Missouri "Stealth Statute Requires Redaction of All Witness and Victim Names" in Court Records

Missouri media lawyer Mark Sableman has this article in St. Louis Lawyer, identifying what strikes me as a very serious problem; an excerpt:

As lawyers read new Missouri judicial opinions, they will find that something is missing. There are no names, except for defendants. In court opinions, Missouri has become the State of Unnamed Persons.

The names of witnesses in Missouri court cases have become a state secret. This is so even for the names of public officials, like prosecutors, and other people who expect to be in the public eye, like trial lawyers. Some recent court opinions mention scores of witnesses—but none of them, except the parties, are named.

The same is true of the names of victims. They are secret, and do not appear in court decisions. Yes, this applies even to murder victims, who are deceased and under the common law have no right of privacy, since that right is confined to the living.

This is not a joke or a fantasy. It is really happening. You can see it in Missouri appellate decisions issued in September and October 2023, which (with only a very few exceptions in my research) refer to non-parties variously using status words (e.g., "Victim"), relationships (e.g., "Victim's sister"; "Girlfriend"; "Uncle"), initials (e.g., "D.V. and E.C"), profession (e.g., "Nurse"), and office (e.g., "[State Attorney]"and "[Trial Counsel]").

And that's not all. The same law that appellate courts began following in September would put a veil of secrecy over all witness and victim names in all court pleadings. Yes, under this law, you as a Missouri lawyer, in both civil and criminal cases, must redact from your pleadings all names of witnesses and victims. You must also redact all witness names from exhibits attached to your pleadings….

[T]he redaction regime seems wildly overbroad. In contrast to the preexisting specific redaction rules that had been developed over the years, mostly limited to certain criminal, juvenile and domestic situations, this one affects every case, every witness, and every victim…. Witnesses may be public or corporate officials, with important public responsibilities, yet their names will never reach the public court file….

[M]edia reporting on the courts will be inhibited. The long-established common law official report privilege, recognized in section 611 of the Restatement (Second) of Torts, is the basis for most media reporting on government; it protects media news reports that fairly summarize official proceedings. But if reporters can only access a limited, redacted court file, they will find it more difficult to report fairly and completely….

[C]an the statute survive federal constitutional scrutiny? In a series of cases culminating with Press-Enterprise v. Superior Court, 478 U.S. 1 (1986), the U.S Supreme Court has recognized a common law and constitutional right of access to judicial proceedings, based on historical openness and the importance of openness to the democratic process. Under the Press-Enterprise test, judicial proceedings cannot be closed to the public without specific evidence-based findings that closure is necessary to preserve higher values and is narrowly tailored to serve that interest. The new Missouri redaction regime closes off from the public important traditionally long-public information, and thus should be subject to this standard….

Comments

[John F. Carr]

If I attend a trial, could I legally report the names of witnesses?

Is there a sealed transcript or appendix with the true names that one could ask to be unsealed?

[Stephen Lathrop]

Sounds more like an April Fools joke than an actual report. Checks calendar. Nope. WTF!

I am tempted to ask why no comment from EV, but actually, what comment is needed?

[apedad]

Press-Enterprise v. Superior Court only addressed preliminary hearings, "The Supreme Court held that the First Amendment right of public access applies to preliminary hearings."

So it would be good to get a decision on all proceedings (with the now-accepted exceptions).

[nhytgbvfr]

In matters of law, Missouri is now the Don't Show Me State.

[Zarniwoop]

You win the Internet today.

[Stephen Lathrop]

I (admittedly) speculate that this is yet another baleful effect of Section 230. Absent the prior editing which Section 230 removed from internet publishing, there was less fear—and less justification for fear—that trial witnesses, for instance, would suffer stochastic terrorism.

Most attempts to publish witnesses' identifying information would have been thwarted by editors who thought doing that was unwise and bad business. Not anymore. With Section 230 every participant in a court proceeding gets to worry that a criminal defendant can arrange to publish world-wide the names of the witnesses' children, and the locations of the schools they attend.

[loki13]

What. Are. You. Talking. About?

"If all you have is a hammer, every problem is a nail." This has nothing to do with Section 230.

To view your comment in the most charitable light (which admittedly is difficult) this could be considered an artifact of the internet, in that court opinions are now easily accessible. In other words, whereas it used to be that a court opinion was something that was a "public record," but a person would have to go and physically access it, now these records are available on-line, making it relatively easy to quickly search and find if someone has been a party (or a witness, or involved) in a court proceeding.

That has nothing to do with Section 230.

[Stephen Lathrop]

Loki13, perhaps in the blinkered view of legal technicality, you have a point to make. What you exclude is that even a lawyer cannot claim to understand the law unless he understands the conduct, practices, and activities the law purports to govern.

It is that area of practice which my comment targeted. The question which I am surprised that someone with your acuity has not noted, is, what did Section 230 actually change about publishing practice? The answer is that it eliminated in online publishing any practical requirement for editing prior to publication. While at the same time vastly increasing the convenience to accomplish publication. While at the same time reducing the practical cost for most contributors to zero. While at the same time facilitating anonymity, and making it nearly ubiquitous. While at the same expanding the typical geographic scope achieved by publication to world-wide.

It is a misconception to call that an artifact of the internet. It was in reality an artifact of an easily identifiable public policy created and ratified by a well-intentioned government which had no inkling what the follow-on consequences would be.

Prior to that change, there was simply no practical way, none at all, to sufficiently publicize identifiable private information about a trial witness, for instance, that it would expose that witness to the random malice of literally tens of millions of people everywhere, including the usual complements of the reckless, substance addled, and insane. Private editors reading essentially everything prior to publication saw that kind of stuff all the time, and almost all the time discarded it. The relatively tiny amount that got through did not deliver to every rando with a keyboard or a phone the capacity to multiply the damage by republishing it.

Obscure private information did not go viral. Now that can happen. And does happen. And people get attacked by crazy assailants motivated into action by publications put in circulation by malicious enemies of the people attacked. That rightly terrifies people who understand the risks, and especially terrifies likely victims forced to choose between public-spirited participation in activities like politics, and ignominiously hiding to protect their families.

I am amazed that so many folks commenting on this blog seem either oblivious to that reality, or insouciant about it. I would not have predicted you would be one of them.

[loki13]

I'm going to put this nicely- if you don't even try to understand what the issues are, you are going to be consistently wrong.

If you want to just be a Dr. Ed with better verbiage, fewer lies, and no bizarre (yet easily disproved) anecdotes about Massachusetts and Maine, more power to you.

But this isn't just "technically correct," or "legally correct." This is "correct correct."

[David Nieporent]

He's completely ignorant about the Internet and the legal system, but if you start with the realization that he hates ordinary speech and only thinks professional publishers should get to decide what is said, you can kind of figure out most of what his thinking is.

[Harvey Mosley]

Just wanted to say thanks. You are consistently informative and entertaining. And since I have muted SL the exchanges are much more pleasant to read.

[Absaroka]

Are you somehow under the impression that PACER, or its Missouri equivalent, or the Supreme Court only feel free to publish their opinions/motions/whatever because of Section 230?

[David Nieporent]

.

With Section 230 every participant in a court proceeding gets to worry that a criminal defendant can arrange to publish world-wide the names of the witnesses’ children, and the locations of the schools they attend.

Setting everything else aside, what is your fascination with "world wide"? Nobody in Slovakia is going to visit a witness's kid's school.

[Stephen Lathrop]

Depends on whether the witness has moved to Slovakia.

This may be incomprehensible to you Nieporent, but for some folks there is a possibility that some day they could be offered a dream job working for some foreign employer at a location abroad. That applies especially among folks native to foreign lands who have come to the U.S. for education, but also to lots of others. A few keystrokes work as well in Asia as they do here to bring up whatever disqualifying calumny their enemies here may have put on the net with an eye to damaging their prospects everywhere.

[Davy C]

What? This makes no sense. How does this Missouri law even stop a criminal defendant from doing that? It doesn't. The defense still gets the witness list, obviously, even if it's redacted from public records.

[Longtobefree]

Control of the citizen begins with control of information.

[apedad]

Funny… Kazinski posted on Open Monday that Missouri is in the top ten states of Freedom.

So which is it; top-10 freedom state or control of citizens?

[mydisplayname]

🙂 What's all the fuss? The witness and victim names are right there next to Saddam Hussein's weapons of mass destruction, the hospital-based Hamas command and control center, and the renowned kindness of Israeli "settlers."

Kidding aside, it is rather troubling that an obviously critical portion of the record must be concealed; however, there does seem to be a trend towards "protecting" members of the public by depriving necessary information from other members of the public. How can the voting public possibly fulfil its duty as an informed observer if it is deliberately not informed?

[ReaderY]

One would think the 6th Amendment right to a public trial would include the right to know who the witnesses are.

[loki13]

To be clear (and for those who actually read the article), this is a law that changes court procedure- people are free to talk about proceedings, and to discuss witnesses' names and so on, but you can't use them in court submissions (pleadings, etc.) or in court documents.

WHICH IS CRAZY. I've never practiced in Missouri, but I'm having trouble imagining writing an ever slightly complex summary judgment under this rule.

I imagine that this was passed with no idea how it would work, and with no discussion- moreover, it appears it was tacked on to an omnibus bill which creates its own problems.

Anyway, stupid in, stupid out.