3:21-cv-00460-HEH) COURTHOUSE NEWS SERVICE v. Jacqueline C. Smith

FILED: April 28, 2025
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________
No. 22-2110
(3:21-cv-00460-HEH)
___________________
COURTHOUSE NEWS SERVICE
Plaintiff - Appellant
v.
JACQUELINE C. SMITH, in her official capacity as Clerk of the Circuit Court for
Prince William County, Virginia
Defendant - Appellee
and
COMMONWEALTH OF VIRGINIA
Intervenor/Defendant - Appellee
------------------------------
THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND 38 MEDIA
ORGANIZATIONS
Amicus Supporting Appellant
___________________
O R D E R
___________________

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The Court denies the petition for rehearing and rehearing en banc.
A requested poll of the Court failed to produce a majority of judges in regular active
service and not disqualified who voted in favor of rehearing en banc. Chief Judge Diaz,
Judge Niemeyer, Judge Agee, Judge Wynn, Judge Thacker, Judge Harris, Judge
Richardson, Judge Quattlebaum, Judge Rushing, and Judge Heytens voted to deny
rehearing en banc. Judge King, Judge Gregory, Judge Benjamin, and Judge Berner voted
to grant rehearing en banc. Judge Wilkinson is recused and did not participate in the poll.
Entered at the direction of Judge Rushing.
For the Court
/s/ Nwamaka Anowi, Clerk

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GREGORY, Circuit Judge, dissenting from the denial of petition for rehearing en banc:
A majority of the sitting members of this Court voted to deny en banc review in this
important case. Because this case involves questions of “exceptional importance,”
warranting this Court’s full review, Fed. R. App. P. 40(b)(2)(D), I voted to grant the
petition and, today, I dissent from the denial of Courthouse News’s petition for en banc
review.
This case concerns two First Amendment challenges to Virginia’s regulations on
online access to public court records. Virginia has created an online database, the Officer
of the Court Online Remote Access System (“OCRA”), which allows attorneys and some
government officials to access public court documents. However, by statute, access to this
database is forbidden for non-attorney members of the public (“the Access Restriction”).
Va. Code § 17.1-293(E)(7). In other words, Virginia has a blanket prohibition on
journalists accessing OCRA. The second Virginia regulation at issue prohibits journalists
and others—including attorneys—from disseminating any information obtained from
OCRA (“the Dissemination Restriction”). Va. Code § 17.1-293(H).
Courthouse News, a news service primarily focused on covering developments in
state and local courts, challenged Virginia’s restrictions as violations of the First
Amendment. It argued that the Access Restriction infringed on its right of access and
constituted content-based discrimination, and that the Dissemination Restriction was a
form of prior restraint. The majority of a panel of this Court held that the Access
Restriction was nothing more than a permissible time, place, and manner restriction. And

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without considering the Dissemination Restriction’s blatant unconstitutionality, the panel
majority held that Courthouse News lacked standing to challenge it.
I believe that this case presents three questions of exceptional importance
warranting en banc review. First, it concerns the proper standard of review when the
government provides some members of the public, but not all, access to a repository of
government records. In other words, what level of review is necessary when the
government selectively bars the proverbial doors to the room where it happens? When the
government makes information available, may it arbitrarily and with impunity ban some
from hearing the news of the day? In my view, these questions are not only important, but
timely and essential to protecting the freedom of the press—a freedom that in turn gives
vigor and vibrancy to the people’s rights of free speech and assembly.
Second, it presents the question of which standard of review to apply when the
government bars the press from disseminating admittedly public and non-confidential court
documents. Respectfully, I believe that both we and the Supreme Court have squarely held
that dissemination restrictions of the type that Virginia imposes here are subject to the
highest level of scrutiny. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (1975)
(“[T]he First and Fourteenth Amendments command nothing less than that the States may
not impose sanctions on the publication of truthful information contained in official court
records open to public inspection.”); see also Soderberg v. Carrion, 999 F.3d 962, 967 (4th
Cir. 2021). To the extent that there is any uncertainty on this matter, it certainly warranted
the review of the full court.

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Third, this case presents questions on the scope of First Amendment standing
jurisprudence. As the Supreme Court has repeatedly affirmed, standing requirements are
lessened in the First Amendment context. Sec’y of State of Md. v. Joseph H. Munson Co.,
467 U.S. 947, 956 (1984); see also Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013)
(“First Amendment cases raise unique standing considerations that tilt dramatically toward
a finding of standing”) (quoting Lopez v. Candaele, 630 F.3d 775, 781 (9th Cir. 2010)).
Indeed, “[t]he leniency of First Amendment standing manifests itself most commonly in
the doctrine’s first element: injury-in-fact.” Wikimedia Found. v. Nat’l Sec. Agency, 857
F.3d 193, 212 (4th Cir. 2017) (quoting Cooksey, 721 F.3d at 235). Yet, despite this, the
panel majority’s opinion erects another roadblock in the way of First Amendment litigants:
it requires journalists to identify their would-be sources (i.e. “a speaker willing to convey
the information to [it]”) if the challenged restriction was lifted. Courthouse News Serv. v.
Smith, 126 F.4th 899, 917 (4th Cir. 2025) (cleaned up). Because Courthouse News failed
to name such an attorney, the panel majority concluded Courthouse News’s injury was “too
speculative to support standing.” Id. (cleaned up). But, we have, in the past, balked at
requiring journalists to identify to their would-be sources. Overbey v. Mayor of Baltimore,
930 F.3d 215, 228, 228 n.13 (4th Cir. 2019). And for good reason. But-for the
Dissemination Restriction, Courthouse News certainly could find a lawyer in Virginia
willing to provide it with information obtained from OCRA. Any assertion to the contrary
strains credibility and contradicts common sense. The panel majority’s pleading
requirement merely puts form over substance. To the extent that our precedent may suggest
otherwise, en banc review was appropriate to correct this error.

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These three questions are of monumental importance. And I believe the panel
majority’s opinion—and its endorsement of Virginia’s restrictions—poses a grave threat to
the independence and integrity of the press and our system of ordered liberty. “There is
little need to reiterate that the freedoms of speech and of the press rank among our most
cherished liberties.” Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rels., 413 U.S.
376, 381 (1973). From the Federalist Papers to the Pentagon Paper,* newspapers have
played a vital role in our democracy. As Thomas Jefferson observed, “[o]ur liberty depends
on the freedoms of the press, and that cannot be limited without being lost.” Neb. Press
Ass’n v. Stuart, 427 U.S. 539, 548 (1976) (quoting 9 Papers of Thomas Jefferson 239 (J.
Boyd ed. 1954)). So, the press’s constitutional protections “are not for the benefit of the
press so much as for the benefit of all of us.” Time, Inc. v. Hill, 385 U.S. 374, 389 (1967).
The essential freedom of press extends to the freedom to gather information. “‘In
the First Amendment, the Founding Fathers gave the free press the protection it must have
to fulfill its essential role in our democracy.’” Pittsburgh Press Co., 413 U.S. at 381–82
(quoting N.Y. Times Co., 403 U.S. at 717 (Black, J. concurring)). This includes the
* In a case that, as Justice Douglas predicted, has gone “down in history as the most
dramatic illustration of that principle [that the government may not suppress the press],”
N.Y. Times Co. v. United States, 403 U.S. 713, 724 (1971) (per curiam) (Douglas, J.
concurring), the Supreme Court held that the government’s attempts to enjoin the New
York Times and the Washington Post from publishing the Pentagon Papers constituted an
unconstitutional form of prior restraint, id. at 714 (per curiam). In his concurring opinion,
Justice Black affirmed that the First Amendment ensures that “[t]he press . . . [serves] the
governed, not the governors.” Id. at 717 (Black, J. concurring). An injunction preventing
the publication of the Pentagon Papers would “amount[] to a flagrant, indefensible, and
continuing violation of the First Amendment” and “make a shambles of the First
Amendment.” Id. at 715 (Black, J. concurring). Today, I fear, this Court turns it back on
these fundamental principles, so eloquently expressed by Justice Black.

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“freedom to listen.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980)
(plurality opinion). “[L]egitimate news gathering activities . . . underlie the proper
functioning of the First Amendment,” In re Murphy-Brown, LLC, 907 F.3d 788, 800 (4th
Cir. 2018), so “without some protection for seeking out the news, freedom of the press
could be eviscerated,” Branzburg v. Hayes, 408 U.S. 665, 681 (1972). This includes access
to government records. After all, “[a] free press cannot be made to rely solely upon the
sufferance of government to supply it with information.” Smith v. Daily Mail Publ’g Co.,
443 U.S. 97, 104 (1979).
Virginia’s and the panel majority’s primary retort—that Courthouse News can send
a journalist to manually retrieve the same documents from courthouses—distorts the
question. The panel majority treats OCRA as a window into the courthouse and reasons
that, because Courthouse News can enter the physical courthouse, closing OCRA to it and
other journalists raises no constitutional concerns. But the proper analysis examines
OCRA itself––not any other potential method that journalists could use to access similar
information. And it is undisputed that Virginia explicitly and intentionally shuts OCRA’s
doors to journalists. Virginia is picking and choosing who has access to a repository of
public court records; records which the Supreme Court has recognized are “public
property.” Cox Broadcasting Corp., 420 U.S. at 492 (quoting Craig v. Harney, 331 U.S.
367, 374 (1947)). This flies in the face of the First Amendment.
The panel majority’s solution ignores geography and consigns journalists to a never-
ending road-trip. Virginia is a vast state, home to over one hundred courthouses. We live
in an era of shrinking newsrooms, posing a particular threat to state and local news

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coverage. See Andrew v. Clark, 561 F.3d 261, 272–73 (4th Cir. 2009) (Wilkinson, J.
concurring). In reality, news organizations like Courthouse News are not able to fund the
kind of trips the majority envisions. Instead, they focus coverage on Virginia’s most
populous and centrally located jurisdictions. See J.A. 154. It is Virginia’s small and rural
communities—those nestled in the foothills of the Appalachian Mountains or dotting the
shoreline of the Chesapeake Bay—who suffer the most. The Court today has endorsed an
effective media blackout on vast swaths of the Commonwealth and its people. But these
small communities deserve a press capable of shining a light on the faults and failures of
their local governments’ policies. As history has shown us, sometimes the smallest halls
of power breed the greatest injustices.
As James Madison warned, “[a] popular Government without popular information
or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both.”
Branzburg, 408 U.S. at 728 (Stewart, J. dissenting) (quoting 9 Writings of James Madison
103 (G. Hunt. Ed. 1910)). For centuries, the judiciary has stood as a proud defender of the
press—just as the press has served to protect the integrity of the justice system. See Neb.
Press Ass’n, 427 U.S. at 559–60 (“[a] responsible press has always been regarded as the
handmaiden of effective judicial administration.”) (cleaned up). But today, we abandoned
our post.
As the saying goes, democracy dies in darkness. And today, this Court endorsed
two regulations that cast a dark pallor over the functioning of Virginia’s justice system.
Because this case warrants further review, I respectfully dissent from the denial of en banc
review.

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