Vermont's lawsuit screening process violated the First Amendment

The Court of Appeals holds that state court system in Vermont violated the First Amendment in delaying public and media review of new lawsuits. The reason for the delay was that the clerk's office needed time to review the complaints to ensure they did not include Social Security numbers and identifying information.

The case is Courthouse New Service v. Corsones, issued on March 11. I guess the clerk's office in Vermont meant well; the pre-screening was intended to prevent fraud associated with the inadvertent release of personal information. Once that information was removed or redacted, then the media could review the new lawsuits. The trial court held, following an evidentiary hearing, that this process violated the First Amendment right of access to judicial documents. However, in affirming this ruling, the Court of Appeals adds a nuance: the State of Vermont is still legally able to forbid some review of complaints before they are released to the public, depending on the sensitivity of the information in the complaint.

The Court of Appeals (Leval and Chin, with Sullivan in dissent) reminds us that the First Amendment protects the right of access to complaints filed in court. While the Court holds that guarding against the release of sensitive information protects a "higher value" under the First Amendment, the problem is how Vermont went about doing things. The process in Vermont is not narrowly tailored, the Second Circuit holds. Narrow tailoring is a First Amendment concept. It ensures that governmental practices that have potential to infringe First Amendment rights requires careful application, or what we call "narrowly tailoring." 

The Second Circuit holds that, on the evidentiary record developed at trial, that "Vermont has failed to demonstrate that the delays it imposed . . . could not have been reasonably shortened to a significant degree without impairing the higher value sought to to be protected." For one thing, some complaints were not made available to the public right away not because they contained Social Security numbers but because they did not comply with the technical requirements imposed by the clerk's office. Another reason for some of the delays is the clerk's office was looking for attorney notes that somehow found their way into the filed complaints; these notes would not contain confidential information but just careless notes the lawyer forgot to omit from the final version. Put another way, the delay in publicly releasing the complaints sometimes flowed from considerations that do not rise to the level of the "higher values" that might justify a brief delay.