Sunday, November 3, 2013
Dustin Benham has posted on SSRN his article Dirty Secrets: The First Amendment in Protective-Order Litigation, forthcoming in Cardozo Law Review.
Courts are split on whether the First Amendment limits judges' power to issue protective orders in the pretrial discovery context. Recent events highlight the importance of the issue. During the summer of 2013, a longstanding protective order in a priest-sex-abuse case was finally vacated. The discovery information made public included details about the offenders and information linking a high-ranking church official to efforts to shield church assets from victims’ abuse claims.
Other examples of important information kept from the public abound – pretrial discovery related to dangerous products, industry contamination of a city’s water supply, and domestic spying by the United States government have all been shielded at one time or another by protective orders. This Article contends that the First Amendment should provide significantly more protection for litigant speech in this context.