ROANOKE, Va. (CN) - News publishers urged a federal judge Friday to advance their First Amendment challenge of Virginia's access restrictions to online court records.
Courthouse News Service and Lee Enterprises Inc. - the fourth largest newspaper publisher in the U.S. - filed suit against several clerks and the executive secretary of the state Supreme Court in December 2025, claiming a Virginia law restricting public access to online civil court filings burdens their First Amendment rights.
Virginia maintains a subscription database called Officer of the Court Remote Access (OCRA) that allows attorneys to view court filings from its 120 circuit courts that could otherwise only be accessed at the local courthouse. The terms of access prohibit attorneys from sharing the public court documents with the public or reporters. Penalties for violating the terms range from revocation of access up to disbarment.
If attorneys could disseminate new filings, Courthouse News would hire a Virginia lawyer and have them access complaints, the plaintiffs say. But current state law bars the attorney from sharing copies of complaints for reporting.
The defendants want Senior U.S. District Judge James P. Jones to dismiss the complaint, arguing the court lacks jurisdiction over the Virginia defendants and the clerks have immunity. The news organizations also lack standing because the law regulates Virginia attorneys, not the press, the defendants argued, and the plaintiffs can access the same pleadings in person at each courthouse.
"We believe this case is not about free speech but profitable speech," Erin McNeill, representing Karl Hade, the executive secretary of the Office of Executive Secretary of the Supreme Court of Virginia, told Jones Friday. The state's restrictions are intended to prevent credit card theft, identify theft, privacy violations and criminal use of the info, McNeill said, along with data mining or bots accessing court records.
Asking an attorney to send files is not speech, McNeill said.
Jones questioned this. "If he's their lawyer, you mean he can't just see a case and ...he says, dear client, here's a really interesting case that may pertain to your business, here it is, please read it and we can talk later. That's OK? That's prohibited?"
Under Virginia law, an attorney could have their access revoked for doing that, McNeill said. Files on OCRA are more vulnerable to data exploitation, she said, adding that the state considers the statute to restrict sharing of the electronic court records, but not limit attorneys from sharing information in the records.
"Common sense and logic support the notion that if any individual with electronic access to all nonconfidential court records could freely sell, post or redistribute such data to third parties, it could jeopardize citizens' privacy and security," she said, noting Pacer, which gives the public to access federal court records, is regularly subject to data mining. Courthouse News could also take the records and upload them to its subscriber court record service, she said.
"We don't think this is a prior restraint on speech," she said. "This is a regulation of conduct that has only an incidental impact on speech."
The restriction on disseminating records is unconstitutional, the news publishers' attorney Roger Myers argued, and prohibits attorneys from sharing any information at all about a case that is obtained through OCRA.
The records online are not confidential and are otherwise publicly available, and the restriction could be limited to prevent the release of personal or confidential data, Myers said. A reporter trying to find more information about a case filed in a court too far to reach before deadline cannot call up a local attorney and ask them to share case details because of the statute.
"Courthouse News is not a data mining company, it's not an information broker, it's a news company. And the fact that Lee and Courthouse News may make a profit is not relevant to the First Amendment analysis and there's clear case law on that," Myers said. "This is a situation where there are numerous areas in Virginia where the reporter cannot get to the courthouse at all in order to cover court cases that are filed there. And so it's a matter not of whether there's more profitable coverage, but whether there's any coverage at all."
Peter Scott Askin, counsel for clerks Edward Jewett in Richmond, Brenda Hamilton in Roanoke and Kelly Flannagan in Bristol, said OCRA is just a license to access information, but not a license to discuss that information. The news organizations' arguments could mean a government official with special access to data can distribute it without penalty, he argued.
"Plaintiffs can get these records, just not in the medium or the convenience that they prefer, and that means there's no prior restraint and there's no First Amendment interest here," he said, adding that access to information is not a constitutional right.
Myers pushed back. "Attorneys are not being granted access to confidential information on OCRA," he said. "They're being granted access remotely to the same public records that are available at the courthouse. This isn't a confidential records case, this isn't a non-public records case, it's a case involving a restriction on speech about publicly accessible records."
The plaintiffs are not trying to open the door for the Edward Snowdens of the world to leak classified information with impunity, Myers said.
Jones said he would issue a ruling as soon as possible.
Courthouse News previously sued Virginia clerks in 2021, challenging the state's decision to limit online court document access to lawyers and its restrictions on attorneys sharing those documents with reporters or the public. The case went to the Fourth Circuit, where a panel of judges upheld the state's access restriction and found Courthouse News did not have standing to challenge the dissemination of documents, dismissing the case but allowing it to be refiled.
In the U.S., 37 states provide the public some online access to civil filings. All of the country's federal courts host civil court records online through Pacer.
Source: Courthouse News Service
