Volokh v. Williamson County Challenges Tennessee's Restriction on Non-Tennesseeans Accessing Court Records

From our motion for a preliminary injunction, filed today by my lawyers, Susan L. Kay, Jennifer Safstrom, and Ryan Riedmueller of the Vanderbilt Law School Stanton Foundation First Amendment Clinic:

American citizens enjoy a First Amendment right of access to judicial records that state and local governments may not restrict unless the restriction withstands constitutional scrutiny. See Detroit Free Press v. Ashcroft, 303 F.3d 681, 700 (6th Cir. 2002). The Tennessee Public Records Act ("TPRA") includes a provision that restricts access to public records, including judicial records, to residents of Tennessee. Tenn. Code Ann. § 10-7-503(a)(2)(A). The First Amendment is a fundamental right enjoyed by all Americans and cannot be abridged by a state statute based on an individual's state citizenship.

Additionally, the Privileges and Immunities Clause of the United State constitution prohibits states from burdening a fundamental right  on the basis of state citizenship. Because the TPRA restricts rights guaranteed by the United States Constitution on the basis of state citizenship, it is unconstitutional.

On February 5 and March 5, 2025, Plaintiff Eugene Volokh, a California resident, was impermissibly denied access to public judicial records by Defendants because of his residency status. {Mr. Volokh [had] submitted a request … via email for records filed in Garramone v. Curtsinger, No. 22-CV-602, a case in Williamson County Circuit Court.} {In this case, one party requested an order of protection from the court against the opposing party based on activities the opposing party claimed were protected by the First Amendment. As a leading First Amendment scholar, especially within the context of harassment, Mr. Volokh requested documents from this case to assist his research.} …

Our motion argues that the right of access to judicial records is a First Amendment right; the Sixth Circuit had already recognized this in Detroit Free Press, but we go through the Supreme-Court-prescribed analysis in any event:

To determine if the First Amendment right of public access attaches to "government information," the information in question must satisfy the "experience and logic" test established by the United States Supreme Court in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980). See Detroit Free Press, 303 F.3d at 700.

The experience prong asks whether there is a "tradition of accessibility" that "implies the favorable judgment of experience." Id. (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605 (1982)). The Sixth Circuit has noted that "the open courtroom has been a fundamental feature of the American judicial system," acknowledging the long history and experience of public access American citizens have enjoyed and come to expect from the judiciary. See Brown & Williamson Tobacco Corp., 710 F.2d at 1177. The Sixth Circuit held that shorter periods would be acceptable under sufficiently compelling logical reasons. See Detroit Free Press, 303 F.3d at 701.

The "logic" prong asks "whether public access plays a significant positive role in the function of the particular process." Id. at 703 (quoting Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8–9 (1986) (hereinafter Press-Enterprise II)). To evaluate this prong, the Sixth Circuit has asked if public access "enhances the quality" of the government function in question. See id. at 703 (holding that "public access undoubtedly enhances the quality of deportation proceedings"); see also Brown & Williamson Tobacco Corp., 710 F.2d at 1179 (holding Richmond Newspapers' policy considerations apply to civil trials).

Here, experience and logic both support a finding that the First Amendment right of public access attaches to civil judicial records.

First, because the open courtroom is regarded as a "fundamental feature" of the American judicial system, the experience prong is satisfied. See Brown & Williamson Tobacco Corp., 710 F.2d at 1177. The right to access records of public proceedings can be found as far back as 1372 when the English Parliament granted a statutory right to inspect court records. 46 Edw. 3 (1372); 2 Eng. Stat. at Large 191, 196-97 (1341-1411). The American colonies continued this practice as evidenced by the Massachusetts Body of Liberties of 1641, which declared "[e]very inhabitant of the Country shall have free liberty to search and review any rolls, records or registers of any Court or office." art. 48. This common-law right of access to judicial proceedings was embraced by the Founders and early American courts. Nixon v. Warner Commc'ns, 435 U.S. 589, 597 (1978) ("It is clear that the courts of this country recognize a general right to inspect and copy public records and documents."). {The Supreme Court in McBurney v. Young held there was not a common-law right of access to executive records. 569 U.S. 221, 233 (2013). However, the common law right of judicial records is well-established.}

Second, public access to judicial records in civil proceedings "plays a significant positive role" and "enhances the quality" of judicial proceedings thus satisfying the "logic" prong. See Detroit Free Press, 303 F.3d at 703–04. The public right of access to civil court documents fosters legitimacy in the courts because "justice cannot function in the dark." Brown & Williamson Tobacco Corp., 710 F.2d at 1178 (quoting Richmond Newspapers, 448 U.S. at 571) (internal quotations omitted). Without access to the judicial record, the public cannot "provide[] a check on courts" by analyzing and critiquing courts' reasoning. Id. Public access to court proceedings and records promotes "'true and accurate fact finding.'" Id. (quoting Richmond Newspapers, 448 U.S. at 596). Although the Supreme Court has not explicitly stated the First Amendment right of access applies to civil judicial proceedings and records, every circuit to consider the issue has concluded the right applies to both civil and criminal proceedings, including the Sixth Circuit. See Courthouse News Serv. v. Planet, 947 F.3d 581, 591 (9th Cir. 2020); see also Courthouse News Serv. v. Brown, 908 F.3d 1063, 1069 (7th Cir. 2018), cert. denied, 140 S. Ct. 384 (2019) (mem.); see also Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984); see also Brown & Williamson Tobacco Corp., 710 F.2d at 1179. The government information Mr. Volokh seeks therefore enjoys a First Amendment right of public access because it satisfies both the experience and logic prongs of the Richmond Newspapers test.

Once the First Amendment right of public access attaches, denial of access must be "necessitated by a compelling governmental interest, and [be] narrowly tailored to serve that interest." Detroit Free Press, 303 F.3d at 705 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606–07 (1982)) (internal quotations omitted) . The presumption of openness in the First Amendment right of public access "may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values." Press-Enter. Co. v. Superior Court of Cal., 464 U.S. 501, 510 (1984) (hereinafter Press-Enterprise I). Exceptions to the right of access in the context of courts include "the defendant's right to a fair trial, … privacy rights of participants or third parties, trade secrets and national security." Brown & Williamson Tobacco Corp., 710 F.2d at 1179. Moreover, the interest articulated must be accompanied by "findings specific enough" so that a reviewing court can determine if access was properly denied. Detroit Free Press, 303 F.3d at 705 (citing Press-Enterprise II, 478 U.S. at 10). Regarding the narrowly tailored prong, the government will be hard-pressed to justify blanket or categorical rules. See id., 303 F.3d at 707.

With these requirements in mind, TPRA's residency requirement applied in the context of civil court records cannot survive strict scrutiny. Withholding the requested documents from Mr. Volokh based on his residency status does not serve a compelling government interest, and even if it did, the residency requirement is not narrowly tailored to serve any compelling interest. See Detroit Free Press, 303 F.3d at 705 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606–07 (1982)) (internal quotations omitted). The only interest Plaintiff can glean from TPRA's citizenship requirement is to limit the expenditure of government resources and to provide Tennessee citizens with requested documents in a timely fashion and with lower costs. Even if true, administrative convenience does not fall within the Sixth Circuit's permissible compelling interests for restricting public access to court records, see Brown & Williamson Tobacco Corp., 710 F.2d at 1179, and "the First Amendment does not permit the State to sacrifice speech for efficiency." Riley v. Nat'l Fed'n of Blind, 487 U.S. 781, 795 (1988). Nor can the Defendants assert a privacy interest on behalf of the parties in the underlying case—Garramone v. Curtsinger. See Brown & Williamson Tobacco Corp., 710 F.2d at 1179. Any articulation of the parties' privacy interest would be undercut by allowing Tennessee citizens—possibly the parties' neighbors—to obtain the same information. Therefore, TPRA's citizenship requirement fails strict scrutiny. See Detroit Free Press, 303 F.3d at 705.

And we also argue that the access restriction violates the Privileges and Immunities Clause:

The Privileges and Immunities Clause states, "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." U.S. Const. art. IV. Claims under the Privileges and Immunities Clause undergo "a two-step inquiry." Sup. Ct. of Va. v. Friedman, 487 U.S. 59, 64 (1988). "First, the activity in question must be sufficiently basic to the livelihood of the Nation … as to fall within the purview of the Privileges and Immunities Clause." Id. (internal quotation marks and citations omitted). "Second, if the challenged restriction deprives nonresidents of a protected privilege, [courts] will invalidate it only if [courts] conclude that the restriction is not closely related to the advancement of a substantial state interest." Id. at 65. Mr. Volokh is likely to satisfy both requirements.

The Supreme Court has held the Privileges and Immunities Clause protects rights that are "fundamental." Baldwin v. Fish and Game Comm'n of Mont., 436 U.S. 371, 383 (1978). The First Amendment safeguard liberties that "lie[] at the foundation of free government." Marsh v. State of Ala., 326 U.S. 501, 509 (1946). Permitting a state to restrict a First Amendment right on the basis of citizenship necessarily burdens a fundamental right and, as a result, implicates the Privileges and Immunities Clause.

This case is distinguishable from McBurney v. Young, where the Supreme Court held that the provision of Virginia's Freedom of Information Act restricting access to state records to citizens did not violate the Privileges and Immunities Clause. McBurney v. Young, 569 U.S. 221, 229 (2013). There, the Court noted that the plaintiff had sought executive records. Id. The Court's historical analysis found "only those persons who had a personal interest in non-judicial records were permitted to access them." See id. at 233 (emphasis added). In addition, the plaintiffs obtained the majority of the requested information through other statutory means, so the citizenship requirement constituted only an incidental burden. McBurney, 569 U.S. at 224. Moreover, Virginia's Freedom of Information Act "gives citizens and noncitizens alike access to judicial records," rendering McBurney and the Court's analysis inapplicable. Id. at 232 (citing Va. Code Ann. § 17.1-208; Shenandoah Publ'g House, Inc. v. Fanning, 235 Va. 253, 258 (Va. 1988)).

This claim is sufficiently distinguishable to proceed in spite of McBurney. Unlike the records request at issue in McBurney, the records requested here implicate access to the courts—a right that falls squarely within the Privileges and Immunities Clause. See McBurney, 569 U.S. at 231. And unlike the plaintiffs in McBurney, who could access most of the requested records through another statute, Tennessee does not offer a similar alternative means that would allow Mr. Volokh to access the requested documents. See id. at 224. Furthermore, because the denial of the requested records implicates the First Amendment right to access judicial records and the First Amendment is fundamental to a free government, the Privileges and Immunities Clause prevents the TPRA from burdening that fundamental right based on citizenship. Marsh, 326 U.S. at 509.  ;see Part IV(A)(1). Taken together, Mr. Volokh has demonstrated a likelihood of success on the first prong of the inquiry.

Next, it is clear that TPRA's residency requirement "is not closely related to the advancement of a substantial state interest." Supreme Ct. of Va., 487 U.S. at 65. Here, the state's restriction must bear a substantial relationship to the state's objectives and the statute's purpose. Id. In other constitutional contexts, administrative convenience does not justify differential treatment. Frontiero v. Richardson, 411 U.S. 677, 691 (1973). In Toomer, the Supreme Court invalidated a South Carolina statute that imposed higher boat licensing fees and taxes on non-resident shrimpers for the purpose of conserving the state's shrimp supply. 334 U.S. at 396–99. In its analysis, the Court noted that South Carolina failed to produce evidence that non-citizens' fishing methods imposed a greater threat to the shrimp population or that the cost of enforcing shrimping laws was "appreciably greater" for non-citizens than it was for citizens. Id. at 398. The Court concluded that South Carolina could pass non-discriminatory regulations to address shrimp conservation concerns. Id. at 399.

For reasons similar to those in Toomer, denying Mr. Volokh access to civil court records based on his state residency violates the Privileges and Immunities Clause. See id. at 396–99. Any justification for TPRA's citizenship requirement that relies on administrative convenience is not a "substantial reason" that withstands constitutional scrutiny. Frontiero, 411 U.S. at 691. Moreover, TPRA's citizenship requirement lacks a "substantial relation" to the statute's purpose. Sup. Ct. of Va., 487 U.S. at 65. Like South Carolina in Toomer, Tennessee cannot produce evidence that non-citizen public records requests represent a greater burden on taxpayers than requests made by Tennessee citizens or that other means could not be used to address administrative concerns in a non-discriminatory fashion. Toomer, 334 U.S. at 396–99. Indeed, the TPRA already contains a constitutionally compliant, nondiscriminatory provision like the hypothetical regulation contemplated by the Toomer court. See Toomer, 334 U.S. at 399; see Tenn. Code Ann. § 10-7-503(a)(7)(C). If a person is making a request with the intent to disrupt government operations, the records custodian can petition a court to enjoin the person from making a records request. Id. § 10-7-503(a)(7)(C)(i). Consequentially, TPRA's citizenship requirement is not substantially related to any conceivable administrative interest. See Toomer, 334 U.S. at 398–99….