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Another Decision Against Sealing Records in Libel Cases

From Judge Harold L. Murphy’s decision in Holmes v. Grambling, 2014 WL 12905012 (N.D. Ga.), decided in 2014 but just added to Westlaw:

“‘The operations of the courts and the judicial conduct of judges are matters of utmost public concern.'” “The common-law right of access to judicial proceedings, an essential component of our system of justice, is instrumental in securing the integrity of the process.” This right “includes the right to inspect and copy public records and documents.” …

Plaintiffs seek to keep this case completely under seal in order to prevent Defendant’s defamatory statements from becoming public again through public access to the court records. Plaintiff specifically worries about the quoted statements contained in Plaintiff’s Amended Complaint and Second Amended Complaint. Indeed, these statements contain offensive language, touch on personal, intimate matters of Plaintiff’s life, discuss Plaintiff’s minor daughter, and accuse Plaintiff of a variety of unethical and likely criminal conduct. Plaintiff contends that if these accusations were spread around it would be injurious to her personal and professional reputation….

The logical conclusion of Plaintiff’s argument is that whenever someone sues for defamation because of potentially embarrassing comments, the plaintiff should be allowed to sue anonymously and with the case under seal. Neither Plaintiff’s Brief nor the Court’s own research indicates that there is any such rule….

Plaintiff alleges that Defendant’s defamatory statements have caused her great harm and been seen by her family, acquaintances, business partners, potential clients, and others. Plaintiff fails to demonstrate what additional harm will occur by allowing public access to those statements in the court record, in the context of Plaintiff’s Complaint, and in a forum where Plaintiff has had the opportunity to respond to the statements….

I think this result is quite right, as I’ve argued before (both on the blog and in court, see, e.g., Parson v. Farley): When judges are asked to restrict parties’ liberty, take away their property, and (in libel cases) punish their speech, the public needs to be able to monitor what the judges do and what arguments are being made to them.

Indeed, libel law has long recognized this principle: Though quoting someone’s libelous accusations is itself often libelous, the “fair comment” privilege provides an exception for quoting accusations made in a court proceeding:

[T]he privilege acts as a supervisory function which recognizes both the public’s duty to scrutinize official conduct and the security which publicity gives to the proper administration of justice.

Open access to court records serves the same functions; in Justice Holmes’ oft-repeated words,

It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

Some parts of the Holmes v. Grambling court’s analysis strike me as not quite apt: For instance, the court notes that “There is not extensive media coverage of this case” as a factor in favor of refusing to seal it, but while more media coverage might lead to more embarrassment to the plaintiff, it would also show that there is extra public interest in what the court is doing. But in any event, I thought I’d pass along this opinion, since it’s one of the relatively few that discuss sealing specifically in libel cases.

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About The Author

Eugene Volokh

Founded in 1968, Reason is the magazine of free minds and free markets. We produce hard-hitting independent journalism on civil liberties, politics, technology, culture, policy, and commerce. Reason exists outside of the left/right echo chamber. Our goal is to deliver fresh, unbiased information and insights to our readers, viewers, and listeners every day. Visit

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