No Sealing of School Basketball Team Sexual Assault Case,

Start at Nelle v. Huntsville School Dist.The case was ruled in favor of Judge Timothy L. Brooks yesterday (W.D. Ark.):

During the 2020–2021 school year, B.N. In 2020-2021, B.N. Ms. Nelle alleges B.N. Ms. Nelle claims that she was sexually assaulted as an eighth-grade student by members of the ninth-grade team. School administrators were aware of this abuse but failed to stop it or correct it. According to the School District, B.N was allegedly injured in the manner that Title IX requires. This has attracted a lot of public attention. Media outlets—including the Madison County Record, a newspaper based in Huntsville—have reported extensively on them.

The School District requests that the Court seal the case’s live proceedings and any records on the docket. Both access to judicial proceeding and access to records are similar inquiries, but they have different purposes.

The First Amendment gives the public access to criminal proceedings. The First Amendment rights to attend have not been recognized by the Supreme Court or the Eighth Circuit. Civil Proceedings [or to access civil court records]. Webster Groves Sch. Dist. v. Pulitzer Pub. Co (8th Cir. 1990″ (“We consider it unnecessary for our decision in the case to decide whether or not a First Amendment rights of access applies to civil proceedings .”).. In Webster Groves, the Eighth Circuit did, however, recognize a qualified common law right to access civil court proceedings…. Similarly, the Supreme Court has recognized a qualified common law right to access judicial records….

The School District requests the Court to “seal all proceedings in this matter involving sexual assaults involving minors, as both victims and perpetrators of the attack are students.” … The Court agrees with the School District that this case implicates compelling privacy interests of minor students. During the proceedings, the Court will not allow identification of minor victims, minor perpetrators or parents.

But, the Court acknowledges that access to these proceedings is in the public’s best interest. Students’ privacy should not be compromised in any way. The School District insists on sealing all of the proceedings. This broad remedy will not work with other options and would be unjustifiable.

In order to reconcile the conflicting interests, Court requires the Court to provide an identification key that is only accessible to attorneys and Court to conceal the names of the parents and students who were involved in these events. [The students would be numbered S1 on up, and the parents would be numbered S1P1, S1P2, S2P1, etc. -EV]While the identification key protects the privacy of minor students, it allows the public to have a near full access to the proceedings. This key allows for public discussion on the record of such events, without disclosing identities. This is unlike in Webster Groves, redaction is possible here—the identities of the victims and perpetrators can be protected by anonymizing any reference to them in these proceedings.

Redaction is not sufficient, the School District claims. Huntsville is small and residents will only be able identify victims and perpetrators by their grades and involvement in basketball. If the Huntsville community was first to know about these incidents, this argument could be more persuasive. The Record points out that the claims made in the lawsuit were extensively reported months before the suit was filed. To the extent the School District is correct that a Huntsville local reading the Complaint could approximate the identities of those involved, that same local resident could make the same inferences by reading the paper….

To the extent a party believes, even with use of the identification key, some future filing fails to adequately anonymize the identity of a student or parent—perhaps due to the inclusion of other facts that make obvious the identity of an individual intended to be anonymous—the party should seek the Court’s leave to file that document under seal. In the case of unalterable documents (such as certain exhibits), where editing is impossible, students or parents’ names must be deleted and the document sealed. A unredacted document of the document must then be submitted under seal.

Preemptively, the Court refuses [shutter]In this case, live proceedings are being held. The majority of the case can be heard in public, without the need to identify minors. When specific individuals are required on record, the identification system will preserve anonymity.

Sometimes, it is impossible to identify facts and an otherwise public proceeding must be closed. This decision will be made by the Court based upon all facts presented and considering reasonable alternatives.

Also, the court refused to issue gag orders that would have limited the public’s access to information about the case.

The School District’s Motion to Limit Pretrial Publicity urges the Court to order both the parties and attorneys to refrain from making any comments to the press or on social media about this case while it is pending—in other words, issue a gag order…. The gag order is an immediate restraint of speech. It is considered the worst and most tolerable violation of First Amendment Rights. … However, “the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard.” Gentile v. State Bar of Nevada (1991)…. [Under Gentile,] [t]he question … is whether [a lawyer’s]Comments to the media can pose a problem substantial likelihood Materially prejudicing the proceedings, that is, whether comments have the potential to influence or prejudice the verdict.

McCutchen told the press that McCutchen had witnessed children being sexually assaulted at school districts multiple times. This statement is not sufficient to limit future pretrial statements. First, it is an undisputed statement. Parties dispute whether the response of the School District to the attacks was adequate. This statement also merely recites the facts from the Complaint and earlier news reports. A public recitation of allegations that are already in the records does not generally prejudice any proceeding.

The School District also cites statements by Mr. McCutchen that, according to the School District, conflate the instant case with related state court litigation involving the Freedom of Information Act …. However, the School District also cites statements by Mr. McCutchen that, according to them, confound the instant case with related state court litigation involving Freedom of Information Act…. Already publicly available A discussion of a similar case in another case is not enough to influence the outcome or prejudice the jury pool.

McCutchen then publicly stated that he would be seeking criminal prosecutions against school district employees who failed to report the alleged sexual assaults. This is closer to prejudicing the proceedings. When an attorney—who holds no authority to bring criminal prosecutions— publicly suggests a civil defendant may face criminal punishment for the actions at the heart of a civil suit, that attorney risks prejudicing potential jurors against the defendant.

Nevertheless, even if such comments pose a substantial likelihood of materially prejudicing these proceedings, any resulting prejudice can be adequately addressed with less restrictive alternatives, such as “searching questioning of prospective jurors … to screen out those with fixed opinions as to guilt or innocence” and “use of emphatic and clear instructions on the sworn duty of each juror to decide the issues only on evidence presented in open court.” [Arkansas Rule of Professional Conduct 3.6, which generally bars attorney speech that sufficiently risks prejudicing a trial]It is important to discourage any future prejudicial comments. McCutchen might be subjected to suspension by the Arkansas Supreme Court for violating ethical obligations.

Pretrial publicity is not permitted by this court. Previous speech restraints are not an option. The facts do not support the “heavy prejudice” against. [a prior restraint’s]Constitutional validity. However, counsel are reminded to follow Rule 3.6 when making public statements regarding this case. Additional materially prejudicial comments to the media could reduce the efficacy and effectiveness of the options. If the Court is unable to conduct a fair trial, it may have to impose gag orders.

The court also added the following about the attempted enactment of a gag order against the parents

Many of the reasons in Gentile justifying a lower standard for regulating attorney speech in pending cases does not apply to non-attorneys…. [F]or the purposes of this Motion, the Court assumes the higher standard used … for a prior restraint on the press would apply to a prior restraint on a party. But see Marceaux v. Lafayette City-Par. Consol. Gov’t (5th Cir. (2013) (applicing the “substantial likely of prejudice test” to all parties and attorneys). … The School District does not allege Ms. Nelle herself has made or is likely to make prejudicial comments about this case to the press, and therefore the Court currently finds no cause to restrain Ms. Nelle’s speech.