The Volokh Conspiracy

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Free Speech

Another Decision Against Sealing Records in Libel Cases

Litigating defamation claims "in secrecy to avoid any potential embarrassment to" their subjects "directly contradicts the presumptive right of public access to pleadings and judicial proceedings."


From Reich v. Fairleigh Dickinson Univ., decided Friday by Magistrate Judge Jessica S. Allen (D.N.J.):

This lawsuit arises from Plaintiff's enrollment in the Yeshiva Program at the Petrocelli College of Continuing Studies at FDU and a dispute over FDU's tuition charge for a class and Plaintiff's failing grade from a professor's alleged false accusations of plagiarism…. [O]n December 15, 2021, FDU sought leave to file the instant motion to assert counterclaims, stating that it had recently learned of Plaintiff's allegedly defamatory online communications and postings about FDU and some of its employees.

The court (among other things) allows FDU to assert its defamation counterclaims, because "Plaintiff's online statements amount to defamatory communications beyond mere statements of opinion given the context of these statements"; the statements are:

[a.] 'Leon Kurland is a liar and collects money for classes but fails to show up. Kurland also is involved in discrimination and retaliation against students who do not follow and support all of his ideas.'

[b.] FDU takes 'part in discrimination based on age, color, and religion.'

[c.] FDU is a '[h]orrible college with corrupt administrators and hateful educators.'

[d.] FDU has 'corrupt university administrators' who engage in 'fraud and deception.'

[e.] FDU is a 'scam university with a history of defrauding students and lasting corruption.' …

[g.] FDU's former General Counsel, John Codd 'defrauded' 'Vip Level's' (aka Reich's) father 'for over $5000 through a bank and wire transfer scam….'

But the court refuses to allow FDU to seal the defamatory statements:

There is a presumptive right of access to pleadings, as well as non-discovery motions and supporting documents. Equally important, a review of FDU's proposed redactions demonstrate that the Defamatory Statements are not confidential in nature, and the parties have not previously treated them as such.

First, on their face, these statements, while potentially embarrassing, do not reveal sensitive personal information about individuals. Indeed, as part of its proposed defamation counterclaim, FDU contends the statements are false.

Second, FDU claims that Plaintiff posted and published such Defamatory Statements online. As such, these Defamatory Statements have already been made public.

Finally, the parties have not treated the Defamatory Statements as confidential in prior court filings. In his original and Amended Complaint, Plaintiff refers to many of the same Defamatory Statements accusing FDU of discriminatory and unlawful behavior in support of his legal claims. Likewise, FDU has referenced some of these Defamatory Statements in its publicly filed court submissions.

In any event, the Court finds that FDU has not identified any legitimate private interest supporting the sealing of the statements, and the Court does not find any such interest exists. Further, the potentially embarrassing nature of the Defamatory Statements does not alone rise to the level of a clearly defined injury, which warrants sealing.

FDU is essentially asking this Court to litigate its proposed counterclaims in secrecy to avoid any potential embarrassment to those who were the subject of Plaintiff's allegedly Defamatory Statements. Such relief directly contradicts the presumptive right of public access to pleadings and judicial proceedings. See Holmes v. Grambling (N.D. Ga. Oct. 17, 2014) (stating that "[t]he logical conclusion of Plaintiff's argument is that whenever someone sues for defamation because of potentially embarrassing comments, the plaintiff should be allowed to sue anonymously and with the case under seal").

I think this result is quite right, as I've argued before (both on the blog and in court, see, e.g., Parson v. Farley and Manhattan Telecommunications Corp. v. Granite Telecommunications, LLC): When judges are asked to restrict parties' liberty, take away their property, and (in libel cases) punish their speech, the public needs to be able to monitor what the judges do and what arguments are being made to them.

Indeed, libel law has long recognized this principle: Though quoting someone's libelous accusations is itself often libelous, the "fair comment" privilege provides an exception for quoting accusations made in a court proceeding:

[T]he privilege acts as a supervisory function which recognizes both the public's duty to scrutinize official conduct and the security which publicity gives to the proper administration of justice.

Open access to court records serves the same functions; in Justice Holmes' oft-repeated words,

It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

And a yeshiva at "Fairleigh Dickinson University"? Who knew?