Category Archives: Principles

Nudity and transparency

We believe that the law should be not merely available but understandable.  Having law that can be readily understood without hiring a lawyer and a bunch of legal research is not always easy, but it’s an important part of openness (and the legitimacy of the legal system in the public’s eyes).

A common way that legislatures fail to achieve that objective is by enacting an ambiguous statute, the meaning of which can only be known by parsing vague and/or lengthy definitions, understanding a body of case law, and resolving various constitutional and legal questions.

This post illustrates legal murkiness by examining how Virginia law treats sartorial transparency, with a few side notes on related behavorial statutes.  (Go ahead — be a little bit naughty and read on…)

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What’s the point?

The public should have access to, and the ability to understand, the records and proceedings of government:

“The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.”  Va. Code § 2.2-3700(B).

“The benefits of public access to criminal proceedings have been recognized since before the Magna Carta.  Such access ensures that proceedings are conducted fairly, discourages perjury, safeguards against secret bias or partiality, and imparts legitimacy to the decisions of our judiciary.”  Daily Press v. Commonwealth, 285 Va. 447, 453, 739 S.E.2d 636 (2013) (link to slip op.).

“A trial is a public event.  What transpires in the court room is public property….  There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.”  Hunter v. Va. State Bar ex rel. Third Dist. Comm., 285 Va. 485, 502 (2013) (link to slip op.).

Despite such ringing affirmations of the importance of public access, and despite statutes specifically providing rights of access to judicial records (Va. Code § 17.1-208), Virginia’s state courts often ignore or reject easy ways to provide public access to important legal resources.  Officials too often embrace the legal profession’s elitism, and certain private people & entities are given access that the public does not have.  Over time, this has serious, corrosive effects — it perpetuates an unjustified mindset among officials that openness and access are not important, and it slowly makes Virginia’s legal resources captive to select private entities (through those entities’ restrictive terms of use and aggressive assertions of copyright).  Rejecting openness and retarding access often goes hand in hand with a failure to make good use of technology, a further negative.

The judiciary is certainly not alone in this regard.  In the legislative branch, lack of openness might manifest as bills quietly drafted or revised with lobbyists, substantive provisions of law buried in the state budget or Acts of Assembly, or vague and inscrutable laws.  In the executive branch, lack of openness might take the form of tactics to avoid open meetings or of expansive use of exceptions to the Virginia Freedom of Information Act.

Open Virginia Law exists to oppose these problems, to provide a spotlight — highlighting instances where open access is provided as well as where officials reject openness without justification — and to work to increase openness.  Persuading officials to solve these problems or winning the necessary changes in the law won’t be easy, but this effort is important.