The Volokh Conspiracy

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

Free Speech

Total Eclipse of the Court: Buckert v. Volokh Going up to Fifth Circuit


There's a case just docketed in the Fifth Circuit, under the name Buckert v. Volokh, and, no, the second party isn't Maria Volokh—it's me. Thankfully, I'm not actually the defendant, but rather the intervenor and appellee: The case below is Buckert v. Traynor; I moved to intervene and unseal, and prevailed; and now plaintiff is appealing that decision.

But the district court record, including the unsealing order that's being appealed from, remains entirely under seal, except for the docket. (Think of the docket as the corona, which shines out from behind the sealing moon, even when the sun of the actual court filings and decisions is eclipsed. And, true to the metaphor, the eclipsed court materials don't lack power—just as the eclipse of the sun, thankfully, doesn't strip the sun of its gravitational force—but are rendered largely invisible.)

I had only learned about the case because some of the earlier decisions in the case had been posted on Westlaw, perhaps erroneously. Apparently all the documents in the case were sealed; I moved to intervene and unseal; and six months after my motion, the District Court issued an unsealing order:

140 Aug 3, 2022 ORDER VACATING ORDER TO SEAL, re 9 Order on Motion to Seal, DENIED AS MOOT 117 MOTION to Intervene filed by Eugene Volokh. The Court DIRECTS the Clerks Office to unseal all filings in this case. The Court further DIRECTS the Clerks Office to no longer seal future filings. All filings in this case will be available to the general public. Signed by Judge Xavier Rodriguez. (wg) (Entered: 08/04/2022)

But then when plaintiff appealed and moved for a stay pending appeal, the District Court sealed everything—including the text of its sealing order, which it had originally issued as a publicly accessible document—though note again that the docket entries, which I quote are not sealed:

144 Aug 8, 2022 ORDER GRANTING re 141 MOTION to Stay MOTION FOR STAY OF COURTS AUGUST 3, 2022 ORDER PENDING APPEAL filed by Amanda Reimherr Buckert. The Clerks Office is DIRECTED to seal all existing and future filings in this case until further Court order. Only the parties attorneys onrecord and Defendant Zachary Traynor, who is proceeding pro se, may access the filings. The Clerks Office is further DIRECTED to mail a copy of this order to Eugene Volokh. Signed by Judge Xavier Rodriguez. (wg) (Entered: 08/08/2022)

Now I think that the sealing order doesn't bar me from distributing the material that I had gotten when it was unsealed (such as the Aug. 3 order) or that had been erroneously released by the court (such as the item I saw on Westlaw), see Florida Star v. B.J.F. But out of respect for the court, and out of an excess of caution, my current plan is not to quote any such documents, so long as they are sealed.

But I do feel comfortable saying that there are likely to be interesting and important free speech issues in this case, even apart from the questions related to the right of access to court records. I can also say that the case appears to include some legal claims related to "sexually explicit images of Plaintiff" (to quote docket entry 7), but I don't think it's limited to that—and in any event, while plaintiff's privacy interests might justify redacting exhibits (if any) containing any such images, I don't think they justify complete sealing.