This morning the Fourth U.S. Circuit Court of Appeals in Richmond will hear argument in the appeal of a decision by U.S District Judge Alexander Williams, Jr. in Maryland, allowing a company to secretly and anonymously stop the Consumer Product Safety Commission from publishing a negative report about one of its products on the CPSC’s publicly available website.
This is the first challenge to the congressionally-mandated CPSC database. . . . If companies can challenge reports in the database in secret, Congress’s goal of informing the public will be undermined by years’ worth of secret litigation during which the public will be oblivious to potential hazards.[The] case [also] tests the judiciary’s commitment to the First Amendment right of access to court proceedings, which enables public oversight of the working of government and facilitates public participation. If — as the district court novelly held — a corporate reputational interest justifies secret litigation or the use of a pseudonym, one can a imagine a lot of companies stepping forward to seek secrecy. Companies sued for fraud, pollution, discrimination, and (of course) making dangerous products could all claim they ought to be allowed to litigate in secret under this view.