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Friday, February 24, 2012

First Amendment Access to "Horse Gathers"?

In Leigh v. Salazar, decided last week, a Ninth Circuit panel reversed and remanded for reconsideration a trial court's denial of a preliminary injunction to a photojournalist seeking unrestricted access to a "horse gather" of wild horses by the Bureau of Land Management. Roundups of wild horses by the BLM are statutorily authorized when necessary to remedy overpopulation. During one of these roundups, the BLM allowed daily public viewings, but restricted the public and a photojournalist for Horseback Magazine to "designated viewing areas" and required them to "sit down and remain quiet during parts of the gather." The journalist challenged the access restrictions. The Ninth Circuit held that the access claims were not moot because the restrictions "could apply to future horse gathers . . . and to [the journalist's] request for unrestricted access to horses in holding facilities" after the gather. Notably, the court interpreted the Supreme Court's courtroom access cases, particularly Press-Enterprise Co. v. Superior Court (Press-Enterprise II), as setting the framework for analyzing whether the press and public had a First Amendment qualified right of access to the horse gathers. This is notable because the court might justifiably have applied the far less generous access precedent of Hourchins v. KQED, which dealt with access to prisons and indicated that the First Amendment does not "mandate[ ] a right of access to government information or sources of information within the government's control." (See, e.g., Flynt v. Rumsfeld, in which the D.C. Circuit refused to apply the courtroom access precedent "outside the context of criminal proceedings").

That said, application of the Press-Enterprise II framework does not guarantee the press and public will receive unrestricted access to the horse gathers or any other government activities. As described by the Ninth Circuit, the Press-Enterprise II framework requires courts to examine whether there is a historical tradition of public access to the particular government activity at issue and whether "public access plays a positive role in the functioning" of the government activity. If these two tests are met, the government may still "overcome" the right of access "by demonstrating an overriding interest" and establishing that its restrictions "are narrowly tailored to serve those interests." Even though the Ninth Circuit's holding does not grant access, it at least evinces a willingness to examine the question closely and perhaps tip the balance in favor of transparency. [The Reporters Committee for Freedom of the Press and the National Press Photographers Association wrote amicus briefs in the case.]

Posted by Lyrissa Lidsky on February 24, 2012 at 10:41 AM in First Amendment, Lyrissa Lidsky | Permalink


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