Legal Commentary

An unexpected issue in the lawsuit filed against Duke University and the City of Durham by the 38 current and former lacrosse players who were not indicted in the scandal over false sexual assault claims (See here, here, here, and here). The plaintiffs' legal team (or PR professionals associated with the legal team) has started a blog called Duke Lawsuit, as the "official source of information" about the lawsuit, containing links to all the documents, filings, and events related to the case, as well as a column of quotations from commentators about how badly the players were mistreated. It has the tagline "Accountability. Responsibility. Change", presumably reflecting their public statement of goals in pursuing this lawsuit. It also links to other sites and blogs that do contain some very pointed criticism of Duke and the City of Durham, including KC Johnson's highly critical Durham-in-Wonderland.

Duke (joined by the City) has filed a motion alleging that the web site, along with a press conference and press release from February (when the lawsuit was initiated), violates Rule 3.6 of the North Carolina Rules of Professional Conduct (prohibiting extra-judicial attorney speech that will have a "substantial likelihood of materially prejudicing an adjudicative proceeding"), which has been incorporated into a local rule of the Middle District of North Carolina. Duke argues that the web site and the information contained "incendiary" information designed and likely to influence public, and thus ultimately jury, understanding and opinion about the case.

Some thoughts:

First, in the "Irony Can Be Pretty Ironic" File: This whole mess started, in part, because of improper extrajudicial statements by former DA Mike Nifong about the case, statements that ultimately resulted in Nifong's disbarment. Michael Cassidy argues in a recent paper that many of Nifong's statements were constitutionally protected and that the application of Rule 3.6 to his speech violated the First Amendment. This case illustrates Cassidy's baseline concern for the overbreadth and overuse of Rule 3.6.

Second, although I am not well versed in ethics rules and their constitutional limits, I cannot believe this web site could be sanctioned, consistent with the First Amendment. The web site simply provides access to outside sources of information, most of which are documents filed as part of the (not sealed) record in federal litigation. There is (thus far) little or no editorializing or commentary about the case itself. Under the First Amendment, government cannot punish the dissemination of truthful, lawfully obtained information on a matter of public concern, except to serve an interest of the highest order--and no government interest has never been held high enough to justify such punishment. It seems to me that is what the web site is doing--providing access to other, lawful sources of truthful information (particularly the pleadings and filings) about the case.

Duke's argument seems to revolve around the permanence of the web site. The information on it is available permanently, around-the-clock, accessible from anywhere. Thus, even though everything on the site is otherwise publicly accessible, it does something different by bringing it all together in one, easily accessible place. That just seems silly to me, in part because it logically leads to the conclusion that all web-based reportage of ongoing litigation has the tendency to materially prejudice that litigation. So, if a site such as this one interferes with litigation, wouldn't all such web sites?

Third, Duke argues that plaintiffs' lawyers violated Rule 3.6 by holding the press conference (at the National Press Club) and issuing a press release when the complaint was filed, despite the fact that the statements made in both were either quotations or paraphrases from the Complaint itself. Rule 3.6 excepts from its coverage statements appearing in public documents. Duke's explanation is that the statements, although reflected the content of the pleading, were "incendiary." If that is so, I would expect to see a Motion to Strike such "impertinent, or scandalous matter." That no such motion has been filed speaks volumes about the actual propriety of these public statements about the case.

This motion will (and should) fail. But it illustrates important changes that the web and blogs bring to civil litigation, especially high-profile cases such as this one. We want the public to be informed about the judicial system and about important litigation. That is why court records typically should remain open and proceedings typically should be open to the press and to the public. But, realistically, most members of the public cannot avail themselves of the opportunity to get to the courthouse to read the case file. Keeping the public informed really means allowing press coverage of the case, thus the public receives only filtered information about the case. A blog such as this one makes it much easier for the public to stay informed and to gather unfiltered information about the case--clearly an important service to the public and to the ideal of open courts. That being so, can it really be that the blog becomes inappropriate because its source is connected to the attorneys involved in the case?