Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al

Filing 391

MOTION for Leave to File as Amicus Curiae by New England First Amendment Coalition; Reporters Committee for Freedom of the Press; Massachusetts Newspaper Publishers Association; GateHouse Media, LLC. (Attachments: # 1 Exhibit A - Letter Brief)(Schutz, Sigmund)

Case 1:14-cv-14176-ADB Document 391 Filed 04/06/18 Page 1 of 6

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
STUDENTS FOR FAIR ADMISSIONS,
INC.
Plaintiff,
v.
PRESIDENT AND FELLOWS OF
HARVARD COLLEGE (HARVARD
CORPORATION),
Defendant.

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Civil Action No. 1:14-cv-14176-ADB

PARTIALLY CONSENTED-TO MOTION TO PARTICIPATE AS
AMICUS CURIAE ON PUBLIC ACCESS AND INCORPORATED
MEMORANDUM OF LAW
The New England First Amendment Coalition, the Reporters Committee for Freedom of
the Press, the Massachusetts Newspaper Publishers Association, and GateHouse Media, LLC
move for leave of court to participate in this matter as amici curiae with respect to public access
to judicial documents and proceedings during summary judgment and trial proceedings in this
case. The proposed amici are public interest groups, an association of Massachusetts
newspapers, and the owner of numerous weekly and daily newspapers in Massachusetts and
throughout the United States. The proposed amici take no position on the merits of the
underlying dispute; their interest is limited to the public’s right to know about judicial documents
and proceedings.
The proposed amici recently learned that the Court requested letter briefs on public
access to summary judgment filings and will be considering that subject on April 10, 2018. The
proposed amici have prepared a letter brief presenting views on that subject (Exhibit A,
attached) and request that the Court accept same for filing.

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The Plaintiff has consented to the proposed amici’s request for leave to participate.
Harvard does not oppose the submission of the letter-brief, and takes no position on the request
for ongoing amicus status.
In support of this motion, the proposed amici rely upon the following incorporated
memorandum of law.
INCORPORATED MEMORANDUM OF LAW
Third-parties have a well-established right to intervene in civil proceedings to contest
orders sealing judicial documents or closing the courtroom. See, e.g., Public Citizen v. Liggett
Group, Inc., 858 F.2d 775, 783-84 (1st Cir.1988) (“where intervention is available (i.e. civil
cases), it is an effective mechanism for third-party claims of access to information generated
through judicial proceedings”). The proposed amici instead request only friend of the court
status, without prejudice, limited to the opportunity to file briefs when the Court considers
matters related to public access.
This Court previously recognized that the role of amicus curiae is to “assist the court in
cases of general public interest by making suggestions to the court, by providing supplementary
assistance to existing counsel, and by insuring a complete and plenary presentation of difficult
issues so that the court may reach a proper decision.” [ECF No. 52 p. 21 (quotation marks
omitted).] Amicus status allows third-parties to participate by presenting “their views and
arguments” and to participate by filing substantive briefs and being heard at oral argument. Id. at
22. [ECF No. 52 p. 22.] The proposed amici are well positioned to provide input on matters of
public access in this litigation given their longstanding interest in an open and transparent justice
system.

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The New England First Amendment Coalition is a nonpartisan, nonprofit organization
that supports the rights of New England journalists to access government records and
information, including judicial records and information. See http://nefac.org. Its mission is to
advance and protect the five freedoms of the First Amendment, and the principle of the public’s
right to know, in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and
Vermont. In collaboration with other advocacy organizations, it also seeks to advance
understanding of the First Amendment across the nation and freedom of speech and press issues
around the world. It has filed numerous amicus briefs in state and federal courts.1
The Reporters Committee for Freedom of the Press is an unincorporated nonprofit
association. See https://www.rcfp.org. The Reporters Committee was founded by leading
journalists and media lawyers in 1970 when the nation’s news media faced an unprecedented
wave of government subpoenas forcing reporters to name confidential sources. Today it
provides pro bono legal representation, amicus curiae support, and other legal resources to
protect First Amendment freedoms and the newsgathering rights of journalists.
The Massachusetts Newspaper Publishers Association is a voluntary association of daily
and weekly newspapers published throughout Massachusetts. See
http://www.masspublishers.org. It represents those newspapers in legal and legislative matters of
common concern. In particular, it focuses on preserving freedom of speech and the public’s
right to know.
GateHouse Media, LLC is an indirect wholly-owned subsidiary of New Media
Investment Group Inc., a Delaware corporation and a New York Stock Exchange publicly-traded
1

See, e.g., Steinmetz v. Coyle & Caron, Inc., 862 F.3d 128 (1st Cir.2017); Rideout v. Gardner, 838 F.3d
65 (1st Cir.2016); Pinkham v. Dept. of Transp., 139 A.3d 904 (Me. 2016); Commonwealth v. Lucas, 472
Mass. 387 (2015), Commonwealth v. George W. Prescott Publ'g Co., 463 Mass. 258 (2012); MaineToday
Media, Inc. v. State, 82 A.3d 104 (Me. 2013); and Union Leader Corp. v. N.H. Retirement Sys., 34 A.3d
725 (N.H. 2011).

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company. See http://www.gatehousemedia.com. GateHouse is a preeminent provider of print
and digital local content and advertising in small and midsize markets. Its portfolio of products,
which includes over 630 community publications and more than 535 related websites, serves
over 220,000 business accounts and reaches approximately 20 million people on a weekly basis.
It prints daily and weekly newspapers throughout Massachusetts.
Because the Court requested letter briefs prior to the upcoming April 10 hearing at which
public access to summary judgment submissions will be considered, the proposed amici have
likewise prepared a letter brief (Exhibit A, attached), and request that the brief be accepted as
filed. The proposed amici also request that the Court allow them the opportunity to be heard on
any subsequent matters related to public access to judicial proceedings in this case.
CONCLUSION
WHEREFORE, the New England First Amendment Coalition, the Reporters Committee
for Freedom of the Press, the Massachusetts Newspaper Publishers Association, and GateHouse
Media, LLC respectfully request that the court grant them amicus curiae status limited to issues
of public access to these proceedings, and, specifically:
(A) accept the letter brief attached as Exhibit A for filing;
(B) afford amici the opportunity to be heard on any subsequent matters related to public
access to these proceedings (e.g., any proposed seal); and
(C) grant such other and further relief as may be just and proper.

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Dated this 6th day of April, 2017.
Respectfully Submitted,
New England First Amendment Coalition
Reporters Committee for Freedom of the Press
Massachusetts Newspaper Publishers
Association, and
GateHouse Media, LLC
By Their Attorneys,
PRETI FLAHERTY BELIVEAU &
PACHIOS, LLP
/s/ Sigmund D. Schutz
Sigmund D. Schutz
(BBO #568608)
One City Center
P. O. Box 9546
Portland, ME 04112-9546
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

/s/ Eric G. Penley
Eric G. Penley
(BBO #678920)
60 State Street, Suite 1100
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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CERTIFICATE OF SERVICE
I, Sigmund D. Schutz, Attorney for proposed amici curiae, hereby certify that on
the above date, I electronically filed the above motion with the Clerk of Court using the
CM/ECF system which will send notification of such filing(s) electronically to counsel of
record.

/s/ Sigmund D. Schutz
Sigmund D. Schutz, BBO # 568608
PRETI, FLAHERTY, BELIVEAU,
& PACHIOS, LLP
One City Center
P.O. Box 9546
Portland, ME 04112-9546
Tel: [phone]
Fax: [phone]

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