I'm not a legal anything. I didn't even stay in a Holiday Inn Express, but this is my ramshackle, little blog and for me, this is an exercise, nothing more. I'm hoping someone better able to analyze this decision puts out a more formal analysis, but right now I see Ms. Leigh having to go back to district court and with a narrowly defined burden of proof that will either make or break this effort. I know everyone is basking in the glow of a win, but is this decision a "done deal?" I'm not astute enough in the law to know.
Are there any "old timers" out there who will testify that access has become more restrictive and that there is actually less input into roundups now than there used to be? It seems that Ms. Leigh will need to provide that evidence in order to make this case (though, in the past, if there was little public involvement, that doesn't mean that should continue). The dissenting judge might have made it a little easier on Ms. Leigh in the next round in court but he did uphold the decision of the majority (even if he didn't agree on the reason).
Also, the way I read this decision, it only applies to roundups at Silver King. The court decided the case was not moot as Attorney Cowan's language was read to include all future roundups at that HMA as well, overriding the decision by the district court that plaintiff's case was moot because the roundup had already occurred. Does this set a precedent for the next case? I can only hope.
Text of part of the decision to be found here: http://horsebackmagazine.com/hb/archives/14111
The whole decision to be found here (courtesy of R.T. Fitch) http://www.box.com/s/62706b6124qjmoonrmxy
.... and we
"Case: 11-16088 02/14/2012 ID: 8067432 DktEntry: 49-1 Page: 2 of 18
We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we
reverse. Because the preliminary injunction motion seeks
unrestricted access to future horse roundups, and not just the
one that took place in 2010, this case is not moot. As to the
merits of Leigh’s First Amendment claim, the district court
erred by failing to apply the well-established qualified right of
access balancing test set forth in Press-Enterprise Co. v.
Superior Court (“Press-Enterprise II”), 478 U.S. 1, 8-9
...... whether the viewing
restrictions are narrowly tailored to serve
restrictions are narrowly tailored to serve
the government’s overriding interests.
remand this case for the district court to consider in the first
instance whether the public has a First Amendment right of
access to horse gathers, and, if so, whether the viewing
restrictions are narrowly tailored to serve the government’s
(Not sure I like the remand part .. that means it has to go back to the district court. I hope to read more about this later to find out if my concern is justified.)
.... it is not moot
as applied to future gathers in Silver King.
"However, Leigh’s preliminary injunction
motion concerns “all horses captured from Silver King,” and
is in no way limited to the 2010 gather. Therefore, the motion
applies to all future horse gathers at Silver King.....
Although the preliminary injunction does not apply
to horse gathers conducted in other locations, it is not moot
as applied to future gathers in Silver King."
.... Under this framework, a court cannot rubber-stamp an access restriction simply because the government says it is necessary.
" .... Press-Enterprise II right
of access test is not limited to criminal judicial proceedings.
Accordingly, we hold that the Press-Enterprise II test applies
to Leigh’s claim that the BLM’s viewing restrictions violate
her First Amendment rights. Press-Enterprise II balances the
vital public interest in preserving the media’s ability to monitor
government activities against the government’s need to
impose restrictions if necessary for safety or other legitimate
Under this framework, a court cannot rubber-stamp an
access restriction simply because the government says it is
.... By reporting about the government, the media are "surrogates for the public."
"By reporting about the government, the media are“surrogates for the public. ...... (“[I]n a
society in which each individual has but limited time and
resources with which to observe at first hand the operations
.... The district court’s order denying Leigh’s motion for a preliminary injunction fell short of the rigorous scrutiny that Press-Enterprise II requires.
"The district court’s order denying Leigh’s motion for a
preliminary injunction fell short of the rigorous scrutiny that
Press-Enterprise II requires. The district court focused mostly
on its conclusion that Leigh was not treated differently than
other members of the public, a consideration that is not part
of the Press-Enterprise II balancing test......
.... the issue here is whether the viewing restrictions were unconstitutional. On that question, the district court failed to conduct the proper First Amendment analysis.
"The relevant question is not whether the BLMAnd here is when I get to my "oh damn, moment" and here is what Ms. Leigh will have to prove to the district court (and this seems to me to be a narrow window of proof).
prohibited Leigh from observing the horse gather altogether;
as in California First Amendment Coalition, the issue here is
whether the viewing restrictions were unconstitutional. On
that question, the district court failed to conduct the proper
First Amendment analysis."
.... First, the district court must determine whether the public has a right of access to horse gathers by considering whether horse gathers have historically been open to the general public and whether public access plays a positive role in the functioning of gathers.
"We remand this case for the district court to conduct
the analysis that Press-Enterprise II requires. First, the
district court must determine whether the public has a right of
access to horse gathers by considering whether horse gathers
have historically been open to the general public and whether
public access plays a positive role in the functioning of gathers.
Second, if the district court determines that a right of
access exists in this case, it must determine whether the BLM
has overcome that right by demonstrating an overriding interest
that the viewing restrictions are essential to preserve
higher values and are narrowly tailored to serve those interests.
For the foregoing reasons, we reverse and remand to the
district court for proceedings consistent with this opinion.
REVERSED AND REMANDED."
The dissenting opinion makes a good point and might have made a decision that would have been less restrictive upon Ms. Leigh when she goes back to district court. .. " Ms. Leigh has not established an historical tradition of public access to horse gathers or holding facilities. Because the district court applied the wrong legal standard, remanding to allow Leigh to attempt to present evidence that would establish those facts is one way to proceed. Judge Smith has selected that option. But when we review a denial of a preliminary injunction, “we may affirm the decision of the district court if the result is correct, even if the district court relied on a wrong ground or gave a wrong reason.”
It's not over until it's over.