A recent federal court decision serves as a reminder of the extremely high burden a litigant has in order to close court proceedings from the public. In our judicial system, the doors of the courthouse open in assuring the public’s right to access to the judicial process. This federal court decision is being considered by many as a victory for the public’s freedom to access judicial information.
In the federal case, Silvka v. YMCA of the Pikes Peak Region, a Colorado District Court struck down the defendant employer’s motion for a gag order and a motion to restrict. In the opinion, Chief Judge Brimmer’s provided a thorough explanation and insight into the public’s right to have access to judicial proceedings. The order also reflected the core principle’s espoused in Professor Eugene Volokh’s objection to the motions raised by the YMCA; that the First Amendment and the common law assert a public right to access court proceedings whether civil or criminal in nature.
The motion for a gag order came as a result of Silvka’s complaint against the YMCA of the Pikes Peak Region. The complaint alleged that a YMCA manager sexually harassed and forcibly groped the former employee and that the YMCA failed to conduct a proper investigation into her complaints. The allegations of the sexual harassment lawsuit include a hostile work environment that involved employees binge drinking, and male upper level personnel abusing their power by coercing young female employees to have sex with them in order to advance in the organization. Silvka claimed to be the latest victim of this culture in her complaint. In response to the complaint and its publication by local news outlets in Colorado, the YMCA sought to impose a gag order fearing the complaint’s publication would prejudice a jury against them.
Chief Judge Brimmer pointed to the well outlined criteria in Nebraska Press Ass’n v. Stuart needed to impose a gag order to restrict free speech. Nebraska Press Ass’n determined that in order to issue a gag order, the movant would have to demonstrate with specificity (1)“the nature and extent of pretrial news coverage”; (2) “whether other measures would be unlikely to mitigate the effects of pretrial publicity”; and (3) “how effectively a restraining order would operate to prevent the threatened danger.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976). Brimmer found that none of this criteria was met by the YMCA.
The pretrial media coverage was limited to only three media outlets, who posted their reporting on Facebook and Twitter. The order noted that while widely accessible on these platforms, all things online are as accessible but that does not mean they are widely accessed. As this information may cause harm to the YMCA, the court noted that the complaint had been released to the public already and all harm that it would do had already been done. As past precedent has stated the courts “simply do not have the power, even were we of the mind to use it if we had, to make what has thus become public private again.” Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 n.11 (2d Cir. 2004).
The order next noted that the harm of jury prejudice could be mitigated by choosing jurors from Jury Division 1, an area comprised of locations outside of the service range of the news outlets that reported the complaint. This action is notably less complicated and controversial than imposing a gag order. As a result, the court found the motion for a gag order fell short of Nebraska Press Ass’n.’s criteria.
The courts have been clear that the imposition of a gag order should be rare and issued only when the movant shows “there is a ‘reasonable likelihood’ that media attention or extrajudicial commentary will prejudice a fair trial.” Pfahler v. Swimm, No. 07-cv-01885-MJW-KLM, 2008 WL 323244, at *1 (D. Colo. Feb. 4, 2008) (citing United States v. Tijerina, 412 F.2d 661, 666 (10th Cir. 1969)). Gag orders stifle free speech, and it falls on the courts to determine whether the facts of the immediate case warrant such imposition to prevent a worse harm. See Pfahler, No. 07-cv-01885-MJW-KLM, 2008 WL 323244, at *1 (D. Colo. Feb. 4, 2008). The court did not believe YMCA’s facts sufficed to trample the First Amendment.
The motion to restrict proceedings was likewise struck down by Chief Judge Brimmer’s order. There is a need for the movant to present a powerful interest that outweighs the “presumption, long supported by courts, that the public has a common-law right of access to judicial records.” Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1135 (10th Cir. 2011). The authority to weigh the interests at stake has been relegated to the district courts to determine. Nixon v. Warner Communications, Inc., 435 U.S. 589, 599 (1978). However, the right to access judicial records has been noted as foundational to establishing “respect for the judicial system,” making the presumption of public access both a legal and societal foundation. Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984).
The courts have made it clear that the public has a right to observe the proceedings of a case to learn whether “the charge is proven accurate” or “if the charge is unfounded” and more importantly to have the information available to explain why the courts came to that conclusion. Anderson v. Home Ins. Co., 924 P.2d 1123, 1128 (Colo. App. 1996). The portions of the complaint that the YMCA sought to have restricted were those that comprised the purpose of the claims raised against them. These provisions were the crux of the claim and the purpose for the suit, making them of greater need to be accessed by the public. Baxter Int’l Inc. v. Abbott Laboratories, 297 F.3d 544, 548 (7th Cir. 2002).
YMCA sought the motion to protect themselves against embarrassment and reputational harm from the claims raised in the complaint. This ignores that the complaint had already been published by local media outlets, making the information already widely available and restriction moot. The courts have noted it insufficient for a “bare allegation of reputational harm to be a compelling interest sufficient to defeat the public’s First Amendment right of access.” Doe v. Public Citizen, 749 F.3d 246, 269 (4th Cir. 2014). This is grounded in the requirement that a restriction cannot be based on “generic interests that would apply with equal force to every case,” rather it should be to serve a narrow and particular purpose for the specific case. United States v. Apperson, 642 F. App’x 892, 903 (10th Cir. 2016). If a party seeks to overcome the public’s right to access which is “presumed paramount” they “must articulate a real and substantial interest that justifies depriving the public of access to the records that inform our decision making process.” Helm v. Kansas, 656 F.3d 1277, 1292-93 (10th Cir. 2011); Ramirez v. Bravo’s Holding Co., 1996 WL 507238, *1 (D. Kan. Aug. 22, 1996). In this, the generic claim by YMCA failed to pass muster in the view of the Colorado District Court.
Chief Judge Brimmer’s order reaffirmed the court’s ardent belief and precedent that the public is entitled to the right of access to court materials and to openly discuss the materials thereafter. By providing the public with the ability to access the judicial process, the public is ensured that the courts are that of a free society where the rule of law may be readily observed, reported, and even critiqued. This order makes clear that the harm to reputation to the individual person, company, or organization pales in comparison to the harm that restricting public access would impose on the people of a free society and the judicial process.