Appeals – Standing and First Amendment rulings certified for interlocutory appeal

Where the court held that a news service and publishers of local Virginia newspapers had standing to challenge the constitutionality of a Virginia statute that restricts the dissemination of nonconfidential civil court records obtained through the state’s remote online access system, and that the defendants were not entitled to sovereign immunity, it certified its rulings for immediate interlocutory review.

Background

This case involves a Virginia statute that restricts the dissemination of nonconfidential civil court records obtained through the state’s remote online access system. The plaintiffs, a legal news service and publishers of local Virginia newspapers, filed the present suit against Virginia court officials challenging the constitutionality of the statute.

This court previously denied defendants’ motions to dismiss for lack of jurisdiction and failure to state a claim, I issued an Opinion and Order denying, among other things, the defendants’ motions to dismiss. Thereafter, the defendants noticed an interlocutory appeal to the United States Court of Appeals for the Fourth Circuit as to this court’s denial of Eleventh Amendment sovereign immunity.

The defendants have now moved to stay the present litigation. Separately, the defendant clerks have moved to certify this court’s previous standing and First Amendment rulings pursuant to 28 U.S.C. § 1292.

Stay

As an initial matter, an order denying federal sovereign immunity is subject to immediate appeal. When the issue on appeal concerns solely “whether the litigation may go forward in the district court, . . . the entire case is essentially involved in the appeal.” Because sovereign immunity dictates whether defendants may be subject to suit at all, I will grant the defendants’ motion and stay all proceedings in the current litigation.

Certification

A district court may certify an order for interlocutory appeal if the order (1) “involves a controlling question of law”; (2) if “there is substantial ground for difference of opinion” as to the question; and (3) if “an immediate appeal from the order may materially advance the ultimate termination of the litigation.”

Question of law

The complaint alleges a singular claim — that the Virginia statute that restricts the dissemination of nonconfidential civil court records obtained through the state’s remote online access system is an unconstitutional prior restraint subject to strict scrutiny under the First Amendment. Thus, the defendant clerks assert that whether the restriction constitutes a prior restraint is a controlling question of law that could materially advance the termination of litigation.

The plaintiffs argue that this court’s May order addressed only the standard of scrutiny to be applied to the dissemination restriction rather than the constitutionality of the restriction. Therefore, they argue that certification would not materially advance the termination of litigation given that the case could still proceed under a lower level of scrutiny.

The plaintiffs mischaracterize this court’s ruling. The May order found that “the plaintiffs have made a plausible showing that the dissemination restriction is a prior restraint that would not survive strict scrutiny.” Whether it constitutes a prior restraint is directly relevant to its constitutionality under the First Amendment.

The plaintiffs also argue that whether the dissemination restriction is a prior restraint is not a controlling question of law because the same level of scrutiny would be triggered irrespective of whether the restriction is found to be a prior restraint or subsequent punishment. Even if it were true that prior restraints and subsequent punishments are afforded the same level of scrutiny, the only claim the complaint asserts is that the dissemination restriction constitutes a prior restraint in violation of the First Amendment. Therefore, whether the restriction is a prior restraint is a controlling question that determines whether the present litigation may move forward.

The defendant clerks also assert that whether the plaintiffs have standing is a controlling question of law that could materially advance the termination of litigation. The court agrees. The Fourth Circuit has previously found standing to be a controlling question of law, the resolution of which could materially advance the termination of litigation.

Difference of opinion

The defendant clerks also assert that there is substantial ground for difference of opinion as to whether the dissemination restriction is a prior restraint that forbids speech before it occurs, or whether it relates to post-speech consequences. The court agrees.

And, as the defendant clerks assert, there is also substantial ground for difference of opinion as to whether the plaintiffs have standing. I will grant certification as to the issue of standing to clarify the precise showings a plaintiff must make to prevail on a right-to-receive-speech theory of standing.

Defendants’ motion to stay granted. Defendants’ motion to certify appeal granted.

Courthouse News Service v. Hade, Case No. 1:25-cv-00075, July 2, 2026. WDVA at Abingdon (Jones). VLW 026-3-280. 12 pp.

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