The court system in this country is supposed to be open to the public. That’s a core principle, codified in the First Amendment and centuries of common law. Yet American corporations constantly push to restrict access to court records. Once in a while, media organizations or public interest groups get involved and orders to seal turn into First Amendment blowouts, but those cases are increasingly likely to be exceptions. Far more often, no one stands up in opposition when a corporation asks to seal or redact court filings.
A summary judgment opinion issued Wednesday in a Federal Trade Commission case against Amazon is the latest example of what these routine deletions cost the public. As my Reuters colleagues Diane Bartz and Dan Levine reported, U.S. District Judge John Coughenour of Seattle determined that Amazon is liable to the parents of children who bought items like “a boatload of doughnuts, a can of stars, and bars of gold” while playing supposedly free apps.
Later in the case, when both sides filed motions for summary judgment, Amazon and the FTC each asked the judge to keep some accompanying exhibits confidential. Both requests involved material Amazon wanted to keep under wraps; the FTC doesn’t seem to have protested Amazon’s assertion that internal corporate memos cited in the government’s summary judgment brief should be sealed. Judge Coughenour’s sealing orders duly noted the presumption of public access but nevertheless granted the Amazon and FTC confidentiality motions. Corporate “strategic planning and financial information,” he said, is “of a sensitive enough nature that it outweighs the de minimus public interest in access.”
The Knight Foundation reported earlier this month that the journalism industry is too financially strapped to lead the First Amendment fight for access to court records. Public interest groups also have limited resources. That leaves judges as the guardians of the public’s right to know – a burden too many judges shrug off.
