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Prison Legal News v EOUSA, US, Reply Brief - newspapers, FOIA public records, 2011

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No. 10-1510
IN THE

Supreme Court of the United States
————
PRISON LEGAL NEWS,
Petitioner,
v.

EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS,
Respondent.
————
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Tenth Circuit
————
BRIEF OF ALLIED DAILY NEWSPAPERS OF
WASHINGTON, INC., THE ASSOCIATED
PRESS, PIONEER NEWSPAPERS, INC.,
THE SOCIETY OF PROFESSIONAL
JOURNALISTS, THE WASHINGTON
NEWSPAPER PUBLISHERS ASSOCIATION,
THE WASHINGTON STATE ASSOCIATION
OF BROADCASTERS, AND WESTWORD AS
AMICI CURIAE IN SUPPORT OF PETITIONER
————
LISA S. BLATT
Counsel of Record
DIRK C. PHILLIPS
KRISTIN M. HICKS
ARNOLD & PORTER LLP
555 12th Street, N.W.
Washington, DC 20004
(202) 942-5000
Lisa.Blatt@aporter.com
July 14, 2011

Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – W ASHINGTON, D. C. 20002

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................

ii

INTEREST OF AMICI CURIAE ........................

1

INTRODUCTION AND SUMMARY OF
ARGUMENT ....................................................

3

ARGUMENT ........................................................

5

THE DECISION BELOW MISCONSTRUES
THE FREEDOM OF INFORMATION ACT
IN A MANNER THAT LIMITS NEWS
ORGANIZATIONS’ ABILITY TO INFORM
THE PUBLIC OF IMPORTANT GOVERNMENT CONDUCT ...........................................

5

A. The Tenth Circuit’s Cramped Interpretation Of Exemption 7(C) And The
Public-Domain Doctrine Is Inconsistent
With Constitutional And Common-Law
Principles Protecting Public Access To
Court Documents ........................................

6

B. Audiovisual Materials Are Unique In
Their Ability To Convey Information
That Cannot Be Captured In Written
Descriptions Alone ......................................

14

C. The Decision Below Is Harmful To
Modern Media Companies .........................

17

CONCLUSION ....................................................

22

(i)

ii
TABLE OF AUTHORITIES
CASES

Page

Afshar v. Dep’t of State,
702 F.2d 1125 (D.C. Cir. 1983) .................

4

Applications of Nat’l Broad. Co.,
828 F.2d 340 (6th Cir. 1987).....................

8

Associated Press v. U.S. Dist. Court for
Cent. Dist. of Cal.,
705 F.2d 1143 (9th Cir. 1983)...................

8

Brown v. Plata,
131 S. Ct. 1910 (2011) ...............................

15

Cottone v. Reno,
193 F.3d 550 (D.C. Cir. 1999) ................ 4, 10, 20
Cox Broad. Corp. v. Cohn,
420 U.S. 469 (1975) .................................. passim
Craig v. Harney,
331 U.S. 367 (1947) ................................... 3, 12
Globe Newspaper Co. v. Pokaski,
868 F.2d 497 (1st Cir. 1989) .....................

8

Globe Newspaper Co. v. Superior Court,
457 U.S. 596 (1982) ...................................

6

In re Application of Nat’l Broad. Co., Inc.,
635 F.2d 945 (2d Cir. 1980) ......................

7

In re Application of Nat’l Broad. Co., Inc.,
653 F.2d 609 (D.C. Cir. 1981) ................... 7, 20
In re Cont’l Ill. Sec. Litig.,
732 F.2d 1302 (7th Cir. 1984)...................

6, 8

In re Providence Journal Co.,
293 F.3d 1 (1st Cir. 2002) .........................

7

iii
TABLE OF AUTHORITIES—Continued
Page
In re Search Warrant for Secretarial Area
Outside Office of Gunn,
855 F.2d 569 (8th Cir. 1988).....................

8

In re Washington Post Co.,
807 F.2d 383 (4th Cir. 1986).....................

8

Inner City Press/Cmty. on the Move v. Bd.
of Governors of the Fed. Reserve Sys.,
463 F.3d 239 (2d Cir. 2006) ......................

4

Matter of New York Times Co.,
828 F.2d 110 (2d Cir. 1987) ......................

8

Nixon v. Warner Commc’ns, Inc.,
435 U.S. 589 (1977) ...................................

6

NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214 (1978) ...................................

18

Press-Enterprise Co. v. Superior Court,
464 U.S. 501 (1984) ...................................

6

Regan v. Time, Inc.,
468 U.S. 641 (1984) ...................................

15

Renegotiation Bd. v. Bannercraft Clothing
Co., Inc.,
415 U.S. 1 (1974) .......................................

18

Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980) .......................... 7, 13, 18, 20
Robles v. EPA,
484 F.2d 843 (4th Cir. 1973).....................

11

Scott v. Harris,
550 U.S. 372 (2007) ...................................

14

State v. WBAL-TV,
975 A.2d 909 (Md. Ct. Spec. App. 2009)...

16

iv
TABLE OF AUTHORITIES—Continued
Page
U.S. Dep’t of Defense v. FLRA,
510 U.S. 487 (1994) ...................................

11

U.S. Dep’t of Justice v. Reporters Comm.
for Freedom of the Press,
489 U.S. 749 (1989) ...................................

11

United States v. Criden,
648 F.2d 814 (3d Cir. 1981) ......................

7

United States v. Martin,
746 F.2d 964 (3d Cir. 1984) ......................

7

United States v. Smith,
776 F.2d 1104 (3d Cir. 1985) ....................

8

Washington Post v. Robinson,
935 F.2d 282 (D.C. Cir. 1991) ...................

8

STATUTES AND RULES
5 U.S.C. § 552(b)(7)(C)................................. passim
D.C. Colo. L. Cr. R. 47.1(A) ..........................

9

D.C. Colo. L. Cr. R. 47.1(C) ..........................

8

D.C. Colo. L. Cr. R. 47.1(E) ..........................

9

D.C. Colo. L. Cr. R. 47.1(H) ..........................

9

Fed. R. Crim. P. 53 .......................................

16

OTHER MATERIALS
H.R. Rep. No. 89-1497 (1966).......................
John C. Besley & M. Chris Roberts, Cuts
in Newspaper Staffs Change Meeting
Coverage, 31 Newspaper Res. J. 22
(2010) .........................................................

18

20

v
TABLE OF AUTHORITIES—Continued
Page
Belinda Luscombe, What Happens When a
Town Loses Its Newspaper, Time, Mar.
22, 2009 .....................................................

19

Mike McPhee, Pair May Face Death in
Prison Slaying, Denver Post, Jan. 27,
2001 ...........................................................

12

Michael Oneal, Tribune Co. Bankruptcy
Nearing Finish Line, Chi. Trib., Mar. 6,
2011 ...........................................................

19

J. Bradley Ponder, But Look Over Here:
How the Use of Technology at Trial
Mesmerizes Jurors and Secures Verdicts,
29 Law & Psychol. Rev. 289 (2005) ..........

15

Jeremy Adam Smith, Half of Bay Area
Newspaper Jobs Gone in Last Decade,
SF Pub. Press, May 23, 2011 ....................

19

Carleen M. Thompson & Susan Dennison,
Graphic Evidence of Violence: The
Impact on Juror Decision-Making, the
Influence of Judicial Instructions and
the Effect of Juror Biases, 11 Psychiatry,
Psychol. & Law 323 (2004) .......................

15

Noel Whitty, Soldier Photography of Detainee Abuse in Iraq: Digital Technology,
Human Rights and the Death of Baha
Mousa, 10 Hum. Rts. L. Rev. 689 (2010) ...

16

INTEREST OF AMICI CURIAE 1
Amici curiae Allied Daily Newspapers of Washington, Inc., the Associated Press, Pioneer Newspapers,
Inc., the Society of Professional Journalists, the
Washington Newspaper Publishers Association, the
Washington State Association of Broadcasters, and
Westword (together, “Amici”) respectfully submit this
brief in support of petitioner Prison Legal News
(“PLN”). Amici are news organizations and associations of news professionals with longstanding interests in the public availability of court records.
The Freedom of Information Act (“FOIA”) is critical
to public understanding of the affairs of the government, including the operation of the criminal justice
system. Amici’s ability to disseminate and analyze
newsworthy information depends on timely access to
accurate, complete information concerning the
conduct of the government.
Allied Daily Newspapers of Washington, Inc. is a
Washington not-for-profit trade association representing 25 daily newspapers serving the State of
Washington and the Washington bureaus of the
Associated Press.
The Associated Press gathers and distributes news
of local, national and international importance to its
member newspapers and broadcast stations and to
thousands of other customers in all media formats
across the United States and throughout the world.
1

Counsel of record for all parties were given timely notice of
amici curiae’s intention to file this brief as required by Rule
37.2(a) and have consented to its filing in letters on file with the
Clerk of the Court. No counsel for a party authored this brief in
whole or in part, and no party or counsel for a party made a
monetary contribution intended to fund its preparation or
submission.

2
Pioneer Newspapers, Inc. (“Pioneer”) is a familyowned, for-profit media association located in Seattle,
Washington that consists of 23 different community
newspapers.
Pioneer owns multiple publication
companies, each of which produce daily and weekly
newspapers serving rural or suburban communities
within Washington, Oregon, Utah, Idaho, and
Montana.
The Society of Professional Journalists (“SPJ”) is
dedicated to improving and protecting journalism.
It is the nation’s largest and most broad-based
journalism organization dedicated to encouraging the
free practice of journalism and stimulating high
standards of ethical behavior. Founded in 1909 as
Sigma Delta Chi, SPJ promotes the free flow of
information vital to a well-informed citizenry; works
to inspire and educate the next generation of
journalists; and protects First Amendment guarantees of freedom of speech and press.
The Washington Newspaper Publishers Association
(“WNPA”) is a for-profit association representing 115
community newspapers in Washington. With the
exception of three daily newspapers, four bi-weekly
newspapers and seven monthly newspapers, WNPA’s
members are weekly or semi-weekly newspapers.
Most serve rural or suburban communities.
The Washington State Association of Broadcasters
(“WSAB”) is a not-for-profit trade association. Its
membership is made up of 148 radio stations and 25
television stations licensed by the Federal Communications Commission to communities within the state
of Washington. These stations engage in newsgathering and reporting on issues and events of
public interest. They serve as a primary source of
news and information for their viewers and listeners.

3
Westword is a weekly newspaper published in
Denver, Colorado, the largest media market in that
state. Westword has extensively covered conditions
and events at the United States Penitentiary in
Florence, Colorado.
INTRODUCTION AND
SUMMARY OF ARGUMENT
“What transpires in the court room is public
property.” Craig v. Harney, 331 U.S. 367, 374 (1947).
In contravention of this basic principle, the government refused a FOIA request by petitioner PLN to
disclose audiovisual exhibits shown in open court
during the capital trials of William Concepcion
Sablan and Rudy Cabrera Sablan for the murder of
their cellmate, Joey Jesus Estrella.
During each trial, the government relied upon
autopsy photographs of Mr. Estrella and a videotape
showing the Sablans’ gruesome mutilation of
Estrella’s body following the murder. Pet. App. 2-3.
The trials were open to the public, and the video and
photographs were shown to the jury and to members
of the public seated in the courtroom. Id. at 2. At no
point did the government move to seal the exhibits
containing the video and photographs, id., even
though the second trial took place after the submission of PLN’s FOIA request. See Compl. ¶¶ 41, 4748; Answer ¶¶ 41, 47-48. Yet the government asserted that these materials were exempt from disclosure under FOIA Exemption 7(C), which precludes
production of records compiled for law-enforcement
purposes, “but only to the extent that the production
. . . could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(7)(C).

4
The Tenth Circuit’s decision upholding the denial
of disclosure under Exemption 7(C) is in conflict with
the decisions of the D.C. and Second Circuits, both of
which apply the public-domain doctrine to require
disclosure of materials similar to those at issue here.
See Pet. 15-20. Under the public-domain doctrine,
“materials normally immunized from disclosure under
FOIA lose their protective cloak once disclosed and
preserved in a permanent public record.” Cottone
v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999); see
also Inner City Press/Cmty. on the Move v. Bd. of
Governors of the Fed. Reserve Sys., 463 F.3d 239, 24849 (2d Cir. 2006). As long as the party requesting
disclosure “point[s] to specific information in the
public domain that appears to duplicate that being
withheld,” – as PLN did here, Pet. App. 42 – the
government must disclose the requested records.
Cottone, 193 F.3d at 554 (quoting Afshar v. Dep’t of
State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)) (internal
quotation marks omitted).
In rejecting application of the public-domain doctrine, the Tenth Circuit’s decision also is inconsistent
with well-established First Amendment and commonlaw principles emphasizing the right of the public to
access court documents. Indeed, the public-domain
doctrine is grounded in the “venerable common-law
right to inspect and copy judicial records,” which
“make[s] it clear that audio tapes enter the public
domain once played and received into evidence.”
Cottone, 193 F.3d at 554.
Preserving a robust public-domain doctrine – one
which recognizes that documents shown at trial
become a permanent part of the public record subject
to access under FOIA – is important to the press.
In this case, the exhibits at issue are audiovisual

5
materials that inform not only the conditions of
confinement at a federal prison, but also the government’s decision to seek the death penalty for both
Sablans. Accordingly, the requested material undoubtedly would convey important information that
cannot be gleaned from trial transcripts alone.
Moreover, government restrictions on press access
to audiovisual materials shown during a public trial
are particularly troublesome at a time when media
budget constraints limit reporters’ availability to
observe judicial proceedings in person. The publicdomain doctrine is an important tool for the press in
this challenging landscape because it reduces the
costs of accurate and comprehensive trial reporting.
Absent application of the public-domain doctrine,
the only way for news organizations to obtain court
documents of the kind at issue in this case is to
prevail under the FOIA 7(C) balancing test. This
substitution of a case-by-case balancing test in place
of a bright-line rule will increase the expense of
litigation to obtain rightfully public documents and
will impair the ability of resource-constrained news
organizations to obtain government records in the
public interest. Accordingly, the Court should grant
certiorari and reverse the ruling below.
ARGUMENT
THE DECISION BELOW MISCONSTRUES
THE FREEDOM OF INFORMATION ACT IN A
MANNER THAT LIMITS NEWS ORGANIZATIONS’ ABILITY TO INFORM THE PUBLIC
OF IMPORTANT GOVERNMENT CONDUCT
At issue in this case is the ability of a news organization to obtain dramatic and informative audiovisual materials that speak to, among other things,

6
the conditions of confinement at a high-security
federal prison; the government’s failure to provide for
the safety of an inmate it held in that prison; and,
as a direct result of this failure, the government’s
decision to take the rare step of seeking the death
penalty against two other inmates confined in that
facility.
A. The Tenth Circuit’s Cramped Interpretation Of Exemption 7(C) And The PublicDomain Doctrine Is Inconsistent With
Constitutional And Common-Law Principles Protecting Public Access To Court
Documents
1. This Court has long recognized the “presumption of openness” in criminal trials. See PressEnterprise Co. v. Superior Court, 464 U.S. 501, 510
(1984); Globe Newspaper Co. v. Superior Court, 457
U.S. 596, 605 (1982). “Openness . . . enhances both
the basic fairness of the criminal trial and the
appearance of fairness so essential to public confidence in the system.” Press-Enterprise Co., 464 U.S.
at 508.
Similarly, “[i]t is clear that the courts of this
country recognize a general right to inspect and copy
. . . judicial records and documents.” Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 597 (1977). This
general presumption of access under the common law
promotes transparency and accountability in the
judicial system; specifically, it enables the public “to
monitor the functioning of our courts, thereby
ensuring quality, honesty and respect for our legal
system.” In re Cont’l Ill. Sec. Litig., 732 F.2d 1302,
1308 (7th Cir. 1984).

7
Courts have recognized that the public enjoys a
strong presumption of access to audiovisual evidence
shown at trial, like the video and photographs at
issue here. See United States v. Martin, 746 F.2d
964, 968 (3d Cir. 1984). For example, in the corruption trials of members of Congress and other public
officials resulting from the “Abscam” incident, the
media were granted contemporaneous access to
audiovisual materials presented to the jury:
Once the evidence has become known to the
members of the public, including representatives
of the press, through their attendance at a public
session of court, it would take the most extraordinary circumstances to justify restrictions on the
opportunity of those not physically present in
attendance at the courtroom to see and hear the
evidence, when it is in a form that readily
permits sight and sound reproduction.
In re Application of Nat’l Broad. Co., Inc., 635 F.2d
945, 952 (2d Cir. 1980); see also United States v.
Criden, 648 F.2d 814 (3d Cir. 1981) (upholding television company’s common-law right to copy audio and
videotapes used in criminal corruption trial); In re
Application of Nat’l Broad. Co., Inc., 653 F.2d 609
(D.C. Cir. 1981) (holding district court abused its
discretion in denying permission to copy tapes played
during Abscam criminal trial).
Public access to court documents is further protected by an “even more stringent” First Amendment
right. In re Providence Journal Co., 293 F.3d 1, 11
(1st Cir. 2002). Indeed, in the decades since this
Court recognized a First Amendment right to access
criminal proceedings, see Richmond Newspapers, Inc.
v. Virginia, 448 U.S. 555 (1980) (plurality opinion),
nearly every circuit has held that these principles

8
extend from attendance at court hearings to create a
qualified right of access to related court records. 2
2. Judicial interpretation of the scope of Exemption 7(C) should be consistent with and informed by
the First Amendment and common-law principles
described above. Application of the public-domain
doctrine – as is the case in the D.C. and Second
Circuits, see Pet. 15-20 – achieves this goal. Failure
to apply the public-domain doctrine, by contrast,
leads to nonsensical results.
The common law and the First Amendment protect
the public’s interest in monitoring judicial proceedings by requiring that certain procedural safeguards
be observed before judicial documents may be sealed
from the public. For example, according to the local
rules applicable in this case, a motion to seal in a
criminal proceeding must address, among other
things, “[t]he factual basis showing the reasons to
seal a paper or to close a proceeding.” D.C. Colo. L.
Cr. R. 47.1(C). In addition, the moving party must
provide notice to the public and an opportunity to
object:
On the business day after the filing of a motion
to seal or motion to close court proceedings, a
2

See Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 502 (1st
Cir. 1989); Matter of New York Times Co., 828 F.2d 110, 114 (2d
Cir. 1987); United States v. Smith, 776 F.2d 1104, 1112 (3d Cir.
1985); In re Washington Post Co., 807 F.2d 383, 390 (4th Cir.
1986); Applications of Nat'l Broad. Co., 828 F.2d 340, 345 (6th
Cir. 1987); In re Cont'l Ill. Sec. Litig., 732 F.2d 1302, 1308-09
(7th Cir. 1984); In re Search Warrant for Secretarial Area
Outside Office of Gunn, 855 F.2d 569, 573 (8th Cir. 1988);
Associated Press v. U.S. Dist. Court for Cent. Dist. of Cal., 705
F.2d 1143, 1145 (9th Cir. 1983); Washington Post v. Robinson,
935 F.2d 282, 287 (D.C. Cir. 1991).

9
public notice will be posted in the clerk’s office
and on the court’s web site. The public notice will
advise of such motion and state that any person
or entity may file objections to the motion on or
before the date set forth in such public notice.
Id. 47.1(E). These procedures recognize the “constitutional obligation to determine whether sealing a
paper filed in a case or closing all or a portion
of a court proceeding is warranted.” Id. 47.1(A). A
submission not under seal “shall be deemed part of
the public record.” Id. 47.1(H).
Here, however, the government did not move to
seal the exhibits containing the video and photographs – even in the second Sablan trial, which took
place after the submission of PLN’s FOIA request.
Pet. App. 2; Compl. ¶¶ 41, 47-48; Answer ¶¶ 41, 4748. Consequently, the public was not put on notice or
given any opportunity to object to the government’s
attempt to limit access to these materials after trial,
as would have been required by a motion to seal. See
D.C. Colo. L. Cr. R. 47.1(E).
Indeed, rather than seeking to seal these exhibits,
the government displayed the video and photographs
“on Monitors placed for the sole purpose of enabling
members of the public seated in the courtroom
audience to view the images.” Compl. ¶¶ 33, 47-49;
Answer ¶¶ 33, 47-49. Thus, disclosure of the video
and photographs at trial was a public disclosure, and,
under the applicable local rules, the audiovisual
materials at issue were “deemed part of the public
record.” D.C. Colo. L. Cr. R. 47.1(H). They therefore
qualify for disclosure under the public-domain
doctrine.

10
The Tenth Circuit’s conclusion that the doctrine
did not apply here was based on the counterintuitive
and unsupported notion that audiovisual materials
shown in open court are not “truly public.” Pet. App.
16 (quoting Cottone, 193 F.3d at 554). According to
the court of appeals, “the actual images have been
viewed by a limited number of individuals who were
present in the courtroom at the time of the trials,”
and thus Exemption 7(C) could still “fulfill its purposes” of protecting the privacy of the victim’s family.
Id. at 17.
This explanation defies common sense. The government made a purposeful decision to introduce the
audiovisual materials at issue into the public domain
when it displayed them in open court. The materials
thus are unqualifiedly public. The government cannot have it both ways; it simply cannot be that the
materials at issue are public when it serves the
government’s purpose to make them so, but private
when it has no further use for them. As this Court
stated in Cox Broadcasting Corp. v. Cohn, 420 U.S.
469 (1975), “[b]y placing the information in the public
domain on official court records, the State must be
presumed to have concluded that the public interest
was thereby being served.” Id. at 495.
A contrary result would allow the government, as it
has done here, to effectively avoid all constitutionally-required sealing procedures by failing to file a
motion to seal, and then deny disclosure under FOIA
once the documents are returned to its custody. In
other words, the Tenth Circuit’s approach enables the
government to obtain a de facto judicial seal without
observing the notice requirements and other procedural protections demanded by a motion to seal.

11
3. The decision below also failed to properly weigh
the common-law and First Amendment principles of
judicial access when balancing the “privacy interest”
in the records against the “public interest” in their
release pursuant to Exemption 7(C). See U.S. Dep’t
of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 762 (1989) (setting forth the
Exemption 7(C) balancing test). The Tenth Circuit’s
conclusion that the public interest in the “incremental addition of information” from the video and photos
“is outweighed by the Estrella family’s strong privacy
interests in this case,” Pet. App. 13, is incorrect for
three reasons.
First, under public-access principles, any privacy
interest in the video and photographs is diminished
by their display at two public trials. See Robles v.
EPA, 484 F.2d 843, 846 (4th Cir. 1973) (where
information has been made available to the public
through one source, an interest in keeping it confidential through an alternative source cannot defeat
disclosure). To be sure, this Court has stated that
“[a]n individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form.”
U.S. Dep’t of Defense v. FLRA, 510 U.S. 487, 500
(1994); see also Reporters Comm., 489 U.S. at 765
(recognizing a privacy interest in non-public criminal
rap sheets compiled from public information). But
this statement was made outside the context of
judicial exhibits.
And this Court has not held, as the Tenth Circuit
did here, that disclosure in a public trial is only a
“limited” disclosure, or that information already disclosed can somehow cease to be part of the public

12
record. Rather, this Court has continually reaffirmed
that “[a] trial is a public event. What transpires in
the court room is public property.” Cox Broad. Corp.,
420 U.S. at 492 (quoting Craig, 331 U.S. at 374))
(internal quotation marks omitted). The Tenth Circuit’s holding undermines this longstanding principle
of judicial access.
Second, the court of appeals failed to properly
weigh the public interest in disclosure. The records
at issue here concern the first trials in several years
in which the federal government sought the death
penalty in Colorado, see Mike McPhee, Pair May Face
Death in Prison Slaying, Denver Post, Jan. 27, 2001,
at B-4, a decision of great public interest that the withheld photographs and video would help illuminate.
These materials also would give the public “a
better understanding of Estrella’s killers and the
conditions, motivations, and other circumstances that
led to their horrific actions.” Pet. App. 60 (Prendergast Decl. ¶ 12). In particular, the records would
shed light on the “conditions of confinement experienced by the Sablans and Estrella in terms of the
cramped quarters resulting from the fact that the
[Bureau of Prisons] had triple-celled these inmates
at the time of Estrella’s murder.” Id. ¶ 13. Indeed,
troublesome conditions of incarceration may have
influenced the FOIA denial, as “the [Bureau of
Prisons] is notorious for being hostile to media
requests for documents or information that would
shed light on its operations and functions.” Pet. App.
65 (Wright Decl. ¶ 7).
The added public interest in open judicial proceedings surely tips the scales. “The commission of crime,
prosecutions resulting from it, and judicial proceedings arising from the prosecutions . . . are without

13
question events of legitimate concern to the public.”
Cox Broad. Corp., 420 U.S. at 492. In fact, “it would
be difficult to single out any aspect of government of
higher concern and importance to the people than the
manner in which criminal trials are conducted.”
Richmond Newspapers, 448 U.S. at 575.
Public access to criminal proceedings helps society
come to terms with the crime itself because the trial
“serve[s] an important prophylactic purpose, providing an outlet for community concern, hostility, and
emotion.” Id. at 571. The need for such understanding is especially apparent where, as here, “[t]here
was a lot of speculation about what actually happened after the murder, including rumors of cannibalism by one of the Sablans.” Pet. App. 66 (Wright
Decl. ¶ 14). But this purpose “cannot function in the
dark; no community catharsis can occur if justice
is ‘done in a corner [or] in any covert manner.’”
Richmond Newspapers, 448 U.S. at 571 (internal
citations omitted). Public access also serves as a
check on the administration of justice even as it
increases the public’s faith in their judicial system.
“People in open society do not demand infallibility
from their institutions, but it is difficult for them to
accept what they are prohibited from observing.” Id.
at 572. Public access to criminal proceedings ensures
“an opportunity both for understanding the system in
general and its workings in a particular case.” Id.
Third, in considering the public-access portion of
the Exemption 7(C) balancing test, the court of
appeals failed to properly weigh the unique power of
audiovisual images to inform and impact the public.
The Tenth Circuit held that disclosure of the autopsy
video and photographs shown at the Sablan trials
would constitute an “unwarranted” invasion of pri-

14
vacy because “there is nothing to suggest the records
would add anything new to the public understanding.” Pet. App. 12. But the court’s reasoning is
internally inconsistent. On one hand, the court of
appeals recognized that “there is a distinct privacy
interest in the images” despite the fact that descriptive information regarding the images was widely
available. Id. at 10. On the other hand, however, the
court held that there was little or no public interest
in the images themselves, because “[a]ll of the information PLN claims would shed light on the issue,
including the heinous nature of the mutilation of
Estrella’s corpse, is already publicly known.” Id. at 13.
This holding suggests that release of the requested
audiovisual materials could have a substantial impact – over and above the impact attendant to their
public display during the Sablans’ respective trials –
on those desiring to withhold them, but cannot convey useful information to the public. That reasoning
weighs the unique nature of audiovisual materials on
only one side of the 7(C) balancing test – the privacy
side – and underestimates the significant public
interest in accessing these materials. As explained
below, this approach is refuted by this Court’s past
rulings, empirical evidence, and recent trends in
news reporting, all of which highlight the unique and
valuable nature of audiovisual evidence.
B. Audiovisual Materials Are Unique In
Their Ability To Convey Information That
Cannot Be Captured In Written Descriptions Alone
1. This Court has recognized that descriptions
often are a poor substitute for contemporaneous
photographic or audiovisual recordings. See Pet. 3132 (discussing Scott v. Harris, 550 U.S. 372 (2007),

15
and Brown v. Plata, 131 S. Ct. 1910 (2011)). “The
adage that ‘one picture is worth a thousand words’
reflects the common-sense understanding that illustrations are an extremely important form of expression for which there is no genuine substitute.” Regan
v. Time, Inc., 468 U.S. 641, 678 (1984) (Brennan, J.,
concurring in part and dissenting in part).
The impact audiovisual evidence has on judges and
juries has been well documented. One study has
shown that visual aids “facilitate comprehension,
[and] increase understanding and retention levels by
as much as sixty-five percent,” and that “information
which is perceived by the individual from a variety
of methods (aural, visual, and written) is retained
and understood at a substantially higher level.” J.
Bradley Ponder, But Look Over Here: How the Use of
Technology at Trial Mesmerizes Jurors and Secures
Verdicts, 29 Law & Psychol. Rev. 289, 291 (2005).
Several studies also have suggested that graphic
photographic and audiovisual materials, such as
those depicting a crime scene or a victim’s cause of
death, have an effect on both jury verdicts and
damage awards in civil trials. Carleen M. Thompson
& Susan Dennison, Graphic Evidence of Violence: The
Impact on Juror Decision-Making, the Influence of
Judicial Instructions and the Effect of Juror Biases,
11 Psychiatry, Psychol. & Law 323, 324 (2004). That
the government attorneys prosecuting the Sablans
chose to display the materials at issue rather than
simply describe them to the jury underscores their
unique significance.
2. Outside the courtroom, audiovisual representations have demonstrated a unique power to attract
and inform the public. According to Henry Schuster,
a career veteran of television news, “there is simply

16
no substitute for the power of video footage.” Pet.
App. 52 (Schuster Decl. ¶ 5). An attention-grabbing
audiovisual component can be the difference between
a major and minor story. See, e.g., Noel Whitty,
Soldier Photography of Detainee Abuse in Iraq:
Digital Technology, Human Rights and the Death of
Baha Mousa, 10 Hum. Rts. L. Rev. 689, 690 (2010)
(“[T]he extent of public and media engagement with
the issues . . . can depend on the availability of visual
evidence.”).
The dissemination of video footage
introduced at trial also conveys the relevant information in its purest form, as it “allows the public to form
their own opinions based on the raw data, unmediated by a journalist.” Pet. App. 52 (Schuster
Decl. ¶ 5).
3. Limiting access to audiovisual materials thus
has the potential to inhibit the press’s ability to
effectively inform the public about the criminaljustice system. A transcription of an audiovisual
representation is not an adequate substitute for its
disclosure. See State v. WBAL-TV, 975 A.2d 909, 926
(Md. Ct. Spec. App. 2009) (transcripts did not suffice
as copies of videotaped and audiotaped confessions,
because “a transcript ordinarily reflects only the
words spoken, and not how they were said or the
physical actions and reactions of the participants
present”).
Here, for example, autopsy photos and a video
“taken at the scene with the perpetrators present and
continuing to act and comment” are not susceptible
to a transcription that would convey their complete
contents. Pet. App. 34. Moreover, because video and
still cameras are not permitted in federal courtrooms
during criminal trials, see Fed. R. Crim. P. 53,
journalists cannot record or photograph exhibits like

17
these as they are introduced. Thus, unless duplicates
of audiovisual materials are made available to the
press and the public, these materials are lost to
public view even if they were widely displayed at
trial.
Restricting access to these materials, as the Tenth
Circuit’s approach does, risks undermining the
effectiveness of the press as a legitimate check on the
administration of criminal justice. Where, as here,
none of the procedures necessary to file under seal
were followed, the Tenth Circuit’s approach also sets
a disturbing precedent in that it allows the government to achieve ex post a result it elected not to seek
ex ante – i.e., to withhold trial exhibits from the press
without providing them with notice and an
opportunity to object, as would have been required in
connection with a properly-filed motion to seal.
C. The Decision Below Is
Modern Media Companies

Harmful

To

The Tenth Circuit’s narrow construction of the
public-domain doctrine limits the ability of modern
media companies to cover trial proceedings. To be
sure, the decision below left unaffected the press’s
right to view audiovisual materials at trial. But in
today’s changing media landscape, such a limited
right is insufficient. In an age of pressroom layoffs
and newspaper closures, news organizations are losing the ability to physically send reporters to observe
judicial proceedings. Without a robust public-domain
doctrine, judicial proceedings in areas with limited or
no local press coverage will effectively be closed to
public scrutiny.
1. In enacting FOIA, Congress recognized that the
press played a critical role in achieving the Act’s

18
basic purpose of “ensur[ing] an informed citizenry,
vital to the functioning of a democratic society.”
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1978). Congress was “principally interested in
opening administrative processes to the scrutiny of
the press and general public.” Renegotiation Bd. v.
Bannercraft Clothing Co., Inc., 415 U.S. 1, 17 (1974);
see also H.R. Rep. No. 89-1497, at 23 (1966) (addressing concerns of “[n]ewspapermen . . . about the
mushrooming growth of Government secrecy . . . .”).
Indeed, many people learn about the conduct of
government only from the press – particularly
specialized journals, like the one published by petitioner, and local news outlets, like Amici. As this
Court has recognized, “in a society in which each
individual has but limited time and resources with
which to observe at first hand the operations of his
government, he relies necessarily upon the press to
bring to him in convenient form the facts of those
operations.” Cox Broad. Corp., 420 U.S. at 491.
The press plays a particularly important role in
covering the criminal-justice system. Indeed, as discussed above, there is a First Amendment right to
attend criminal trials, without which “important
aspects of freedom of speech and of the press could be
eviscerated.” Richmond Newspapers, 448 U.S. at 580
(internal citations and quotation marks omitted); see
supra pp. 7-8. Moreover, while the presumptive openness of criminal trials historically was manifested by
public attendance at trial, now “people . . . acquire it
chiefly through the print and electronic media. In a
sense, this validates the media claim of functioning
as surrogates for the public.” Richmond Newspapers,
448 U.S. at 573. Thus, with respect to judicial
proceedings, “the function of the press serves to guar-

19
antee the fairness of trials and to bring to bear the
beneficial effects of public scrutiny upon the administration of justice.” Cox Broad. Corp., 420 U.S. at
492.
2. In addition to making audiovisual materials
increasingly available to the public, the digitization
of the press is having dramatic effects on the
traditional business models of newsgathering and
distribution. Most newspapers face resource constraints at all levels. Accordingly, national papers
are scaling back the scope of their reporting while
many local and regional papers are publishing less
frequently, if at all.
Indeed, traditional business models are breaking
down in the face of shifting market forces, including
the growth of the internet and the demand for realtime news coverage. News organizations are responding to these trends with staff layoffs, consolidation,
and outright closure. Since 2001, 36 percent of
newspaper jobs have been eliminated; in some
regions, the figures are even higher. See, e.g., Jeremy
Adam Smith, Half of Bay Area Newspaper Jobs Gone
in Last Decade, SF Pub. Press, May 23, 2011. In the
most extreme cases, satellite bureaus or even entire
newspapers have closed entirely. Recent years have
witnessed the bankruptcy of the parent company of
the 164-year-old Chicago Tribune, Michael Oneal,
Tribune Co. Bankruptcy Nearing Finish Line, Chi.
Trib., Mar. 6, 2011, and the demise of several major
metropolitan daily newspapers, including the 149year-old Rocky Mountain News and the 145-year-old
Seattle Post-Intelligencer. Belinda Luscombe, What
Happens When a Town Loses Its Newspaper, Time,
Mar. 22, 2009.

20
One outcome of these cutbacks has been changing – and, in some cases, decreasing – coverage of
local government. See John C. Besley & M. Chris
Roberts, Cuts in Newspaper Staffs Change Meeting
Coverage, 31 Newspaper Res. J. 22 (2010). The result
is a press facing increasing challenges to its role as a
“surrogate[ ] for the public” at judicial proceedings.
Richmond Newspapers, 448 U.S. at 573. Yet reliable
press access to these proceedings is the modern
embodiment of the “presumptively open” historical
character of Anglo-American trials. See id. at 569-73.
3. The public-domain doctrine compensates for
these trends in at least two specific ways. First, it
enables an increasingly short-staffed press corps to
revisit courtroom proceedings it might initially have
been unable to attend. With fewer reporters available to cover trials, there is an increasing likelihood
that news organizations may simply miss newsworthy proceedings in the first instance. Having to “rely
on secondhand accounts from sources who had some
knowledge of the recordings” is an inadequate substitute. Pet. App. 58-59 (Prendergast Decl. ¶ 7); see also
Pet. App. 64 (Wright Decl. ¶ 6). The public-domain
doctrine is a pragmatic response to this reality
because it recognizes that the operative disclosure
occurs when audiovisual materials are “played and
received into evidence,” not when they are viewed by
an audience. See Cottone, 193 F.3d at 554 (citing In re
Application of Nat’l Broad. Co., Inc., 653 F.2d at 614).
Second, the public-domain doctrine also compensates for the loss of regional and local newspapers.
The loss of a local newspaper is the loss of a local
watchdog. For obvious reasons, news organizations
are more willing to invest in tracking the actions of
local criminal-justice systems than those geographi-

21
cally and culturally removed. Quite naturally, a
newspaper located in New Jersey is unlikely to send
reporters to cover court proceedings in Colorado.
However, the public-domain doctrine lowers the costs
of reporting on far-flung communities by enabling
reporters in one part of the country to review proceedings in another part of the country without
having to prospectively send reporters to distant
courtrooms. The photographs and recordings at issue
in this case – which illuminate both the conditions of
federal prisons and the judgment of federal prosecutors vis-à-vis the death penalty – are perfect
examples of the type of courtroom proceedings likely
to interest a national audience.
The Tenth Circuit’s cramped view of the publicdomain doctrine also is harmful because modern
news organizations often cannot afford the expense
of fact-intensive FOIA litigation. Absent a robust
public-domain doctrine, the only way for news
organizations to obtain government information of
the kind at issue in this case is to pass the balancing
test contained in Exemption 7(C), even for documents
previously released into the public domain. Thus,
eliminating the public-domain doctrine would replace
a clear, bright-line rule with a fact-intensive balancing test.
The practical result would be an increase in the
volume and expense of litigation to obtain information that is rightfully public. This increased cost
would impair the ability of resource-constrained news
organizations to obtain government records in the
public interest. The Tenth Circuit’s approach thus
will lead to fewer successful FOIA requests by the
media, enabling government agencies to withhold
documents safe in the knowledge that news organiza-

22
tions are unlikely to assume the burden of litigation
in all but the most extreme cases. Such a result
cannot be reconciled with the purpose of FOIA.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
LISA S. BLATT
Counsel of Record
DIRK C. PHILLIPS
KRISTIN M. HICKS
ARNOLD & PORTER LLP
555 12th Street, N.W.
Washington, DC 20004
(202) 942-5000
Lisa.Blatt@aporter.com
Counsel for Amici Curiae
July 14, 2011



 

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