On links to court filings

Journalists should link to court filings by default

Dear Media,

It’s time we had a talk. Because you’re hurting democracy.

Yesterday, over lunch, I had a lovely conversation with some colleagues about the recent controversy over Apple’s intention to oppose a court order related to unlocking an iPhone in connection with the San Bernadino tragedy. We debated some of the technical aspects of encryption, the legal principles underlying the Fourth Amendment, and the policy implications of the court order. But, it turned out, none of us had read the actual order that Apple was opposing.

As such, I did what I typically do. Google: "judge order apple". There were many links to news articles about the controversy. For example:

To a certain extent, much of the news I read and hear comes from these three outlets. I listen to NPR in the morning. I have a subscription to the NY Times. I live in Washington, DC. These are also large, sophisticated organizations, with commitments to journalistic integrity. They also are hip to the Internet, taking their digital platforms seriously.

Here’s the thing, though. Although these news articles were about a federal judge’s order, none of the articles had a link to that order.

Perhaps you could chalk this up to a selection bias. Maybe I’m just reading the wrong sites? As it turns out, they are not alone. Here are three other TV media outlets with the same problem:

Even a legal media outlet couldn’t be bothered.

Kudos, though, to TechDirt, which actually provided a copy of the order and included the full text. It’s a model for how it should have been done by everyone.

As far as I can tell, it is somewhat normal in journalism to refer to legal disputes and not link to the primary filings in question. It’s not always the case, as evidenced by the most-recent article from the New York Times about the “sharply worded, 25-page motion” by the Department of Justice. But it’s normal enough.

This norm should be flipped. When court filing is the subject of a news article, the absolute default should be a link to an archived version of the file. Here’s why:

From the journalist’s perspective, it should be a no-brainer. One of the standards of the Society of Professional Journalists Code of Ethics is to “Seek Truth and Report It” and to carry out this standard, the SPJ recommends that journalists “Provide access to source material when it is relevant and appropriate.” It would seem wise—if not obligatory—to link to the underlying court filings when they are the subject of an article.

From a legal perspective, there is no good reason not to make a copy of the court filings and link to them. After all, court filings enjoy no copyright protections.

Making a copy of court filings solves another problem, too: expanding legal access. Unfortunately, despite being in the public domain or protected by fair use, many filings exist behind a paywall; providing a publicly available copy of a file will increase public access (not to mention future discoverability) to the law. To the extent those case filings that are not already on the internet behind a paywall, there’s even greater reason to make a digital copy and share it.

Finally, making a publicly available copy helps to prevent link rot of legal documents.

From the public interest’s perspective, the failure to include links harms democracy in the long run. There are many conversations about the politicization of the judiciary. One of the most incredible features of the American judiciary is its commitment to the written word. And one of the reasons for emphasis on writing is ensuring the legitimacy of those decisions. If those decisions are not published or readily accessible when they are the subject of public attention, the institution of the courts — and by extension, American democracy — is harmed.

Which is to say, in addition to harming the journalists’ and lawyers’ professional interests, the failure to cite case filings in news articles harms democracy itself. And providing a link to a copy of a court filing is so easy. If you’re a journalist, for democracy’s sake, just drop that link into your article. Thank you for your attention to the matter.