Bill Cosby and the Right of Access

Television watchers all over America once looked up to Bill Cosby as Dr. Huxtable on The Cosby Show.  Those days are long gone.  Today, Cosby is the subject of widespread contempt, not to mention numerous lawsuits and withdrawn honorary degrees.  He is, to put it mildly, in a state of disgrace and a ton of legal trouble.

One aspect of Cosby’s ongoing legal problems is that the Constitution does more than protect the right to speak and publish.  It also assures that the press and public will be able to find out what is going on in the courts, what lawyers call “Access.”  This is not the same as the right of an accused to a public trial.  It is, rather, a right that all of us have to keep an eye on the judicial system, with only rare exceptions.

New Hampshire is especially strong when it comes to the right of access.  Like the federal constitution, the state constitution protects free speech and liberty of the press, which are to be “inviolably preserved.”  But New Hampshire goes further and says that “Government … should be open, accessible, accountable and responsive.”  A 1992 case called Petition of Keene Sentinel demonstrates just how seriously the right of access is taken in this state.

In 1990, Charles G. Douglas III was running for re-election to Congress when the newspaper went to the courthouse to look at the records of his two divorces, one in 1979 and the other in 1983.  The court clerk told the reporter that most of the papers in one case, and all of the papers in the other, were impounded.  In other words, the public could not see them.

The Sentinel filed a petition seeking access, but the superior court judge denied the newspaper’s request, citing among other reasons that the paper hadn’t met its burden of proof and, further, that its “motive” was suspect.  Douglas lost the election, but the case continued.  In 1992, the Supreme Court (of which Douglas had previously been a member) reversed the lower court’s decision.  First, the burden should have been placed on Douglas to prove why the papers should remain under seal, not the other way around.  Second, “motive” is beside the point.  As the court put it, why the newspaper, or any member of the public for that matter, wants to see court records is “irrelevant” because “we cannot dictate what should and should not interest the public.”

Last July, the Associated Press went to federal court in Pennsylvania and obtained an order granting access to documents from the first sexual assault case brought against Bill Cosby.  The public then learned that the man who played Dr. Huxtable wasn’t the person we thought he was.  Indeed, the judge cited Cosby’s “mantle of public moralist” as one reason for ordering disclosure.  It turned out that in 2005 Cosby had admitted, under oath, that he gave prescription drugs (Quaaludes) to women for purposes of sex.

Things were bad for Cosby last summer, and they have only gotten worse.  At latest count, more than 50 women have claimed they were his victims.  There are lawsuits against him in Massachusetts, California, and elsewhere.  Even his lawyers are getting sued!

Recently Cosby’s lawyers returned to court in Philadelphia, trying to reseal the documents that the Associated Press obtained earlier this year.  That sounds like trying to put the toothpaste back in the tube, but the lawyers claim that public access to Cosby’s admissions in his 2005 deposition testimony has damaged his reputation.  As examples, they cite Drexel University’s revocation of Cosby’s honorary degree and Disney World’s removal of Cosby’s statue.

These arguments qualify as lawyer’s chutzpah (gall).  Putting the records back under seal wouldn’t do any good anyway.  You can find them all over the Internet.  I doubt that the motion will succeed in Pennsylvania, and I’m sure it wouldn’t if the case were in New Hampshire.

Joseph D. Steinfield is a partner in the Boston law firm of Prince Lobel Tye LLP.  He resides in Boston and in Keene. If you have any questions about the information presented here, please email: jsteinfield@princelobel.com. Copyright 2015.

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First published in the Keene (NH) Sentinel, December 13, 2015. 

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