Citations
- 312 F. Supp. 3d 844
Full opinion text
Hon. Andrew J. Guilford, United States District Judge
"Extra! Extra! Read all about it! " This iconic news entreaty evokes images of a distant past, before the internet, television, and radio, when the news was reported on pieces of paper. These aptly called newspapers were printed by a set time each day. New stories that broke after that time would generally appear in the next day's edition. But sometimes newspapers would publish an extra edition because something so momentous or sensational had happened that people would willingly buy a second paper to read all about it. Breaking news in the digital age is a much looser concept than in the days of newspaper extras. If it were still announced by street vendor clamors, the resulting cacophony would be intolerable. In reality, since people can manage their notification updates, the noise is much easier to ignore.
This case calls for a reflection on the meaning of news, both breaking and not, and the obligations that the United States Constitution imposes on the government in society's ever more demanding quest for news. It asks what burdens the justice system must bear and what risks it must take to provide access to information in the name of "news." The importance of this dispute is reflected in the rather voluminous extra documents that have been filed for the pending summary judgment motion, including one amici curiae brief filed on behalf of the Orange County Bar Association, National Association of Women Lawyers, Family Violence Appellate Project, Legal Aid Society of Orange County, Public Law Center, and Veterans Legal Institute, to support Defendant's position, and another one amici curiae brief filed on behalf of the Reporters Committee for Freedom of the Press and 15 other media organizations, to support Plaintiffs' position. (See Dkt. Nos. 82, 105; see also Dkt. No. 41-1.)
Plaintiff Courthouse News Service, or "CNS," sued Defendant David Yamasaki in his official capacity as the Court Executive Officer/Clerk of the Orange County Superior Court, or "OCSC," for injunctive and declaratory relief under 42 U.S.C. § 1983. CNS contends that delays in public access to certain electronically filed civil complaints at OCSC violate its rights under the First Amendment to the United States Constitution.
Last year, CNS moved for a preliminary injunction, which the Court denied. Now OCSC moves for summary judgment. Having considered the numerous filings and extensive oral arguments, the Court GRANTS IN PART and DENIES IN PART OCSC's motion for summary judgment. (Dkt. No. 75.)
1. BACKGROUND
This section provides context to the Court's analysis, where the Court will discuss relevant facts in more detail.
1.1 CNS Reporting and Publications
CNS is a news organization that specializes in civil litigation reports. CNS reporters write articles about legal news and create litigation reports. Some CNS original articles are freely available to the public on the organization's website, which also features a selection of non-legal news articles from the Associated Press. COURTHOUSE NEWS SERVICE , https://www.courthousenews.com/ (last visited May 7, 2018). On multiple occasions, other news organizations-including locally the Orange County Register and the Los Angeles Times-have credited CNS articles as their source.
CNS has over 2,000 subscribers nationwide. CNS subscribers include academic institutions, government agencies, and other media organizations, but overwhelmingly, they're law firms. CNS subscribers may receive "trackers," which provide updates about cases a subscriber is following, and "dingers," which alert subscribers about lawsuits filed against a specific party. CNS
subscribers may also choose to receive monthly or daily publications, including one or several of CNS's 124 "New Litigation Reports." These reports supply daily updates about new civil litigation, excluding family law, filed in a specific geographical area. They include links to and original summaries of the complaints.
To provide this content, CNS employs reporters across the country. These reporters are assigned coverage of specific federal and state courthouses. One of their duties is to review new complaints and choose which ones to include in the daily New Litigation Reports.
Sixteen New Litigation Reports focus on California, covering new civil complaints in the federal district courts, and new unlimited civil complaints (sometimes just called "complaints" in this order) in the superior courts. Under California law, unlimited civil cases are those where the amount in controversy exceeds $25,000 or where the plaintiff requests certain types of injunctive relief. Complaints filed at OCSC are covered in CNS's Orange County Report, which is "emailed each weekday evening to about 275 subscribers." (See Dkt. No. 85 at 6; Dkt. No. 86 at ¶ 7.) But CNS reporters at OCSC cannot always access new complaints on the same day that those complaints are submitted to the court. So CNS sued OCSC.
1.2 OCSC Practices
OCSC is one of the busiest state trial courts in the country. In the 2014-2015 fiscal year, it opened nearly half a million new cases. Judicial Council of California, 2016 Court Statistics Report app. G, tbl.1. Besides numerous criminal cases, it handles all sorts of civil matters. Civil cases are handled at one of four OCSC divisions. Two of those divisions, the Central Justice Center (or "CJC") and the Civil Complex Center, process all filings in unlimited civil cases. Unlimited civil cases cover, among other things, requests for civil restraining orders, name change petitions, and complex civil cases. It's undisputed that on average, OCSC receives 14,098 new unlimited civil complaints a year. (Dkt. No. 84 at 2 ¶ 3.) Meanwhile, and as widely acknowledged in the press, OCSC has faced increasingly challenging budgetary restrictions. One source explains that while it's "no secret that California's clogged courts are seriously underfunded" in general, "as a 'donor' court under the current, convoluted funding method," OCSC isn't receiving its "fair share of statewide funding." See Josh Newman & Jennifer Muir Beuthin, Better Justice Through Local Funding Control , ORANGE COUNTY REGISTER (updated Feb. 9, 2018, 10:12 AM), https://www.ocregister.com/2018/02/08/better-justice-through-local-funding-control/[http://bit.ly/2oitH1B]. This has created problems unique to OCSC, which is for example "the only Superior Court in all of California to rely solely on part-time court reporters." Id. These problems then have a negative "domino effect." Id. And for the past several years, OCSC's "volume has increased even as its budgets have shrunk." Id. Funding issues obviously create challenges to OCSC in seeking justice.
Most new complaints are submitted to OCSC electronically. (See Ochoa Decl., Dkt. No. 75-2 at ¶ 14.) Indeed OCSC implemented mandatory electronic filing (or "e-filing") in 2013, subject to very few exceptions. One of those exceptions is for filings submitted by litigants representing themselves, said to be acting pro per (counsel use the expression "pro se ," which is less suitable for state court). Complaints may be submitted electronically 24 hours a day, even on weekends and court holidays. Manually filed complaints may be turned into the clerk's office between 8 a.m. and 5 p.m. on court business days.
When OCSC receives a new complaint, a Legal Processing Specialist (or "LPS") reviews and processes it before OCSC makes the complaint available to the public-if the complaint satisfies all the filing requirements and it's not protected by confidentiality or sealed. At the CJC, there are five LPSs whose assigned duty is to review and process new civil complaints. Review and processing at the Civil Complex Center is performed by one of the three LPSs who handle all new filings. LPSs perform administrative tasks, like checking for payment or assigning a case number associated with the complaint, and confidentiality and sealing review (referred to here as "privacy review" for short). For the privacy review, LPSs check the face of the complaint or petition, as well as the comment section that plaintiffs may fill out when submitting the document online. They look for words indicating that the plaintiff meant to ask for information to be kept private, and statutory references or claims that require confidential treatment by law. For example, under the Safe at Home program, confidential treatment is required for name change petitions submitted to avoid domestic violence, stalking, or sexual assault. Cal. Civ. Proc. Code § 1277(b)(2). OCSC has identified multiple instances where LPS review revealed requests for confidential treatment or sealing of complaints and petitions. (Ochoa Decl., Dkt. No. 75-2 at ¶¶ 21-22.)
It's this review and processing of new complaints that causes the delays at OCSC that CNS claims are unconstitutional.
1.3 Delays at Issue
The evidence and data submitted about delays in this case concern two periods: the last quarter of 2016 (October to December 2016), and the period from January 1, 2017 to October 18, 2017. The filings for this motion focus mainly on the 2017 period.
The statistics that CNS and OCSC have provided are for the most part representations of the same OCSC data. How they represent that data, though, differs greatly. According to OCSC, 95.97% of new unlimited civil complaints during the relevant 2017 period, and 89.2% of new unlimited civil complaints in the last quarter of 2016, were available within eight business hours. (Mot., Dkt. No. 75 at 7.) By contrast, according to CNS, during the relevant 2017 period, 56.9% of new unlimited civil complaints were delayed one to thirteen days, and during the last quarter of 2016, nearly half of the new unlimited civil complaints were delayed between one and nine days. (Opp'n, Dkt. No. 83 at 4.)
The main reason for the disparities in the parties' statistics is that OCSC and CNS disagree about the appropriate time unit to calculate delays. OCSC quantifies delays in business hours, reflecting its functional reality and the speed of LPS complaint review and processing. Meanwhile, CNS quantifies delays in terms of calendar days, reflecting its own business reality tied to newsworthiness. Then, the parties' views on how to count delays that begin or end before 8 a.m. or after 4 p.m. further separates each side's numbers. With OCSC's numbers, whether hours before 8 a.m. or after 4 p.m. count as business hours may depend on whether complaints were submitted or released during those hours. Indeed it's clear that the hour when a complaint is released always counts as a business hour, even if the complaint is released before 8 a.m. or after 4 p.m. But what's unclear is whether the hour when a complaint is submitted counts as the first business hour and starts the clock when the complaint is submitted between 4 and 5 p.m. As for CNS's numbers, they reflect CNS's position that when a complaint is released after 4 p.m. (including before 5 p.m.) on one day, access to that complaint is delayed until the following business day-which may be several calendar days later.
For the purpose of this motion, the Court won't adopt the time unit of one party or the other, instead adapting its description of delay lengths to the arguments presented. So some basic reference points may be useful before moving on.
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1.4 CNS Allegations and Lawsuits
CNS argues that the public has a First Amendment right of access to new civil complaints that attaches as soon as the complaints are submitted to or received by a court. The parties refer to that argument for short as a right of "access upon receipt," "same-day access," or "immediate access." The Court will use those expressions interchangeably. CNS further argues that the delays at OCSC are the product of what CNS calls OCSC's "process-first policy," and that they impermissibly restrict the public's First Amendment right of access.
Conversely, OCSC argues that the public's First Amendment right of access to new complaints doesn't attach as soon as a court receives a complaint and that at any rate, courts may take a reasonable amount of time to review and process complaints before making available to the public those complaints that may be released.
CNS filed this lawsuit on January 24, 2017. Before and since then, CNS has sued multiple state trial court clerks in federal district courts across the country, seemingly based on the same legal arguments it makes here. Each case apparently involves courts where CNS reporters have been unable to access newly submitted complaints on the same day that the courts receive them, and where the clerks refused to change their practices when CNS asked them. In particular, before suing OCSC's Clerk, CNS sued the Clerk of the Ventura County Superior Court. Courthouse News Service v. Planet , CV 11-08083 SJO (FFMx). That lawsuit produced two Ninth Circuit opinions impacting the legal analysis in this case: Courthouse News Service v. Planet ("Planet I "), 750 F.3d 776 (9th Cir. 2014), and Courthouse News Service v. Planet ("Planet II "), 614 Fed.Appx. 912 (9th Cir. 2015).
Mindful of those decisions, the Court denied CNS's motion for a preliminary injunction last year. (Dkt. No. 56.) Since then, CNS filed an interlocutory appeal of that denial with the Ninth Circuit. That appeal is still pending. And OCSC filed the pending motion for summary judgment with this Court. When the summary judgment motion, opposition, and reply were filed, the Court granted applications to file amici curiae briefs supporting each party, and requested supplemental briefing. (Dkt. No. 106.) Supplemental briefs and rebuttals were timely filed. (Dkt. Nos. 111, 112, 115, 116.) A special hearing date was set on the Court's calendar, separate from the regularly scheduled hearings, to give the parties extra time to present their arguments. Before the hearing, the Court issued a tentative order seeking to enhance oral arguments.
2. PRELIMINARY MATTERS
2.1 Jurisdiction
CNS's opposition to OCSC's motion for summary judgment opens on a claim that the Court lacks jurisdiction to rule on the motion because of CNS's interlocutory appeal. In its tentative order, the Court explained that CNS misinterpreted the relevant case law, and that the Court does have jurisdiction under Plotkin v. Pacific Telephone & Telegraph Co. , 688 F.2d 1291, 1293 (9th Cir. 1982). After the hearing on this motion, CNS sought an urgent stay from the Ninth Circuit based on the same jurisdiction argument. (Dkt. No. 129.) The Ninth Circuit having likewise dismissed CNS's argument under Plotkin , the Court need not discuss this issue any further. (See Dkt. No. 132.) The Court has jurisdiction to rule on OCSC's summary judgment motion. Justice is served here by the Court moving this case along.
2.2 Evidence and Objections
CNS mentioned in a footnote that it thought OCSC's motion was premature. (Opp'n, Dkt. No. 83 at 5 n.4.) But CNS didn't follow the requirements of Federal Rule of Civil Procedure 56(d), which allows a court to delay ruling on a summary judgment motion "[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition." And CNS has been collecting evidence on courts' complaint access practices for some time. As CNS itself says, 36 of the declarations it submitted here were first filed two years ago, on March 14, 2016, in one of the other similar lawsuits initiated by CNS. (See Dkt. No. 12 at 1-5.) In any event, none of the Court's dispositive rulings depend on information that CNS would have obtained through discovery.
The parties raised voluminous issues concerning the evidence and filings for this motion. These issues were addressed in over seven pages of the Court's tentative order. At the hearing, the parties did not wish to discuss the Court's rulings on those matters, which remain in place. Now the Court will proceed directly to the merits, only occasionally mentioning evidentiary issues when necessary.
3. LEGAL STANDARD
Summary judgment is appropriate where the record, read in the light most favorable to the non-moving party, shows that "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Material facts are those necessary to the proof or defense of a claim, as determined by reference to substantive law. Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" based on the issue. Id. In deciding a motion for summary judgment, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505. But if the evidence of the nonmoving party "is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. 2505.
The burden is first on the moving party to show an absence of a genuine issue of material fact. Celotex , 477 U.S. at 323, 106 S.Ct. 2548. The moving party satisfies this burden either by showing an absence of evidence to support the nonmoving party's case when the nonmoving party bears the burden of proof at trial, or by introducing enough evidence to entitle the moving party to a directed verdict when the moving party bears the burden of proof at trial. See Celotex , 477 U.S. at 325, 106 S.Ct. 2548 ; C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc. , 213 F.3d 474, 480 (9th Cir. 2000). If the moving party satisfies this initial requirement, the burden then shifts to the nonmoving party to designate specific facts, supported by evidence, showing that there is a genuine issue for trial. Celotex , 477 U.S. at 324, 106 S.Ct. 2548. If the nonmovant "fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for the purposes of the motion [or] ... grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it." Fed. R. Civ. P. 56(e).
4. ANALYSIS
The Court's analysis will focus on binding law, ignoring any unhelpful and sometimes distasteful comments attempting to demean one party or the other or to pit courts against each other. For clarity, the Court's analysis will start with an overview of the substantive law, then address the parties' arguments under the three frameworks in their briefs, and finally summarize the conclusions of the analysis.
4.1 Free Speech and Qualified Right of Access Under the First Amendment
4.1.1 U.S. Protection of Free Speech
Perhaps one of the most remarkable features of American government is its robust protection of free speech. By its very terms, the First Amendment is formidable. "Congress shall make no law ... abridging the freedom of speech, or of the press ...." U.S. Const. amend. I. While it's well settled that this "unconditional phrasing ... was not intended to protect every utterance," see Roth v. United States , 354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), First Amendment protection of speech and press is very powerful.
This is particularly true concerning political speech. "Speech concerning public affairs is more than self-expression; it is the essence of self-government." Connick v. Myers , 461 U.S. 138, 145, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (alterations omitted) (quoting Garrison v. Louisiana , 379 U.S. 64, 74-75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) ). "Accordingly, the [Supreme] Court has frequently reaffirmed that speech on public issues occupies the highest rung of the [hierarchy] of First Amendment values, and is entitled to special protection." Id. (internal quotation marks omitted) (quoting NAACP v. Claiborne Hardware Co ., 458 U.S. 886, 913, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) ). The Constitution thus allows only the most minimal interference with political speech. See, e.g. , N.Y. Times Co. v. Sullivan , 376 U.S. 254, 256, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). When the interference takes the form of a "prior restraint" on speech-which refers to a court order prohibiting specific speech-the interference is even presumptively unconstitutional. See N.Y. Times Co. v. United States , 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).
Overall, freedom of speech and of the press under the U.S. Constitution is impressive in both its strength and its breadth. See In re Anonymous Online Speakers , 661 F.3d 1168, 1173 (9th Cir. 2011) (giving a brief overview of types of protected speech and levels of scrutiny); see also Texas v. Johnson , 491 U.S. 397, 406-07, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (discussing protection of expressive conduct). Many restrictions on expressive rights that might be permissible elsewhere in the world would not be tolerated under the First Amendment. See, e.g. , Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisémitisme , 433 F.3d 1199, 1234 (9th Cir. 2006) (observing that a "United States court constitutionally could not make" an order restricting speech like the French order at issue in that case, valid under French law); Jacob Foster, The Use of Foreign Law in Constitutional Interpretation: Lessons from South Africa , 45 U.S.F. L. REV. 79, 113 (2010) (noting that the Constitutional Court of South Africa expressly declined to adopt the actual malice standard from New York Times v. Sullivan , "because 'this decision represents the high-water mark of foreign jurisprudence protecting the freedom of speech and many jurisdictions have declined to follow it.' "). "For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions." Bridges v. California , 314 U.S. 252, 270, 62 S.Ct. 190, 86 L.Ed. 192 (1941).
4.1.2 Qualified Rights of Access
An important corollary of the right to free speech is the right to receive information. That right may be thought of as a shield, a negative right to be free from governmental interference. Or it may be thought of as a sword, a positive or affirmative right requiring the government to act in some circumstances. The shield here protects the right of the intended recipient of information to get that information. "Customarily, First Amendment guarantees are interposed to protect communication between speaker and listener." Richmond Newspapers v. Virginia , 448 U.S. 555, 586-87, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring in judgment). The sword allows the public to obtain information from an otherwise potentially unwilling source. The sword is the right of access. But that right is not coextensive with the First Amendment's protection of free speech.
Nor does a right of access exist only under the First Amendment. It may exist under one of at least three sources. Depending on the source, the scope and application of the resulting right may differ. Different rights of access may overlap. But no right of access is absolute. And all rights of access stem from some notion of public oversight over governmental affairs.
First, there's a common law right of access, since "the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Commc'ns , 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). That right derives from the interest of the public and the press "to keep a watchful eye" on the workings of government, but it must be balanced against other interests. See id. at 598-99, 602, 98 S.Ct. 1306.
Second, there are statutory rights of access to government records and documents, normally accompanied by exemptions. These rights may be found in both federal statutes such as the Freedom of Information Act, originally enacted in 1966 and commonly called "FOIA," and state statutes like the California Public Records Act, or "CPRA," originally enacted in 1968. These statutory rights of access embody the same sort of concerns as the common law right of access. "FOIA is often explained as a means for citizens to know what their Government is up to," reflecting "a structural necessity in a real democracy." Nat'l Archives & Records Admin. v. Favish , 541 U.S. 157, 171-72, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004). Public access laws "permit[ ] checks against the arbitrary exercise of official power and secrecy in the political process."
City of San Jose v. Super. Ct. , 2 Cal. 5th 608, 615, 214 Cal.Rptr.3d 274, 389 P.3d 848 (2017) (discussing the CPRA.) But again, the interest in public disclosure must be weighed against other privacy interests. See Favish , 541 U.S. at 171, 124 S.Ct. 1570 ; City of San Jose , 2 Cal. 5th at 615-16, 214 Cal.Rptr.3d 274, 389 P.3d 848.
Finally, there are constitutionally protected rights of access. For example, since the passage of Proposition 59 in 2004, the California Constitution expressly protects "the right of access to information concerning the conduct of the people's business." Cal. Const. art. I, § 3, subdiv. (b)(1). And the United States Supreme Court also found a qualified right of access implied in the First Amendment to the United States Constitution in Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) and its progeny. It's this First Amendment right that CNS invokes here.
4.1.3 Supreme Court Recognition of a First Amendment Right of Access
The Supreme Court has generally been reluctant to find implied affirmative constitutional rights, which may allow citizens to demand action by the government. For example, the Supreme Court stressed the difference between affirmative and negative rights in Houchins v. KQED, Inc. , 438 U.S. 1, 9, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978). Analyzing its earlier cases, the Supreme Court explained that "the Court was concerned with the freedom of the media to communicate information once it is obtained; neither case intimated that the Constitution compels the government to provide the media with information or access to it on demand." Id. (emphasis in original); see also DeShaney v. Winnebago Cty. Dep't of Soc. Servs ., 489 U.S. 189, 195-96, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (discussing affirmative obligations under the Fifth and Fourteenth Amendments and collecting cases); San Antonio Indep. Sch. Dist. v. Rodriguez , 411 U.S. 1, 35-38, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (rejecting claim to a positive right to public education under the First and Fourteenth Amendment).
It actually wasn't until 1980 that the Supreme Court recognized the existence of a constitutional right of access under the First Amendment in Richmond Newspapers , which Justice Stevens described as "a watershed case." 448 U.S. at 582, 100 S.Ct. 2814 (Stevens, J., concurring in judgment). Richmond Newspapers stated "that the right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and 'of the press could be eviscerated.' " Id. at 580, 100 S.Ct. 2814 (Burger, C.J., plurality opinion) (citation omitted). Although seven of the eight Justices who participated in the decision agreed with the result, no majority opinion emerged. Chief Justice Burger wrote for a plurality of three Justices, but there were five concurring opinions, and one dissenting, as well.
Still, the foundation of the First Amendment right to access in the "popular, yet constitutionally novel, theory of self-government" was already apparent in the plurality opinion of Chief Justice Burger, and even more so in the concurring opinion of Justice Brennan, "which was subsequently to become the actual touchstone for the new doctrine of access." See Eugene Cerruti, "Dancing in the Courthouse": The First Amendment Right of Access Opens a New Round , 29 U. RICH. L. REV. 237, 271-72 (1995). Both opinions stressed the historical and practical importance of open criminal trials. In particular, they noted the tradition of open criminal trials going back to English common law, the positive effect of open trials on the administration and fairness of the trials themselves, the importance of open trials on the appearance of fairness and justice and the resulting confidence in the justice system. See Richmond Newspapers , 448 U.S. at 569-72, 100 S.Ct. 2814 (Burger, C.J.); id. at 589-97, 100 S.Ct. 2814 (Brennan, J., concurring in judgment). But Justice Brennan's opinion placed more emphasis on the ties between right of access and the concept of self-government. Id. at 593-95, 100 S.Ct. 2814 (Brennan, J., concurring in judgment). And his opinion called for caution regarding the scope of the right of access.
However, because "the stretch of this protection is theoretically endless," it must be invoked with discrimination and temperance. For so far as the participating citizen's need for information is concerned, "[there] are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow."
Id. at 588, 100 S.Ct. 2814 (citations omitted). The First Amendment qualified right of access, and its rationales laid out in the Richmond Newspapers opinions of Chief Justice Burger and Justice Brennan, have since repeatedly been confirmed in Supreme Court decisions with majority opinions. See Press-Enterprise Co. v. Super. Ct. , 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (" Press-Enterprise II "); Globe Newspaper Co. v. Super. Ct. , 457 U.S. 596, 598, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982).
All rights of access thus stem from notions of government legitimacy and informed citizen participation in and oversight of governmental affairs. See Favish , 541 U.S. at 171-72, 124 S.Ct. 1570 ; Nixon , 435 U.S. at 598-99, 602, 98 S.Ct. 1306 ; Planet I , 750 F.3d at 785 ; City of San Jose , 2 Cal. 5th at 615, 214 Cal.Rptr.3d 274, 389 P.3d 848. Perhaps for this reason, even the First Amendment right of access covers only a specific fraction of the information that would be covered under the negative protections of the First Amendment rights to free speech and free press. The First Amendment thus still doesn't require access to all "government information or sources of information within the government's control." Houchins, 438 U.S. at 15, 98 S.Ct. 2588. If it were otherwise, FOIA's exemptions would be impermissible statutory infringements on constitutionally protected rights.
So courts have determined whether a specific qualified right of access exists using the two-part test from Press-Enterprise II , commonly referred to as the "experience and logic test." See United States v. Index Newspapers LLC , 766 F.3d 1072, 1084 (9th Cir. 2014) (citing Press-Enterprise II , 478 U.S. at 8-9, 106 S.Ct. 2735 ). This test will be discussed more later, but it draws on the same concepts of historical and practical importance mentioned in Richmond Newspapers . At bottom, it asks courts to determine whether a proposed right reflects a well developed tradition of access to a specific process, and whether it "plays a significant positive role in the functioning of the particular process in question." Press-Enterprise II , 478 U.S. at 8, 106 S.Ct. 2735.
4.1.4 Development of the First Amendment Right of Access
The development of the First Amendment right of access has happened on a right-by-right basis. So far, the Supreme Court and the Ninth Circuit have found a First Amendment right of access in the context of many criminal proceedings. See Planet I , 750 F.3d at 786 (collecting cases). Yet even in criminal matters, a right of access doesn't always attach. See, e.g. , Index Newspapers , 766 F.3d at 1084 (no right of access to, among other things, filings and transcripts relating to motions to quash grand jury subpoenas);
Times Mirror Co. v. United States, 873 F.2d 1210, 1217 (9th Cir.1989) (no right of access to pre-indictment warrants). The Ninth Circuit has also used the experience and logic test to analyze right of access claims in nonjudicial proceedings. See Planet I , 750 F.3d at 786 (citing Cal-Almond, Inc. v. U.S. Dep't of Agric., 960 F.2d 105, 109 (9th Cir.1992) ); see also Leigh v. Salazar , 677 F.3d 892, 901 (9th Cir. 2012) (remanding for the district court to perform the Press-Enterprise II test).
The specific issue of a qualified First Amendment right of access to civil complaints was first addressed in the Ninth Circuit by Planet I . Although the court acknowledged that the Ninth Circuit had "not expressly held that the First Amendment right of access encompasses civil cases," it found that CNS had "alleged a cognizable injury" under the First Amendment caused by a "denial of timely access to newly filed complaints." See 750 F.3d at 786, 788. Planet I thus established that there is a qualified First Amendment right to "timely" access to new complaints. Id.
4.1.5 Qualified Right to "Timely" Access Complaints
The Planet I panel didn't define "timely," instead remanding the case for the district court to make that determination in the first instance. Planet I , 750 F.3d at 793 ; see also Planet II , 614 Fed.Appx. at 914. But the Planet I court did provide a framework for analyzing restrictions imposed on the right of timely access. See Planet I , 750 F.3d at 793 n.9 ; Planet II , 614 Fed.Appx. at 914. Specifically, that right of access may be "overcome by an 'overriding [governmental] interest based on findings that closure is essential to preserve higher values.' " 750 F.3d at 793 n.9 (alterations in original) (citing Leigh, 677 F.3d at 898 ); see also United States v. Doe , 870 F.3d 991, 997 (9th Cir. 2017) (citing Times Mirror , 873 F.2d at 1211 n.1 ) (the recognition of a First Amendment right of access creates a strong presumption of openness, although the public may "be denied access if closure 'is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.' "). And the "delay in making the complaints available may also be analogous to a permissible 'reasonable restriction[ ] on the time, place, or manner of protected speech.' " Id. (alterations in original) (citing Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ).
To decide whether there's a genuine issue of material fact about the constitutionality of the delays in complaint access at OCSC, the Court's first task is therefore to determine the definition of "timely" access, within the framework laid out in Planet I . The parties urge the Court to determine the meaning of timeliness from one of three tests: (1) the experience and logic test from Press-Enterprise II , (2) the strict scrutiny test from Leigh , or (3) the time, place, and manner regulation from Ward . Yet although courts applying these tests have sometimes mentioned delays they found acceptable or unacceptable, the Court isn't aware of any binding case that applies any of the three tests to define "timely" access. Nor have the parties cited any. At the hearing, OCSC strongly argued that the Press-Enterprise II test was the appropriate framework for the Court's analysis, relying on California First Amendment Coalition v. Woodford , 299 F.3d 868, 871 (9th Cir. 2002). OCSC counsel said that the issue in that case and in this case was the same: Was the government required to provide access sooner than it already did? As appealing as that comparison may seem, it's not ultimately convincing for multiple reasons, including the fact that the access at issue in California First Amendment Coalition involved distinct phases of the execution process, while the access at issue here concerns the same documents, just at different times.
Accordingly, the Court discusses the application and limitations of each test in the next sections. The Court's analysis is briefly summarized as follows. When a right of access attaches under Press-Enterprise II , a presumption of openness applies. Doe , 870 F.3d at 997. But that presumption may be overcome if restrictions on access satisfy strict scrutiny. Id. Thus, if the Court were able to determine the meaning of "timely" using the Press-Enterprise II analysis, access denials beyond the point of timeliness would be valid only if they satisfy strict scrutiny. Here, though, the Court determines that the experience and logic test sufficiently establishes only what the definition of timely is not . And neither side has proposed a suitable definition. Next, because the experience and logic test doesn't resolve the meaning of timeliness, and because the Court concludes that delays in access to new complaints aren't automatically a denial of access to new complaints, strict scrutiny isn't the appropriate framework to assess the delays in this case. Finally, the Court finds that the time, place, and manner test is helpful to evaluate the delays in this case. But issues of material fact prevent the Court from fully applying that test, and generally, from finding precisely when delays may be too great to satisfy the right of timely access.
Before going further, one more observation is in order. When imposing affirmative obligations on the government in the First Amendment context, costs become more relevant in a way not sufficiently reviewed in the extensive history of defensive First Amendment rights. The relatively new right of access case law has yet to fully articulate the balance between costs and access. Still, how much it costs to provide access that didn't previously exist is a relevant consideration. See, e.g. , Barber v. Conradi , 51 F.Supp.2d 1257, 1267-68 (N.D. Ala. 1999) ; State ex rel. Williston Herald, Inc. v. O'Connell , 151 N.W.2d 758 (N.D. 1967) ; DeShaney , 489 U.S. at 196, 109 S.Ct. 998 (explaining that the government has no affirmative obligation to fund the exercise of Fourteenth Amendment rights and collecting cases). In the same vein, the budgetary restrictions and caseload of a court may factor into the analysis. Since none of these considerations are necessary to the Court's analysis on this motion, the Court puts aside these underdeveloped issues, focusing for now on the purported benefits of access rather than on the corresponding burdens.
4.2 The Experience and Logic of Timely Access to New Complaints
4.2.1 The Experience and Logic Test
Chief Justice Burger's majority opinion in Press-Enterprise II , bearing clear marks of both his and Justice Brennan's opinions in Richmond Newspapers , laid out a test to determine whether a qualified right of access attaches under the First Amendment. That test considers two distinct but interrelated elements.
First, because a tradition of accessibility implies the favorable judgment of experiences, we have considered whether the place and process have historically been open to the press and general public .... Second, in this setting the Court has traditionally considered whether public access plays a significant positive role in the functioning of the particular process in question.
478 U.S. at 8, 106 S.Ct. 2735. Over time, the Ninth Circuit has adopted a more flexible approach to experience and logic. While courts generally still assess both prongs of the Press-Enterprise II test, the Ninth Circuit has also been willing to find a right of access based on the logic prong alone. See In re Copley Press, Inc. , 518 F.3d 1022, 1026 (9th Cir. 2008) ; Seattle Times Co. v. U.S. Dist. Court, 845 F.2d 1513, 1516-17 (9th Cir. 1988) ; Phoenix Newspapers, Inc. v. U.S. Dist. Court, 156 F.3d 940, 948 (9th Cir. 1998). Relying on dicta from a footnote in Copley Press , CNS contends that, in the same way, a tradition of accessibility is enough to find a First Amendment right of access in this Circuit. (Opp'n, Dkt. No. 83 at 12.) The Court disagrees. Since no Ninth Circuit court has found a right of access based on tradition alone, CNS's contention reflects at best its opinion regarding how Ninth Circuit jurisprudence might evolve. Meanwhile, more recent dicta from an October 2017 decision suggests that tradition may actually have a smaller role to play with the right of access to e-filings.
There are substantial similarities between the documents at issue in this case and the documents to which a qualified First Amendment right of access attaches pursuant to our holdings in CBS [Inc. v. United States Dist. Court for Cent. Dist. , 765 F.2d 823 (9th Cir. 1985) ] and Copley Press . On the other hand, when we decided CBS and Copley Press , electronic filing had not made court documents so easily accessible, nor had the CCACM [Committee on Court Administration and Case Management of the Judicial Conference of the United States] released its report finding that new inmates are often required by other prisoners to produce copies of their case dockets to prove they did not cooperate with the government ....
The CCACM Report highlights the grave threats faced by defendants who cooperate with the government in the era of remote electronic access to court files ....
Doe , 870 F.3d at 997, 1002 (9th Cir. 2017). Regardless, the scope of the First Amendment right of access is a question of law. Id. at 996 (citing Index Newspapers , 766 F.3d at 1081 ). And the Court finds that, under any conceivable version of the experience and logic test, timely access to new complaints neither requires access upon receipt nor allows indefinite processing by the clerk's office.
4.2.2 Insufficient Experience of Same-Day Access to New Complaints
The "experience" prong of the Press-Enterprise II test requires a strong tradition over time and throughout the country. Following the relevant case law, the Court uses "experience" and "tradition" interchangeably. The Supreme Court has taken a firm position regarding the geographical scope of experience, reminding courts to "not look to the particular practice of any one jurisdiction, but instead to the experience in that type or kind of hearing throughout the United States." El Vocero de P.R. v. Puerto Rico , 508 U.S. 147, 150, 113 S.Ct. 2004, 124 L.Ed.2d 60 (1993) (third emphasis added) (citation omitted). And while courts don't require a minimum time of experience, the notion of tradition inherently requires a historically lasting practice. See Del. Coal. for Open Gov't, Inc. v. Strine , 733 F.3d 510, 515 (3d Cir. 2013) (considering whether there's a "strong" tradition showing that proceedings have "historically been open"); Detroit Free Press v. Ashcroft , 303 F.3d 681, 701 (6th Cir. 2002) (requiring a "historical tradition of at least some duration"). But however long it takes for a tradition to be born, the Court concludes that there isn't enough evidence of a widespread practice of granting immediate access to new complaints throughout the United States.
To start, CNS's evidence doesn't concern practices throughout the United States. CNS's argument about the extent of same-day access in the nation relies on its "Additional Material Facts" (or "AMFs") 226 through 230. (Opp'n, Dkt.
No. 83 at 9.) Those material facts, in turn, cite CNS reporter declarations. (Dkt. No. 85 at 64-66; see also Dkt. Nos. 12-12-3.) By the Court's count, the evidence CNS cites concerns only 25 states. (See Dkt. No. 85 at 64-66.) CNS thus hasn't submitted any evidence regarding the other half of the states in the Union, such as Arizona, Colorado, Delaware, Florida, Indiana, Maryland, Mississippi, North Carolina, South Carolina. Nor does CNS's evidence cover the District of Columbia or any territories. For the 25 states CNS does mention, CNS submits evidence about only a handful of any state's courts of first instance. Further, CNS's evidence concerns only federal courts in three states, and only state courts in four others.
What's missing from CNS's evidence is particularly telling here. After all, CNS itself publicly claims that it "provides coverage of more than 2,000 courts around the country, spanning all 50 states." About Us , COURTHOUSE NEWS , https://www.courthousenews.com/about-us/[https://bit.ly/2nYP4EZ] (last visited May 7, 2018). (See also Girdner Decl., Dkt. No. 86 at ¶ 5.) Evidence of a nationwide practice, if it existed, should therefore be readily available to CNS.
In fact, a closer look at CNS reporter declarations reveals a mixed experience of access to new complaints. Two examples illustrate this point well. First, CNS reporter Sergio Lopez, describing his experience at the San Diego Superior Court, stated that, "the great majority of complaints that I see are at least one day old, and a substantial number of complaints are two days old or older. On average, I receive same-day access to only about one-quarter of new civil unlimited jurisdiction complaints." (Ex. 9, Dkt. No. 12 at ¶ 16.) Second, another CNS reporter, David Lee, said that in the six months before his declaration, he had only "been able to see approximately half of the new civil petitions on the same day they are received by the court for filing" at the Dallas State Court. (Ex. 18, Dkt. No. 12-1 at ¶ 16.) AMFs 226 through 230 don't cite to these portions of the declarations. And Texas is actually one of the three states whose federal courts, but not state courts, CNS relies on to support its experience argument. (See AMF 226, Dkt. No. 85 at 64; AMF 230, Dkt. No. 85 at 66.) So aside from highlighting the limits of the experience CNS discusses, these two examples further suggest that the omissions in CNS's court survey were deliberate, and that over half the country doesn't provide the type of access CNS seeks. The Court therefore finds no tradition of same-day access to new complaints.
4.2.3 Unconvincing "Logic" of Same-Day Access to New Complaints
Moving on to the next prong of the Press-Enterprise II test, CNS's claimed logic of access upon receipt is easily dismissed. Indeed CNS seems to disregard, or at least fails to acknowledge, the fact that the term "logic" is a shorthand for the issue of "whether public access plays a significant positive role in the functioning of the particular process in question." See Index Newspapers LLC , 766 F.3d at 1084 (citing Press-Enterprise II , 478 U.S. at 8-9, 106 S.Ct. 2735 ). More importantly, CNS hasn't presented evidence or made arguments to show that access to complaints upon receipt plays a significant positive role in the functioning of any aspect of the judicial process. Nor is any such role apparent to the Court. The Court's analysis could therefore end here.
But, mindful of the interest in openness central to this case, the Court will say a few words about the arguments that CNS does make in its logic section. In CNS's view, three interests justify access to new complaints upon receipt: (1) newsworthiness, (2) accuracy of reporting, and (3)
informed public discussion about potentially important complaints. (See Opp'n, Dkt. No. 83 at 13-14; AMFs 33-37, Dkt. No. 85 at 16-18.)
First , CNS's main argument for a right of access upon receipt concerns the newsworthiness of stories about new complaints. (See Dkt. No. 83 at 13-14; Dkt. No. 112 at 2-3, 7.) But newsworthiness has no effect on whether or when a right of access attaches. CNS cites some opinions that mention both a right of access and the value of timely reporting, but those opinions consider the interests of the public and the press in contemporaneous access only after determining that a right of access attaches. See, e.g. , Co. Doe v. Pub. Citizen , 749 F.3d 246, 272 (4th Cir. 2014) ; Lugosch v. Pyramid Co. , 435 F.3d 110, 126 (2d Cir. 2006) ; Cal. First Amendment Coal. , 299 F.3d at 871, 877 ; Grove Fresh Distribs. v. Everfresh Juice Co. , 24 F.3d 893, 896-97 (7th Cir. 1994). Other authority cited doesn't involve the First Amendment right of access at all. For example, CNS's amici cite cases involving First Amendment negative rights, like Elrod v. Burns , 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). (Brief for The Reporters Committee for Freedom of the Press et al. as Amici Curiae Supporting Plaintiff, Dkt. No 41-1 at 8-9) (hereinafter RCFP Amici Br.) Even more distinguishable from the present case, some of CNS's authority enshrines the value of timely reporting in the context of prior restraints imposed on the press. See Neb. Press Ass'n v. Stuart , 427 U.S. 539, 609, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (Brennan, J., concurring). But as already explained, First Amendment negative rights are much broader than the affirmative right of access, and nowhere are they broader than where prior restraints are involved. Indeed, while Justice Brennan recognized sweeping protections to the rights of the press in Nebraska Press , it was also he who called for restraint in evaluating the existence of a right of access in Richmond Newspapers . Compare Richmond Newspapers , 448 U.S. at 588, 100 S.Ct. 2814, with Neb. Press Ass'n , 427 U.S. at 609, 96 S.Ct. 2791. Further, while newsworthiness is an important interest for the First Amendment's protection of the free press as a shield, it's not inherently relevant to the functioning of civil lawsuits, especially before there are ongoing proceedings. And neither CNS nor its amici have shown that newsworthiness is relevant to the functioning of civil lawsuits here. In fact, CNS and its amici haven't shown that there's a strong sense of urgency in reporting about complaints at all. But more on that later.
Second , CNS mentions accuracy of reporting as an interest to support its position. (Opp'n, Dkt. No. 83 at 13.) This asserted interest is further developed in CNS's amici brief and additional material facts. (See RCFP Amici Br., Dkt. No 41-1 at 9-10; AMFs 33 & 36, Dkt. No. 85 at 16-17.) Like newsworthiness, accuracy of reporting is insufficient to recognize the existence of a right of access. Still, the Court naturally agrees that information directly from the source is more reliable than second-hand information. (See RCFP Amici Br., Dkt. No 41-1 at 9-10.) But when the source is a complaint, the Court isn't convinced that the source itself is necessarily very reliable. The fact that "complaints are at least bound by rules of civil procedure" and the hope that they're "confined to the factual and legal issues involved" does little to improve the trustworthiness of complaints, as the Court knows only too well. (See Drechsel Decl., Dkt. No. 12, Ex. 8 at ¶ 27.) Just as unpersuasive is the argument that, "Immediately [sic] knowledge of a complaint also means a journalist will have the opportunity to seek out a response from the defendant even before any legal answer is filed, adding vital balance and completeness from the outset." (See id. ) Even if raw reactions of defendants that just heard they're being sued might bring "balance" to public discussions, they could just as easily inject unnecessary confusion or animosity into those discussions.
It also hasn't escaped the Court's attention that there's nothing to support CNS's asserted concerns about accuracy, information manipulation, or bias. (See, e.g. , Girdner Decl., Dkt. No. 86 at ¶¶ 55-56, 59; Drechsel Decl., Dkt. No. 12, Ex. 8 at ¶¶ 27-28.) To the contrary, all that CNS's evidence on this matter shows is discontent with not being the first to report, with missing an exclusive, or with receiving subscriber complaints. (See, e.g. , Girdner Decl., Dkt. No. 86 at ¶¶ 51, 56-58 & Exs. 4-6; Frez Decl., Dkt. No. 12, Ex. 9 at ¶ 17.) For example, CNS relies heavily on the Miller lawsuit against Knott's Berry Farm over the safety of its log water ride. (See Girdner Decl., Dkt. No. 86 at ¶ 57 & Ex. 4.) Let's assume for now that the statements in the Girdner declaration about that lawsuit were entirely admissible. Still, CNS's own evidence shows that CNS's problem with the coverage of the Miller lawsuit is really that the Los Angeles Times "beat its rival of old" (the Orange County Register) and CNS itself to the story. (See id. at ¶ 58 & Exs. 4-6.) In the same vein, CNS reporter Sergio Frez's declaration brings up the delays CNS experienced accessing a complaint tied to the suicide of a professional football player. (Frez Decl., Dkt. No. 12, Ex. 9 at ¶ 17.) Again, let's assume that Frez's declaration is entirely admissible for now. In it, Frez laments that, "Although the complaint was received for filing on January 23, 2013 at 3:27 p.m., it was not made available by San Diego Superior for media review until about noon the next day, January 24, after it had already been reported by local television and radio stations." (Id. ) All in all, lack of same-day access to new complaints hasn't had any verifiable impact on accuracy in reporting-although it may affect a "lawyer's ability to advise clients about new litigation in a timely manner." (See Girdner Decl., Dkt. No. 86 at ¶ 55.)
Third , CNS contends that a right of access on receipt promotes informed public discussion about potentially important complaints. The First Amendment right of access unquestionably serves to protect the "free discussion of governmental affairs," and reporting on complaints may assist in the "informed public discussion of ongoing judicial proceedings." See Planet I , 750 F.3d at 787. But what's not apparent is how immediate reporting on complaints benefits the judicial process or the discussion of governmental affairs.
To start, a complaint is not in itself a judicial proceeding. CNS asserts that "the filing of new complaints have [sic] long been treated as a 'judicial proceeding,' " relying on Campbell v. N.Y. Evening Post, Inc. , 245 N.Y. 320, 157 N.E. 153 (1927). (Dkt. No. 112 at 6.) But the position of the court in Campbell was actually too nuanced to support CNS's assertion. The Campbell court explained that when pleadings are filed, "they become public documents ," because a "law suit from beginning to end is in the nature of a judicial proceeding." 245 N.Y. at 326, 157 N.E. 153 (emphasis added). The court thus upheld a claim of privilege "on the ground that the filing of a pleading is a public and official act in the course of judicial proceedings." Id. at 328, 157 N.E. 153. But judicial proceedings are ultimately proceedings that actively involve the courts.
Yet when a complaint is first submitted, courts have no immediate role to play unless the complaint is accompanied by some specific request, like a temporary restraining order. Put differently, the courts aren't acting as "umpires," let alone "lawmakers" in "a coordinate branch of government " upon submission of a complaint. See Richmond Newspapers , 448 U.S. at 595, 100 S.Ct. 2814 (Brennan, J., concurring in judgment) (emphasis in original). At that point therefore, there aren't really any "governmental affairs" to discuss. See Planet I , 750 F.3d at 787 (citing Globe Newspaper Co. , 457 U.S. at 604, 102 S.Ct. 2613 ). Complaints may deal with important issues like health, safety, or indeed, government. And the public may have a legitimate interest in learning about the allegations in those complaints as soon as possible. But the public's interest doesn't transform a complaint into a judicial proceeding. After all, a quick glance at the wide variety of publications by the checkout register at any supermarket is enough to show that the public's interest may be boundless. And as will be discussed more later, the Court isn't convinced that access to complaints is imperative for the public to learn about important claims anyway.
Still, complaints are critical to the judicial process in many ways. Whether a complaint serves as the impetus for important litigation or is voluntarily dismissed before any real action occurs, there is important information to learn from complaints. But the significance of a complaint develops after its submission. Thus the interest in "informed public discussion of ongoing judicial proceedings" isn't triggered by the mere submission of a complaint to a court. See Planet I , 750 F.3d at 787.
Overall, the most effective way to illustrate the weakness of CNS's third argument is likely with CNS's Orange County Reports. After all, those reports, which are "emailed each weekday evening to about 275 subscribers," are where CNS features its daily coverage of new OCSC complaints. (See Dkt. No. 85 at 6; Dkt. No. 86 at ¶ 7.) And CNS has conveniently submitted "[t]rue and correct copies of representative examples of Orange County Reports from 2017." (Mendoza Decl., Dkt. No. 88 at ¶ 4 & Ex. 1) The reports begin with an introductory paragraph mentioning the readers' "firm," confirming that CNS's audience is lawyers rather than the public at large. More importantly, the reports lack much of the information required for informed discussion of ongoing judicial proceedings among any members of public, even lawyers. Each entry includes the parties' name, the date of filing, the case number, and counsel's name if any. But the descriptions of the cases are often very short, sometimes so short that it's unclear what reading the complaint contributed to the report. The most detailed entries describe a case in a few lines, sometimes even with a link to the complaint. But others look more like this case description: "Collections. Defendants owe $692,000 for goods." (Mendoza Decl., Dkt. No. 88, Ex. 1 at 24.) And often, the case description is just a word or two: "car collision," "unlawful detainer," or "employment." (See, e.g. , id. at 24-25, 30, 42-43, 52.) So it's hard to see CNS's lofty First Amendment arguments in its Orange County Reports. What's apparent is something else.
Lawyers in private firms are likely very familiar with reports like the Orange County Reports, and know that their firms don't subscribe to them to foster an "informed public discussion of ongoing judicial proceedings." See Planet I , 750 F.3d at 787. They subscribe to find out who's being sued so they can get new clients. It's a very profitable business, but it's also time-sensitive. The first contact with the new defendant often has the advantage. It is of course beyond dispute that the profit motives of a news organization don't diminish its positive First Amendment rights. See, e.g. , Harte-Hanks Commc'ns v. Connaughton , 491 U.S. 657, 667, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) ; Pittsburgh Press Co. v. Pittsburgh Com. on Human Relations , 413 U.S. 376, 385, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973) ;
Sullivan , 376 U.S. at 265-66, 84 S.Ct. 710. Right of access cases likewise are clear that the right is the same for the general public and the press, despite any profit motive in reporting on judicial proceedings. "By reporting about the government, the media are 'surrogates for the public .' " Leigh , 677 F.3d at 900 (emphasis added) (quoting Richmond Newspapers , 448 U.S. at 573, 100 S.Ct. 2814 ). Does it matter, then, if an organization seeks a right of access not to disseminate information on the functioning of government to the general public, but to share revenue-generating data with a select few? The answer is probably no-unless, as here, there's no evidence that the right of access sought also meaningfully promotes the free discussion of governmental affairs. See Planet I , 750 F.3d at 787. At heart, the "logic" prong of the Press-Enterprise II test and the right of access itself are decidedly about the benefits of public involvement in government.
To sum up, access to new complaints upon receipt doesn't play a significant positive role in civil proceedings. Some members of the public could undoubtedly personally benefit from learning about complaints immediately. And any resulting public discussion about new complaints would likely be entitled to sturdy protection as political speech. But the right of access exists to protect specific interests, and same-day access to new complaints doesn't involve those interests.
4.2.4 Meaningless Experience and Logic of Ac