Scotusblog includes New York Law Publishing Company, et al., v. Jane Doe, et al. in its “Petitions to Watch” with the issue being whether, under the First Amendment, the blanket sealing of a case is presumptively unconstitutional. The case involves the Legal Intelligencer, the oldest daily legal newspaper in the United States, which has asked the U.S. Supreme Court to overturn a decision that allowed all records in a federal employment discrimination case to be hidden from the public.
According to the Legal Intelligencer, the documents in the case of Doe v. C.A.R.S. Protection Plus Inc., 527 F.3d 358 (3d Cir. 2008) have been under seal for more than seven years. The case came to light in May, when the Third Circuit unanimously reversed the trial court's dismissal of a sex discrimination suit brought by a woman who claims she opted to have an abortion after tests showed that her baby had severe deformities, and that she was fired three days later – the day she attended the funeral for the baby. The case raises a question of first impression as the 3rd Circuit held that Title VII, as amended by the Pregnancy Discrimination Act, protects a worker's right to terminate a pregnancy because an abortion qualifies as a "related medical condition." The 3rd Circuit's decision was significant because it held for the first time that a woman's decision to terminate a pregnancy is protected under Title VII.
The 3rd circuit’s ruling left in place the trial judge’s decision to seal all documents in the case. In a separate motion, the newspaper asked the 3rd Circuit to unseal the case at the appellate level where all documents and the court's docket are likewise under seal The Third Circuit Court of Appeals rejected the newspaper’s request to intervene in to unseal the docket and record in a two page order ruling that the entire file in the case may be sealed. The newspaper has now filed a Petition for a Writ of Certiorari with the US Supreme Court challenging the constitutionality of such a blanket sealing order. The newspaper relies on a Second Circuit opinion, Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir. 2004), for the principle “that the public and press have a qualified First Amendment right to inspect docket sheets, which provide an index to the records of judicial proceedings”.
The brief noted "This case has been conducted for seven years in complete secrecy, a testament to the need for the Court's guidance regarding the right of access to civil hearings and records." The brief urged the Court to accept review to correct the mistakes below and "clarify that the public has a constitutional right of access to civil proceedings and records, because civil proceedings implicate precisely the same concerns about the fairness of the justice system that underlie the right of access to criminal proceedings."