Free Law Project fights for the public’s right of access to the courts.
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In late September, Free Law Project was named in a sealing order out of the Southern District of New York which would have required us to block access to content from CourtListener. We pushed back against this order, and we’re happy to share that earlier this week, the court reversed course and unsealed the case after we and others raised First Amendment concerns about the order’s interference with the public’s right of access to the courts.
We regularly receive removal requests from litigants. This court order was different: It named Free Law Project and ordered us to remove an entire docket and all its filings that had been publicly available for years. It named search engines such as Google, DuckDuckGo, and Bing, and ordered them to remove the case from their search results. It even went so far as to order a prominent international law firm to remove a blog post discussing the case.
We also noticed that commercial services like Lexis and Westlaw were not named. Checking for the case in their collections revealed that because it was an older case — opened eight years ago — it had been cited numerous times. In our own collections, we have dozens of references to the case. Would citations to the case have to be altered to remove the case name from appearing in their text? Could it be that customers of expensive commercial services would have access to cases that the rest of the world was barred from having?
The case involved a claim of employment discrimination, dismissed in 2017, and the plaintiff now alleged both that her counsel at the time inadequately advised her and that the existence of online references to the case had hindered her subsequent search for employment.
Free Law Project initially inquired with the Judge’s chambers to verify the order, and blocked access to the case. After further correspondence, on September 30, 2020, the court invited Free Law Project and others subject to the removal order to submit our concerns in writing.
With pro bono assistance from the Samuelson Law, Technology, and Public Policy Clinic at UC Berkeley School of Law, Free Law Project submitted a letter brief arguing that Free Law Project should not be bound by the Court’s removal order under Rule 65 of the Federal Rules of Civil Procedure because it was a non-party that obtained the case materials independently and had no opportunity to be heard, and because the First Amendment protects Free Law Project’s right to publish information it lawfully obtained.
We also urged the Court to docket the submissions we and others made, and asked the Court to unseal the entire docket. DuckDuckGo (also named in the removal order), Eugene Volokh, and the Electronic Frontier Foundation submitted similar concerns to the court.
On Monday, the court issued a thoughtful order unsealing the case and the various submissions. The court held that the plaintiff’s interest in sealing her case cannot defeat the presumption of public access to the case’s docket and its filings. Both Free Law Project and the court agreed that plaintiff’s concerns were significant, but that “a private litigant’s general concerns about reputational harm or negative impact to her employment prospects are not sufficient to counteract the public’s First Amendment right to these court filings.” Dec. 28, 2020 Order at 8.
Free Law Project is pleased to establish this additional precedent in favor of public access to court documents. We are particularly thankful for the expert counsel provided by the Samuelson Clinic’s Catherine Crump and Megan Graham.