Ninth Circuit Reverses "Provisional" Sealing of Appellate Brief in Interesting Free Speech Case

Appellate briefs need to be treated as public documents, and (I argued) shouldn't be "provisionally" sealed for months or years without findings that such sealing (or, more often, redaction) is genuinely necessary.

From an order today in Doe v. Roe 1, by Judges Barry Silverman and Eric Miller (9th Cir.):

The motion to intervene filed by Eugene Volokh (Docket Entry No. [22]) for the sole purpose of seeking reconsideration of the court's September 1, 2022 order, and no opposition having been filed, is granted. The motion for reconsideration (included in Docket Entry No. [22]), asking the court to make a redacted version of the opening brief available to the public, is granted. Within 21 days of this order, appellant must submit for public filing a redacted version of the opening brief that redacts appellee's name and identifying information. The page numbering and citations in the public brief must remain the same as in the sealed brief….

The case is an appeal of the decision I wrote about in "Media Outlets Forbidden from Identifying Recently Released Drug Cartel Ex-Boss as Plaintiff in Privacy Lawsuit" (though there are procedural twists in the case that might keep that decision from being fully reviewed). Here's an excerpt of the Appellate Commissioner's decision that I was appealing:

Appellant filed a notice of intent to file publicly … the opening brief …. In response, appellee filed a motion to maintain under seal the opening brief …. [Discussion of some other filings omitted. -EV] The notices and the motions to seal … are referred to the panel assigned to decide the merits of this appeal.  The Clerk will maintain under provisional seal the notices[ and] the motions to seal… [and] the opening brief ….

In the Ninth Circuit, the merits panel probably wouldn't take over the case for over a year, and I argued against this; here's an excerpt from my motion:

Eugene Volokh seeks to intervene in this case, solely in order to ask this Court to reconsider the Order of Sept. 1, 2022, which provides that Appellant's Opening Brief should be "maintain[ed] under provisional seal" until the sealing questions are resolved by "the panel assigned to decide the merits of this appeal." Volokh would like to exercise his right to promptly access a redacted version of the Opening Brief, even if Doe's name and identifying information need to be deleted from the brief for now.

Defendant-Appellant supports the motion; Plaintiff-Appellee opposes it….

[I.] Volokh is entitled to intervene for the purpose of getting access to court records [omitted -EV] …

[II.] Appellate briefs may not be fully sealed, even temporarily, without a showing that redaction would not be possible

"[T]he public's First Amendment and common law rights of access" extend to "appellate filings" as well as trial court filings, because "the public should be given an opportunity to engage in and follow the dialogue" within those filings. United States v. Index Newspapers LLC, 766 F.3d 1072, 1097 (9th Cir. 2014). Circuit Rule 27-13(a), which recognizes that "This Court has a strong presumption in favor of public access to documents," reflects this principle. And "the public interest in ob­taining news is an interest in obtaining contemporaneous news," Courthouse News Serv. v. Planet, 947 F.3d 581, 594 (9th Cir. 2020) (emphasis added), not long-delayed news. Indeed, even a delay of from a few days to "up to two weeks" in making filed documents accessible may violate the right of access. Id. at 597-98.

This right of contemporaneous access can be overcome "only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Phoenix Newspapers, Inc. v. District Court, 156 F.3d 940, 946 (9th Cir. 1998) (cleaned up). In particular, even when some information in a document must be kept confidential, it should generally just be redacted, rather than having the whole document sealed. See 9th Cir. R. 27-13(e) (requiring that a motion to seal "shall request the least restrictive scope of sealing and be limited in scope to only the specific documents or portion of documents that merit sealing, for example, propose redaction of a single paragraph or limit the request to a portion of a contract"). "When redaction is required to protect privacy interests, it must be narrowly tailored to allow as much disclosure as is feasible." Certain Interested Individuals v. Pulitzer Pub. Co., 895 F.2d 460, 467 (8th Cir. 1990) (quoting Matter of Search Warrants Issued on June 11, 1988, for the Premises of Three Buildings at Unisys, Inc., 710 F. Supp. 701, 705 (D. Minn. 1989)).

Volokh does not object to having Doe's name and identifying information being kept confidential while the appeal is pending, so as to preserve the merits panel's ability to decide the substantive issues in this appeal. But, as Rule 27-13(e) suggests, "Where redaction of a document is feasible, the moving party shall highlight in the unredacted document all portions of the document that party is seeking to file under seal," and the redacted version should then be publicly released.

To be sure, Volokh appreciates that it is often most convenient to defer various motions to the merits panel. But that cannot authorize provisional sealing of briefs for many months, given the public's common-law and First Amendment rights of access to court filings. The "substantial interest in the orderly administration" of the judicial process, Courthouse News Serv., 947 F.3d at 596, may sometimes authorize brief sealing while a decision is being made—but not sealing that causes unnecessary "lengthy delays" between the time a document is filed and the time it is made publicly available, id. at 597.

Instead, either the Appellate Commissioner or a motions panel can make express "findings" whether "closure is essential to preserve higher values and is narrowly tailored to serve that interest," Phoenix Newspapers, 156 F.3d at 946 (9th Cir. 1998)—and in particular can decide whether redaction rather than outright sealing is a feasible way of preserving the merits panel's role in deciding the ultimate issues while still protecting the public right of access. Simply deferring the decision to the merits panel, without such "findings" that "closure is essential," would likely "cause[] far greater delays than [are] necessary to adequately protect [this Court's] administrative interests given the reasonable alternatives available." Courthouse News Serv., 947 F.3d at 597.