Blogging of material in court records: can publicly available information be confidential?
From the case HORACE FRAZIER HUNTER v. VIRGINIA STATE BAR, EX REL. THIRD DISTRICT COMMITTEE, 285 Va. 485; 744 S.E.2d 611 (Va. 2013):
All of Hunter's blog posts involved cases that had been concluded. Moreover, the VSB [p. 503] concedes that all of the information that was contained within Hunter's blog was public information and would have been protected speech had the news media or others disseminated it. In deciding whether the circuit court erred,we are required to make our "own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression." Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S. Ct. 1535, 56 L. Ed. 2d 1 (1978). "At the very least, [the] cases recognize that disciplinary rules governing the legal profession cannot punish activity protected by the First Amendment, and that First Amendment protection survives even when the attorney violates a disciplinary rule he swore to obey when admitted to the practice of law." Gentile, 501 U.S. at 1054. (...)
State action that punishes the publication of truthful information can rarely survive constitutional scrutiny. Smith v. Daily Mail Pub. Co., 443 U.S. 97, 102, 99 S. Ct. 2667, 61 L. Ed. 2d 399 (1979). The VSB argues that it can prohibit an attorney from repeating truthful information made in a public judicial proceeding even though others can disseminate this information because an attorney repeating it could inhibit clients from freely communicating with their attorneys or because it would undermine public confidence in the legal profession. Such concerns, however, are unsupported by the evidence. To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.
See also -- 786 F. Supp. 2d 1107 (ED Va 2011) --
Cross-reference: 2012 N.J. Super. Unpub. LEXIS 29
The confidentiality provisions of the settlement agreement are inconsistent with N.J.S.A. 45:9-22.21 to -22.25, specifically, N.J.S.A. 45:9-22.23(a)(10) and Rule 1:38, which permit free access by the public to the information sought to be concealed. Severance of these provisions ordinarily would not permit enforcement of the agreement. Defendant, however, advised this court at oral argument