Petitioner, Organization for Competitive Markets, Inc.,
has consented to the filing of the attached brief.
Respondent, Seaboard Farms, Inc., did not consent to the
filing of the attached brief.
The Reporters Committee for Freedom of the Press 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.
The American Society of Newspaper Editors is a
professional organization of more than 900 persons who
hold positions as directing editors of daily newspapers in
the United States and Canada.
The Radio-Television News Directors Association is
the world's largest professional organization devoted
exclusively to electronic journalism. Formed in 1946,
RTNDA's membership encompasses more than 3000 news
directors, news associates, educators, and students in more
than 30 countries. From its inception, RTNDA has
encouraged excellence in electronic journalism.
The Society of Professional Journalists is a voluntary
nonprofit journalism organization representing every
branch and rank of print and broadcast journalism. SPJ is
the largest membership organization for journalists in the
world, and for more than 90 years, SPJ has been dedicated
to encouraging a climate in which journalism can be
practiced freely, fully, and in the public interest.
There is an underlying assumption in this case that the
Petitioner would have some presumptive right of access to
the documents at issue. However, the trial court restricted
access to those documents for procedural reasons,
concluding that Petitioner should not be permitted to
intervene for the limited purpose of challenging a sealing
order because Petitioner's interest had no fact or issue in
common with the main action. The trial court ignored
decades of court rulings suggesting that intervention was
the appropriate procedure to challenge a sealing order,
regardless of the content of the underlying suit. The court
thereby effectively cut off the presumed right of access to
court records and left Petitioner with no satisfactory method
to challenge the sealing order. Such an outcome seems to
infringe on the constitutional principles previously
established by the courts.
If the Eighth Circuit decision is allowed to stand,
members of the public could be denied access to court
records (or court proceedings in the case of closure orders)
and also be denied any procedure to seek a remedy. Such a
result is undesirable as a matter of policy and is in conflict
with prior opinions of this Court requiring notice and an
opportunity to be heard in cases where courts wish to limit
access to court proceedings.
Given the broad ramifications of a decision in this area
for First Amendment interests, amici curiae respectfully
request that this Court grant it leave to file the attached
brief.
TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
INTEREST OF AMICI CURIAE 1
SUMMARY OF ARGUMENT 2
ARGUMENT 3
I. Intervention for the limited purpose of challenging
sealing orders should always be permitted to
preserve the presumptive right of access to court
proceedings and documents. 3
A. There is a well-established right of access to
court proceedings and documents. 3
B. Intervention is the best method of preserving the
public right of access to court proceedings and documents. 5
C. Supreme Court rulings imply that intervention
must be permitted for the limited purpose of
challenging closure or sealing orders to meet
constitutional standards of scrutiny. 6
II. As a matter of policy, it is important for this Court
to establish clear guidelines for the public to follow
when seeking access to court records. 8
CONCLUSION 9
TABLE OF AUTHORITIES
Cases
Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d
1165 (6th Cir. 1983) 4
Care and Protection of Edith & Others, 659 N.E.2d 1174
(Mass. 1996) 7
Del Papa v. Steffen, 915 P.2d 245 (Nev. 1996) 4
Dow Jones & Co. v. Kaye, 90 F. Supp. 2d 1347 (S.D. Fla.
2000) 7
El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147
(1993) 4
Gannett Co. v. DePasquale, 443 U.S. 368 (1979) 4, 6
Globe Newspaper Co. v. Superior Court, 457 U.S. 596
(1982) 3, 6
Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24
F.3d 893 (7th Cir.1994) 5
Hertz v. Times-World Corp., 528 S.E.2d 458
(Va. 2000) 5
In re Associated Press, 162 F.3d 503 (7th Cir. 1998) 5
In re Iowa Freedom of Information Council, 724 F.2d 658
(8th Cir. 1984) 4
Matter of Continental Illinois Securities Litigation, 732
F.2d 1302 (7th Cir. 1984) 5
Montana ex rel. The Missoulian v. Montana Twenty-
First Judicial District Court, 933 P.2d 829 (Mont.
1997) 7
NBC Subsidiary, Inc. v. Superior Court, 980 P.2d 337
(Cal. 1999) 7
Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983) 4
News American Division v. Maryland, 447 A.2d 1264 (Md.
App. 1982) 6
Press Enterprise Co. v. Superior Court (Press
Enterprise I), 464 U.S. 501 (1984) 4, 7
Press Enterprise Co. v. Superior Court (Press
Enterprise II), 478 U.S. 1 (1986) 4, 7
Public Citizen v. Liggett Group, Inc., 858 F.2d 775 (1st
Cir.1988) 5
Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir.
1984) 4
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555
(1980) 3
Rushford v. New Yorker Magazine, Inc., 846 F.2d 249 (4th
Cir. 1988) 4
State v. Clifford, 733 N.E.2d 621 (Ohio App. 1999) 8
State v. Cottman Transmission, 542 A.2d 859 (Md. App.
1988) 4
State ex rel. National Broadcasting Company, Inc. v. Court
of Common Pleas, 556 N.E.2d 1120 (Ohio 1990) 7
State ex rel. New Mexico Press Association v. Kaufman,
265 P.2d 300 (N.M. 1982) 8
Twohig v. Blackmer, 918 P.2d 332 (N.M. 1996) 7
United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424
(10th Cir. 1990) 5
U.S. v. Cojab, 996 F.2d 1404 (2d Cir. 1993) 7
Waller v. Georgia, 467 U.S. 39 (1984) 4
Westmoreland v. CBS, Inc., 752 F.2d 16 (2d Cir. 1984) 4
Other Resources
C. Thomas Dienes et al., Newsgathering and the Law § 2-3
(2d ed. 1999) 6
INTEREST OF AMICI CURIAE
[1]
The Reporters Committee for Freedom of the Press 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.
The American Society of Newspaper Editors is a professional
organization of more than 900 persons who hold
positions as directing editors of daily newspapers in the
United States and Canada.
The Radio-Television News Directors Association is the
world's largest professional organization devoted exclusively
to electronic journalism. Formed in 1946, RTNDA's membership
encompasses more than 3000 news directors, news
associates, educators, and students in more than 30 countries.
From its inception, RTNDA has been committed to encouraging excellence
in electronic journalism.
The Society of Professional Journalists is dedicated to
improving and protecting journalism. It is the nation's largest
and most broad-based journalism organization, dedicated to
encouraging the free practice of journalism and stimulating
high standards of ethical behavior. Founded in 1909 as Sigma
Delta Chi, SPJ promotes the free flow of information vital to
a well-informed citizenry; works to inspire and educate the
next generation of journalists; and protects First Amendment
guarantees of freedom of speech and press.
The present case raises important issues regarding how the
public may enforce its presumptive right of access to court
documents. The trial court in the underlying lawsuit has
refused to let Petitioner intervene for the limited purpose of
challenging a sealing order, leaving Petitioner with no
satisfactory method of enforcing its presumptive right of
access. Such a ruling undermines the important policies set
forth by this Court in granting the public a right of access to
court proceedings and documents. It is therefore imperative
that this Court clarify the procedural means by which a
member of the public may enforce his or her presumptive
right of access to court proceedings and documents. Amici
respectfully request that, in clarifying those procedures, this
Court establish a clear rule allowing intervention in all cases
for the limited purpose of challenging a sealing or closure
order.
SUMMARY OF THE ARGUMENT
This Court has clearly established a presumptive right of
access to criminal proceedings. Most courts have relied on
such opinions of this Court to logically conclude that there is
a corresponding presumptive right of access to civil proceedings
and to court records on file with the clerk in any court
case.
Although a court may limit access to proceedings or
documents in unusual cases, courts have understood that they
must consider First Amendment issues and meet rigorous
constitutional standards before access is restricted. Courts
have also understood that members of the public or press may
intervene in any case for the limited purpose of challenging an
order closing a courtroom or sealing court records. Following
prior rulings of this Court that require courts to provide the
public with notice and an opportunity to be heard before
limiting access to criminal proceedings, most courts agree that
intervention is the best procedure for a member of the public
to challenge a closure order because it provides an opportunity
for the court to comply with the constitutional requirements presumed to apply.
In this case, the Eighth Circuit denied a citizen's request
to intervene in a civil case for the limited purpose of challenging
a sealing order, reasoning that the purported intervenor's
interest had no fact or issue in common with the main action.
Such ruling effectively denies the public the ability to
challenge sealing orders and thereby eviscerates the presumptive
right of access to court proceedings and documents,
which can only be restricted after the court has provided the
members of the public with notice and an opportunity to be
heard on the question of their exclusion.
The right of access is meaningless if there is no mechanism
for exercising that right.
ARGUMENT
I. Intervention for the limited purpose of challenging
sealing orders should always be permitted to preserve the presumptive right of access to court proceedings and documents.
A. There is a well-established right of access to
court proceedings and documents.
The public has a well-established right of access to
criminal proceedings, and the United States Supreme Court
has consistently affirmed that right. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (finding a public
right of access to criminal trials); Globe Newspaper Co. v.
Superior Court, 457 U.S. 596 (1982) (holding that statute
mandating closure of courtrooms during minor victims'
testimony was unconstitutional); Press Enterprise Co. v.
Superior Court (Press Enterprise I), 464 U.S. 501 (1984)
(reversing California state court's closure of voir dire); Waller
v. Georgia, 467 U.S. 39 (1984) (finding closure of criminal
suppression hearing to be overbroad and unconstitutional);
Press Enterprise Co. v. Superior Court (Press Enterprise II),
478 U.S. 1 (1986) (finding qualified right of access to pretrial
hearings, and noting that First Amendment scrutiny must be
applied); and El Vocero de Puerto Rico v. Puerto Rico, 508
U.S. 147 (1993) (closure of preliminary hearing was unconstitutional).
Other courts have uniformly applied those principles to
grant the public a presumptive right of access to civil proceedings. Publicker Industries, Inc. v. Cohen, 733 F.2d1059 (3d
Cir. 1984); Westmoreland v. CBS, Inc., 752 F.2d 16 (2d Cir.
1984); In re Iowa Freedom of Information Council, 724 F.2d
658 (8th Cir. 1984); Newman v. Graddick, 696 F.2d 796 (11th
Cir. 1983); Del Papa v. Steffen, 915 P.2d 245 (Nev. 1996);
State v. Cottman Transmission, 542 A.2d 859 (Md. App.
1988). As this Court has noted, "in some civil cases the public
interest in access . . . may be as strong as, or stronger than, in
most criminal cases." Gannett Co. v. DePasquale, 443 U.S.
368, 387 n.15 (1979).
Courts have also recognized that public access to court
records, such as pleadings and evidence, is equally important
and should be presumed. See, e.g., Brown & Williamson
Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983)
(documents filed in civil litigation should be open because
secrecy insulates the participants, masks impropriety, obscures incompetence, and conceals corruption); Rushford v.
New Yorker Magazine, Inc., 846 F.2d 249 (4th Cir. 1988)
(pleadings and evidentiary documents should be open);
Matter of Continental Illinois Securities Litigation, 732 F.2d
1302 (7th Cir. 1984) (records should be open); Grove Fresh
Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th
Cir.1994) (assuming both a First Amendment and a common
law right of access to civil litigation documents).
If the public has a presumptive right of access to court
proceedings and documents, then there must be some procedural means for preserving that right.
B. Intervention is the best method of preserving the
public right of access to court proceedings and documents.
Courts have noted only three possible methods for
challenging such orders: (1) intervention in the case to which
the citizen seeks access for the limited purpose of challenging
the closure order; (2) a writ of mandamus to an appellate
court for that jurisdiction; or (3) filing a separate lawsuit for
an injunction or declaratory judgment to enforce the right of
access.
Over time, the courts have concluded that intervention is
the preferred method of challenging a sealing or closure order.
"The courts have widely recognized that the correct procedure for a nonparty to challenge a protective order is through
intervention for that purpose." United Nuclear Corp. v.
Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990)
(emphasis added) (citing Public Citizen v. Liggett Group,
Inc., 858 F.2d 775, 783 (1st Cir.1988), cert. denied, 488 U.S.
1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989)). See also, In re
Associated Press, 162 F.3d 503 (7th Cir. 1998) (intervention
is the "most appropriate procedural mechanism" for challenging closure orders); Hertz v. Times-World Corp., 528 S.E.2d
458 (Va. 2000) (holding that the press must move to intervene
for the limited purpose of challenging a closure order rather
than seek mandamus).
Intervention is the preferred method of challenging
closure orders for two reasons. First, it leaves the closure
decision in the hands of the judge who is most familiar with
the case and who will be directly affected by the decision.
See, e.g., News American Division v. Maryland, 447 A.2d
1264, 1271-72 (Md. App. 1982). Second, it is the most
efficient and least disruptive means for challenging a closure
order, as other courts are not prematurely brought in to
regulate the dispute. Id. at 1272.
In other words, intervention allows the trial court to make
a ruling based on the facts and evidence presented to it, and
with the benefit of arguments presented by all interested
persons, before another court steps in to review whether that
closure or sealing order was valid.
C. Supreme Court rulings imply that intervention
must be permitted for the limited purpose of
challenging closure or sealing orders to meet
constitutional standards of scrutiny.
Allowing intervention makes the most sense based on the
long-established principle that a court may not enter a closure
or sealing order without first providing the public and press
with notice and an opportunity to be heard. See C. Thomas
Dienes et al., Newsgathering and the Law § 2-3 (2d ed. 1999)
(describing the necessary procedural steps that trial courts
must take under the litany of U.S. Supreme Court right of
access decisions). "[F]or a case-by-case approach to be
meaningful, representatives of the press and general public
'must be given an opportunity to be heard on the question of
their exclusion.'" Globe Newspapers Co. v. Superior Court,
457 U.S. 596, 609 n.25 (1982) (citing Gannett Co. v.
DePasquale, 443 U.S. 368, 401 (Powell, J., concurring)). For
the "opportunity to be heard" to be meaningful, some notice
must be provided before the trial court cuts off access to court
proceedings or documents. See, e.g., United States v. Cojab,
996 F.2d 1404, 1408 (2d Cir. 1993) (holding that a hearing
concerning closure cannot be held before the public has notice
that the hearing will take place so that members of the public
will have an opportunity to be heard).
Furthermore, courts are prohibited from entering sealing
or closure orders unless there is evidence of harm to a
compelling interest and no less restrictive means to avoid
such harm. If a trial court wants to limit access to court
proceedings or records, it must issue specific findings of fact
that "closure is essential to preserve higher values [than the
constitutional right of access] and is narrowly tailored to serve
that interest." Press- Enterprise Co. v. Superior Court (Press
Enterprise II), 478 U.S. 1, 13-14 (1986). One reason that this
procedural component is so important is so a reviewing court
can determine whether the order was properly entered."
Press-Enterprise I, 464 U.S. 501, 510 (1984). See also, Dow
Jones & Co. v. Kaye, 90 F. Supp. 2d 1347 (S.D. Fla. 2000)
(holding that order was improper where court failed to make
findings based on evidence that a order was necessary); NBC
Subsidiary, Inc. v. Superior Court, 980 P.2d 337 (Cal. 1999)
(court must make rigorous findings before closure or sealing
order is entered); Montana ex rel. The Missoulian v. Montana
Twenty-First Judicial District Court, 933 P.2d 829 (Mont.
1997) (gag order improperly imposed where lower court
failed to take any evidence or make any factual findings with
regard to the restrictive orders); Twohig v. Blackmer, 918
P.2d 332 (N.M. 1996) (order may not be imposed until certain
procedural requirements have been met); Care and Protection
of Edith & Others, 659 N.E.2d 1174 (Mass. 1996) (any order
must be based on detailed findings of fact and there must be
a hearing to determine whether there is adequate evidence to
support such findings); State ex rel. National Broadcasting
Company, Inc. v. Court of Common Pleas, 556 N.E.2d 1120
(Ohio 1990) (order cannot issue unless specific, on the record
findings are made and representatives of the press and public
are given an opportunity to be heard); State ex rel. New
Mexico Press Association v. Kaufman, 265 P.2d 300 (N.M.
1982) (stating that restrictive orders were improper where
judge failed to make any findings to support them); State v.
Clifford, 733 N.E.2d 621 (Ohio App. 1999) (finding that a
court must make a finding of necessity before closing a trial).
Thus, intervention allows the trial court to comply with
the mandate that the public has an opportunity to be heard.
Intervention also benefits the trial court, as all interested
persons may discuss the potential harm, the evidence of such
harm, and whether there are less restrictive alternatives, to
ensure that any closure or sealing order is valid.
II. As a matter of policy, it is important for this Court
to establish clear guidelines for the public to follow
when seeking access to court records.
This Court should adopt a clear policy for both citizens
and courts to understand how a concerned citizen may
challenge a sealing order. Amici urge this Court to authorize
the use of intervention for the limited purpose of challenging
a sealing order.
In prior cases, this Court has noted the important policies
behind a right of access to court proceedings and documents,
and has ensured that those principles are not forsaken for
expediency. Amici therefore urge this Court to continue to
preserve the public's right of access to court proceedings and
documents by permitting Petitioners to intervene in the
underlying case and by establishing clear procedural guidelines for the courts and the public to follow when sealing
orders are challenged.
CONCLUSION
Because clear procedural guidelines for challenging
sealing orders need to be established, and because intervention
is the best procedure to challenge such orders, amici
respectfully urge this Court to permit petitioners to intervene
in the underlying cases for the limited purpose of challenging
the sealing orders.
Dated: June 1, 2001
| |
Respectfully submitted,
Gregg P. Leslie
Counsel of Record
Lucy Dalglish
Ashley Gauthier
The Reporters Committee for
Freedom of the Press
1815 N. Fort Myer Dr., Suite 900
Arlington, Virginia 22209
(703) 807-2100
|
Additional counsel listed on next page
Of Counsel:
Counsel for the American Society of Newspaper Editors
Richard Schmidt
Kevin M. Goldberg
Cohn & Marks
1920 N Street NW, Suite 300
Washington, D.C. 20036
Counsel for Radio-Television News Directors Association:
Kathleen A. Kirby
Wiley, Rein & Fielding
1776 K Street NW
Washington, D.C. 20006
Counsel for the Society of Professional Journalists:
Bruce W. Sanford
Robert D. Lystad
Bruce D. Brown
Baker & Hostetler LLP
1050 Connecticut Avenue NW
Suite 1100
Washington, D.C. 20036
Footnotes:
1. Pursuant to Sup. Ct. R. 37.6, counsel for amici curiae declare
that they authored this brief in total with no assistance from the parties.
Additionally, no individuals or organizations other than the amici
made a monetary contribution to the preparation and submission of
this brief. Because Respondent did not consent in writing to the filing
of this brief, a motion for leave to file precedes this section.
