The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


"Tear Down This Judicial Paywall"

The federal judiciary should not be charging for access to public court records.

|The Volokh Conspiracy |

An op-ed in today's Wall Street Journal by Northwestern University's Sarath Sanga and David Schwartz begins:

It's been a season of federal lawsuits. There have been multiple actions by the Trump campaign and his allies to contest the election results. Google and Facebook are the subject of Justice Department antitrust actions. If you follow this stuff, you might be interested in reading the court records themselves—but it'll cost you. Ten cents a page, according to the federal judiciary, even if you read them online.

That's crazy. These are public records sitting in the public domain, and the judiciary is the only branch of the federal government that charges for online access. The latest White House press briefing will run you precisely zero dollars. Food and Drug Administration reports? Congressional roll call votes? All free.

The law authorizing judicial fees is a relic of a time before the internet, when accessing court records meant physically going to the courthouse and asking a clerk to copy them page by page. It should have been repealed decades ago when the records went online.

As the op-ed notes, the House has passed bipartisan legislation–the Open Courts Act–to end this practice. The federal judiciary has opposed this step, citing ridiculously inflated cost estimates. Existing fees for documents only generate $145 million, which represents only two percent of the federal judiciary's budget, and an amount that Congress could (and should) cover. The American people should have access to court documents. It is (and should be) that simple.