Larry Flynt v. George Lombardi , 885 F.3d 508 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-1295
___________________________
Larry C. Flynt
lllllllllllllllllllllIntervenor - Appellant
Earl Ringo; John C. Middleton; Russell Bucklew; John E. Winfield; Dennis
Skillicorn; Leon Taylor; Roderick Nunley; Jeffrey R. Ferguson; Richard D. Clay;
Allen L. Nicklasson; Joseph Franklin; Martin Link; Mark Christeson; William L.
Rousan; David Barnett; Cecil Clayton; Michael Anthony Taylor; Herbert Smulls
lllllllllllllllllllll Plaintiffs
v.
George A. Lombardi; Terry Russell; John Doe
lllllllllllllllllllll Defendants - Appellees
___________________________
No. 16-2232
___________________________
Larry C. Flynt
lllllllllllllllllllllIntervenor - Appellant
Earl Ringo; John C. Middleton; Russell Bucklew; John E. Winfield; Dennis
Skillicorn; Leon Taylor; Roderick Nunley; Jeffrey R. Ferguson; Richard D. Clay;
Allen L. Nicklasson; Joseph Franklin; Martin Link; Mark Christeson; William L.
Rousan; David Barnett; Cecil Clayton; Michael Anthony Taylor; Herbert Smulls
lllllllllllllllllllll Plaintiffs
v.
George A. Lombardi; Terry Russell; John Doe
lllllllllllllllllllll Defendants - Appellees
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Appeals from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: January 9, 2018
Filed: March 13, 2018
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Before LOKEN, BEAM, and KELLY, Circuit Judges.
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BEAM, Circuit Judge.
Intervenor Larry Flynt appeals the district court's1 denial of his motion to
unseal certain judicial records regarding death row inmates' challenges to Missouri's
lethal injection protocol. We affirm.
I. BACKGROUND
The underlying litigation in this matter involves an omnibus Eighth
Amendment challenge to Missouri's execution protocol. Ringo v. Lombardi, 677
F.3d 793 (8th Cir. 2012). During the course of that litigation, state government
agencies filed documents under seal in order to be able to carry out executions. Flynt
1
The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.
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sought to intervene at some point during that litigation. In a 2015 per curiam opinion,
we reversed the district court's denial of Flynt's motion to intervene and held that
Federal Rule of Civil Procedure 24(b) was the proper procedural vehicle for Flynt to
utilize to intervene in the case. Flynt v. Lombardi, 782 F.3d 963, 967 (8th Cir. 2015)
(per curiam).
Upon remand, Flynt intervened and requested that the district court unseal
documents relating to Missouri's death penalty protocol litigation. Flynt sought
information from depositions taken during the case and other documents specifically
relating to the professional qualifications of two medical members of the execution
team, M3 and M2. The district court denied the motion, finding that Flynt was not
entitled to the documents he sought under the First Amendment, in part because our
circuit has not yet recognized a First Amendment right of access in civil cases. The
district court also found that Flynt would not have met the First Amendment test
because the analysis was not meaningfully different from the common-law test, which
Flynt did not meet either. With regard to the First Amendment test, the district court
found that access can be denied if there is a compelling governmental interest, and
if the denial is narrowly tailored to serve that interest. The protection of privacy
rights was an example cited by the district court that would justify a denial of First
Amendment access to otherwise public information. Likewise, the common-law
test–essentially a balancing test between the competing request for access and the
reasons for sealing–resulted in favor of the State's interest in keeping the information
sealed based on a similar analysis.
In orders entered in November and December of 2015, just prior to ruling on
the original motion to unseal, the district court directed the State to file supplemental
briefing on whether redaction would satisfy both the State's interests in keeping the
sensitive information private and Flynt's interest in access to the documents. See IDT
Corp. v. eBay, 709 F.3d 1220, 1224-25 (8th Cir. 2013) (remanding to the district
court for a determination of whether redaction of confidential business information
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was practicable so that a part of the pleadings could be unsealed). The State received
permission to file that briefing under seal for in camera review, and thus did not
provide that supplemental briefing to Flynt's counsel. The State also filed an
unsealed, redacted version. The district court relied upon this sealed supplemental
briefing in ruling that redaction would not be an effective way of allowing the
documents to become public, finding that the depositions and the licensure
information could not be redacted in a way that would disclose the information Flynt
sought without also revealing M3's identity.
Several months later, apparently while preparing his appellate brief for the First
Amendment/common-law case, Flynt discovered that the State had filed the
supplemental brief under seal for in camera review2 by the district court and that
consequently, his counsel did not and could not review it. Flynt moved to review this
supplemental briefing. The district court denied this motion as untimely and
alternatively, on the merits. Flynt appeals both the original ruling regarding the
sealing of the discovery and licensing documents, and the second order dealing with
the sealed supplemental briefing.
II. DISCUSSION
We review de novo the district court's legal conclusions about the common law
and First Amendment right of access to judicial records. United States v. McDougal,
103 F.3d 651, 659 (8th Cir. 1996). A court has supervisory control over its records,
however, and we review the district court's ultimate decision to seal or unseal for an
2
As the district court noted in a May 11, 2016 order, in camera review is
generally known as indicating that "something is being reviewed privately by the
judge. E.g., Black's Law Dictionary 828 (9th ed. 2009) (definition of "in camera
inspection.")."
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abuse of discretion. Webster Groves Sch. Dist. v. Pulitzer Publ'g Co., 898 F.2d 1371,
1376 (8th Cir. 1990).
A. Common Law
Generally speaking, there is a common-law right of access to judicial records,
but that right is not absolute. Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597-98
(1978); IDT, 709 F.3d at 1222. The primary rationales for this right are the public's
confidence in, and the accountability of, the judiciary. IDT, 709 F.3d at 1222.
Whether the common-law presumption can be overcome is determined by balancing
"the interests served by the common-law right of access . . . against the salutary
interests served by maintaining confidentiality of the information sought to be
sealed." Id. at 1223. In order to adjudicate the issue, a court must first decide if the
documents in question are "judicial records," and if so, must next consider whether
the party seeking to prevent disclosure has overcome the common-law right of access
that would otherwise apply to such records. Id. at 1222-23. The presumption of
public access to judicial records may be overcome if the party seeking to keep the
records under seal provides compelling reasons for doing so. In re Neal, 461 F.3d
1048, 1053 (8th Cir. 2006).
The district court agreed with Flynt that the documents in question were
"judicial records," but found that the State had overcome the public's common-law
right of access to such records. The personal and professional safety of one or more
members of the execution team, as well as the interest of the State in carrying out its
executions, were sufficiently in jeopardy to overcome the common-law right of public
access to the records. The State presented evidence from other jurisdictions wherein
compounding pharmacists, once identities were revealed, were harassed and
threatened. Indeed, the State introduced evidence of public statements made by
groups seeking to exert "publicity and coercion" on those involved in helping states
perform executions.
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Flynt's stated rationale for asking for public access to the information was to
discover whether M3 was indeed board certified and properly licensed. The district
court found that revealing this licensure information to the public would
professionally harm and interfere with the privacy rights of M3 and M2, and likely
would thwart the State's administration of the death penalty. The district court did not
abuse its discretion in finding that the balance of interests here lies in favor of both
the execution team members' rights to privacy, and the State's right to carry out its
executions. Cf. IDT, 709 F.3d at 1224 (denying public interest group's motion to
unseal a civil antitrust complaint involving patented technologies because the
possible harm in unsealing outweighed the public interest group's generalized interest
in the complaint); Webster Groves, 898 F.2d at 1377 (holding that news
organization's interest in unsealing the district court's file in a case between a public
school district and a fourteen-year-old disabled student was clearly "outweighed by
[the student's] privacy interest and the state's interest in protecting minors").
Contrary to Flynt's arguments on appeal, the district court did not misapply this
test by describing Flynt's stated purpose for seeking the information, as opposed to
the general public's right of access. While the district court indicated Flynt was the
party seeking the information, the balancing test it performed considered the public's
right to access versus the State's right to keep the information private. The district
court did not abuse its discretion in finding that Flynt's request, on behalf of the
public, would ultimately lead to uncovering the identity of the medical execution
team members and result in harm to the individuals and the State. Accordingly, based
upon the balancing test set forth in Nixon and applied in IDT and Webster Groves,
the district court did not abuse its discretion in deciding that the documents should
remain sealed.
The district court also determined, consistent with our IDT opinion, whether
the documents in question could be unsealed but redacted to keep the sensitive
identifying information confidential. 709 F.3d at 1224-25. After conducting an in
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camera review, the district court determined that redaction would not be possible,
because there was no way to redact M3 and M2's depositions or licensing information
in a way that would preserve M3 and M2's identities. This determination was not an
abuse of the district court's discretion.
B. First Amendment
Flynt also argued for public access to the judicial records in question based
upon the First Amendment. In IDT, we rejected the plaintiff's arguments for a right
of access based on the First Amendment, noting, "[t]his circuit has not decided
whether there is a First Amendment right of public access to the court file in civil
proceedings." Id. at 1224 n.*. However we noted in IDT that to the extent there was
a First Amendment right of access, it would depend upon two prerequisites: "(1) a
historical tradition of accessibility, and (2) a significant positive role for public access
in the functioning of the judicial process in question." Id; See Press-Enterprise Co.
v. Superior Court of Cal., Cnty. of Riverside, 478 U.S. 1, 9-10 (1986) (setting forth
what is now commonly referred to as the "experience and logic" test for First
Amendment access to judicial records).
Flynt cannot meet the First Amendment test in this case, as evidenced by our
en banc holding in Zink v. Lombardi, 783 F.3d 1089 (8th Cir. 2015) (en banc) (per
curiam). In Zink, the prisoners sought information from the State regarding the
suppliers of compounded drugs to be used in Missouri executions. The prisoners
argued that concealing information about the suppliers violated their right of access
to records associated with governmental execution proceedings and constituted an
impermissible content-based restriction on access to information. The prisoners
asserted a right to the information based upon the First Amendment and the Press-
Enterprise test. We noted that the public enjoys a qualified right of access to certain
criminal proceedings, preliminary hearings, criminal trials, voir dire, and search
warrant applications. Id. at 1112. However, we noted "we have not ruled that an
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execution constitutes the kind of criminal proceeding to which the public enjoys a
qualified right of access under the First Amendment." Id. Nonetheless, we then
"[a]ssum[ed] for the sake of analysis," that the Press-Enterprise analysis applied to
executions, and found that information about the identities of drug suppliers had no
tradition of accessibility. Id. at 1113. We further noted that we had "reserved
judgment about whether even an execution itself must be made public." Id. at 1112.
Because "the prisoners ha[d] not alleged facts or cited authority establishing that the
particulars of execution methods have 'historically been open to the press and general
public,'" they could not prevail under the Press-Enterprise test. Id. (quoting Press-
Enterprise, 478 U.S. at 8).
With regard to the second prong of Press-Enterprise, we found that the
complaint did not plausibly allege that "public access to detailed information about
execution protocols plays a significant positive role in the functioning of the process
in question, given that the practical effect of public disclosure would likely be
frustration of the State's ability to carry out lawful sentences." Id. at 1113. Cf. In re
Mo. Dep't of Corrs., 839 F.3d 732, 736-37 (8th Cir. 2016) (holding that disclosure of
"M7"–the lethal injection drug supplier–would unduly burden the State of Missouri's
ability to carry out its lawful executions); In re Lombardi, 741 F.3d 888, 896-97 (8th
Cir. 2014) (en banc) (granting a writ of mandamus to prevent a district court from
disclosing the identity of a Missouri execution team member because disclosing the
identity would "prevent the State from acquiring lethal chemicals necessary to carry
out the death penalty"). Thus, in several related litigations involving the Missouri
execution protocol, we have found that any actions leading to the disclosure of
members of the execution team would compromise the State's ability to carry out its
lawful sentences. Similarly, public access to the documents in the instant case would
not play a significant positive role in the function of Missouri's execution protocol;
it would effectively eviscerate the State's ability to carry out executions by
jeopardizing its ability to have medical professionals on the execution team. Because
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Flynt cannot meet either prong of the Press-Enterprise test, he has not established a
First Amendment right to unseal the information that he seeks.
C. In Camera Review
Flynt's final contention is that the district court erred in denying his motion to
review the State's in camera supplemental briefing. In accordance with our IDT
opinion, in November 2015, the district court directed the State to submit
supplemental briefing to explain "how the continued sealing of [certain] already-
redacted documents is narrowly tailored to promote [the State's] legitimate interests,
and (relatedly) how unsealing them will cause the harms [the State] suggest[s]
justifies keeping them sealed." In response, the State asked for permission to file a
redacted response in the public file, and a full non-redacted explanation to the court
for in camera review. The district court granted permission for the State to submit
its full explanation for the court to review in camera. In April 2016, Flynt apparently
discovered that the State had filed the supplemental brief under seal with the district
court and that counsel had not been permitted to view the supplemental brief. Flynt
moved to review this supplemental briefing. The district court denied this motion as
untimely, noting that it ruled in December 2015 that the document would be filed
under seal for in camera review and that any objection to that order should have been
filed sooner than four months after the ruling. Alternatively, the court found that in
camera review was, in any event, the appropriate vehicle for the court to view the
supplemental briefing, as any other method would have exposed identifying
information about the identity of M3 and M2.
We review this decision for an abuse of discretion, Nixon, 435 U.S. at 599, and
find none. First, we agree with the district court that Flynt did not object in a timely
manner, which could have given the district court the opportunity to consider an
alternative way of handling the matter. Second, we agree that in camera review was
the best way to accomplish the district court's mandate to consider whether redaction
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was possibly a less restrictive means (than sealing in the entirety) of protecting the
information. At the bottom line, this dispute is about the identity of medical members
of the execution team. Flynt's stated rationale for wanting this information–to check
the professional credentials of these members–is in direct and perilous conflict with
the State's superior rationale of protecting the identity of these parties. The district
court thus did not abuse its discretion in electing to review the supplemental briefing
in camera, and denying Flynt's subsequent request to review it.
III. CONCLUSION
Accordingly, we affirm the district court.
KELLY, Circuit Judge, concurring.
Given the en banc opinion in Zink, 783 F.3d at 1111–13, I concur in the court’s
opinion.3 As the court notes, quoting Zink, “we have not ruled that an execution
constitutes the kind of criminal proceeding to which the public enjoys a qualified
right of access under the First Amendment.” But in that case, we proceeded to
3
I also concur in the court’s determination that the procedure the district court
followed for assessing the possibility of redaction was permissible, but I question
whether Flynt “did not object in a timely manner.” According to the district court,
the defendants “ask[ed] for permission to either (1) participate in an ex parte and in
camera hearing or (2) file a redacted explanation in the public file, and provide a non-
redacted explanation to the [c]ourt for in camera review.” The district court “opt[ed]
for the latter course” and ordered the filing of supplemental briefing. Given the two
options presented, it is not clear that the district court’s order allowing the filing of
a supplemental brief for “in camera review” put Flynt on notice that he—as opposed
to the general public—would not have access to the filing. Nevertheless, I see no
prejudice to Flynt as a result of any failure of notice, and therefore concur in
affirming the district court’s denial of Flynt’s request to review the supplemental
briefing.
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assume for the sake of analysis that Press-Enterprise applied to executions, and
concluded the prisoners in that case failed “to state a claim for a qualified right of
public access.” 783 F.3d at 1112.
Under Press-Enterprise, a right of public access attaches if (1) “the place and
process have historically been open to the press and general public,” and (2) “public
access plays a significant positive role in the functioning of the particular process in
question.” 478 U.S. at 8–9. In Zink, the court reasoned—under the first prong of the
Press-Enterprise test—that there is no “qualified right of public access to information
regarding the source of the compounded pentobarbital” because there was no “history
of openness to the general public.” 783 F.3d at 1112–13 (“[T]he prisoners have not
alleged facts or cited authority establishing that the particulars of execution methods
have historically been open to the press and general public.” (quotation omitted)).
But there is authority that executions have, historically, been carried out in the public
eye and their methods and means have been discussed in the public sphere. See John
D. Bessler, Televised Executions and the Constitution: Recognizing a First
Amendment Right of Access to State Executions, 45 Fed. Com. L.J. 355, 359–360
(1993); cf. Cal. First Amend. Coal. v. Woodford, 299 F.3d 868, 875–76 (9th Cir.
2002) (“When executions were moved out of the public fora and into prisons, the
states implemented procedures that ensured executions would remain open to some
public scrutiny. . . . Thus, there is a tradition of at least limited public access to
executions.”). Were this issue before the court in the first instance, I believe there
would be support for the conclusion that the historical prong of the Press-Enterprise
test is satisfied in this context.
Turning to the second Press-Enterprise prong, in Zink, the court noted that the
complaint did not allege that “public access to detailed information about execution
protocols plays a significant positive role in the functioning of the process in
question, given that the practical effect of public disclosure would likely be
frustration of the State’s ability to carry out lawful sentences.” 783 F.3d at 1113. The
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court here similarly states, “public access to the documents in the instant case would
not play a significant positive role in the function of Missouri’s execution protocol;
it would effectively eviscerate the State’s ability to carry out executions by
jeopardizing its ability to have medical professionals on the execution team.” And,
indeed, Press-Enterprise did recognize that “there are some kinds of government
operations that would be totally frustrated if conducted openly,” such as grand jury
proceedings, the secrecy of which are vital to the criminal justice system itself. 478
U.S. at 9. But, in my view, the methods and means of carrying out of a criminal
sentence—a sentence already made public through a trial accessible to the public—do
not fall in that category. In Press-Enterprise the Court held that public access to a
pre-trial preliminary hearing in a criminal case played a “significant positive role,”
reasoning that: “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.” Id. at 13 (quotation omitted). “Openness
. . . enhances both the basic fairness of the criminal trial and the appearance of
fairness so essential to public confidence in the system.” Id. (quotation omitted). It
is difficult to envision an aspect of the criminal justice system where the benefits of
public engagement, public awareness, and public confidence are more clear than
where the state is attempting to enforce the ultimate penalty of death.4
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4
If a qualified First Amendment right were to extend to the procedures involved
in enforcing a death sentence, it would still be necessary to determine, in this case,
whether the sealing of the documents at issue is nonetheless “essential to preserve
higher values and is narrowly tailored to serve that interest.” Id. at 9–10, 13–14.
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