A South Carolina Legal Technology Case is Likely Headed to the Supreme Court – Why You Should Care – Josh Blandi Writes in Law Technology Today

Court records are public records. Protecting the public’s fundamental First Amendment right to access court records online through automated data collection is a cornerstone of UniCourt’s mission to make court data more organized, accessible, and useful for all. 

We’re thrilled to share UniCourt’s CEO and Co-Founder, Josh Blandi’s latest article that was published in the American Bar Association’s online publication, Law Technology Today: “A South Carolina Legal Technology Case is Likely Headed to the Supreme Court – Why You Should Care.” 

Josh’s article highlights the recent ruling in South Carolina State Conference of the NAACP v. Kohn et al and the important role this case may play in asserting that public access to court data through automated collection of online court records is a fundamental First Amendment right. 

In this article, Josh also shares how improving access to online court records has critical implications for law firm business development, litigation strategy, and docket management, as well as achieving access to justice for consumers. 

Here below is an excerpt from the introduction of Josh’s article:

Public access to court data through automated collection of online court records is a fundamental First Amendment right and it is critical to meaningful access to the United States legal system. The recent ruling in South Carolina State Conference of the NAACP v. Kohn et al, denying the motion to dismiss the lawsuit brought by the NAACP alleging that South Carolina’s categorical ban on automated data collection violates the First Amendment, is an important victory for open data advocates and another step forward in a case that may very well be decided by the Supreme Court of the United States in the coming years.

This article will discuss the impact of the court’s ruling against the broader backdrop of the push to improve online access to court data, as well as the implications it has for the future of the legal profession and lawyers’ ability to better manage their practices and further improve access to justice.

Categorical Bans of Court Data Scraping Violate the First Amendment

In the wake of a statewide eviction crisis in South Carolina, the South Carolina State Conference of the NAACP (“NAACP”) launched a Housing Navigator Program in February 2021, which provides free eviction-prevention services, investigates community-wide patterns of eviction filings, and advocates for greater access to fair housing through Fair Housing Act litigation and other means.

To address the housing crisis in South Carolina, the NAACP’s Housing Navigator Program sought to scrape online housing court records, so it could uncover tenants with eviction actions filed against them and further assist them with fighting those eviction actions. The NAACP also sought to acquire South Carolina court data through automated data collection to conduct broader statewide advocacy armed with data-driven evidence of issues connected to the eviction crises.

However, the Court Administration of the State of South Carolina has sought to categorically ban any automated collection of court data from the Public Index, the state’s repository of public court records. This in turn ultimately led to the NAACP, represented by the American Civil Liberties Union (ACLU), filing a lawsuit in March of 2022, asserting that South Carolina’s blanket ban on court data scraping violates the First Amendment by “restricting access to, and use of, public information, and prohibiting recording public information in ways that enable subsequent speech and advocacy.”

Fast forwarding to January 2023, the NAACP and ACLU scored a critical victory and a first step in their lawsuit, when Judge Mary Geiger Lewis denied a motion to dismiss brought by South Carolina, ruling that litigation to lift the categorical ban on automated data collection of online court records can proceed.

While the developments in NAACP v. Kohn et al represent a positive step forward for cementing the position that categorical bans of court data scraping are unconstitutional violations of the First Amendment, there are other cases, such as Courthouse News Service v. Hade et al, which present other challenges to the ability to aggregate court data online.

In Courthouse News Service v. Hade et al, U.S. District Court Judge Henry E. Hudson for the Eastern District of Virginia granted summary judgment in favor of the Commonwealth of Virginia, finding that the public does not have a protected First Amendment right to remotely access civil court records online, even though attorneys are granted access to those same records electronically.

Reaching this ruling, Judge Hudson decided that the Commonwealth of Virginia’s decision to restrict public access to online court records was a time, place, and manner restriction, leading to relaxed scrutiny of the Commonwealth’s decision to severely limit the fundamental First Amendment right to access court records in the twelfth most populous state in the United States of America.

Soon after this ruling, Courthouse News Service filed an appeal in October with the Fourth Circuit Court of Appeals, where the case is now pending.

You can read the full article here on Law Technology Today.

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