Beruflich Dokumente
Kultur Dokumente
CORRINE BROWN
/
pursuant to common law, the First Amendment to the United States Constitution, Local Rule 1.09,
and the Courts Orders of April 18, 2017 [Dkt 110] and May 11, 2017 [Dkt. 132], move to
intervene in this action for the limited purpose of requesting the Court to unseal the transcript of
the closed hearing held on May 10, 2017 regarding the juror who was ultimately dismissed and to
clarify the Courts orders of April 18, 2017 and May 11, 2017.
1. On May 10, 2017, the Court held a closed hearing regarding a juror, and then later
2. On April 18, 2017, the Court entered its Order and Information Regarding Trial
(For Members of the Press and the Public) [Dkt. 110]. As is usual for any criminal trial, the April
18, 2017 Order reminded the press to abstain from any contact with jurors or potential jurors.
3. On May 11, 2017, the Court entered its Order Prohibiting Contact With Dismissed
Juror [Dkt. 132] which extended the April 18th Order to clarify that the press is to abstain from
contact with the dismissed juror. The May 11th Order will remain in effect until further Order
of the Court.
4. Although no one, including the media, is allowed to contact jurors while the trial is
pending, once the trial is over and the jurors are released, the media can approach the former jurors
to request interviews. However, given the Courts Order of May 11, 2017, FCN would like to
clarify that the prohibitions contained in the Courts Orders of April 18th and May 11th no longer
apply now that the trial is over and the jurors are released.
5. Counsel for FCN contacted counsel for the Defendant, who stated he supports the
instant motions. Counsel for FCN also emailed Tysen Duva of the United States Attorneys Office,
who responded that the government has no opposition to unsealing the transcript, but has no
position on FCNs request for clarification of the Courts Orders regarding approaching released
jurors.
WHEREFORE, First Coast News respectfully requests the Court grant its motion to
intervene for the limited purposes set forth above, unseal the transcript of May 10, 2017 regarding
the dismissed juror, and clarify that the Orders to abstain from contacting any jurors were dissolved
upon the conclusion of the trial, and any other relief the Court may deem just and proper.
MEMORANDUM OF LAW
Newsgathering is protected by the First Amendment. See United States v. Sherman, 581
F.2d 1358, 1361 (9th Cir. 1978) ("The Supreme Court has recognized that newsgathering is an
activity protected by the First Amendment."); CBS Inc. v. Young, 522 F.2d 234, 237-38 (6th Cir.
1975) (newsgathering "qualifies for First Amendment protections"); CBS Inc. v. Smith, 681 F.
Supp. 794, 803 (S.D. Fla. 1988) ("[s]imply put, newsgathering is a basic right protected by the
First Amendment").
The first amendments broad shield for freedom of speech and of the
press is not limited to the right to talk and print. The value of these
rights would be circumscribed were those who wish to disseminate
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information denied access to it, for freedom to speak is of little value
if there is nothing to say.
In re The Express-News Corp., 695 F.2d 807, 808 (5th Cir. 1982). Courts have recognized that the
"protected right to publish the news would be of little value in the absence of sources from which
to obtain it." CBS Inc. v. Young, 522 F.2d at 238. The United States Supreme Court has opined
that "[w]ithout some protection for seeking out the news, freedom of the press could be
Accordingly, intervention is proper when members of the news media seek access to
judicial records. See United States v. Ellis, 90 F.3d 447, 449 (11th Cir. 1996); Newman v.
Graddick, 696 F.2d 796, 800 (11th Cir. 1983); CBS, Inc. v. Young, 522 F.2d at 237-238.
II. Open Judicial Records Promote the Basic Fairness of, and Respect for, the Judicial
System.
The sealed transcript is a court record. Now that the trial is over, the necessity for
Essential to the rule of law is the public performance of the judicial function. The
public resolution of court cases and controversies affords accountability, fosters
public confidence, and provides notice of the legal consequences of behaviors and
choices.
Regan, Robert Timothy, Sealing Court Records and Proceedings: A Pocket Guide, Federal Judicial
and cases pending before the courts serves to inform the public on how the judicial system works,
promotes public confidence in the judicial system, and engenders respect for the judicial system.
Open court proceedings also enhance the basic fairness of the judicial process. See Press-
Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 508 (1984); United States
v. Guerrero, 693 F.3d 990, 1000 (9th Cir. 2012). The media's access to judicial records and
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reporting thereon informs the public with respect to judicial proceedings. Nebraska Press Assn
v. Stuart, 427 U.S. 539, 559-60 (1976); Nixon v. Warner Communications, Inc., 435 U.S. 589, 609
(1978).
v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13 (1986). Criminal acts, especially certain
violent crimes, provoke public concern, outrage, and hostility. When the public is aware that the
law is being enforced and the criminal justice system is functioning, an outlet is provided for these
understandable reactions and emotions. Press-Enterprise II, 478 U.S. at 13, quoting, Press-
Therefore, open courts and records contribute to the public understanding of the rule of
law and to comprehension of the functioning of the entire [judicial] system. Nebraska Press, 427
U.S. at 587 (Powell, J., concurring). In this regard, the media acts as the surrogate for the public.
Instead of acquiring information about trials by firsthand observation or by word of mouth from
those who attended, people now acquire it chiefly through the print and electronic media.
Open proceedings also protect litigants rights to fair and impartial adjudications of their
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Landmark Commcns, Inc. v. Virginia, 435 U.S. 829, 838-39 (1978).
III. First Coast News has a Common Law and First Amendment Right of Access to
Judicial Records Such as the sealed transcript.
The Media Intervenors have a qualified right of access to court proceedings and records,
deeply rooted in the common law and the First Amendment. Regan, Robert Timothy, Sealing
Court Records and Proceedings: A Pocket Guide, Federal Judicial Center (2010) at 1 (citing,
Nixon, 435 U.S. at 596-97 and Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 580).
The United States Supreme Court has emphasized that what transpires in the courtroom
is public property, Craig v. Harney, 331 U.S. 367, 374 (1947), and that the public has a strong
464 U.S. 501; Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Richmond
The United States Supreme Court has held that the common law and the First Amendment
provide a fundamental right to attend all portions of a criminal trial. See Press-Enterprise I, 464
U.S. 501 (1984) (holding that the guarantee of open criminal proceedings applies to jury selection);
Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 579 (holding that the right to attend criminal
trials is implicit in the guarantees of the First Amendment; without the freedom to attend such
trials, which people have exercised for centuries, important aspects of freedom of speech and of
On countless occasions, courts have been asked to entertain orders limiting information
that may be released to the public concerning judicial matters. But before a court enters such an
order, it must conduct an exacting inquiry into the circumstances. Courts must specifically identify
the factors that threaten the administration of justice or constitutional privacy interests and weigh
all reasonable alternatives to mitigate the perceived threats. Only then, after development of a full
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record on these issues (and allowing the media an opportunity to participate), may a court narrowly
fashion a remedy that accommodates the publics interest alongside that of the judicial system. See
Reagan, Robert Timothy, Sealing Court Records and Proceedings: A Pocket Guide, Federal
Judicial Center (2010). A party seeking closure of the judicial record must demonstrate compelling
reasons to justify the closure. United States v. Guerrero, 693 F.3d 990, 1002 (9th Cir. 2012). That
is, that the "closure is essential to preserve higher values and is narrowly tailored to serve that
Here, the closed hearing concerned a juror in a criminal trial, and under usual circumstances
jury selection and criminal trials are presumptively open. In this case, neither the Prosecution nor
Defense opposes the unsealing of the May 10, 2017 transcript. Additionally, to the extent the
sealing was necessary in order to protect the integrity of the criminal trial proceedings and jury
deliberations, those concerns are alleviated now that the trial is over and the jury has been released.
Courts have recognized that because newsgathering is protected by the First Amendment, an order
that impinges on the "journalistic right to gather news" must be "narrowly tailored to prevent a
substantial threat to the administration of justice." In re Express-News Corp., 695 F.2d 807, 810
(5th Cir. 1982); CBS, Inc. v. Smith, 681 F. Supp. 794, 796 (S.D. Fla. 1988). Unsealing the
transcript now that the trial is completed serves the interest of narrowly tailoring the closure order.
Additionally, the Courts Local Rules provide that materials should not be sealed forever. See
IV. First Coast News Should Be Able to Contact Former Jurors Just Like It Can Any
Other People
The April 18, 2017 Order [Dkt. 110] reminding the press to abstain from any contact with
jurors or potential jurors does not have a termination date. Similarly, the May 11th Order states
that it will remain in effect until further Order of the Court. However, the usual practice
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recognizes that once the jury is released, there is no general jurisdiction of the Court to enjoin the
press from approaching former jurors. Such prohibitions in orders governing trials are usually
interpreted as dissolving upon the completion of the trial. Indeed, prohibiting journalists from
approaching former jurors who have been released from jury service would violate both the press
right to gather the news as well as the rights of association of the press and the jurors.
Inasmuch as the trial has been completed, there is no compelling need that would outweigh
FCNs associational or newsgathering rights. In that vein, Defendant supports First Coast News
CONCLUSION
For the foregoing reasons, First Coast News requests that this Court enter an appropriate
order granting its motion to intervene for the limited purposes set forth herein, order that the
transcript of the closed hearing held May 10, 2017 regarding the dismissed juror be unsealed,
clarify that now that the trial is over and the jury has been released that the media may contact the
former jurors, and any other relief the Court deems just and proper.
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CERTIFICATE OF SERVICE
I hereby certify that on May 13, 2017, I emailed a true and correct copy of the foregoing
to the following attorneys of record, and will file the original over the counter when the Clerk of