Aclu Foundation v. Usdoj ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 22 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES DEPARTMENT OF No. 19-15472
JUSTICE; FACEBOOK, INC.,
D.C. No.
Respondents-Appellees, 1:18-mc-00057-LJO-EPG
v.
MEMORANDUM*
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION; et al.,
Movants-Appellants,
and
WP COMPANY LLC, DBA The
Washington Post,
Movant.
UNITED STATES DEPARTMENT OF No. 19-15473
JUSTICE; FACEBOOK, INC.,
D.C. No.
Respondents-Appellees, 1:18-mc-00057-LJO-EPG
v.
WP COMPANY LLC, DBA The
Washington Post,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Movant-Appellant,
and
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION; et al.,
Movants.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O'Neill, District Judge, Presiding
Argued and Submitted April 28, 2020
Seattle, Washington
Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.
The American Civil Liberties Union, the Electronic Frontier Foundation, and
the Washington Post appeal from the district court’s denial of motions to unseal
various contempt proceeding documents related to a technical assistance wiretap
order under 18 U.S.C. § 2518(4). We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
We review de novo whether a right of access to certain records or
proceedings exists under the First Amendment or the common law. United States
v. Carpenter, 923 F.3d 1172, 1178 (9th Cir. 2019). To determine whether a First
Amendment right of access attaches to particular proceedings or records, we
consider (1) “whether the place and process have historically been open to the
press and general public,” and (2) “whether public access plays a significant
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positive role in the functioning of the particular process in question.” Press-
Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986). Because the materials at
issue here do not pass this “experience and logic” test, a qualified First
Amendment right of access does not exist. The documents have not historically
been open to the general public during an investigation. And, because of the
ongoing nature of the investigation, the benefits of open proceedings are “more
than outweighed by the damage to the criminal investigatory process.” See Times
Mirror Co. v. United States, 873 F.2d 1210, 1215 (9th Cir. 1989).
We decline to consider whether there is a separate common law right of
access to the documents because any presumption in favor of access would be
outweighed by a compelling government interest in maintaining secrecy in an
ongoing investigation. See United States v. Index Newspapers LLC, 766 F.3d 1072,
1090 (9th Cir. 2014) (refusing to consider “whether there is a common law right of
access to the transcripts of the closed portion of the contempt hearing because,
even if there is such a right, the government’s interest in grand jury secrecy is a
sufficiently important countervailing interest that overcomes any common law
presumption in favor of access”) (internal citations, quotation marks, and
alterations omitted).
AFFIRMED.
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