SDNY COURTHOUSE, Sept 12 – As in Brooklyn,
so in New Jersey. For a second time in two months a
federal judge has built a safeguard into a sealing order
that, on inspection, doesn't actually work for the public
it names.
In the Eastern District of New York,
Judge William F. Kuntz II on September 3 issued a 13-page
order
denying Inner City Press's motion to unseal an
eight-year-old criminal docket, "Sealed v. Sealed,"
reasoning in part that the public had notice of a July 7,
2026 status conference and could have attended.
The problem, raised in that case and still
on appeal, is that the calendar entry for that conference
disclosed nothing — no case name, no subject matter,
nothing that would tell any member of the public there was
something worth attending. Notice that discloses nothing
to notify anyone of is not meaningful notice; it is notice
in name only. Inner City Press is doggedly seeking
pro bono appellate counsel - story to follow.
Now, in the District of New Jersey, a
materially similar problem has surfaced in a different
form. Judge Robert Kirsch's September 10, 2026 order
sealing proceedings in United States v. John Doe states
that the Court "will give notice to the public and the
press about the motion and an opportunity, if sought, to
be heard on the motion."
That language sounds, on its face, like
exactly the kind of safeguard this outlet has spent this
year asking other courts to adopt.
But Judge Kirsch's own separately published
Individual Rules and Procedures state that "all
communications with Chambers shall be by letter
electronically filed via ECF" — a channel available only
to attorneys admitted to practice in this District — and
separately direct even pro se litigants away from chambers
entirely, to the Clerk's Office instead. Nowhere in the
order, and nowhere in the judge's own rules, is there an
answer to the basic question a member of the public or
press would need answered to actually use the safeguard:
where, and how, does one write to seek the opportunity
being offered? Inner City Press has written to the
Court, through the Clerk's Office and the District's own
attorney-discipline webform, asking that question
directly: what does "public notice" mean, in practice, if
the notice itself does not say where to respond?
If the honest answer is that no such
channel exists for anyone without New Jersey counsel,
Inner City Press has asked the Court to say so plainly,
rather than let an order promise an opportunity that, as a
structural matter, only ECF-registered attorneys can
actually invoke.
Two judges, two different circuits, two
sealing orders that each gesture toward public
accountability without building the plumbing to make it
functional. The pattern is worth naming precisely because
both judges appear to have taken the underlying principle
seriously enough to write it into their orders at all —
which makes the gap between the promise and the mechanism
more instructive, not less. A right to be heard that
nobody outside the bar can actually exercise is not a
right; it is the appearance of one. Watch this site.
