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No. 13-16473 United States Court of Appeals for the Ninth Circuit

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No. 13-16473 United States Court of Appeals for the Ninth Circuit Case: 13-16473 09/13/2013 ID: 8781548 DktEntry: 12-1 Page: 1 of 42 (1 of 55) No. 13-16473 United States Court of Appeals for the Ninth Circuit LAURA LEIGH, Plaintiff-Appellant, v. SALLY JEWELL, ET AL., Defendants-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA AMICI CURIAE BRIEF OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, THE NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION AND 13 OTHER NEWS MEDIA ORGANIZATIONS IN SUPPORT OF PLAINTIFF- APPELLANT URGING REVERSAL JEAN-PAUL JASSY (SBN 205513) KEVIN L. VICK (SBN 220738) BOSTWICK & JASSY LLP 12400 Wilshire Blvd., Suite 400 Los Angeles, CA 90025 Tel: (310) 979-6059 Fax: (310) 314-8401 [email protected] [email protected] Counsel for Amici Curiae The Reporters Committee for Freedom of the Press, The National Press Photographers Association and 13 Other News Media Organizations *Additional Counsel Listed Inside Front Cover Case: 13-16473 09/13/2013 ID: 8781548 DktEntry: 12-1 Page: 2 of 42 (2 of 55) Bruce D. Brown Charles D. Tobin Gregg P. Leslie Holland & Knight LLP 1101 Wilson Blvd., Suite 1100 800 17th Street, NW Arlington, VA 22209 Suite 1100 Counsel, The Reporters Committee Washington, DC 20006 for Freedom of the Press Counsel for The National Press Club Mickey H. Osterreicher Denise Leary 1100 M&T Plaza Ashley Messenger 3 Fountain Center National Public Radio, Inc. Buffalo, New York 14203 1111 North Capitol St. NE General Counsel for The National Washington, D.C. 20002 Press Photographers Association Barbara W. Wall Kevin M. Goldberg Vice President/Senior Fletcher, Heald & Hildreth, PLC Associate General Counsel 1300 N. 17th St., 11th Floor Gannett Co., Inc. Arlington, VA 22209 7950 Jones Branch Drive Counsel for American Society of McLean, VA 22107 News Editors Counsel for Reno Gazette-Journal Jonathan Bloom Bruce E. H. Johnson Weil, Gotshal & Manges LLP Davis Wright Tremaine LLP 767 Fifth Avenue 1201 Third Ave., Suite 2200 New York, NY 10153 Seattle, WA 98101 Counsel for The Association of Counsel for The Seattle Times Co. American Publishers, Inc. Mark Hinueber Peter Scheer Vice President/General Counsel & First Amendment Coalition Director of Human Resources 534 Fourth St., Suite B Stephens Media LLC San Rafael, CA 94901 P.O. Box 70 Karlene Goller Las Vegas, NV 89125 Los Angeles Times Bruce W. Sanford 202 West First Street Laurie A. Babinski Los Angeles, CA 90012 Baker & Hostetler LLP 1050 Connecticut Ave., NW Frank D. LoMonte Suite 1100 Student Press Law Center Washington, DC 20036 1101 Wilson Blvd., Suite 1100 Counsel for Society of Arlington, VA 22209 Professional Journalists Case: 13-16473 09/13/2013 ID: 8781548 DktEntry: 12-1 Page: 3 of 42 (3 of 55) CORPORATE DISCLOSURE STATEMENT Pursuant to the Federal Rules of Appellate Procedure, Rules 26.1 and 29(c)(1), amici state the following: The Reporters Committee for Freedom of the Press is an unincorporated association of reporters and editors with no parent corporation and no stock. The National Press Photographers Association does not have a parent company and does not own any stock in a party or in the Reporters Committee. American Society of News Editors is a private, non-stock corporation that has no parent. The Association of American Publishers, Inc. is a nonprofit organization that has no parent and issues no stock. Battle Born Media LLC is a privately owned company with no affiliates or subsidiaries that are publicly owned. First Amendment Coalition is a nonprofit organization with no parent company. It issues no stock and does not own any of amici’s stock. The National Press Club is a not-for-profit corporation that has no parent company and issues no stock. Case: 13-16473 09/13/2013 ID: 8781548 DktEntry: 12-1 Page: 4 of 42 (4 of 55) National Public Radio, Inc. is a privately supported, not-for-profit membership organization that has no parent company and issues no stock. The Nevada Press Association is a non-profit organization. The Reno Gazette-Journal is published by Reno Newspapers, Inc., a wholly-owned subsidiary of Multimedia, Inc., which is owned by Gannett Co., Inc., a publicly traded company. The Seattle Times Company: The McClatchy Company owns 49.5% of the voting common stock and 70.6% of the nonvoting common stock of The Seattle Times Company. Stephens Media LLC is a privately owned company with no affiliates or subsidiaries that are publicly owned. Student Press Law Center is a 501(c)(3) not-for-profit corporation that has no parent and issues no stock. Society of Professional Journalists is a non-stock corporation with no parent company. Case: 13-16473 09/13/2013 ID: 8781548 DktEntry: 12-1 Page: 5 of 42 (5 of 55) TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................ i IDENTITY OF AMICI AND INTEREST IN THE CASE ................................. iv SOURCE OF AUTHORITY TO FILE (PARTIES’ CONSENT) ...................... ix FED. R. APP. P. 29(c)(5) STATEMENT ........................................................... ix SUMMARY OF ARGUMENT ........................................................................... 1 ARGUMENT ....................................................................................................... 2 I. THE PRESS AND PUBLIC HAVE A RIGHT OF MEANINGFUL ACCESS TO HORSE GATHERS ON BLM LANDS ......................................................................................................... 2 A. The District Court Correctly Held That The Press And Public Have A Right Of Access To Horse Roundups On BLM Lands ................................................................................ 2 B. The Right Of Access To Horse Gathers Must Be Meaningful ....................................................................................... 4 1. The Right Of Access Is Analogous To Recording Police Activity In Public Places ........................ 5 2. The Right To Meaningful Access To BLM Activities During Horse Roundups Is Analogous To The Right Of Access To Courtroom Proceedings ...................................................... 7 3. The Visual Medium Plays An Important Role In Press Coverage Of Horse Roundups On BLM Lands ......................................................................... 8 II. GENERALIZED SAFETY CONCERNS ARE INSUFFICIENT GROUNDS TO DENY MEANINGFUL ACCESS TO OBSERVE AND REPORT ON HORSE GATHERS .................................................................................................. 15 A. The Government Argued That Purported Safety Concerns Warranted Limiting Access To The Horse Roundups ........................................................................................ 16 B. Generalized Concerns For Press Safety Are Not Legitimate Grounds For Denying Meaningful Access .................. 18 Case: 13-16473 09/13/2013 ID: 8781548 DktEntry: 12-1 Page: 6 of 42 (6 of 55) 1. The Press Routinely Reports From Arenas More Dangerous Than Horse Gathers .............................. 18 2. Many Jurisdictions Recognize The Special Role The Press Plays In Reporting From Dangerous Situations ........................................................ 22 III. CONCLUSION..................................................................................... 26 CERTIFICATE OF COMPLIANCE Case: 13-16473 09/13/2013 ID: 8781548 DktEntry: 12-1 Page: 7 of 42 (7 of 55) TABLE OF AUTHORITIES Cases Boley v. Atl. Monthly Grp., 2013 WL 3185154,* 1 (D.D.C. June 25, 2013) ........................................ 19 Branzburg v. Hayes, 408 U.S. 665 (1972)............................................................................... 2, 23 Cable News Network v. American Broadcasting Cos., 518 F. Supp. 1238 (N.D. Ga. 1981) ............................................................. 9 California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002) ..................................................................... 24 Channel 10, Inc. v. Gunnarson, 337 F.Supp. 634 (D. Minn. 1972).............................................................. 24 Connell v. Town of Hudson, 733 F.Supp. 465 (D.N.H. 1990) ................................................................ 24 Daily Herald Co. v. Munro, 838 F.2d 380 (9th Cir. 1988) ....................................................................... 2 First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978)..................................................................................... 2 Flynt v. Rumsfeld, 355 F.3d 697 (2d Cir. 2004) ...................................................................... 25 Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992)................................................................................... 16 Garcia v. Montgomery County, Maryland, No. 8:12-cv-03592 (D. Md. Mar. 4, 2013) .................................................. 7 Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) .......................................................................... 5 Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)..................................................................................... 7 Hague v. C.I.O., 307 U.S. 496 (1939)................................................................................... 25 Heffron v. Int’l Society for Krishna Consc., Inc., 452 U.S. 640 (1981)................................................................................... 16 i Case: 13-16473 09/13/2013 ID: 8781548 DktEntry: 12-1 Page: 8 of 42 (8 of 55) Housing Works, Inc. v. Safir, 101 F.Supp.2d 163 (S.D.N.Y. 2000) ........................................................
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