United States v. Reporters Committee

____________
No. 96-2606
____________
United States of America, *
*
Plaintiff, *
*
v. *
*
James B. McDougal; Jim Guy *
Tucker; Susan H. McDougal; *
*
Defendants. *
*
Reporters Committee for *
Freedom of the Press; *
Radio-Television News Directors *
Association; Capitol Cities/ *
American Broadcasting Companies;*
Cable News Network, Inc.; *
National Broadcasting Company, *
Inc.; CBS, Inc.; * Appeals from the United States
* District Court for the
Movants-Appellants, * Eastern District of Arkansas
*
v. * [TO BE PUBLISHED]
*
Dow Jones and Company, Inc.; *
*
Movant, *
*
William Jefferson Clinton, *
The President of the United *
States in his official *
capacity, *
*
Interested Party-Appellee. *
____________
No. 96-2671
____________
United States of America, *
*
Plaintiff, *
*
v. *
James B. McDougal; Jim Guy *
Tucker; Susan H. McDougal; *
*
Defendants. *
*
Reporters Committee for Freedom *
of the Press; Radio-Television *
News Directors Association; *
Capitol Cities/American Broad- *
casting Companies; Cable News *
Network, Inc.; National Broad- *
casting Company, Inc.; *
CBS, Inc.; *
*
Movants, *
*
v. *
*
Dow Jones and Company, Inc.; *
*
Movant, *
*
William Jefferson Clinton, *
The President of the United *
States in his official *
capacity, *
*
Interested Party-Appellee. *
*
Citizens United, *
*
Interested Party-Appellant.*
____________
Submitted: August 12, 1996
Filed: December 20, 1996
____________
Before McMILLIAN, FLOYD R. GIBSON and MAGILL, Circuit Judges.
____________
McMILLIAN, Circuit Judge.
A group of media organizations, including Reporters Committee
for Freedom of the Press; Radio-Television New Directors
Association; Capital Cities/American Broadcasting Companies, Inc.;
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Cable News Network, Inc.; National Broadcasting Company, Inc.; and
CBS Inc. (hereinafter the Reporters), and a non-profit citizens'
group, Citizens United (Citizens) (collectively appellants), each
appeal from a final order entered in the United States District
Court1 for the Eastern District of Arkansas denying their
applications for access to a videotape recording of President
William Jefferson Clinton's deposition testimony used at trial
in the underlying criminal case. United States v. McDougal,
No. LR-CR-95-173 (E.D. Ark. June 11, 1996). For reversal,
appellants argue that the district court's denial of physical
access to the videotape, so that they may make copies, violated
their First Amendment and common law rights of access to judicial
records. Citizens alone additionally argues that the district
court erred in holding that it lacked standing to participate in
the litigation over this access issue. These appeals were
consolidated for oral argument, which was expedited at the
Reporters' request. Following oral argument on August 12, 1996, we
entered an order which stated "[f]or reasons that will be stated in
an opinion to follow, we affirm the district court's denial of
access to the videotape."2 United States v. McDougal, Nos. 96-
2606/96-2671 (8th Cir. Aug. 12, 1996), amended, id. (Aug. 21, 1996)
(amending caption to refer to Reporters Committee for Freedom of
the Press, et al., as Movants-Appellants).3 We now set forth our
reasons for affirming the district court's order.
1
The Honorable George Howard, Jr., United States District
Judge for the Eastern District of Arkansas.
2
At oral argument, counsel for the Reporters stated "I would
respectfully ask this court today, after you have concluded your
conference on this case, to issue an order immediately, today, with
an opinion to follow, so that we can get on with this matter."
3
Based upon our order of August 12, 1996, the Reporters filed
a petition for rehearing by the panel and a suggestion for
rehearing en banc. Both were denied. United States v. McDougal,
No. 96-2606 (8th Cir. Oct 3, 1996) (order denying petition for
rehearing by the panel and suggestion for rehearing en banc).
-3-
Background
The following summary of the background is largely taken from
the district court's order. Slip op. at 1-4. Prior to the trial
in the underlying criminal case, the defendants requested that a
witness subpoena be issued to President Clinton requiring him to
appear and give testimony at their criminal trial. One of the
defendants further moved to compel President Clinton to testify in
person. In response, President Clinton sought the district court's
permission to testify by videotaped deposition pursuant to Fed. R.
Crim. P. 15.4 The district court ordered that the witness subpoena
be issued, but granted the President's Rule 15 request.
On April 24, 1996, the district court ordered that the
videotape of President Clinton's deposition be kept under seal and
gave the parties and the President thirty days in which to file
briefs regarding the handling of the videotape following its use at
trial. The district court also invited any representatives of the
news media to file briefs in their capacity as amicus curiae within
the same thirty-day deadline.
The President's videotaped deposition was taken at the White
House on April 28, 1996, and the district court judge presided from
Little Rock via satellite. On May 3, 1996, the Reporters filed an
amicus brief requesting that they be given physical access to the
4
Rule 15 provides in pertinent part:
Whenever due to exceptional circumstances of
the case it is in the interest of justice
that the testimony of a prospective witness
of a party be taken and preserved for use at
trial, the court may upon motion of such
party and notice to the parties order that
testimony of such witness be taken by
deposition and that any designated book,
paper, document, record, recording, or other
material not privileged, be produced at the
same time and place.
-4-
videotape immediately or, in the alternative, at the time of its
display to the jury. None of the parties to the underlying
criminal prosecution filed briefs concerning the access issue. On
May 6, 1996, the district court entered an order in which the court
stated that it would provide public access to the transcript of
President Clinton's deposition after the presentation of the
videotaped deposition testimony to the jury. The district court
further indicated that access to the videotape would not be
addressed until after May 24, 1996, the briefing deadline. The
Reporters moved for reconsideration of the district court's denial
of their request for immediate access to the videotape; on May 8,
1996, the district court denied the Reporters' motion.
In the meantime, counsel for the prosecution and counsel for
the defendants had reviewed a draft of the entire written
transcript of President Clinton's deposition and agreed to delete
certain portions that generally contained objections and arguments
of counsel. The transcript and the videotape were edited
accordingly. The edited videotape was played for the jury on
May 9, 1996. At that time, the courtroom was open to the public
and filled to capacity. The public, including appellants, had an
opportunity to view the edited videotape at the time and in the
manner it was played to the jury in the courtroom.5 The edited
transcript was admitted into evidence and made a part of the
record, and copies of the edited transcript were released to the
public.
In addition to the Reporters' request for access to the
videotape, Citizens filed an application for access to the
videotape and Dow Jones & Co. (Dow Jones) requested a copy of the
unedited transcript and access to the unedited videotape of
5
At oral argument, counsel for Citizens stated that the
district court had indicated its willingness to schedule a showing
of the videotape for members of the public who were unable to view
the videotape at the trial.
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President Clinton's testimony.6 The President filed a motion for
a protective order requesting that the original videotape and all
copies thereof, whether edited or unedited, remain under seal.
Upon consideration of the outstanding motions and applications
before it related to the videotapes and transcripts of President
Clinton's deposition testimony, the district court granted Dow
Jones's request for the unedited transcript but denied all requests
for access to the videotape. Slip op. at 10. In denying access to
the videotape, the district court relied upon Nixon v. Warner
Communications, Inc., 435 U.S. 589, 608 (1978) (where White House
audiotapes had been played for the jury and the public, including
the press, during the Watergate trial and transcripts had been
furnished to the press, the Court of Appeals erred in reversing the
district court's denial of the press's request for access to the
audiotapes because (1) the common law right of public access to
judicial records did not authorize the release of the tapes in
question from the district court and (2) the press did not have a
right of access to the audiotapes under the First or Sixth
Amendments),7 and United States v. Webbe, 791 F.2d 103 (8th Cir.
1986) (where audiotapes created pursuant to the federal wiretap
statute had been played for the jury and the public, including the
press, in a criminal mail fraud trial and transcripts had been
furnished to the press, the district court did not abuse its
discretion, under a First Amendment or a common law analysis, in
denying the press access to the audiotapes). In the present case,
the district court held that the press's First Amendment right of
6
Dow Jones is not a party to the present appeals.
7
In Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978),
the district court declined to release for copying President
Nixon's White House audiotapes, which had been admitted into
evidence in the Watergate trial. The Court of Appeals for the D.C.
Circuit reversed the district court's denial of access, and the
Supreme Court reversed the D.C. Circuit, thereby upholding the
district court's original ruling.
-6-
access to public information had been "fully satisfied in this
instance by allowing the press to attend the playing of the
videotaped deposition and in providing full access to the written
transcript." Slip op. at 6. As to the common law right of public
access, the district court concluded that "[t]he Court need not
decide at this time whether the common law right of access applies
to videotaped testimony because even assuming it does, the Court
finds, on balancing all the relevant factors, that the press's
request to copy the videotape must be denied." Id. at 7. The
district court concluded that, on balance, the circumstances
favored keeping the videotape under seal because: (1) substantial
access to the information provided by the videotape had already
been afforded; (2) release of the videotape would be inconsistent
with the ban on cameras in the courtroom under Fed. R. Crim. P.
538; (3) in other cases involving videotaped testimony of a sitting
president, the tapes were not released; and (4) there exists a
potential for misuse of the tape, a consideration specifically
recognized in Nixon v. Warner Communications, Inc., 435 U.S. at 601
(noting President Nixon's argument that the audiotapes could be
distorted through cutting, erasing, and splicing). Slip op. at 7-
9. In a footnote, the district court separately held that Citizens
lacked standing to appear in the action and accordingly denied its
application for access to the videotape. Id. at 2 n.2. These
appeals followed.
Discussion
On appeal, appellants maintain that the district court's
denial of access to the videotape violated their common law and
First Amendment rights of access to judicial records. Thus, as a
threshold matter, they argue that the videotape is a judicial
8
Rule 53 provides "[t]he taking of photographs in the court
room during the progress of judicial proceedings or radio
broadcasting of judicial proceedings from the court room shall not
be permitted by the court."
-7-
record to which such rights attach, even though it is merely an
electronic recording of a witness's testimony and was not itself
admitted into evidence. Without citing any supporting authority,
appellants argue that the videotape should be treated as a judicial
record because "[t]he defendants should not be permitted to
circumvent the common law and constitutional rights to access by
marking only the transcript of the videotaped deposition." Brief
for Appellants (Reporters) at 13.9 They also argue that,
"[e]ffectively, the videotape was introduced into evidence by being
played in open court." Id. Appellants conclude that "[t]he
videotape is like any other piece of evidence introduced or used in
the courtroom. It becomes a judicial record subject to public
review." Id.
Assuming that the videotape is a judicial record, appellants
contend that the denial of access violated their common law and
constitutional rights under this court's holding in In re Search
Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569
(8th Cir. 1988) (In re Search Warrant (Gunn)). In In re Search
Warrant (Gunn), a newspaper had unsuccessfully asked the district
court to unseal documents that had been used to obtain a search
warrant. This court considered the question of whether the
documents in question were "judicial records" for purposes of the
First Amendment analysis and opined that they were. Id. at 573.
We nevertheless affirmed the district court's decision to keep the
documents under seal on grounds that they contained sensitive
information concerning an ongoing nationwide criminal
investigation, and line-by-line redaction was not practicable. Id.
at 574. In support of our disposition, we explained "[t]he first
amendment right of public access is not absolute; it is a qualified
right." Id. "[T]he documents may be sealed if the district court
specifically finds that sealing is necessary to protect a
9
We address, primarily, the Reporters' arguments because they
generally incorporate Citizens' arguments on the merits.
-8-
compelling government interest and that less restrictive
alternatives are impracticable." Id. at 575. Because we
determined that those requirements had been met, we affirmed the
district court's order. Id.10 Appellants argue, in the present
case, that their common law and First Amendment rights were
violated because nondisclosure was not necessary to protect a
compelling government interest. Brief for Appellant (Reporters) at
5 (addressing common law right), 16 (addressing First Amendment
right). On this point, appellants maintain that fear of misuse of
the videotape in a political campaign does not constitute a
compelling interest. They further assert, without citing
authority, that "[t]he only government interest associated
specifically with the Office of the President that might justify
sealing a judicial record is national security." Id. at 23. The
Reporters maintain that this court's holding in In re Search
Warrant (Gunn) indicates that there is in this circuit "a strong
presumption in favor of the common law right of access," Brief for
Appellants (Reporters) at 4, notwithstanding our statement in
Webbe, 791 F.2d at 106, that "[w]e decline to adopt in toto the
reasoning of the Second, Third, Seventh, and District of Columbia
Circuits in recognizing a 'strong presumption' in favor of the
10
Judge Bowman separately concurred, stating his opinion that
it was unnecessary to reach the question of whether the documents
at issue actually were "judicial records" for First Amendment
public access analysis. In re Search Warrant for Secretarial Area
Outside Office of Gunn, 855 F.2d 569, 575 (8th Cir. 1988) (In re
Search Warrant (Gunn)). In any case, he reasoned, the public's
interest in preserving the integrity of the ongoing investigation
was "overwhelming" and necessarily overrode the public's interest
in access. Id. at 576. He also indicated that his conclusion was
based upon the "qualified" common law right of access. Id. ("[t]he
common law right of access to judicial records--a qualified right
with the decision as to access left to the sound discretion of the
trial court--is well established"). Judge Bowman further stated
"[t]his is all the more reason for leaving the first amendment
question to another day and to a case that actually requires its
resolution, which this case does not." Id. The third judge on the
panel, Judge Heaney, dissented on the ground that the public's
interest in access far outweighed the government's investigatory
interests in that case. Id. at 576-77.
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common law right of access." Citizens alone additionally argues
that In re Search Warrant (Gunn) overruled Webbe and, if not, then
this panel should take the opportunity to do so in the present case
by holding that there is a strong presumption in this circuit in
favor of public access to judicial records under the common law.
Brief for Appellants (Citizens) at 19 n.4.
Appellants also challenge the district court's reliance on
Nixon v. Warner Communications, Inc. and Webbe. They argue that
Nixon v. Warner Communications, Inc. is not applicable to the
present case because, in that case, the Presidential Recordings Act
provided an alternative channel of access to the audiotapes in
dispute.11 In Webbe, they note, the press was denied access to
wiretap audiotapes, which had been admitted into evidence, in part
because there was a chance that the tapes would be used again as
evidence in future trials related to other pending criminal
charges. Appellants argue that no similar considerations exist in
the present case,12 and we should therefore instead follow United
States v. Poindexter, 732 F. Supp. 170 (D.D.C. 1990). In
Poindexter, the District Court for the District of Columbia denied
a request by members of the press for physical access to a
videotape of former President Reagan's deposition testimony before
its use at trial. Id. at 172. However, the district court
11
In the context of discussing the common law right of access,
the Supreme Court noted sua sponte in Nixon v. Warner
Communications, Inc., 435 U.S. at 603 & n.15, that, under the
Presidential Recordings Act, a government archivist would be
required to screen the Nixon White House audiotapes so that the
tapes that were private in nature could be returned to the former
president and those having historical interest could be made
public.
12
The defendants in the present case apparently did urge the
district court not to release the videotapes on the ground that it
would deny them a fair trial. Slip op. at 9 n.10. The district
court acknowledged that one of the defendants was facing a second
indictment, but nevertheless concluded that releasing the videotape
would have little impact on that defendant's second trial and this
factor did not weigh heavily against releasing the videotape. Id.
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commented in a footnote that "[i]t is the Court's intention to
provide such copies to the interested news media after the
videotape is played at the trial itself." Id. at 172 n.2 (emphasis
added). Appellants argue that, in the present case, they should
likewise be granted access to the videotape of President Clinton's
testimony because it has already been played at trial.
Finally, as to the district court's reasoning that it was
treating President Clinton's testimony in a manner equivalent to
live testimony provided at trial (because cameras are not permitted
in the court room under Fed. R. Crim. P. 53), appellants argue that
the district court's decision to keep the videotape under seal
actually gives the President special treatment because he was the
one who requested permission to testify on videotape. Thus, they
argue, the district court's disposition violates their common law
and First Amendment rights. We disagree.
Common law right of public access to judicial records
Upon careful review, we hold that appellants' common law right
of public access to judicial records was not violated as a
consequence of the district court's denial of physical access to
the videotape of President Clinton's testimony. To begin, we hold
as a matter of law that the videotape itself is not a judicial
record to which the common law right of public access attaches.
Appellants are incorrect to assume that this issue turns on whether
or not the videotape itself was admitted into evidence and that,
therefore, the litigants at trial have control to decide whether or
not the public's right may be exercised. See Brief for Appellants
(Reporters) at 13 ("The defendants should not be permitted to
circumvent the common law and constitutional rights to access by
marking only the transcript of the videotaped deposition."). Even
if the defendants had moved for the admission of the videotape into
evidence, the videotape itself would not necessarily have become a
judicial record subject to public review. See, e.g., Nixon v.
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Warner Communications, Inc., 435 U.S. at 591 (audiotapes, which
were kept under seal, had been admitted into evidence at trial);
Webbe, 791 F.2d at 104 (same). We conclude, for reasons unrelated
to the fact that the videotape was never admitted into evidence,
that the videotape itself is not a judicial record for purposes of
this analysis.
The district court in the present case declined to decide
whether the videotape itself was a judicial record to which the
common law right attaches, but did note that courts are divided
over whether a videotape of witness testimony, taken pursuant to
Fed. R. Crim. P. 15, is a judicial record. Slip op. at 6-7
(comparing, for example, Application of American Broadcasting Cos.,
537 F. Supp. 1168, 1171-72 (D.D.C. 1982) (Application of ABC)
(holding that a videotape of a Rule 15 deponent's testimony is not
a judicial record for purposes of broadcasters' right of access
because otherwise such deponents would be subject to "exceptional
treatment" as compared with other witnesses), with In re
Application of CBS, Inc., 828 F.2d 958 (2d Cir. 1987) (holding
that, absent extraordinary circumstances, the press has a common
law right to inspect and copy the videotape of depositions used at
trial where the witness is unable to provide live testimony;
privacy interests of an ill witness were not sufficiently
extraordinary to preclude press access)).
In Nixon v. Warner Communications, Inc. and Webbe, the
audiotapes in dispute were recordings of the primary conduct of
witnesses or parties. Therefore, those recordings were similar to
documentary evidence to which the common law right of public access
ordinarily may apply. By contrast, the videotape at issue in the
present case is merely an electronic recording of witness
testimony. Although the public had a right to hear and observe the
testimony at the time and in the manner it was delivered to the
jury in the courtroom, we hold that there was, and is, no
additional common law right to obtain, for purposes of copying, the
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electronic recording of that testimony. By comparison, Rule 53 of
the Federal Rules of Criminal Procedure prohibits photography or
other electronic recording of live witness testimony in the
courtroom. Our holding today comports with Rule 53 because it
mandates that Rule 15 deponents are treated equally to witnesses
who testify in court, in person. Accord Application of ABC, 537
F. Supp. at 1171-72. In other words, contrary to appellants'
argument, our holding does not give special treatment to Rule 15
deponents vis-a-vis witnesses who present live in-court testimony
but rather puts them on equal footing.13 Accordingly, we conclude
that appellants have failed to assert a cognizable common law claim
in the present case because the videotape itself is not a judicial
record to which the common law right of public access attaches.
Even if we were to assume that the videotape is a judicial
record subject to the common law right of public access, we would
hold that the district court did not abuse its discretion in
denying access in the present case. The legal standards governing
the common law right are well-established in this circuit. This
court stated in Webbe "the consideration of competing values is one
heavily reliant on the observations and insights of the presiding
judge." 791 F.2d at 106 (agreeing with the Fifth Circuit's
standard in Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 431-34
(5th Cir. 1981)). Although we recognize that there is a common law
presumption in favor of public access to judicial records, Nixon v.
Warner Communications, Inc., 435 U.S. at 602, we note that this
court in Webbe specifically rejected the strong presumption
13
Nor can it be said that President Clinton has received
special treatment because the district court permitted him to
testify by videotaped deposition. See United States v. Poindexter,
732 F. Supp. 142, 144-46, 159-60 (D.D.C. 1990) (surveying instances
where presidents of the United States have been called upon to
provide testimony and concluding that former President Reagan was
not immune from being subpoenaed to testify for a criminal trial;
however, consistent with a longstanding tradition of not requiring
in-court presidential testimony, he could testify by videotaped
deposition).
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standard adopted by some circuits. 791 F.2d at 106 ("[w]e decline
to adopt in toto the reasoning of the Second, Third, Seventh, and
District of Columbia Circuits in recognizing a 'strong presumption'
in favor of the common law right of access"); see also Webster
Groves Sch. Dist. v. Pulitzer Publishing Co., 898 F.2d 1371, 1376
(8th Cir. 1990) ("[w]hen the common law right of access to judicial
records is implicated we give deference to the trial court rather
than taking the approach of some circuits and recognizing a 'strong
presumption' favoring access"). Contrary to appellants'
assertions, the "compelling government interest" test applied in In
re Search Warrant (Gunn), 855 F.2d at 754, may not be interpreted
as incorporating a strong presumption favoring public access for
purposes of the common law right. In that case, we employed the
compelling interest test in the context of determining whether the
qualified First Amendment right of public access attached to
specific documents which we had found to be judicial records. Id.14
Moreover, our deferential standard under the common law is in
harmony with the Supreme Court's analysis in Nixon v. Warner
Communications, Inc., 435 U.S. at 598, in which the Court stated
that "[e]very court has supervisory power over its own records and
files, and access has been denied where the court files might
become a vehicle for improper purposes." The Supreme Court
concluded, with respect to the common law right of public access,
"the decision as to access is best left to the sound discretion of
the trial court, a discretion to be exercised in light of the
relevant facts and circumstances of the particular case." Id. at
599.
14
Citizens' argument that we overruled United States v. Webbe,
791 F.2d 103 (8th Cir. 1986), in In re Search Warrant (Gunn), fails
not only on the merits but also because a panel of this court lacks
authority to overrule a prior panel decision. For this reason, we
also could not now overrule Webbe, as Citizens urges.
-14-
We now turn to the district court's balancing of competing
interests in the present case. As noted above, the district court
concluded that, even assuming the videotape is a judicial record
for purposes of the common law analysis, the circumstances favored
keeping the videotape sealed because: (1) substantial access to the
information provided by the videotape had already been afforded;
(2) release of the videotape would be inconsistent with the ban on
cameras in the courtroom under Fed. R. Crim. P. 53; (3) in other
cases involving videotaped testimony of a sitting president, the
tapes were not released; and (4) there exists a potential for
misuse of the tape, a consideration specifically recognized in
Nixon v. Warner Communications, 435 U.S. at 601 (noting President
Nixon's argument that the audiotapes could be distorted through
cutting, erasing, and splicing). Slip op. at 7-9. In addition to
these sound reasons stated by the district court, we note the
following compelling considerations which further support the
conclusion that the district court did not abuse its discretion.
In Nixon v. Warner Communications, Inc., 435 U.S. at 602-03,
the Supreme Court considered it a "crucial fact" that giving the
press access to the audiotapes for purposes of making copies
involved "a court's cooperation in furthering their commercial
plans." The Supreme Court further explained that the courts have
a responsibility to exercise an informed discretion as
to release of the tapes, with a sensitive appreciation
of the circumstances that led to their production. This
responsibility does not permit copying upon demand.
Otherwise, there would exist a danger that the court
could become a partner in the use of the subpoenaed
material "to gratify private spite or promote public
scandal," with no corresponding assurance of public
benefit.
Id. at 603 (quoting In re Caswell, 18 R.I. 835, 836 (1893)). We
agree, as a matter of public policy, that courts should avoid
-15-
becoming the instrumentalities of commercial or other private
pursuits.
We also note that granting access to the videotape of
President Clinton's testimony could harm the strong public interest
in preserving the availability of material testimony in criminal
trials. On the other hand, the public's interest in gaining access
to the videotape recording is only marginal because the testimony
has already been made visually and aurally accessible in the
courtroom and the transcript has been widely distributed and
publicized.
Finally, as a matter of historical interest and public policy,
there has never been compelled in-court live testimony of a former
or sitting president, nor has there ever been compelled
dissemination of copies of a videotape recording of a sitting
president's testimony.15 These facts, we think, suggest that there
is a strong judicial tradition of proscribing public access to
recordings of testimony given by a sitting president, which further
supports our conclusion that the district court did not abuse its
discretion in the present case.
15
In United States v. Poindexter, 732 F. Supp. 170 (D.D.C.
1990), which was decided by the District Court for the District of
Columbia, President Reagan was not the sitting president at the
time he testified. Moreover, no reasons were given by the district
court to explain its comment, in dicta, that it intended to release
the videotape after the tape had been used at trial. Id. at 172
n.2. We see no reasonable basis for reading into that decision the
holding that the press had a common law right of access to the
videotape of President Reagan's deposition. Cf. Application of
American Broadcasting Cos., 537 F. Supp. 1168, 1172 (D.D.C. 1982)
(holding that common law right does not extend to videotape of Rule
15 deponent's testimony).
-16-
First Amendment right of access to public information
Upon de novo review, we also agree, as a matter of law, with
the district court's holding that the First Amendment right of
access to public information does not extend to the videotape of
President Clinton's deposition testimony. As the district court
noted, members of the public, including the press, were given
access to the information contained in the videotape. Therefore,
appellants received all the information to which they were entitled
under the First Amendment.
In addressing the press's First Amendment right to public
information as applied to the facts in Nixon v. Warner
Communications, Inc., the Supreme Court stated:
There simply were no restrictions upon press
access to, or publication of any information in the
public domain. Indeed, the press -- including reporters
of the electronic media -- was permitted to listen to
the tapes and report on what was heard. Reporters were
also given transcripts of the tapes, which they were
free to comment upon and publish. The contents of the
tapes were given wide publicity by all elements of the
media. There is no question of a truncated flow of
information to the public. Thus, the issue presented in
this case is not whether the press must be permitted
access to public information to which the public
generally is guaranteed access, but whether these copies
of the White House tapes -- to which the public has
never had physical access -- must be made available for
copying. . . .
The First Amendment generally grants the press no
right to information superior to that of the general
public. "Once beyond the confines of the courthouse, a
news-gathering agency may publicize, within wide limits,
what its representatives have heard and seen in the
courtroom. But the line is drawn at the courthouse
door; and within, a reporter's constitutional rights are
no greater than those of any other member of the
public."
-17-
435 U.S. at 609 (quoting Estes v. Texas, 381 U.S. 532, 589 (1965)
(Harlan, J., concurring)). In other words, in Nixon v. Warner
Communications, Inc., the Supreme Court held that, where access to
audiotapes was sought by the press on grounds that they were public
information, the press's First Amendment right was adequately
protected because members of the public, including the press, were
(1) permitted to listen to the audiotapes as they were played to
the jury in the courtroom and (2) furnished with copies of the
written transcript. Under these circumstances, the First Amendment
right of public access did not extend to the audiotapes themselves.
Similarly, in the present case, the First Amendment right does not
extend to the videotape in dispute.16
Conclusion
For the foregoing reasons, we affirm the district court's
denial of access to the videotape, as to both the Reporters and
Citizens. Because we dispose of this case on the merits of
appellants' common law and First Amendment claims, we find it
unnecessary to address the standing issue raised by Citizens. The
order of the district court is affirmed. Judgment shall be entered
accordingly.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
16
By contrast to the present case, we held in In re Search
Warrant (Gunn) that "the first amendment right of public access
does extend to the documents filed in support of search warrant
applications." 855 F.2d at 573 (emphasis added). We therefore
proceeded to address the issue of whether nondisclosure was
necessary to protect a compelling government interest, which is not
a relevant issue in the present case.
-18-