National Newspaper Association joins request for openness at US Supreme Court

January 1, 2020

National Newspaper Association has joined the Reporters Committee for Freedom of the Press, National Public Radio and 50 other media organizations to urge the U.S. Supreme Court to put tighter limits on sealed court records.

In a letter to Chief Justice John Roberts this week, the organizations pointed out a dramatic increase in the Court’s approving requests to seal documents before the Court, which rose from an average of 22 each year from 2011 to 2016 to 46 in 2018. Sealed records were rare in the 20th century and in the first part of the 21st century averaged only 10 per year, the media groups said.

“The (organizations) acknowledge that compelling, countervailing interests — supported by on-the-record findings — sometimes necessitate sealing. But a review of recent sealing motions filed with the Court suggests that the increase in sealing is not tied to any concomitant increase in cases in which sealing may be warranted. Rather, motions to seal filed by practitioners often provide no justification for the requested secrecy other than that portions of the case file were sealed below,” the letter said. A particular concern about the sealing of records in capital cases had led to NPR and the Reporters Committee’s intervention in individual cases in the past, urging the opening of records.

“There is a strong, laudable tradition of public access to the Court’s proceedings and records,” the groups said. “You have appropriately referred to the judicial branch as ‘the most transparent branch in government.’ Your predecessor, Chief Justice William Rehnquist, wrote that ‘all of the business of the Supreme Court of the United States comes in the front door and leaves by the same door.’ Adoption of a Supreme Court rule addressing sealing would be consistent with—and demonstrate to the public the Court’s ongoing commitment to—these long-held ideals.”

The letter proposes a new court rule that would require petitioners to identify a compelling interest to be furthered by the sealing, demonstrate that the request is narrow and state the time period for the sealing, among other things. RCFP and NPR has previously requested a new rule, but the Court said that a general federal policy discouraging document sealing by federal courts was expected to deter a rise in such requests. It has not done so, the organizations assert.

National Newspaper Association President Matthew Adelman, publisher of the Douglas (Wyoming) Budget, thanked the Reporters Committee for organizing the petition to the court and said ensuring openness at all levels of government should be the driving force for all media organizations.

“All of our government bodies — even the courts — work at the consent of the people and on the public’s funds,” he said. "We have to be able to trust in the integrity of each of these, whether legislative, executive or judicial. The court’s wisdom in the Richmond Newspapers case, which re-opened trials all over the U.S. after a period where attorneys were attempting to close them, still holds true today: ‘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.’

“We urge the court to accept the media organizations’ recommendation to crack down on an epidemic of secret court filings. The traditions of the First Amendment require greater discipline in this area,” Adelman said.

Tonda Rush is the director of public policy and serves as general counsel to the National Newspaper Association. Email her at tonda@nna.org.

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