News outlets show Virginia court rule likely prior restraint on speech

ROANOKE, Va. (CN) — A federal judge refused to let Virginia's court administration escape a lawsuit by Courthouse News and Lee Enterprises that says Virginia officials are imposing a prior restraint on speech.

"I thereby find that the plaintiffs have made a plausible showing that the Dissemination Restriction is a prior restraint that would not survive strict scrutiny," wrote Judge James P. Jones in a 16-page order.

The lawsuit is the third in a yearslong struggle between this news service and Virginia's court bureaucracy which works in the thrall of local elected clerks who, like many local clerks around the country, rely on court records as a source of income.

The first two cases involved delays in access and a rule that grants online access only to lawyers. Courthouse News won the first case over delays and lost the second over online access. The current case is over a rule that prohibits lawyers — who have online access — from sending public court records to journalists.

Newspaper group Lee Enterprises and Courthouse News both challenged the prohibition as a blatant prior restraint on speech that must fall unless it can pass the test of strict scrutiny, a bar so high it is almost impossible to surmount.

In his ruling, Judge James concluded the press had plausibly alleged the prohibition on lawyers, referred to as the Dissemination Restriction, constitutes a prior restraint on speech.

"Thus, for the restriction to be upheld, the defendants would need to show that it is narrowly tailored to serve a compelling government interest," said the judge. "While the defendants have asserted their interest in protecting the privacy and security of litigants, the plaintiffs' allegations could reasonably support the conclusion that the Dissemination Restriction is not the least restrictive means for protecting that interest."

In representing the court bureaucracy, the Virginia attorney general's staff had asked for dismissal of the complaint. They argued that they have immunity, and the news organizations lacked standing because the state law regulates Virginia attorneys, not the press.

Virginia maintains a subscription database called Officer of the Court Remote Access that allows attorneys to view court filings from its 120 circuit courts that could otherwise only be accessed by traveling to local courthouses that are hundreds of miles apart.

The terms of access prohibit attorneys from sharing the public court documents with the public or reporters. Penalties for violating the terms range from access revocation up to disbarment.

In finding that the clerks should not be dismissed from the case, the judge wrote, "I find that the plaintiffs have sufficiently alleged that the defendant clerks maintain a special relation to the dissemination restriction, and that they 'have alleged an actual and well-founded fear' of enforcement."

The Bill Clinton appointee also found the clerks were not shielded by sovereign immunity, adding the argument that the clerks do not have the authority to enforce the challenged statute is "unpersuasive."

During the hearing in April, Erin McNeill, an attorney representing Karl Hade, the executive secretary of the Office of Executive Secretary of the Supreme Court of Virginia, argued asking an attorney for files is not speech.

The state imposes restrictions on the database of court records to prevent credit card theft, identify theft, privacy violations and criminal use of the info, she said, along with blocking data mining or bots accessing court records.

"Common sense and logic support the notion that if any individual with electronic access to all nonconfidential court records could freely sell, post or redistribute such data to third parties, it could jeopardize citizens' privacy and security," she said.

The news publishers' attorney Roger Myers argued in a brief and in a hearing before the judge that preventing attorneys from sharing any information about public court records is unconstitutional.

"This isn't a confidential records case, this isn't a non-public records case, it's a case involving a restriction on speech about publicly accessible records," he said.

Representatives for the defendants did not immediately return a request for comment.

Courthouse News previously sued Virginia clerks in 2021, challenging the state's limitation of online court document access to lawyers and the restrictions on attorneys sharing those documents with reporters or the public. The case went to the Fourth Circuit, where two judges on a panel upheld the state's access restriction, while a third, U.S. Circuit Judge Roger Lee Gregory, issued a stinging dissent.