Constitutional Challenge to S.C. Courts' Data Scraping Ban May Proceed

NAACP and ACLU in March 2022 sued the South Carolina State Court Administration to challenge the state courts’ ban on automated data collection known as scraping (see 2203300049). NAACP wants to scrape housing records in the state’s court filings repository to find people who could soon be evicted from their homes so the advocacy group can help them fight back. The plaintiffs said the prohibition unconstitutionally restricts the right to access and record public court records under the First Amendment.

"The evidence may eventually show ... a sufficient reason to prohibit scraping,” wrote Judge Mary Geiger Lewis. “It may indicate that the NAACP’s access to the records is unburdened by the restriction. Or, it may demonstrate that Defendants have provided sufficient alternatives to access the information. But, as alleged, the restrictions state a claim for violation of the First Amendment.” Lewis added, “These factual disputes render determination of the First Amendment issues more appropriate for a motion for summary judgment.”

“The district court properly recognized that a categorical prohibition on scraping public court records implicates the First Amendment,” said Esha Bhandari, deputy director of the ACLU’s Speech, Privacy, and Technology Project: “Scraping is often a necessary method of gathering public data efficiently, and enabling digital-era research and journalism in the public interest.” NAACP’s South Carolina conference President Brenda Murphy said the ruling “moves us toward a future in which we’re able to use court records to inform tenants in our state of their rights and, over time, advocate for fairer and more just eviction-related laws to protect these tenants.”

Lewis rejected the administration’s argument that the case isn't ripe because NAACP didn't officially request relief from the court. NAACP claims that the administration refused to consider its inquiries and that "any official request would be futile,” Lewis said. “The Court has found no case requiring that a plaintiff attempt every possible alternative before making a First Amendment right of access claim.” The defendant didn’t comment.

The federal court mustn’t defer to the state judicial branch for “federalism and comity” interests in this case for various reasons, the judge said. “Neither party represents this case will involve difficult questions of state law,” she said. “The Court recognizes the value of respecting the policy decisions of the state judicial branch ... But that is outweighed by the importance of the constitutional questions presented before the Court.” Also, the case “fails to present a threat to the proper administration of a state system,” said Lewis. "Defendants fail to identify which issues of state law may obviate the need to decide the NAACP’s First Amendment claim.”

The administration failed to convince the court "that this case fails to implicate the First Amendment, because these records were historically unavailable online,” said Lewis. “Whether the First Amendment is implicated ... depends on the type of record rather than the type of restriction to access.” The court will apply intermediate scrutiny to the First Amendment claim since the plaintiff “alleges a time, place, and manner restriction, because it can access the records through manual searching methods, and the restriction is content-neutral.” But the court "would deny the motion to dismiss under any level of scrutiny,” said the judge. “Defendants lack unbounded discretion in determining the extent and manner of access.”