Missouri’s broad redaction law could be blocked as unconstitutional

By William H. Freivogel >>

Media lawyers told a state court judge this month that the Missouri law requiring redactions of the names of witnesses and victims from court records violated both the state and federal constitutions.

Attorney General Andrew Bailey’s office replied that the law does not require as many redactions as the media lawyers say and therefore does not violate the constitutions. Bailey’s office conceded, however, that if the law is as broad as the media says, it could be unconstitutional.

Mark Sableman, representing the Missouri Broadcasters Association and Gray Local Media, told the judge that the plain words of the law could not reasonably be interpreted any other way than prohibiting the use of names of witnesses and victims in public court records. Most Missouri courts have interpreted it in that broad fashion, leading to widespread redactions.

 Although the Attorney General is not contesting the law’s likely unconstitutionality under the prevailing interpretation, Sableman told the court that because our constitutions are “the elephants of the law,” he felt it was necessary to address “the elephants in the room.” He explained the authorities under both the federal and state constitutions that mandated broad public access to court records, and thereby prohibited blanket redactions not tied to specific confidentiality needs. 

Judge Aaron J. Martin, sitting in the Cole County Circuit Court, took the case under advisement. He is expected to rule early next year.

The Gateway Journalism Review reported a year ago that legal experts around the country believed the Missouri law to be the most stringent redaction law in the nation. 

Sableman, a media lawyer at Thompson Coburn, said that the Missouri Press-Bar Commission raised concerns with the law to the Missouri Supreme Court last year.  In an article last year, Sableman said that the law made Missouri into the “State of Unnamed Persons.”

Paul G. Cassell, a former federal judge and victims rights advocate, told GJR a year ago that he didn’t know of any law like it in the nation. He wrote in an email, “I am not aware of any jurisdiction mandating such a broad prohibition on use of names. It does seem difficult to justify application of such a rule without narrowing it to circumstances where good reason may well exist for privacy (such as juveniles and sex assault cases).”

Eugene Volokh, a nationally known libertarian legal commentator, called the law “a very serious problem” under the headline “Missouri ‘Stealth Statute’ Requires Redaction of All Witness and Victim Names” in Court Records.”

Charles Mahoney, president/CEO of the Missouri Broadcasters, said he didn’t know of another state with such a broad redaction law. He said his organization is concerned the law could impede journalists’ ability to “report the full truth.”

The Missouri Broadcasters joined appellate lawyers and journalists last May in asking the court to block enforcement of the law because it violated the state and federal constitutions and was passed improperly.

Last minute passage 

The redaction law passed at the end of the 2023 legislative session when the broad language was added to an omnibus bill covering many matters. No hearings were held on the language of the redaction provisions and legislative research found no legislative record on how it was added to the bill.

The lawsuit against the law said its redactions extended to a host of officials: law enforcement officers; public officials; corporate employees and officers; public and private custodians of records; expert witnesses; doctors, nurses, social workers, and pharmacists; attorneys, engineers, and other professionals who become witnesses based on their professional responsibilities; complaining   witnesses,   who   voluntarily   made   complaints   to

authorities; prisoners; court reporters and court clerks; prosecuting attorneys and defense attorneys; persons whose names appear in documents, at least if the document reports in some way their observations or actions.

Challenging the law along with Sableman and the Missouri Broadcasters is David Roland, director of litigation at the libertarian Freedom Center of Missouri. He told a group of lawyers last week that, “Historically speaking, the judiciary has been the most transparent form of government. Proceedings are supposed to take place in public.”

The traditional openness of courts is an outgrowth, he said, of the reaction to the abuses of the Star Chambers of English history where closed courts tortured defendants and witnesses.

Often court records are the best place to find reliable history, Roland said. Missouri legal decisions tell the stories of the likes of Daniel Boone, Jesse James and George Caleb Bingham, he added.

The attorney general’s office argued in the court hearing that the redaction law does not apply to all proceedings but only to “names of witnesses and victims …when those names are made confidential by court order or other law.”

Constitution protects openness

In the court hearing, Sableman pointed to both federal and state court decisions protecting the openness of court records.

A string of U.S. Supreme Court decisions beginning in the the 1980s protected the press’s access to courtrooms and court records based on the First Amendment. The Missouri constitutional provision rests on the long courtroom tradition of open courts.

The lawyers challenging the law pointed out that Missouri appeals courts began redacting all names of witnesses and victims after passage of the redaction law.

The Office of Legal Ethics has issued conflicting decisions on how the redaction law should be implemented by lawyers. The office said that when a lawyer has a good faith belief that all names should be redacted, he is ethically bound to redact them, require associates to also redact the names and to report any lawyer who fails to make redactions.

Opponents of the law argued that two decisions in recent months strengthen their challenge. A federal appeals court ruled that a Hawaii law that redacted a whole category of information was unconstitutional because courts can’t make categorical closures of information. 

Also, the Ohio Supreme Court interpreted a state Open Courts clause in its constitution – a provision similar to Missouri’s – to bar redaction of information a juvenile case.

The challengers to the law also say the Missouri Legislature violated the state constitution by putting the redaction law in an omnibus measure with many subjects instead of one and by not following the rules on how the legislature can change court processes. That latter error, Roland said, is a violation of the separation of powers.

William H. Freivogel, publisher of GJR, is one of the plaintiffs in the lawsuit against the redaction law. GJR first disclosed the reach of the redaction law.  

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