[When he dropped his lawsuit, Judge Cortez] asked that the produced documents be sealed. With Cortez’ sealing request pending, The Dallas Morning News and ALM Media LLC d/b/a The Texas Lawyer — and later Judge Marty Lowy — intervened and opposed the request because each desired access to the produced documents….Cortez suggests that, if the court cannot order documents sealed, then the libeler can file suit, file documents containing scurrilous statements, dismiss the suit and force their unsealing. That hypothetical does not match the facts in this case. Here, Cortez claimed to be defamed, filed suit, demanded proof, and then, when responsive evidence was filed, dismissed his suit and demanded that the evidence be sealed….[F]ocusing on the language of Rule 76a(1), we look to see if there is a “specific, serious and substantial interest” that outweighs the presumption of openness and any probable adverse effect that sealing will have on general public health or safety. According to Cortez, that interest is his interest in privacy. A protectable privacy interest can include disclosure of a party’s private affairs or concerns that would be highly offensive to a reasonable person, or of embarrassing private facts about himself and unwarranted publication of those facts.None would argue that these documents are not embarrassing and offensive. Balanced against that, Cortez is clearly a public figure who is, at present, an elected official whose privacy rights are limited by virtue of his public status.Although a memorandum decision, the case of Nguyen v. Dallas Morning News, L.P., No. 2-06-298-CV, 2008 WL 2511183, at **4-6 (Tex. App.-Fort Worth 2008, no pet.) (mem. op.), is instructive and persuasive. There, the embarrassing details of sexual misconduct of a parochial school official directed at minors were deemed of legitimate public concern and were thus unsealed, using an analogy to the tort of invasion of privacy. The legitimate public concern in Nguyen was arguably not as strong as in this case, which involves a publically elected member of the state judiciary along with allegations of criminal activity….Johnston personally possesses these same documents and has declined to provide them to the media, first, due to orders by the trial court and, then, following the directives of this Court. The order existed before the first appeal to this Court and provides generally that [Johnston] is not to disseminate the documents pending completion of the appeal. The trial court vacated those orders, but delayed the effect of its order of vacation for fourteen days to give Cortez an opportunity to obtain a similar order from the reviewing court. We issued such an order, and the documents thus remain confidential.The underlying concept is that, if Johnson reveals the contents of the documents, the appeal becomes moot. That is evident. While these orders did protect the ability of the trial court to address the sealing request and of this Court to address the appeal, the subject matter of this appeal is not the documents in Johnston’s possession. This appeal is from orders concerning the documents in the possession of the district clerk.The order as entered is in effect an injunction, directing a party to the lawsuit not to release documents in his possession. This is an entirely different problem than the one we have dealt with in two separate appeals. In Johnston’s brief, counsel points out that, even though Cortez has not asked this Court on appeal for injunctive relief and has briefed no argument to support retention of the order, he still seeks to maintain the order on motion to set security.This, Johnston argues, effectively enjoins Johnston’s First Amendment rights. Johnston points out that Cortez nonsuited his case against Johnston, leaving no pending lawsuit that might provide support for ancillary orders. He finally also points out that, even if Cortez prevailed and the documents were sealed, Johnston would still be able to distribute his copies and would already have done so except for court orders.Our jurisdiction no longer needs protecting. We withdraw all orders that Johnston not disclose the records.
I will say that the order that Johnston not release the documents himself does strike me as hard to justify — indeed, it sounds to me like an unconstitutional prior restraint. Whether or not Johnston’s release of the documents would have mooted the appeal as to the court clerk’s release of the documents, Johnston has the First Amendment rights to reveal the documents (subject to the theoretical risk of a follow-up libel lawsuit and liability if the documents are proven to be recklessly or knowingly false). The First Amendment rights of a speaker to convey information in his possession are considerably broader than the First Amendment rights of members of the public to access information in the court’s possession.