The Volokh Conspiracy

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Free Speech

No Sealing of School Basketball Team Sexual Assault Case,

but the minors involved (including the accused students) will be pseudonymized.


From Nelle v. Huntsville School Dist., decided yesterday by Judge Timothy L. Brooks (W.D. Ark.):

During the 2020–2021 school year, B.N. was an eighth grader at Huntsville Middle School in Huntsville, Arkansas, where he played on the school's basketball team. Ms. Nelle alleges B.N. and other eighth-grade team members were sexually assaulted by ninth grade team members and that school administrators knew of this abuse and failed to prevent or remedy it. The School District contends that, to the extent B.N suffered the alleged injuries, the School District has satisfied its obligations under Title IX. These events have understandably attracted public scrutiny. Media outlets—including the Madison County Record, a newspaper based in Huntsville—have reported extensively on them.

The School District asks the Court to seal both the live proceedings in this case and all records filed on the docket. Access to judicial proceedings and access to judicial records involve similar but distinct inquiries.

The First Amendment guarantees the public the right to attend criminal proceedings. However, neither the Supreme Court nor the Eighth Circuit has recognized a First Amendment right to attend civil proceedings [or to access civil court records]. Webster Groves Sch. Dist. v. Pulitzer Pub. Co (8th Cir. 1990) ("We find it unnecessary to our decision in this case to decide whether there is a First Amendment right of access applicable to civil proceedings."). In Webster Groves, the Eighth Circuit did, however, recognize a qualified common law right to access civil court proceedings…. Similarly, the Supreme Court has recognized a qualified common law right to access judicial records….

Because this case involves accusations of sexual assaults where both the victims and alleged perpetrators are minor students, the School District asks the Court "to seal these proceedings in their entirety." … The Court agrees with the School District that this case implicates compelling privacy interests of minor students. During these proceedings, the Court will not permit the identification of minor victims, alleged minor perpetrators, or the parents of any of these students.

However, the Court also recognizes the public's interest in accessing these proceedings. Therefore, any solution to protect students' privacy interests should only be as restrictive as necessary. Sealing the entirety of these proceedings, as the School District urges, is overbroad. That sweeping remedy would bypass reasonable alternatives and unnecessarily infringes on the public's right of access.

To balance the competing interests, the Court will require the use of an identification key, accessible only to the attorneys and the Court, to mask the names of students and parents involved in these events. [The students would be numbered S1 on up, and the parents would be numbered S1P1, S1P2, S2P1, etc. -EV] The identification key will protect the confidentiality of the minor students while also allowing the public near-full access to these proceedings. It also facilitates public, on-the-record discussion of these events without revealing the identities of those involved. Unlike in Webster Groves, redaction is possible here—the identities of the victims and perpetrators can be protected by anonymizing any reference to them in these proceedings.

The School District argues redaction does not go far enough because Huntsville is a small town and members of that community will be able to roughly identify the victims and perpetrators based on their grade levels and participation in the basketball team. This argument would carry more weight if the present litigation represented the Huntsville community's first notice of these events. But, as the Record explains, the allegations made in this lawsuit were widely reported for months prior to the suit's filing. To the extent the School District is correct that a Huntsville local reading the Complaint could approximate the identities of those involved, that same local resident could make the same inferences by reading the paper….

To the extent a party believes, even with use of the identification key, some future filing fails to adequately anonymize the identity of a student or parent—perhaps due to the inclusion of other facts that make obvious the identity of an individual intended to be anonymous—the party should seek the Court's leave to file that document under seal. For unalterable documents, such as certain exhibits, where editing of names is not possible, the names of students and parents must be redacted and the document filed unsealed. An unredacted version of the document should then be filed under seal.

The Court declines to preemptively [shutter] live proceedings in this case. Much of this case can be heard publicly without identifying the minors involved, and, when specific individuals must be identified on the record, the identification key system will protect anonymity in open court.

There may come a point when identifying facts cannot be avoided and closure of an otherwise public proceeding therefore becomes necessary. The Court will make such a determination at that time, based on the facts to be presented at that proceeding and in consideration of reasonable alternatives.

The court also refused to issue a gag order limiting public comment about the case by the parties and the lawyers:

The School District's Motion to Limit Pretrial Publicity urges the Court to order both the parties and attorneys to refrain from making any comments to the press or on social media about this case while it is pending—in other words, issue a gag order…. "A gag order is a prior restraint on speech and, as such, is 'the most serious and least tolerable infringement on First Amendment Rights.'" … However, "the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard." Gentile v. State Bar of Nevada (1991)…. [Under Gentile,] [t]he question … is whether [a lawyer's] comments to the media pose a substantial likelihood of materially prejudicing these proceedings, i.e., whether the comments are substantially likely to either influence the outcome of the trial or prejudice the jury venire.

Mr. McCutchen stated to the press "they've had children sexually assaulted in the school district multiple times." This statement does not warrant limiting future pretrial statements. First, this is largely an undisputed statement of fact. The parties' dispute the sufficiency of the School District's response to the assaults, not whether they occurred. Second, this statement is essentially a recitation of the facts in the Complaint, and in earlier news reports. In general, publicly restating allegations already on the record does not materially prejudice a proceeding.

The School District also cites statements by Mr. McCutchen that, according to the School District, conflate the instant case with related state court litigation involving the Freedom of Information Act …. But, similar to the above, referencing information already publicly available from a related case while discussing the instant case does not, on its own, influence the outcome of this case or prejudice the jury pool such that a prior restraint on future comments is necessary.

Next, Mr. McCutchen stated publicly that he is seeking criminal charges against School District employees for their alleged failure to report the sexual assaults to the proper authorities. This statement comes closer to materially prejudicing these proceedings. When an attorney—who holds no authority to bring criminal prosecutions— publicly suggests a civil defendant may face criminal punishment for the actions at the heart of a civil suit, that attorney risks prejudicing potential jurors against the defendant.

Nevertheless, even if such comments pose a substantial likelihood of materially prejudicing these proceedings, any resulting prejudice can be adequately addressed with less restrictive alternatives, such as "searching questioning of prospective jurors … to screen out those with fixed opinions as to guilt or innocence" and "use of emphatic and clear instructions on the sworn duty of each juror to decide the issues only on evidence presented in open court." [Arkansas Rule of Professional Conduct 3.6, which generally bars attorney speech that sufficiently risks prejudicing a trial] should also deter future prejudicial public comments, as Mr. McCutchen could be subject to discipline by the Arkansas Supreme Court for violations of his ethical obligations.

At this point, there is insufficient cause to limit pretrial publicity by the attorneys in this case. Prior restraints on speech are a disfavored remedy, and the facts here do not overcome the "'heavy presumption' against [a prior restraint's] constitutional validity." Even so, counsel is reminded to scrupulously follow Rule 3.6 in making future public statements about this case. The efficacy of the alternatives identified above will be diminished if additional materially prejudicial comments are made to the media, and the Court may be forced to impose a gag order if its ability to hold a fair trial is put at risk.

And the court added this about the attempt to impose a gag order on the parents:

Much of the reasoning in Gentile justifying a lower standard for regulating attorney speech in pending cases does not apply to non-attorneys…. [F]or the purposes of this Motion, the Court assumes the higher standard used … for a prior restraint on the press would apply to a prior restraint on a party. But see Marceaux v. Lafayette City-Par. Consol. Gov't (5th Cir. 2013) (applying the "substantial likelihood of prejudice test to both attorneys and parties"). … The School District does not allege Ms. Nelle herself has made or is likely to make prejudicial comments about this case to the press, and therefore the Court currently finds no cause to restrain Ms. Nelle's speech.