Media Law Handbook

Court Access


8. How should a reporter respond to a court order limiting access to court proceedings?
7. Can you publish a sealed document?

6. When can a judge seal a court file?

As discussed above, it is generally undisputed that, like court proceedings, court records are presumptively open to the public and news media.  This is not to say, however, that all testimony and documents will necessarily become public.  

Courts may, where good cause is demonstrated, issue orders (1) that evidence be received by the court only on the condition that it be “sealed,” i.e., made unavailable to the press or public; (2) that information acquired during a lawsuit by parties or their lawyers not be disclosed; or (3) that confidentiality agreements entered into by parties in connection with the settlement of legal disputes be enforced.  To some extent, all of these actions impinge upon the free flow of information to the public and, thus, upon the First Amendment.  The justification for the existence of such mechanisms is the government’s interest in the effective operation of the court system.  Rule 26(c) of the N.C. Rules of Civil Procedure and its federal counterpart state that courts are empowered to “make any order that justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, or undue burden or expense.”[71]  

Constitutionally, whether a court can order a court file sealed is arguably governed by the same standard concerning courtroom closure orders discussed earlier in this chapter.  That is, under the First Amendment, which controls in both federal and state courts, a judge must find that sealing a certain document is absolutely necessary to protect a “compelling” governmental interest; that no less restrictive measure short of sealing the document will suffice to protect that interest; and that the order is “narrowly tailored” so that its scope is as limited as possible.[72] 

As detailed above, at least with respect to state court civil proceedings, the public also has a statutory means of demanding access to judicial records and obtaining a prompt hearing from the court when access is denied.[73]

In addition to statutory and First Amendment arguments against sealing judicial records, the news media can also assert a common law right of access.  In Nixon v. Warner Communications,[74]  the U.S. Supreme Court recognized a common law right to inspect and copy judicial records and documents.  However, this right of access to court records is not absolute.  A judge has the discretion to seal documents if the public’s right of access is outweighed by competing interests.[75]  In federal courts located in the Fourth Circuit, it is well established that prior to entering an order sealing documents, the court must (1) give the public notice of any request to seal a document and a reasonable opportunity to challenge it; (2) consider less restrictive alternatives to sealing; and (3) if a decision is made to seal a document, articulate its reasons supported by specific factual findings and the reasons for rejecting alternatives to sealing.[76]   “These procedures ‘must be followed when a district court seals judicial records or documents.’” [77]

In fact, the Fourth Circuit has held that a lower court had improperly sealed a $36 million settlement agreement in a case involving drinking water contamination.[78]  Despite the media’s demonstrated interest in the case, no public notice of the motion to seal the agreement was given, there was no opportunity for interested parties to object to the motion, the lower court failed to consider less restrictive alternatives to sealing and the lower court did not identify any specific reasons justifying its decision to seal the agreement.[79]  

In Virmani v. Presbyterian Health Services,[80]  the N.C. Supreme Court held that, in addition to the rights of access created in First Amendment and common law, there also is a qualified right to access court records under the N.C. Constitution.  That is, a court may seal court records only if the trial judge makes specific findings of fact demonstrating that, after considering alternatives to sealing, sealing is necessary to protect a “compelling countervailing public interest.”[81]  

In Corrigan v. White, a civil case involving accusations of sexual misconduct at a shopping mall, the N.C. Court of Appeals vacated lower court orders sealing the court record and allowing the parties to proceed using pseudonyms.  On remand, a Superior Court judge cited both Virmani and State v. Kelly.  The judge said that although the plaintiffs were minors, denials of access to information about the case would not be allowed because while “almost all criminal or civil allegations of wrongdoing are embarrassing to defendants . . . there is no evidence that the issues raised by this case are of quantifiably different nature or caliber from others routinely heard in North Carolina’s public courts in open court proceedings.”[82] 

As discussed above, in Goldsmith v. Henderson County Board of Public Education the trial court granted a newspaper’s motion to unseal documents relating to a sex abuse scandal involving a public school teacher, holding that the parties had failed to overcome the presumption of openness demanded by the First Amendment.[83]

In 2008, a trial court judge in Orange County ordered that search warrant materials related to the murder of UNC student body president Eve Carson be released.[84]  The search warrant materials had been previously sealed by the court to protect the safety of confidential informants in the early stages of investigation, but the judge later granted a local newspaper’s motion to release the materials.  That motion was granted in spite of one of the defendant’s concerns about pre-trial publicity.

In 2009, however, the N.C. Court of Appeals affirmed an order sealing three search warrants and related materials in another high-profile murder case in Cary, N.C.[85]  The court’s decision to seal the material was based in large part on North Carolina’s public records laws and the countervailing interest that the release would jeopardize the right of the state to prosecute a defendant or the right of a defendant to a fair trial or would undermine an ongoing investigation.[86]

Courts do not find a constitutional or common law right of access to be applicable to every type of record.  Courts often seal documents in commercial disputes that involve trade secrets and that are unrelated to any larger public concerns.  Courts will, on request of a party who demonstrates good cause, act to prevent the disclosure of valuable commercial information.[87]   However, the sealing of evidence relating to the safety of products such as drugs and automobiles or information relating to human health hazards such as toxic waste leaks or medical malpractice presents greater public concerns and thus may constitute a greater infringement on the core interests protected by the First Amendment.  This issue creates a conflict for our courts.  On one hand, courts are public institutions.  On the other hand, however, civil cases are brought to resolve disputes between private parties—unless governmental entities are involved.  Accordingly, there is a tension between the court system and the news media over the extent to which evidence developed in the preparation of civil cases and the terms on which such cases are finally resolved should be made public.[88]


[71] N.C. R. Civ. P. 26(c); Fed. R. Civ. P. 26(c).

[72] See Press-Enterprise Co. v. Superior Court of Riverside Cnty., 478 U.S. 1 (1986); Press-Enterprise Co. v. Superior Court of Riverside Cnty., 464 U.S. 501 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603-07 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580-81 (1980).

[73] See N.C. Gen. Stat. § 1-72.1.

[74] 453 U.S. 589, 608 (1978).

[75] See id. at 597-608.

[76] See In re Charlotte Observer, 882 F.2d 850, 853-54; In re Knight Publ’g Co., 743 F.2d 231, 234-35 (4th Cir. 1984).

[77] See Ashcraft v. Conoco, 218 F.3d 288, 301 (4th Cir. 2000) (quoting Stone v. Univ. of Md. Medical Sys. Corp., 855 F.2d 178 (4th Cir. 1988)); see also Ashcraft v. Conoco, 218 F.3d 282 (4th Cir. 2000).

[78] See id.

[79] See id.

[80] 515 S.E.2d 675, 693 (N.C. 1999).

[81] See id.

[82] Corrigan v. White, 29 Media L. Rep. (BNA) 1637,1638 (N.C. Super. Ct. 2001).

[83] Goldsmith v. Henderson Cnty. Bd. of Pub. Educ., 32 Media L. Rep. (BNA) 1353 (N.C. Super. Ct. 2003).

[84] State v. Lovette, No. 08-CRS-51242 (N.C. Super. Ct. 2008); State v. Atwater, No. 08-CRS-51241 (N.C. Super. Ct. 2008).

[85] In re Cooper, 683 S.E.2d 418, 426-28 (N.C. Ct. App. 2009).

[86] Id. at 426.  Federal courts in the Fourth Circuit have occasionally taken a narrower view of efforts to seal search warrants.  See Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65-66 (4th Cir. 1989) (holding that search warrants are subject to a common law right of access, not a First Amendment right, but that sealing is only allowed where it is “essential to preserve higher values and is narrowly tailored to serve that interest”).  In Baltimore Sun, the court identified two rationales for sealing: (1) to protect the identity of the informer; and (2) to protect the ability of the government to conduct confidential investigations.  See also In re Search of Premises Known as: L.S. Starrett Co., No. 1:02M137, 2002 WL 31314622, 31 Media L. Rep. (BNA) 1712 (M.D.N.C. 2002) (denying company’s motion to seal entire search warrant because “[t]he important public interest in access to the search warrant process overrides the privacy and reputation rights of Starrett and its employees”).

[87] For an example of a true trade secret, see, for example, Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 107 F.R.D. 288, 289 (D. Del. 1985).  In that case, a federal district judge characterized the formula for Coca-Cola as “one of the best kept secrets in the world.”  In the context of a contract dispute between the parent company and an independent bottler, the court found that the formula was relevant to resolve the issue of whether several Coca-Cola products were identical and thus governed by a contract.  Accordingly, the court was prepared to enter a protective order to ensure that the formula was disclosed only to individuals connected with the case.  This was certainly appropriate.  Nevertheless, the Coca-Cola company refused to make its formula available even though the court was willing to enter a protective order.  The judge then ordered that, for the purpose of the case, every possible adverse inference would be drawn against the Coca-Cola company with respect to the formula evidence.  See Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 110 F.R.D. 363, 366, 369 (D. Del. 1986).

[88] See Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984).  In that case, a newspaper that was a defendant in a libel and invasion of privacy suit claimed that it could not, consistent with the First Amendment, be forbidden from publishing information about the plaintiff–the leader of a religious group–that the newspaper had obtained through the civil discovery process.  The U.S. Supreme Court rejected that argument.   As part of the civil discovery process, the newspaper had asked the trial court to compel production of information about the membership and finances of the religious organization.  The court ordered production of the material but granted the religious group’s request for a protective order prohibiting the newspaper from disseminating or otherwise using the information for any purpose other than trial preparation.  The order did not prohibit the newspaper from publishing information about the religious group that it obtained through means other than the judicial discovery process.  The newspaper challenged the court’s protective order as a prior restraint on publication that violated the First Amendment.  In a unanimous opinion, the U.S. Supreme Court upheld the protective order and rejected the newspaper’s position.  The Court noted that civil discovery rules often allow extensive intrusion into the affairs of both litigants and third parties.  Information is often required to be produced that is not relevant to the case or even admissible at trial.  The Court reasoned that permitting a party to obtain and publish information that could not otherwise be lawfully obtained would be unreasonable.  The Court observed that historically pre-trial discovery had not been a component of civil trial and concluded that the balance should be struck in favor of upholding the protective order because, unlike a “classic prior restraint,” this protective order allowed the newspaper to publish information it gleaned from independent sources.  Thus protective orders and decisions to seal documents must be narrowly tailored, and they should not be granted absent a showing of good cause. Orders entered merely as the result of the consent of the parties may be subject to challenge on the grounds that they violate the First Amendment.

8. How should a reporter respond to a court order limiting access to court proceedings?
7. Can you publish a sealed document?

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