Aclu Foundation v. Usdoj

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 22 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES DEPARTMENT OF No. 19-15472 JUSTICE; FACEBOOK, INC., D.C. No. Respondents-Appellees, 1:18-mc-00057-LJO-EPG

v. MEMORANDUM* AMERICAN CIVIL LIBERTIES UNION FOUNDATION; et al.,

Movants-Appellants,

and

WP COMPANY LLC, DBA The Washington Post,

Movant.

UNITED STATES DEPARTMENT OF No. 19-15473 JUSTICE; FACEBOOK, INC., D.C. No. Respondents-Appellees, 1:18-mc-00057-LJO-EPG

v.

WP COMPANY LLC, DBA The Washington Post,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Movant-Appellant,

and

AMERICAN CIVIL LIBERTIES UNION FOUNDATION; et al.,

Movants.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O'Neill, District Judge, Presiding

Argued and Submitted April 28, 2020 Seattle, Washington

Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.

The American Civil Liberties Union, the Electronic Frontier Foundation, and

the Washington Post appeal from the district court’s denial of motions to unseal

various contempt proceeding documents related to a technical assistance wiretap

order under 18 U.S.C. § 2518(4). We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

We review de novo whether a right of access to certain records or

proceedings exists under the First Amendment or the common law. United States

v. Carpenter, 923 F.3d 1172, 1178 (9th Cir. 2019). To determine whether a First

Amendment right of access attaches to particular proceedings or records, we

consider (1) “whether the place and process have historically been open to the

press and general public,” and (2) “whether public access plays a significant

2 positive role in the functioning of the particular process in question.” Press-

Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986). Because the materials at

issue here do not pass this “experience and logic” test, a qualified First

Amendment right of access does not exist. The documents have not historically

been open to the general public during an investigation. And, because of the

ongoing nature of the investigation, the benefits of open proceedings are “more

than outweighed by the damage to the criminal investigatory process.” See Times

Mirror Co. v. United States, 873 F.2d 1210, 1215 (9th Cir. 1989).

We decline to consider whether there is a separate common law right of

access to the documents because any presumption in favor of access would be

outweighed by a compelling government interest in maintaining secrecy in an

ongoing investigation. See United States v. Index Newspapers LLC, 766 F.3d 1072,

1090 (9th Cir. 2014) (refusing to consider “whether there is a common law right of

access to the transcripts of the closed portion of the contempt hearing because,

even if there is such a right, the government’s interest in grand jury secrecy is a

sufficiently important countervailing interest that overcomes any common law

presumption in favor of access”) (internal citations, quotation marks, and

alterations omitted).

AFFIRMED.