As a fact finder, she does have broad latitude, under the Fifth Circuit order, for the next 40 or so days. [She’s let about 20 pass without much action.]
But the press has a keen and Constitutional interest (under the First Amendment) to see the proceedings of a federal judge who seems to be shielding Texas Gov. Abbott from consequences of violating federal law, on the border.
So, if Davis Wright Tremaine doesn’t soon file a motion to place at least redacted portions into the public record there — I will, pro bono publico. And given that three humans died as a result of Abbott’s concertina wire barriers in mid-January, the court (and, even — if need be, on appeal) will recognize this right. [“We the People” will suffer no star chambers.]
More specifically, absent a documented showing of unreasonable administrative burdens, the public’s right to contemporaneous access to judicial records cannot be overcome. See, e.g., Courthouse News Serv. v. Planet, No. CV 11-08083 SJO (FFMx), 2016 U.S. Dist. LEXIS 105197, at *62 (C.D. Cal. May 26, 2016) (“to the extent Planet might argue that such a practice would have been cost-prohibitive or unduly labor intensive, he has not quantified the cost… nor has he detailed the additional labor that would have been required…
Absent such evidence, the Court cannot ‘articulate facts demonstrating an administrative burden sufficient to deny access.’”) (citation omitted), aff’ in part rev’d in part, 947 F.3d 581, 597 (9th Cir. 2020) (holding that “Ventura County’s no-access-before-process policy bears no real relationship to the County’s legitimate administrative concerns about… efficient court administration”); see also United States v. Valenti, 987 F.2d 708, 715 (11th Cir. 1993) (holding unconstitutional the district court’s maintenance of a dual-docketing system, where certain docket entries were visible only to the parties, and expressly rejecting the argument that unsealing would bind the court to a “formal procedure that is unduly burdensome”).
The public and the media have a qualified right of access to judicial proceedings that can be overcome only by an on-record, formal showing of good cause. Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1310-12 (11th Cir. 2001); Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978).
There can be no compelling “national security” interest in hiding how Texas effectively killed those three would-be asylum seekers, in the Rio Grande. These were not spies or hostile agents. They were a young mother and her two children. Damn.
A desire “to keep indiscreet communications out of the public eye” is not enough to demonstrate good cause. Callahan v. United Network for Organ Sharing, 17 F.4th 1356, 1364 (11th Cir. 2021).
Here’s the order — entered last night:
…It is ORDERED that the parties provide to the Court any and all documents involving communications, including but not limited to reports and emails, regarding or referencing the Plaintiff’s border wire barriers or Plaintiff’s other barriers, including but not limited to concertina wire barriers, as well as any and all documents which regard or reference impediments to Federal agents’ performance as a result of the barriers; It is FURTHER ORDERED that the time period for the foregoing document production range from and including November 9, 2023, to the present; It is FURTHER ORDERED that the parties provide this document production under seal, ex parte, and without any redaction so that the Court reviews these documents in camera; It is FURTHER ORDERED that, as an emphasis, the Court will not exchange this document production among the parties unless the parties e-file a document expressing affirmative consent to same; It is FURTHER ORDERED that where a privilege is asserted, the parties identify that privilege;
It is FURTHER ORDERED that the parties’ production of these documents waives no privilege; and It is FURTHER ORDERED that the parties produce these documents by February 21, 2024, through a virtual link that the Court will send to the parties, and that the parties have a duty to supplement these documents through that virtual link.
Signed by Chief Judge Alia Moses. (jaw) (Entered: 02/07/2024)….
Well… that ought to set up a serious NYT or WSJ challenge — if not the Dallas, Houston or San Antonio papers.
Onward.
