The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
WKRC in Cincinnati (James Pilcher) reported several days ago:
A veteran Cincinnati police officer sued several citizens in early July, accusing them of defamation in a closely watched case that could be the beginning of a trend of police officers going after critics in court.
Several citizens accused the officer of possibly being associated with white supremacy or of being racist after spotting a video and picture of him allegedly flashing the "ok" sign at a City Council meeting … held to address concerns by those in the Black Lives Matter Movement….
The officer's lawyers were able to get the records sealed and the officer's name replaced by a pseudonym (the court hearings are still open to the public).
They took that step after arguing that some online wrote they knew where the officer lived – information gained from public sources such as the county auditor's website.
The online posters never published that information, but the lawyers argued it could lead to "doxing" – or releasing personal information that could lead to harassment at the officer's home….
The story includes a video that links to what appears to be the Facebook page, and notes that the judge declined to order the page removed. (Ohio law does authorize anti-libel injunctions after a finding on the merits that certain statements are false, but of course there has been no such finding yet.)
I'm quite skeptical about claims that using "ok" signs is a sign of racism; but however the libel lawsuit is resolved, it can't be resolved under seal. Both Ohio law and the First Amendment provide a public right of access to court files, and while that right can be limited in some situations, I doubt that it can be here (though it's hard to tell for sure, given that the entire file now seems to be unavailable, and I can't read any motion to seal or any order granting that motion).
Because of this, I asked Jeffrey M. Nye (Stagnaro, Saba & Patterson) to file a motion to unseal on my behalf, and he graciously agreed to do so (pro bono). Fortunately, after we agreed on this plan, we learned that the Cincinnati Enquirer had filed its own motion, which we could free ride on; here is what we plan on filing tomorrow:
Eugene Volokh moves under Superintendence Rule 45(F) to unseal all case documents and restore public access to the case file, and joins in the motion filed July 27, 2020 by the Cincinnati Enquirer.
Volokh is the Gary T. Schwartz Professor of Law at UCLA School of Law, where he specializes in First Amendment law. He has written extensively on First Amendment law, on libel law, on speech-restrictive injunctions, and on sealing, both in his scholarship (including Eugene Volokh, Anti-Libel Injunctions, 168 U. Pa. L. Rev. 73 (2019)) and on his blog, The Volokh Conspiracy, now hosted at Reason Magazine (https://reason.com/volokh) and hosted from 2014 to 2017 at the Washington Post.
Professor Volokh is interested in this case because he is currently writing a follow-up law review article on anti-libel injunctions as well as an article that discusses attempts to maintain information confidential in filed cases; because he wants to write about the libel, injunction, and sealing dimensions of the case on his blog; and because he is one of the Advisers to the American Law Institute's Restatement of the Law (Third) of Torts: Defamation & Privacy project. He would like to be able to read and quote the entire case file, both the already filed documents and future filings, so that he can write about the matter in more informed ways. For the reasons given in the Enquirer's motion, he believes that this case should be unsealed.
Professor Volokh adds that while the Enquirer's motion makes no reference to the substance of the case, media reports about a sealed case in this Court indicate that the plaintiff is a police officer and that the substance of the case relates to his conduct on duty and in his official capacity. This provides further support for unsealing the entire record.
"The United States Supreme Court has repeatedly recognized that police officers are public officials." Soke v. The Plain Dealer (1994), 69 Ohio St.3d 395, 397. The public has an interest in, and the First Amendment protects both discourse on and access to court records regarding, "anything which might touch on a[ public] official's fitness for office." Id., quoting Garrison v. Louisiana, 379 U.S. 64, 77 (1964). This includes a police officer's conduct in court proceedings. Id. at 398 (such conduct "is relevant to the officer's fitness to hold his job"). The particular facts of this case therefore weigh in favor of unsealing, above and beyond the general principles favoring public access to court records described in the Enquirer's motion. See also, e.g., Sup.R. 45(A) ("Court records are presumed open to public access."); State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, at ¶15-16 (discussing historical roots and significance of "the right of public access . . . in the administration of justice"); In re T.R. (1990), 52 Ohio St.3d 6, 16 n.9 (observing that "adult civil actions, are presumptively open to the public.").
"The open courtroom is a bedrock principle of the American judicial system," and the Ohio Bill of Rights includes "a constitutional requirement that 'all courts shall be open …." Woyt v. Woyt, 8th Dist. Cuyahoga no. 107312, 2019-Ohio-3758, ¶59, quoting Sec. 16, Art. I, Ohio Constitution. It is constitutionally impermissible and reversible error to "fail to identify any specific case document or part thereof [to be sealed] and conduct a meaningful analysis as required by Sup.R. 45(E)(2)," Woyt at ¶66. And even if specific case documents or parts thereof are identified and a meaningful Rule 45(E)(2) analysis is conducted, it is constitutionally impermissible and reversible error to "fail to use the least restrictive means available [to restrict public access] as required by Sup.R. 45(E)(3)." Id.
"It should only be in the rarest of circumstances that a court seals a case from public scrutiny. When a litigant brings his or her grievance before a court, that person must recognize that our system generally demands the record of its resolution be available for review." Id. at ¶67.
Professor Volokh respectfully requests that the Court unseal the record and restore public access to all case documents.