COURTHOUSE NEWS SERVICE v. FORMAN

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

COURTHOUSE NEWS SERVICE,

Plaintiff,

v. Case No.: 4:22cv106-MW/MAF

BRENDA D. FORMAN,

et al.,

Defendants.

__________________________/

PRELIMINARY INJUNCTION

In Broward County Circuit Court, most civil complaints are unavailable to the

public the day they are filed. Plaintiff, Courthouse News Service, argues that this

state of affairs violates its First Amendment right to timely access court documents.

This Court must determine whether the First Amendment encompasses such a right,

and whether the current delays in access violate it.

The eighteenth-century British politician Edmund Burke apocryphally said

that “there were Three Estates in the Parliament; but, in the reporters’ Gallery yonder,

there sat a fourth estate more important far than they all.” Slavko Splichal, Principles

of Publicity and Press Freedom 44 (2002). Our Nation’s founders thought as much,

providing in the first amendment to the Constitution that “Congress shall make no

law . . . abridging the freedom of . . . the press.” U.S. Const. amend. I. Indeed, the

press is the only profession the Constitution expressly protects.

And “[a]s a check on the judiciary specifically, the media provides an outlet

for ‘public scrutiny of the justice system,’ perhaps one of the greatest cornerstones

of American democracy.” Rachel Luberda, The Fourth Branch of the Government:

Evaluating the Media’s Role in Overseeing the Independent Judiciary, 22 Notre

Dame J. L. Ethics & Pub. Pol’y 507, 513 (2008). Following this reasoning, the

Supreme Court has found that the First Amendment provides a right of access to

criminal proceedings. See Press-Enter. Co. v. Superior Court (Press-Enterprise II),

478 U.S. 1, 5 (1986). And a host of lower courts have extended that right to civil

proceedings.

The Eleventh Circuit has likewise resolutely enforced the “presumption of

public access” to court records, finding that the common law guarantees access to

judicial records. Callahan v. United Network for Organ Sharing, 17 F.4th 1356, 1359

(11th Cir. 2021). But the Eleventh Circuit has yet to decide whether the First

Amendment guarantees access to newly filed, non-confidential civil complaints,

“the cornerstone of every case,” to which “access . . . is almost always necessary if

the public is to understand a court’s decision.” F.T.C. v. AbbVie Prods. LLC, 713 F.3d

54, 62 (11th Cir. 2013).

As explained below, the First Amendment guarantees such access, and

Broward County’s current system violates that right. Thus, Plaintiff’s motion for a

preliminary injunction is GRANTED.

I

Courthouse News Service reports mainly on “the law as it is developed and

decided in American courthouses.” ECF No. 35-1 ¶ 1. To that end, Courthouse News

covers “state and federal trial and appellate courts in all 50 states.” Id. ¶ 4.

Courthouse News publishes articles on its own website and sells its reporting to other

news outlets, such as the Associated Press, CNN, and Walt Disney. Id. ¶¶ 7, 9. The

“majority of the nation’s large and mid-sized law firms also subscribe to one or more

of Courthouse News’ publications,” as do several universities. Id. ¶¶ 7–8.

Among its eight Florida newsletters, Courthouse News publishes the Broward

County Report, “which reports on new litigation in Broward Circuit Court.” Id. ¶ 5.

“To prepare the new litigation newsletters and identify new cases that may warrant

an article on Courthouse News’ website, Courthouse News’ reporters visit their

assigned court, or visit the court’s website where remote online access to documents

is available.” Id. ¶ 16.

In Florida, visiting the assigned court will not do much good; with a few

exceptions, electronic filing is mandatory in Florida courts. See In re Elec. Filing in

the Sup. Ct. of Fla. via the Fla. Cts. E–Filing Portal, Fla. Admin. Order No.

AOSC13–7, 4 (Feb. 18, 2013). The two Defendants in this case—the Chair of the

Florida E-Filing Authority,1 Chair Rushing, and the Broward County Clerk of

Courts, Clerk Forman—both play a role in the e-filing process.

All filings begin at Florida’s E-Filing Portal. The Authority developed, owns,

and governs the Portal. ECF No. 43-1 ¶ 2. Parties access the portal through

www.myflcourtaccess.com. See ECF No. 35-3 ¶ 8. Before filing a complaint, the

filer must enter case information such as the relevant jurisdiction, the type of lawsuit,

party details, claim amounts, remedies sought, and whether the complaint contains

confidential information. Id. at 8–24. Then, before uploading the complaint, the filer

is reminded of their sole responsibility to ensure the redaction of confidential

information. Id. at 25. Once a complaint is received through the Portal, the Authority

processes it by “stamp[ing] the filing with the official file stamp date and time” and

sending “a Notice of Electronic Filing . . . to all parties selected on the E-Service list

for that court case.” ECF No. 43-1 ¶ 3. After the Authority processes the complaint,

it transmits the complaint “to the selected county for review and processing.” Id.

¶ 4. Despite all the information gathered during submission, the Authority only

filters complaints by county and does not separate confidential filings from non-

1 The Authority was created in 2010 through an Interlocal Agreement reached among the

Florida Clerks of Court. Id. at 7. The Authority is governed by a Board of Directors, which consists

of the Chair (Chair Rushing), seven Clerks of the Circuit Court, and the Clerk of the Florida

Supreme Court. ECF No. 26-1 at 6.

confidential filings. Id. The Authority simply transmits each complaint “in the order

in which it is received.” Id. ¶ 3. “Generally speaking,” it takes “no longer than 5

minutes” to process and transmit a complaint from the Portal to the appropriate clerk

of court. Id. ¶ 8.

Once the county clerk receives the complaint, further processing is done in

one of two ways: Local Review or Portal Review. Id. Under Local Review, “the

filing is submitted to that particular jurisdiction’s review queue and the Portal’s

involvement ends there until after the county has completed its processing and

accepted the submission, at which point the Portal receives a notification with the

date and time of that completion.” Id. ¶ 5. Under Portal Review, “the county will

review the filing within the Portal review queue to ensure all documents in the filing

can be automatically accepted, i.e., that the documents are formatted properly,

contain the correct case style, and have the correct case number, among other things.

If they can, the county accepts the filing, and it is then transmitted to the

jurisdiction’s CMS.” Id. ¶ 6. Broward County uses Local Review. Id. ¶ 9.

Traditionally, as part of their review—whether Portal or Local—clerks had to

sift through filings for confidential information. See In re Amends. to Fla. Rule of

Jud. Admin. 2.420, 320 So. 3d 626, 627 (Fla. 2021). But, responding to media

complaints of “concerning delays in . . . access to nonconfidential court records,”

the Florida Supreme Court modified the Florida Rules of Judicial Administration to

provide “that, in certain civil cases, the clerk of court does not have an independent

responsibility to identify and designate information as confidential. Instead, that is

the sole responsibility of the filer.” Id.; see also ECF No. 46-3 (Defendant Forman’s

notice to filers that “[e]ffective July 1, 2021, filers will be solely responsible for

ensuring any confidential information contained in filings . . . is appropriately

redacted”).

Now, clerks need not “designate and maintain information as confidential

unless the filer” follows the procedures for marking a filing as confidential. Fla. R.

Gen. Prac. & Jud. Admin. 2.420(D)(1)(c). Yet, as noted above, although filings are

marked as confidential or non-confidential when filed, “the Portal does not separate

confidential filings from non-confidential filings.” ECF No. 43-1 ¶ 11. “That is done

by each individual clerk at the review stage.” Id.

Both before and after the current system came into effect, delays in access

have plagued Broward County. In 2018, the News Media Coalition prepared a

report—based on observations by one of Plaintiff’s reporters—criticizing Florida’s

court system for delays in access to court documents. ECF No. 35-2 at 45–53. In

response, the Florida clerks issued a rebuttal arguing that the delays were justified

by the time it takes “to docket and . . . redact” documents. Id. at 68. The clerks further

stated that Broward County met “performance standards for timeliness; i.e., two days

for case filings and three days for supplemental filings 80 percent of the time.” ECF

No. 1-3 at 7. Defendant Forman still follows these standards. ECF No. 44 at 19; ECF

No. 44-6 at 5.

More recently, from August 2021 to February 2022, Plaintiff tracked public

access to civil complaints in Broward County. ECF No. 35-2 ¶ 20. Based on this

data, 13% of complaints are available the day they are filed, 44% a day after filing,

14% two days after filing, and 29% three or more days after filing. Id. Thus, 87% of

complaints are unavailable the day they are filed and 43% are unavailable for two

days or more. Id. ¶ 22. Defendants have not challenged this data’s accuracy.

Such delays seriously hamper Plaintiff’s ability to report on lawsuits in

Broward County. “News runs on a daily cycle where events occur during the day

and are reported that day.” ECF No. 35-1 ¶ 14. Or, as Plaintiff more colorfully put

it, it’s called “news” not “olds.” ECF No. 35 at 46. Thus, by the time Plaintiff learns

of many of the civil complaints filed in Broward County, their newsworthiness has

already faded.

After unsuccessfully attempting to negotiate a solution with Defendants,

Plaintiff filed this lawsuit. See ECF No. 1. Plaintiff brings one count against both

Defendants, seeking declaratory and injunctive relief for First Amendment

violations through 42 U.S.C. § 1983. Plaintiff then moved for a preliminary

injunction. ECF No. 35. Both Defendants responded in opposition, and this Court

held a hearing on the motion on May 12, 2022. With this background in mind, this

Court turns to Plaintiff’s motion, starting with some threshold issues.

II

At the hearing, Defendant Forman raised three threshold issues, quasi-judicial

immunity, failure to join indispensable parties, and abstention.2 This Court already

rejected those arguments when it ruled on Defendant Forman’s motion to dismiss,

see ECF No. 45, and it adopts and incorporates that order’s reasoning here.3

This Court pauses only to readdress Defendant Forman’s abstention

argument. Abstention is “the exception, not the rule.” Haw. Hous. Auth. v. Midkiff,

467 U.S. 229, 236 (1984). And “federal courts have a strict duty to exercise the

jurisdiction that is conferred upon them by Congress.” Quackenbush v. Allstate Ins.

Co., 517 U.S. 706, 716 (1996).

Yet in the leading case abstaining under these circumstances, Courthouse

News Service v. Brown, the Seventh Circuit conceded that this situation does not fit

any recognized abstention doctrine, and instead based its decision “on the more

2 Defendants do not argue that Plaintiff lacks standing, but it remains a threshold matter

that this Court must decide before addressing Plaintiff’s claim. E.g., Via Mat Int’l S. Am. Ltd. v.

United States, 446 F.3d 1258, 1262 (11th Cir. 2006). This Court has independently considered the

issue and determines that Plaintiff has standing.

3 By incorporating that order by reference, this Court does not mean to suggest that these

issues are unimportant. To the contrary, this Court readily acknowledges their critical importance.

That said, copying and pasting a 26-page order into this Order would only serve to muddle this

Court’s analysis on the remaining issues.

general principles of federalism that underlie all of the abstention doctrines.” 908

F.3d 1063, 1071 (7th Cir. 2018). As other courts have noted, Brown is an outlier.

See Courthouse News Serv. v. Schaefer, 2 F.4th 318, 325 n.2 (4th Cir. 2021);

Courthouse News Serv. v. Planet (Planet III), 947 F.3d 581, 591 n.4 (9th Cir. 2020);

Courthouse News Serv. v. Gabel, 2:21-CV-000132, 2021 WL 5416650, at *11 (D.

Vt. Nov. 19, 2021). And for good reason. This Court may abstain only if the case

before it falls within a specific category of abstention recognized by the Supreme

Court. Schaefer, 2 F.4th at 324. That a case makes a judge’s “federalism senses”

tingle is not enough. Brown is thus unpersuasive. In short, this Court remains

convinced that abstention is unwarranted. Having so concluded, this Court turns to

the merits of Plaintiff’s motion.

III

A district court may grant a preliminary injunction if the movant shows: “(1)

it has a substantial likelihood of success on the merits;” (2) it will suffer irreparable

injury “unless the injunction issues; (3) the threatened injury to the movant

outweighs whatever damage the proposed injunction may cause the opposing party;

and (4) if issued, the injunction would not be adverse to the public interest.” Siegel

v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). Although a “preliminary

injunction is an extraordinary and drastic remedy,” it should be granted if “the

movant ‘clearly carries the burden of persuasion’ as to the four prerequisites.”

United States v. Jefferson Cnty., 720 F.2d 1511, 1519 (11th Cir. 1983) (quoting

Canal Auth. v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974)). No one factor,

however, is controlling; this Court must consider the factors jointly, and a strong

showing on one factor may compensate for a weaker showing on another. See Fla.

Med. Ass’n, Inc. v. U.S. Dep’t of Health, Educ., & Welfare, 601 F.2d 199, 203 n.2

(5th Cir. 1979). Finally, “[a]lthough the initial burden of persuasion is on the moving

party, the ultimate burden is on the party who would have the burden at trial.” FF

Cosmetics FL, Inc. v. City of Miami Beach, 866 F.3d 1290, 1298 (11th Cir. 2017)

(citing Edenfield v. Fane, 507 U.S. 761, 770 (1993)). Applying this standard, this

Court first considers whether Plaintiff has established a likelihood of success on the

merits.

A

This Court begins with whether Plaintiff has shown a substantial likelihood

of success on the merits. This Court addresses this factor first because, typically, if

Plaintiff cannot “establish a likelihood of success on the merits,” this Court “need

not consider the remaining conditions prerequisite to injunctive relief.” Johnson &

Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1247 (11th Cir.

2002). This Court must begin its merits analysis by considering whether the First

Amendment encompasses a right of access to non-confidential civil complaints.

1

Defendants concede that the First Amendment provides some right of access

to civil complaints. See Tr. at 21 (“[T]he Broward Clerk of Court is not here to

suggest that there is no First Amendment right of access to nonconfidential circuit

civil complaints.”); ECF No. 43 at 15 (asserting that “[t]he Authority does not

dispute that newly filed non-confidential complaints have historically been open to

the press and general public” or “that public access to these types of documents is

important”).4 Still, this Court briefly addresses the issue.

Under the applicable “experience and logic” test, “[t]he First Amendment

provides a right of access to a judicial proceeding or record: (1) that ‘ha[s]

historically been open to the press and general public;’ and (2) where ‘public access

plays a significant positive role in the functioning of the particular process in

question.’ ” Schaefer, 2 F.4th at 326 (quoting Press-Enterprise II, 478 U.S. at 8–10).

When both prongs are met, a qualified First Amendment right attaches. Id.

4 This Court notes, however, that in her response to Plaintiff’s complaint—filed after the

preliminary injunction hearing—Defendant Rushing asserts that she “has not historically provided

public access to court filings and therefore, pursuant to the ‘experience and logic’ test . . . no First

Amendment right attaches to those filings.” ECF No. 55 at 13. This argument applies the

experience and logic test far too narrowly. Under Defendant Rushing’s theory, if one actor had a

history of denying access—even if, across the county, all others granted access—no right of access

would exist. Plus, every time, as here, new technology changes the method through which access

is granted, any First Amendment right of access would evaporate because public access had not

“historically” been provided through that technology. For these reasons, this Court rejects

Defendant Rushing’s narrow application of the experience and logic test.

Starting with experience, Plaintiff has provided an uncontested declaration

attesting to the fact that—before e-filing—newly filed civil complaints were

generally accessible in person the day they were filed. ECF No. 35-1 ¶¶ 17–29. Plus,

as the Eleventh Circuit has noted, “access to judicial proceedings is crucial to our

tradition and history.” Callahan, 17 F.4th at 1359. In short, the experience prong

favors a right to access.

And as for logic, Defendant Rushing concedes “that public access . . . is

important.” ECF No. 43 at 15. This Court agrees. In finding that a common-law right

of access attaches to civil complaints, the Eleventh Circuit explained that such access

“is ‘an essential component of our system of justice’ and ‘is instrumental in securing

the integrity of the process.’ ” AbbVie, 713 F.3d at 62 (quoting Chi. Trib. Co. v.

Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001)). Indeed, as noted

above, press coverage of judicial proceedings is a “cornerstone[] of American

democracy.” Luberda, supra, at 513. In short, experience teaches that public access

plays a significant positive role in the function of civil court proceedings. Thus,

under the experience and logic test, a qualified First Amendment right of access

applies to non-confidential civil complaints.

2

Having recognized a qualified First Amendment right to access civil

complaints, this Court must next determine when the right attaches. Plaintiff argues

that the right attaches the moment the Authority receives a complaint. Tr. at 6. But

Defendant Rushing implies that the right attaches after the Authority has passed the

complaint along to the local clerk.5 This is so, she says, because Florida Rule of

General Practice and Judicial Administration 2.420(b)(1)(A) defines “court records”

as “the contents of the court file.” In other words, complaints do not become “court

records” until Defendant Forman receives them and makes them part of the “court

file,” and the right of access does not attach until the complaints become “court

records.”

But it is the moment a document is filed, not the moment Florida labels it a

“court record,” that matters. Defendant Rushing cannot rely on the Florida Rules of

Judicial Administration because how state law defines “court record” cannot dictate

the First Amendment’s scope. See NAACP v. Button, 371 U.S. 415, 429 (1963) (“[A]

State cannot foreclose the exercise of constitutional rights by mere labels.”). Rather,

experience and logic define the First Amendment right’s contours. Here, both

experience and logic suggest that the right of access attaches upon filing.

First, experience suggests that the right attaches upon filing. The First

Amendment right of access guarantees “something in line with what the press has

traditionally enjoyed.” See Courthouse News Serv. v. N.M. Admin. Off. of the Cts.,

5 Defendant Forman, on the other hand, does not seriously engage with this issue—or, for

that matter, with most merits issues.

CIV 21-0710 JB/LF, 2021 WL 4710644, at *39 (D.N.M. Oct. 8, 2021). And the

press traditionally enjoyed on-receipt access to unprocessed complaints that the clerk

had stamped as received but not yet docketed. See ECF No. 35-1 ¶ 18 (explaining

that “Florida state courts, including high volume courts in Miami, Orlando, Palm

Beach and Tampa, provided . . . public access on receipt to paper filings”). Thus, the

experience prong suggests that the right attaches upon filing.

Second, logic also suggests that the right attaches upon filing. As many courts

have explained, complaints “instantaneously invoke[] a court’s jurisdiction,” trigger

legal obligations, and impact parties’ “substantive legal rights and duties.” Schaefer,

2 F.4th at 328. “The press and public thus have an important interest in reasonably

contemporaneous access to civil complaints.” Id.; cf. Planet III, 947 F.3d at 592

(“Public access to civil complaints before judicial action . . . buttresses the

institutional integrity of the judiciary.”). Because public access upon filing facilitates

public scrutiny of the court system, it plays a significant positive role in the function

of civil court proceedings. Logic thus favors access upon filing.

In sum, the press has traditionally had access to complaints just after they were

filed. Plus, complaints have public importance the moment they are filed. The First

Amendment right of access thus attaches at that time.

* * *

Nearly every court that has passed on the issue has found that the press and

public enjoy a First Amendment right to access civil complaints that attaches upon

filing. See, e.g., Schaefer, 2 F.4th at 328; Planet III, 947 F.3d at 594; Bernstein v.

Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 141 (2d Cir. 2016); cf.

Courthouse News Serv. v. Quinlan, 32 F.4th 15, 20 (1st Cir. 2022) (noting that the

parties did not contest the issue). Having considered, as those courts did, both

experience and logic, this Court agrees. Now, this Court turns to whether the current

scheme in Broward County violates that right.

3

Having determined that Plaintiff has a qualified First Amendment right of

access to non-confidential civil complaints which attaches at the moment of filing,

the next question is whether Defendants have violated that right.

Plaintiff argues that both Defendants have violated its First Amendment right

by delaying access to Broward County civil complaints through the current e-filing

scheme. ECF No. 35 at 40; ECF No. 53 at 6. Defendant Rushing, while conceding

that Plaintiff has the First Amendment right of access, maintains that her office

transmits new filings to Defendant Forman almost immediately upon filing, and has

no control over access or processing past this point. ECF No. 43 at 16. Thus,

according to Defendant Rushing, any delay in access—and any First Amendment

violation—is solely attributable to Defendant Forman. Id. Defendant Forman, on the

other hand, frames the alleged constitutional violation more precisely as the lack of

a public review queue available at the time of filing. ECF No. 44 at 24–25. Hence,

Defendant Forman concludes, any First Amendment violation stems from Defendant

Rushing withholding access at the Portal, not from Defendant Forman’s processing.

Id.

To properly address these arguments and determine whether Plaintiff’s First

Amendment right has been violated, this Court must resolve three discrete questions.

First, whether there has been a delay in access to non-confidential civil complaints

in Broward County triggering constitutional scrutiny. Second, who is responsible for

the delay, if any. Finally, whether the delay is constitutionally permissible.

a

First, there is a delay in access stemming from Florida’s serpentine e-filing

system. As explained above, the public cannot access non-confidential civil

complaints in Broward County until Defendant Forman completes clerical

processing. In most cases, one day or more passes between filing and access. While

some complaints are made available on the filing date, it is exceedingly rare.

Moreover, in those rare instances of same-day access, the temporal lapse between

filing and access remains unknown, and there has been no indication that such access

is contemporaneous with filing.

The parties agree that Broward County does not provide instant, immediate,

or even contemporaneous access. Indeed, Defendant Forman readily admits that her

office’s goal, under the applicable Florida standards, is to provide access two days

after filing. The parties do quibble over whether the current practice constitutes a

“delay,” however. See Tr. at 60–62. More specifically, in this First Amendment

context, the parties dispute that there is a delay in access triggering constitutional

scrutiny. See, e.g., Planet III, 947 F.3d at 596 (subjecting delay denying “immediate

access” to intermediate scrutiny); Courthouse News Serv. v. Schaefer, 440 F. Supp.

3d 532, 560 (E.D. Va. 2020) (shifting burden to the defendant to justify access policy

after finding “that delays in access occurred”).

This Court finds that there has been such a delay in access. Other courts

around the country have applied constitutional scrutiny to delays of 24 business

hours6 after filing, Quinlan, 32 F.4th at 21, delays beyond the filing date, Schaefer,

2 F.4th at 328–29, delays beyond five business hours after filing, N.M. Admin. Off.

of the Cts., 2021 WL 4710644, at *41, and any delay beyond “immediate access,”

Planet III, 947 F.3d at 596. See also Gabel, 2021 WL 5416650, at *14 (“Although

some courts have sought to impose a bright-line rule for permissible delay, here the

focus must be on whether any delay is appropriate because any restriction on the

First Amendment right of access must have ‘sufficient justification.’ ”). Here, under

6 Yes, business hours are a real thing.

any standard, there is a delay because complaints are almost always unavailable until

at least one day after filing. Moreover, Defendants’ practice of processing each

incoming complaint before furnishing access necessarily precludes immediate

access. Having found a delay triggering constitutional scrutiny, this Court must

determine who is responsible for the delay and whether it is constitutionally

justifiable.

b

There is a clearly a delay in accessing non-confidential civil complaints in

Broward County. But to determine whether this delay amounts to a constitutional

violation, this Court must first ascertain its source. Plaintiff argues that Defendants

mutually maintain “no-access-before-process” policies which unconstitutionally

delay access to complaints in Broward County. ECF No. 35 at 41. Much of the delay,

Plaintiff argues, is caused by Defendant Forman unnecessarily sorting and

processing non-confidential complaints before posting them. Id. at 41–42. Plaintiff

maintains that Defendant Rushing is also to blame, however, because litigants are

required to file Broward County complaints through the Portal and her method of

transmitting filings without filtering forces Defendant Forman to separate the

confidential filings upon receipt, thereby exacerbating the delay. ECF No. 46 at 14;

ECF No. 53 at 5–7. Thus, in Plaintiff’s view, “Chair Rushing’s behavior is

inextricably intertwined with the routine withholding of public complaints.” ECF

No. 53 at 14.

Defendants deflect these arguments by pointing fingers at each other.

Defendant Rushing—originally analogizing the Portal to a mailbox, ECF No. 43 at

8, and later to a “pathway,” ECF No. 52 at 4—insists that she only has control over

filings during the near-immediate sequence of filing and transmission to Defendant

Forman, and any delay occurs during processing when the filings are in Defendant

Forman’s exclusive control. ECF No. 43 at 7–9, 16. Defendant Forman likewise

shifts the blame back to Defendant Rushing, arguing that if filing triggers the First

Amendment right of access, then the injury occurs just after—when the complaints

are in Defendant Rushing’s exclusive control at the Portal. ECF No. 44 at 23–25,

27–28, 32–33. Thus, to Defendant Forman, Plaintiff’s alleged injury results from

Defendant Rushing denying access to complaints at the Portal, not from Defendant

Forman’s actions. Id. at 25.

Under Ex parte Young, “[p]ersonal action by defendants individually is not a

necessary condition of injunctive relief,” and “[a]ll that is required is that the official

be responsible for the challenged action.” Luckey v. Harris, 860 F.2d 1012, 1015

(11th Cir. 1988). “[I]t is sufficient that the state officer sued must, ‘by virtue of his

office, ha[ve] some connection’ with the unconstitutional act or conduct complained

of.” Id. at 1015–16 (second alteration in original) (quoting Ex parte Young, 209 U.S.

123, 157 (1908)).

Applying that standard, this Court finds that both Defendants delay access to

non-confidential complaints in Broward County. Temporally speaking, most of the

delay occurs while the filings are in Defendant Forman’s possession. Defendant

Rushing transmits new filings to Defendant Forman’s review queue within, at most,

five minutes of submission. Once in the review queue, the complaints languish for

often days at a time until Defendant Forman completes processing. While Defendant

Forman has avoided discussing exactly what “processing” entails, see Tr. at 23:11–

24:25, 27:13–24, 32:18–25, 34:1–15, 60:7–13, the evidence before this Court

suggests that processing involves reviewing and redacting confidential information

from complaints. See ECF No. 35-2 ¶ 15; see also Amendments to Rule 2.420, 320

So. 3d at 627 n.1 (“[T]he primary reason for the delays is because the clerks of court

are responsible for reviewing and redacting every filing prior to allowing access.”).

After completing processing, Defendant Forman uploads the complaints for public

view.

If complaints became publicly available when they hit Defendant Forman’s

review queue, the public would have near-instant access. Instead, Defendant Forman

shields complaints from public view until her office processes them. Defendant

Forman thus delays access to complaints in Broward County. Against Defendant

Forman’s suggestion, she is not absolved of responsibility just because the First

Amendment right attaches when complaints are in Defendant Rushing’s control.

Even if Defendant Rushing is responsible for the initial delay by denying access to

complaints at the Portal, Defendant Forman only prolongs the delay through her

processing policy. Thus, Defendant Forman has more than “ ‘some connection’ with

the unconstitutional act or conduct complained of.” Luckey, 860 F.2d at 1015–16

(quoting Ex parte Young, 209 U.S. at 157).

At any rate, Defendant Rushing is also responsible for the delay, although that

analysis is more nuanced. Defendant Forman’s current practice begs the question:

why does she review incoming complaints for confidential information when the

Florida Supreme Court relieved her of this very task? Well, with respect to Rule

2.420, it is true that the amendment “eliminate[d] the requirement that the clerk of

court independently designate as confidential information filed in certain civil

cases.” Amendments to Rule 2.420, 320 So. 3d at 626. Notwithstanding this

amendment, Rule 2.420 still requires clerks to designate and maintain confidential

information when the filer files a Rule 2.420(d)(2) notice or Rule 2.420(d)(3)

motion, the filing is deemed confidential by court order, or the case is deemed

confidential by law. Id. at 627. Thus, while Defendant Forman no longer has an

independent responsibility to review most filings for confidential information, she

still must maintain the confidentiality of a small subset of complaints.

In theory, this amendment should greatly expedite access congruent with the

Florida Supreme Court’s intent. See id. (“[T]o address timely access to court records,

we now amend subdivision (d)(1) to provide that, in certain civil cases, the clerk of

court does not have an independent responsibility to identify and designate

information as confidential.”). In Broward County, however, little has changed.

This is where Defendant Rushing enters the picture. Defendant Rushing

blindly transmits complaints to Defendant Forman’s review queue in the order in

which they are filed. As a result, all complaints—whether marked by the filer as

confidential or not—land in the same queue. Facing a batch of unmarked complaints,

then, Defendant Forman sorts through each complaint to determine whether it fits

within the “limited group of civil cases” that must be marked confidential under Rule

2.420. Id. Thus, at the expense of timely access to most complaints, Defendant

Forman’s entire review process is driven by her responsibility toward a minority of

cases. In other words, the exception is swallowing the rule.

The heart of the problem is Defendant Rushing’s transmission protocol.

Despite collecting a wealth of data from the filer at the intake stage, Defendant

Rushing only filters complaints by county. By way of analogy, Defendant Rushing’s

practice mirrors the “end-to-end” Internet design principle, where “packets are

delivered on a first-come, first-served basis without regard to their content, origin,

or destination and are free from any intermediate error checking or filtering.”

Jonathan E. Nuechterlein & Philip J. Weiser, Digital Crossroads:

Telecommunications Law and Policy in the Internet Age 168 (2d ed. 2013). Under

that model, IP networks remain “dumb,” in that they do not “know” packet contents,

treat all packets the same, and leave the “intelligence” to the end users. Id. at 197.

So too here, where Defendant Rushing remains “dumb” to all complaint

contents and treats every Broward County complaint the same. And while this may

be a sublime model for a free and open Internet, it is hardly an efficient framework

for an e-filing system. Using the information collected during intake, Defendant

Rushing could, for example, filter, separate, or otherwise designate confidential

complaints for Defendant Forman before transmission. That way Defendant Forman

could identify, before processing, the non-confidential complaints and greatly

expedite public access. But because Defendant Rushing dumps all Broward County

complaints into the review queue without regard for confidentiality, Defendant

Forman reviews each complaint for confidential information when she otherwise

would not under Rule 2.420. As a result, non-confidential complaints are further

concealed from public view.

It is no answer, as Defendant Rushing argues, that the bulk of the delay is

wrought by Defendant Forman’s processing. As shown above, Defendant Forman’s

processing delays access precisely because Defendant Rushing disseminates

complaints in this rudimentary manner. Moreover, as the state officer charged with

receiving filings and maintaining Florida’s e-filing system, Defendant Rushing

certainly has “some connection” with the alleged constitutional injury stemming

from that system. Luckey, 860 F.2d at 1015-16. Thus, Defendant Rushing helps

create and compound the delays in Broward County.

For the reasons articulated above, both Defendant Rushing and Defendant

Forman are responsible for the delays in access in Broward County. Given the

“unique” structure of Florida’s e-filing system, ECF No. 43 at 8; see also ECF No.

43-1 4 11 (‘Portal staff is unaware of any other state that uses an entity such as the

Authority to operate an e-filing portal.”), 1t comes as no surprise to this Court that

the Defendants’ litigation tactic is to point fingers, as illustrated below.

Fig. 1. Clerk Forman and Chair Rushing’

Neither can escape liability by shifting blame to each other, nor can they evade

constitutional scrutiny by maintaining an administrative labyrinth. The way

7 As one pop-culture commentator explains, “[t]he image of the two pointing Spider-Men

has been captioned—and sometimes recreated—ain all sorts of different ways. It’s been around

since at least 2011. It’s been used by fans, celebrities and even politicians to make funny

comparisons between people that either seem oddly similar or are engaged in the same activity.”

Nicholas Raymond, The Origin of The Spider-Man Pointing Meme, Screen Rant (Jan. 4, 2020),

https://screenrant.com/spider-man-pointing-meme-cartoon-origin/.

24

Defendant Rushing transmits complaints creates the delay, and Defendant Forman’s

time-consuming review exacerbates the delay. Accordingly, both Defendants are

responsible for the alleged constitutional violation.

c

Having found that there is a delay in access to Broward County complaints

caused by both Defendants, the remaining question is whether Defendants’ policies

are constitutionally permissible. This Court finds that they are not.

Plaintiff urges this Court to measure Defendants’ actions against the Press-

Enterprise II test the Ninth Circuit articulated in Planet III, ECF No. 35 at 41, but

neither Defendant argues which standard this Court should apply. Defendant

Rushing, to her credit, provides a brief tour of the First Amendment jurisprudence

in this area. ECF No. 43 at 12–16. But rather than meaningfully engage with the

various standards deployed around the country, Defendant Rushing simply focuses

on how courts have interpreted “timely access.” Id.

Defendant Forman also fails to perform any constitutional analysis, or even

acknowledge the First Amendment standards at play. See ECF No. 44. Instead,

Defendant Forman devotes her response toward addressing the “judicial officer”

argument under section 1983, id. at 10–14, abstention, id. at 14–19, Monell—when

all agree that this is not a Monell case, id. at 19–29, the indispensable party argument,

id. at 30–31, and the practical difficulties of granting relief, id. at 33–34. Of course,

this Court ruled on most of these arguments at the motion to dismiss stage, ECF No.

45, and at the hearing, this Court granted the parties an opportunity to file additional

briefing, Tr. at 105–07. Defendant Rushing filed a response, ECF No. 52, though it

lacks any constitutional analysis, and Defendant Forman filed nothing. Thus, in light

of the parties’ positions, or lack thereof, this Court now addresses which

constitutional standard to apply.

i

Courts have applied a host of different standards in the First Amendment right

of access context. Plaintiff’s preference, again, is for this Court to apply the Ninth

Circuit’s iteration of the Press-Enterprise II balancing test from Planet III. In Planet

III, the clerk’s challenged policies were “content-neutral and affect[ed] only the

timing of access to the newly filed complaints.” 947 F.3d at 595. As such, the Ninth

Circuit found that the policies “resemble[d] time, place, and manner restrictions”

and declined to apply strict scrutiny. Id. at 595–96; see also Globe Newspaper Co.

v. Superior Court, 457 U.S. 596, 607 n.17 (1982) (“[L]imitations on the right of

access that resemble ‘time, place, and manner’ restrictions on protected speech,

would not be subjected to such strict scrutiny.”). Instead, the Ninth Circuit applied

the Press-Enterprise II balancing test, which the court described as “relaxed” or

“ ‘rigorous,’ but not strict scrutiny.” 947 F.3d at 595–96 (quoting Leigh v. Salazar,

677 F.3d 892, 900 (9th Cir. 2012)).

Under that standard, once the qualified First Amendment right of access has

been established, a “presumption of access arises under Press-Enterprise II that may

be restricted only if ‘closure is essential to preserve higher values and is narrowly

tailored to serve those interests.’ ” Id. at 594–95 (quoting Press-Enterprise II, 478

U.S. at 13–14). If a sufficient interest is offered, the policy is subject to further

balancing. See Press-Enterprise II, 478 U.S. at 14 (deploying further balancing “[i]f

the interest asserted is the right of the accused to a fair trial”). In Planet III, for

example, the clerk’s asserted interest in delaying access to complaints was “the fair

and orderly administration of justice.” 947 F.3d at 596. The Ninth Circuit then

subjected that interest to the two-prong Press-Enterprise II balancing test, requiring

the clerk’s office to demonstrate, “first that there is a ‘substantial probability’ that

its interest in the fair and orderly administration of justice would be impaired by

immediate access, and second, that no reasonable alternatives exist to ‘adequately

protect’ that government interest.” Id. (quoting Press-Enterprise II, 478 U.S. at 14).

Other courts have similarly applied the Press-Enterprise II balancing test to

determine the constitutionality of access delays resembling time, place, and manner

restrictions. See, e.g., Gabel, 2021 WL 5416650, at *13–14; N.M. Admin. Off. of the

Cts., 2021 WL 4710644, at *41–42.

Yet some courts, while treating policies restricting access to newly filed

complaints as time, place, and manner restrictions, have applied different standards.

The Fourth Circuit, citing Planet III, found that “[t]he Clerks’ practices do indeed

resemble time, place, and manner restrictions, so we apply more relaxed scrutiny.”

Schaefer, 2 F.4th at 328 (citing Planet III, 947 F.3d at 595). Unlike the Ninth Circuit,

however, the Fourth Circuit did not apply the Press-Enterprise II balancing test.

Instead, quoting Planet III’s introduction, the Fourth Circuit stated that relaxed

scrutiny “requires that delays in access be ‘content-neutral, narrowly tailored and

necessary to preserve the court’s important interest in the fair and orderly

administration of justice.’ ” Id. (quoting Planet III, 947 F.3d at 585). Upon applying

such scrutiny, the Fourth Circuit affirmed Judge Morgan’s ruling that the clerks

violated the First Amendment right of access to newly filed complaints. Id. at 328–

29.

In the lower court ruling, Judge Morgan actually applied strict scrutiny due to

Fourth Circuit precedent at the time. Schaefer, 440 F. Supp. 3d at 560. Still, Judge

Morgan noted that the clerks’ practices would be unconstitutional under intermediate

scrutiny. Id. As for the intermediate scrutiny standard, Judge Morgan deployed the

traditional time, place, and manner test, stating that “the party seeking to restrict

access . . . must show that the restriction is necessitated by a significant interest, [is]

narrowly tailored to further that interest, and leave open ample alternative channels

of communication.” Id. (citing Reynolds v. Middleton, 779 F.3d 222, 227 (4th Cir.

2015)).

Courts, including the Eleventh Circuit, have long applied this traditional time,

place, and manner standard to restrictions on speech in public fora. See, e.g., Ward

v. Rock Against Racism, 491 U.S. 781, 791 (1989); Clark v. Community for Creative

Non-Violence, 468 U.S. 288, 293 (1984); Henderson v. McMurray, 987 F.3d 997,

1002 (11th Cir. 2021). Of course, the Eleventh Circuit has only deployed this test in

speech cases, and because it has yet to address whether a qualified First Amendment

right of access to civil complaints even exists, it is unclear whether the Eleventh

Circuit would use this test in access cases as well. Indeed, in Planet III, the majority

criticized the concurring judge for applying the traditional time, place, and manner

test because it applies to speech restrictions in a public forum, which a courthouse is

not, and that standard seems inapposite where the right of access, not speech, is

concerned. 947 F.3d at 596 n.9.

Finally, in Quinlan, the First Circuit found that the plaintiffs plausibly alleged

a First Amendment violation under either strict or intermediate scrutiny. 32 F.4th at

20–21. Interestingly, for strict scrutiny, the First Circuit cited the Press-Enterprise

II test, and for intermediate scrutiny, the court applied the traditional time, place, and

manner framework. Id. Ultimately, because the defendants’ policy failed under

intermediate scrutiny, the court declined to address which standard applied. Id. at

21. Still, the First Circuit’s discussion of scrutiny adds an interesting wrinkle into

the web of First Amendment access jurisprudence.

In sum, courts around the country have applied differing standards in these

cases. As the Eleventh Circuit has not weighed in on the matter, this Court must

make sense of this quagmire. It is clear, however, that courts have consistently

applied at least intermediate scrutiny when the qualified First Amendment right of

access to civil complaints is at stake.

And these cases applying intermediate scrutiny fall into roughly three strands.

The first strand is the Ninth Circuit’s approach in Planet III, where access

restrictions face “rigorous” or “relaxed” scrutiny under the Press-Enterprise II

balancing test. 947 F.3d at 595–96; Gabel, 2021 WL 5416650, at *13–14; N.M.

Admin. Off. of the Cts., 2021 WL 4710644, at *41–42. The second strand is the

Fourth Circuit’s approach in Schaefer, where access restrictions still face “relaxed”

scrutiny, but through a modified time, place, and manner framework instead. 2 F.4th

at 328. Finally, the third strand of cases subject access restrictions to the traditional

time, place, and manner framework for speech restrictions in public fora. Quinlan,

32 F.4th at 20–21; Planet III, 947 F.3d at 601–03 (Smith, J., concurring); Schaefer,

440 F. Supp. 3d at 560.

While Plaintiff urges this Court to adopt the Ninth Circuit’s approach, the

national variance on this issue together with the Eleventh Circuit’s silence caution

this Court against endorsing a particular standard. Fortunately, as shown below,

Defendants’ policies fail under all three standards. Accordingly, this Court need not

determine which standard applies.

To begin, this Court agrees with the reasoning under all three standards that

Defendants’ policies do not warrant strict scrutiny. In Globe Newspaper Co., the

Court noted that “limitations on the right of access that resemble ‘time, place, and

manner’ restrictions on protected speech would not be subjected to such strict

scrutiny.” 457 U.S. at 607 n.17 (citations omitted). Here, there is no allegation that

Defendants discriminate in granting access to Broward County complaints, or that

Defendants deny access altogether. Rather, like the policies in Planet III,

Defendants’ policies are “content-neutral and affect only the timing of access to the

newly filed complaints.” 947 F.3d at 595. Accordingly, Defendants’ practices mirror

time, place, and manner restrictions and as such, do not warrant strict scrutiny.

Having established this footing, this Court next analyzes Defendants’

practices under all three approaches. Before diving in, however, one final note is in

order. Because Defendant Rushing has dealt with the First Amendment analysis at

arm’s-length and Defendant Forman hardly acknowledges it, neither Defendant has

articulated why their policies are constitutional or how they would survive any level

of scrutiny. Thus, with arguments coming from only one side, this Court’s analysis

can only be so thorough.

Moreover, neither Defendant has asserted any government interest that

justifies or is furthered by delaying access to complaints. Defendant Forman offered

the closest thing to a justification, explaining at the hearing that her process for

handling complaints is prescribed by Florida law, and her “customs and practices”

are in accordance with statutory mandates. Tr. at 23:22–25:1. But this is an excuse

for the delay rather than an actual government interest. Indeed, both Defendants

failed to cite the justification offered in many of these cases, “the fair and orderly

administration of justice.” See, e.g., Planet III, 947 F.3d at 596; Schaefer, 2 F.4th at

328; Gabel, 2021 WL 5416650, at *13–14; N.M. Admin. Off. of the Cts., 2021 WL

4710644, at *41–42. Both Defendants play an integral role in court operations and

could plausibly assert this interest. As the Ninth Circuit stated:

Even in this era of electronic filing systems, instantaneous public access

to court filings, especially complaints, could impair the orderly filing

and processing of cases with which clerk’s offices are charged. After

all, litigants are not uploading their complaints to the internet; they are

filing them with a court, making them subject to judicial administration.

The First Amendment does not require courts, public entities with

limited resources, to set aside their judicial operational needs to satisfy

the immediate demands of the press.

Planet III, 947 F.3d at 596. So, despite Defendants’ silence on this score, because

other courts have baked this interest into the constitutional analysis, and “the fair

and orderly administration of justice” is a sensible value for Defendants, this Court

will presume this interest is in play here as well. Now, onto the analysis.

ii

Under the Ninth Circuit’s approach, having determined that Plaintiff has a

qualified First Amendment right of access to newly filed non-confidential civil

complaints that attaches at the time of filing, a presumption of access arises “that

may be restricted only if ‘closure is essential to preserve higher values and is

narrowly tailored to serve those interests.’ ” Planet III, 947 F.3d at 594–95 (quoting

Press-Enterprise II, 478 U.S. at 13–14). Again, neither Defendant has offered an

interest justifying closure. But insofar as Defendants can channel the fair and orderly

administration of justice, that interest suffices to overcome the presumption of access

and subject Defendants’ practices to the Press-Enterprise II balancing test. See id.

at 595–96 (deeming “the fair and orderly administration of justice” to be a sufficient

interest); Gabel, 2021 WL 5416650, at *13–14; N.M. Admin. Off. of the Cts., 2021

WL 4710644, at *41–42.

Defendants’ practices cannot be saved under the balancing test. Under the first

prong, Defendants must demonstrate a “ ‘substantial probability’ that [their] interest

in the fair and orderly administration of justice would be impaired by immediate

access.” Planet III, 947 F.3d at 596 (citing Press-Enterprise II, 478 U.S. at 14).

Defendants have utterly failed to show how denying access before processing

furthers administrative goals, or how court operations would be harmed by

expediting access.

Defendants’ policies, like the no-access-before-process policy in Planet III,

bear no real relationship to legitimate concerns for orderly administration. Id. at 596–

97. Defendants argue that their policies fully comply with Florida guidelines for

processing complaints, but those standards do not prescribe any functions warranting

the delays in Broward County. The relevant performance standards set a goal to

provide public access to complaints within two days of filing 80% of the time, but

that two-day goal is not tethered to any procedures Defendants must perform before

slating complaints for public access. ECF No. 44-6 at 5. The standards do not explain

why access should be provided within two days, or what protocols inhibit faster

access. Instead, the two-day mark seems to be an arbitrary target grounded in nothing

but good practice.

Of course, under the previous iteration of Rule 2.420, Defendant Forman did

have a duty to review every complaint for confidential information. Thus, there

formerly was a legitimate procedure to perform before providing access. The Rule

2.420 amendment, however, relieved Defendant Forman of this responsibility, and

she now must only review a small subset of complaints. Indeed, the Florida Supreme

Court amended the rule specifically to expedite access to complaints. True, as

Defendants acknowledge, because Rule 2.420 still requires Defendant Forman to

segregate certain confidential complaints, some level of initial review screening out

the confidential complaints would need to occur before placing non-confidential

complaints in a public review queue. ECF No. 52 at 2–4; Tr. at 87:11–89:14. But the

evidence before this Court suggests that Defendants already have the tools in their

arsenal to perform this initial review quickly, efficiently, and in full compliance with

Rule 2.420. Confidential complaints are marked accordingly by filers during intake,

and the Portal software, Granicus, allows Defendant Rushing to view these tags and

determine which filings are confidential. ECF No. 35-1 ¶¶ 29, 39–41; ECF No. 35-

3 at 8–34; Tr. at 14:1–18:11, 94:22–96:9. Plus Arizona, using Granicus, recently

implemented a public review queue providing access to complaints upon receipt.

ECF No. 35-1 ¶¶ 29, 39–41; Tr. at 14:11–18:11, 94:22–96:9. Thus, Defendants

cannot justify the delay by relying on Rule 2.420. The fact that Defendant Forman

does more review than necessary under Rule 2.420 does not insulate Defendants’

conduct from constitutional scrutiny. Rather, this superfluous review further

animates how unnecessary the Broward County delays are.

Moreover, Defendants have presented no evidence that denying access before

clerical processing somehow protects or furthers quality control and efficient court

administration. In fact, the evidence before this Court suggests quite the opposite.

See also Amends. to Rule 2.420, 320 So. 3d at 627 (“[T]o address timely access to

court records . . . the clerk of court does not have an independent responsibility to

identify and designate information as confidential.”). The crude manner in which

Defendant Rushing transmits complaints forces Defendant Forman to tediously

review each complaint, which takes considerable time, and in a county as large as

Broward County, results in a backlog of filings thereby putting a great deal of

pressure and strain on Defendant Forman’s office. As the Florida Supreme Court

anticipated in amending Rule 2.420, if Defendants provided access before

processing, Defendant Forman would no longer have to review every incoming

complaint and court efficiency would likely increase.

In sum, Defendants’ policies denying access before processing in Broward

County bear no relationship to legitimate administrative concerns. Accordingly,

Defendants’ policies fail the first prong of the Press-Enterprise II balancing test.

Defendants’ policies suffer a similar fate under the second prong as well.

Under that prong, Defendants must prove that “no reasonable alternatives exist to

‘adequately protect’ ” the fair and orderly administration of justice. Planet III, 947

F.3d at 596. Here, however, there is a reasonable alternative permitting pre-review

access—a public review queue made possible by screening for non-confidential

Broward County civil complaints. This alternative would greatly expedite access,

fully comply with Rule 2.420, and likely enhance the efficiency of court operations.

To be sure, both Defendants strongly denounced a public review queue, although

neither denied that it would be possible. Tr. at 41:5–42:24, 45:1–5, 87:11–17, 90:14–

91:13. But Defendants’ concerns over a public review queue are not grounded in

protecting court operations, and instead resemble general anxiety about changing the

status quo.8

Defendant Rushing opposes a public review queue largely because that would

require efforts by the Authority which she views as unnecessary and duplicative.

ECF No. 52 at 2–4; Tr. at 87:11–89:14. Because the marked confidential complaints

must be screened out before furnishing public access to the non-confidential

complaints, and only local clerks are required to maintain the confidential

complaints under Rule 2.420, Defendant Rushing maintains that she should not be

burdened with reviewing complaints. ECF No. 52 at 2–3; Tr. at 87:11–89:14.

Additionally, because Defendant Forman must review the confidential complaints,

Defendant Rushing argues that requiring her to also review complaints at the Portal

level would result in a duplicative process. ECF No. 52 at 3–4; Tr. at 87:11–89:14.

Now, Defendant Rushing does not argue that faster access to complaints

would impair Portal operations. Practically speaking, if Defendant Rushing had to

review incoming complaints to provide faster access, that would require more time

and effort by Portal staff, but Defendant Rushing failed to articulate how this added

8 Admittedly, “[t]he chief function of a preliminary injunction is to preserve the status quo

until the merits of the controversy can be fully and fairly adjudicated.” Powers v. Sec’y, Fla. Dep’t

of Corr., 691 F. App’x 581, 583 (11th Cir. 2017) (quoting Ne. Fla. Chapter of Ass’n of Gen.

Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1284 (11th Cir. 1990)). But “[i]f the

currently existing status quo itself is causing one of the parties irreparable injury, it is necessary to

alter the situation so as to prevent the injury.” Callaway, 489 F.2d at 576 (5th Cir. 1974) (citations

omitted). “The focus always must be on prevention of injury by a proper order, not merely on

preservation of the status quo.” Id.

step would affect Portal operations. It does not follow that extra work alone would

impair the “fair and orderly administration of justice.” Additionally, the fact that

local clerks must review complaints under Rule 2.420 does not preclude Defendant

Rushing from performing the same task, particularly when constitutional rights are

at stake. To the contrary, “the Constitution sets a floor for the protection of individual

rights. The constitutional floor is sturdy and often high, but it is a floor.” Am. Legion

v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2094 (2019) (Kavanaugh, J., concurring).

Finally, because Defendant Rushing already filters complaints by county and

filers select whether a complaint is confidential at the Portal before filing, Defendant

Rushing has access to this information, and it does not seem a Herculean task for her

staff to filter complaints by county and confidentiality status. And, against

Defendant Rushing’s suggestion, this review would hardly be duplicative of

Defendant Forman’s efforts. The two reviews perform different functions.

Defendant Rushing would simply slate non-confidential Broward County civil

complaints for public access, filtering out the complaints marked by the filer as

confidential. Then, Defendant Forman later reviews those complaints marked

confidential and maintains their confidentiality pursuant to Rule 2.420.

Turning to Defendant Forman, she dismisses implementing a public review

queue because it would “disrupt the intricate balance” between the clerks, the

Authority, and the allocated budget. Tr. at 40:11–14, 41:5–16, 50:1–25. But

Defendant Forman’s concerns speak only to logistical hurdles involved with

implementing faster access and, importantly, not to any detriment faster access

would wreak on court functions. Plus, if Defendant Forman is concerned about

sacrificing her obligations to designate confidential information under Rule 2.420 to

accommodate faster access, the First Amendment right runs only to non-confidential

complaints, and the recent amendment removed her obligation to review such

complaints for confidential information. Thus, Defendant Forman can fully comply

with her privacy obligations under Rule 2.420 while simultaneously furnishing faster

access to non-confidential complaints.

As a practical matter, both Defendants acknowledge that Arizona has already

implemented a public review queue with the same software Florida uses. Tr. at 39:6–

42:24, 45:1–5, 87:11–17, 90:14–91:13. But Defendants reject that alternative

because it would tinker with the budget and Florida has more counties than Arizona.

Id. at 41:5–42:24, 45:1–5, 87:11–17, 90:14–91:13. These arguments do not justify

the continued delay of the constitutional right of access which, in Broward County,

can last several days.

As for the cost of implementing a public review queue in Broward County,

Defendant Forman did not provide an amount but simply pointed to Arizona, where

it cost $20,500 to install a public queue. Tr. at 42:21–24, 62:23–63:11; ECF No. 48-

4. And with that $20,500, Arizona implemented a statewide public review queue

providing instant access to complaints filed in all counties. ECF No. 35-1 ¶¶ 29, 39–

41. Thus, the only evidence of cost before this Court indicates that implementing a

public review queue in Broward County would command a relatively modest sum.

Further, Defendant Forman did not point to a particular estimate that would render

a public review queue prohibitive. Tr. at 39:6–42:16. Instead, she argued that, as a

matter of principle, the filing system should not be altered if such change implicates

the budget, regardless of the amount. Id. If budget implications of any amount—

even a dollar—justified the suppression of constitutional rights, the last two

centuries of constitutional jurisprudence would be eviscerated.

Additionally, the fact that Florida has more counties than Arizona is irrelevant

when this case concerns only one county’s filing practices. While Defendant

Rushing operates the statewide access point for filing, a statewide injury is not before

this Court. Accordingly, this Court cannot grant statewide relief and order Defendant

Rushing to change filing practices across all sixty-seven counties. This may be a

different case if, for example, there was a showing that implementing a public review

queue for only Broward County would deleteriously impact Defendant Rushing’s

operations with respect to the other sixty-six counties. But Defendants have provided

no such evidence, thus this argument carries little weight.

Of course, there may well be other means through which Defendants could

expedite access, but a public review queue has been the only alternative presented

to this Court. By the same token, the constitutional analysis would likely play out

differently had neither side proposed an alternative, or the proposed alternative was

impracticable. Here, however, the credible evidence before this Court shows that

providing access to complaints before process through a public review queue is a

workable alternative that would expedite access, protect the integrity of Defendants’

court operations, and likely improve the efficiency of such operations. More

importantly, it would vindicate Plaintiff’s First Amendment right of access.

Accordingly, “[t]he ready availability of alternative ‘simple measures’ to improve

access to newly filed complaints” is fatal to Defendants’ policies under the second

prong of Press-Enterprise II as well. Planet III, 947 F.3d at 598 (quoting Courthouse

News Serv. v. Planet (Planet I), 750 F.3d 776, 791 (9th Cir. 2014)). Having failed

both prongs of Press-Enterprise II, Defendants’ policies are thus unconstitutional

under the Ninth Circuit’s approach.

The analysis plays out much the same under the Fourth Circuit’s approach as

well. Under that standard, Defendants must demonstrate that the delays in access are

“content-neutral, narrowly tailored and necessary to preserve the court’s important

interest in the fair and orderly administration of justice.” Schaefer, 2 F.4th at 328

(quoting Planet III, 947 F.3d at 585). In Schaefer, the Fourth Circuit reiterated that

the public has a right of “contemporaneous” access, which generally means access

the same day as filing or, if impracticable, the next day. Id. at 328–29. And in that

case, the evidence showed that the clerks provided same-day access almost 90% of

the time, thereby indicating that same-day access was both possible and practicable.

Id. at 329. For the 10% of delayed complaints, however, the clerks gave excuses but

ultimately “failed to offer facts establishing that any of these explanations did

actually cause delays.” Id. The court noted that the result may have been different if

the clerks presented evidence that unavoidable circumstances, like weather or

security threats, were correlated with delays. Id. But lacking such evidence, the

Fourth Circuit held that the clerks caused the delays and accordingly violated the

First Amendment. Id.

Here, unlike the complaints in Schaefer, almost 90% of Broward County

complaints are inaccessible on the same day as filing. ECF No. 1 at 23. The evidence

shows that same-day access in Broward County occurs around 13% of the time. Id.

But like the delays in Schaefer, the delays here are entirely attributable to

Defendants’ practices and not the product of unavoidable circumstances. As

discussed above, the only thing inhibiting Defendant Forman from providing faster

access is the fact that her office must scan all incoming complaints for the small

percentage of marked confidential complaints under Rule 2.420. And in a county as

large as Broward County, this process takes time. But after the Florida Supreme

Court amended Rule 2.420, her office is no longer required to perform this mass-

level review. Still, because Defendant Rushing transmits all complaints without

filtering, Defendant Forman must review every complaint to avoid shirking her duty

under Rule 2.420, and delays in Broward County persist.

And given the infrastructure currently in place, these delays seem entirely

preventable. If Defendant Rushing used a modicum of the information collected at

the filing stage, her office could aid Defendant Forman in winnowing the

confidential complaints from the throng of Broward County filings. That way,

Defendant Forman could fulfill her obligations under Rule 2.420 in reviewing only

those complaints marked confidential by the filer and not waste time and effort

combing through non-confidential complaints.

In short, Defendants’ policies are as narrowly tailored as a blunderbuss.

Moreover, these no-access-before-process policies are not only unnecessary to the

administration of justice but likely inhibit it. Indeed, all signs indicate that amending

the current protocols and expediting access would ease tension and enhance court

operations. In nudging statewide change, the Florida Supreme Court certainly

thought so. The First Amendment “requires courts to make newly filed civil

complaints available as expeditiously as possible.” Schaefer, 2 F.4th at 329.

Defendants’ policies flout this command in Broward County and consequently fail

the Fourth Circuit’s standard. Accordingly, under the Fourth Circuit’s approach,

Defendants’ policies are also unconstitutional.

Defendants’ no-access-before-process policies fare no better under the

traditional time, place, and manner framework. Under that standard, Defendants

must show that the delays in access to complaints “[1] are justified without reference

to the content of the regulated speech, . . . [2] are narrowly tailored to serve a

significant government interest, and . . . [3] leave open ample alternative channels

for communication of the information.” Pine v. City of West Palm Beach, 762 F.3d

1262, 1269 (11th Cir. 2014) (alterations in original) (quoting Ward, 491 U.S. at 791).

Defendants meet the first prong because, as this Court established above, their

policies do not discriminate in granting access to newly filed complaints and are thus

content-neutral. See, e.g., Planet III, 947 F.3d at 595 n.8.

Defendants’ luck runs out under the remaining prongs, however. With respect

to the second prong, Defendants’ policies, again, are hardly narrowly tailored.

Defendant Rushing, much to Defendant Forman’s dismay, transmits complaints

quickly without filtering. But this does not lead to faster access. In fact, it does quite

the opposite. Because Defendant Forman receives bundles of complaints in drive-by

fashion, it takes her office a great deal of time to sift through the review queue and

furnish public access.

Defendants’ practices could be far more narrowly tailored. This is perhaps

best evidenced by the Florida Supreme Court’s amendment to Rule 2.420. When the

Florida Supreme Court amended that rule to ameliorate the delays, Defendants kept

the old customs in place and did not tailor their policies to Rule 2.420’s narrowed

obligation. Nor have Defendants demonstrated what interest this Byzantine system

serves. Surely the interest is not administrative efficiency, for Defendants’ practices

only foster backlogs in Broward County. And the Rule 2.420 amendment

extinguished lingering privacy concerns for Defendant Forman by placing

responsibility on filers. Accordingly, Defendants’ policies are not narrowly tailored

and fail the second prong.

Defendants’ policies fall short under the third prong as well, although the

analysis is slightly awkward. This traditional three-prong test, of course, is typically

deployed in speech cases. And as the Ninth Circuit recognized, the third prong seems

inapplicable in the context of accessing complaints because “there is only one way

CNS can access the new complaints: the court clerk’s office.” Planet III, 947 F.3d

at 596 n.9. Even so, if the third prong applies here, this Court likewise finds that

Defendants’ policies do not “leave open ample alternative channels for

communication of the information” because, in the vast majority of cases, the only

way Plaintiff can access non-confidential Broward County civil complaints is

through Defendant Forman’s office. Defendants’ policies thus fail the third prong as

well.

Therefore, Defendants’ policies denying access before process are

unconstitutional under the traditional time, place, and manner framework as well.

And because Defendants’ policies fall short under any constitutional standard in this

area of First Amendment jurisprudence, this Court need not determine which

standard applies. Having concluded that the First Amendment proscribes Defendants

from delaying access to complaints before clerical processing, this Court next turns

to the remaining preliminary injunction factors.

B

Recall that the remaining preliminary injunction factors are (1) that Plaintiff

will suffer irreparable injury absent an injunction, (2) that the harm not granting an

injunction causes to Plaintiff outweighs the harm an injunction would cause

Defendants, and (3) that the injunction would not be adverse to the public interest.

Siegel, 234 F.3d at 1176. Here, the remaining preliminary injunction factors are

thoroughly intertwined with considerations already discussed regarding the merits

of Plaintiff’s claim. On balance, these factors weigh in favor of granting Plaintiff’s

motion for preliminary injunction.

First, Plaintiff will suffer an irreparable injury absent an injunction. “Where

the precious First Amendment right of freedom of the press is at issue, the prevention

of access to a public forum is, each day, an irreparable injury: the ephemeral

opportunity to present one’s paper to an interested audience is lost and the next day’s

opportunity is different.” Jacobsen v. U.S. Postal Serv., 812 F.2d 1151, 1154 (9th

Cir. 1987). Though this case arises in a different context, the principle holds true.

Every time Plaintiff loses the opportunity to access complaints—complaints it has a

right to access—constitutes an irreparable injury. In the news industry, time is of the

essence. Because of the delays in Broward County, Plaintiff cannot access and report

on new complaints in a timely manner. Accordingly, this Court finds that Plaintiff

has satisfied the irreparable injury prong for a preliminary injunction.

Second, weighing Plaintiff’s “serious and substantial” First Amendment

injury against Defendants’ interest, the scale tips decisively in Plaintiff’s favor. KH

Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). That is

because the State “has no legitimate interest in enforcing an unconstitutional

ordinance.” Id. And this Court is persuaded that the State’s legitimate interest in the

administration of justice does not outweigh the harm caused by delaying access to

complaints when the State has alternative means to more directly advance its

interests in a reasonable way.

Third, and finally, this Court is persuaded that an injunction, at this juncture,

would not be adverse to the public interest. Instead, this Court finds that enjoining

Defendants from denying access to complaints before clerical processing would

advance the public interest in the First Amendment right of access to civil

complaints. After all, as noted above, “[t]he public has no interest in enforcing an

unconstitutional ordinance.” Id. at 1272–73 (citing cases explaining that there is no

irreparable harm to a municipality in preventing its enforcement of “an ordinance

that may well be held unenforceable” and that the public does not have an interest

in the “expenditure of time, money, and effort in attempting to enforce” such an

ordinance).

Because Plaintiff has carried its burden as to all four of the preliminary

injunction factors, this Court finds that Plaintiff is entitled to a preliminary

injunction.

IV

Having determined that Plaintiff is entitled to injunctive relief, this Court must

also determine what that relief should look like. Any injunction must give

Defendants sufficient direction. “[T]his Court cannot issue an order that is

tantamount to saying ‘act right.’ ” Hand v. Scott, 285 F. Supp. 3d 1289, 1309 (N.D.

Fla. 2018). And “[a] person enjoined by court order should only be required to look

within the four corners of the injunction to determine what he must do or refrain

from doing.” SEC v. Goble, 682 F.3d 934, 952 (11th Cir. 2012) (alteration in

original) (quotation omitted). On the other hand, while it is this Court’s “province

and duty . . . to say what the law is,” this Court cannot micromanage Florida’s state

court system. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803).

Thus, this Court will enter more limited relief than Plaintiff requests. See Trump v.

Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (explaining that “a

court need not grant the total relief sought by the applicant but may mold its decree

to meet the exigencies of the particular case” (quotation omitted)).

Before going further, this Court again notes that it finds—as fact—that a

readily available and non-cost-prohibitive solution exists; namely, using Florida’s

Granicus software to create an authority-side public review queue, just as Arizona

has done. That said, because “the Government has traditionally been granted to

widest latitude in the dispatch of its own internal affairs,” this Court will not tell

Defendants how they must facilitate timely public review. Rizzo v. Goode, 423 U.S.

362, 378–79 (1976) (quoting Sampson v. Murray, 415 U.S. 61, 83 (1974)). This

Court recognizes that there is more than one way to skin a cat; that is, there may be

other, reasonable ways to facilitate timely public review of non-confidential civil

complaints. Defendants should be permitted to choose their preferred solution.

In the past, this Court has granted preliminary injunctions that give broad

guidance while allowing the State time to develop and submit a remedial plan. See,

e.g., Hand, 285 F. Supp. 3d at 1309 (“[T]he parties must submit additional briefing

as to the contours of injunctive relief, if any, in light of this order.”); Hoffer v. Jones,

290 F. Supp. 3d 1292, 1306 (N.D. Fla. 2017) (“Defendant shall file a plan consistent

with the directions this Court listed above.”).

This case merits a similar approach. Thus, this Court enjoins Defendants from

withholding public access to non-confidential complaints in Broward County before

clerical processing—i.e. Defendants cannot go back to their old policies. Plus, this

Court orders Defendants, by a date certain, to confer and submit a plan for providing

timely public access to non-confidential civil complaints before clerical processing

occurs.

And one final point, this isn’t Who’s on First, Defendants must move past

pointing fingers at each other like the spidermen pictured above; this Court fully

expects Defendants to jointly come up with a plan that will resolve the constitutional

deficiencies identified above. Lest there be any doubt, if Defendants return playing

the blame game, they will have violated this Order.

V

This Court next considers whether Plaintiff must secure a bond in furtherance

of the preliminary injunction. Defendant Forman argues that Plaintiff should be

required to post a security. ECF No. 44 at 35. As for the amount, Defendant Forman

argues that the bond should be at least $20,500—the amount it cost Arizona to

implement faster access through Granicus. Tr. at 42:21–24, 62:23–63:11; ECF No.

48-4. Defendant Forman did not show the cost of implementing a public review

queue for Broward County. Tr. at 62:23–63:11.

Rule 65(c) provides that a “court may issue a preliminary injunction . . . only

if the movant gives security in an amount that the court considers proper to pay the

costs and damages sustained by any party found to have been wrongfully enjoined

or restrained.” Fed. R. Civ. P. 65(c). But “it is well-established that ‘the amount of

security required by the rule is a matter within the discretion of the trial court . . . [,

and] the court may elect to require no security at all.’ ” BellSouth Telecomms., Inc.

v. MCImetro Access Transmission Servs., 425 F. 3d 964, 971 (11th Cir. 2005)

(alteration in original) (quoting City of Atlanta v. Metro. Atlanta Rapid Transit Auth.,

636 F.2d 1084, 1094 (5th Cir. Unit B 1981)). Moreover, “[w]aiving the bond

requirement is particularly appropriate where a plaintiff alleges the infringement of

a fundamental constitutional right.” Curling v. Raffensperger, 491 F. Supp. 3d 1289,

1326 n.25 (N.D. Ga. 2020) (quoting Complete Angler, LLC v. City of Clearwater,

607 F. Supp. 2d 1326, 1335 (M.D. Fla. 2009)). Here, while Defendants’ First

Amendment violation weighs against requiring a bond, that alone is not dispositive.

Taken together with evidence that implementing a public review queue would not

be cost-prohibitive, however, this Court finds that a bond is unnecessary in this case.

Accordingly, in its discretion, this Court waives the bond requirement.

VI

Having determined a preliminary injunction is warranted, this Court next

addresses whether it will stay that injunction pending appeal. Stays pending appeal

are governed by a four-part test: “(1) whether the stay applicant has made a strong

showing that he is likely to succeed on the merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether issuance of the stay will substantially

injure the other parties interested in the proceeding; and (4) where the public interest

lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see also Venues Lines Agency

v. CVG Industria Venezolana De Aluminio, C.A., 210 F.3d 1309, 1313 (11th Cir.

2000) (applying the same test). Considering that this test is so similar to that applied

when considering a preliminary injunction, courts rarely stay a preliminary

injunction pending appeal. That rings true here. Because no exceptional

circumstances justify staying this Order pending appeal, see Brenner v. Scott, 999 F.

Supp. 2d 1278, 1292 (N.D. Fla. 2014) (Hinkle, J.) (issuing a rare stay of a

preliminary injunction given the public interest in stable marriage laws across the

country), this Court refuses to do so. Defendants have every right to appeal, and this

Court sees no reason to delay Defendants in seeking an appeal by requiring them to

file a motion to stay with this Court under Rule 62.

VII

“[T]he First Amendment guarantees of speech and press . . . prohibit

government from summarily closing courtroom doors which had long been open to

the public . . . .” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980).

This right of access is foundational to the function of our judicial system; “[p]ublic

access to complaints allows the public to understand the activity of the . . . courts,

enhances the court system’s accountability and legitimacy, and informs the public

of matters of public concern.” Bernstein, 814 F.3d at 141. Conversely, limited public

access leads to “incompetent legal reporting,” which “fuels . . . anticourt sentiment

and fosters inaccurate views of the actual workings of the judicial system.” Luberda,

supra, at 510.

Broward County’s filing system frustrates the press and public’s right to

monitor their local judiciary. And, beyond inertia, Defendants offer little to nothing

in support of that system. That will not do. Because Defendants’ policies

unnecessarily inhibit the public’s right to monitor the judicial system,

IT IS ORDERED:

1. Plaintiff’s motion for preliminary injunction, ECF No. 35, is GRANTED.

2. On or before June 24, 2022, Defendants shall confer and file a plan for

providing timely public access to non-confidential civil complaints consistent

with the directions this Court listed above. Defendants must include specific

timetables.9 Once this Court approves Defendants’ plan, this Court will then

issue an injunction directing them to comply with their plan. And once this

Court issues its injunction, it will require Defendants to file updates to make

sure their benchmarks are met.

SO ORDERED on June 10, 2022.

s/Mark E. Walker

Chief United States District Judge

9 While Defendants must move with alacrity, this Court will entertain well-founded

motions for extensions.