The First Amendment gives citizens very broad rights to publish information about other citizens, about the government and about private companies.
While publishers may later face civil lawsuits for slander and defamation, it is very unusual for courts to bar publication in advance -- a practice known as prior restraint.
No such protection applies to government agencies, however. After all, the First Amendment and the rest of the Bill of Rights were written to protect against government, not to protect government itself.
This does not stop goverment agencies from acting as publishers, but it puts them in a shaky position when challenged, as the Consumer Product Safety Commission (CPSC) is learning, now that a federal court has sealed all details of a lawsuit filed by an anonyous company against the agency, preventing the public from learning not just the details of the lawsuit, which concerns an injury allegedly caused by a defective product but also seals from public view the name of the company involved.
"Interestingly, although the CPSC has no First Amendment rights in this situation, it's the public and the press who will exercise those rights to vindicate the CPSC's interests," said Cameron Stracher, a New York City attorney who represents ConsumerAffairs and other publishers.
The court’s opinion, released earlier this week with key portions blacked out, indicates that the case, originally filed in October 2011, was decided in the company’s favor more than two months ago after nine months of proceedings conducted out of public view and without opportunity for public participation.
The unusual secrecy -- more befitting a classified military document than a product liability case -- is bringing howls of protest from consumer organizations, including Public Citizen, Consumer Federation of America and Consumers Union, which are appealing the decision.
The decision not only prevents the public from seeing the company’s name and relevant court findings, it also bars the CPSC from posting to its online consumer complaint database the report of consumer injury about which the company sued.
“Adjudicating this first-ever challenge to the consumer product safety database in secret, based on secret evidence, and with a secret plaintiff, is at odds with the First Amendment and our tradition of open judicial proceedings,” said Scott Michelman, the Public Citizen attorney representing the three organizations. “The public has a strong interest in the outcome of this lawsuit and a correspondingly strong right to learn who is involved and the factual basis for the court’s decision to exempt a product report from the database.”
The CPSC’s searchable online database, available at www.saferproducts.gov, was launched in March 2011 to provide consumers with information about potentially dangerous products after a spate of product recalls. Nearly 9,000 reports had been filed as of June 2012.
Privately-operated publishers, like ConsumerAffairs, display hundreds of thousands of consumer reviews and complaints. Although lawsuits have occasionally resulted from publishing such complaints, no court has ever restrained publication by ConsumerAffairs in advance. Although settlements of such suits are sometimes sealed, the initial proceedings remain public, a ConsumerAffairs official said.
“The court blocked the CPSC from publishing a report of harm, but the facts underlying the decision are entirely blacked out,” said Rachel Weintraub, director of product safety and senior counsel for Consumer Federation of America. “The court’s seal prevents the public from assessing the court’s reasoning, and understanding its impact on the integrity of the CPSC database.”
The CPSC database is modeled after databases on the websites of the National Highway Traffic Safety Administration, created in 1996 to provide access to consumer complaints about automobiles, and the Food and Drug Administration, also available since 1996, which describes adverse event reports made by hospitals, manufacturers and others about drugs and medical devices.
The CPSC is required by law to post consumer complaints within 20 business days of receiving them. Before complaints are posted, the product manufacturers are notified and given a chance to respond. If the information submitted is shown to be untrue, the complaint is corrected or removed from the database.
“The CPSC database is a critical tool for informing consumers and consumer advocates about potential safety concerns related to a wide variety of products,” explained Ami Gadhia, senior policy counsel for Consumers Union.