California Appellate Court Rejects Sealing of Alleged Libel

The common law, the First Amendment, and California court rules provide a broad right of access to court documents.

Yesterday, the California Court of Appeal decided Fargo v. Tejas, a libel case in which a trial court had sealed the alleged libel; the court concluded that this violated the First Amendment and California rules. Congratulations to my First Amendment Clinic student Jenny Wilson, who drafted the briefs and presented the oral argument (both in the trial court and on appeal) on behalf of the Electronic Frontier Foundation and the First Amendment Coalition, which intervened to get the case unsealed. The facts:

Respondent sued Tejas in December 2017 for defamation, false light, and intentional infliction of emotional distress after Tejas posted to her Instagram account images of respondent and several paragraphs containing statements that were allegedly defamatory per se because they exposed respondent "to hatred, contempt, ridicule, or obloquy, by depicting [him] as engaging in improper, corrupt, immoral and/or illegal conduct." The complaint did not disclose the contents of Tejas's Instagram post but alleged that it was "read by numerous persons," some of whom "commented about the post on Tejas's Instagram feed." …

Tejas failed to respond to the complaint, and respondent moved for default judgment. At the same time, respondent moved to seal paragraph 9 of his supporting declaration, on the ground that it contained "private medical information" relating to his damages from Tejas's post. Respondent also moved to seal exhibits … to his declaration, which contained copies of Tejas's post, arguing that sealing those exhibits was necessary "to ensure that the defamatory statements are not distributed on a wider basis than they already have been … further damaging [respondent], adding to his emotional distress, and potentially negatively impacting his occupation in the future."

On July 12, 2018, the trial court granted respondent's motion to seal but made no findings to support the sealing order. A default judgment was entered ordering Tejas to remove the post, prohibiting her from republishing the defamatory statements in the post, and awarding respondent $100,000 in punitive damages.

EFF and FAC moved to unseal, seeking access to all the documents except the part of paragraph 9 that contained private medical information, but lost in the trial court:

The court found that paragraph 9 of respondent's declaration "was properly sealed because it contained private medical information relating to the emotional distress [respondent] suffered as a result of the defamatory post and the treatment he received therefor." The trial court further found that [the] exhibits … "implicated third parties, including a minor, and the Court concluded that their right to privacy outweighed the right of the public to access this information." …

The Court of Appeal began by observing that the right of access to court documents is recognized under California common law, under the First Amendment, and California court rules 2.550-.551:

"A strong presumption exists in favor of public access to court records in ordinary civil trials. That is because 'the public has an interest, in all civil cases, in observing and assessing the performance of the judicial system, and that interest strongly supports a general right of access in ordinary civil cases.' [Citation.]"

It then concluded that the trial court's refusal to unseal should be reviewed without any deference to the trial judge's decision:

Challenges to a sealing order or an order denying a motion to unseal premised on a common law right of access are reviewed under the abuse of discretion standard. [California] Courts are divided, however, on the standard of review applicable to challenges premised on the First Amendment right of access. (Compare People v. Jackson (2005) and Copley Press, Inc. v. Superior Court (1998) [de novo review] with In re Providian Credit Card Cases (2002) and McGuan v. Endovascular Technologies, Inc. (2010) [abuse of discretion standard].) …

Citing both United States Supreme Court and California Supreme Court authority, the court in Jackson concluded that "cases implicating First Amendment rights are subject to independent review." … The court further explained that when the trial court does not take testimony, and there is no credibility of witnesses to determine, independent review is the equivalent of de novo review…. The court in Oiye v. Fox (2012) … [disagreed] that the Jackson court had independently reviewed the sealing order because First Amendment rights were involved …. [Instead, it concluded that] "… the [Jackson] court's decision to conduct independent review [was] based on the state of the record, where no declarations were presented regarding the propriety of the sealing order, and not on the First Amendment…."

We disagree with the Oiye court's characterization of the holding in Jackson. The court in Jackson plainly stated that independent review applies when reviewing sealing orders that implicate the First Amendment right of access….

The sealing order in this case implicates First Amendment rights. We agree with the courts in Jackson and Copley, that the order is subject to our independent review. Although the trial court here arguably took testimony, in the form of respondent's declaration, witness credibility was not an issue given Tejas's default and the default judgment subsequently entered in respondent's favor. Independent review in this case is therefore the equivalent of de novo review….

The Court of Appeal then concluded that the trial court erred, under Cal. Rule of Court 2.550, in failing to initially make express findings required by that rule. "The trial court's failure to make the required findings renders its sealing order deficient, and the order cannot support sealing the documents at issue." And the later court order, entered after the EFF and FAC moved to intervene, was likewise inadequate:

The trial court subsequently made some of the required findings when it denied the motion to unseal, finding that paragraph 9 of respondent's declaration "was properly sealed because it contained private medical information" and that exhibits … were sealed because they "implicated third parties" whose "right to privacy outweighed the right of the public to access this information." Those findings were insufficient to satisfy the statutory requirements. Rule 2.550 also requires express findings that the "proposed sealing is narrowly tailored" and that "[n]o less restrictive means exist to achieve the overriding interest." Because neither the sealing order nor the order denying the motion to unseal contain the required findings, they cannot support sealing the documents sought by appellants.

Finally, the court concluded that the documents should be unsealed, though with modest redactions:

Appellants do not seek to unseal any portions of paragraph 9 of respondent's declaration that contain private medical information relating to the emotional distress respondent suffered because of the defamatory post and the treatment he received. The portions of paragraph 9 that refer to respondent's medical condition and treatment are limited and can be redacted.

The balance of paragraph 9 contains statements that are unrelated to respondent's medical condition or treatment but discuss harm to respondent's reputation and future business prospects. The threatened harm to respondent's reputation and business prospects is not an "overriding interest" sufficient to overcome the First Amendment right of access. (See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999), citing State v. Cottman Transmission (Md.App. 1988) [closure not justified to minimize damage to corporate reputation]; In re Marriage of Burkle (2006) ["the intrusions into family privacy that accompany the dissolution of intimate relationships … do not support [the] view that no First Amendment right of access exists in divorce cases"]; Gilbert v. National Enquirer, Inc. (1996) [threatened invasion to right of privacy and threatened harm to reputation "are not the sort of 'extraordinary circumstances' required to justify a prior restraint"].) …

In its order denying the motion to unseal, the trial court states that it did not seal exhibits … because of the possibility of reputational harm to respondent. Commercial harm or personal embarrassment are not sufficient grounds, in any event, for sealing the exhibits in their entirety. (Jackson.)

The sealing order states that exhibits … were sealed because they "implicated third parties" whose "right to privacy outweighed the right of the public to access this information." Based on our independent examination of the record, we conclude that references to third parties can be redacted or substituted with pseudonyms to protect the third parties' right to privacy without denying public access to the exhibits in their entirety….