Free Speech

Another Decision Against Sealing Records in Libel Cases

"The logical conclusion of Plaintiff's argument is that whenever someone sues for defamation because of potentially embarrassing comments, the plaintiff should be allowed to sue anonymously and with the case under seal."

|The Volokh Conspiracy |

From Judge Harold L. Murphy's decision in Holmes v. Grambling, 2014 WL 12905012 (N.D. Ga.), decided in 2014 but just added to Westlaw:

"'The operations of the courts and the judicial conduct of judges are matters of utmost public concern.'" "The common-law right of access to judicial proceedings, an essential component of our system of justice, is instrumental in securing the integrity of the process." This right "includes the right to inspect and copy public records and documents." …

Plaintiffs seek to keep this case completely under seal in order to prevent Defendant's defamatory statements from becoming public again through public access to the court records. Plaintiff specifically worries about the quoted statements contained in Plaintiff's Amended Complaint and Second Amended Complaint. Indeed, these statements contain offensive language, touch on personal, intimate matters of Plaintiff's life, discuss Plaintiff's minor daughter, and accuse Plaintiff of a variety of unethical and likely criminal conduct. Plaintiff contends that if these accusations were spread around it would be injurious to her personal and professional reputation….

The logical conclusion of Plaintiff's argument is that whenever someone sues for defamation because of potentially embarrassing comments, the plaintiff should be allowed to sue anonymously and with the case under seal. Neither Plaintiff's Brief nor the Court's own research indicates that there is any such rule….

Plaintiff alleges that Defendant's defamatory statements have caused her great harm and been seen by her family, acquaintances, business partners, potential clients, and others. Plaintiff fails to demonstrate what additional harm will occur by allowing public access to those statements in the court record, in the context of Plaintiff's Complaint, and in a forum where Plaintiff has had the opportunity to respond to the statements….

I think this result is quite right, as I've argued before (both on the blog and in court, see, e.g., Parson v. Farley): When judges are asked to restrict parties' liberty, take away their property, and (in libel cases) punish their speech, the public needs to be able to monitor what the judges do and what arguments are being made to them.

Indeed, libel law has long recognized this principle: Though quoting someone's libelous accusations is itself often libelous, the "fair comment" privilege provides an exception for quoting accusations made in a court proceeding:

[T]he privilege acts as a supervisory function which recognizes both the public's duty to scrutinize official conduct and the security which publicity gives to the proper administration of justice.

Open access to court records serves the same functions; in Justice Holmes' oft-repeated words,

It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

Some parts of the Holmes v. Grambling court's analysis strike me as not quite apt: For instance, the court notes that "There is not extensive media coverage of this case" as a factor in favor of refusing to seal it, but while more media coverage might lead to more embarrassment to the plaintiff, it would also show that there is extra public interest in what the court is doing. But in any event, I thought I'd pass along this opinion, since it's one of the relatively few that discuss sealing specifically in libel cases.

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  1. In other words, the court reserves for itself the right to publish defamatory statements about plaintiff, who has no recourse.

    1. Well, technically the statements were taken from the Complaint so the Plaintiff is the one who (re-)published it.

    2. In other words, the public has the right to know what it is being asked to enforce.

      The ultimate enforcement of laws and verdicts is by the public. Witness the excellent enforcement record of Prohibition, the War On (Some) Drugs, and gun control measures.

      If the politburo wish to enlist the public in enforcing their decrees, they damn well better let the public know what those decrees are.

      1. “In other words, the public has the right to know what it is being asked to enforce.”

        An absolute right? So sealing cases or proceedings is invalid in any case?

    3. James: Isn’t that a necessary feature of the right of access to court records? Every time a plaintiff sues a defendant for some supposedly bad conduct (battery, conversion, malpractice, even many kinds of breach of contract), plaintiff is accusing defendant of misconduct. If plaintiff is wrong, then his statements would be defamatory and actionable if they hadn’t been made in court documents. Does it follow that courts should seal all those cases (at least when it looks like defendant will likely win), because otherwise the court would be “publish[ing] defamatory statements about defendant, who has no recourse”?

      1. “Isn’t that a necessary feature of the right of access to court records?”

        Assuming there IS such a right, and such a right is greater than the right to not be defamed.

        If anyone BUT the court published defamatory statements and refused to retract them from public access, they’d be liable in court for defamation. But the court reserves for itself the right to defame, liability-free.

        1. James Pollock: (1) There is indeed such a right long recognized under U.S. law, though one can certainly debate whether there should be.

          (2) Actually, third parties are also free to quote and otherwise republish defamatory statements filed in court proceedings (whether in complaints, motions, summaries of witness testimony, or what have you), so long as they quote them accurately or summarize them fairly. That’s the “fair report” privilege, which exists for the same reason that the open court record doctrine does — to allow the public to monitor what happens in court.

          (3) The logical implication of your position is that court records should generally be closed, since there would normally be accusations or counter-accusations there that are false and injure reputation. That would certainly help protect reputation; but wouldn’t it make it harder for the public to make sure that courts are behaving honestly and properly? What do you general trust more: closed proceedings or open ones?

          1. “There is indeed such a right long recognized under U.S. law”

            Then there’s no such thing as being “under seal”, and there’s no dispute for you to comment on.

            “The logical implication of your position is that court records should generally be closed”

            Strawmanning is lazy. I get that this is the opinion you’d rather argue against, but pretending that it is one that I suggested is even lazier.

            1. Man, the internet has really gone downhill when even a law prof patiently explaining something entirely in his wheelhouse gets this nonsense in reply.

              1. ” a law prof patiently explaining something entirely in his wheelhouse”

                I’m complaining about the part where he’s telling me what my opinion is. That you feel this is “in his wheelhouse” says something about the accuracy of your chosen identifier.

    4. Those are indeed other words.

      1. thank you for your… wait what’s another word for “contribution” that also means “waste of time and effort”?

  2. Ok, I’m not a law student (so forgive me if I’m missing something) but when I read

    “The logical conclusion of Plaintiff’s argument is that whenever someone sues for defamation because of potentially embarrassing comments, the plaintiff should be allowed to sue anonymously and with the case under seal…” I wonder, why not just the first half and not the latter? In other words, why not allow (depending on the circumstances) plaintiffs to do what students expelled for false sexual assault charges do when they sue their colleges: allow them to sue anonymously – i.e. ‘Doe v. [Insert Defendant-College Name Here]’ – and not seal it, so that the public can still access it?

    To be clear, though I agree with James Pollock, I am fully in favor of having suits public in circumstances where doing so would (a) enable plaintiffs to know if something they are suing over has happened before and by the same defendants, and (b) to some degree, deter potentially meritless suits, but the judge’s argument here seems more like an attempt to reduce the overall volume of suits at all costs by raising the social costs of such a suit, and that it is where I have an issue (though I am conscious about reasonable barriers to entry as a method of controlling meritless suits, I do not believe that so-called ‘frivolous’ suits are a major ‘problem’ in our system, at least not in regard to common law actions like defamation – though again, I am not a lawyer, so I have no real first-hand experience).

    In any case, where I have a problem, Professor Volokh, is with the Judge’s following statement from that case:

    “Plaintiff alleges that Defendant’s defamatory statements have caused her great harm and been seen by her family, acquaintances, business partners, potential clients, and others. Plaintiff fails to demonstrate what additional harm will occur by allowing public access to those statements in the court record, in the context of Plaintiff’s Complaint, and in a forum where Plaintiff has had the opportunity to respond to the statements….”

    I cannot begin to comment on the stupidity of such a statement – No judge could truly be so mentally incompetent as to fail to grasp the problem with further publicizing something that the plaintiff already felt was *defamatory* enough to file suit over in the first place. But even if he was this incompetent, he could have stopped and asked himself why exactly the plaintiff there was asking the court for this in the first place if there was supposedly no more harm that could be done by the statements anyway…

    1. ” I am fully in favor of having suits public in circumstances where doing so would (a) enable plaintiffs to know if something they are suing over has happened before and by the same defendants”

      So you hold the trial with the documents under seal. If the statements are defamatory, you keep it sealed. If statements are defamatory, they are by definition false. If the statements are true, then they aren’t defamatory and the case can be unsealed. The case can be unsealed when the victim of the defamatory statement has passed away, as the statements are no longer defamatory under the principle that “you can’t defame a dead man”. The net effect is that some people who believe in an absolute right to access to court records (such as Prof. Volokh) are deprived of access to some proceedings (sorry, professor). There doesn’t seem to be a down side.

      1. Well, one clear down side would be that the public would not be able to assess independently the sufficiency of the evidence nor the reasoning and inferences made in the course of the court’s decision.

        1. If only there were some way the public could influence the outcome of trials, maybe even become an active participant in the trial process.

      2. I see. In light of that (and the explanation is very much appreciated Mr. Pollock), I don’t see the issue with sealing it. That isn’t to say I don’t see the importance of access to court records (and I’m not saying that Mr. Pollock doesn’t see the importance, just pointing out that I do see it as important), especially in states where judges are retained via election, but in the end the purpose of a court is to provide a method of recourse to protect an individual’s rights, and it would thus necessarily follow that if an individual is truly defamed at such a serious level that there is a clear interest in not further publicizing it (i.e. defamation per se, as opposed to per quod – though I’m not sure if every state recognizes this standard), I would have to lean toward allowing it to be sealed.

        1. It does not seem that such a purpose is best fulfilled by courts whose core functions cannot be scrutinized by the public. That would be less likely over the long run to protect the rights of the parties.

          1. Courts can, and sometimes do, seal proceedings now. Obviously, this prevents any sort of oversight or public access to the proceedings.

            1. But wait, can it not just be anonymous but published – i.e. Doe v. [Defendant]?

              1. Some cases come out that way… cases involving minors, for example, often use the minor’s initials only. But the details often allow identification.

                There are a wide variety of measures that can be taken to balance privacy and open access to courts. All of them have side effects… the question is whether the effects of limitations on access are justified by the benefits of limiting access. Prof Volokh says “no”. I say “it depends”.

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