The First Amendment gives every member of the public the right to access court records and proceedings. As the Supreme Court has held, journalists play a critical role in exercising that right to inform the public – even if they’ve received material from someone who broke the law by doing so (remember the “Pentagon Papers” case?).

So, when a federal court in Oregon recently issued an injunction barring a news outlet from using sealed documents, it created quite a stir.

In Cahill v. Insider, The Oregonian successfully moved to unseal certain documents from a 2022 lawsuit involving four former female employees at Nike who accused the sportswear giant of fostering a culture of unequal pay and sexual harassment. Two years later, a lawyer for the plaintiffs inadvertently sent confidential documents to one of the publication’s reporters.

Typically, the First Amendment would protect the rights of The Oregonian to report on what was in the documents, and the district court held that it lacked authority to order the return or destruction of the documents. But the U.S. Court of Appeals for the 9th Circuit ruled that the news outlet became a party to the case when it intervened in the lawsuit to seek the unsealing of the records. The appellate court held that the district court had the authority to order The Oregonian to return or destroy the documents as part of its “inherent power to oversee discovery in cases before it.”

The appellate court’s decision has the troubling effect of making journalists parties before the court simply by virtue of making a motion to access documents. In light of the ruling, journalists may become more reluctant to intervene in court proceedings if they know they risk having their First Amendment rights restricted by virtue of their appearance in the case.

We had a similar situation when one of our clients was “punished” for publishing sealed material. The court acknowledged it couldn’t force the client not to publish the material; but since it had published the material in violation of a court order, the court prevented the client from covering the trial by revoking its press pass.

Cases like these highlight the fragile balance between transparency and confidentiality, and raise critical questions about the extent to which courts can dictate what the public knows – and the potential implications for journalistic freedom.