Reporters Committee asks Supreme Court to clarify high standard for sealing entire cases, dockets

The Reporters Committee for Freedom of the Press has asked the U.S. Supreme Court to hear a case involving a 12-year, blanket sealing order in a criminal case alleging organized crime, racketeering, conspiracy and fraud.

In United States v. Roe, the U.S. Court of Appeals in New York (2nd Cir.) found last year that a court order prohibiting a lawyer from disseminating sealed court records involved in the prosecution of John Doe, an unnamed businessman turned government cooperator, did not violate the attorney’s First Amendment rights.

A lower court entered the order after the lawyer attached the documents, which were sealed after Doe pleaded guilty in 1998, to a civil racketeering lawsuit the attorney brought against Doe, alleging that he bilked real-estate investors out of millions of dollars.

In addition to sealing specific documents related to Doe’s cooperation, plea agreement and sentencing, the presiding judge shielded the entire case from public view such that a search for the case on that court’s docket yielded, for more than 12 years, only a statement that “this case is under seal.”

The lawyer, referred to as Richard Roe in all court proceedings and documents, asked the Supreme Court to review the case and reverse the Second Circuit’s order.

The Reporters Committee’s friend-of-the-court brief in support of Roe’s request argues that sealing entire case files and wholly omitting cases from the public docket violate the First Amendment-based right of access to judicial proceedings and records. It urged the Court to hear the case to clarify the high standard by which lower courts may invoke their authority to permit such secrecy.

The Reporters Committee “recognizes that various interests, including the need to protect national security information and undercover officers or witnesses in law enforcement investigations, may justify closed proceedings and sealed records in certain circumstances. They do not, however, generally justify complete docket secrecy, particularly when the interests at stake have not been properly articulated and balanced by the reviewing court,” the brief stated.

Review by the Supreme Court is particularly important because anecdotal evidence suggests that the blanket sealing order adopted by the lower court in the case at issue is not an anomaly but rather part of a disturbing larger trend, according to the brief.

About the Reporters Committee for Freedom of the Press:

Founded in 1970, the Reporters Committee for Freedom of the Press offers free legal support to thousands of working journalists and media lawyers each year. It is a leader in the fight against persistent efforts by government officials to impede the release of public information, whether by withholding documents or threatening reporters with jail. In addition to its 24/7 Legal Defense Hotline, the Reporters Committee conducts cutting-edge legal research, publishes handbooks and guides on media law issues, files frequent friend-of-the-court legal briefs and offers challenging fellowships and internships for young lawyers and journalists. For more information, go to www.rcfp.org, or follow us on Twitter @rcfp.

Related Reporters Committee resources:

· Secret Justice: Secret Dockets

· NM&L: Disappearing dockets