I run PlainSite, which indexes about 10 million dockets and is mentioned in the OP's post. I have experience in this field.
PACER is of value not only to litigants, but also to journalists, academics, employers, and average citizens who are interested in any given topic, individual or company.
Litigants who need PACER access but can't afford it are almost never given free access. When you file on CM/ECF, the e-filing side of PACER, you are given one free bite at the apple for documents in your own case. Legal research involving other cases is not free. Second attempts to view documents in your own case are not free. In forma pauperis status does not make your access free. PACER waivers are not granted to anyone but select academics, and then, rarely.
Many opinions are not properly tagged as opinions since it is each individual judge's responsibility to handle the tagging. PACER charges for them anyway, even though they are supposed to be free. This applies to tens or hundreds of thousands of documents on the system. See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3034399 and https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3026779.
It is rayiner's opinion that it's not unreasonable for the government to charge an access fee per page for PACER, but it is the law (the E-Government Act of 2002) that doing so is inappropriate and illegal. Recently, the authors of that Act, Darrell Issa and Joe Lieberman, filed an amicus brief explaining their position on that matter yet again in the ongoing litigation. See https://www.plainsite.org/dockets/download.html?id=246610557....
The marginal cost to the government of filing a new suit is substantial; hence the filing fee. The marginal cost of providing one more PDF to the public is zero. That's an important difference.
This is pretty much wrong. There are a variety of things on PACER that would be considered "the law" from opinions (although a lot of them have recently been made available) to court orders and judgments.
> It’s a system for accessing parties’ legal filings.
... as well as rulings made by the court and filings by the government. All of which are public records.
>Opinions rendered by courts, which are “law” are generally posted on the courts’ websites: http://www.nysb.uscourts.gov/judges-info/opinions.
Only some and this is a recent development.
> PACER is a service that’s primarily used by litigants that’s value is primarily to litigants.
What is your basis for this assertion? The information on PACER is used by journalists, historians, litigants, lawyers, scholars and others. Why do we need to be concerned with who or why citizens want to access public information held by the government?
> Litigants who need PACER access but can’t afford it are given free access.
Why should a governments' citizens have to 'afford' access to the public information of said government?
> It’s not unreasonable for the government to charge a user fee to access it, like all the other kinds of user fees the government charges for public services. (Indeed, the government charges substantial filing fees for availing oneself of the courts in the first place.)
PACER charges are not cost based fees, unless you take the view that the "cost basis" is all of the technology infrastructure of the judicial branch. Rather it funds what is essentially a technology orientated slush fund that the AO of the US Courts doesn't want to let go of.
Accessing PACER from a courthouse is free. Accessing PACER for a case you are involved in is free. Getting judicial opinions from PACER is free. If you convince a judge that the cost of PACER is a burden to you, it is free. And finally, PACER doesn't actually charge you anything until you owe them more than $15 in a 3-month period - it is not cumulative: if your balance is less than $15, it goes to 0.
... other than the half day you had to take off work, transportation to the courthouse and fees for printing out an electronic document -- and that is if you are local. What if I want to get a 'free' document in a court that is 2,000 miles away?
> Accessing PACER for a case you are involved in is free.
This is false. If you are an ECF user you theoretically can get "one free view" of a document as they are filed in a case you are a party, however this rarely works so you end up having to pay the pacer fee anyway. You still have to pay PACER fees anytime you view the docket, search, or view any document in a "case you are involved in".
> Getting judicial opinions from PACER is free.
... a relative recent development and only covers some opinions.
> If you convince a judge that the cost of PACER is a burden to you, it is free.
Really? You have a citation for that? I'm sure I can convince at least one federal judge my several thousand dollar a month pacer bill is a burden. That would be great.
While it's true that non-opinion parts of dockets aren't "the law" in the sense of issuing precedent that courts will be expected to follow in other cases, it's also true that these other parts of dockets contribute to important kinds of legal knowledge that we ought to care about in a democracy governed by law.
They include, for example, information about the actions of immensely powerful corporations and individuals. The fact that court dockets are public records allows us to know who has sued Donald Trump, or Google. They also provide information about the actions of the government, including courts, police, prosecutors, again in cases of extreme public concern.
Sorry to get on my high horse, but I literally wrote a book about the notion of the rule of law[1] --- and one of the key ideas of the rule of law is that the people need to have access to information about what the powerful do in order to collectively hold them accountable for their behavior.
For comparison: there's a Federal Register and a Code of Federal Regulations. The latter just contains the stuff that would be "the law" in rayiner's sense---the generally applicable results of rulemaking. The former also contains public notices, proposed rules, executive orders, and other executive branch actions. A world in which we had access to the CFR but not the Federal Register would be worse, from the standpoint of the freedom of law, than a world in which we have access to both (thankfully, the actual world).
I'm 100% certain that PACER has opinions, and those are law.
But everyone needs it, because everyone is a potential litigant. If that were not so, it wouldn't be "the legal system", but "a social club no one has to care about".
It’s not unreasonable for the government to charge a user fee to access it, like all the other kinds of user fees the government charges for public services. (Indeed, the government charges substantial filing fees for availing oneself of the courts in the first place.)