Pursuant to the order issued by Judge Federico Moreno, the chief judge of Florida’s Southern District, the district’s policy for its Case Management/Electronic Case Files (CM/ECF) system was changed to state that users “shall not electronically file materials which would otherwise be inappropriate for display or distribution to the public, including minors, through PACER or the CM/ECF system.”
“These inappropriate materials include images (not textual descriptions) depicting sexual acts or excretory acts that could be described as pornography or indecent or vulgar even if not legally obscene,” the revised policy states. “A document containing such visual materials may only be filed electronically in a redacted version describing in words the images, but removing all images.”
The new policy allows users to submit such images through conventional means, along with a motion to seal the filing. The policy also contains a warning that all parties submitting filings should note that “failure to protect such images from public dissemination, which includes minors, may subject them to the disciplinary authority of the court.”
Under the new rules, once such images have been filed in accordance with the policy, the judge in each individual case will determine whether the images are relevant to the case in question.
Moreno issued his order on Oct. 5 in response to a filing submitted by Jack Thompson, a controversial attorney based in Coral Gables, Fla. Thompson’s filing included explicit depictions of gay sex acts as part of his civil action against the Florida State Bar. Thompson has accused the Bar of conspiring against him along with one of his rival attorneys, while the Bar is seeking to discipline Thompson in response to a variety of complaints that have been filed against him
Some critics have asserted that Moreno’s order violates the 1st Amendment while others have questioned whether it could run afoul of other constitutional guarantees. Moreno asserted, however, that his order is both proper and within his discretion to issue.
“I don’t think there’s a 1st Amendment issue,” Moreno said, according to the Daily Business Review. “I’m not restraining anything. All I’m doing is having [the images] sealed. They can file anything in words. This is just temporary so people will have more time to meditate on whether something is necessary to be filed.”
Moreno added that the public, including children, can access court documents, and that he issued the order “to protect everyone.”
Attorney Lawrence Walters told XBIZ that while the sealing of court documents “is generally within the discretion of the trial court judge,” there are some legitimate concerns to be had over the ruling.
“Given the constitutional right to a speedy, public trial, there are limits as to what can be sealed, and for how long,” Walters said. “For example, documents containing trade secrets or confidential law enforcement information are routinely sealed at the request of one or both sides in a case.”
Walters told XBIZ that due to the nature of the images, Moreno’s ruling is likely on solid ground, legally speaking.
“Sealing sexually explicit images will probably be upheld, if challenged, since all these court documents are online these days, and the court could inadvertently end up circulating images that are inappropriate for minors,” Walters said. “This is not a big risk, but in the off chance that something like this occurs, the public outcry would be substantial, so I can understand why the judge would want to take reasonable precautions.”
Indeed, Moreno noted that his order cited one of the few reasons why sealing documents would be acceptable to the court, and said that judges are usually the ones who oppose sealing of information filed with the court.
“Lawyers never have any reluctance filing things under seal,” Moreno said. “Judges generally do not like to seal things.”
