NEFAC Argues Against Sealing Court Records, Demands Public Access to Judicial System

CONTACT Justin Silverman | 774.244.2365 |


The New England First Amendment Coalition recently argued against indiscriminately sealing court records, explaining that the First Amendment right to those records plays a “fundamental part in ensuring public confidence in the judicial system.”

“Members of the press regularly rely upon court documents to keep the public apprised of cases within the public interest, as well as to facilitate public monitoring of the judicial system,” NEFAC and other First Amendment advocates argued in a Dec. 17 amicus brief.

“When courts fail to adequately consider the costs to the public interest in sealing court records, the ability of journalists to gather facts and keep the public apprised of actions of the judicial branch is threatened,” amici wrote.

The brief — drafted by the Reporters Committee for Freedom of the Press — was filed in Giuffre v. Maxwell, a case in the Second Circuit U.S. Court of Appeals. The Second Circuit has jurisdiction in six districts within the states of Connecticut, New York and Vermont.

The case involves an order by the Southern District of New York that allowed parties to file vast numbers of judicial records under seal or redacted entirely as a matter of course and without any judicial oversight. It’s a practice, NEFAC and other amici previously argued, that has severe First Amendment and freedom of information implications.

The most recent brief is in support of the Miami Herald, which filed its own motion to unseal all of the sealed documents on the case docket, which include documents related to discovery motions, the defendant’s motion for summary judgment and the trial court’s order. The district court denied the Miami Herald’s motion to unseal, and the Miami Herald appealed.

Quoting the U.S. Supreme Court in Richmond Newspapers v. Virginia, amici explained that: “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”

“For this reason,” amici continued, “the public’s First Amendment and common law rights of access to judicial proceedings and records play a critical, fundamental part in ensuring public confidence in the judicial system. And public access, which is necessary to both the fairness of the judicial system and the public’s perception of its fairness, cannot be curtailed except where necessitated by compelling interests.”

NEFAC regularly files and joins amicus briefs in cases involving the First Amendment and the public’s right to know. The coalition recently argued for timely access to juror identities, immediate access to civil court documents, the right to private emails of government officials when they pertain to public business, the freedom to record public police activity and the preservation of anti-SLAPP laws.

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Major Supporters of NEFAC include the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, The Boston Globe, WBUR and Boston University.