The Volokh Conspiracy

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Free Speech

No Sealing of Letters of Support in Sentencing for Police Brutality


From U.S. v. George, decided Tuesday by Judge Kenneth Bell (W.D.N.C.); for more on the underlying case, see this Fourth Circuit decision:

Whether arising under the First Amendment or the common law, the public's right to access judicial proceedings "may be abrogated only in unusual circumstances." Under the First Amendment standard, a "denial of access" to publicly filed documents "must be necessitated by a compelling … interest and narrowly tailored to serve that interest." This high standard is required because public access "serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness." Judges are not accountable to the public like elected officials, thus "[a]ny step that withdraws an element of the judicial process from public view makes the ensuing decision look more like a fiat and requires rigorous justification." …

Defendant asks to file his Letters of Support under seal because this "case has received high public/media attention … [and] to preserve [his] privacy and safety." However, the Court finds that sealing the Letters of Support is inconsistent with the First Amendment and the common law right to public access. While the Defendant states that his "privacy and safety" are at risk, he does so only in a conclusory manner and does not specifically explain how public access to the Letters of Support would cause him any harm. Hence, he has failed to provide the specific information required by Local Rule 49.1.1 to aid the Court in determining whether sealing is consistent with the First Amendment or common law.

Nor has he presented to the Court any authority for his request. Indeed, the mere presence of media scrutiny without more particularized proof of a compelling privacy interest is insufficient to support the sealing of court filings over the requirements of the First Amendment. Thus, the Court will deny the Motion and only consider Letters of Support contained in the public record.

The Motion had read, in its entirety:

Robert Michael George by and through his counsel of record, Myra Cause, and pursuant to Local Rule 49.1.1, respectfully requests that this Court to allow him to file his Letters of Support of Resentencing under seal based upon the sensitive nature of the information contained therein, including sensitive information supporting the request within the motion. This case has received high public/media attention and we respectfully ask the Letters of Support of Resentencing to be filed under seal to preserve Mr. George's privacy and safety.

See also another such decision, in the NIXVM sex cult case.