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In Fulton v. City of Philadelphia, the Court is considering whether to reverse Employment Division v. Smith, the case holding that (generally speaking) religious objectors aren’t constitutionally entitled to exemptions from generally applicable laws. I have long been one of the few law professors who (1) thinks Smith is right, but (2) thinks that jurisdiction-by-jurisdiction Religious Freedom Restoration Acts are generally a good idea. I wrote an article about that in 1999 (A Common-Law Model for Religious Exemptions), and now an amicus brief in Fulton (with the help of my students Robert Bowen, Delaney Gold-Diamond, and Caleb Mathena).

The amicus brief is on my own behalf, so there are no reasons for me to keep it confidential before I file it (it’s due next Wednesday, June 3, but I’d like to file it a couple of days early), and every reason not to: If there are any errors, small, medium, or large, in my thinking on this, I would love to have a chance to fix them. So if any of you are interested in having a look and giving me your suggestions, I’d much appreciate it. (Note that the brief has not yet been cite-checked or fully proofread, though I’d be glad to know of proofreading glitches as well as about more serious ones.) I include the Summary of Argument below, but you can read the whole brief here.

[1.] Justice Scalia was right: Courts should not be constantly “in the business of determining whether the ‘severe impact’ of various laws on religious practice” suffices to justify a constitutionally mandated exemption from a generally applicable law. Employment Division v. Smith, 494 U.S. 872, 889 n.5 (1990). “[I]t is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice.” Id.

Indeed, overruling Smith would revive all the flaws of a broad substantive due process regime: It would require courts to routinely second-guess legislative judgments about the normative foundations for a wide range of laws, and about the laws’ practical necessity.

For instance, should people have a right to assisted suicide? This Court in Washington v. Glucksberg, 521 U.S. 702 (1997), refused to recognize such a right under substantive due process, and upheld an assisted suicide ban under the rational basis test. But if Smith were overruled, any person who claims a religious obligation to assist in suicide would trigger the very sort of strict scrutiny inquiry that Glucksberg forecloses.

Likewise, this Court has rejected heightened scrutiny of economic regulations, such as minimum wage laws. But if Smith were overruled, a person who claims a religious obligation to hire people but for less than minimum wage would be entitled to an exemption, unless the regulation passes strict scrutiny. And the list could go on.

Of course, it is appealing to protect religiously motivated action (or inaction) that does not really hurt anyone. But what constitutes “hurting anyone” is a hotly contested issue, as this very case shows. It is contested normatively. (Should refusing to deal with a same-sex couple qualify as hurting them? Is paying people a supposedly “exploitative” wage, even with their consent, hurting them?) And it is contested practically. (Would allowing assisted suicide end up pressuring people into choosing death even if they would rather not?) This Court’s rejection of a general right to liberty under the rubric of substantive due process wisely recognizes that these questions should ultimately be left to the political process.

[2.] To be sure, normative and pragmatic judgments about which actions hurt others are familiar to courts. Much of the common law of tort, contract, and property reflects such judgments.

But such decisions are only tentative, because they can be overruled by legislatures. Judges have the first word on these matters, but not the last. That makes common-law decisionmaking legitimate even when aggressive use of substantive due process would not be.

Indeed, decisionmaking under RFRAs is in this respect similar to such common-law decisionmaking. Because RFRAs (state or federal) are mere statutes, they give judges authority to create exceptions but subject to possible revision by legislatures.

Thus, for instance, this Court concluded in Gonzales v. O Centro Espírita Beneficente União do Vegetal that, in effect, hoasca was not so harmful as to justify denying an exemption request, 546 U.S. 418 (2006)—but if Congress had disagreed, it could have exempted the hoasca ban from RFRA, and thus had the last word on the subject. But if Smith were overruled, this Court’s estimate of harm would have been final, unrevisable without an Article V constitutional amendment.

[3.] Some substantive constitutional rights, of course, do require courts to evaluate the normative and pragmatic justification for restrictions on those rights, and the test in those cases often is strict scrutiny. But Smith was correct in concluding that claims of those rights are quite different from claims of religious exemptions, 494 U.S. at 885-86. Those rights require second-guessing legislative judgments only for specific, well-defined zones of regulation (e.g., content-based speech restrictions), where such judicial decisionmaking is especially justified. Overruling Smith would require courts to consider overriding legislative decisions as to a vast range of generally applicable laws.

[4.] Nor should this Court limit Smith to laws that lack secular exceptions. A law can be generally applicable if it does not single out religious behavior for special burdens, even if it does include exceptions for certain kinds of secular behavior. Indeed, a vast range of important laws have many exceptions—trespass law, the duty to testify, antidiscrimination law, copyright law, contract law, and many others.

[5.] This brief takes no position on whether statements of government officials and the shifting legal basis for the government’s actions may indicate that the City of Philadelphia singled out Catholic Social Services for different treatment on the basis of religion. Pet. Br. __. The brief argues only that this Court should reaffirm the Smith principle that, absent such intentional discrimination, the Free Exercise Clause does not provide a presumptive constitutional right to religious exemptions from government actions.

[Footnote:] This brief also does not discuss the original meaning of the Free Exercise Clause, a matter treated in Justice Scalia’s and Justice O’Connor’s opinions in City of Boerne v. Flores, 521 U.S. 507 (1997), and likely in other forthcoming amicus briefs in this case.

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Last week, four Republican senators co-sponsored legislation “to let states approve and distribute diagnostic tests when the state or federal government has declared a public health emergency” because—in the words of their press release—“our federal bureaucracy simply has not moved fast enough during this crisis.” It was an explicit rebuke to the Centers for Disease Control and Prevention (CDC) for botching COVID-19 testing and for standing in the way of state governments, universities, and private labs that were willing and able to do the job.

Implicitly, it was a shot from the president’s own party at the Trump administration’s incompetent handling of the pandemic. The senators could easily have broadened the targets of their bill; this year has seen the president, governors, and government officials of all types go out of the way to turn a health crisis into a larger catastrophe through bungling, malice, and overreach.

That the CDC dropped the ball is no secret. Early testing kits produced by the agency were contaminated by bad procedures and then bureaucratic delays hampered efforts to fix the problem. Amidst ample evidence of in-house incompetence, the feds then tried to make sure nobody else could show them up.

“Agencies within the Department of Health and Human Services not only failed to make early use of the hundreds of labs across the United States, they enforced regulatory roadblocks that prevented non-government labs from assisting,” CNN noted last month.

Was the CDC’s incompetence and obstructionism a result of inadequate resources? Nope. “The CDC’s budget has ballooned from $590 million in 1987 to more than $8 billion last year. If the agency had grown with inflation since 1987, it would have a budget of about $1.3 billion today,” Reason‘s Eric Boehm reported. The agency has all the money it needs for good or ill—and it’s done ill in spades.

Perhaps inspired by the CDC’s example, the Federal Emergency Management Agency (FEMA) has also done its best to impede pandemic response by stealing medical supplies before they can reach hospitals and clinics. FEMA “is quietly seizing orders, leaving medical providers across the country in the dark about where the material is going and how they can get what they need to deal with the coronavirus pandemic,” the Los Angeles Times reported back in April. Desperate state officials and medical providers turned to smuggling shipments to avoid federal hijacking.

The blustering, authoritarian, and confused tone set by the man in the White House may explain the problem. Trump uses much of his time in pandemic-related news briefings to snipe at political rivals—an analysis by Britain’s The Independent found he spent 27 times longer attacking enemies than expressing sympathy for victims of the virus. Trump also touts dubious miracle cures for COVID-19, going so far as to apparently self-medicate himself with hydroxychloroquine (a drug useful for treating malaria and other ailments, but with serious side effects and offering no proven benefit in the treatment of COVID-19).

The vast, powerful, and incredibly intrusive federal bureaucracy is headed by Trump, who also petulantly invokes the Defense Production Act to forcibly reshape the production and distribution of goods in ways that are already underway, or else that make no sense and threaten to do more harm than good. No wonder lower-ranking federal officials feel obliged to get in everybody else’s way. Federal seat-warmer see, federal seat-warmer do.

In an understandable search for a more-competent counterpart to the president, journalists and pundits have, less understandably, turned to state governors. In particular, they developed something of a shared crush on Andrew Cuomo. The New York governor and Democrat has become “the appointed darling to step into the ring and serve as pugilist against Trump in this crisis,” as DePauw University communications professor Jeffrey McCall put it. CNN even indulges cringe-worthy “interviews” of the governor by his brother that would be considered clumsy even at Pravda-style media operations.

But while many journalists may prefer Cuomo’s political affiliation and semi-coherent presentations over those of Trump, the governor has his own significant failings. To applaud Cuomo’s handling of the pandemic is to praise his personal approach to snatching medical supplies and his proven ability at killing granny.

When COVID-19 settled in, Cuomo threatened to strip ventilators and personal protective equipment from upstate hospitals and ship them to hard-hit New York City. Presented as an example of tough decision-making, the move—put off when upstaters pushed back hard—is better viewed as the governor taking care of city residents who vote for him at the expense of those in northern and western counties who don’t.

New Yorkers who won’t ever again vote for anybody include nursing home residents who died of COVID-19 as a result of the state’s arrogance-fueled venture into inadvertent biological warfare. “More than 4,500 recovering coronavirus patients were sent to New York’s already vulnerable nursing homes under a controversial state directive that was ultimately scrapped amid criticisms it was accelerating the nation’s deadliest outbreaks,” the AP reported last week.

That revelation prompted the governor to back off his earlier vow to investigate nursing home conduct and penalize those that had put the elderly at risk. After all, the investigation threatened to implicate its instigators—especially since nursing home operators had warned that his policy was deadly.

“Multiple states are considering adopting an order similar to what was issued in New York that requires every nursing home to admit hospital patients who have not been tested for COVID-19 and to admit patients who have tested positive,” cautioned the American Health Care Association on March 28. “This approach will introduce the highly contagious virus into more nursing homes. There will be more hospitalizations for nursing home residents who need ventilator care and ultimately, a higher number of deaths.”

Sure enough, as of May 23, close to 6,000 people in New York nursing homes were confirmed or presumed dead due to Covid-19, according to state figures—about one-fifth of the state’s total dead from the pandemic.

If Trump is a walking, talking disaster as executive leaders of crisis responses go, and if Cuomo offers only a more crowd-pleasing brand of bungling, where do we look for competence? As is often the case when leaders seem determined to guide their followers over a cliff, wisdom can best be found among those who reject such leadership and set out to do things on their own, in voluntary cooperation with others.

Helen Chu, director of the Seattle Flu Study, ignored federal rules to identify the presence of the novel coronavirus in Washington state.

Businesses and hobbyists donated personal protective equipment to medical providers to make up the shortfall (my son’s school used its otherwise idled 3D printers to produce hundreds of face shields for medical providers).

Individuals started social-distancing well before any government officials told them to do so—and then eased back into regular patterns of life according to their own judgment, ahead of official permission.

Companies, such as Apple and Google, raced to develop contact-tracing technology that couldn’t be used by governments for surveillance.

Parents and students explored learning at home when schools shut down—and many decided they like it and might continue in the future.

And so much more …

Throughout this pandemic, competent and responsible responses have come not from presidents and governors, but from people and organizations taking the initiative to help each other and themselves. Absent political officials to boss us around and lead us down blind alleys, it turns out that we do pretty well. We might do even better if presidents, governors, and other officials would stay out of the way.

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Amid the grim coronavirus news of death and unemployment, at least there is the comic relief of the left embracing the Tenth Amendment.

Suddenly trendy is the provision of the Bill of Rights that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

The rush to the Tenth came in response to President Trump’s statement on May 22. “I call upon governors to allow our churches and places of worship to open right now,” Trump said. “The governors need to do the right thing and allow these very important, essential places of faith to open right now, for this weekend. If they don’t do it, I will override the governors.”

The editor of Mother Jones, a left leaning magazine, Clara Jeffrey, wasn’t having it. “To be clear, Trump can’t do [expletive] to force churches/temples/mosques to open. Little thing called the 10th Amendment,” she tweeted.

The White House correspondent of the PBS Newshour, Yamiche Alcindor, made the same point. “Pres Trump says he will ‘override the governors’ if they don’t follow new CDC guidance and open places of worship this weekend. Context: The 10th Amendment of the Constitution says powers not delegated to federal government are reserved to the states,” Alcindor tweeted.

A Democratic congressman from California, Jared Huffman, and a Democratic congressman from Maryland, Jamie Raskin, issued a joint statement accusing Trump of “breathtaking arrogance,” and of threatening “to trample the sovereign powers of the states under American federalism…and the rights of the people under the First Amendment and the Tenth Amendment.”

Rachel Laser of Americans United for Separation of Church and State insisted that Trump lacks the power to override the governors. “The Tenth Amendment to the Constitution forbids the federal government from strongarming the states,” Laser said, as quoted by Politico‘s Josh Gerstein.

What’s amusing about this? Well, it’s the humor of contrasting it with the attitude toward federal supremacy and states’ rights that had obtained some years back, when the Democrats controlled the White House, and when “states rights” was the cry of segregationists, not social-distancers.

A front-page news article in The New York Times back in 2010, when President Obama, a Democrat, was in the White House, cast doubt on states’ rights efforts.

“Article 6 of the Constitution says federal authority outranks state authority, and on that bedrock of federalist principle rests centuries of back and forth that states have mostly lost, notably the desegregation of schools in the 1950s and ’60s,” the Times reported then. The Times quoted a law professor, Ruthann Robson, who claimed, “Article 6 says that that federal law is supreme and that if there’s a conflict, federal law prevails.”

A different New York Times article from 2010 described the Tenth Amendment as “The Tea Party’s favorite part of the Constitution,” a reference to the grassroots “Taxed Enough Already” movement that was then organizing protests against Obama’s policies.

And a third Times article from 2010, reporting on Elena Kagan’s confirmation hearing, observed, “Tea Party supporters believe that much of what the federal government regulates should be left to the states, where voters hold a shorter leash. For this reason, they embrace a strict interpretation of the 10th Amendment, which says that the powers not delegated to the federal government by the Constitution ‘are reserved to the states respectively, or to the people.'”

Back in 1996, when a different Democrat, Bill Clinton, controlled the White House, a Times editorial complained, “A headstrong five-justice majority is driving the Supreme Court toward a revolutionary, indeed reactionary, interpretation of federalism, tilting the balance dangerously toward states’ rights at the expense of Federal power.”

It’s hard to avoid the conclusion that support for states’ rights or federal power is dependent on whether your guy is the one in the White House giving the orders or the one in the governor’s mansion being ordered around. It’s less principled or consistent that it is partisan and situational.

The right can vacillate on these matters, too. That’s particularly true in religious freedom cases. A strong historical legal case can be made that the First Amendment prohibition on establishing a religion was intended as a restriction on the federal government, not the states. So some conservatives have resisted using federal power to strike down, say, state school prayers or depictions of the Ten Commandments in state courthouses. But many of these same folks are glad Trump is encouraging governors to allow in-person worship, an expression of the free-exercise protection in the same First Amendment.

If the left presses the “state sovereignty” argument against Trump too far, it may find that clashes will be refereed in federal courts, and that Trump is commander-in-chief of a military with firepower that dwarfs any state police or National Guard unit. But Trump, too, may wish to recall a lesson of the Tea Party, which is that if voters are angry enough at Washington that they’ve discovered the often-obscure Tenth Amendment, there may be some price to be paid by incumbents in the upcoming election.

For skeptics of Washington-imposed central authority or big government, the left’s embrace of the Tenth Amendment may be a positive effect of the pandemic. What are the chances that it would last into a Biden administration?

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Regulation run amok? Prosecutors in Columbus, Georgia, say doing donuts in a city parking lot without a permit is a multiple-felony offense. And they’re using this to arrest people who appeared in a video for a district attorney candidate who wants to decriminalize marijuana.

On Friday, Columbus cops arrested and jailed 23-year-old Christopher Mandel Black and 24-year-old Erik Deangelo Whittington for allegedly “destroy[ing] government property.”

Their offense? Appearing in a music video in support of Mark Jones, who is running for district attorney of the Chattahoochee Judicial Circuit and challenging incumbent Julia Slater.

The video ad, titled “Get Out and Vote!” features rapper JawGa Boi and includes lyrics like “Freedom and legalize weed, the people’s D.A. who we need.” The video also includes aerial shots of a car driving circles around the parking lot of the Columbus Civic Center.

“Nobody had been notified with the city,” Columbus Mayor Skip Henderson told the Ledger-Enquirer. “What they did was destroy government property.”

Destroy is a bit strong, though the donuts done by the car in the video do appear to leave some skid marks.

Ana Cecilia Grimmett, Black’s girlfriend, told the Ledger-Enquirer that Jones had paid Black $100 to be photographed next to the car and told them not to worry about the legality of doing donuts in the parking lot because the campaign had it covered.

Rather than simply take this up with Jones himself, however, Columbus cops went after two of the young people paid to appear in Jones’ campaign ad—and the cops said more arrests (plural) are coming.

Not only that, but cops seem to have thrown as many charges as they could at the two men, all while a local judge attempted to keep them locked up in jail for days during a pandemic.

Black and Whittington now face two felony charges (interfering with government property and first-degree criminal damage to property) as well as three misdemeanor charges (reckless conduct, reckless driving, and laying drag). On Saturday, a judge ordered them held in jail without bond and set bond for the other charges at more than $200,000.

“The chief Recorder’s Court judge, Julius Hunter, reviewed the bonds later Saturday and reduced them so both suspects could be released,” reports the Ledger-Enquirer. “Otherwise they could have remained jailed over Memorial Day weekend, until Hunter returned to work Tuesday. Each suspect’s felony bonds were cut to $20,000 for criminal damage and $10,000 for interference with government property.”

On Facebook, Jones posted that “these charges obviously need to be dropped against Chris Black and Erik Whittington.”

“The police and DA are coming after me because this campaign is shining a light on things they want hidden from the public,” he said in a Saturday statement. “I will defend in court or pay the legal fees for anyone being maliciously prosecuted by the Government.”

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FREE MINDS

A church in California is asking the U.S. Supreme Court to intervene after Gov. Gavin Newsom declared via executive order that in-person church services must cease during the stay-at-home mandate. Last Friday, the U.S. Court of Appeals for the 9th Circuit rejected their request for emergency relief.

“Challenges to Covid-19-related emergency edicts have met with mixed results in federal courts,” notes Politico. “The New Orleans-based Fifth Circuit and the Cincinnati-based Sixth Circuit have granted churches emergency relief from state orders, while the Chicago based 7th Circuit joined the San Francisco-based 9th in declining to step in.”

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FREE MARKETS

In lieu of continued enhanced unemployment benefits, a new Republican proposal in Congress would award temporary $450 per week back-to-work bonuses. “Republicans are concerned that the current $600 a week unemployment payment—on top of state unemployment benefits—is so generous that it is discouraging people from going back to work and damping the economy’s reopening amid the coronavirus pandemic,” notes the Wall Street Journal. More:

A return-to-work bonus stands as an alternative to a measure being pushed by Senate Democrats, who are rallying behind a plan led by Sens. Mark Warner (D., Va.), Bernie Sanders (I., Vt.), Richard Blumenthal (D., Conn.) and Doug Jones (D., Ala.). The Democratic plan relies on a wage subsidy—the employee tax credit—to keep people on payrolls. It would cover 100% of wages and benefits, up to $90,000. Some Democrats say they might be open to ending the $600 in extra jobless benefits if Republicans rallied behind a wage subsidy.

More here.

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QUICK HITS

• In a virtual nominating contest over the weekend, the Libertarian Party (L.P.) nominated Jo Jorgensen⁠—a Clemson University psychology lecturer and the L.P.’s 1996 vice presidential candidate⁠—as its 2020 presidential candidate. Anarchist Spike Cohen was voted in as the party’s vice presidential nominee.

• “The downstream health effects” of COVID-19–related lockdowns “are being massively under-estimated and under-reported,” states a letter signed by more than 600 U.S. doctors and sent last week to President Donald Trump. “This is an order of magnitude error.”

• “As Americans emerge from their homes and try to return to some semblance of normal life, we have a small window of time to remove regulations that are nuisances in the best of times and deeply damaging in the worst. We can start with child care,” suggests Shoshana Weissmann.

• The Centers for Disease Control and Prevention’s “best estimate” for the death rate among Americans with symptoms of COVID-19 is 0.4 percent.⁠

• “We’ve reached kind of an inflection point in the privacy debate,” says Sen. Ron Wyden (D–Ore.).

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There are no shortage of opinions on the Michael Flynn case. President Trump’s former National Security Advisor wants to withdraw his guilty plea and the Department of Justice now wants to dismiss the case, despite Flynn’s prior plea and a judicial ruling affirming the Department’s original theory of the case. Rather than grant the government’s motion to dismiss, Judge Emmet Sullivan has sought briefing from amici and appointed retired judge John Gleeson to argue against the motion. In response, Flynn’s attorneys are seeking a writ of mandamus from the U.S. Court of Appeals for the D.C. Circuit to force dismissal of the case, and the D.C. Circuit has ordered Judge Sullivan to respond to this petition.

What should the D.C. Circuit do? Today’s Washington Post features an op-ed by the Honorable J. Michael Luttig, a former judge on the U.S. Court of Appeals for the Fourth Circuit appointed by President George H. W. Bush and one-time Supreme Court short-lister.

Judge Luttig is critical of Judge Sullivan’s handling of the case. At the same time, he rejects the core argument of Judge Sullivan’s critics, that Sullivan is obligated to grant the Justice Department’s motion to dismiss. After all, that’s not what Rule 48 of the Federal Rules of Criminal Procedure says or means.

Judge Luttig writes:

The rule of law instructs that U.S. District Court Judge Emmet G. Sullivan has the power — indeed, the obligation — to determine whether dismissal of Flynn’s case would be in the public interest and whether the integrity of the judicial process would be compromised by granting the government’s dismissal request. This authority stems from the federal criminal rules of procedure and the trial judge’s inherent authority. If this authority were properly exercised, the judge’s refusal to dismiss the case would not impermissibly usurp the executive’s exclusive constitutional power to decide whether to bring or maintain a criminal prosecution.

Judge Luttig believes Judge Sullivan erred by inviting amici submissions and appointing Judge Gleeson to argue against dismissal. In his view the D.C. Circuit should grant the writ insofar as it seeks a reversal of these orders. According to Judge Luttig, the D.C. Circuit should also consider whether the case should be remanded to a different district court judge.

Judge Luttig concludes:

Were either Sullivan or another judge eventually to decide that it would be contrary to the public interest to dismiss the prosecution or that to do so would undermine the integrity of the judicial process, that judgment could be appealed.

The appeals court would then confront a novel and nettlesome question. The trial court has indisputable, but very limited, power to refuse the government’s request. Here, because the government contends that the case should be dismissed because of its own confessed misconduct, and therefore the government’s prosecutorial interest is at its zenith, it would be exceedingly difficult for a court to substitute its view and override the government’s contrary assessment. Under our Constitution, the decision whether to prosecute to the final stages of conviction and sentence is committed wholly and exclusively to the executive branch of the government — almost.

 

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From Judge Gregory H. Woods’ decision Friday in Delta Air Lines, Inc. v. Bombardier, Inc., 2020 WL 2614704 (S.D.N.Y.):

One distinguishing facet of the American legal system is its commitment to public access to the trial process. This legacy of “open justice” is as old as America itself. Delta Air Lines, Inc. … has chosen to bring its breach of contract claim in one of these open, federal courts, but asks that all of the details of the contract at issue remain sealed. Because Delta has not overcome the strong presumption to public access that attaches to its complaint, its motion to seal is DENIED….

Delta has failed to meet its burden of proof that its complaint should be sealed…. [T]he presumption of public access to the information Delta seeks to shield from the public has extraordinarily substantial weight. Any decision that the Court makes in this matter will necessarily touch on its interpretation of the contract at issue and its terms—including the specific language that Plaintiff has requested be redacted. Delta recognizes that fact. Indeed, in its own words, the details of the “unique and multi-faceted pricing structure” in the purchasing contract “is integral to Delta’s claims.”

The Court cannot reach a decision regarding a contract’s interpretation without examining the contract; Delta cannot expect the Court to decide the principle issue in its case in secret. The presumption of public access to the structure and operation of the disputed contractual provisions at issue in this case is therefore extremely high. The weight of the presumption is arguably less with respect to the few references to the approximate amount at issue in the dispute that Delta proposes to shelter….

[The test for when a document may be sealed] requires that the Court consider the countervailing interests that weigh against public disclosure. The motion to seal is surprisingly lacking in particularity, despite the Court’s invitation to submit supplemental briefing in support of the application. Regardless, Delta relies primarily on two countervailing interests: 1) the fact that disclosure would cause both Delta and Bombardier, Inc. (“Bombardier”) competitive harm, and 2) an unqualified confidentiality provision in the purchasing contract at issue forbidding either party from disclosing its terms or conditions.

First, the Court acknowledges that courts “routinely permit parties to redact sensitive financial information” from public filings. But Delta has provided the Court with only a single affidavit from the Head of Legal Services at Bombardier, reiterating that the terms and conditions of this contract are heavily negotiated and must remain confidential lest the parties “be at a decided disadvantage in negotiation transactions with other purchasers.”

Although this argument is compelling, it does not override the extraordinary substantial weight this Court accords to the presumption of public access given the centrality of nearly all the proposed redactions to the parties’ dispute. And there is no support for Delta’s conclusory assertions that all of the proposed redactions—even those seeking to conceal generic references to the amount of money at stake in this litigation—are necessary to avoid causing either party competitive harm. Many of the redactions are broad, non-specific references to general terms in the contract. And the references to the dollar amounts involved in the dispute are only generic references to their order of magnitude.

Second, though Delta asserts that “[t]he Purchase Agreement contains an unqualified confidentiality provision forbidding either party from disclosing the terms or conditions of the Agreement,” the mere “existence of a confidentiality agreement covering judicial documents is insufficient to overcome the First Amendment presumption of access.” Courts in this district have long held that bargained-for confidentiality does not overcome the presumption of access to judicial documents.

And the text of the clause itself provides that the agreement “is confidential between the parties … except … as may be required by any statute, court or administrative order or decree or governmental ruling or regulation of any applicable jurisdiction ….” In other words, while the agreement might prohibit the parties from disclosing its terms, contrary legal obligations, including the presumption of public access, can qualify that prohibition. If the Court was to read the agreement as contracting away or rebutting the presumption of public access, “then it would not only eviscerate an express exception to that prohibition, but also sanction a loophole under which contracting parties could insert confidentiality clauses in their agreements in order to thwart the common law right of public access to judicial documents that is said to predate the Constitution.”

Delta argues that the Court can adjudicate the contractual provisions in dispute in this case without disclosing them to the public because it is not required to disclose that information in its public filings with the Securities and Exchange Commission. As Delta put it, “[t]he same considerations that exempt contract prices from public disclosure to the investing public also support confidential treatment of this lawsuit. The general public’s interest in monitoring civil litigation dockets should be no greater than the investing public’s interest in knowing the details of multi-billion dollar transactions.”

Of course, Delta offers no legal citation in support of this airy statement. Instead, this position seems to reflect the personal opinion of the company or its counsel. Id. (“The general public’s interest … should be ….” (emphasis added)). This take suggests a fundamental misunderstanding of the nature of the presumption of public access to judicial documents in federal litigation—a doctrine with longer pedigree than the federal securities laws, and one with Constitutional import.

The question here is not whether Delta is required to disclose this information to the investing public regardless of whether or not it wants to do so—the question is whether Delta can bring the Court a dispute to adjudicate in secret. The answer to that question is clear: “The act of bringing suit in a United States District Court is inherently a public act. It invokes the Court’s jurisdiction and asks that a constitutional officer, an Article III judge whose compensation is paid by the public, preside over a case or controversy in a public courthouse.” …

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