Nos. 18A669 & 18M93

IN THE

Supreme Court of the United States
IN RE GRAND JURY SUBPOENA

ON APPLICATION FOR A STAY AND MOTION FOR
LEAVE TO FILE A PETITION FOR A WRIT OF
CERTIORARI UNDER SEAL
MOTION FOR LEAVE TO INTERVENE
TO FILE A MOTION TO UNSEAL

AMIR C. TAYRANI
AARON SMITH*
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5306
(202) 955.8500
*Admitted only in Alabama

THEODORE J. BOUTROUS
Counsel of Record
THEANE EVANGELIS
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, California 90071-3197
(213) 229.7000
tboutrous@gibsondunn.com

LEE ROSS CRAIN
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York City, York 10166-0193
(212) 351.4000

EMILY RIFF
GIBSON, DUNN & CRUTCHER LLP
1801 California Street, Suite 4200
Denver, Colorado 80202-2642
(303) 298.5700

Counsel for Proposed Intervenor Reporters Committee for
Freedom of the Press
January 9, 2019

 PARTIES TO THE PROCEEDINGS AND
RULE 29.6 STATEMENT
The parties to this proceeding are not currently public.
Pursuant to Supreme Court Rule 29.6, the undersigned counsel states that
proposed intervenor-movant the Reporters Committee for Freedom of the Press (the
“Reporters Committee” or “RCFP”) is an unincorporated nonprofit association of
reporters and editors with no parent corporation and no stock.

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 TABLE OF CONTENTS
Page
CONTENTS
PURPOSE ...................................................................................................................... 1
INTRODUCTION .......................................................................................................... 1
FACTUAL BACKGROUND .......................................................................................... 3
ARGUMENT .................................................................................................................. 5
CONCLUSION............................................................................................................... 9

ii

 TABLE OF AUTHORITIES
Page(s)
Cases
Beckman Indus., Inc. v. Int’l Ins. Co.,
966 F.2d 470 (9th Cir. 1992) ................................................................................ 5, 6
Bond v. Utreras.,
585 F.3d 1061 (7th Cir. 2009) .................................................................................. 9
Brown v. Advantage Eng’g, Inc.,
960 F.2d 1013 (11th Cir. 1992) ................................................................................ 6
Doe v. Pub. Citizen,
749 F.3d 246 (4th Cir. 2014) ................................................................................ 6, 7
E.E.O.C. v. Nat’l Children’s Ctr., Inc.,
146 F.3d 1042 (D.C. Cir. 1998)............................................................................. 2, 5
Flynt v. Lombardi,
782 F.3d 963 (8th Cir. 2015) .................................................................................... 2
Grosjean v. Am. Press Co.,
297 U.S. 233 (1936) .................................................................................................. 6
Int’l Union, United Mine Workers of Am. v. Bagwell,
512 U.S. 821 .............................................................................................................. 8
In re Iowa Freedom of Info. Council,
724 F.2d 658 (8th Cir. 1983) .................................................................................... 8
Jessup v. Luther,
227 F.3d 993 (7th Cir. 2000) ............................................................................ 2, 5, 6
In re Krynicki,
983 F.2d 74 (7th Cir. 1992) ...................................................................................... 6
Levine v. United States,
362 U.S. 610 (1960) .................................................................................................. 8

iii

 TABLE OF AUTHORITIES
(continued)
Page(s)

Metlife, Inc. v. Fin. Stability Oversight Council,
865 F.3d 661 (D.C. Cir. 2017) .............................................................................. 7, 9
Meyer Goldberg, Inc. of Lorain v. Fisher Foods, Inc.,
823 F.2d 159 (6th Cir. 1987) .................................................................................... 6
Newsday LLC v. Cty. Of Nassau,
730 F.3d 156 (2d Cir. 2013) ...................................................................................... 8
Pansy v. Borough of Stroudsburg,
23 F.3d 772 (3d Cir. 1994) ........................................................................................ 6
Press-Enterprise Co. v. Superior Court,
464 U.S. 501 (1984) .......................................................................................... 1, 6, 7
Press-Enterprise Co. v. Superior Court,
478 U.S. 1 (1986) ...................................................................................................... 6
Pub. Citizen v. Liggett Grp., Inc.,
858 F.2d 775 (1st Cir. 1988) ..................................................................................... 5
United Nuclear Corp. v. Cranford Ins. Co.,
905 F.2d 1424 (10th Cir. 1990) ................................................................................ 6
United States v. Index Newspapers LLC,
766 F.3d 1072 (9th Cir. 2014) .................................................................................. 8
United States v. Moussaoui,
65 F. App’x 881 (4th Cir. 2003) ................................................................................ 7
Wilk v. Am. Med. Ass’n,
635 F.2d 1295 (7th Cir. 1980) .................................................................................. 9
Wilson v. Am. Motors Corp.,
759 F.2d 1568 (11th Cir. 1985) ................................................................................ 8

iv

 TABLE OF AUTHORITIES
(continued)
Page(s)

Constitutional Provisions

U.S. Const, amend. I .............................................................................................passim
Rules
Fed. R. Civ. P. 24 ................................................................................................... 2, 4, 5
Fed. R. Crim. P. 6........................................................................................................... 8

ii

 PURPOSE
The Reporters Committee for Freedom of the Press (the “Reporters Committee”
or “RCFP”) is a nonprofit organization dedicated to defending the First Amendment
and the newsgathering rights of journalists. The Reporters Committee respectfully
moves for leave to intervene for the purpose of filing a motion to direct the filing of
publicly redacted versions of the record and the documents that have been filed thus
far in the above-captioned proceedings. The Reporters Committee also seeks leave to
file said motion to request that, in the event this Court grants certiorari, the Court
direct that the parties file publicly redacted versions of all merits filings and the
record, that any oral argument be held publicly, and that a redacted oral argument
transcript and recording be publicly filed.
INTRODUCTION
The First Amendment grants to the press and the public a right of access to
documents on which a court may rely in making its decisions. That right can only be
overcome by a showing that sealing proceedings is “essential to preserve higher
values” and “narrowly tailored to serve that interest.”

Press-Enterprise Co. v.

Superior Court, 464 U.S. 501, 510 (1984) (“Press-Enterprise I”). The right of access is
fundamental to a democratic state because it ensures that the public can scrutinize
the conduct of its court system, participate in debates about public affairs, and
contribute to self-governance.
The Reporters Committee seeks to intervene in these cases because the public’s
and the press’s interest in these proceedings is significant, and the near-wholesale

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 blanket seal of this litigation thus far has unduly limited the public’s right of access.
As an organization that works to ensure the First Amendment right of access is
protected, the Reporters Committee is uniquely positioned to advocate that these
proceedings be conducted in a way that is open and transparent and that promotes
trust in our governmental institutions.
Granting intervention here is in accordance with the judiciary’s “longstanding
tradition of public access to court records,” E.E.O.C. v. Nat’l Children’s Ctr., Inc., 146
F.3d 1042, 1046 (D.C. Cir. 1998) (citation omitted); Jessup v. Luther, 227 F.3d 993,
998 (7th Cir. 2000), and promotes judicial efficiency because, absent intervention, the
Reporters Committee would be required to file a separate action to challenge the
confidentiality of judicial records. Flynt v. Lombardi, 782 F.3d 963, 967 (8th Cir.
2015); see Fed. R. Civ. P. 24(b). Because permitting intervention to unseal court
proceedings supports these important principles, most circuits have found that
“permissive intervention . . . is an appropriate procedural vehicle for non-parties
seeking access to judicial records in civil cases.” Flynt, 782 F.3d at 967. 1
At bottom, providing qualified access to the briefing, record, and any oral
argument in this proceeding furthers democratic interests in transparency, judicial
legitimacy, and an informed citizenry.

This Court should grant the Reporters

Committee’s motion for leave to intervene.

1

Although these lower-court cases involve the application of Federal Rule of Civil Procedure 24(b),
which does not bind this Court, they remain instructive in their support of a broad right of
intervention for the purpose of advocating for public access to judicial proceedings and court
records.

2

 FACTUAL BACKGROUND
The Reporters Committee is an unincorporated nonprofit association. It was
founded by leading journalists and lawyers in 1970 when the nation’s news media
faced an unprecedented wave of government subpoenas forcing reporters to name
confidential sources. Today, its attorneys provide pro bono legal representation,
amicus curiae support, and other legal resources to protect First Amendment
freedoms and the newsgathering rights of journalists. The Reporters Committee has
an interest in ensuring that the First Amendment and common law right of access to
judicial documents is protected, an interest that the sealing of the documents and
oral argument in this case would directly undermine.
This case commenced in the United States District Court for the District of
Columbia on August 16, 2018. The case—including its docket—was filed entirely
under seal. Sealed v. Sealed, No. 1:18-gj-00041 (D.D.C. Aug. 16, 2018). In September
2018, the district court issued a secret ruling, which one of the parties appealed. In
re Grand Jury Subpoena, No. 18-3068 (D.C. Cir. Sept. 25, 2018). The D.C. Circuit
dismissed that appeal for lack of jurisdiction on October 3, 2018. Id. One week later,
a new appeal was commenced from the same district court case. In re Grand Jury
Subpoena, No. 18-3071 (D.C. Cir. Oct. 10, 2018).

Oral argument occurred on

December 14, 2018. Before oral argument began, court officials took the unusual step
of sealing not only the courtroom where oral argument took place, but the entire floor
where oral argument occurred.

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 Four days after argument, the D.C. Circuit issued an unsealed three-page
judgment that revealed at least some information about the proceedings.

The

judgment states that the appeal commenced after the district court held a company
(the “Corporation”) in contempt for failing to comply with a grand jury subpoena. Op.
1. The judgment also identified the Corporation as owned by a foreign state and
explained that the district court had ordered that each day the Corporation fails to
comply with the subpoena its monetary fine will increase. Id. The judgment affirmed
the district court’s contempt order and provided some detail about the legal and
factual issues in the case. The D.C. Circuit released a more fulsome, redacted opinion
on January 8, 2019 explaining its decision in further detail.
On December 22, 2018 the Corporation applied to this Court both for a stay of the
contempt ruling and for leave to file its application under seal. Case No. 18A669.
The next day, the Chief Justice temporarily stayed the district court’s contempt order,
“including the accrual of monetary penalties,” pending the filing of a response and
further order. In re Grand Jury Subpoena, No. 18A669 (Dec. 23, 2018). On December
28, a mystery party responded to the application, and the original applicant replied
on January 2, 2019. This Court denied the stay on January 8, but all documents
remain sealed.
On January 7, an undisclosed party to the same D.C. Circuit case below moved
for leave to file a petition for a writ of certiorari under seal with redacted copies for
the public record. Case No. 18M93. That motion remains pending and does not
appear to be publicly available.

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 ARGUMENT
This Court has broad discretion to grant a party leave to intervene, and
intervention is warranted here because the Reporters Committee is seeking to
vindicate a significant public interest—the openness and transparency of these
judicial proceedings. The Reporters Committee is best positioned to advocate for
these principles because the parties themselves presumably have no vested interest
in protecting the press’s and public’s access. And permitting intervention serves this
Court’s interest because it conserves judicial resources.
When determining whether to grant a motion for permissive intervention courts
evaluate whether there is a common question of fact between the movant’s claim and
the main action. Fed. R. Civ. P. 24(b)(2); Beckman Indus., Inc. v. Int’l Ins. Co., 966
F.2d 470, 473 (9th Cir. 1992). When a party seeks to intervene to vindicate the First
Amendment and common law rights of access, the lower courts have almost
universally concluded that its assertion of those rights is “directly and substantially
related to the litigation.” Jessup, 227 F.3d at 997. “[W]hen a district court enters a
closure order, the public’s interest in open access is at issue and that interest serves
as the necessary legal predicate for intervention.” Id. at 998
Because of the significant public value of open proceedings, “every court of
appeals” to have considered the question whether permissive intervention is proper
under Federal Rule of Civil Procedure 24(b) “has come to the conclusion that Rule 24
is sufficiently broad-gauged to support a request of intervention for the purposes of
challenging confidentiality orders.” Jessup, 227 F.3d at 997; Nat’l Children’s Ctr.,

5

 146 F.3d at 1045 (“[D]espite the lack of a clear fit with the literal terms of Rule 24(b),
every circuit court that has considered the question has come to the conclusion that
nonparties may permissively intervene for the purpose of challenging confidentiality
orders.”); see also Pansy v. Borough of Stroudsburg, 23 F.3d 772, 778 (3d Cir. 1994);
Brown v. Advantage Eng'g, Inc., 960 F.2d 1013, 1015–16 (11th Cir. 1992); Beckman
Indus., Inc., 966 F.2d at 473; United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d
1424, 1427 (10th Cir. 1990); Pub. Citizen v. Liggett Grp., Inc., 858 F.2d 775, 783 (1st
Cir. 1988); Meyer Goldberg, Inc. of Lorain v. Fisher Foods, Inc., 823 F.2d 159, 162 (6th
Cir. 1987).

This is because sealing judicial proceedings implicate the First

Amendment and common law rights of access to court proceedings and documents.
Jessup, 227 F.3d at 998 (“[W]hen a district court enters a closure order, the public’s
interest in open access is at issue and that interest serves as the necessary legal
predicate for intervention.”). The many decisions in the lower courts that have
permitted intervention in similar proceedings squarely support the Reporters
Committee’s motion to intervene in this Court.
Indeed, the interest the Reporters Committee seeks to vindicate through
intervention is longstanding. The First Amendment establishes a presumptive right
of access to a wide range of judicial proceedings. See Press-Enterprise I, 464 U.S. at
510. That right is fundamental to a democratic state because it produces an informed
public opinion about the functioning of our court system and protects the free
discussion of governmental affairs so that individual citizens can effectively
participate in, and contribute to, our government. See, e.g., In re Krynicki, 983 F.2d

6

 74, 75 (7th Cir. 1992) (“Any step that withdraws an element of the judicial process
from public view makes the ensuing decision look more like fiat.”). Where a qualified
public right of access exists, “the proceedings cannot be closed unless specific, on the
record findings are made demonstrating that ‘closure is essential to preserve higher
values and is narrowly tailored to serve that interest.’”

Press-Enterprise Co. v.

Superior Court, 478 U.S. 1, 13-14 (1986) (“Press-Enterprise II”) (quoting PressEnterprise I, 464 U.S. at 510).
At issue here are the parties’ filings, the record, and, if certiorari is granted,
public access to the oral argument, as well as recordings and transcripts of the
argument. All of these aspects of the proceedings should be accessible to the public,
subject only to redactions necessary to protect the secrecy of the grand jury. Courts
have long concluded that the First Amendment affords the public a right of access to
any documents on which a court may rely in making its decisions. Doe v. Pub. Citizen,
749 F.3d 246, 267-68 (4th Cir. 2014). And “[t]here can be no question that the First
Amendment guarantees a right of access by the public to oral arguments
in . . . appellate proceedings.” United States v. Moussaoui, 65 F. App’x 881, 890 (4th
Cir. 2003).
Permitting public access to oral argument and the material underlying a court
decision promotes public trust in the judiciary, Metlife, Inc. v. Fin. Stability Oversight
Council, 865 F.3d 661, 665 (D.C. Cir. 2017), and ensures “an informed and
enlightened public,” Grosjean v. Am. Press Co., 297 U.S. 233, 247 (1936), because a
“people who mean to be their own Governors, must arm themselves with the power

7

 which knowledge gives.” Letter from James Madison to W. T. Barry, Aug. 4, 1822, in
9 Writings of James Madison 103 (Gaillard Hunt ed. 1910). Here, with only the D.C.
Circuit’s judgment and redacted opinion publicly available, the public is denied
information it needs “‘to appreciate fully the [] significant events at issue in public
litigation and the workings of the legal system.’” Wilson v. Am. Motors Corp., 759
F.2d 1568, 1571 (11th Cir. 1985) (citation omitted). And now that this Court has
denied the application for a stay, the public has a further interest in reviewing the
briefing and understanding the arguments that led to that decision. Continuing to
maintain blanket secrecy would undermine public trust in the judiciary and deprive
the public of information about important events and judicial proceedings.
The interest the Reporters Committee seeks to vindicate with its intervention is
no less forceful because these proceedings arise from a contempt order in a grand jury
investigation. A right of public access exists for the contempt proceedings at issue in
this matter. This Court has recognized that criminal contempt proceedings must be
held in public. See Levine v. United States, 362 U.S. 610, 616 (1960). And because
the distinction between civil and criminal contempt is “elusive” and often without a
difference, see Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 83031, numerous courts have held that the public’s right of access applies equally to civil
contempt proceedings. See e.g., United States v. Index Newspapers LLC, 766 F.3d
1072, 1093 (9th Cir. 2014); Newsday LLC v. Cty. Of Nassau, 730 F.3d 156, 163-64 (2d
Cir. 2013); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir. 1983).
Federal Rule of Criminal Procedure 6(e)(5) itself makes clear that the public has at

8

 least some right of access to contempt proceedings by recognizing that sealing grandjury contempt proceedings may only occur as “necessary” to justify the compelling
interest of preserving grand jury secrecy.
There is a common law right of access to the court proceedings and documents at
issue here as well. This broad common law right applies to everything in the record,
in addition to any other material on which a court relies in determining the litigants’
substantive rights. Whatever else the common law right of access might protect, it
must protect “materials upon which a judicial decision is based.” Wilk v. Am. Med.
Ass’n, 635 F.2d 1295, 1299 n.7 (7th Cir. 1980), superseded by rule in other respects as
stated in Bond v. Utreras, 585 F.3d 1061, 1068 n.4 (7th Cir. 2009); see Metlife, 865
F.3d at 668 (explaining that briefs and the record supporting a judicial decision are
subject to common law right of access).
CONCLUSION
For the foregoing reasons, the Reporters Committee motion for leave to
intervene for the limited purpose of asserting the public’s First Amendment and
common law rights of access to the above-captioned cases should be granted.

9

 Respectfully submitted.

j_Q_,,_'.)~
AMIR C. TAYRANI
AARON SMITH*
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5306
(202) 955.8500
*Admitted only in Alabama
LEE ROSS CRAIN
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York City, York 10166-0193
(212) 351.4000

d fso. ,-., ·7',ALT

THEODOREJ. BOUTROUS
Counsel of Record
THEANE EVANG ELIS
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, California 90071-3197
(213) 229.7000
tboutrous@gibsondunn.com
EMILY RIFF
GIBSON, DUNN & CRUTCHER LLP
1801 California Street, Suite 4200
Denver, Colorado 80202-2642
(303) 298.5700

Counsel for Proposed Intervenor
Reporters Committee for Freedom of the Press
January 9, 2019

10