Courthouse News Service v. Michael Planet

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COURTHOUSE NEWS SERVICE, Nos. 16-55977
Plaintiff-Appellee/ 16-56714
Cross-Appellant,
D.C. No.
v. 2:11-cv-08083-
SJO-FFM
MICHAEL D. PLANET, in his official
capacity as Court Executive
Officer/Clerk of the Ventura OPINION
County Superior Court,
Defendant-Appellant/
Cross-Appellee.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted June 28, 2018
Pasadena, California
Filed January 17, 2020
Before: Kim McLane Wardlaw, N. Randy Smith,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Wardlaw;
Concurrence by Judge N.R. Smith
2 COURTHOUSE NEW SERVICE V. PLANET
SUMMARY *
Civil Rights
The panel affirmed in part, and reversed in part, the
district court’s summary judgment in favor of the
Courthouse New Service in its action seeking immediate
access to newly filed civil complaints from Ventura County
Superior Court.
Prior to 2014, Ventura County had a “no-access-before-
process” policy pertaining to new civil complaints which
often resulted in significant delays between the filing of a
complaint and its availability to Courthouse News Service.
After this suit was filed, the County dropped the no-access-
before-process policy and instituted a “scanning policy,”
which requires court staff to scan new civil complaints
before reviewing or processing them. After scanning, the
complaints are available on public computer terminals in the
Ventura County clerk’s office. Prior to July 2016,
complaints filed after 3:00 PM were scanned and made
publicly available the next day. The district court concluded
that both Ventura County’s no-access-before-process policy
and its scanning policy unconstitutionally infringed
Courthouse News Service’s right to timely access the
complaints.
Applying Press-Enterprise Co. v. Superior Court
(Press-Enterprise II), 478 U.S. 1 (1986), the panel held that
the press has a qualified right of timely access to newly filed
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
COURTHOUSE NEW SERVICE V. PLANET 3
civil nonconfidential complaints that attaches when the
complaint is filed. However, this right does not entitle the
press to immediate access to those complaints. Some
reasonable restrictions resembling time, place, and manner
regulations that result in incidental delays in access are
constitutionally permitted where they are content-neutral,
narrowly tailored and necessary to preserve the court’s
important interest in the fair and orderly administration of
justice.
The panel held that although Ventura County has a
substantial interest in the orderly administration and
processing of new complaints, its former no-access-before-
process policy failed, under a rigorous but not strict scrutiny
analysis, both prongs of the balancing test set forth in Press-
Enterprise II. Thus, Ventura County had not shown a
“substantial probability” that more contemporaneous access
to the newly filed complaints would impair its interest in
orderly administration. In fact, the record demonstrated that
the lengthy delays under the no-access-before-process
policy were entirely unrelated to Ventura County’s asserted
governmental interests. Moreover, the policy caused far
greater delays than were necessary to adequately protect
Ventura County’s administrative interests given the
reasonable alternatives available. The panel affirmed the
district court’s summary judgment as to the no-access-before
process policy.
The panel held that Ventura County’s scanning policy
passed constitutional scrutiny. The panel determined that
there was a substantial probability that Ventura County’s
interest in the fair and orderly administration of new judicial
filings would be impaired if the scanning policy was not in
place. Moreover, unlike with the no-access-before-process
policy, there was nothing in the record to indicate that
4 COURTHOUSE NEW SERVICE V. PLANET
Ventura County considered but rejected reasonable
alternatives to the scanning policy. Additionally, the panel
noted that prior to 2014, Ventura County was undergoing
severe budget constraints, and it had demonstrated that the
overnight delay in access to complaints filed during the last
ninety minutes of the court’s public hours was no greater
than essential to manage necessary court operations under
the circumstances existing at the time. The panel therefore
reversed the district court’s grant of summary judgment as
to the scanning policy, vacated the district court’s injunction
and award of fees, and remanded for further consideration
consistent with the panel’s opinion.
Concurring as to part III of the opinion, Judge N.R.
Smith stated that the majority correctly determined that
Ventura County’s access policies resembled time, place, and
manner restrictions—they were content-neutral and affected
only the timing of access to the newly filed complaints.
However, Judge N.R. Smith stated that rather than adopt the
time, place, and manner test, the majority applied a strict
scrutiny analysis which Supreme Court precedent does not
require.
COUNSEL
Robert A. Naeve (argued), Craig E. Stewart, Erica L.
Reilley, and Jaclyn B. Stahl, Jones Day, Irvine, California;
Frederick B. Hayes, Hayes Law Office, Hermosa Beach,
California; for Defendant-Appellant/Cross-Appellee.
Rachel Matteo-Boehm (argued), Roger Myers, Jonathan
Fetterly, and Leila Knox, Bryan Cave LLP, San Francisco,
California, for Plaintiff-Appellee/Cross-Appellant.
COURTHOUSE NEW SERVICE V. PLANET 5
Caitlin Vogus (argued), Bruce D. Brown, and Selina
MacLaren, The Reporters Committee for Freedom of the
Press, Washington, D.C., for Amicus Curiae The Reporters
Committee for Freedom of the Press.
John C. Eastman, Center for Constitutional Jurisprudence,
Chapman University Fowler School of Law, Orange,
California; Keith R. Fisher, National Center for State Courts,
Arlington, Virginia; for Amicus Curiae Conference of Chief
Justices.
OPINION
WARDLAW, Circuit Judge:
“The peculiar value of news is in the spreading of it while
it is fresh.” Int’l News Serv. v. Associated Press, 248 U.S.
215, 235 (1918), abrogated on other grounds by Erie R.R.
Co. v. Tompkins, 304 U.S. 64 (1938). This case pits the
urgency of reporting on, and the public interest in obtaining,
contemporaneous news about filings in our courts against
administrative interests in the fair and orderly processing of
those filings. During Courthouse News Service’s decade-
long battle to obtain immediate access to newly filed
complaints from Ventura County Superior Court, the drive
for “fresh” news has only become more intense. In this
digital age, newsfeeds and media platforms update the news
by the minute or even by the second, and even traditional
media deliver an endless stream of “breaking” news. Yet
courts undeniably have an important administrative function
that requires orderly processing of new filings, and this
results in incidental delays to access by the press and public.
We are asked to resolve these competing interests.
6 COURTHOUSE NEW SERVICE V. PLANET
Applying Press-Enterprise Co. v. Superior Court
(Press-Enterprise II), 478 U.S. 1 (1986), we conclude that
the press has a qualified right of timely access to newly filed
civil nonconfidential complaints that attaches when the
complaint is filed. However, this right does not entitle the
press to immediate access to those complaints. Some
reasonable restrictions resembling time, place, and manner
regulations that result in incidental delays in access are
constitutionally permitted where they are content-neutral,
narrowly tailored and necessary to preserve the court’s
important interest in the fair and orderly administration of
justice.
I.
A.
Courthouse News Service (CNS) “is a national news
organization that publishes daily reports for its subscribers
about civil litigation, including the filing of new lawsuits.”
Courthouse News Serv. v. Planet (Planet I), 750 F.3d 776,
779 (9th Cir. 2014). CNS has more than 2,700 subscribers
nationwide, including lawyers, law firms, news
organizations, other media outlets, and entertainment and
watchdog groups. In addition to sending proprietary
litigation reports to law firms, CNS counts twenty-nine
media entities among its subscribers, including the Los
Angeles Times and Boston Globe. Id. at 780. CNS describes
itself as a “pool reporter” for national media, which
disseminate CNS’s litigation news to the broader public.
To collect information on newly filed complaints, CNS
dispatches its reporters to some 2,600 courthouses across the
country, including the Ventura County Superior Court
(Ventura County). Over 250 CNS reporters review newly
filed complaints and decide which are newsworthy. In
COURTHOUSE NEW SERVICE V. PLANET 7
California state courts, CNS reports only on unlimited civil
complaints, which either seek injunctive relief or have an
amount in controversy greater than $25,000. 1 See id. at 779
n.1; Cal. Civ. Proc. Code §§ 85(a), 88. Approximately sixty-
five entities subscribe to CNS’s “Central Coast Reports,” the
CNS publication that reports on Ventura County lawsuits.
Defendant Michael Planet serves as the Ventura County
Court Executive Officer and Clerk. Planet is responsible for
the administration of court records, which includes
responding to media and other public requests for access to
court records. His deputy, Cheryl Kanatzar, is responsible
for processing civil court complaints and supervising the
Civil Department court processing assistants.
Ventura County neither requires nor allows electronic
filing; thus, all pleadings and other documents at the court
are filed in paper format and maintained in hard copy in a
physical case file in the clerk’s office. Between November
2010 and June 2014, the court maintained a “media bin” in
which it placed newly filed complaints after processing
them. During that time, Ventura County processed newly
filed complaints at the filing counters or desks in the Civil
Department using the Court Case Management System
(CCMS), which allows the court to maintain its docket of
court filings. Ventura County required a seven-step
procedure to process a new civil complaint using CCMS. As
the district court described:
1
CNS does not argue that it is entitled to access documents that are
statutorily or judicially deemed confidential. Accordingly, our decision
here concerns only publicly available civil complaints, i.e., those deemed
non-confidential by state law or judicial determination, or those that were
not otherwise properly filed under seal.
8 COURTHOUSE NEW SERVICE V. PLANET
First, a [court processing assistant] reviews
the documents to determine that the
complaint is being filed in the correct court
and the documents necessary to initiate the
case are presented with the correct filing fee
or fee waiver. Second, the [court processing
assistant] enters all the required case
information to “create” a new case in CCMS.
Third, all accompanying instruments, for
example checks, are entered and the receipt is
generated. Fourth, any summons required
are issued. Fifth, the documents are stamped
as “Filed.” Sixth, the labels generated from
CCMS are placed on the physical case file,
along with the filing date, courtroom
assignment, and case destruction stamp.
Finally, the documents are placed in a
physical case file.
After court processing assistants completed these steps,
supervisors performed an additional layer of quality control
review, a process which took several additional days to
complete. Only after both processes were completed would
the clerk designate newly filed civil complaints as “located
to the media bin” for public access. However, sometimes
the complaints never even made it to the bin, and the court
kept no record of the complaints actually delivered to the
media bin.
Ventura County also excepted certain complaints from
the media bin. After processing, the court routed directly to
judges complaints requiring “immediate judicial review,”
such as California Environmental Quality Act (CEQA) cases
or complaints filed simultaneously with ex parte applications
for temporary restraining orders. Staff then delivered copies
COURTHOUSE NEW SERVICE V. PLANET 9
of only the face pages of these complaints to the media bin.
To view the entirety of the complaint, CNS had to request a
copy directly from the chambers of the assigned judge.
This “no-access-before-process” policy often resulted in
significant delays between the filing of a complaint and its
availability to CNS; in many documented periods, over half
of the filed complaints took two or more court days to
become publicly available. Although Planet acknowledges
the delay resulting from the no-access-before-process
policy, he justified the policy by asserting concerns about
privacy and confidentiality, accounting protocols and check
payments attached to complaints, quality control, efficiency,
and the integrity of court records.
After this suit was filed, however, Planet dropped the no-
access-before-process policy. In June 2014, Ventura County
instituted its “scanning policy,” which requires court staff to
scan new civil complaints before reviewing or processing
them. After scanning, the complaints are available on public
computer terminals in the Ventura County clerk’s office.
When Planet originally adopted the scanning policy, the
public, including CNS reporters, could view the scanned
filings from 8:00 AM until 3:00 PM, even though the
courthouse remained open and court staff accepted new
filings until 4:30 PM. Complaints filed after 3:00 PM were
scanned and made publicly available the next day.
The parties dispute what percentage of new complaints
Ventura County made available on the same day as filing
under the scanning policy, a dispute that arises from the
3:00 PM public closing time of the clerk’s office. Planet
maintains that Ventura County provided same-day access to
approximately 97% of filings. CNS counters that Ventura
County scanned between “one-third and more than one-half”
of complaints after 3:00 PM. Ventura County does not
10 COURTHOUSE NEW SERVICE V. PLANET
automatically scan and make available any exhibits
submitted with the complaints; nor did CNS reporters ask for
the exhibits from the court until this litigation.
B.
CNS filed its original lawsuit seeking same-day access
to newly filed civil complaints on September 29, 2011. The
district court dismissed the suit under the Pullman and
O’Shea abstention doctrines. See R.R. Comm’n of Tex. v.
Pullman Co., 312 U.S. 496 (1941); O’Shea v. Littleton,
414 U.S. 488 (1974). We reversed the district court’s
decision to abstain.
Citing Press-Enterprise II, we rejected Planet’s
argument that this is not a free expression case, holding that
CNS was asserting its First Amendment right of timely
access to judicial and other public proceedings and
documents. Planet I, 750 F.3d at 784–85. We further held
that “Pullman abstention ‘is generally inappropriate when
First Amendment rights are at stake.’” Id. at 784 (quoting
Wolfson v. Brammer, 616 F.3d 1045, 1066 (9th Cir. 2010)).
We noted that the first requirement for Pullman abstention—
that “the case touches on a sensitive area of social policy
upon which the federal courts ought not to enter”—“is
‘almost never’ satisfied in First Amendment cases ‘because
the guarantee of free expression is always an area of
particular federal concern.’” Id. at 783–84 (first quoting
Porter v. Jones, 319 F.3d 483, 492 (9th Cir. 2003); then
quoting Ripplinger v. Collins, 868 F.2d 1043, 1048 (9th Cir.
1989)). “Abstaining in this case portends particularly
egregious damage to First Amendment rights because it
stifles the ‘free discussion of governmental affairs’ that the
First Amendment exists to protect.” Id. at 787 (quoting
Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604
(1982)). Moreover, “[t]he purpose of CNS’s effort to timely
COURTHOUSE NEW SERVICE V. PLANET 11
access filed unlimited civil complaints is to report on
whatever newsworthy content they contain, and CNS cannot
report on complaints the Ventura County Superior Court
withholds.” Id. at 787–88.
We also rejected the district court’s dismissal on O’Shea
grounds because we disagreed that remedying Ventura
County’s denial of the First Amendment right to timely
access newly filed complaints would necessarily require “an
ongoing federal audit.” Id. at 791 (quoting E.T. v. Cantil-
Sakauye, 682 F.3d 1121, 1124 (9th Cir. 2012) (per curiam)).
We remanded to the district court to determine the merits of
CNS’s claims, including whether “the right of access may be
overcome by an ‘overriding [governmental] interest based
on findings that closure is essential to preserve higher values
and is narrowly tailored to preserve that interest.’” Id. at 793
n.9 (alteration in original) (quoting Leigh v. Salazar,
677 F.3d 892, 898 (9th Cir. 2012) (quoting Press-
Enterprise II, 478 U.S. at 8–9)). We also suggested that the
“delay in making the complaints available may also be
analogous to a permissible ‘reasonable restriction [ ] on the
time, place, or manner of protected speech.’” Id. (alteration
in original) (quoting Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989)).
Upon remand, the district court dismissed CNS’s (by-
then-filed) first amended complaint for failure to state a
claim. Erroneously interpreting Press-Enterprise II and our
mandate, the court ruled on a different issue entirely—
whether “filed civil complaints which have not yet been the
subject of a hearing are outside the scope of the First
Amendment right of access.” Courthouse News Serv. v.
Planet (Planet II), 614 F. App’x 912, 915 (9th Cir. 2015).
We again reversed and remanded the case for reassignment
to a different district court judge. Id.12 COURTHOUSE NEW SERVICE V. PLANET
Upon remand from Planet II, on cross-motions for
summary judgment, the new district court judge granted
CNS’s motion in part, denied Planet’s motion, and entered
declaratory relief and a permanent injunction against
Ventura County. Although the district court recognized that
CNS had a First Amendment right of timely access to newly
filed civil complaints, it rejected CNS’s claim that Ventura
County’s failure to provide same-day access infringed that
right. The district court held, however, that the right of
access would be impaired if Ventura County failed to
provide timely access. The district court further held that the
right to timely access attaches at the moment of filing, i.e.,
when the complaint is received by the court. The district
court concluded that both Ventura County’s no-access-
before-process policy and its scanning policy
unconstitutionally infringed CNS’s right to timely access the
complaints.
Accordingly, the district court permanently enjoined
Planet and Ventura County “from refusing to make newly
filed unlimited civil complaints and their associated exhibits
available to the public and the press until after such
complaints and associated exhibits are ‘processed,’” and it
“further directed [Planet and Ventura County] to make such
complaints and exhibits accessible to the public and press in
a timely manner from the moment they are received by the
court . . . except in those instances where the filing party has
properly moved to place the complaint under seal.” As a
result, Planet changed the court’s scanning policy. Under
the post-injunction scanning policy, Ventura County now
keeps its clerk’s office open to the public until 4:00 PM and
has moved up its filing deadline to 4:00 PM.
These cross-appeals followed.
COURTHOUSE NEW SERVICE V. PLANET 13
C.
We have jurisdiction pursuant to 28 U.S.C. § 1291. In
First Amendment cases, we review de novo the district
court’s grant of summary judgment and independently
review factual findings. Kaahumanu v. Hawaii, 682 F.3d
789, 796 (9th Cir. 2012).
II.
We have long presumed a First Amendment “right of
access to court proceedings and documents.” Oregonian
Publ’g Co. v. U.S. Dist. Court, 920 F.2d 1462, 1465 (9th Cir.
1990) (citing Press-Enterprise Co. v. Superior Court (Press-
Enterprise I), 464 U.S. 501, 510 (1984)); accord United
States v. Index Newspapers LLC, 766 F.3d 1072, 1084 (9th
Cir. 2014). Concurring in Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555 (1980), Justice Stevens described the
Court’s holding: “Today . . . the Court unequivocally holds
that an arbitrary interference with access to important
information is an abridgment of the freedoms of speech and
of the press protected by the First Amendment.” 2 Id. at 583(Stevens, J., concurring). From there, a full majority of the
Court affirmed this presumptive right of access in Globe
Newspaper Co. v. Superior Court. See 457 U.S. at 603–04.
The presumption of access to judicial proceedings flows
from an “unbroken, uncontradicted history” rooted in the
common law notion that “justice must satisfy the appearance
2
Justice Stevens’s concurrence chided the Court for not recognizing
earlier that “the First Amendment protects the public and the press from
abridgment of their rights of access to information about the operation
of their government, including the Judicial Branch.” Id. at 584; see also
Houchins v. KQED, Inc., 438 U.S. 1, 30–38 (1978) (Stevens, J.,
dissenting).
14 COURTHOUSE NEW SERVICE V. PLANET
of justice.” Richmond Newspapers, 448 U.S. at 573–74
(plurality opinion) (quoting Levine v. United States, 362 U.S.
610, 616 (1960)); see also Ibrahim v. U.S. Dep’t of
Homeland Sec., 912 F.3d 1147, 1184 n.38 (9th Cir. 2019)
(en banc) cert. denied, 140 S. Ct. 424, 425 (2019) (mem.)).
Openness in judicial proceedings “enhances both the basic
fairness of the [proceeding] and the appearance of fairness
so essential to public confidence in the system,” Press-
Enterprise I, 464 U.S. at 508, and forms “an indispensable
predicate to free expression about the workings of
government,” Planet I, 750 F.3d at 785. “The right of access
is thus an essential part of the First Amendment’s purpose to
‘ensure that the individual citizen can effectively participate
in and contribute to our republican system of self-
government.’” Id. (quoting Globe Newspaper, 457 U.S.
at 604).
The First Amendment right of access exists, moreover,
to enable free and informed discussion about important
issues of the day and governmental affairs. Thus, “[t]he
news media’s right of access to judicial proceedings is
essential not only to its own free expression, but also to the
public’s.” Id. at 786. “With respect to judicial proceedings
in particular, the function of the press serves . . . to bring to
bear the beneficial effects of public scrutiny upon the
administration of justice.” Cox Broad. Corp. v. Cohn,
420 U.S. 469, 492 (1975). “The free press is the guardian of
the public interest, and the independent judiciary is the
guardian of the free press.” Leigh, 677 F.3d at 900. These
values hold especially true where, as here, the impetus for
CNS’s efforts to obtain newly filed complaints is its interest
in timely reporting on their contents. See Planet I, 750 F.3d
at 787–89; cf. Richmond Newspapers, 448 U.S. at 592(Brennan, J., concurring in the judgment) (“[A] special
solicitude for the public character of judicial proceedings is
COURTHOUSE NEW SERVICE V. PLANET 15
evident in the Court’s rulings upholding the right to report
about the administration of justice.”).
A.
We must determine whether the qualified First
Amendment right of access applies to the type of judicial
record at issue here—newly filed nonconfidential civil
complaints—and, relatedly, at what point in time that right
attaches. To determine whether a First Amendment right of
access attaches to a type of judicial proceeding or record, we
consider (1) whether that proceeding or record “ha[s]
historically been open to the press and general public” and
(2) “whether public access plays a significant positive role
in the functioning of the particular [governmental] process
in question.” Press-Enterprise II, 478 U.S. at 8; see also
Index Newspapers, 766 F.3d at 1084. This “experience and
logic” test evaluates the institutional value of public access
to judicial proceedings and records to determine whether the
First Amendment provides a presumption of access. See
Globe Newspaper, 457 U.S. at 605. A presumptive First
Amendment right of access arises if a proceeding or record
satisfies both requirements of the two-part test.
The Supreme Court has yet to explicitly rule on whether
the First Amendment right of access to information reaches
civil judicial proceedings and records, but the federal courts
of appeals widely agree that it does. Planet I, 750 F.3d
at 786 (collecting cases); see also Courthouse News Serv. v.
Brown, 908 F.3d 1063, 1069 (7th Cir. 2018), cert. denied,
140 S. Ct. 384 (2019) (mem.). Indeed, every circuit to
consider the issue has uniformly concluded that the right
applies to both civil and criminal proceedings. See Dhiab v.
Trump, 852 F.3d 1087, 1099 (D.C. Cir. 2017) (Rogers, J.,
concurring in part and concurring in the judgment)
16 COURTHOUSE NEW SERVICE V. PLANET
(collecting cases). 3 This nationwide consensus accords with
the broad understanding of First Amendment rights—and
the rejection of “any ‘narrow, literal conception’ of the
Amendment’s terms,”—that the Supreme Court has long
espoused:
[T]he Framers were concerned with broad
principles, and wrote against a background of
shared values and practices. The First
Amendment is thus broad enough to
encompass those rights that, while not
unambiguously enumerated in the very terms
of the Amendment, are nonetheless necessary
to the enjoyment of other First Amendment
rights.
Globe Newspaper, 457 U.S. at 604 (quoting NAACP v.
Button, 371 U.S. 415, 430 (1963)).
3
See Planet I, 750 F.3d at 786; N.Y. Civil Liberties Union v. N.Y.C.
Transit Auth., 684 F.3d 286, 298 (2d Cir. 2012) (administrative civil
infraction hearings); Rushford v. New Yorker Magazine, Inc., 846 F.2d
249, 253–54 (4th Cir. 1988) (documents filed in connection with
summary judgment motion in civil case); Publicker Indus., Inc. v. Cohen,
733 F.2d 1059, 1070 (3d Cir. 1984) (“A presumption of openness inheres
in civil trials as in criminal trials.”); In re Cont’l Ill. Sec. Litig., 732 F.2d
1302, 1308 (7th Cir. 1984) (litigation committee reports in shareholder
derivative suits); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661
(8th Cir. 1983) (contempt proceedings, which are “a hybrid containing
both civil and criminal characteristics”); Newman v. Graddick, 696 F.2d
796, 801 (11th Cir. 1983) (civil trial and enforcement proceedings
concerning “the release or incarceration of prisoners and the conditions
of their confinement”); see also Doe v. Public Citizen, 749 F.3d 246, 268
(4th Cir. 2014) (docket sheets for civil proceedings). The California
Supreme Court has also so concluded. NBC Subsidiary (KNBC-TV), Inc.
v. Superior Court, 980 P.2d 337, 361 (Cal. 1999).
COURTHOUSE NEW SERVICE V. PLANET 17
We agree with the Seventh Circuit that although “the
First Amendment does not explicitly mention a right of
access to court proceedings and documents, ‘the courts of
this country recognize a general right to inspect and copy
public records and documents, including judicial records and
documents,’” and that this right extends to civil complaints. 4
Brown, 908 F.3d at 1068–70 (quoting Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 597 (1978)). As we held in
Planet I, and as the district court correctly concluded, a
qualified First Amendment right of access extends to timely
access to newly filed civil complaints. Id. at 788; see also
Planet II, 614 F. App’x at 915. Though we did not expressly
apply the “experience and logic” test in Planet I, both our
common experience and the logical extension of First
Amendment principles lead to the conclusion that “[t]he
press’s right of access to civil proceedings and documents
fits squarely within the First Amendment’s protections.”
Brown, 908 F.3d at 1069. Both sides before us agree that
experience and logic support a public right of access to
newly filed civil complaints. Indeed, Planet represents that
Ventura County has a “long-standing policy of providing
timely access to court records,” and agrees that the First
Amendment protects a right of access to new civil
4
We disagree, however, with the Seventh Circuit’s decision to
abstain from resolving the dispute about when the right attaches and
when delays are so long as to be tantamount to a denial of the right. See
Brown, 908 F.3d at 1070–75; see also Rizzo v. Goode, 423 U.S. 362,
378–79 (1976); O’Shea, 414 U.S. 488. In Planet I, we concluded that
the injunctive relief CNS then sought neither presented a risk of an
“ongoing federal audit” of a state’s judicial system nor amounted to “a
major continuing intrusion of the equitable power of the federal courts
into the daily conduct of state . . . proceedings.” 750 F.3d at 790–92
(quoting O’Shea, 414 U.S. at 500, 502). We pointed out that Ventura
County would have “available a variety of simple measures” that it could
take to comply with an injunction requiring it to provide CNS timely
access to newly filed complaints. Id. at 791.
18 COURTHOUSE NEW SERVICE V. PLANET
complaints. But he now argues that the right does not arise
until judicial action of some sort. CNS urges us to affirm the
district court’s conclusion that the First Amendment creates
a right of access that arises upon the court’s receipt of the
complaint. In CNS’s view, anything short of immediate
access violates its First Amendment rights.
B.
We reject Planet’s contention that the right of access to
civil complaints attaches only at the moment “they become
the subject of some type of judicial action.” Our decision in
Planet II remains the law of this case. See Planet II, 614 F.
App’x at 915; see also Gonzalez v. Arizona, 677 F.3d 383,
389 n.4 (9th Cir. 2012) (en banc) (“Under the law of the case
doctrine, a court will generally refuse to reconsider an issue
that has already been decided by the same court or a higher
court in the same case.” (citing Jeffries v. Wood, 114 F.3d
1483, 1488–89 (9th Cir. 1997) (en banc)). Even if Planet II
had not foreclosed this argument, no court has held or even
suggested that the public character of judicial records
depends on whether the proceedings have progressed to a
stage requiring a judge to act on the papers.
A complaint is a judicial document or record: an item
filed with a court that is “relevant to the judicial function and
useful in the judicial process.” Judicial Document, Black’s
Law Dictionary (10th ed. 2014); accord Bernstein v.
Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132,
139 (2d Cir. 2016) (quoting Lugosch v. Pyramid Co. of
Onondaga, 435 F.3d 110, 119 (2d Cir. 2006)). Absent a
showing that there is a substantial interest in retaining the
private nature of a judicial record, once documents have
been filed in judicial proceedings, a presumption arises that
the public has the right to know the information they contain.
See Grove Fresh Distribs., Inc. v. Everfresh Juice Co.,
COURTHOUSE NEW SERVICE V. PLANET 19
24 F.3d 893, 897 (7th Cir. 1994). CNS has submitted
specific evidence that numerous jurisdictions around the
country make newly filed complaints publicly available.
The declarations of CNS reporters demonstrate a widespread
practice of making complaints available before they are
subjected to judicial review. The same is true of the long list
of state statutes providing access to judicial records that CNS
and Planet each marshal. 5 Even Planet concedes that “[a]t
least 34 states obligate records custodians to respond to
access requests within a reasonable period of time or a fixed
number of days.” None of these statutes conditions access
on judicial action.
Moreover, public access to civil complaints before
judicial action upon them “plays a particularly significant
role” in the public’s ability to ably scrutinize “the judicial
process and the government as a whole.” Globe Newspaper,
457 U.S. at 606. Citizens could hardly evaluate and
participate in robust public discussions about the
performance of their court systems if complaints—and, by
extension, the very existence of lawsuits—became available
only after a judicial decision had been made. As one district
court has elaborated:
[T]he public has a right to know how its
resources are being used—courts are funded
by the public, judges are evaluated by the
public, officials who appoint and approve
judges are voted on by the public, and the
laws under which parties sue may be refined,
rescinded, or strengthened based on the
5
See e.g., Ariz. S. Ct. R. 123(f)(2); Cal. Gov’t Code § 68150(l); Fla.
Jud. Admin. R. 2.420(m); Idaho Ct. Admin. R. 32(j); Miss. Code. Ann.
§ 25-61-5; Ohio R. Superintendence 45(b).
20 COURTHOUSE NEW SERVICE V. PLANET
public’s views of the ways in which they play
out in court.
Bernstein v. Bernstein Litowitz Berger & Grossmann LLP,
No. 14-CV-6867 (VEC), 2016 WL 1071107, at *9
(S.D.N.Y. Mar. 18, 2016), aff’d, 814 F.3d 132 (2d Cir.
2016); see also United States v. Amodeo, 71 F.3d 1044, 1048
(2d Cir. 1995) (“[Monitoring of the courts] is not possible
without access to . . . documents that are used in the
performance of Article III functions.”).
Public access to civil complaints before judicial action
also buttresses the institutional integrity of the judiciary. See
Doe v. Public Citizen, 749 F.3d 246, 266 (4th Cir. 2014); see
also Littlejohn v. Bic Corp., 851 F.2d 673, 682 (3d Cir. 1988)
(“Public access serves to promote trustworthiness of the
judicial process, to curb judicial abuses, and to provide the
public with a more complete understanding of the judicial
system, including a better perception of its fairness.”). Some
civil complaints may never come up for judicial evaluation
because they may prompt the parties to settle. The public
still has a right to know that the filing of the complaint in our
courts influenced the settlement of the dispute: “When a
complaint is filed, and the authority of the people of the
United States is thereby invoked, even if only as a threat to
induce settlement, the American people have a right to know
that the plaintiff has invoked their power to achieve his
personal ends.” Bernstein, 2016 WL 1071107, at *9; see
also Bernstein, 814 F.3d at 140.
In support of his argument that the public right of access
arises only post-judicial action, Planet points to cases that
merely conclude that various civil litigation documents fall
outside of the First Amendment right of access altogether.
See, e.g., In re Boston Herald, Inc., 321 F.3d 174, 176 (1st
COURTHOUSE NEW SERVICE V. PLANET 21
Cir. 2003) (documents “submitted by a criminal defendant
to show financial eligibility for [Criminal Justice Act]
funds”); Littlejohn, 851 F.2d at 680 & n.14 (evidentiary
document that was “never specifically referred to at trial or
admitted into evidence”). These cases address documents
that are not in fact part of the record of judicial proceedings,
unlike the complaint, “which initiates judicial proceedings,
is the cornerstone of every case, the very architecture of the
lawsuit,” and access to which “is almost always necessary if
the public is to understand a court’s decision.” Bernstein,
814 F.3d at 140 (quoting FTC v. Abbvie Prods. LLC,
713 F.3d 54, 62 (11th Cir. 2013)).
Planet also argues that then-Judge Scalia’s opinion in In
re Reporters Committee for Freedom of the Press, 773 F.2d
1325 (D.C. Cir. 1985), supports his position that the tradition
of access to judicial records does not include “pre-judgment
access.” See id. at 1333. That decision is inapposite,
however. Reporters Committee concerned the district
court’s entry of a protective order on discovery materials
obtained from third party Mobil Oil Corporation “on the
ground that much of it was sensitive and confidential.” Id.
at 1326. The application for the protective order was
supported by a declaration “describing in general terms the
negative effect release of the materials as a whole would
have on Mobil’s business in Saudi Arabia and its
competitive position in shipping.” Id. Much of the
discovery designated as confidential was filed under seal in
pre-trial motions for summary judgment. Id. The district
court ultimately released all the documents to the group of
reporters seeking them following the trial and judgment. Id.
at 1328. In contrast, the civil complaints at issue here by
stipulation are not confidential, subject to a protective order
or filed under seal.
22 COURTHOUSE NEW SERVICE V. PLANET
And as Judge J. Skelly Wright pointed out, then-Judge
Scalia’s “unnecessary constitutional ruminations” drawing
on late-nineteenth century cases supporting a historical rule
of no access to pre-judgment civil records were pure dicta
and also not quite an accurate historical portrayal. Id.
at 1342, 1348 (Wright, J., concurring in part and dissenting
in part); see also id. at 1333–36 (citing Ex parte Drawbaugh,
2 App. D.C. 404 (1894); Schmedding v. May, 85 Mich. 1(1891); and Cowley v. Pulsifer, 137 Mass. 392 (1884)).
Indeed, the late-nineteenth century cases unearthed in
Reporters Committee do not foreclose finding a tradition of
access here. 6 And a 1953 nationwide study of court practices
regarding access to government information concluded
otherwise:
In the preponderant majority of states judicial
records are in fact and law open to inspection
by citizens and newspapermen as and when
the papers become judicial records through
being filed or through other procedure.
Inspection does not wait upon proceedings in
open court or indeed any judicial action, that
is, action upon them by a judge.
Harold L. Cross, The People’s Right to Know 151 (1953)
(emphasis added).
6
As early as 1927, New York courts rejected the reasoning of the
1884 case Cowley v. Pulsifer, 137 Mass. 392 (1884), relied upon by then-
Judge Scalia with respect to privilege from libel for reporting on court
documents. See Campbell v. N.Y. Evening Post, 245 N.Y. 320, 327–28
(1927).
COURTHOUSE NEW SERVICE V. PLANET 23
C.
Though we conclude, as did the district court, that the
qualified right of access to nonconfidential civil complaints
arises when they are filed with the court, we do not view that
conclusion as demanding immediate, pre-processing access
to newly filed complaints. At the same time, however, we
recognize, like the district court, that a necessary corollary
of the right to access is a right to timely access. CNS’s
reporting on complaints must be timely to be newsworthy
and to allow for ample and meaningful public discussion
regarding the functioning of our nation’s court systems. See
Globe Newspaper, 457 U.S. at 604–05; Grove Fresh,
24 F.3d at 897–98 (7th Cir. 1994). As the Court reasoned in
Bridges v. California, 314 U.S. 252 (1941), a ban on
reporting news “just at the time [the] audience would be
most receptive” would be effectively equivalent to “a
deliberate statutory scheme of censorship.” Id. at 269. In
other words, the public interest in obtaining news is an
interest in obtaining contemporaneous news. In re Reporters
Comm., 773 F.2d at 1352–53 (Wright, J., concurring in part
and dissenting in part). As the Seventh Circuit explained in
Grove Fresh: “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.” 24 F.3d at 897. Before us, amici
the Reporters Committee for Freedom of the Press and
twenty-seven media organizations 7 press the point that
7
The media organizations include: American Society of News
Editors, The Associated Press, Association of Alternative Newsmedia,
The Center for Investigative Reporting, Dow Jones & Company, Inc.,
The E.W. Scripps Company, First Amendment Coalition, Gannett Co.,
Inc., Hearst Corporation, International Documentary Association,
Investigative Reporting Workshop at American University, Los Angeles
Times Communications LLC, The McClatchy Company, MediaNews
24 COURTHOUSE NEW SERVICE V. PLANET
“news” is not even “news” if it is not timely, that is,
immediate and contemporaneous. See Janet Kolodzy,
Convergence Journalism 59 (2006) (“It is, after all, called
the ‘news’ business and not the ‘olds’ business.”); Fred
Fedler et al., Reporting for the Media 123 (8th ed. 2005)
(identifying timeliness as a central characteristic of news).
Thus, that “old” news is not worthy of, and does not receive,
much public attention has been widely recognized.
Moreover, as amici argue, the need for immediacy of
reporting news “is even more vital in the digital age,” where
timeliness is measured in terms of minutes or seconds. We
thus arrive at the question that lies at the core of this dispute:
what amount of delay in making newly filed complaints
publicly available is constitutionally justified?
III.
A.
Once we have determined that a qualified First
Amendment right of access to newly filed nonconfidential
civil complaints exists, a presumption of access arises under
Press-Enterprise II that may be restricted only if “closure is
essential to preserve higher values and is narrowly tailored
to serve those interests.” 478 U.S. at 13–14 (quoting Press-
Enterprise I, 464 U.S. at 510); see also Globe Newspaper
Co., 457 U.S. at 606–07.
Group, Inc., Meredith Corporation, National Press Photographers
Association, New England First Amendment Coalition, New England
Newspaper and Press Association, Inc., The New York Times Company,
News Media Alliance, Online News Association, Radio Television
Digital News Association, Reporters Without Borders, Society of
Professional Journalists, Student Press Law Center, Tully Center for Free
Speech, and The Washington Post.
COURTHOUSE NEW SERVICE V. PLANET 25
In Globe Newspaper, the Court reiterated that strict
scrutiny applies to the denial of a qualified First Amendment
right of access but noted that, “[o]f course, limitations on the
right of access that resemble ‘time, place, and manner’
restrictions on protected speech, would not be subjected to
such strict scrutiny.” 457 U.S. at 607 n.17 (emphasis added)
(internal citation omitted). The Globe Newspaper Court
then cited to footnote 18 of Richmond Newspapers, where
the Court, explaining that the First Amendment right of
access is not absolute, analogized restrictions on access to
judicial proceedings to the regulation of expression in the
public square, reasoning that, “[j]ust as a government may
impose reasonable time, place, and manner restrictions upon
the use of its streets in the interest of such objectives as the
free flow of traffic, so may a trial judge, in the interest of the
fair administration of justice, impose reasonable limitations
on access to a trial.” 448 U.S. at 581 n.18. The Court,
however, evinced greater solicitude for the courtroom setting
that would countenance greater restrictions on access than
those allowed in public forums, stating: “It is far more
important that trials be conducted in a quiet and orderly
setting than it is to preserve that atmosphere on city streets.”
Id. (comparing Kovacs v. Cooper, 336 U.S. 77 (1949), with
Illinois v. Allen, 397 U.S. 337 (1970), and Estes v. Texas,
381 U.S. 532, 85 (1965)). The Court offered a final ground
supporting reasonable restrictions in the courtroom setting—
that courtrooms have limited capacity means that “there may
be occasions when not every person . . . can be
accommodated.” Id. So too here.
Ventura County’s access policies resemble time, place,
and manner restrictions—they are content-neutral and affect
26 COURTHOUSE NEW SERVICE V. PLANET
only the timing of access to the newly filed complaints. 8
They should “not be subjected to such strict scrutiny,” Globe
Newspaper, 457 U.S. at 607 n.17, but to the more relaxed
scrutiny the Supreme Court has stated applies to these types
of cases. An incidental delay of the right of access does “not
pose such inherent dangers to free expression, or present
such potential for censorship or manipulations, as to justify
application of the most exacting level of First Amendment
scrutiny.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,
661 (1994). Thus, in Leigh v. Salazar, a case concerning
restrictions on the press’s right to observe a government
activity, we explained that the Press-Enterprise II
“balancing test” is “rigorous,” but not strict, scrutiny.
677 F.3d at 900. That is the level of scrutiny we apply to the
limitation on access to newly filed complaints here. 9
8
We also note that there is no allegation that Ventura County’s
access policies discriminate among media outlets in granting access to
newly filed complaints. Favoring one media organization over another
would “present serious First Amendment concerns.” Turner Broad. Sys.,
512 U.S. at 659. And although there is some suggestion in Ventura
County’s briefs that because CNS commercially profits from its access
to the complaints its First Amendment right is somehow diminished, to
be clear: profit motive is entirely irrelevant to the determination of a
news organization’s First Amendment rights. “If a profit motive could
somehow strip communications of the otherwise available constitutional
protection, our cases from New York Times to Hustler Magazine would
be little more than empty vessels.” Harte-Hanks Commc’ns, Inc. v.
Connaughton, 491 U.S. 657, 667 (1989).
9
Our concurring colleague misapprehends the level of scrutiny we
apply here, which is drawn directly from the Court’s access to judicial
proceedings cases, Globe Newspapers, 457 U.S. at 607, n.17, and
Richmond Newspapers, 448 U.S. at 581, n.18. The concurrence would
instead have us scrutinize the limitation on access here under the
standard applicable to speech in public forums, places that have been
used “time out of mind” for public assembly, communication, and
COURTHOUSE NEW SERVICE V. PLANET 27
The interest Ventura County asserts to justify the delay
in access is core to its functioning as a court: the fair and
orderly administration of justice. See Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 34 n.20, 35 (1984) (acknowledging
both “the government’s substantial interest in protecting the
integrity of the discovery process” and the “privacy interests
of litigants and third parties” in civil litigation); cf. Sorrell v.
IMS Health Inc., 564 U.S. 552, 596 (2011) (affirming “the
importance of maintaining ‘privacy’ as an important public
policy goal”); FTC v. Superior Court Trial Lawyers Ass’n,
493 U.S. 411, 430 (1990) (recognizing that “administrative
efficiency interests . . . are unusually compelling” in the
antitrust regulation context). Even in this era of electronic
filing systems, instantaneous public access to court filings,
especially complaints, could impair the orderly filing and
processing of cases with which clerk’s offices are charged.
After all, litigants are not uploading their complaints to the
internet; they are filing them with a court, making them
subject to judicial administration. The First Amendment
does not require courts, public entities with limited
resources, to set aside their judicial operational needs to
satisfy the immediate demands of the press.
expression, Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.
37, 45 (1983) (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496,
515 (1939)), or that the government has designated as such, see Ark.
Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677 (1998). But the
courthouse is decidedly not a traditional or designated public forum for
expression; rather it is “dedicated to the unique societal function of
conducting the administration of justice.” 1 Rodney A. Smolla, Smolla
and Nimmer on Freedom of Speech § 8:32.50 (2016). And the third
prong of the time, place and manner test, whether the regulations “leave
open ample alternative channels for communication of the information,”
is inapplicable in this context—there is only one way CNS can access
the new complaints: the court clerk’s office.
28 COURTHOUSE NEW SERVICE V. PLANET
To survive Press-Enterprise II’s two-prong balancing
test, Ventura County must demonstrate first that there is a
“substantial probability” that its interest in the fair and
orderly administration of justice would be impaired by
immediate access, and second, that no reasonable
alternatives exist to “adequately protect” that government
interest. Press-Enterprise II, 478 U.S. at 14.
B.
Although Ventura County has a substantial interest in the
orderly administration and processing of new complaints, its
former no-access-before-process policy nevertheless fails
both prongs of Press-Enterprise II.
As to the first prong of Press-Enterprise II, Ventura
County has not shown a “substantial probability” that more
contemporaneous access to the newly filed complaints
would impair its interest in orderly administration. The
record shows that Ventura County’s no-access-before-
process policy bears no real relationship to the County’s
legitimate administrative concerns about privacy and
confidentiality, accounting protocols, quality control and
accuracy, efficient court administration, or the “integrity” of
court records. The record shows that the no-access-before-
process policy resulted in significant delays before the newly
filed complaints found their way into the media bins and that
these delays were unrelated to Ventura County’s asserted
administrative interests. The policy did not protect the
privacy interest: it was stipulated that the complaints did not
contain private or confidential information; rather, Planet’s
Deputy, Kanatzar, testified that private information is
instead listed in fee waiver applications. And, as the district
court noted, California Rule of Court 1.201(b) requires the
filer—not the court—to exclude or redact private
information from publicly filed judicial documents. Nor did
COURTHOUSE NEW SERVICE V. PLANET 29
the policy protect the asserted accounting interest. Planet
could point to no instances of accounting issues that related
to providing access before processing. The policy also failed
to protect Ventura County’s interest in orderly
administration: Planet failed to cite a single example of a
situation in which providing pre-process access to a newly
filed complaint compromised the quality and accuracy of
information logged into the Court Case Management System
(CCMS). As for efficiency, Planet again could not point to
any situation in which providing pre-process access created
efficiency problems. Finally, concerning the “integrity” of
court records, which appears to encompass properly
handling litigants’ documents by attaching the correct fees
to filings and removing private information, neither Planet
nor Kanatzar testified that providing reporters pre-process
access to complaints resulted in loss, destruction, or
mutilation of, or otherwise compromised the “integrity” of,
case files.
In fact, the record demonstrates that the lengthy delays
under the no-access-before-process policy were entirely
unrelated to Ventura County’s asserted governmental
interests. Although the policy’s labyrinthine seven-step pre-
access procedures purported to protect the orderly
administration of court filings, a staff supervisor testified
that there was “no way” she could confirm whether
complaints designated “located to the media bin” in CCMS
in fact made it to the physical media bin that day—a result
that cuts against Ventura County’s assertion that its policies
were designed for proper court recordkeeping. Given that
the no-access-before-process policy in some cases harmed
the very interests Ventura County claimed to be trying to
protect, we find that this policy fails the first prong of Press-
Enterprise II scrutiny.
30 COURTHOUSE NEW SERVICE V. PLANET
This policy also fails the second prong of Press-
Enterprise II because it caused far greater delays than were
necessary to adequately protect Ventura County’s
administrative interests given the reasonable alternatives
available. It is undisputed that the policy resulted in
substantial and meaningful delays in access to complaints, at
times delaying access for up to two weeks. These delays
compromised the newsworthiness of reporting on
complaints and deprived the public of information without
any administrative justification. During several documented
periods between 2012 and 2014, it took two or more court
days for CNS to access one-fifth to two-thirds of newly filed
complaints:
Time Period Same Day Next Day 2+ Day
(%) (%) (%)
June 11–22, 2012 0 55 45
Dec. 10–21, 2012 2 46 52
Aug. 12–23, 2013 0 67 33
Mar. 24–Apr. 4, 2014 3 32 65
Apr. 14–25, 2014 14 66 20
Record evidence also demonstrates that Ventura County
could effectively address its administrative concerns through
methods that did not cause such extensive and arbitrary
delays in access. Ventura County’s decision to adopt the
scanning policy, which measurably decreased the delay in
public and press access to complaints, demonstrated that it
could achieve its administrative interests with substantially
less restrictive means. The record additionally shows that
Planet and his staff considered but rejected potential
COURTHOUSE NEW SERVICE V. PLANET 31
alternatives providing timelier public access to complaints.
For example, Ventura County considered making copies of
newly filed complaints or requiring parties to submit an extra
copy upon filing for more immediate public access.
Although it is unclear why Ventura County ultimately
declined to adopt these alternative procedures, Planet
articulates no reasons why creating or requiring additional
copies would unduly burden court resources or otherwise
present administrative difficulties, declaring only that
Ventura County “made the commonsense decision” not to
require litigants to submit an extra copy of filed complaints.
See Valley Broad. Co. v. U.S. Dist. Court, 798 F.2d 1289,
1295 (9th Cir. 1986) (holding that courts “must carefully
state the articulable facts demonstrating an administrative
burden sufficient to deny access” to judicial records). The
ready availability of alternative “simple measures” to
improve access to newly filed complaints, Planet I, 750 F.3d
at 791, further strengthens our conclusion that the no-access-
before-process policy fails the second prong of Press-
Enterprise II.
C.
Ventura County’s scanning policy, which requires court
staff to scan new civil complaints and make the electronic
scans available on public computer terminals, survives
Press-Enterprise II scrutiny. 10 This policy easily passes the
10
Planet argues that Ventura County’s adoption of its scanning
policy moots CNS’s challenge to its now-discontinued no-access-before-
process policy. We agree with the district court that CNS’s challenge to
Ventura County’s no-access-before-process policy is not moot. “The
voluntary cessation of challenged conduct does not ordinarily render a
case moot because a dismissal for mootness would permit a resumption
of the challenged conduct as soon as the case is dismissed.” Am.
Diabetes Ass’n v. U.S. Dep’t of the Army, 938 F.3d 1147, 1152 (9th Cir.
32 COURTHOUSE NEW SERVICE V. PLANET
first prong of the test given that it is directly related to
Ventura County’s asserted interests. In fact, Planet testified
that adopting a scanning policy addressed his concerns about
privacy, potential accounting protocol problems, and quality
control review in Ventura County’s complaint processing
procedures. Thus, there is a substantial probability that
Ventura County’s interest in the fair and orderly
administration of new judicial filings would be impaired if
the scanning policy was not in place.
We must now turn to the second prong of the Press-
Enterprise II test: whether there were no reasonable
alternatives available for adequately protecting the Ventura
County’s interest in fair and orderly administration at the
time it adopted the scanning policy. When examining the
availability of reasonable alternatives, we cannot ignore the
modified, post-injunction scanning policy that Ventura
County instituted in July 2016. Under this policy, the court
2019) (quoting Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014)).
In the case of a government defendant, “[w]e presume that a government
entity is acting in good faith when it changes its policy, but when the
Government asserts mootness based on such a change it still must bear
the heavy burden of showing that the challenged conduct cannot
reasonably be expected to start up again.” Rosebrock, 745 F.3d at 971
(internal citation omitted).
In Rosebrock, we set out a non-exhaustive list of factors to consider
in determining whether a government defendant’s voluntary cessation of
challenged conduct moots a controversy, where, as here, the cessation is
not enshrined in legislation or regulation. See id. at 972. Because Planet
maintains that the public has no right of access until judicial action upon
a complaint, and nothing other than the injunction in this litigation
prevents Ventura County from returning to its pre-2014 policy, the
district court correctly found that, unlike the defendant in American
Diabetes Association, Planet has likely not met “the heavy burden of
showing that the challenged conduct cannot reasonably be expected to
start up again.” Id. at 971.
COURTHOUSE NEW SERVICE V. PLANET 33
extended the hours it keeps its clerk’s office and filing
counters open to the public from 3:00 PM to 4:00 PM, but
also moved the filing deadline back from 4:30 PM to
4:00 PM. The changes extended the time during which the
public has access to newly filed complaints but reduced the
time within which the public may file complaints. It has also
resulted in CNS reporting “near perfect” same-day access
under the post-injunction scanning policy.
However, we are satisfied that the post-injunction
scanning policy was not a reasonable alternative available to
Ventura County when it implemented its scanning policy in
2014. Prior to 2014, a statewide budget crisis severely
curtailed Ventura County’s resources, cutting the court’s
budget by more than $13 million over three fiscal years. To
mitigate the impact of the resulting multimillion-dollar
shortfall, Ventura County reduced staff, increased
mandatory staff furlough days, and twice reduced the
courthouse closing time: from 5:00 PM, its “traditional”
closing time, to 4:00 PM and then to 3:00 PM. Under the
court’s necessary budget control measures, administrative
vacancies more than doubled, leaving fewer staff to scan all
relevant complaints, serve members of the public seeking to
file and view documents, and prepare court calendars. As
Planet explained, Ventura County’s earlier public closing
time thus “allow[ed] a reduced number of clerks to catch up
on the new filings before leaving work at 4:30.”
Unlike with the no-access-before-process policy, there is
nothing in the record to indicate that Ventura County
considered but rejected reasonable alternatives to the
scanning policy. Furthermore, Ventura County was
undergoing severe budget constraints at the time, and it has
demonstrated that the overnight delay in access to
complaints filed during the last ninety minutes of the court’s
34 COURTHOUSE NEW SERVICE V. PLANET
public hours was no greater than essential to manage
necessary court operations under the circumstances existing
at the time. The First Amendment does not require us to
second guess the careful deliberations the state court
undertook in deciding how to manage scarce resources. We
decline do so here.
We therefore conclude that Ventura County’s scanning
policy passes constitutional scrutiny.
IV.
The First Amendment secures a right of timely access to
publicly available civil complaints that arises before any
judicial action upon them. Our decision reflects the First
Amendment’s “role . . . in securing and fostering our
republican system of self-government” through informed
and robust public debate. Richmond Newspapers, 448 U.S.
at 587 (Brennan J., concurring in the judgment). “The
guarding of the freedom of public discussion is a preliminary
step in the unending attempt of our nation to be intelligent
about its own purposes.” Alexander Meiklejohn, Free
Speech and Its Relation to Self-Government 106 (1948).
While the incidental delays resulting from Ventura County’s
former no-access-before-process policy cannot survive
Press-Enterprise II scrutiny, its scanning policy passes
constitutional muster.
Accordingly, we affirm the district court’s grant of
summary judgment as to the no-access-before-process
policy, but reverse the district court’s grant of summary
judgment as to the scanning policy. We vacate the district
court’s injunction and award of fees, and remand for further
consideration consistent with this opinion.
COURTHOUSE NEW SERVICE V. PLANET 35
Each side shall bear its own costs.
AFFIRMED IN PART; REVERSED IN PART; and
REMANDED for further proceedings consistent with
this opinion.
N.R. SMITH, Circuit Judge, concurring as to Part III:
Applying strict scrutiny to determine whether a state
court system may regulate the public’s access to
nonconfidential civil complaints does not comply with
Supreme Court precedent. Instead, reasonable time, place
and manner restrictions should be applied. Let me explain.
A.
Once it is determined that a qualified First Amendment
right of access attaches to a government proceeding or
activity, a court must then determine the proper level of
scrutiny, “because not every interference with speech
triggers the same degree of scrutiny under the First
Amendment.” See Turner Broad. Sys., Inc. v. FCC, 512 U.S.
622, 637 (1994). When “the State attempts to deny the right
of access . . . , it must be shown that the denial is necessitated
by a compelling governmental interest.” Globe Newspaper
Co. v. Superior Court, 457 U.S. 596, 606–07 (1982).
However, the Supreme Court has repeatedly stated that
“limitations on the right of access that resemble ‘time, place,
and manner’ restrictions on protected speech [sh]ould not be
subjected to such strict scrutiny.” Id. at 607 n.17 (citations
omitted); see also Richmond Newspapers Inc. v. Virginia,
448 U.S. 555, 581 n.18 (1980) (plurality opinion) (“Just as a
government may impose reasonable time, place, and manner
restrictions . . . so may a trial judge . . . impose reasonable
36 COURTHOUSE NEW SERVICE V. PLANET
limitations on access to a trial.” (citation omitted)). 1 Thus, a
limitation on a First Amendment right of access is not
subject to the same strict scrutiny applied to a denial of
access. See Globe Newspaper, 457 U.S. at 606–07.
The time, place, and manner standard permits
government regulation “provided the restrictions ‘are
justified without reference to the content of the regulated
speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample
alternative channels for communication of the
information.’” Ward v. Rock Against Racism, 491 U.S. 781,
791 (1989) (quoting Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 293 (1984)). This framework strikes
the proper “balance[] [between] the vital public interest in
preserving the media’s ability to monitor government
1
Multiple circuit courts have reached the same conclusion. See Flynt
v. Rumsfeld, 355 F.3d 697, 705 (D.C. Cir. 2004) (recognizing that a
restriction on media’s right of access is permitted if it is a reasonable
time, place, and manner restriction); Globe Newspaper Co. v. Pokaski,
868 F.2d 497, 505 (1st Cir. 1989) (recognizing that time, place, and
manner restrictions “need only be reasonable to survive First
Amendment scrutiny”); United States v. Kerley, 753 F.2d 617, 620–21
(7th Cir. 1985) (holding “[a] limitation on the public access to a trial is
not subject to the same ‘strict scrutiny’ given a denial of access. . . . The
limitation can withstand constitutional scrutiny so long as it is reasonable
and neutral, as with time, place, and manner restrictions generally”);
United States v. Yonkers Bd. of Educ., 747 F.2d 111, 114 (2d. Cir. 1984)
(holding a limitation that “is simply a ‘time, place, and manner’
restriction, which should not be subjected to strict scrutiny, but should
be upheld if reasonable”); United States v. Hastings, 695 F.2d 1278,
1282 (11th Cir. 1983) (holding that a time, place, and manner regulation
that restricts access in the courtroom is constitutional “if it is reasonable,
if it promotes significant governmental interests, and if the restriction
does not unwarrantedly abridge . . . . the opportunities for the
communication of thought” (alterations in original) (quotations marks
and footnotes omitted)).
COURTHOUSE NEW SERVICE V. PLANET 37
activities against the government’s need to impose
restrictions if necessary for safety or other legitimate
reasons.” Leigh v. Salazar, 677 F.3d 892, 900 (9th Cir.
2012).
Under the time, place and manner framework, the first
step is to determine if the policy is content-neutral. To be
content-neutral, the policy cannot “target speech based on its
communicative content,” Reed v. Town of Gilbert, 135 S. Ct.
2218, 2226 (2015), or “draw[] distinctions based on the
message a speaker conveys,” id. at 2227. “A regulation that
serves purposes unrelated to the content of expression is
deemed neutral, even if it has an incidental effect on some
speakers or messages but not others.” Ward, 491 U.S. at 791;
see also Press-Enter. Co. v. Superior Court (“Press-Enter.
I”), 464 U.S. 501, 519 (1984) (Stevens, J., concurring)
(explaining that, while it is sometimes necessary to identify
limitations “by reference to the subject matter of certain
questions” but this would not amount to an improper
content-based regulation, because in this context, the
government is not violating the principle of neutrality).
Once it is determined that the policy is content-neutral,
the regulation must be “narrowly tailored to serve a
significant governmental interest.” McCullen v. Coakley,
573 U.S. 464, 477, 486 (2014). To be narrowly tailored, the
restriction need not employ “the least restrictive or least
intrusive means.” Ward, 491 U.S. at 798. Rather, this court
must ensure “the regulation promotes a substantial
government interest that would be achieved less effectively
absent the regulation.” Id. at 799 (alteration omitted)
(quoting United States v. Albertini, 472 U.S. 675, 689
(1989)). For example, in Clark, the Court explained how the
prohibition on camping on the National Mall served
purposes that “[p]erhaps . . . would be more effectively and
38 COURTHOUSE NEW SERVICE V. PLANET
not so clumsily achieved by preventing tents and 24-hour
vigils entirely in the core areas.” 468 U.S. at 297. But
because “the Government has a legitimate interest in
ensuring that the National Parks are adequately protected . . .
[and] the parks would be more exposed to harm without the
sleeping prohibition than with it, the ban [wa]s safe from
invalidation under the First Amendment as a reasonable
regulation of the manner in which a demonstration may be
carried out.” Id.However, an access policy may fail the requirement for
“narrow tailoring” if the burdens imposed serve no purpose.
See Ward, 491 U.S. at 799–800. In other words, the
regulation must actually advance the government’s interest.
See id.; see also McCullen, 573 U.S. at 486 (“[T]he
government still may not regulate expression in such a
manner that a substantial portion of the burden on speech
does not serve to advance its goals.” (internal quotation
marks omitted)).
Finally, the policy must leave open ample alternative
channels of communication. 2 McCullen,573 U.S. at 477.
Access policies that merely delay (rather than outright deny)
access to nonconfidential civil complaints will generally
satisfy this requirement. See Daily Herald Co. v. Munro,
758 F.2d 350, 359 (9th Cir. 1984) (per curiam) (finding
unconstitutional a state statute that outright denied media
organizations’ ability to conduct exit polling). But see
Richmond Newspapers, 448 U.S. at 581 n.18 (explaining that
courts may outright deny access when, due to “limited
capacity . . . not every person who wishes to attend can be
2
The Majority argues that this prong of the time, place, and manner
test is “inapplicable in this context.” Maj. Op. at 26 n.9. However, as
detailed in this section, this prong is applicable in access cases.
COURTHOUSE NEW SERVICE V. PLANET 39
accommodated”). In such cases of delayed access, the
question boils down to whether the delay “den[ies] or
unwarrantedly abridge[s] the opportunities for the
communication of thought and the discussion of public
questions immemorially associated with resort to public
places.” Id. (quoting Cox v. New Hampshire, 312 U.S. 569,
574 (1980)); see also Courthouse News Serv. v. Planet,
750 F.3d 776, 787 (9th Cir. 2014) (“Planet I”) (explaining
how limiting access can deter “informed public discussion
of ongoing judicial proceedings”); cf. Cox Broad. Corp. v.
Cohn, 420 U.S. 469, 492 (1975) (recognizing one of the
functions of the press is to “bear the beneficial effects of
public scrutiny”).
The parties argue that reporting on complaints must be
timely to be newsworthy and to allow for ample and
meaningful public discussion regarding the functioning of
our nation’s court systems. See Globe Newspaper, 457 U.S.
at 604–05; Grove Fresh Distribs., Inc. v. Everfresh Juice
Co., 24 F.3d 893, 897–98 (7th Cir. 1994), superseded by rule
on other grounds. As the Seventh Circuit explained in Grove
Fresh: “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.” 24 F.3d at 897.
However, timeliness and newsworthiness are not the
focus of the First Amendment analysis. Rather, the First
Amendment analysis focuses on the significant government
interest and whether the restriction is narrowly tailored to
meet that interest. Absent either an unreasonable burden on
the right of access or access restrictions that also operate as
limitations on publishing information previously obtained,
ample alternatives for communication are left open.
Houchins v. KQED, Inc., 438 U.S. 1, 10–12 (1978)
40 COURTHOUSE NEW SERVICE V. PLANET
(distinguishing a right of access from a right to publish
information that has been obtained); Globe Newspaper,
457 U.S. at 621 (Stevens, J., dissenting) (“[S]tatutes that
bear on th[e] right of access do not deter protected activity
in the way that other laws sometimes interfere with the right
of expression . . . .”).
The majority correctly determines that “Ventura
County’s access policies resemble time, place, and manner
restrictions—they are content-neutral and affect only the
timing of access to the newly filed complaints.” Maj. Op.
25–26. However, rather than adopt the time, place, and
manner test, the majority ignores Supreme Court precedent
by analyzing the access policies under strict scrutiny. 3
Again, the Supreme Court has repeatedly held that
“limitations on the right of access that resemble ‘time, place,
and manner’ restrictions on protected speech [sh]ould not be
subjected to . . . strict scrutiny.” Globe Newspaper, 457 U.S.
at 607 n.17; see also Richmond Newspapers, 448 U.S. at 581
n.18 (“Just as a government may impose reasonable time,
place, and manner restrictions . . . , so may a trial judge . . .
impose reasonable limitations on access to a trial.”).
3
The majority mistakenly claims that its level of scrutiny is drawn
directly from Globe Newspapers and Richmond Newspapers. Maj Op.
at 26 n.9. This cannot be the case. These two Supreme Court cases direct
us not to use strict scrutiny when an access policy resembles a reasonable
time, place, and manner restriction. See Globe Newspaper, 457 U.S. at607 n.17; Richmond Newspapers, 448 U.S. at 581 n.18.
The majority further mistakenly argues that the time, place, and
manner standard is only applicable to speech in public forums. Maj Op.
at 26 n.9. However, the Supreme Court explicitly stated time, place, and
manner restrictions may be used in courtroom access cases. See
Richmond Newspapers, 448 U.S. at 581 n.18.
COURTHOUSE NEW SERVICE V. PLANET 41
As an alternative to a time, place, and manner analysis,
the majority instead suggests that a straightforward
application of the Press-Enterprise Co. v. Superior Court
(Press-Enterprise II), 478 U.S. 1 (1986) test should be used;
suggesting that it is not the most exacting level of First
Amendment scrutiny, but is instead akin to a “‘balancing
test’ that provides ‘rigorous,’ but not strict, scrutiny.” Maj.
Op. 26 (citing Leigh, 677 F.3d at 900). 4 However, to comply
with the scrutiny required by Press-Enterprise II, the policy
must be “narrowly tailored and necessary to preserve the
court’s important interest in the fair and orderly
administration of justice.” Maj. Op. 6. In other words, “no
reasonable alternatives exist to ‘adequately’ protect that
government interest.” Maj. Op. 28. Thus, this “no reasonable
alternative” requirement mirrors the same strict scrutiny
analysis Supreme Court precedent does not require. See
Daily Herald Co., 758 F.2d at 359 (holding that to meet the
heavy burden of “exacting scrutiny” the State must prove
that “no reasonable alternatives” are available to serve the
State’s legitimate interest).
Because the majority’s strict scrutiny analysis does not
comply with Supreme Court precedent, I part company with
them.
B.
Because the Ventura county access policies resemble
time, place, and manner restrictions, such access policies
4
The majority cannot rely on Leigh, because Leigh’s use of the word
rigorous was merely dicta. Leigh was not holding that Press-Enterprise
II’s test is anything less than strict scrutiny. See Leigh, 677 F.3d at 900.
Further, to the extent that Leigh dictates applying Press-Enterprise II’s
strict scrutiny test here, we should call this case en banc to determine
whether our circuit’s precedent follows Supreme Court precedent.
42 COURTHOUSE NEW SERVICE V. PLANET
should be reviewed under the time, place, and manner test as
the Supreme Court would do. Scrutinizing Ventura County’s
access policies as time, place, and manner regulations, the
Ventura County’s pre-2014 no-access-before-process policy
unconstitutionally deprived Courthouse News Service
(“CNS”) of its right to timely access newly filed complaints.
However, Ventura County’s original scanning policy
(closing the clerk’s office with the complaint-viewing
computer terminals at 3:00 PM) survives scrutiny.
1.
Applying the time, place, and manner test, Ventura
County’s pre-2014 no-access-before-process policy does not
reasonably regulate public access to civil complaints.
On one hand, the policy is content neutral. The
regulation does not “target speech based on its
communicative content,” Reed, 135 S. Ct. at 2226, or draw
distinctions “based on the message a speaker conveys,” id.
at 2227. The reasons Planet asserts for limiting access to
civil complaints until after processing are significant
governmental interests. Planet asserts an interest in the fair
and orderly administration of justice through maintaining
(1) privacy and confidentiality, (2) accounting protocols,
(3) quality control and accuracy, and (4) the integrity of
court records. These interests are sufficiently important to
justify some delay in access resulting from its policies. See
Press-Enterprise I, 464 U.S. at 511–12; Grove Fresh,
24 F.3d at 897–98; see also Seattle Times Co. v. Rhinehart,
467 U.S. 20, 34 n.20, 35 (1984) (acknowledging both “the
government’s substantial interest in protecting the integrity
of the discovery process” and the “privacy interests of
litigants and third parties” in civil litigation); cf. Sorrell v.
IMS Health Inc., 564 U.S. 552, 596 (2011) (affirming “the
importance of maintaining ‘privacy’ as an important public
COURTHOUSE NEW SERVICE V. PLANET 43
policy goal”); FTC v. Superior Court Trial Lawyers Ass’n,
493 U.S. 411, 430 (1990) (recognizing “administrative
efficiency interests” as compelling in the antitrust regulation
context).
However, Planet must also demonstrate that the access
policy actually advanced Ventura County’s important
governmental interests. See Ward, 491 U.S. at 799–800.
Here, Planet fails the analysis. He cannot explain how
“processing” the complaints before making them available
to the press furthered his stated reasons for the policy. In
other words, Planet offered no connection between the
means he chose and the ends he pursued. For example, the
policy did not advance the privacy interest: it was stipulated
that the complaints already did not contain private or
confidential information; rather, Kanatzar testified that
private information is instead listed in fee waiver
applications. And, as the district court noted, California Rule
of Court 1.201(b) requires the filer—not the court—to
exclude or redact private information from publicly filed
judicial documents.
Nor did the policy advance the asserted accounting
interest. Planet could point to no instances of accounting
issues that related to providing access before processing. Nor
did the policy further Ventura County’s interest in orderly
administration: Planet failed to cite a single example of a
situation in which providing pre-process access to a newly
filed complaint compromised the quality and accuracy of
information logged into the Court Case Management System
(“CCMS”). As for efficiency, Planet again could not point to
any situation in which providing pre-process access created
efficiency problems.
Finally, concerning the “integrity” of court records,
which appears to encompass properly handling litigants’
44 COURTHOUSE NEW SERVICE V. PLANET
documents by attaching the correct fees to filings and
removing private information, neither Planet nor Kanatzar
testified that providing reporters access to complaints before
processing resulted in loss, destruction, or mutilation of, or
otherwise compromised the “integrity” of case files. Indeed,
even the interest in proper court record keeping remains
unserved by the pre-access process; a staff supervisor
testified that there was “no way” she could confirm whether
complaints recorded as “located to the media bin” in CCMS
were physically “located to the media bin.”
Accordingly, the no-access-before-process policy
infringed upon CNS’s right of access by institutionalizing
delay that extended wait periods for a large portion of
complaints that stretched over days, even weeks. Because
the delays in access under the no-access-before-process
policy failed to further Ventura County’s important
governmental interests, the no-access-before-process policy
is not a reasonable regulation of the right of timely access to
newly filed complaints. 5
2.
Turning to Ventura County’s post-2014 scanning policy,
this policy is a reasonable, content-neutral time, place, and
manner restriction. 6 This policy requires court staff to scan
5
Because I find that Planet’s no-access-before-process policy was
not narrowly tailored, I do not analyze whether it left open ample
alternative channels for communication and information.
6
The concerning consequences of the district court’s conclusion that
the 2014 scanning policy violated the First Amendment illustrate why a
federal court reviewing a state court access policy must tread carefully.
In 2016, responding to the district court, Ventura County shortened the
COURTHOUSE NEW SERVICE V. PLANET 45
complaints into PDF-formatted documents prior to
processing the complaint. The scanned PDFs are then made
available to the public for 10 days through public computer
terminals, and paper copies are available for a per-page
charge.
As with the no-access-before-process policy, this policy
is facially content-neutral. The policy is also narrowly
tailored to serve a significant governmental interest. Planet
asserts the same significant interests with this policy as with
the no-access-before-process policy—the policy was
necessary for the fair and orderly administration of justice.
But, unlike the no-access-before-process policy, Planet
testified that this policy satisfied the administrative concerns
about privacy, accounting protocol issues, and quality
control. Thus, the policy advanced the substantial interest of
fair and orderly administration of justice, and that interest
would be achieved less effectively absent the regulation. See
Ward, 491 U.S. at 798–99.
Finally, the policy also left open ample alternative
channels for communication and information. The policy did
nothing to deny or unwarrantedly abridge the opportunities
for the communication of thought. The reporters were still
able to get the complaints in a timely enough manner to
report on newsworthy issues. These minor delays did
nothing to deter the “informed public discussion of ongoing
judicial proceedings.” Planet I, 750 F.3d at 787.
window for litigants—the primary stakeholders of the civil court
system—to file complaints.