The Associated Press on Tuesday sued the Administrative Office of the United States Courts on the grounds that Federal Rule of Civil Procedure 5.2(c) violates the First Amendment to the US Constitution.
Under Rule 5.2(c)Restricts “remote access to electronic files” in a lawsuit involving “an order of deportation” or “immigration benefits or detention,” among other things. The parties and their attorneys may have access to any part of the case file, but others may only have access to the file maintained by the court and not any other part of the case file or administrative files. To view the full filing, members of the public must visit the courthouse to access the documents. Fees may apply to obtain copies.
The AP claims the rule violates the First Amendment by: a Content restriction to the speech: “Restricting access to files based solely on the subject matter of the case – most relevant here: immigration.” Substantive restrictions on speech are strongly opposed to the First Amendment and are subject to the provisions of the First Amendment strict controlthe most demanding standard of judicial review.
In its complaint, the AP describes several accounts of trips to various courthouses across the country to pay for individual documents. In one scenario, an AP reporter had to pay 50 cents per printed page, which was five times the cost of accessing the documents electronically through public access to electronic court records (PACEMAKER).
The AP also argues that immigration habeas records are subject to a qualified First Amendment right of access in accordance with the established framework Press-Enterprise Co. v. Superior Court. In this context, courts consider whether the nature of the proceedings or records was historically accessible to the public and whether public access plays a significant positive role in the process. If there is a right to information, access may only be restricted if this is necessary to protect an overriding interest and the restriction is closely tailored to this interest. The AP contends that Rule 5.2(c) cannot meet this standard.
The AP emphasizes that the rule “blocks PACER’s immediate access to records in immigration cases” and argues that the rule prevents news organizations from promptly reporting on significant immigration detention cases and making them available to the public. According to the AP, an inmate may also want their records made public, especially if that person is facing mistreatment.
The AP has requested that the court declare that Rule 5.2(c) violates the First Amendment and direct the Administrative Office of the U.S. Courts to enforce the rule in any action or proceeding involving a deportation order, deportation notice or immigration benefits, or detention.
