Guidance for Complaints Under Seal

In a case brought by the American Civil Liberties Union, the United States Court of Appeals for the Fourth Circuit recently decided that the False Claims Act’s provision that cases must be filed under seal does not violate the First Amendment. In ACLU v. Holder the Court ruled that “the United States has a compelling interest in protecting the integrity of ongoing fraud investigations.” This is true but what happens when the seal is extended for months of even years? What happens where important information about consumer safety is not made available to the public because a case remains under seal? And is there always a need to keep a case under seal when the Defendant through an order “partially unsealing the case” is allowed to look at the complaint while the public is kept in the dark?

The Fourth Circuit dealt with the question of whether the seal provision is – on its face — unconstitutional. The practical question is whether it is unconstitutional as applied?  “I would rigorously apply the First Amendment and selectively seal records,” wrote Judge Gregory in his dissent. Quoting Justice Brandeis, Judge Gregory wrote “[s]unlight is . . .the best of disinfectants.”  This is good guidance for the application of the seal to cases that involve public health and welfare.