Free Speech

"Right to Be Forgotten" as to Court Opinions Rejected …

... by a federal district court decision yesterday, in a case brought by a pro se litigant in New Jersey.

|The Volokh Conspiracy |


A. In 2017, Bonner lost a case in New Jersey state appellate court, Bonner v. Cumberland Reg'l High Sch. Dist. Justia.com, a site that (among other things) publishes online copies of state and federal court opinions, included that nonprecedential New Jersey decision; Bonner then sued in federal court, asking the federal court to order Justia to remove the opinion. Yesterday federal District Judge Peter G. Sheridan granted Justia's motion to dismiss (Bonner v. Justia, Inc., 2019 WL 3892858):

Plaintiff seems to believe the New Jersey [appellate] opinion is his personal property…. Plaintiff seeks to prevent the [opinion] from being "reported, copied, distributed, shared, or by any other means used by anyone or any website." "[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." …

Plaintiff is proceeding pro se, and the Court should read Plaintiff's complaint [here, amended] generously and hold it "to less stringent standards than formal pleadings drafted by lawyers." … [But t]he amended complaint is substantively meritless, as was the original complaint.

Plaintiff is essentially attempting to seal the Appellate Division's Opinion, which—like federal court documents—[is] open to the public. There is a heightened public interest in disclosure of materials that are filed within the Courts, which outweighs private interests in confidentiality, as the Courts are funded by the public and in general judicial proceedings are not done in secret….

Because Plaintiff has had two opportunities to set forth a cause of action, and failed to do so, to allow another amendment to the complaint would be futile. As such, there appears to be no cause of action for the conduct the amended complaint is dismissed with prejudice.

This is clearly the right result, but, to my shock, I've seen one case in which a trial court did order a different online repository (leagle.com) to remove a person's name from a published court opinion archived at that repository (more on that in a later post). And, as I've noted before, I've seen cases in which trial courts wrongly ordered Google to deindex a photo in a newspaper (Malandrucco), or wrongly ordered media outlets to remove stories (Thorworth and Barone).

Trial courts sometimes do the darndest things, including in cases brought by pro se plaintiffs. While litigating pro se is often a handicap, it's sometimes an advantage: pro se litigants often don't know what's impossible, so they ask for it—and sometimes get it. But not this time.

B. Bonner also asked—beyond his request that the New Jersey state court opinion be removed—that any order issued by the federal court resolving Justia's motion to dismiss Bonner's complaint "not 'be reported, copied, distributed shared, or by any other means used by anyone or any website.'" (Bonner's request also stated, "Confidential Notice: This letter and the things contained herein are confidential information and are not to be copied, shared, or distributed by any source"; but motions are generally public documents, just as opinions are.)

I had been tracking the case on Bloomberg Law, because I have been writing about attempts to get court opinions hidden. I thus noticed that request to seal, and filed a motion to intervene and oppose the request. The federal court granted my motion to intervene, and denied Bonner's request to issue the order under seal. Again, that strikes me as clearly right.

There is more to this litigation, but I will save that for one or two upcoming posts.