Third Circuit Judge Denies Lawyer’s Request for Order That “Will Compel … Volokh to Remove His … Blog [Post]”

I wrote about this controversy last month:

Check out the Appellant’s Emergency Motion to Seal Portions of Court Filings Referencing Libelous Statements Made by Others in Wolk v. Olson (3d Cir.). To review the bidding, Arthur Wolk sued Overlawyered.com, alleging Overlawyered had libeled him. The case was dismissed on statute of limitations grounds, and Wolk appealled. Glenn Reynolds (Instapundit), Marc Randazza (Legal Satyricon), Ed Whelan (National Review Online), and I signed an amicus brief supporting Overlawyered’s position in the appeal. Wolk’s lawyers then filed a response in opposition to the motion for leave to file that amicus brief.

That response, filed on Wolk’s behalf by his lawyers, made a false assertion about a post of mine on incest law. And it also wrongly suggested — with no foundation whatsoever — that my incest law post gave Wolk “more than a reasonable basis to question whether at least one of the amicus bloggers seeking this Court’s audience, one of whom apparently has a penchant for discussing sexual misconduct, may be responsible for the horrible [and false] accusations of sexual misconduct against Wolk on Reason.com.” The response quoted those [false] accusations of sexual misconduct (which had been posted by anonymous Reason.com commenters, apparently prompted by coverage of Wolk’s lawsuit against Overlawyered).

I then blogged a post criticizing the response. That post quoted that whole passage from the response, to show the unsoundness of the claims that the response was making.

Wolk has now asked the Third Circuit to retroactively seal parts of his response, apparently including the passages that my blog post criticized. His request is not even limited to the particular [false] “accusations of sexual misconduct” that the response reproduced (though even such a limited request to retroactively seal would have been unfounded, I think). Rather, it includes, among other things the entirety of “Pages 14 and 16 … of Plaintiff’s Response in Opposition to the Motion for Leave to File Brief of Amici Curiae Eugene Volokh, et al….” (That apparently refers to the PACER page numbers and not the internal document page numbers, since the quoted accusations of sexual misconduct were on PACER page 14.) And page 14 contains much of the argument that I criticized in my earlier post, including the “It is of stunning coincidence” line that I quoted in the title of that earlier post, the false assertion about my incest post, and the unfounded “more than a reasonable basis” line I quoted above.

Moreover, the plan behind this motion to retroactively seal the document is apparently to build a foundation for ordering the removal of my critical blog post: “Likewise, an order sealing the relevant portions of Wolk’s briefing will compel Amicus blogger Volokh to remove his internet blog, which republished the defamatory accusations that will be placed under seal.” (Again, recall that I was republishing Wolk’s lawyers’ own filings, which themselves republished the defamatory accusations that they were denouncing.) I don’t think that such an order would have that effect — I think that under the logic of Florida Star v. B.J.F., once a document is made part of the public record, it can’t then be withdrawn from the public record and sealed away in a manner that prevents public comment. But that is the effect that Wolk is apparently seeking.

Naturally, I intend to oppose Wolk’s motion. But in any event, I wanted to point out what seems like an innovative attempt to suppress publications that criticize a lawyers’ motions.

And I hope that other publishers also try to intervene. If lawyers may compel a blogger “to remove” publications, by retroactively sealing the court documents that those publications quoted, they could equally do the same to other online publishers, including newspapers, magazines, and more.

I’m pleased to say that the Third Circuit just denied Wolk’s lawyers’ motion, in a one-line one-judge order (“The foregoing Emergency Motion to Seal is DENIED.”).

UPDATE: Mr. Wolk has now stated that, having had further communication on the subject, he acknowledges that I didn’t write and wasn’t responsible for the Reason.com insults, and has asked the Court to withdraw the statements in his opposition questioning whether I was connected to the Reason.com insults. Because of this, I’ve agreed to redact the insults from my original post, which were quoted by Mr. Wolk in his original opposition that I in turn quoted; the insults were vulgar and false, and now that their text is no longer relevant, I’m happy to edit them out. I’ve also agreed to add “[false]” or “[falsely]” when the insults are discussed, just to make extra clear what I think was clear all along — that the insults are indeed false.