited in the decision, especially In response to the string cite on page 11.

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