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Media Alerts - Newsday v. County of Nassau--Second Circuit
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September 23, 2013
  Newsday v. County of Nassau--Second Circuit
Case Name: Newsday v. County of Nassau - Second Circuit

Headline: Second Circuit Holds That News Organizations Have First Amendment Right of Access to Hearing Transcript in Case Against Nassau County Police Department

Area of Law: First Amendment

Issue Presented: Whether the First Amendment's presumptive right of access to court proceedings applied to civil contempt proceedings and related documents, and if so, whether that presumptive right of access required disclosure under the circumstances of this case.

Brief Summary: News organizations including Newsday and News 12 intervened in a high-profile federal civil rights case against the Nassau County Police Department, seeking access to a sealed courtroom proceeding (a civil contempt hearing) as well as an investigative report of the Nassau County Police Department's Internal Affairs Unit. After the United States District Court for the Eastern District of New York ruled that only a redacted transcript of the civil contempt hearing would be made available, and that the investigative report would remain sealed, the news organizations appealed. They argued that they were entitled to the complete transcript and the investigative report under both the First Amendment's presumptive right of access and the common law right of access to courts. On appeal, the Second Circuit reversed the district court's conclusion to redact part of the hearing transcript, holding that the press was entitled to a copy of the entire transcript, but affirmed the district court's decision to keep the report under seal. To read the full opinion, please visit:

Extended Summary: This case arose from an underlying civil rights action filed against the Nassau County Police Department and various other defendants (collectively, the "defendants") by a deceased woman's mother, who claimed that the defendants had negligently contributed to her daughter's fatal stabbing by failing to protect her from her ex-boyfriend. In pursuing her case, the plaintiff sought the production of an investigative report (the "Report") that the Nassau County Police Department Internal Affairs Unit had produced after investigating the murder. After obtaining it in discovery, plaintiff's counsel attempted to release the Report during a press conference. Defendants moved for an injunction to prohibit its release. After hearing oral argument, the magistrate judge granted defendants' motion to temporarily prohibit the release of the Report, concluding that the defendants met the required showing of "good cause" under the Federal Rules. Meanwhile, Newsday LLC and News 12 Networks LLC (collectively, the "press intervenors") were granted leave to intervene in the case to oppose this motion and were permitted to file a motion to unseal any motion papers or transcripts in relation to the Report.

Defendants later reached a settlement for $7.7 million with the plaintiff contingent upon approval by the Legislature and Interim Finance Authority of Nassau County. To approve the settlement, members of the legislature asked to review the evidence. In allowing review, the United States District Court for the Eastern District of New York issued a confidentiality order which prohibited the dissemination of the information contained in the report to others. Later, a member of the legislature made a statement on television which purportedly contained information from the Report.

The Police Benevolent Association (the "PBA") intervened to enforce the district court's confidentiality order, and a civil contempt proceeding ensued against the legislator who had spoken about the report on television. The district judge requested a witness from the PBA to testify about the Report. Nassau County and the PBA made a request to seal the courtroom, but a reporter from Newsday objected. The district court overruled the objection and allowed the courtroom to be sealed. During the sealed proceedings, the Assistant Chief of the Police Department testified about the contents of the Report. The officer reviewed the report prior to his testimony and referred to it twice during his testimony. While the courtroom was closed, the contempt defendant testified that the information he revealed was publicly available and the district court reopened the courtroom. However, after the officer was recalled, the district court sealed the courtroom again. At the conclusion of his testimony, the court was reopened for closing arguments. After formal objection by the press intervenors, the district court concluded that the magistrate judge's protective order coupled with the district court's confidentiality order required the hearing transcript and the Report to remain under seal. However, the district court balanced the public's interest and the common law against the interest of confidentiality and concluded that portions of the hearing transcript should be unsealed.

On appeal by the press intervenors, the Second Circuit held that the First Amendment presumptive right of access applies to civil contempt proceedings. It noted that these proceedings "carry the threat of coercive sanctions and seek to enforce the court's own orders." However, when determining if the right applied to judicial documents, the Second Circuit stated that it applied to "those documents necessary to understand the merits of a civil contempt proceeding."
The Second Circuit then concluded that the hearing transcript did not raise any significant confidentiality concerns, and ordered a full, unredacted version of the transcript be released.

Turning to the Report, the Second Circuit affirmed the district court's conclusion to seal the Report, but determined that it had to review "(a) whether [the Report] is a judicial document to which the First Amendment right applies, and if so, (b) whether the right of access is defeated in this case." Focusing on the use of the Report during the proceedings, the Second Circuit found that the minimal use of the Report in the proceedings would not assist the public in understanding issues raised before the district court and therefore the Report should remain under seal. Judge Lohier wrote a separate concurrence.

To read the full opinion, please visit:

Panel: Judges Lynch, Lohier, and Carney.

Argument Date: 03/06/2013

Date of Issued Opinion: 09/23/2013

Docket Number: 12-2731-cv

Decided: Affirmed in Part, Reversed in Part, and Remanded.

Case Alert Author: Jeffrey S. Peters

Counsel: DAVID A. SCHULZ (Jacob P. Goldstein, on the brief), Levine Sullivan Koch & Schulz, LLP, New York, NY, for Intervenors-Appellants. DENNIS J. SAFFRAN (Office of the Nassau County Attorney) for John Ciampoli, County Attorney of Nassau County, Mineola, NY, for Defendants-Cross-Claimants-Appellees and Defendants-Appellees. SETH H. GREENBERG, Greenberg Burzichelli Greenberg P.C., Lake Success, NY, for Intervenor-Appellee.

Author of Opinion: Judge Lynch (majority); Judge Lohier (concurring).

Case Alert Circuit Supervisor: Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 09/23/2013 09:03 PM     2nd Circuit  

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