As some readers may recall, I've been trying since 2022 to get unsealed a federal case in which all the documents were sealed. The case itself was brought using the parties' names, and the docket sheet itself was publicly available. But the only documents that I could read were an opinion that had been posted to Westlaw before the case was sealed and several opinions that had been apparently erroneously made available on Westlaw while the case was sealed. Those documents revealed that there were some interesting First Amendment questions raised by some of the orders in the case, which is why I wanted to be able to access more information from the record. (Now that the orders are indeed unsealed, I hope to write about them soon.)
My UCLA student Nora Browning and I eventually argued the matter in the Fifth Circuit, and the Fifth Circuit agreed in Sealed Appellant v. Sealed Appellee that the case should largely be unsealed, though with redactions of personal information (to which I didn't object).
The Fifth Circuit also instructed the District Court to consider whether the case should be retroactively pseudonymized, on the grounds that plaintiff had been suing in part over alleged revenge porn, and possibly that there was other highly personal information about the plaintiff in the record. I am not sure that the law authorizes retroactive pseudonymization, but I chose not to object to such pseudonymization in this particular case: I just wanted access to the court records, and I sympathized in some measure with the plaintiff, who likely would have been allowed to proceed under a pseudonym in the first place had this been requested at the outset instead of total sealing.
Back in District Court, the Magistrate Judge
- ruled in favor of retroactive pseudonymization (more on that in a later post, I hope),
- acknowledged that it was not "imposing any obligation on Professor Volokh to retroactively pseudonymize his own writings on this case that are already in the public domain,"
- but nonetheless ordered that "Professor Volokh may not, however, publicly disclose Plaintiff's name or personal identifying information in any future writings, speeches, or other public discourse."
Unsurprisingly, I objected to that no-public-disclosure gag order, and yesterday the District Judge agreed (Doe v. Friendfinder Networks, Inc., 2024 WL 3423720):
According to Volokh, "publishers like Volokh have a First Amendment right to editorial freedom in deciding whether to publish even highly private information …, so long as they acquired the information from documents that the government had made available." Accordingly, Volokh contends that the language instructing him that he may not publicly disclose Plaintiff's name or personal identifying information in any future writings, speeches, or other public discourse "is an unconstitutional prior restraint." Volokh is correct.
As Volokh argues, where the government has in error placed confidential information into the public domain, punishment for the republication of that information already in the public domain violates the First Amendment. Florida Star v. B.J.F. (1989). Of course, courts do have the authority to issue protective orders restricting speech. Seattle Times Co. v. Rhinehart (1984). But generally, such orders are constitutional only where they do not restrict the dissemination of information gained from sources outside of the litigation in which the protective order is sought.
Here, the language at issue broadly prevents Volokh from publicly disclosing Plaintiff's name or personal identifying information in future writings, speeches, or other public discourse—whether learned through the public domain or through his involvement in this case. This unlawfully restricts his speech. For example, the order restricts Volokh from sharing information that is publicly available through his prior writings but allows for any of Volokh's readers to share that same information.
As such, the language at issue here is an unconstitutional prior restraint. Accordingly, the Court STRIKES from the Magistrate Judge's order the following language: "Professor Volokh may not, however, publicly disclose Plaintiff's name or personal identifying information in any future writings, speeches, or other public discourse." …
The best news: I now have an official citation for the proposition that "Volokh is correct."
As you might gather, none of this means that I will indeed publicly mention Plaintiff's name or personal identifying information; but that is a decision that the First Amendment leaves in such situations to speakers like me, and not to judges. I should note that in an earlier iteration of the case, the Magistrate Judge had ordered, "Professor Volokh may not blog or write about this case until any renewed motion to unseal has been granted"; I likewise appealed that, and the District Judge promptly concluded, "Professor Volokh may write about this case if he so wishes." I hadn't written about the case, though, because at that point it was sealed, pending the outcome of the Fifth Circuit appeal and follow-up District Court activity.
For those interested in my argument against the gag order, here are my objections (thanks to Stanford Law School student Desmond Mantle, who worked on this draft):
The June 20, 2024 Order stating that Intervenor Volokh "may not … publicly disclose Plaintiff's name or personal identifying information in any future writings, speeches, or other public discourse" is an unconstitutional prior restraint. Under Florida Star v. B.J.F., 491 U.S. 524 (1989), publishers like Volokh have a First Amendment right to editorial freedom in deciding whether to publish even highly private information (in that case, the name of a rape victim), so long as they acquired the information from documents that the government had made available. Likewise, though Seattle Times v. Rhinehart, 467 U.S. 20 (1984), allows courts to issue protective orders preventing parties from disclosing information learned solely through litigation, it does not allow courts to issue orders restraining individuals from speaking about matters they learned outside litigation.
Here, Volokh learned Plaintiff Doe's name from documents available on Westlaw; and the name was also available for five years on the publicly accessible docket. Volokh cannot now be ordered by a court not to disclose the information.
Volokh therefore objects to this portion of the June 20, 2024 Order. He does not object to the pseudonymization of Doe's name in court records….
Argument
Volokh objects to the emphasized text below:
Accordingly, the Court will grant Plaintiff's request to retroactively pseudonymize the record and order the Clerk to amend the case caption and docket entries by replacing Plaintiff's name with "Jane Doe" to preserve her anonymity. The Court notes that in doing so it is not imposing any obligation on Professor Volokh to retroactively pseudonymize his own writings on this case that are already in the public domain. Professor Volokh may not, however, publicly disclose Plaintiff's name or personal identifying information in any future writings, speeches, or other public discourse.
This attempt to restrict Volokh's speech is an unconstitutional prior restraint.
In Florida Star, the Court set aside even a subsequent punishment (in that case, civil liability) for publishing the name of a rape victim drawn from a publicly released document (in that case, an erroneously released police report). "Once the government has placed such information in the public domain, 'reliance must rest upon the judgment of those who decide what to publish or broadcast'" rather than on the threat of legal liability. 491 U.S. at 538 (internal citation omitted). And that was true even though the information in Florida Star was released as a result of "the erroneous, if inadvertent, inclusion by the [Sheriff's] Department of [plaintiff's] full name in an incident report made available in a pressroom open to the public." Id.
Here, plaintiff's name was released to the public in opinions posted on Westlaw [citing opinions]. Some of the opinions may have been released to Westlaw erroneously, though the first (the June 24, 2019 opinion) had been issued before the case was sealed (by Order, ECF No. 9 (July 8, 2019)), so there may have been no error in its release. Moreover, the plaintiff's name was quite correctly part of the docket for five years before the case was pseudonymized. Thus, here too, "[o]nce the government has placed such information in the public domain," Volokh cannot be ordered not to disclose it.
That is especially so because the order here goes beyond civil liability (as in Florida Star) and imposes a prior restraint. "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). "[T]he gagging of publication has been considered acceptable only in 'exceptional cases.'" CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers).
To be sure, Seattle Times Co v. Rhinehart lets courts issue protective orders restraining the dissemination of information obtained in discovery—but precisely because such protective orders do "not restrict the dissemination of the information if gained from other sources." 467 U.S. 20, 37 (1984). "[A]n order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny," because it "prevents a party from disseminating only that information obtained through use of the discovery process. Thus, the party may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court's processes." Id. at 33-34 (emphasis added). The June 20, 2024 Order, on the other hand, blocks Volokh from disseminating information gained through means independent of "use of the discovery process" or any similar court process.
Likewise, in Butterworth v. Smith, 494 U.S. 624, 634 (1990), the Supreme Court ruled that a Florida law prohibiting grand jury witnesses from speaking publicly about their own testimony was an unconstitutional restraint on speech. Florida had attempted to rely on Seattle Times to argue that, because the information had been used in a grand jury proceeding, a witness could be barred from divulging it. Id. at 631. But the court rejected that rationale, citing Florida Star and related cases:
In Rhinehart we held that a protective order prohibiting a newspaper from publishing information which it had obtained through discovery procedures did not offend the First Amendment. Here, by contrast, we deal only with respondent's right to divulge information of which he was in possession before he testified before the grand jury, and not information which he may have obtained as a result of his participation in the proceedings of the grand jury. In such cases, where a person "lawfully obtains truthful information about a matter of public significance," we have held that "state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order."
Id. at 631-32 (emphasis added) (citing Florida Star and a similar case). Similarly, in June Medical Services, L.L.C. v. Phillips, 22 F.4th 512, 520 (5th Cir. 2022), the Fifth Circuit held:
In the context of publicly available documents, those already belong to the people, and a judge cannot seal public documents merely because a party seeks to add them to the judicial record. We require information that would normally be private to become public by entering the judicial record. How perverse it would be to say that what was once public must become private—simply because it was placed in the courts that belong to the public. We will abide no such absurdity.
Publicly available information cannot be sealed. In so holding, we align with the Supreme Court and our sister circuits. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984) ("[A] protective order prevents a party from disseminating only that information obtained through use of the discovery process. Thus, [a litigant] may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court's processes." (emphasis added)) ….
It follows even more clearly that the dissemination of such originally publicly available information cannot be enjoined. Volokh does not object in this case to the retroactive redaction of plaintiff's name from court records, but he cannot be legally bound to redact it from his future speech. See also Marceaux v. Lafayette City-Parish Consolidated Government, 731 F.3d 488, 493 (5th Cir. 2013) (holding that a protective order requiring the plaintiffs to take down their website, on which they communicated information and views about their case, was unconstitutional, because the order "explicitly restricts the expression of attorneys and parties in this litigation as it relates to the media and prevents the Officers from expression in the Website" and thus "qualifies as a prior restraint").
Conclusion
The objected-to portion of the June 20, 2024 Order is a prior restraint on Volokh's speech. The precedents cited above, including especially Florida Star—which invalidated even subsequent punishment for the publication of highly personal information that had been obtained from records that the government had made available—make clear that it is an unconstitutional prior restraint. Volokh therefore asks that this portion of the Order be vacated….
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