In a pitched legal battle between the American media and the Virginia commonwealth, the press on Tuesday accused the commonwealth of attempting to deceive the Fourth Circuit about First Amendment law and basic facts.
The points of deception involve the nitty gritty of argument over Virginia’s policy giving remote records access to a favored few while cutting out the press and public. In the polite language of appellate argument, lawyers for the media blasted the commonwealth for its falsehoods.
“Appellees’ responses misread precedent and the record to minimize the questions of exceptional importance,” said their brief filed Tuesday.
The list of points on which Virginia outright misstates facts and law is long. But key examples involve the standard of court review in First Amendment cases.
In their brief, Virginia had said, for example, that a seminal First Amendment case, Courthouse News v. Planet, set a “relaxed” standard for reviewing denials of access. The legal standard of review is pivotal because it will usually determine whether a government restriction is struck down or allowed to stand.
“Numerous sister circuits, including in Courthouse News Serv. v. Planet, have also held that time, place, and manner regulations on access to court proceedings or records are subject to ‘relaxed scrutiny,’” wrote staff lawyers in the office of state Attorney General Jason Miyares.
That statement misstates the holding of Planet as well as the standard on which it was decided.
Planet held that restrictions on access to court records require a “rigorous” standard of scrutiny and used the standard set by the U.S. Supreme Court in Press Enterprise v. Riverside II. That standard is high and requires an overriding reason to justify restrictions plus the absence of alternatives.
While the misstatement appears subtle, it is potentially decisive to the outcome of the case.
In a second example of slippery argument, Virginia misstated facts in a key Fourth Circuit case involving an election operative named Dennis Fusaro who asked Maryland for a registered voter list. Maryland allowed residents to obtain the list remotely but required that out-of-staters such as Fusaro travel to individual offices of the state board of elections.
Those facts are similar to the case at hand where Virginia’s two-tier access system allows Virginia lawyers and officials to see court records remotely but requires that news reporters travel to individual courthouses. The Fourth Circuit ruled in 2019 that Fusaro had stated a First Amendment claim.
Virginia’s attorney general represents the commonwealth, as well as a court clerk named Jacqueline Smith. On behalf of those parties, he incorrectly described the Fusaro facts as a total denial of access.
“Smith seeks to dismiss Fusaro on the ground it ‘involved a complete denial of access to the information that plaintiff sought.’ That is not true. Like the restriction here, the Maryland law in Fusaro limited remote access to a list of registered voters (via a written application) to Maryland registered voters, requiring others (like Fusaro) to travel to the ‘local offices of the State Board,’ where those records are ‘open to public inspection,’” said the Courthouse News reply brief filed Tuesday.
The history of litigation over Virginia’s two-tier access is that the top court executive put software in place giving remote access to records filed in 105 local courts. But the software limits access to lawyers and government employees.
A trial court judge ruled in 2022 against Courthouse News on a First Amendment challenge to the two-tier system. A three-judge panel on the Fourth Circuit affirmed in January and now Courthouse News and the national media have asked for en banc review by all judges in the Richmond-based Fourth Circuit.
“The Reporters Committee writes to emphasize the exceptional importance of this issue to the news media and the practical harm the panel’s decision will have on the press’s ability to report, and public’s ability to receive, the news,” said the media’s amicus brief filed last month. It was signed by 38 news organizations, including The New York Times, The Washington Post and The Associated Press.
“Such restrictions impose unconstitutional delays and, in some instances — such as when distance or travel conditions preclude a reporter’s journey to a physical courthouse in a distant part of the Commonwealth — may, as a practical matter, constructively deny access to judicial records altogether,” added the amicus brief.
In order to demonstrate the practical impossibility of covering 105 state courts by driving to them, two bureau chiefs and an editor for Courthouse News drove steadily for a week in the fall of 2022 and managed to cover 25 courts along the western edge of the state.
A typical exchange took place in Roanoke City Circuit Court where the three travelers approached the clerk’s counter and were quickly directed to a waiting area around the corner from the office of Clerk Brenda Hamilton. They sat down in a row in seats along the wall and she soon came striding around the corner.
“Are you officers of the court!” she demanded.
They answered in rough unison that they were journalists.
“I can’t give it to y’all,” she said. “Sorry Harry. Too big a weight to carry!” She said court rules prevented her from giving online access to journalists.
Another telling exchange took place in Salem City Circuit Court where Clerk Chance Crawford listened carefully to their request for access online. “I’m not saying I totally disagree with you,” he said, measuring his words. “I can’t allow it unless we get something from the federal court with regards to your lawsuit that it’s OK.”
In the long-running challenge to Virginia’s two-tier setup, Courthouse News is represented by Dabney Carr and Lauren Miller with Troutman Sanders in Richmond and Roger Myers and Rachel Matteo-Boehm with Bryan Cave in San Francisco. Virginia is represented by Attorney General Jason Miyares, Deputy Attorney General Jason Popps, Solicitor General Erika Maley and deputy solicitors Graham Bryan and Michael Dingman.
In their brief, the staff for the attorney general wrote: “CNS is free to report on any public court documents, because every document available to CNS at the courthouse.”
In their reply brief, the Courthouse News lawyers wrote: “An informed citizenry is at the heart of this democracy, and narrowing the arteries of information will only serve to impair our country’s coronary health.”