Free Speech

Court Refuses to Issue Gag Order and Sealing Order in Sexual Harassment Suit Against YMCA of Pikes Peak

(Disclosure: I had filed an objection, on my own behalf, to the motion to seal.)

|The Volokh Conspiracy |

Julie Slivka sued her former employer, the YMCA of the Pikes Peak Region, and her former coworker (and fellow manager) Carlos Lozano, claiming that Lozano had forcibly groped her, and the YMCA didn't properly react when she complained. The lawsuit is pending, and I can't speak to whose factual story is correct.

But what interested me is that the YMCA had tried to (1) get a gag order "imposing reasonable restrictions on the release of information to the media and members of the public by any parties or counsel in this litigation," and to (2) get the case sealed, or at least to seal various allegations from Slivka's complaint, including that,

18…. A binge drinking culture is prevalent at the YMCA and Mr. Lozano was perpetuating that by purchasing Ms. Slivka unwanted alcoholic beverages and pressuring her into consuming them.

19. Older men in positions of power sleeping with young women in subordinate positions is also prevalent at the YMCA and, that night, Mr. Lozano was trying to join this club of men who preyed on the women working for them….

64. Upon information and belief, it is common knowledge at the YMCA that female employees who have sex with [a particular top executive at the YMCA of the Pikes Peak Region] are more likely to be promoted within the organization than female employees who do not.

65. This behavior sets the tone for the organization; it lets subordinates know that using their power in the workplace to obtain sex is acceptable….

69. Not only did a colleague that she looked up to sexually assault her that night, but Ms. Slivka would bear the unfortunate reality that the organization that she worked for and admired would be complicit in protecting Mr. Lozano from discipline, create a hostile working environment, retaliate against her, and fail to make reasonable accommodations for the Post-Traumatic Stress Disorder she suffered after the assault.

Again, I can't speak to whether these allegations are correct, but in our legal system, court proceedings are supposed to be open, not sealed. I therefore filed an objection to the motion to seal (as third parties are allowed to do, because sealing implicates the public's right of access); and I'm pleased to say that on Friday Chief Judge Philip A. Brimmer (D. Colo.) denied the motions.

First, the court rejected the proposed gag order, concluding that there was no "'reasonable likelihood' that media attention or extrajudicial commentary will prejudice a fair trial," given the modest media coverage that the case had gotten, and given the availability of "other, less-restrictive measures [that] may be taken to mitigate any potential prejudice caused by press coverage of the case" (such as questioning prospective jurors about whether they had heard about the case).

Then, the court rejected the motion to seal:

The Supreme Court has acknowledged a common law right of the public to access judicial records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). This right is premised upon the recognition that public monitoring of the courts fosters important values such as respect for the legal system. There is a presumption that documents essential to the judicial process are to be available to the public, but they may be restricted when the public's right of access is outweighed by interests which favor non-disclosure….

"[A] movant [must] articulate a real and substantial interest that justifies depriving the public of access to documents that inform[] the court's decision-making process." … The fact that the parties agree on restriction is insufficient to overcome the presumption that court proceedings and documents must be available to the public….

YMCA has set forth no law suggesting that closing the entirety of these civil proceedings to the public is warranted in this case….

In the alternative, YMCA argues that the Court should [in effect seal] plaintiff's complaint, its motion for a gag order, and its "motion to strike" [which appears to have been an incorrectly filed document, not containing a motion to strike -EV]. The Court finds that YMCA has failed to meet its pleading burden under D.C.COLO.LCivR 7.2 [the local sealing rule].

First, it has failed to "identify a clearly defined and serious injury that would result if access is not restricted."  YMCA states that "[t]he threatened harm to Defendant YMCA is profound," but does not specify what it believes the purportedly profound harm to be.  To the extent that YMCA implies that its reputation will be damaged absent restriction, see id. at 3-4 (describing plaintiff's complaint as containing "baseless, per se defamatory, tangential, and extremely prejudicial accusations" and "ad hominem attacks … which are prejudicial or, in part, defamatory in nature"), YMCA does not identify a "clearly defined and serious injury" that would result if access is not restricted. Thus, it has failed to meet its burden under the Local Rules.

YMCA has also failed to explain why no alternative to restriction is practicable or why restriction is the only remedy that will adequately protect its interests…. The Court finds that there are less restrictive means through which YMCA could obtain the relief sought. For example, with regard to plaintiff's complaint, YMCA could file a motion under Rule 12 to strike the paragraphs in the complaint that it contends contain inappropriate allegations.[Shortly after the order was issued, the YMCA did file a motion to strike; but even if that is granted, the grant would not have the effect of sealing the original complaint. -EV] Or it could file a motion for sanctions under Rule 11 based on its argument that plaintiff's allegations were "brought in bad[] faith" or were intended to "taint the prospective jury pool."

As to the other documents it seeks to restrict, YMCA could have filed them as restricted documents along with a motion to restrict. See D.C.Colo.LCivR. 7.2(e) ("A document subject to a motion to restrict shall be filed as a restricted document and shall be subject to restriction until the motion is determined by the court."). Because YMCA "failed to avail [itself] of the protections provided by the District's local rules …, any claim to confidentiality has been waived." …

Here, by the way, are excerpts of my objection, which Colorado Public Radio and the Colorado Freedom of Information Coalition joined:

I. The public has a presumptive right to access all the documents in the file

 "A party seeking to file court records under seal must overcome a presumption, long supported by courts, that the public has a common-law right of access to judicial records." Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1135 (10th Cir. 2011). "[S]ecret court proceedings are anathema to a free society." M.M. v. Zavaras, 939 F. Supp. 799, 801 (D. Colo. 1996).

In addition to this common-law right of access, there is also a First Amendment right of access to court documents in civil proceedings. The Supreme Court has expressly held that there is a First Amendment right of access to criminal trials, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality op.); id. at 585 (Brennan, J., concurring in the judgment), and courts have concluded that "the justifications for access to the criminal courtroom apply as well to the civil trial." Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (6th Cir. 1983). "[T]he First Amendment does secure to the public and to the press a right of access to civil proceedings." Westmoreland v. Columbia Broad. Sys. Inc., 752 F.2d 16, 23 (2d Cir. 1984); see also Matter of Continental Illinois Securities Litigation, 732 F.2d 1302, 1308 (7th Cir. 1984) ("the policy reasons for granting public access to criminal proceedings apply to civil proceedings as well").

"Public access to civil trials also provides information leading to a better understanding of the operation of government as well as confidence in and respect for our judicial system." Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984). This right extends to "pretrial court records" as much as to trial proceedings. Mokhiber v. Davis, 537 A.2d 1100, 1119 (D.C. Cir. 1988); see also Republic of Philippines v. Westinghouse Elec. Corp., 139 F.R.D. 50, 56 (D. N.J. 1991) ("[p]ublic access to court records is protected by both the common law and the First Amendment"). The Tenth Circuit has not yet ruled on whether such a First Amendment right of access exists in civil cases, see United States v. Pickard, 733 F.3d 1297, 1302 n.4 (10th Cir. 2013), but the body of precedents from other circuits—indeed, the view of every circuit that has passed judgment on the question—counsels in favor of recognizing such a right.

In any event, whether under the common-law right of access or under the First Amendment right of access, Volokh is entitled to access to the documents in this case.

"A complaint, which initiates judicial proceedings, is the cornerstone of every case, the very architecture of the lawsuit, and access to the complaint is almost always necessary if the public is to understand a court's decision." FTC v. Abbvie Prods. LLC, 713 F.3d 54, 62 (11th Cir. 2013). This includes paragraphs 18, 19, 63-67, and 69, which are directly germane to the plaintiff's theory of the case.

Perhaps those allegations are false; perhaps they are true; but in any event the public is entitled to see them, so that it can monitor the proceedings in the public's courts. "If the charge is proven accurate, the public should have access to that information; if the charge [is] unfounded, the public should be made aware of that fact as well." Anderson v. Home Ins. Co., 924 P.2d 1123, 1128 (Colo. App. 1996).

Moreover, the Complaint was already posted, with no redactions, by Colorado Public Radio, linked to from its story at http://www.cpr.org/news/story/lawsuit-alleges-colorado-springs-ymca-ignored-sexual-assault-created-inappropriate; see http‌:‌//www.‌cpr.org/sites/default/files/original_ymca_lawsuit.pdf. Any attempt to seal the Complaint would thus be futile, for the reasons given in Gunn v. WCA Logistics, LLC, No. 13-cv-02197-WJM-MEH, 2016 WL 7868827, *1 (D. Colo. Jan. 12, 2016) (some citations omitted):

"The documents at issue in Defendants' motion were not filed under restriction…. Only [weeks later] did Defendants seek to restrict the documents. Because Defendants failed to avail themselves of the protections provided by the District's local rules in filing [the document], any claim to confidentiality has been waived. The cat has already been let out of the bag. Cf. Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 n.11 (2d Cir. 2004) ('Once the cat is out of the bag, the ball game is over.') …. After-the-fact sealing should not generally be permitted. See id. at 144 ('… We simply do not have the power, even were we of the mind to use it if we had, to make what has thus become public private again.')."

The right of access also extends to defendant's motion to strike and motion for gag order. When exhibits or other documents "directly bear on a dispositive issue," "a strong presumption of public access applies." Fish v. Kobach, 2017 WL 4422645, *5 (D. Kan. Oct. 5, 2017) (so holding as to "exhibits at issue in this case [that] were attached to the motion for summary judgment"). Such documents would be "materials that formed the basis of the parties' dispute and the district court's resolution," and they must therefore be publicly available. Baxter Int'l Inc. v. Abbott Laboratories, 297 F.3d 544, 548 (7th Cir. 2002).

The motion to strike qualifies under this test, because it seeks to affect what parts of the Complaint are allowed to form the basis of plaintiff's case. The motion for a gag order likewise qualifies, because it seeks to affect whether this Court will impose a prior restraint, thus restricting the First Amendment rights both of the parties and of the public. "[E]njoining speech harms listeners as well as speakers," McCarthy v. Fuller, 810 F.3d 456, 461 (7th Cir 2015), and the public is entitled to know what basis is being offered for imposing such harm on it (even when such harm is found to be legally justified).

Likewise, the right of access applies to any order the court may issue (despite defendant's request that the court seal "any subsequent Order of this Court detailing those offending paragraphs," Def. Motion for Restricted Access 5). The Court "need[s] to provide a proper, publicly available explanation of the Court's decision." Bellwether Community Credit Union v. Chipotle Mexican Grill, Inc., 353 F. Supp. 3d 1070, 1078 n.1 (D. Colo. 2018) (citing D.C.COLO.LCivR 7.2). "[I]t should go without saying that the judge's opinions and orders belong in the public domain." Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000). "There is a particularly strong presumption of public access to [judicial] decisions as well as to the briefs and documents submitted in relation thereto. The Court's decisions are adjudications—direct exercises of judicial power the reasoning and substantive effect of which the public has an important interest in scrutinizing." Encyclopedia Brown Prods., Ltd. v. Home Box Office, Inc., 26 F. Supp. 2d 606, 612 (S.D.N.Y. 1998).

Indeed, the defendant's own motion shows the dangers posed by attempts to seal even narrow categories of information. The defendant seems to particularly care about sealing "paragraphs 18, 19, 63-67, and 69" of the Complaint. Def. Motion for Restricted Access 5. But to make even that modest redaction work would apparently also require sealing the motions that discuss those paragraphs, as well as any court order that discusses them. Id. And indeed the defendant's objections lead it to ask the court to seal "the entirety of these proceedings." Id. Applying the normal strong presumption of open access to all record documents would avoid such snowballing sealing.

II. Defendant's desire to protect its reputation, and to avoid tainting the jury pool, does not overcome the presumption of openness

Before the public's First Amendment right of access may be infringed, "it must be shown that the denial is necessitated by a compelling government interest, and is narrowly tailored to serve that interest." Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 607 (1982). Even under the somewhat less demanding test applicable to the common-law right of access, "the public's right of access … is presumed paramount." Ramirez v. Bravo's Holding Co., 1996 WL 507238, *1 (D. Kan. Aug. 22, 1996). Any part seeking to seal judicial records "must articulate a real and substantial interest that justifies depriving the public of access to the records that inform our decision-making process"—a "heavy burden" to meet. Helm v. Kansas, 656 F.3d 1277, 1292-93 (10th Cir. 2011).

Defendant has not discharged this burden. "[A]n effort to avoid embarrassment or harm to the reputation of parties … is certainly not a compelling reason to grant a confidentiality order." Daines v. Harrison, 838 F. Supp. 1406, 1408 (D. Colo. 1993). "Courts have held that injury to one's reputation and potential embarrassment generally do not outweigh the strong presumption of public access attaching to judicial documents." Parson v. Farley, 352 F. Supp. 3d 1141 (N.D. Okla. 2018). "[T]he personal desire of witnesses to be protected against the disclosure of information relevant to judicial proceedings 'cannot be accommodated by the courts without seriously undermining the tradition of an open justice system,'" Huddleson v. City of Pueblo, Colo., 270 F.R.D. 635, 639 (D. Colo. 2010); and the same logic applies to parties as well as witnesses. See also, e.g., In re Neal, 461 F.3d 1048, 1054 (8th Cir. 2006) ("[I]njury or potential injury to reputation is not enough to deny public access to court documents."); Doe v. Public Citizen, 749 F.3d 246, 269 (4th Cir. 2014) ("We are unaware … of any case in which a court has found a … bare allegation of reputational harm to be a compelling interest sufficient to defeat the public's First Amendment right of access. Conversely, every case we have located has reached the opposite result under the less-demanding common-law standard."); In re Southeastern Milk Antitrust Litigation, 666 F. Supp. 2d 908, 915 (E.D. Tenn. 2009) ("neither harm to reputation … nor conclusory allegations of injury are sufficient to overcome the presumption in favor of public access").

Part of the reason why reputational harm does not justify a seal is that the danger of reputational harm is commonplace in court proceedings—yet "the asserted interests for sealing cannot be generic interests that would apply with equal force to every case." United States v. Apperson, 642 F. App'x 892, 903 (10th Cir. 2016). Indeed, the same reputational arguments for secrecy could be made by defendants in a wide range of other intentional tort cases. And of course some criminal defendants might prefer to have all the allegations against them being tried in secret as well. Yet the First Amendment and common-law rights of access to court records forbid that.

The same is true of the interest in preventing any possible "taint [to] the prospective jury pool," Motion for Restricted Access 4. This risk exists in any case in which a jury trial may eventually occur—which is to say any suit at common law seeking damages of over $20. U.S. Const. amend. VII. To allow such a justification would turn the strong presumption of public access into a rule of routine sealing.

And even if the taint-avoiding justification were to apply only in cases that are likely to draw media attention, that would mean that the public would lose access to the very cases that most arouse the public's interest. Yet "the greater the public interest in the litigation's subject matter, the greater the showing necessary to overcome the presumption of public access." Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 229, 305 (6th Cir. 2016).

Conclusion

The public has a First Amendment and common-law right to access the court record in this case, including the Complaint, all motions, and all orders. Without these materials, the public readers cannot fully analyze the controversy in this case. And the defendant's desire to protect their reputations and prevent prospective jurors from hearing about the case cannot justify the seal. For these reasons, Volokh asks that access to the file not be restricted.

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  1. So the feminists have achieved sexual equality at the YMCA, in that young women as well as young men are preyed upon, and that is a bad thing?
    I get so confused at times.

    1. man, i think u right about that

    2. Long,
      Which part is confusing to you? It seems pretty accepted that being preyed upon is a bad thing and ought to be discouraged, yes? I gather that your real point was, ‘Hey, it used to be young boys who were molested at the YMCA. And now the Y has “evolved” enough so that both sexes are now molested and/or harassed. What a pathetic display of “equality.” ‘

      What confuses me is the part where you say that you yourself are confused. (And, based on his comment, Charles Hewitt shares your confusion.)

  2. They should have denied simply because they spelled “Gag” wrong.

    “Defendant, The Young Men’s Christian Association of the Pikes Peak Region (“Defendant YMCA”), by and through their undersigned counsel, Tyson & Mendes LLP, hereby moves for a Gage Order.”

  3. “Mr. Lozano was … purchasing Ms. Slivka unwanted alcoholic beverages and pressuring her into consuming them.”

    Terrible. A man buying a woman drinks is no more defensible than a woman who arouses a man while denying him sex, thereby causing an assault.

    1. I think they were trying to establish that the YMCA knew about and implicitly condoned that exact behavior, so they should be liable.

      However, the complaint is written badly and in questionable English. It’s not written in a professional tone. It mixes tenses repeatedly. Frequent typos. I was surprised to see that this was submitted by a lawyer and not by herself.

      1. Would not respondeat superior be sufficient to establish liability if the allegations against Lozano are proven?

        1. It sounds like the purchasing of the drinks and the pressuring were happening after hours, and I’m assuming they are outside on the manager’s job duties, so the YMCA typically wouldn’t be liable under respondeat superior.

        2. She went with him as a concerned friend, not as a subordinate.

    2. It must really irk you guys that we’re living in the 21st century and not earlier (e.g. 16th century).

      Then you could have bought all the unwanted drinks and pressured women as much as you needed to.

      1. 16th Century? The antiquated notion that women have the ability to control how much they drink was en vogue as recently as the 20th century. We’ve only become enlightened very recently.

        Sometimes we forget that within our lifetimes, the only thing preventing a man from lowering a woman’s inhibitions was her ability to decline the drinks he offered her.

      2. You mean in the days when women were considered fragile, irrational creatures who couldn’t be trusted to make their own decisions and had to be protected from everything, including themselves? You’re right, I’d love to advance past those days.

    3. Nobody should be buying alcohol for an opposite sex subordinate in a workplace with the intention of trying to bed her.

      This isn’t some sort of misplaced political correctness. If a guy wants to have sex with someone, he can try hitting up women who don’t work for him.

      1. Don’t dip your pen in company ink. It never works. However, dudes are “contextual alphas” because of their position in the workplace hierarchy, and they use this to try to up their chances of getting laid. Do you even lift, bro?

        1. “The YMCA “combined preaching in the streets and the distribution of religious tracts with a social ministry. Philanthropists saw them as places for wholesome recreation that would preserve youth from the temptations of alcohol, gambling, and prostitution and that would promote good citizenship.””

          https://en.wikipedia.org/wiki/YMCA

          1. I’m trying to understand how that is a response to my comment. If it is, I think it best to invoke the Conquest rule of politics, that any organization not explicitly right-wing sooner or later becomes left-wing.

            1. The *ideals* of the organization are higher than they might be in, oh I don’t know, a libertine magazine, not that the (alleged) behavior should happen at either place.

              1. While degenerates in Hollywood raping kids or quid pro quo “show me your hole, you get your role” doesn’t surprise anyone, the fact that a middle America organization (at least that locale, allegedly) has a culture of senior supervisors trying to get the pretty young skintern drunk shouldn’t surprise anyone either. Anyone who’s graduated the school of hard knocks can tell it happens everywhere.

                It reminds me of a comment from a Catholic priest, when asked by parishioners where these gay pedos came from that they were ordained and inflicted upon the lay members, he responded they they came from the laity. In other words, he held up a mirror.

      2. There’s no claim in the complaint that she worked for him, although they try to imply that he is in a position of power over her.

    4. “Terrible. A man buying a woman drinks”

      This was an employment case. Stale-thinking right-wing misogynists can’t be replaced fast enough, but they will be replaced by their betters eventually.

      1. Yup. All you guys gotta do is find a candidate that can beat an obnoxious game show host vanity candidate. Good luck.

  4. I’m concerned with the probable rise of extortionist type lawsuits which obscure the valid ones. It seems fairly common in divorce and child custody cases to make incendiary allegations to improve the prospects of winning. There seem to be at least some women who will for whatever reason concoct allegations of sexual misconduct possibly to obtain money, notoriety or conceal other behavior. The Duke Lacrosse team and University of Virginia cases come to mind. These widely reported false allegations when proven false may well poison the chance of legitimate victims coming forward or prevailing in court.

    This morning on NPR Alan Dershowitz accused David Boise of suing him based on false allegations of raping a girl with Mr. Epstein. He claimed that the real target was Les Wexler and since no suit was filed there may have been a payoff. Stormy Daniels and her former lawyer Michael Avenatti made all sorts a allegation against Donald Trump, yet Trump apparently prevailed in court. Michael Avenatti has since been indited on multiple charges.

    I don’t know the truth of any of these allegations but it seems keeping them confidential at least until they are adjudicated might be advisable. Much like the Rape Shield Laws already on the books.

    1. Malicious prosecution is a viable remedy if someone makes false allegations intending to publicize them and injure you.

    2. If the defendant is high enough profile there is no need to publicize the allegations, they need only let the right people in the press know the case was filed.

      Many of the accusers are judgement proof and their attorneys are working on commission. The Goldmans won against O.J. How much have they collected?

      Getting a district attorney or US Attorney involved in a criminal prosecution seems unlikely to happen. In any event there will always be charges of favoritism, collusion or cover-up.

  5. The Conspirators are uniformly demonstrating the resolve and decency for which Ted Cruz Libertarians are known by refraining from mentioning Pres. Trump’s recent overt, especially ugly, repetitive bigotry toward a few female Members of Congress.

    Sen. Cruz — born outside the United States, as Rafael, as I recall — sets the example with his silence. The Conspirators — some of whom were born outside the United States, I believe — demonstrate equivalent courage on behalf of Republican academia with their (unanimous, and therefore non-Heterodox) appeasement of Pres. Trump’s bigoted conduct.

    If it lathers the right-wing rubes and is met with silence among educated and ostensibly civilized conservatives, Pres. Trump’s tactic becomes understandable.

    (I expect Sen. Cruz to object to Pres. Trump’s misconduct to at least some degree eventually, in part because Sen. Cruz recently showed spine with respect to a celebration of the Klan and in part because he likely hopes to be elected again.)

    1. Well, this is their blog, and not yours. I’m sure you’re all over things on twitter and such.

      Frankly, I’m disappointed that David Post didn’t make a post about Trump winning the emoluments clause lawsuit, and then reminding us that the three judges in the case (appointed by Republicans) are not Republican judges.

      1. They can comment, or refrain from commenting, as they wish.

        Others can comment, or refrain from commenting, about the partisan, shameful appeasement of bigotry.

        May the better ideas . . . and better people . . . win.

        That’s easy for me to say, of course, because because the better people and their liberal-libertarian ideas have been winning the culture war in America for more than a half-century, with no end to the progress in sight.

    2. “Pres. Trump’s recent overt, especially ugly, repetitive bigotry toward a few female Members of Congress.”

      How is that a legal issue? And Ilya Somin has a post about some of the most recent ones, so what are you whining about?

  6. YMCA – not Christian, and not for men. But we’re inclusive!

  7. Wow, this is the first I’ve ever heard about the YMCA being associated with anything sexual.

    1. You must have missed The Village People.

      1. That’s the joke Rstein. The Navy in the 1970s was a great organization for homosexuals too I guess, if you ask the Village People. 😉

        1. I obviously forgot the humor tags. I guess I should have included a smiley, but that seemed too obvious.

          1. So I missed that your response was an ironic reply to an ironic comment? How meta!

            1. Pretty Much. 😉

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