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In the late 1980s, the fortunes of Nick Navarro, the sheriff of Broward County, Florida, were on the rise. Elected in 1984 and on his way to nearly tripling his agencys budget, he was also demonstrating a flair for dealing with the mediaP. T. Barnum with a Cuban accent, said one South Florida defense lawyer. Navarro and his office starred in the inaugural season of Cops, the pioneering Fox reality-TV series, and made national news by clashing with the rap star Luther Campbellincluding having him arrestedfor sexually explicit lyrics on albums by Campbells 2 Live Crew.

Navarros relations with the media werent universally cordial, however, and spawned a constitutional challenge that may now have profound implications for another publicity-loving Florida politician, Governor Ron DeSantis: It exposes one of DeSantiss most recent high-profile gambits as a brazen violation of the First Amendment.

On November 17, 1988, a Fort Lauderdale daily, The Broward Review, ran a front-page article that Sheriff Navarro found especially vexing. It was headlined Navarro Failed to Act on Corruption Warnings, with the subhead Broward Sheriff didnt pursue reports that a Bahamian cocaine trafficker was bribing his deputies.

The story was the latest in a series the Review had run criticizing the Broward sheriffs office, the countys largest law-enforcement agency, and Navarro was fed up. The morning it appeared, he ordered a halt to the 20-year business relationship between the sheriffs office and the Review, which, along with covering local business and law, had been the chief publishing venue for required public notices of sheriffs sales and forfeitures. This revenue amounted to thousands of dollars each yearnot a fortune, but enough to matter to a small daily.

From the July/August 2020 issue: The dark soul of the sunshine state

I was the editor in chief of the Review (later renamed the Broward Daily Business Review) and its sister papers in Miami and West Palm Beach, which were owned by American Lawyer Media, the legal publisher created and run by the journalist and entrepreneur Steven Brill. When I told Brill what Navarro had done, he conferred with his friend Floyd Abramsthe First Amendment litigator who had represented The New York Times in the Pentagon Papers caseand we did the traditional American thing: We sued.

We won in 1990, after a two-day trial in the U.S. District Court in Miami. We were upheld unanimously on appeal to the Eleventh Circuit in Atlanta. Navarros appeal to the U.S. Supreme Court was rebuffed.

We won because what Navarro did was plainly illegal. He had used the power of his public office to punish my newspaper for exercising its First Amendment rights.

The parallels between Navarros actions and those of the current governor are unmistakable. DeSantis has spearheaded the successful move to withdraw something of value from the Walt Disney Companyits 50-year control of the special taxing district that essentially governs a 25,000-acre Central Florida spread including Disney Worldin reprisal for Disneys vocal criticism of Floridas Parental Rights in Education Act, assailed as homophobic. With DeSantis, as with Navarro, public authorities withheld a public benefit as punishment for exercising a core constitutional right, and yesterday Disney finally sued.

Even in 1988, the law in this area was neither subtle nor oblique. Brill told me he got the idea of suing the sheriff from his recollections of a class in constitutional law taught by Thomas I. Emerson, a legendary First Amendment scholar at Yale, and Abrams was able to rely on fresh precedent: a 1986 case out of Mississippiupheld by the Fifth Circuitthat was almost precisely on point. There, the federal court ordered a local governing board to restore public-notice advertising it had yanked from a local newspaper in retaliation for the papers criticism of its performance.

The principle wasnt new even then. In a 1972 U.S. Supreme Court case brought by a fired community-college teacher, Associate Justice Potter Stewart wrote the majority opinion: For at least a quarter-century, this Court has made clear that even though a person has no right to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interestsespecially, his interest in freedom of speech.

The main difference between the Navarro case and the DeSantis-versus-Disney affair was Navarros refusal to admit to his motives. In deposition, Navarro acknowledged that he had learned of the November 17 article from an aide on the morning it ran, while he was vacationing in the Bahamas. Still, he claimed to have ordered the severing of the business relationship out of concern that the Reviews circulation was too low, even though he could cite no circulation numbers or indications that sales picked up after ads began running elsewhere. (During a break in Navarros deposition, the Reviews lead counsel, Abrams, said to me, Now we know what his defense isa fabrication.) Elsewhere, Navarro offered further justifications for what hed done, telling one Review reporter he ran into in a convenience store, A mans got to do what a mans got to do.

Unlike Navarro, however, theres no fabrication or ambiguity when it comes to the recent actions of Florida Governor DeSantis and state lawmakers. DeSantis has proudly denounced Disney for its wokeness, in particular its public opposition to the Dont Say Gay law, which severely restricts classroom instruction related to sexual orientation and gender. I think they crossed the line, DeSantis said of Disney last spring. Were going to make sure were fighting back when people are threatening our parents and threatening our kids.

In a tweet a few weeks later, DeSantis elaborated: Youre a corporation based in Burbank, California, and youre going to martial your economic might to attack the parents of my state? he wrote. We view that as a provocation, and were going to fight back against that.

The result was a bill, passed by the legislature, to strip Disney of authorization granted in 1967 that allowed it to administer the expanse outside Orlando where Disney World is located.

The money is of a different order of magnitude, but at their core, the anti-Disney moves are illegal for the same reason Sheriff Navarros advertising cutoff was illegal: They are governmental actions that punish a private person or entity for exercising constitutional rights.

From the May 2023 issue: How did Americas weirdest, most freedom-obsessed state fall for an authoritarian governor?

As Abrams wrote to me, Florida didnt have to make any deal with Disney in the first place. It was free to seek to change the terms of it or even abandon it for all sorts of reasons except one: that Disney exercised its First Amendment right to speak out on an issue of public policy. Just as Sheriff Navarro was barred by the First Amendment from cancelling a commercial relationship with a publication because it had criticized him, Gov. DeSantis violated the First Amendment by stripping Disney of a benefit because of its public position on anti-gay rights legislation.

Likewise, the First Amendment scholar Erwin Chemerinsky, the dean of UC Berkeleys law school, wrote in an email to me, The law is clear that retaliation against a personthat includes a corporationfor its speech violates the First Amendment. Gov. DeSantis and the Florida legislature have done exactly that, and said that is what they were doing, in its reprisal against Disney.

Navarro lost his race for a third term as sheriff and left office in 1993. At the time, some commentators blamed his media notoriety, especially his dustup with 2 Live Crew, for his defeat. (Navarro passed away in 2011.) The Broward Review case seems to have played no role in his downfall. Indeed it did little beyond winning my paper $23,000 in damages and our lawyers hundreds of thousands of dollars in fees.

It would, however, be a delicious sort of irony if the rulinga response to Navarros petulant and vindictive actionsnow resurfaces as his most enduring contribution to the rule of law, and affirms anew one of our countrys most basic principles.

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DeSantiss Anti-Disney Moves Are Illegal - The Atlantic

For more than a year, Florida Gov. Ron DeSantis has attacked the Walt Disney Co., derisively referring to it as the Magic Kingdom of Woke Corporatism. But on Wednesday, the company filed suit, alleging that DeSantis had violated its constitutional rights. The companys case seems strong and may well make DeSantis regret the day he decided to pick this fight in his bid to be the rights leading culture warrior.

DeSantis describes Disneys statement as a declaration of war.

On March 28, 2022, DeSantis signed into law the Parental Rights in Education bill called the Dont Say Gay bill by critics. Disney released a statement via Twitter the next day, arguing that the bill should never have passed and should never have been signed into law. The company wrote that its goal was for this law to be repealed by the legislature or struck down in the courts, adding that it would remain committed to supporting the national and state organizations working to achieve that.

DeSantis was enraged. I think they crossed the line, he warned during a news conference in Tallahassee the next day. In his book, The Courage to Be Free: Floridas Blueprint for Americas Revival, DeSantis describes Disneys statement as a declaration of war. The governor claims that by promising to work to repeal the bill, Disney was pledging a frontal assault on a duly enacted law of the State of Florida.

DeSantis is wrong. Disney merely expressed a contrary opinion. And expressing that opinion is protected by the First Amendment. The governors campaign of retaliation for exercising that right in turn violates that law.

Disney has the absolute right to express its opposition in any number of ways. For instance, it can financially back other like-minded groups, lobby Florida lawmakers, buy advertisements, produce a show to explain why it thinks the law damages society or just tweet out a statement.

The Supreme Courts decision in the Citizens United case supports Disneys claim. Many argue (and we agree) that the decision unfairly skewed the ability of wealthy donors to influence elections. But the fact remains that under current Supreme Court case law, corporations have First Amendment rights when it comes to political speech. That means the government cannot retaliate against a corporation for exercising its right to free speech concerning proposed or enacted legislation. Thats exactly what DeSantis did.

In his own book, DeSantis essentially admits that he retaliated against Disney in a manner that clearly violates its First Amendment rights. He does not cite any illegal behavior on the companys part simply its political views. Once Disney declared war on Florida families, DeSantis writes of Disneys opposition to the law, it was clear to me that the companys executives in Burbank had not considered the lack of real leverage that Disney has over the State of Florida. That leverage included the fact that Disney couldnt easily pick up and move its massive footprint, as well as the special privileges the company enjoys by effectively running its own local government the Reedy Creek Improvement District.

The district was established in 1967 by an act of the Florida Legislature and grants Disney favorable financial terms, including a special tax status. DeSantis targeted this longstanding arrangement only after Disney publicly expressed its opposition to the Dont Say Gay bill an obvious violation of Disneys First Amendment rights.

In fact, DeSantis writes that it would have been unthinkable to get the Florida Legislature to re-evaluate or eliminate the district just a few weeks before Disney executives made the fateful decision to take sides in the woke culture wars. DeSantis pays lip service to the right that the Walt Disney Co. and its executives have to indulge in woke activism. But he quickly adds that Florida did not have to place the company on a pedestal while they do so, arguing that Disneys special arrangement became fair game.

In February, the Florida state Legislature followed through on DeSantis plan by voting to give the government control of the districts board. DeSantis then replaced the board with a new entity known as the Central Florida Tourism Oversight District. DeSantis loyalists serving on the new district then voted to invalidate existing contracts with Disney. This apparent violation of Disneys First Amendment rights prompted the company to sue.

Disney also has a winning argument when it claims that the new districts abrogation of contracts violates the Contracts Clause of the Constitution. That clause prohibits a state from passing a law impairing the Obligation of Contracts. When it comes to contracts made with the state itself, the Supreme Court has held that any interference must be necessary to serve an important governmental purpose.

The governmental purpose here as repeatedly articulated by DeSantis and other Florida Republicans was to retaliate against Disney for its woke politics. Far from being important, that governmental purpose is legally impermissible.

DeSantis fight with Disney isnt the first time he has violated the First Amendment. In January, a federal judge found that DeSantis violated both the federal and state Constitution when he fired a state prosecutor for speaking out about abortion rights (another aspect of the ruling is on appeal). U.S. District Judge Mark Walker also ruled DeSantis had violated the First Amendment by pushing an anti-riot law that unduly limited speech and assembly protections and a Stop W.O.K.E. bill prohibiting discussion of certain racial issues. Meanwhile a three-judge panel of the 11th U.S. Circuit Court of Appeals said his bill punishing social media companies also violated free speech protections. The list goes on and on.

If Florida is the bastion of freedom that Ron DeSantis claims it is, then the First Amendment should be sacrosanct. In DeSantis hands, it no longer is. That isnt part of a blueprint for Americas revival, as he claims. On the contrary, it is as un-American as you can get. Fortunately, Disney seems to have sufficient legal grounds to defeat DeSantis in his latest assault on the Constitution.

Ambassador Norman Eisen (ret.) is a senior fellow at Brookings and the co-author of Trump on Trial, a new guide to possible crimes of the former president.

Josh Stanton is Of Counsel at Perry Guha LLP. He previously served as co-director of the Criminal Practice Clinic at Vanderbilt Law and as a public defender in Memphis, Tennessee.

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DeSantis war on Disney doesnt stand a chance in court - MSNBC

STORY: After a year-long war of words between Florida Governor Ron DeSantis and Walt Disney, the fight is now going to court.

The entertainment giant earlier this week sued the Republican leader to prevent the state from ending the company's virtual autonomy in central Florida where it has its theme parks.

Disney has accused the governor of retaliation after the business spoke out against DeSantis's efforts to strike discussions of sex and gender from schools.

The lawsuit has now led some to believe that DeSantis may regret his verbal attacks on the media company.

Kendrick: Disney does have a strong case

Leslie Kendrick is the director of the Center for the First Amendment at University of Virginia School of Law

Disney has essentially a special relationship with the government of Florida, has a deal that not everyone has, although there are many other entities that have these that have enjoyed special tax districts that are similar to what Disney has enjoyed. [FLASH] But the government can't condition you keeping that benefit on your political views. "

The 73-page lawsuit comes a year after the company criticized a Florida law banning classroom discussion of sexuality and gender identity with younger children, prompting DeSantis to repeatedly attack "woke Disney."

Disney said DeSantis' actions amounted to a "targeted campaign of government retaliation."

The reason we have the five freedoms of the First Amendment is primarily to keep a check on people in power."

Ken Paulson is a First Amendment expert at Middle Tennessee State University:

"If our government abuses its power, we have the free speech right to call them out. We have the free press right to investigate and report on them. We have the right to assemble and raise our voices in protest. And we have the right to petition government for redress of grievances. Four of the five freedoms in the First Amendment are designed to keep government honest and to keep those in charge from using their power to violate our collective rights under the Bill of Rights.

Story continues

DeSantis: "I don't think the suit has merit. I think it's political."

DeSantis has called Disney's lawsuit a politically motivated attack and accused the company of lacking accountability.

The governor's spokesman said on Wednesday that his office was unaware of any legal right that allows a company to operate its own government or maintain special privileges, a reference to the decades-old district that is home to Disney World.

For Disney to prevail, a jury would have to find a connection between the company's comments and the changes to the development district, renamed under DeSantis' control as the Central Florida Tourism Oversight District.

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Desantis feud with Disney to test First Amendment - Yahoo News

The prominent feminist legal scholar Catharine MacKinnon in 2020 published a law review article making an argument that has become depressingly commonthat the First Amendment has been transformed over the last century from a shield of the powerless to a sword of the powerful, including authoritarians, racists and misogynists, Nazis and Klansmen. MacKinnon is by no means alone in this opinion.

The idea that the First Amendment has been weaponized by the powerful has gained increasing traction in the digital age, when social media can supercharge political tribalism and amplify extreme voices. Free Speech Is Killing Us read the headline of a 2019 New York Times op-ed by New Yorker reporter Andrew Marantz, and similar arguments have been published frequently in elite mainstream outlets, including The New York Times Magazine and the Los Angeles Times.

But look closer and the facts on the ground paint a very different picture than the breathless narratives of weaponized free speech. The truth is that core First Amendment principles of viewpoint and content neutralitywhich mean the government may never restrict speech simply because officials disagree with or disapprove of a particular opinion, idea, or topichave been essential for unconvinced progressives like MacKinnon to speak, read, perform, teach, and protest in states where majorities are hostile to progressive ideas.

In Llano County, Texas, a group of concerned citizens gradually morphed into an official censorship board, removing inappropriate books without input from librarians. In true authoritarian fashion, they even barred their fellow citizens from attending their meetings. The 17 books that these citizen-censors got banned as inappropriate included works on LGBT+ issues as well as historical books about the origins of the Ku Klux Klan. But on March 30, a federal judge in Texas issued a preliminary injunction ordering the books to be returned to the librarys shelves. The judge reminded the censors that the First Amendment protect[s] the right to receive information, and it prohibits the removal of books from libraries based on either viewpoint or content discrimination.

That same month in Tennessee, a Trump-appointed judge delayed the implementation of a law criminalizing public drag performances on First Amendment grounds. The judge sided with the plaintiffa Memphis-based LGBTQ theater grouppreliminarily finding that the laws prohibition of expressive conduct was impermissibly content based as well as overly broad and vague. The judge concluded that the record here suggests that when the legislature passed this statue, it missed the mark.

In Florida, the First Amendment has provided the most important protective armor for those on the wrong side of Gov. Ron DeSantis War on Woke.

Several elements of DeSantis controversial Stop W.O.K.E. Act have been preliminarily halted by courts due to First Amendment concerns. In November, a federal court ordered Floridas public universities not to enforce the law, the tentacles of which reach into university classrooms just as they reach into K-12 classrooms and private employers' trainings.

The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoint, wrote U.S. District Judge Mark Walker. Defendants argue that, under this Act, professors enjoy academic freedom so long as they express only those viewpoints of which the State approves. This is positively dystopian.

Judge Walker also had to safeguard the First Amendment right of Floridians to peacefully protest.

In the wake of Black Lives Matter protests following the murder of George Floyd, the Florida Legislature passed a 2021 anti-riot law that was written in such vague and overbroad language, the judge wrote in his decision, that authorities could have used it to prosecute peaceful protesters or people close to a demonstration that turned violent. If this court does not enjoin the statutes enforcement, wrote Walker, the lawless actions of a few rogue individuals could effectively criminalize the protected speech of hundreds, if not thousands, of law-abiding Floridians. The law remains blocked pending an authoritative state supreme court interpretation.

These recent decisions convincingly demonstrate that the First Amendment serves an essential role in protecting minorities against majoritarian intolerance and revanchism.

In Florida, the First Amendment has provided the most important protective armor for those on the wrong side of Gov. Ron DeSantis War on Woke.

While its true that the First Amendment permits speech that many progressives find abhorrent and discriminatory, thats a feature not a bug of robust and principled free speech doctrine. And its not based on white supremacist or right-wing ideology. Rather, this doctrine is informed by a potent mix of universalist ideals and the lived experience of a nation, including groups and individuals who have felt the oppressive consequences when these ideals have been violated or selectively applied.

Thurgood Marshalls illustrious career highlights the mutually reinforcing relationship between free speech principles and the fight for racial justice. Marshall was the legal mastermind of the NAACPs highly successful campaign to transform the First Amendment into a legal shield for the civil rights movements ability to protest peacefully. While serving as the Supreme Courts first black justice, Marshall penned the majority opinion in Mosley v. Chicago, which declared, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Its impossible to believe that Marshalls opinion reflected a wish to punch down on the people he had devoted his career to defending. To the contrary, the immediate beneficiary of that rulingalong with so many landmark free speech rulingswas an African American who was protesting racially discriminatory policies.

Fortunately, there are still many prominent voices committed to both freedom and equality who recognize that these values are indispensable pillars of justice. When Stanford Law School Dean Jenny S. Martinez wrote a letter denouncing students disruption of a talk by a conservative federal judge last month, she explicitly highlighted the importance of content and viewpoint neutrality for the weak and marginalized.

I can think of no circumstance in which giving those in authority the right to decide what is and is not acceptable content for speech has ended well, Martinez reminded her law students. Indeed, the power to suppress speech is often very quickly directed towards suppressing the views of marginalized groups.

Martinez, like many progressives and liberals before her, understands that free speech has been and continues to be a powerful shield protecting the marginalized and the oppressed. Across America today, the real danger is not the weaponization of free speechas some like MacKinnon contendbut its suppression by powerful lawmakers and intolerant majorities. Fortunately for Americans of all stripes, judges continue to ensure that free speech remains an engine of both equality and freedom.

Jacob Mchangama is the CEO of the Future of Free Speech Project, Research Professor at Vanderbilt University, and author of Free Speech: A History From Socrates to Social Media.

Nadine Strossen was national president of the American Civil Liberties Union (ACLU) from 1991-2008, and is professor emerita at New York Law School. She is the author of HATE: Why We Should Resist It with Free Speech, Not Censorship.

Both are Senior Fellows at the Foundation for Individual Rights and Expression (FIRE).

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The First Amendment Is for the Powerless and Marginalized - The Daily Beast

Bristow challenged the law as violating the First Amendment right of access to court records; the court concluded that he had standing to do so, but concluded that he was unlikely to succeed on the merits:

To determine whether the First Amendment guarantees a qualified right of access to a particular category of court records, courts apply the "experience and logic" test. In applying the "experience and logic" test, courts assess (i) whether the category of documents at issue has "historically been open to the press and the general public" and (ii) whether public access to those records "plays a significant positive role in the functioning of the particular process in question." A qualified right of access attaches where both prongs are met. "Under a qualified right, sealing is appropriate if it is 'essential to preserve higher values' and is 'narrowly tailored' to serve such ends."

Bristow asserts that the "experience and logic" test is satisfied because "[f]iled divorce complaints in the State historically have been accessible to the general public as a matter of routine prior to October 1, 2022," when the statute went into effect. The State does not disagree.

Although as a general matter divorce complaints may have been accessible to the public prior to Mich. Comp. L. 552.6a's enactment, a wider historical perspective demonstrates that divorce proceedings have traditionally been shielded in some measure from public view. Defendants refer to cases evidencing historical restrictions on access to divorce proceedings to protect the privacy of the parties involved. See Nixon v. Warner Communications, Inc. (1978) ("[T]he common-law right [to inspect and copy judicial records] has bowed before the power of a court to insure that its records are not 'used to gratify private spite or promote public scandal' through the publication of 'the painful and sometimes disgusting details of a divorce case.'") (quoting In re Caswell (R.I. 1893) (holding that a court clerk was not required to furnish a copy of a divorce case to a journalist)); Katz v. Katz (Pa. Super. Ct. 1986) (holding that "divorce hearings are the type of proceedings which courts may close to protect the rights of the parties"). These authorities demonstrate the historical acceptance of restrictions on access to divorce complaints to protect significant interests, such as the privacy of the individuals involved.

The State asserts that "[b]ased on the established case law, public access in divorce cases does not play a significant role in the functioning of the family court." The Court agrees that public access to a copy of a divorce complaint provides little benefit to the proper administration of divorce proceedings.

As an initial matter, the public has little to glean from a divorce complaint itself. Michigan's no-fault divorce regime, by definition, identifies no wrongdoing by the individuals involved. Nor does a divorce complaint reveal information about the functioning of courts or government agencies or the alleged violations of private or public rights. Rather, divorce complaints merely mark the initiation of a legal process between private individuals. Further, because Michigan law permits the unsealing of a divorce complaint after service on the defendant, the public is able to access the complaint during the pendency of the proceedings, and therefore, retains the ability to monitor the proceedings for fairness. See Detroit Free Press ("[P]ublic access acts as a check by assuring us that proceedings are conducted fairly and properly.").

Importantly, any possible benefit the public might receive were it allowed access to a divorce complaint during the short time between its filing and service on the defendant is heavily outweighed by the benefit of protecting divorce plaintiffs from the threat of further abuse. As the State points out, sealing a divorce complaint between the time of its filing and service provides plaintiffs time to find safety while they are subject to a heightened risk of abuse. The statute thus plays a positive role in the functioning of the divorce proceeding by protecting those who choose to utilize it.

Bristow fails to identify how public access to divorce complaints before they are served plays a significantly positive role in such proceedings. Instead, Bristow largely frames his argument in terms of how the restriction impacts him or his clients. Specifically, Bristow asserts that he is unable to obtain copies of divorce complaints from the Macomb County Clerk's office unless he has entered his appearance on behalf of a client. However, as Bristow acknowledges, he can still obtain a copy of the complaint by filing his appearance in the case. And his clients can do the same by visiting the clerk's office in person. On balance, Bristow's interests, while impacted, are not substantially impeded.

Furthermore, those interests have little, if any, to do with the concern of the "logic" prong, i.e., the impact of a restriction to public access on the functioning of a government process.

The cases upon which Bristow relies do not counsel otherwise. In Shaefer and Planet III, news service organizations sought access to all newly filed nonconfidential civil complaints that they deemed newsworthy. In granting access to the complaints, both courts emphasized the beneficial impact of the public's ability to understand the facts of a civil case so that it could monitor and serve as a check on the proceedings.

By contrast, here, under Michigan's no-fault divorce regime, divorce complaints do not contain detailed factual allegations about the subject matter of the complaint. Coupled with the intensely private nature of the proceedings, such a complaint does not provide the public with the sort of "crucial" information for which access is an important check on the proceedings.

The Court concludes that Mich. Comp. L. 552.6a(1)'s temporary restriction on the public's access to divorce complaints is both (i) supported by historical example and (ii) plays a significant positive role in the functioning of the divorce process because of the protection it provides to divorce plaintiffs at risk of abuse. Accordingly, the Court concludes that Bristow is unlikely to succeed in his contention that there is a First Amendment qualified right of access to divorce complaints before the filing of a proof of service.

Even assuming that Bristow could establish that a qualified First Amendment right attaches under the "experience and logic" test, the Court finds it likely that Mich. Comp. L. 552.6a(1) is constitutionally appropriate because it is narrowly tailored to "preserve the higher value[ ]" of protecting divorce plaintiffs from the heightened risk of violence or abuse. The State cites several tragic incidents of domestic violence highlighting the danger posed to victims of abuse shortly after leaving their abusers. In addition to these individual tragedies, the State points to studies finding that the most dangerous time period for domestic violence victims is shortly after they file for divorce.

Bristow further maintains that the statute is overbroad because it does not provide for a case-by-case determination of whether the complaint should be made nonpublic. But a holding that the State must compel abused plaintiffs seeking to end their marriages to publicly accuse their abusive spouses of misconduct might well tragically ignite an already flammable domestic relationship. Such a requirement would likely deter plaintiffs from making such accusations out of fear of retribution from the defendant. Put simply, the case-by-case approach suggested by Bristow is no answer for the type of harm that the State intends to prevent.

Bristow points to In re Marriage of Burkle, in which a California court rejected an argument that "the same utilitarian values" that support the presumptive openness of criminal and civil trials "somehow lose their potency in the context of divorce proceedings." In re Marriage of Burkle (Cal. Ct. App. 2006) (punctuation modified).

Burkle is very different from the instant case. The statute at issue in that case broadly permitted the sealing of any divorce pleading listing the parties' financial assets and did not permit the unsealing of such records absent good cause. Unlike the restriction in Burkle, Mich. Comp. L. 552.6a(1) only temporarily renders divorce complaints non-public until they are served on the defendant. Moreover, while the statute in Burkle applied to any divorce pleading that divulged the parties' financial assets, Mich. Comp. L. 552.6a(1) narrowly applies only to divorce complaints; it does not mandate sealing any other filing in the divorce proceeding.

The Court agrees with the State that Mich. Comp. L. 552.6a(1) is narrowly tailored to preserve the higher value of protecting divorce plaintiffs subject to domestic violence or abuse. As the State points out, the statute applies only to divorce complaints. Under the statute, both defendants and their attorneys of record may obtain a copy of the complaint before the filing of a proof of service. Moreover, the restriction on the public applies only until the proof of service is filed. Mich. Comp. L. 552.6a(1). Thus, the statute does not prejudice defendants or their attorneys in divorce proceedings. At bottom, the statute applies narrowly to allow divorce plaintiffs a temporary period of time to make arrangements to protect themselves from potential abuse.

Congratulations to Frank Krycia, who represents defendant Anthony Forlini (the Macomb County Clerk), and Toni L. Harris, Charles A. Cavanagh & Kathleen A. Halloran, who represent the Michigan Attorney General.

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No First Amendment Problem with Temporarily Sealing Divorce Complaints Until Proof of Service Is Filed - Reason