Courthouse News Service v. Michael Planet
Filing
15
Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by The Reporters Committee for Freedom of the Press. Date of service: 06/05/2012. [8203432] (LAD)
No. 11-57187
IN THE
United States Court of Appeals
FOR THE NINTH CIRCUIT
_________________________
COURTHOUSE NEWS SERVICE,
Plaintiff-Appellant,
v.
MICHAEL PLANT,
Defendant-Appellee.
_________________________
Appeal from the United States District Court for the
Central District of California, Case No. 10-cv-08083-R
The Honorable Manuel Real
_________________________
BRIEF AMICUS CURIAE OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE
PRESS IN SUPPORT OF PLAINTIFF-APPELLANT URGING REVERSAL
_________________________
Counsel for amicus curiae:
Lucy A. Dalglish
Gregg P. Leslie
Kristen Rasmussen
The Reporters Committee for
Freedom of the Press
1101 Wilson Blvd., Suite 1100
Arlington, VA 22209
Telephone: (703) 807-2100
CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 26.1 and 29(c)(1), amicus states that The
Reporters Committee for Freedom of the Press is an unincorporated association of
reporters and editors with no parent corporation and no stock.
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE ...............1
SOURCE OF AUTHORITY TO FILE .....................................................................1
FED. R. APP. P. 29(c)(5) STATEMENT ..................................................................2
INTRODUCTION AND SUMMARY OF ARGUMENT ........................................3
ARGUMENT
I.
Federal courts have not abstained from adjudicating the media’s First
Amendment rights in challenges to states’ systemic court access
policies, recognizing that such review is necessary to safeguard
constitutional rights. ........................................................................................4
II.
A court policy that delays public disclosure of newly filed civil actions by
five days or longer violates the First Amendment-based right of public
access, as well as the news media’s constitutional right to gather and
disseminate news. ..........................................................................................13
CONCLUSION ........................................................................................................20
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
i
TABLE OF AUTHORITIES
Cases
Billings Gazette v. Justice Court
771 F. Supp. 1062 (D. Mont. 1987) ........................................................................7
Brown & Williamson Tobacco Corp. v. FTC
710 F.2d 1165 (6th Cir. 1983) ..............................................................................14
Courthouse News Serv. v. Jackson
No. H-09-1844, 2009 WL 2163609 (S.D. Tex. July 20, 2009) ........................4, 12
Delaware Coalition for Open Government, Inc. v. The Delaware Court of
Chancery, No. 1:11-cv-01015-MAM (D. Del. filed Oct. 25, 2011) ..................7–8
Elrod v. Burns
427 U.S. 347 (1976) ..............................................................................................14
Globe Newspaper Co. v. Pokaski
868 F.2d 497 (1st Cir. 1989) .................................................................... 5–6 & n.2
Grove Fresh Distribs., Inc. v. Everfresh Juice Co.
24 F.3d 893 (7th Cir. 1994) ..................................................................................15
Hearst Corp. v. Skeen
130 S.W.3d 910 (Tex. Ct. App. 2004) ........................................................... 16–17
In re Charlotte Observer
882 F.2d 850 (4th Cir. 1989) ................................................................................15
In re Iowa Freedom of Info. Council
724 F.2d 658 (8th Cir. 1984) ................................................................................14
Johnson Newspaper Corp. v. Morton
862 F.2d 25 (2d Cir. 1988) .................................................................................6–7
Newman v. Graddick
696 F.2d 796 (11th Cir. 1983) ..............................................................................14
ii
O’Shea v. Littleton
414 U.S. 488 (1974) ...................................................................................... passim
Presley v. Georgia
130 S. Ct. 721 (2010) .................................................................................... passim
Press-Enterprise Co. v. Superior Court
478 U.S. 1 (1986) ....................................................................................................7
Publicker Indus., Inc. v. Cohen
733 F.2d 1059 (3d Cir. 1984) ...............................................................................14
Richmond Newspapers, Inc. v. Virginia
448 U.S. 555 (1980) ..............................................................................................13
Rivera-Puig v. Garcia-Rosario
983 F.2d 311 (1st Cir. 1992) .................................................................................15
Westmoreland v. CBS
752 F.2d 16 (2d Cir. 1984) ...................................................................................14
Statute
N.Y. Civ. Rights Law § 74 (McKinney 2012).........................................................17
Other Authorities
Keith Bradsher, S.U.V. Tire Defects Were Known in ’96
but Not Reported, N.Y. Times, June 24, 2001, at A11 ...........................................9
Brief for The Reporters Committee for Freedom of the Press et al. as
Amici Curiae Supporting Plaintiff, Delaware Coalition for
Open Government, Inc. v. The Delaware Court of Chancery
No. 1:11-cv-01015-MAM (D. Del. filed Oct. 25, 2011) ..................................7 n.3
Eugene Cerruti, “Dancing in the Courthouse”: The First Amendment
Right of Access Opens a New Round, 29 U. Rich. L. Rev. 237 (1995) ......... 12–13
Delaware Court of Chancery, http://courts.delaware.gov/chancery/
(last visited June 5, 2012) .......................................................................................8
iii
Rachel Smolkin, Justice Delayed, Am.
Journalism Rev., Aug.–Sept. 2007, at 18 ...................................................... 17–19
Matthew L. Wald & Keith Bradsher, Judge Tells Firestone to Release
Technical Data on Tires, N.Y. Times, Sept. 28, 2000, at C2 .................................9
iv
STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE
Amicus curiae The Reporters Committee for Freedom of the Press (“The
Reporters Committee” or “amicus”) is a voluntary, unincorporated association of
reporters and editors that works to defend the First Amendment rights and freedom
of information interests of the news media. The Reporters Committee has provided
representation, guidance and research in First Amendment and Freedom of
Information Act litigation since 1970. Amicus has a strong interest in ensuring the
continued availability of federal courts as a forum for challenging state court
policies that systemically restrict the news media’s right of access to state judicial
proceedings and records. Amicus requests that this Court find that the abstention
doctrine enunciated in O’Shea v. Littleton, 414 U.S. 488 (1974) — which
addresses the concern that federal courts not unduly interfere with pending and
future state court proceedings — should not be applied to federal actions for
injunctive relief directed at state courts’ denial of media access to a court system.
Accordingly, the Court should reverse the lower court’s dismissal of PlaintiffAppellant’s complaint.
SOURCE OF AUTHORITY TO FILE
Counsel for Plaintiff-Appellant and Defendant-Appellee consented to the
filing of this brief amicus curiae.
1
FED. R. APP. P. 29(c)(5) STATEMENT
Amicus states that:
(A)
no party’s counsel authored this brief in whole or in part;
(B)
no party or party’s counsel contributed money that was intended to
fund preparing or submitting the brief; and
(C)
no person — other than the amicus curiae, its members or its counsel
— contributed money that was intended to fund preparing or
submitting the brief.
2
INTRODUCTION AND SUMMARY OF ARGUMENT
The implications of applying the abstention doctrine enunciated in O’Shea v.
Littleton, 414 U.S. 488 (1974) — which addresses the concern that federal courts
not unduly interfere with pending and future state court proceedings — to federal
court actions for injunctive relief directed at state courts’ systemic denial of media
access to court proceedings and records are deeply troubling. Under the District
Court’s interpretation of the previously seldom-used doctrine, federal courts would
be unable to adjudicate the media’s First Amendment rights in challenges to
various state court policies that infringe the public’s access rights and severely
curtail journalists’ ability to do their jobs. Numerous federal courts, including the
U.S. Supreme Court, have declined to abstain in these cases after recognizing the
weight of the constitutional right involved. Indeed, these courts’ reluctance to
abstain ensures that the news media’s constitutional right of access is safeguarded
through the availability of federal courts as a forum for the adjudication of these
rights.
The right of public access to newly filed civil actions is arguably not as wellestablished as the public’s right of access to criminal proceedings, but many
federal and state courts have held that the public and media have a constitutional
right of access to civil proceedings — a right that is infringed by procedures that
impose an undue delay. A lack of prompt access to judicial records also
3
significantly burdens the news media’s right to gather and disseminate information
about matters of public interest and concern in a manner that best benefits the
public.
ARGUMENT
I.
Federal courts have not abstained from adjudicating the media’s
First Amendment rights in challenges to states’ systemic court access
policies, recognizing that such review is necessary to safeguard
constitutional rights.
Complaints against a state court system’s access policies primarily raise a
question of First Amendment jurisprudence. Courthouse News Serv. v. Jackson,
No. H-09-1844, 2009 WL 2163609, at *2 (S.D. Tex. July 20, 2009). For that
reason, numerous federal courts have confronted the constitutional issue in these
cases, providing members of the news media a forum in which to adjudicate its
right of access to judicial proceedings and records. In fact, the U.S. Supreme
Court’s decision to grant review of a state court procedure that denied access to
court proceedings demonstrates both federal courts’ willingness to weigh in on
these challenges, as well as the importance of the ability to seek relief from such
orders in the federal courts.
Under the District Court’s interpretation of O’Shea, federal courts would not
have been able to grant injunctive relief in any of a number of cases1 that
1
Pursuant to the instruction that amici briefs should not repeat arguments or
factual statements made by the parties, amicus does not repeat the examples listed
4
challenged state court orders, rules or policies that infringed the public access right
and severely curtailed the news media’s ability to fulfill its constitutionally
protected role of gathering and disseminating information about matters of public
interest and concern. The Boston Globe, for example, would have been unable to
challenge the constitutionality of a state statute that authorized the sealing of
criminal court records in cases that did not result in a conviction. Globe Newspaper
Co. v. Pokaski, 868 F.2d 497, 499 (1st Cir. 1989). In that case, the reporters sought
access to records in two completed criminal cases: one involving a Boston police
officer in which allegations were made that the trial judge initially found the
officer guilty of possession of cocaine but reversed his finding after learning that a
guilty verdict would cost the officer his job, and the other involving a series of
prosecutions initiated in Suffolk County in 1986 alleging sexual offenses against
juveniles. Id. The newspaper brought an action in federal district court, asserting
that the commonwealth’s statutory scheme impermissibly burdened its
constitutional right of access — a right that was particularly strong because “the
subject of press attention is the performance of the judicial system itself,”
according to the district court’s order finding that the records sought implicated
First Amendment concerns. Id. at 501.
by Plaintiff-Appellant in Part III.C (pages 46–48) of its opening brief, docket No.
7, but hereby incorporates by reference that discussion. 9th Cir. R. 29-1 Circuit
Advisory Committee Note.
5
In ruling that a blanket prohibition on the disclosure of the records at issue
implicated the First Amendment, the U.S. Court of Appeals for the First Circuit
noted that the media and public’s interests in the openness of criminal trials “seem
clearly implicated in this age of investigative reporting and of continuing public
concern over the integrity of government and its officials.” Id. at 503. The court
concluded that the portion of the statute authorizing the sealing of records in which
a defendant had been found not guilty by a court or jury and those in which the
court made a finding of no probable cause was unconstitutional because the statute
was not the least restrictive method of promoting the commonwealth’s interest in
preventing the public disclosure of records that defendants did not want released.
Id. at 507.2 Specifically, the statute’s requirement that the public initiate an
administrative or legal action to obtain the records of closed cases “delays access
to news, and delay burdens the First Amendment … far greater, too great, we
believe, to survive First Amendment scrutiny. . . . Moreover, to the extent that the
press must obtain counsel to argue for the release of records, the statute imposes an
economic burden on the public.” Id.; see also Johnson Newspaper Corp. v.
Morton, 862 F.2d 25, 30 (2d Cir. 1988) (reversing the district court’s finding that a
2
The court found that the portion of the statute authorizing the sealing of records
in cases in which a grand jury returned a “no bill” against a defendant survived
constitutional scrutiny because there is no First Amendment right of public access
to such proceedings and records. Globe Newspaper Co. v. Pokaski, 868 F.2d 497,
509 (1st Cir. 1989).
6
state court judge’s closure of a pretrial suppression hearing violated the First
Amendment right of access to criminal proceedings not on abstention but mootness
grounds where a transcript of the suppression hearing became available to the
media); Billings Gazette v. Justice Court, 771 F. Supp. 1062, 1064 (D. Mont.
1987) (finding a Montana statute that required closure of a preliminary
examination in a criminal prosecution upon request by the defendant
unconstitutional under Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986)).
Open court advocates and members of the news media are currently
involved in a case that, like Globe Newspaper Co., demonstrates the serious threat
to public awareness of significant matters of interest and concern implicated by the
District Court’s holding in this case. The Delaware Coalition for Open
Government brought suit in federal court challenging as facially unconstitutional
state Chancery Court rules that allow blanket confidentiality in arbitration
proceedings and records, including court-supervised settlement agreements.
Delaware Coalition for Open Government, Inc. v. The Delaware Court of
Chancery, No. 1:11-cv-01015-MAM (D. Del. filed Oct. 25, 2011).3 Were the
3
Amicus filed a brief amici curiae on behalf of itself and six news organizations.
Brief for The Reporters Committee for Freedom of the Press et al. as Amici Curiae
Supporting Plaintiff, Delaware Coalition for Open Government, Inc. v. The
Delaware Court of Chancery, No. 1:11-cv-01015-MAM (D. Del. filed Oct. 25,
2011).
7
district court to apply the O’Shea doctrine to this action,4 it would not be able to
grant injunctive relief in a case that raises serious concerns about the public’s
ability to participate in and serve as a check upon the judicial process that oversees
private agreements in a court that describes itself as “widely recognized as the
nation’s preeminent forum for the determination of disputes involving the internal
affairs of the thousands upon thousands of Delaware corporations and other
business entities through which a vast amount of the world’s commercial affairs is
conducted.” Delaware Court of Chancery, http://courts.delaware.gov/chancery/
(last visited June 5, 2012).
This inability to challenge confidential settlement agreements, which often
reveal serious questions about health, safety and other important issues that affect
the public, denies consumers important information that could alert them to
potential dangers posed by products and services they use. It also undermines the
public’s interest in monitoring the conduct of courts that oversee, approve or
enforce these private settlement agreements. Indeed, secret settlement agreements
prevent health and safety issues from becoming public, thereby masking dangers
that the public, had it known of their existence, could have more effectively
guarded against. As just one example, U.S. Department of Transportation officials
said the sealing of documents in settled lawsuits related to rollover deaths in Ford
4
It is important to note that the case has been fully briefed, and oral arguments
held, and neither party nor the judge has made any reference to abstention.
8
Explorers equipped with Firestone tires that failed was one reason they did not
identify the pattern of scores of such deaths. Matthew L. Wald & Keith Bradsher,
Judge Tells Firestone to Release Technical Data on Tires, N.Y. Times, Sept. 28,
2000, at C2, available at 2000 WLNR 3207540.5 The tires were linked to more
than 270 deaths nationwide. Keith Bradsher, S.U.V. Tire Defects Were Known in
’96 but Not Reported, N.Y. Times, June 24, 2001, at A11, available at 2001
WLNR 3356280. However, members of the public and media would have no
means to challenge the blanket confidentiality and thereby exercise their right to
monitor and evaluate a judicial process and be informed of significant risks to
public health and safety if the federal court overseeing the plaintiff’s challenge to
the Chancery Court’s policy applied the O’Shea doctrine.
Perhaps the strongest example of federal courts’ reluctance to abstain from
adjudicating constitutional rights in challenges to states’ systemic court access
policies is the U.S. Supreme Court’s ruling in Presley v. Georgia, 130 S. Ct. 721
(2010). Amicus recognizes that Presley is highly distinguishable from this case and
thus not controlling precedent.6 However, it is an instructive allegory of the
5
To facilitate access to secondary sources, “WLNR,” or Westlaw NewsRoom,
citations are provided whenever possible.
6
Presley reiterates the constitutional right under the Sixth Amendment’s public
trial guarantee. It also involves a criminal proceeding to which the high Court had
held more than 25 years earlier that a constitutional right of public access attaches
and mandates certain procedures state courts must follow before restricting that
9
interests at stake when court procedures deny the public its constitutional right of
access to judicial proceedings.
In Presley, a Georgia trial court, citing a lack of space in the courtroom
gallery, excluded members of the public and the criminal defendant’s family from
voir dire proceedings. Id. at 722. After his conviction, Presley moved for a new
trial, claiming that the exclusion violated his Sixth and Fourteenth Amendment
rights to a public trial and presenting evidence showing that adequate room would
have been available to the public had the court reconfigured seating in the
courtroom. Id. The court denied the motion, noting that “[i]t’s totally up to my
discretion whether or not I want family members in the courtroom to intermingle
with the jurors and sit directly behind the jurors where they might overhear some
inadvertent comment or conversation.” Id. The intermediate appellate court agreed,
finding “[t]here was no abuse of discretion here, when the trial court explained the
need to exclude spectators at the voir dire stage of the proceedings and when
members of the public were invited to return afterward.” Id. at 722–23. The
Supreme Court of Georgia, with two justices dissenting, also agreed — an
“affirmance [that] contravened this Court’s clear precedents,” the U.S. Supreme
Court later stated. Id. at 722. Noting that “the United States Supreme Court [has]
right. Finally, the appellant in Presley exhausted all available remedies for review
in the state court system before seeking federal review of his case. Presley v.
Georgia, 130 S. Ct. 721, 722–23 (2010).
10
not provide[d] clear guidance regarding whether a court must, sua sponte, advance
its own alternatives to [closure],” the Georgia high court ruled that “Presley was
obliged to present the court with any alternatives that he wished the court to
consider.” Id. at 723. In the absence of any alternatives offered, “there is no abuse
of discretion in the court’s failure to sua sponte advance its own alternatives,” the
court concluded. Id.
After a brief discussion of its well-established precedent recognizing the
right to a public trial under both the First and Sixth Amendments, the Supreme
Court stated, “[t]here could be no explanation for barring the accused from raising
a constitutional right that is unmistakably for his or her benefit.” Id. at 724. As for
the Georgia Supreme Court’s conclusion that the high Court had not provided any
guidance about the need to consider alternatives to closure absent suggestions
offered by the party opposing closure, the Court noted that the Georgia Supreme
Court arrived at its conclusion
despite our explicit statements to the contrary[.] … The conclusion
that trial courts are required to consider alternatives to closure even
when they are not offered by the parties is clear not only from this
Court’s precedents but also from the premise that [t]he process of
juror selection is itself a matter of importance, not simply to the
adversaries but to the criminal justice system. The public has a right to
be present whether or not any party has asserted the right.
Id. at 724–25(citation and internal quotation marks omitted).
11
In observing that nothing in the record indicated that the trial court could not
have accommodated the public at Presley’s trial had it chosen to do so, the Court
reminded trial courts that they “are obligated to take every reasonable measure to
accommodate public attendance at criminal trials.” Id. at 725. That is, where a
constitutional right of public access is implicated, concerns beyond a court’s
interest in managing its cases or docket flow as it sees fit must inform any decision
that restricts this right; see also Courthouse News Serv., 2009 WL 2163609 at *5
(order granting preliminary injunction) (finding, in a case with similar facts to this
one, that the 24- to 72-hour delay in providing public access to newly filed civil
court records, a procedure defendants said was necessary to achieve their
“administrative goal of getting online and not in line” was not a reasonable
limitation on access).
Presley strongly demonstrates that even in those cases where relief from
state court procedures that deny access to a court system is sought through the state
courts, relief is not always available. The problem is even more acute where the
law is less explicit and produces an amalgam of different standards governing the
inquiry at the state and federal levels. As a result, “[d]ifferent courts have almost
arbitrarily relied upon different bodies of law to resolve common issues of access,
often arriving at different results.” Eugene Cerruti, “Dancing in the Courthouse”:
The First Amendment Right of Access Opens a New Round, 29 U. Rich. L. Rev.
12
237, 270 (1995). For that very reason, the news media and others asserting their
right of public access to judicial proceedings and records must have an avenue by
which federal guidance is available to adjudicate these constitutional rights in a
manner consistent with well-established access jurisprudence.
II.
A court policy that delays public disclosure of newly filed civil
actions by five days or longer violates the First Amendment-based
right of public access, as well as the news media’s constitutional right
to gather and disseminate news.
The right of public access to newly filed civil actions is arguably not as well-
established as the public’s right of access to criminal proceedings, but many
federal and state courts have held that the public and media have a constitutional
right of access to civil proceedings — a right that is infringed by procedures that
impose an undue delay in its immediacy. A lack of prompt access to judicial
records also significantly burdens the news media’s right to gather and disseminate
information about matters of public interest and concern, and severely curtails
journalists’ ability to do so in a manner that best benefits the public.
Although the Supreme Court has not directly addressed whether the public
and media have a constitutional right of access to civil proceedings, a plurality
found that “historically both civil and criminal trials have been presumptively
open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980)
(plurality opinion). And many federal and state courts subsequently have
recognized a right of public access to proceedings and documents in civil cases,
13
though they have differed on the origin and scope of the right. See, e.g.,
Westmoreland v. CBS, 752 F.2d 16, 23 (2d Cir. 1984) (“we agree … that the First
Amendment does secure to the public and to the press a right of access to civil
proceedings in accordance with the dicta of the Justices in Richmond
Newspapers”); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir. 1984)
(“the First Amendment does secure a right of access to civil proceedings”); In re
Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir. 1984) (ruling that the
First Amendment access right extends to contempt proceedings); Brown &
Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177 (6th Cir. 1983) (holding
that the First Amendment and common law limit judicial discretion to seal
documents in civil litigation); Newman v. Graddick, 696 F.2d 796, 801–03 (11th
Cir. 1983) (finding a constitutional right of access to proceedings and a commonlaw right of access to documents in a civil case involving prison conditions).
The Supreme Court has stated that “[t]he loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes irreparable injury.”
Elrod v. Burns, 427 U.S. 347, 373 (1976) (citation omitted). As such, federal
review of state court policies that infringe the public access right is necessary
because state court challenges to the procedures impose unnecessary delays in
rulings that often do not resolve the issue correctly under constitutional standards.
See, e.g., Presley, 130 S. Ct. at 721 (involving a lapse of nearly three years
14
between the defendant’s conviction in state court and the U.S. Supreme Court’s
ruling). Indeed, courts have found that the “irreparable injury” caused by the loss
of the First Amendment right to free speech extends to the constitutional right of
access, which “should be immediate and contemporaneous. … The
newsworthiness of a particular story is often fleeting. To delay or postpone
disclosure undermines the benefit of public scrutiny and may have the same result
as complete suppression.” Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24
F.3d 893, 897 (7th Cir. 1994) (citations omitted), superseded by rule on other
grounds, Bond v. Utreras, 585 F.3d 1061 (7th Cir. 2009); see also In re Charlotte
Observer, 882 F.2d 850, 856 (4th Cir. 1989) (finding that a magistrate judge’s
closure order “unduly minimizes, if it does not entirely overlook, the value of
‘openness’ itself, a value which is threatened whenever immediate access to
ongoing proceedings is denied, whatever provision is made for later public
disclosure”). Moreover, the First Circuit stated that the “inordinate length of time”
that the matter had been pending before Puerto Rico commonwealth authorities
was an “extraordinary reason[] … which militate[d] against our restraining federal
court action” in a federal court action challenging the constitutionality of a court
rule closing all criminal preliminary hearings. Rivera-Puig v. Garcia-Rosario, 983
F.2d 311, 320 (1st Cir. 1992).
15
Prompt access to judicial records is not only constitutionally required by
access jurisprudence but also by the First Amendment’s free press guarantee. To be
sure, delaying review of new civil complaints for such a long period of time that
“new” cases are no longer news by the time the court clerk allows members of the
media to view them implicates interests well beyond those invoked by a state
court’s system of managing its cases. Such a delay constitutes an impermissible
burden on the media’s right to collect and disseminate the news. Perhaps more
significantly, though, a lack of prompt access severely curtails journalists’ ability
to do their job in a manner that best serves the public interest.
A lack of access to court documents — the records on which members of
the news media rely daily to responsibly report matters of public interest and
concern — inevitably leads to reporting rumors rather than facts. Such information
is often highly newsworthy and likely to be reported but not as reliably had official
documents been available. The problem is further exacerbated in states that do not
extend the absolute litigation privilege to out-of-court statements attorneys make in
connection with pending litigation. Hearst Corp. v. Skeen, 130 S.W.3d 910, 926
(Tex. Ct. App. 2004) (“Although libelous statements made in connection with a
judicial proceeding [by the judges, jurors, counsel, parties, or witnesses in open
court] are absolutely privileged and will not serve as the basis of a civil action for
libel or slander, regardless of the negligence or malice with which they are made,
16
re-publication of such statements outside of the judicial context waives the
privilege.”), rev’d on other grounds, 159 S.W.3d 633 (Tex. 2005). In these cases,
journalists are unable to rely on attorneys’ oral statements or written republications
of complaints or the allegations contained therein to fairly and accurately pass on
information that affects the public interest. At the opposite end of the spectrum, in
jurisdictions that provide lawyers an absolute privilege to communicate outside the
courtroom about pending litigation, so long as their statements are fair and accurate
reports of judicial documents or proceedings, see, e.g., N.Y. Civ. Rights Law § 74
(McKinney 2012), a lack of access to judicial records incentivizes such
extrajudicial statements, leaving courts to later address their impact on the
underlying proceedings.
One need only consider cases from the headlines to realize the dangerous
effects of such a system of reporting. In March 2006, the “Duke lacrosse rape
case” made front-page news nationwide, due in large part to sensational
accusations and inflammatory statements made by then-district attorney Michael
B. Nifong, who “served up salacious sound bites affirming a certain crime with
chilling racial overtones.” Rachel Smolkin, Justice Delayed, Am. Journalism Rev.,
Aug.–Sept. 2007, at 18, available at 2007 WLNR 26779949. The coverage tended
to focus on the conflict between an elite, largely white school and the workingclass, racially mixed southern city that surrounded it. Id. “University rape
17
highlights racial divisions in South,” proclaimed London’s Sunday Telegraph,
while a Los Angeles Time headline stated that “Lax Environment; Duke lacrosse
scandal reinforces a growing sense that college sports are out of control, fueled by
pampered athletes with a sense of entitlement.” Id.
By late April, however, news organizations’ reporting became more
skeptical as questions about the case deepened in light of revelations that DNA
tests found no link between the accuser and the athletes, one of the defendants had
a solid alibi and a botched lineup included no filler pictures of people unconnected
to the case. Id. In October, “60 Minutes” journalist Ed Bradley aired a piece that
was a scathing indictment not of the athletes but of the prosecution. Id. “Over the
past six months, ‘60 Minutes’ has examined nearly the entire case file,” Bradley
said in the Award-winning broadcast. Id. “The evidence we’ve seen reveals
disturbing facts about the conduct of the police and the district attorney and raises
serious concerns about whether or not a rape even occurred.” Id. Nifong dropped
rape charges in December, the state attorney general officially cleared the athletes
the following April, and a disciplinary panel of the North Carolina State Bar
disbarred the prosecutor two months later. Id.
In the aftermath, journalists asked themselves what the media should learn
from its coverage of the case. Id. Stuart Taylor, a National Journal columnist who
was among the first to proclaim a miscarriage of justice and the author of a book
18
about the case, advised, “Read the damn motions. If you’re covering a case, don’t
just wait for somebody to call a press conference. Read the documents.” Id. Taylor,
who is also a lawyer, warned reporters against buying into attorneys’ rhetoric. Id.
“We should never take a prosecutor’s word as fact,” nor should journalists
disregard defense assertions as necessarily false, he said. Id. “Yes, many defense
lawyers will say almost anything to get their clients off most of the time, but don’t
just ignore what they say. Look at what they're telling you. And do they have the
evidence to back it up?” Id. When those documents are unavailable, however,
journalists are deprived of valuable tools they use to fulfill this constitutionally
protected watchdog role.
The constitutional right of access to civil proceedings and records, though
arguably not as well-established as the right to criminal proceedings, is nonetheless
infringed by procedures that unduly delay its immediacy. In such instances,
interests well beyond those invoked by a state court’s system of managing its cases
or docket flow as it sees fit are at stake. Such delays constitute an impermissible
burden on the media’s right to collect and disseminate the news and severely
curtail journalists’ ability to do so in a manner that best serves the public interest.
19
CONCLUSION
For the foregoing reasons, amicus respectfully requests that the Court
reverse the lower court’s dismissal of Plaintiff-Appellant’s complaint.
Dated:
June 5, 2012
Arlington, VA
Respectfully Submitted,
By: s/ Lucy A. Dalglish
Lucy A. Dalglish
Gregg P. Leslie
Kristen Rasmussen
1101 Wilson Blvd., Suite 1100
Arlington, VA 22209
Telephone: (703) 807-2100
Counsel for amicus curiae The Reporters
Committee for Freedom of the Press7
7
Amicus thanks Rutgers School of Law – Newark student Raymond Baldino for
his valuable contribution to this brief.
20
CERTIFICATE OF COMPLIANCE
PURSUANT TO FED. R. APP. P. 32(a)(7)(C)
I hereby certify that the foregoing brief amicus curiae:
1) Complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B)
because it contains 4,479 words, excluding the portions exempted by
Fed. R. App. P. 32(a)(7)(B)(iii), as calculated by the word-processing
system used to prepare the brief; and
2) Complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and
the type style requirements of Fed. R. App. P. 32(a)(6) because it was
prepared in a proportionally spaced typeface using Microsoft Word 2010
in 14-point Times New Roman font.
Dated:
June 5, 2012
Arlington, VA
s/ Lucy A. Dalglish
Lucy A. Dalglish
Counsel for amicus curiae The Reporters
Committee for Freedom of the Press
CERTIFICATE OF SERVICE
I hereby certify that on June 5, 2012, I electronically filed in searchable
Portable Document Format the foregoing brief amicus curiae with the U.S. Court
of Appeals for the Ninth Circuit by using the CM/ECF system, thereby affecting
service on the following counsel of record, all of whom are registered for
electronic filing:
David A. Greene
Leila Christine Knox
Rachel Elizabeth Matteo-Boehm
Counsel for Plaintiff-Appellant
Bryan Cave LLP
25th Floor
560 Mission Street
San Francisco, CA 94105
Roger Rex Myers
Counsel for Plaintiff-Appellant
Holme Roberts & Owen, LLP
25th Floor
560 Mission St.
San Francisco, CA 94105
Dated:
Robert A. Naeve
Counsel for Defendant-Appellee
Jones Day
3161 Michelson Drive
Irvine, CA 92612
Erica L. Reilley
Counsel for Defendant-Appellee
Jones Day
50th Floor
555 South Flower Street
Los Angeles, CA 90071
Nathaniel Garrett
Counsel for Defendant-Appellee
Jones Day
26th Floor
555 California Street
San Francisco, CA 94104
June 5, 2012
Arlington, VA
s/ Lucy A. Dalglish
Lucy A. Dalglish
Counsel for amicus curiae The Reporters
Committee for Freedom of the Press
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