For lawyers who specialize in helping clients suppress information that could prove embarrassing or worse, several recent developments just made their job a lot harder -- which is, of course, a good thing from the standpoint of the public interest.
Last week, a federal judge in California was persuaded to lift a protective order that had barred public access to police videos showing Gardena City police fatally shooting an unarmed young man. The judge, in a civil rights suit brought by the victim's family, had sealed this evidence two years ago at the request of both the family and the Gardena Police Department. The sealing paved the way for a settlement in which Gardena paid $4.7 million to the family.
A federal appellate judge quickly issued an order to block release of the videos (pending Gardena's appeal), but the order came too late. The LA Times, one of several media organizations that sought the unsealing of the police videos, had already posted them on its website (you can view them here). The newspaper knew that by publishing the videos before a court could intervene, it would avoid having to choose between publishing and being held in contempt.
Meanwhile, across the country, comedian Bill Cosby's denouement unfolded in a federal court in Pennsylvania. First, the Associated Press successfully petitioned a federal judge to unseal legal documents in a 10-year-old lawsuit filed by a young woman claiming that Cosby had drugged her and then assaulted her sexually. The legal documents contained an excerpt of a deposition ten years ago in which Cosby appeared to acknowledge purchasing quaaludes for use in his signature seductions.
Days later The New York Times published a front-page story quoting extensively from the full deposition transcript -- the same transcript from which the unsealed document had drawn the quaaludes excerpt. The NY Times and its lawyers had figured out that, while the revised protective order continued to apply to other documents in the record, the full deposition transcript wasn't in the court's record.
Where was it? Cosby's lawyers presumably had a copy, but they weren't about to cooperate with the media. Ditto for the woman suing Cosby; her settlement certainly would have included a strict non-disclosure agreement. The NY Times says it obtained its copy from the court reporter who recorded the deposition. The court reporter, it turns out, was not among the parties, lawyers, court employees and others named in the protective order.
In both the Gardena and Cosby cases, the parties had negotiated settlement terms based on the assumption that the highly sensitive evidence -- videos in the Gardena case and a transcript in the Cosby case-would remain forever secret. For plaintiffs, the willingness to agree to secrecy was their leverage to negotiate a favorable settlement ($4.7 million in the Gardena case; an unknown, but no doubt substantial, payment in the Cosby case). For Cosby and the Gardena PD, securing a pledge of secrecy was the overriding objective in settling.
And they had every reason to think the secrecy arrangements were air-tight. In addition to secrecy terms in the settlements, they had obtained judicial approval for protective orders. Case closed; evidence sealed under lock and key.
But... But... The lawyers may not have fully taken into account the First Amendment, which provides a right of access to judicial records (and also judicial proceedings). Although it's true that litigants, in settling a case, are generally free to agree between themselves that they won't assert certain rights, including even constitutional rights, the First Amendment right of access doesn't belong to the settling parties. It belongs to the public.
That means that no matter how big the word "FINAL" on an agreement to settle a case, an agreement is not really final. Not when suppression of information is part of the deal. The possibility always remains, even years later, that a news organization or citizen activist will walk into court and request, on the basis of the First Amendment, disclosure of the very information that the parties thought they had irrevocably sealed.
Two cases are not a trend. Nonetheless, look for more journalists to use the First Amendment as a tool to disinter records in long-settled court cases involving allegations of misconduct by prominent individuals or institutions. The upshot: legal settlements as a device for suppressing sensitive information will be fewer, while public access to the information will be greater, sooner.
Peter Scheer, a lawyer, is executive director of the First Amendment Coalition. The views expressed here do not necessarily reflect the views of FAC's Board of Directors