Free Speech

Motion to Stop Me from Publishing Material …

that I had gotten from a court docket while it has not been sealed, but that the movant is seeking to seal.

|The Volokh Conspiracy |

Two weeks ago, I objected to a sealing motion in a District of Colorado case, Cowles v. Bonsai Design LLC. The motion sought to seal an entire proposed amended complaint and an entire reply to a motion to dismiss, as well as some exhibits. (All the documents had already been filed in the open court record.) I argued that the sealing was unjustifiable, and would violate the public's right of access to court records—and that includes my own right of access (which is why I have standing to object).

Monday, the movant filed a much-narrowed revised motion, which asks for sealing of only a few exhibits and a redaction of references to those exhibits. I think that is still not justifiable, but I agree that such narrower proposed restrictions are potentially more defensible than the initial proposal.

But the revised motion also adds this:

Finally, to ensure that the Restriction is implemented, and in the face of Professor Volokh's expressed desire to publish documents from this case, which publication would seriously harm Bonsai's business interests, Bonsai requests that this Court's order specify that no publication of these documents (or redacted portions of documents) be published, regardless of whether these documents were previously available on the court's website or otherwise.

That, it seems to me, would violate my free speech and free press rights, and not just my right of access to court records. Once someone has downloaded publicly accessible documents, that person has a right to quote them and write about them, and that right cannot be taken away by retroactively sealing the documents. The sealing order could bar future access to the documents in the court file, and might also constrain the parties to the case. But it can't bar continued speech about those documents by outsiders who had lawfully accessed them.

Indeed, under the logic of Florida Star v. B.J.F., such outsiders are free to publish even information that the government was supposed to have kept confidential all along, but had released erroneously. It should be even clearer that people are free to publish information that had been properly released, even if later the government (here, the court) concluded that it shouldn't be released in the future. The renewed motion doesn't actually cite any precedent for the no-publication order that it seeks.

Still, it's an interesting issue, potentially made more complicated by my being a member of the bar (including of the District of Colorado bar), which might be seen as imposing greater obligations on me. I don't think that those obligations would include a prohibition on publishing such downloaded-while-publicly-available-but-later-sealed documents; but that is one of the matters that the Court will need to decide.

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  1. (Memo to self: Don’t piss off Prof. Volokh, at least in a court.)

  2. (Other Memo to Self: Also, Don’t try to dunk on Prof. Volokh on that other court – he’s a lot better at basketball than he lets on…)

    1. Oh, you can’t dunk on me on a basketball court simply because you will never find me on a basketball court.

      1. So not only are you an intimidating athletic specimen, you’re also a master of disguise. Nice.

        1. I think you’re onto something Lee. Eugene chooses his words carefully, and the prediction “…you [DJ Diver] will never find me on a basketball court” is entirely consistent with his pulling down four figures a week hustling basketball on the side. Now all we need is a high speed camera and a little luck to catch him in the act.

          1. Leo, sorry (dated myself:-)

  3. Somehow the saying “I never argue with a man who buys ink by the barrel.” comes to mind…

  4. The motion sought to seal an entire proposed amended complaint and an entire reply to a motion to dismiss, as well as some exhibits. (All the documents had already been filed in the open court record.)

    This was the guy’s first mistake. He should have submitted it in camera to review the motion to file it under seal. Most courts let you do that.

    1. The motion was seeking to seal items filed by the other party.

      1. The moving lawyer is also a woman.

  5. Have you published the material? If not, why not?

    1. No, chiefly out of respect for the court’s processes. There is a standard way of dealing these requests — the movant asks, and then the court decides — and I think the court ought to decide. (I also expect that the court will reject the request for the order.)

  6. .. that person has a right to quote them and write about them, and that right cannot be taken away by retroactively sealing the documents.

    Just curious — what is the difference between that and classifying documents for national security reasons? As I understand it there have been cases where people have been accused of disseminating classified material that wasn’t classified when they transmitted it. Even when it has been published by others in public venue.

    1. I think the difference is that a sealing order in a case only applies to the parties before the Court and Court personnel. The Court does not have jurisdiction over the whole world to tell everyone what they can and cannot publish. (Unless the person somehow has a connection to the Court or the parties, for example, someone who hacks into the Court files and steals sealed documents, or a party hands over confidential documents to someone to publish.)

      National security laws, OTOH, do bind everyone, as they are laws of general application, and if someone designates a document as TOP SECRET then that restricts everyone in the country from publishing it.

    2. Nothing. If non-government personnel are given access to classified information, the first amendment generally protects their right to publish it. New York Times Co. v. United States, 43 U.S. 713 (1971). (As part of getting a security clearance, you obligate yourself to keep these materials confidential, which means you subject yourself to punishment for violating that obligation. And deliberately inducing someone to violate that obligation can also lead to penalties. But the government generally can’t restrict the publication by innocent third-parties who haven’t taken on an obligation of secrecy.)

  7. BTW, I am glad that the Court appears to be giving the sealing request some scrutiny. In my experience, courts are very uneven about this. Some allow blanket filings under seal, others are much more stringent, requiring a strong showing, and even then limited sealing of particular documents or parts of documents.

  8. Looks like a great application of the Streisand Effect!

  9. Yes, Streisand Effect …

    Would such an order apply to PACER, where Exhibits 1A, 3, 4 and 5 (second amended complaint, text messages and emails about apparent prior issues regarding braking systems and Emergency Arrest Devices on the Bonsai-design ziplines at Vail Resorts) are available for purchase?
    It seems a purchase on PACER would constitute (re)publication by PACER.

    1. PACER is run by the federal government, so when a court seals a document, PACER automatically blocks public access to it.

  10. Wow, what an oceanfront estate Babs has! I never would have thought to look for a photo of it, but day-um! I wonder where exactly that’s located. Maybe I’ll take a photo of the gate next time I’m in SoCal. Let’s see if I can find it….

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