Case 18-2868, Document 68, 12/17/2018, 2457074, Pagel of 49

18-2368

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

VIRGINIA L. GIUFFRE, Plaintiff-Appellee, V.

GHISLAINE MAXWELL, Defendant-Appellee,

(Caption continued on inside cover)

On Appeal from the United States District Court for the Southern District of New York

BRIEF OF AMICI CURIAE THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND 32 MEDIA ORGANIZATIONS IN SUPPORT OF INTERVENORS-APPELLANTS SEEKING REVERSAL

Bruce D. Brown Counsel of Record Katie Townsend Caitlin Vogus Lindsie Trego THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS 1156 15th St. NW, Suite 1020 Washington, DC 20005 Telephone: (202) 795-9300 bbrown @rcfp.org Additional amici counsel listed in Appendix B

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Vv.

SHARON CHURCHER, JEFFREY EPSTEIN, Respondents,

JULIE BROWN, MIAMI HERALD MEDIA COMPANY, Intervenors-Appellants.

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CORPORATE DISCLOSURE STATEMENT

The Reporters Committee for Freedom of the Press is an unincorporated association of reporters and editors with no parent corporation and no stock.

American Society of News Editors is a private, non-stock corporation that has no parent.

The Associated Press Media Editors has no parent corporation and does not issue any stock.

Association of Alternative Newsmedia has no parent corporation and does not issue any stock.

Digital First Media, LLC. is a privately held company. No publicly-held company owns ten percent or more of its equity interests.

Dow Jones is a Delaware corporation with its principal place of business in New York. News Corporation, a publicly held company, is the indirect parent corporation of Dow Jones. Ruby Newco, LLC, a subsidiary of News Corporation and a non-publicly held company, is the direct parent of Dow Jones. No publicly held company directly owns 10% or more of the stock of Dow Jones.

The E.W. Scripps Company is a publicly traded company with no parent company. No individual stockholder owns more than 10% of its stock.

First Amendment Coalition is a nonprofit organization with no parent

company. It issues no stock and does not own any of the party’s or amicus’ stock.

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First Look Media Works, Inc. is a non-profit non-stock corporation organized under the laws of Delaware. No publicly-held corporation holds an interest of 10% or more in First Look Media Works, Inc.

Fox Television Stations, LLC is an indirect subsidiary of Twenty-First Century Fox, Inc., a publicly held company. No other publicly held company owns 10% or more of Twenty-First Century Fox, Inc. stock.

Gannett Co., Inc. is a publicly traded company and has no affiliates or subsidiaries that are publicly owned. No publicly held company holds 10% or more of its stock.

The Inter American Press Association (IAPA) is a not-for-profit organization with no corporate owners.

The International Documentary Association is an not-for-profit organization with no parent corporation and no stock.

The Investigative Reporting Workshop is a privately funded, nonprofit news organization affiliated with the American University School of Communication in Washington. It issues no stock.

The Media Institute is a 501(c)(3) non-stock corporation with no parent corporation.

MPA — The Association of Magazine Media has no parent companies, and

no publicly held company owns more than 10% of its stock.

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National Press Photographers Association is a 501(c)(6) nonprofit organization with no parent company. It issues no stock and does not own any of the party’s or amicus’ stock.

New England First Amendment Coalition has no parent corporation and no stock.

The New York Times Company is a publicly traded company and has no affiliates or subsidiaries that are publicly owned. No publicly held company owns 10% or more of its stock.

Newsday LLC is a Delaware limited liability company whose members are Tillandsia Media Holdings LLC and Newsday Holdings LLC. Newsday Holdings LLC is an indirect subsidiary of Cablevision Systems Corporation. Cablevision Systems Corporation is (a) directly owned by Altice USA, Inc., a Delaware corporation which is publicly traded on the New York Stock Exchange and (b) indirectly owned by Altice N.V., a Netherlands public company.

The News Guild — CWA is an unincorporated association. It has no parent and issues no stock.

NYP Holdings, Inc. is a Delaware corporation, with its principal place of business in New York, and is the publisher of the New York Post. News

Corporation, a publicly held company, is the parent of NYP Holdings, Inc. News

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Corporation has no parent company and no publicly held company owns more than 10 percent of its shares.

Online News Association is a not-for-profit organization. It has no parent corporation, and no publicly traded corporation owns 10% or more of its stock.

POLITICO LLC’s parent corporation is Capitol News Company. No publicly held corporation owns 10% or more of POLITICO LLC’s stock.

Radio Television Digital News Association is a nonprofit organization that has no parent company and issues no stock.

Reporters Without Borders is a nonprofit association with no parent corporation.

Reveal from The Center for Investigative Reporting is a California non- profit public benefit corporation that is tax-exempt under section 501(c)(3) of the Internal Revenue Code. It has no statutory members and no stock.

Society of Professional Journalists is a non-stock corporation with no parent company.

Student Press Law Center is a 501(c)(3) not-for-profit corporation that has no parent and issues no stock.

Tribune Publishing Company is a publicly held corporation. Merrick Media, LLC, Merrick Venture Management, LLC and Michael W. Ferro, Jr., together own

over 10% of Tribune Publishing Company’s common stock. Nant Capital LLC, Dr.

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Patrick Soon-Shiong and California Capital Equity, LLC together own over 10% of Tribune Publishing Company's stock.

The Tully Center for Free Speech is a subsidiary of Syracuse University. Univision Communications Inc. is wholly owned by Broadcast Media Partners Holdings, Inc., which is wholly owned by Univision Holdings, Inc. Grupo Televisa, S.A.B. indirectly holds a 10% or greater ownership interest in the stock

of Univision Holdings, Inc. No publicly held company owns 10% or more of Univision Communications Inc. or any of its parent companies, subsidiaries, or affiliates.

WP Company LLC d/b/a The Washington Post is a wholly-owned subsidiary of Nash Holdings LLC, a holding company owned by Jeffrey P. Bezos. WP Company LLC and Nash Holdings LLC are both privately held companies

with no securities in the hands of the public.

Case 18-2868, Document 68, 12/17/2018, 2457074, Pages of 49

TABLE OF CONTENTS TABI OE AU TORTS csconcensacenseswdrscsatnnccoenanne mnsasuen cated mndenonvencemonenmmaanianves il IDENTITY AND INTEREST OF AMICI CURIAE ue eeeceeeeeseeeeneeeeeeeeeeeeeaeeees 1 SOURCE OF AUTHORITY ‘TO: BILE oc: cavscesatenassancmarveee eeaeanitoernaacaabee 3 INTRODUCTION AND SUMMARY OF THE ARGUMENT ....... cee eeeeereeereeees 4 SPER GIVE IN cesta teeta n tcp ea cede cane tee eee ae eeocae dia astaiela Race Soeeiaseee a I. Public access is an essential feature of our judicial system. ...........::ceeseeeeeeees 7

II. The district court erred in dismissing the significant public interest in access to the Summary Judgment Document ................::cccssscsessesccsssnrccssrsrccseeeecssees 9

A. Access will allow the public to evaluate the judicial system’s handling of litigation related to sexual abuse and assault of minors, an issue of Paramount. Pub lie COMCEI oa viccdesnncescvscessscasensedsaesdaasusseacacessancavaanedenesienedes 9

B. This case, in particular, relates to a matter that has been the subject of widespread reporting and is certainly a matter of public concern......12

C. Astrong presumption of access applies to a motion for summary judgment and documents filed in connection thereto, even when that

motion UG EA Uo ec adiant alana tag anata sega eapnaeun ayia eta ee mn aeRO: 15 Ill. Generalized privacy interests cannot support sealing. ........... cc eeeeeeeeeeeneeeeees 17

IV. The district court failed to make an independent determination regarding the

SCANS GF SPECINIC TECOTAG, ccastincinsviotaxiin Rieti malin 19 GOING ICUS ION ccsssasaretetries cue taeatusasieaiece esatcaitoedecemedennanael dhenaueaadeecetnntmnenuanaienend 21 CER PIGIC ATE. OF COMPLIANG E cccsssatwmostincenadd cadeneenenteesinsenmasmnansibiedconmeseaniae 22 APPEND caissusstnsetiast uslanaaranwiie inate ane ne ae 2 PRP EIT secs Bisce sen vce acne opesteteca eg teed cate ssepenctea eta tiaen acne 33

Case 18-2868, Document 68, 12/17/2018, 2457074, Page9 of 49

TABLE OF AUTHORITIES

Cases

Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814 F.3d 132 (2d Cir.

SPOT cia esr da treet sc gc Salt ade ee Ga psc oat pee aetna 9 Co. Doe v. Pub. Citizen, 749 F.3d 246 (4th Cir. 2014) oo... eeecceeececeeceeeeeeeeeeeeeeees 16 Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)........ccceeeeeeee 8, 12, 19 Hicklin Eng’g, L.C. v. Bartell, 439 F.3d 346 (7th Cir. 2006)........:.:ecscceeeeeeeeeeeeeee 17 Inve N.Y, Times Co.. 828 F.2d 110 Od Cir, 1987) sssssssscessascssevasbesanesessesssacbacasaseas 18 In re Reporters Committee for Freedom of the Press, 773 F.2d 1325 (D.C. Cir.

PS) a seissrespsepee sateermepnevetesseac panei at cieavactersennieoevnanss ronesnoerenvattarannesotouenseneceenren 15 In re Sealing & Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d 876

CT TN sce acted tm exept aaa ata re oes nd ya aed veces 17 Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) 0.00... 15 N.Y. Civil Liberties Union v. N.Y. City Transit Auth. , 684 F.3d 286

Gm attests cease nat ce Saige neesaa uh ven ves eadesa do scm oda gy Garten soo 4 Press-Enter. Co. v Superior Court, 464 U.S. 501 (1984) .....cee ec ccccssssteceeeeeeeens 8, 20 Press-Inter.Co: y.. Superior Court, 478 US. 1 (1986) scccccscetinctatcevess cvisaraeadedscstins 18 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)

sete gaseous pus e ce ue is vs ou neces nt a aaa anno ame on a Under Seal v. Under Seal, 273 F. Supp. 3d 460 (S.D.N.Y. 2017) we. eeeeeeseeeeees 18 United States v. Amodeo, 44 F.3d 141 (2d Cir. 1995)...... ccc cccceceseessssseeeeeeeseeees 19 United States v. Amodeo, 71 F.3d 1044 (2d Cir. 1995) 00... ccc cccccecessesssesseeeeeeeees 4,8 United Siates v: Aref, 533 F.3d 722d! Cit, 2008) i cuscavsucnesuiunesiionemnceneieumernebunnanendaies 16 United States v. Erie Cty., 763 F.3d 235 (2d Cir. 2014) 0... ceeeccssssccceeesessseeeeeeeees oo

il

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Other Authorities

Alan Dershowitz, Alan Dershowitz: ‘I never had sex with Virginia Roberts’, Miami Herald (Dec. 2, 2018), https://perma.cc/HYW5-D2MM ..........::cccsccceesseeceeeteeeees 13

Alexandra Berzon, Chris Kirkham, Elizabeth Bernstein & Kate O'Keefe, Dozens of People Recount Pattern of Sexual Misconduct by Las Vegas Mogul Steve Wynn, Wall Street J. (Jan. 27, 2018), https://perma.cc/DK92-YIBW ...........cccccceeeeeeees 10

Conchita Sarnoff, Jeffrey Epstein, Billionaire Pedophile, Goes Free, Daily Beast (July 20, 2010), https://perma.cc/HMC3-HQJG 2.00... eee cceccccccesnneeceseneeeeeenneeeneeaes 13

David Von Drehle, Jeffrey Epstein’s plea deal is a travesty. But we can still find justice, Washington Post (Dec. 11, 2018), https://perma.cc/RZR2-JCWE........... 13

Eric Levenson, Bill Cosby sentenced to 3 to 10 years in prison for sexual assault, CNN (Sept. 26, 2018), https://perma.cc/WQ82-7SBZ..........ccccccesteeceesteeeeees 11,12

Eric Levenson, Bill Cosby’s maximum sentence now 10 years after charges merged, CNN (Sept. 24, 2018), https://perma.cc/A7JY -J9Q6........::cccececeeeeeeneees 11

Hannah Knowles, Documents from Court, District Attorney reveal details in Brock Turner case, Stanford Daily (June 10, 2016), https://perma.cc/3C7R-57CW .....11

Irene Plagianos & Kitty Greenwald, Mario Batali Steps Away From Restaurant Empire Following Sexual Misconduct Allegations, Eater (Dec. 11, 2017), tips) perma cC/ VIO GPs XID O) wuss cscansectntadadstnuetenateatsaussadendtagetntedenseanctenietauateccens 10

Jan Musgrave, Will President Trump be used as witness in sex offender Epstein’s case ?, Palm Beach Post (May 12, 2017), https://perma.cc/GPA7-QRLR............ 12

Jane Mayer & Ronan Farrow, Four Women Accuse New York’s Attorney General of Physical Abuse, New Yorker (May 7, 2008), https://perma.cc/3 HLN-7F68...10

Jodi Kantor & Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades, N.Y. Times (Oct. 5, 2017), https://perma.cc/B9KL-GH77

Josh Gerstein, The one weird court case linking Trump, Clinton, and a billionaire pedophile, Politico (May 14, 2017), https://perma.cc/8D55-QGIU ..........ceeeeee 12

ill

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Josh Gerstein, Woman who sued convicted billionaire over sex abuse levels claims at his friends, Politico (Dec. 31, 2014), https://perma.cc/QWC9-A2FF.............. 12

Julie K. Brown & Caitlin Ostroff, Epstein sex abuse victims press judge for decision on tossing his lenient plea deal, Miami Herald, (Dec. 10, 2018), Mito 77 peri .CC) 7 IBV SE aia a rir cesaresestesdantohxaeonceeaanennnin soerancantunadaomenione anion es 14

Julie K. Brown et al, Lawmakers issue call for investigation of serial sex abuser Jeffrey Epstein’s plea deal, Miami Herald (Dec. 6, 2018), tips) /Perimaeo/ GZ -1)O7 2 con. vacceitntadansabentenneenGauecadennasetnbedemseninceamndsttuansacscs 13

Julie K. Brown, How a future Trump Cabinet member gave a serial sex abuser the deal of a lifetime, Miami Herald (Nov. 28, 2018), https://perma.cc/GA2C-UW97

Melena Ryzik et al., Louis C.K. Is Accused by 5 Women of Sexual Misconduct, N.Y. Times (Nov. 9, 2017), https://perma.cc/9588-ESCQ oo. eeceeecceestteceestteeeees 10

Patricia Mazzei, Jeffrey Epstein Settles Lawsuit, Avoiding Testimony From Accusers in Sex Case, N.Y. Times (Dec. 4, 2018), https://nyti.ms/2zKIGro....... 14

Ramin Setoodeh & Elizabeth Wagmeister, Matt Lauer Accused of Sexual Harassment by Multiple Women, Variety (Nov. 29, 2017), https://permiacc/ WEY 7-NIRAG sa, cecpcctscsivtonenesnceteseroeaeianaiavanineinienenene 10

Ray Sanchez, Stanford rape case: Inside the court documents, CNN (June 11, 2016), hts Perma Co/I8 97 I 9. 1csisensesasonGecesweterGeideretaoraakunataao newlines 11

Stephanie Zacharek et al., Person of the Year 2017: The Silence Breakers, TIME, https://perma.cc/JSCU-69KC (last visited Dec. 7, 2018) 00... eeesseeceestteeeeenteees 10

Susan Svrluga, ‘Did you rage?’ In Stanford sexual assault case, court records shed new light, Wash. Post (June 10, 2016), https://perma.cc/C8F4-FKJA ........ 11

Tom Leonard, Prince Andrew risks losing ambassador job as girl in underage sex case reveals meeting him, Daily Mail (Mar. 2, 2011), http://dailym.ai/2wni8s1 13

Travis M. Andrews, Ex-Stanford swimmer Brock Turner leaves jail Friday but controversy still rages, Wash. Post (Aug. 30, 2016), https://perma.cc/7V9J-

iV

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IDENTITY AND INTEREST OF AMICI CURIAE

Amici curiae are the Reporters Committee for Freedom of the Press, American Society of News Editors, Associated Press Media Editors, Association of Alternative Newsmedia, Digital First Media, Dow Jones & Company, Inc., The E.W. Scripps Company, First Amendment Coalition, First Look Media Works, Inc., Fox Television Stations, LLC, Gannett Co., Inc., Inter American Press Association, International Documentary Assn., Investigative Reporting Workshop at American University, The Media Institute, MPA — The Association of Magazine Media, National Press Photographers Association, New England First Amendment Coalition, The New York Times Company, Newsday LLC, The NewsGuild - CWA, NYP Holdings, Inc., Online News Association, POLITICO LLC, Radio Television Digital News Association, Reporters Without Borders, Reveal from The Center for Investigative Reporting, Society of Professional Journalists, Student Press Law Center, Tribune Publishing Company, Tully Center for Free Speech, Univision Communications Inc., and The Washington Post. A supplemental

statement of identity and interest of amici is included below as Appendix A.!

' Pursuant to Fed. R. App. P. 29(a)(4)(E) and Local R 29.1(b), amici state as follows: (1) no party’s counsel authored this brief in whole or in part; (2) no party or party’s counsel contributed money that was intended to fund preparing or submitting this brief; and (3) no person—other than the amici curiae, their

1

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The Reporters Committee for Freedom of the Press is an unincorporated nonprofit association. The Reporters Committee was founded by leading journalists and media 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.

As representatives and members of the news media, amici have a strong interest in protecting the public’s First Amendment and common law rights of access to court documents. Members of the press regularly rely upon court documents to keep the public apprised of cases within the public interest, as well as to facilitate public monitoring of the judicial system. When courts fail to adequately consider the costs to the public interest in sealing court records, the ability of journalists to gather facts and keep the public apprised of actions of the judicial branch is threatened. Amici write in support of the Intervenors-Appellants Julie Brown and the Miami Herald (collectively, the “Miami Herald”) because the

district court’s decision in this case seals court records in an overly broad manner,

members, or their counsel—contributed money that was intended to fund preparing or submitting this brief. 2

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preventing the news media from accessing judicial records and informing the public about important litigation of community concern. SOURCE OF AUTHORITY TO FILE Counsel for Plaintiff-Appellee, Defendant-Appellee, and Intervenors-

Appellants have consented to the filing of this brief. See Fed. R. App. P. 29(a)(2).

Case 18-2868, Document 68, 12/17/2018, 2457074, Page15 of 49

INTRODUCTION AND SUMMARY OF THE ARGUMENT

“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion). For this reason, the public’s First Amendment and common law rights of access to judicial proceedings and records play a critical, fundamental part in ensuring public confidence in the judicial system. United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995) (“Amodeo IT’). And public access, which is necessary to both the fairness of the judicial system and the public’s perception of its fairness, cannot be curtailed except where necessitated by compelling interests.

Where the First Amendment right of access applies, judicial documents may only be sealed if—and only to the extent that—an “overriding interest” overcomes the public’s strong, presumptive right of access. N.Y. Civil Liberties Union v. N.Y. City Transit Auth., 684 F.3d 286, 304 (2d Cir. 2012). Under the common law, judicial documents may only be sealed if “countervailing factors” outweigh the

public’s interest in access. Amodeo IT, 71 F.3d at 1050.

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The Miami Herald seeks access to all of the documents filed under seal in this case, which include (1) discovery motions and their exhibits;? (2) the entire body of the Defendant’s motion for summary judgment and more than half of the order denying Defendant’s motion for summary judgment (the “Summary Judgment Documents”) and (3) parts of a motion to intervene and unseal filed by Alan Dershowitz and the order denying that motion. See Giuffre v Maxwell, Mem. of Law in Support of Proposed Intervenors Julie Brown and Miami Herald Media Company’s Mot. to Intervene and Unseal (filed Apr. 6, 2018), ECF No. 936 at 4-6.

The district court denied the Miami Herald’s motion to unseal, concluding that what it deemed the “Discovery Documents” were not subject to the common law or First Amendment presumptions of access; it held that those presumptions of access were applicable but overcome with respect to the Summary Judgment

Documents.? Sp.A.-27—28, 33-41. In denying the Miami Herald’s motion to

? Because the district court allowed the parties to file many documents under seal without first filing a motion to seal, see A.-265, it is difficult to determine the nature of all of the sealed documents in this case. In its brief, the Miami Herald has listed the sealed discovery documents that were identified in the record. See Br. and Special App. for Intervenors-Appellants at 14.

> The district court’s opinion divides the documents the Miami Herald seeks to unseal into two categories: “Discovery Documents” and “Summary Judgment Judicial Documents.” Sp.A.-27—29. It did not address the partial sealing of Mr. Dershowitz’s motion to intervene and the order denying that motion. See id.

Despite the district court’s designation of the first category of documents as “Discovery Documents,” amici agree with the Miami Herald that these documents

5

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unseal the Summary Judgment Documents, the district court severely undervalued the powerful public interest in this case and vastly overstated the asserted countervailing interests in favor of secrecy. Contrary to the district court’s concern that public access to the Summary Judgment Documents will serve only to “promote scandal,” access will provide the public and the press with information key to their understanding of this litigation, which relates to allegations of serial sexual assault and abuse of minors by convicted sex offender Jeffrey Epstein, and has implicated high-level public officials and public figures. The district court made only broad, general references to the protection of private information, including information about minor sexual abuse victims, to conclude that privacy

interests in this case weighed heavily against the public’s right of access.

are not merely unfiled discovery exchanged between the parties, but rather are documents that were filed in connection with discovery motions. See Br. and Special App. for Intervenors-Appellants at 18-19. Amici also agree with the Miami Herald that the district court erred in concluding that the Discovery Documents are not judicial records subject to the First Amendment and common law rights of access. See id. at 13-17. Because that issue has been fully addressed in the Miami Herald’s opening brief, id., and the previous amici brief filed by many of the same amici who join this brief, see Br. of Amici Curiae the Reporters Comm. for Freedom of the Press and 18 Media Organizations in Support of Intervenors Appellants, Giuffre v. Maxwell, No. 16-3945(L) at 10-14 (filed Sept. 20, 2017), ECF No. 106, amici do not address that issue in this brief. In addition, amici agree with the Miami Herald that the district court must engage in a document-by-document analysis of the Discovery Documents to ensure that any sealing is justified by a compelling interest and is narrowly tailored. See Br. and Special App. for Intervenors-Appellants at 26-27.

6

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In addition, the district court’s ruling essentially delegated its authority to seal the Summary Judgment Documents to the parties’ judgment. Rather than conducting an independent review of the Summary Judgment Documents to determine whether or not compelling interests continue to justify sealing, the district court simply relied on the parties’ initial designation of portions of the Summary Judgment Documents as “confidential” to justify their continued sealing. And the district court completely failed to address the Miami Herald’s motion to unseal Mr. Dershowitz’s motion to intervene and the order denying that motion.

For the reasons set forth herein and in the Miami Herald’s brief, amici respectfully urge this Court to reverse the district court’s order.

ARGUMENT I. Public access is an essential feature of our judicial system.

Openness of judicial proceedings “has long been recognized as an indispensable attribute” of the American justice system. Richmond Newspapers, Inc., 448 U.S. at 569. “The notion that the public should have access to the proceedings and documents of courts is integral to our system of government.” United States v. Erie Cty., 763 F.3d 235, 238—39 (2d Cir. 2014).

Access to judicial proceedings and documents “permits the public to participate in and serve as a check upon the judicial process—an essential

component in our structure of self-government.” Globe Newspaper Co. v. q

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Superior Court, 457 U.S. 596, 606 (1982). Indeed, as this Court has emphasized, the presumption of access to judicial records arises from “the need for federal courts, although independent—indeed, particularly because they are independent— to have a measure of accountability and for the public to have confidence in the administration of justice.” Amodeo IT, 71 F.3d at 1048.

Public access to judicial proceedings and records allows the public to observe and monitor the workings of the federal judiciary. Jd. It “provides judges with critical views of their work,” “deters arbitrary judicial behavior,” and promotes “confidence in the conscientiousness, reasonableness, [and] honesty of judicial proceedings.” Jd. In order to effectively monitor the courts, the public requires information—information that is often found in judicial documents and brought to light by the press. See id. (“Such monitoring is not possible without access to testimony and documents that are used in the performance of Article III functions”). Thus, public access to judicial documents “enhances both the basic fairness of” the judicial system “and the appearance of fairness so essential to public confidence in the system.” Press-Enter. Co. v Superior Court, 464 U.S.

501, 508 (1984) (“Press-Enterprise I’).

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II. The district court erred in dismissing the significant public interest in access to the Summary Judgment Documents.

A. — Access will allow the public to evaluate the judicial system’s handling of litigation related to sexual abuse and assault of minors, an issue of

paramount public concern.

In denying the Miami Herald’s motion to unseal, the district court closed its eyes to the particularly strong public interest in access to the Summary Judgment Documents. See Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814 F.3d 132, 143 (2d Cir. 2016) (finding that strong public interest in the subject of a case weighs against sealing documents related to the matter). Rather, the district court concluded that the Miami Herald had not identified a particular need for the Summary Judgment Documents and that unsealing would simply “promote scandal.” Sp.A.-40. To the contrary, sexual assault and trafficking of minors, including the judicial system’s handling of these issues, are squarely matters of public concern. Educating readers about these threats is not promoting scandal but providing knowledge that will enable the public to be better informed about risks in their own communities.

With the emergence of the “#MeToo Movement,” public awareness of issues of sexual assault, abuse, and trafficking has only risen in recent years. Public attention to these issues has become so great that in 2017, Time magazine named

“the silence breakers”— individuals who have spoken out after being victims of

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sexual assault—its “Person of the Year.” Stephanie Zacharek et al., Person of the Year 2017: The Silence Breakers, TIME, https://perma.cc/JSCU-69KC (last visited Dec. 7, 2018). Many news outlets have brought to light allegations of sexual harassment and abuse in Hollywood, politics, the media, and other industries. See, e.g., Jodi Kantor & Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades, N.Y. Times (Oct. 5, 2017), https://perma.cc/B9KL-GH77; Jane Mayer & Ronan Farrow, Four Women Accuse New York’s Attorney General of Physical Abuse, New Yorker (May 7, 2008), https://perma.cc/3 HLN-7F68; Ramin Setoodeh & Elizabeth Wagmeister, Matt Lauer Accused of Sexual Harassment by Multiple Women, Variety (Nov. 29, 2017), https://perma.cc/UFY7-NK4G; Irene Plagianos & Kitty Greenwald, Mario Batali Steps Away From Restaurant Empire Following Sexual Misconduct Allegations, Eater (Dec. 11, 2017), https://perma.cc/M96P-XD3Q; Melena Ryzik et al., Louis C.K. Is Accused by 5 Women of Sexual Misconduct, N.Y. Times (Nov. 9, 2017), https://perma.cc/9588-ESCQ; Alexandra Berzon, Chris Kirkham, Elizabeth Bernstein & Kate O'Keefe, Dozens of People Recount Pattern of Sexual Misconduct by Las Vegas Mogul Steve Wynn, Wall Street J. (Jan. 27, 2018), https://perma.cc/DK92-YJBW.

The public has a legitimate interest in examining how courts handle both

criminal and civil cases related to sexual assault. For example, when college 10

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student Brock Turner was convicted of sexually assaulting an unconscious woman and sentenced to only a few months in jail, news reports and the resulting public outcry led to calls to alter sentencing guidelines for sex-based crimes. See Travis M. Andrews, Ex-Stanford swimmer Brock Turner leaves jail Friday but controversy still rages, Wash. Post (Aug. 30, 2016), https://perma.cc/7 V9J-VBEW. News reports used court records to examine the evidence against Turner, allowing the public to better understand—and criticize—how the criminal justice system handled his case. See, e.g., Susan Svrluga, ‘Did you rage?’ In Stanford sexual assault case, court records shed new light, Wash. Post (June 10, 2016), https://perma.cc/C8F4-FKJA; Ray Sanchez, Stanford rape case: Inside the court documents, CNN (June 11, 2016), https://perma.cc/389Z-EU35; Hannah Knowles, Documents from Court, District Attorney reveal details in Brock Turner case, Stanford Daily (June 10, 2016), https://perma.cc/3C7R-57CW.

Similarly, when comedian Bill Cosby was tried and convicted of three counts of aggravated indecent assault, the news media used court records to report arguments presented in the case, as well as how the judge ruled on various motions. Eric Levenson, Bill Cosby’s maximum sentence now 10 years after charges merged, CNN (Sept. 24, 2018), https://perma.cc/A7JY-J9Q6; see also Eric Levenson, Bill Cosby sentenced to 3 to 10 years in prison for sexual assault, CNN

(Sept. 26, 2018), https://perma.cc/WQ82-7SBZ. Some advocates for reform of 11

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sexual violence laws lauded Cosby’s sentencing as one that inspired confidence in the judicial system. Id.

In short, the press regularly uses court records to report on cases related to allegations of sexual assault, and such reporting allows “the public to participate in and serve as a check upon the judicial process.” Globe Newspaper Co., 457 U.S. at 606.

B. This case, in particular, relates to a matter that has been the subject of widespread reporting and is certainly a matter of public concern.

Not only does the public have a legitimate interest in the general subject matter of this dispute, see Section II.A., supra, the interest in this case and in its related judicial records is particularly acute due to the variety of public figures and public officials who are alleged to be connected to Jeffrey Epstein and his victims, such as President Donald Trump, former-President Bill Clinton, Prince Andrew, Duke of York, and Alan Dershowitz. See, e.g., Jan Musgrave, Will President Trump be used as witness in sex offender Epstein’s case?, Palm Beach Post (May 12, 2017), https://perma.cc/GPA7-QRLR;; Josh Gerstein, The one weird court case linking Trump, Clinton, and a billionaire pedophile, Politico (May 14, 2017), https://perma.cc/8D55-QGJU; Josh Gerstein, Woman who sued convicted billionaire over sex abuse levels claims at his friends, Politico (Dec. 31, 2014),

https://perma.cc/QWC9-A2FF; Tom Leonard, Prince Andrew risks losing

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ambassador job as girl in underage sex case reveals meeting him, Daily Mail (Mar. 2, 2011), http://dailym.ai/2wni8s1; Alan Dershowitz, Alan Dershowitz: ‘T never had sex with Virginia Roberts’, Miami Herald (Dec. 2, 2018), https://perma.cc/HYW5-D2MM (letter to the editor by Dershowitz in which he states that sealed court records “directly establishes [his] innocence”’).

Here, the Miami Herald seeks access to court records so that it may continue its groundbreaking investigative reporting on the handling of Epstein’s criminal prosecution, as well as related civil litigation. See Br. and Special App. for Intervenors-Appellants at 4-5. Epstein’s plea deal, under which he pled guilty to state criminal charges and agreed to serve a 13-month sentence, continues to make headlines. David Von Drehle, Jeffrey Epstein’s plea deal is a travesty. But we can still find justice, Washington Post (Dec. 11, 2018), https://perma.cc/RZR2-JCWE; Conchita Sarnoff, Jeffrey Epstein, Billionaire Pedophile, Goes Free, Daily Beast (July 20, 2010), https://perma.cc/HMC3-HQJG. Recently, a group of legislators called for a Department of Justice probe into now-U.S. Secretary of Labor Alexander Acosta’s involvement in the deal, in his prior capacity as the U.S. Attorney for the Southern District of Florida. See Julie K. Brown et al, Lawmakers issue call for investigation of serial sex abuser Jeffrey Epstein’s plea deal, Miami Herald (Dec. 6, 2018), https://perma.cc/H6ZB-D6Z2; Julie K. Brown, How a

future Trump Cabinet member gave a serial sex abuser the deal of a lifetime, 13

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Miami Herald (Nov. 28, 2018), https://perma.cc/GA2C-UW97. Other litigation related to Epstein and his victims has been the subject of recent news reports as well. See Julie K. Brown & Caitlin Ostroff, Epstein sex abuse victims press judge for decision on tossing his lenient plea deal, Miami Herald, (Dec. 10, 2018), https://perma.cc/7RL8-V5FL; Patricia Mazzei, Jeffrey Epstein Settles Lawsuit, Avoiding Testimony From Accusers in Sex Case, N.Y. Times (Dec. 4, 2018), https://nyti.ms/2zKIGro.

These matters have received extensive coverage in the news media because they are of significant and legitimate interest to the public. Reporting related to the allegations against Epstein—which are central to this case—is not to “promote scandal” or misuse judicial records “to gratify private spite,” as the district court stated. Sp.A.-40. Nor is it an attempt to disseminate “reservoirs of libelous statements.” Jd. Rather, coverage of this case builds public understanding of a major news story that implicates national conversations related to sexual assault, the actions of public officials and public figures, and the role of the courts in litigating these disputes. Access to the Summary Judgment Documents will further public monitoring of the judicial system in a case that is of paramount public

interest.

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C. | Astrong presumption of access applies to a motion for summary judgment and documents filed in connection thereto, even when that motion is denied.

Amici agree with the Miami Herald that, in addition to giving short-shrift to the powerful public interest in this case, the district court erroneously concluded that under the common law the presumption of access to the Summary Judgment Documents “is less” because the “‘district court denied the summary judgment motion.’” Sp.A.-34 (quoting Amodeo IT, 71 F.3d at 1049); see Br. and Special App. for Intervenors-Appellants at 20-21.

In support of that conclusion, the district court quoted Amodeo IT, which itself cited, in dicta, a partial concurrence and partial dissent from the D.C. Circuit’s decision in In re Reporters Committee for Freedom of the Press, 773 F.2d 1325, 1342, n.3 (D.C. Cir. 1985). Jd. (quoting Amodeo IT, 71 F.3d at 1049). However, in Lugosch v. Pyramid Co. of Onondaga, this Court expressly rejected reliance on that dicta as “neither central to our holding nor a point of thorough analysis” in Amodeo II. 435 F.3d 110, 121 (2d Cir. 2006). Moreover, this Court in Lugosch also clarified that the presumption of access to motions for summary judgment and related documents “is of the highest [order]: ‘documents used by parties moving for, or opposing, summary judgment should not remain under seal absent the most compelling reasons.’” Jd. at 123 (quoting Joy v. North, 692 F.2d

880, 893 (2d Cir. 1982)). Thus, the district court erred in attaching little weight to 15

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the common law presumption of access to the Summary Judgment Documents because of the district court’s denial of the motion. The public has just as great an interest in understanding why a court has denied a motion for summary judgment as it would in understanding why a court has granted such a motion.

The public also has a particularly strong interest in access to the entirety of the district court’s opinion granting or denying a motion for summary judgment under both the First Amendment and the common law. See Co. Doe v. Pub. Citizen, 749 F.3d 246, 267 (4th Cir. 2014) (“The public has an interest in learning not only the evidence and records filed in connection with summary judgment proceedings but also the district court’s decision ruling on a summary judgment motion and the grounds supporting its decision. Without access to judicial opinions, public oversight of the courts, including the processes and the outcomes they produce, would be impossible.”). As this Court has observed, “Transparency is pivotal to public perception of the judiciary’s legitimacy and independence. . . . Because the Constitution grants the judiciary ‘neither force nor will, but merely judgment,’ The Federalist No. 78 (Alexander Hamilton), courts must impede scrutiny of the exercise of that judgment only in the rarest of circumstances.” United States v. Aref, 533 F.3d 72, 83 (2d Cir. 2008). Thus, “[1] n the top drawer of judicial records are documents authored or generated by the court itself in

discharging its public duties, including opinions, orders, judgments, docket sheets, 16

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and other information related to the court’s public functions” and “this drawer is hardly ever closed to the public.” Jn re Sealing & Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d 876, 891 (S.D. Tex. 2008). As the United States Court of Appeals for the Seventh Circuit has explained:

What happens in the federal courts is presumptively open to public scrutiny. Judges deliberate in private but issue public decisions after public arguments based on public records. The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat and requires rigorous justification. The Supreme Court issues public opinions in all cases, even those said to involve state secrets. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). A district court issued public opinions in a case dealing with construction plans for hydrogen bombs. United States v. Progressive, Inc., 467 F.Supp. 990, rehearing denied, 486 F.Supp. 5 (W.D.Wis.), appeal dismissed, 610 F.2d 819 (7th Cir.1979). ...

Hicklin Eng’g, L.C. v. Bartell, 439 F.3d 346, 348—49 (7th Cir. 2006), abrogated on other grounds by RTP LLC v. ORIX Real Estate Capital, Inc., 827 F.3d 689, 692 (7th Cir. 2016). In other words, public access to judicial decisions, in particular, plays an especially important role in ensuring public trust in the judiciary. III. Generalized privacy interests cannot support sealing.

The district court’s decision focused on “the privacy rights of individuals,”

citing caselaw related to, inter alia, the Fourth Amendment, Freedom of

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Information Act, and trade secrets. Sp.A.-16—19. But broad, general notions of privacy are not enough to demonstrate either a “higher value” that overcomes the First Amendment presumption of access, see Press-Enter. Co. v. Superior Court, 478 U.S. 1, 13-14 (1986) (“Press-Enterprise IT’), or a “substantial interest” that overcomes the common law presumption of access, Under Seal v. Under Seal, 273 F. Supp. 3d 460, 467 (S.D.N.Y. 2017).

The First Amendment right of access requires that judicial documents may be sealed only if and to the extent that “specific, on the record findings . . .

999

demonstrat[e] that ‘closure is essential to preserve higher values[.|’” Press- Enterprise II, 478 U.S. at 13-14 (quoting Press Enterprise I, 464 U.S. at 510). “Broad and general findings” by the district court “are not sufficient to justify closure.” In re N.Y. Times Co., 828 F.2d 110, 116 (2d Cir. 1987).

As an initial matter, as the Miami Herald notes, the alleged victim of sexual abuse and trafficking in this case, Ms. Giuffre, who is now an adult, has advocated for unsealing all of the records in this case. See Br. and Special App. for Intervenors-Appellants at 22 (citing A.-428). In addition, the revelation of information related to sexual assault of minors does not automatically create a compelling interest that overcomes the First Amendment or common law rights of

access, as the district court erroneously concluded. Sp.A.-38—40. For example, in

Globe Newspapers, the Supreme Court struck down a Massachusetts statute that 18

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automatically closed court proceedings during the testimony of minor victims of sexual offenses, concluding that whether the First Amendment presumption of access had been overcome must be determined on a case-by-case basis. 457 U.S. at 608-09.

Here, generalized privacy interests of the alleged victims and perpetrators of sexual abuse and trafficking cannot overcome the public’s strong interest in access.

IV. The district court failed to make an independent determination regarding the sealing of specific records.

This Court has made clear that it is “improper” for a district court “to delegate its authority” regarding the sealing of judicial records to litigants; a district court must “make its own redactions, supported by specific findings, after a careful review of all claims for and against access.” United States v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995) (“Amodeo I’). Here, the district court permitted the parties to make redactions to the Summary Judgment Documents based on the parties’ determinations as to what information should be kept from the press and the public. See Sp.A.-32 (stating that certain portions of the Summary Judgment Documents “reveal[] the substance of the evidence jointly deemed confidential by the parties. It was therefore redacted by the parties”). In denying the Miami Herald’s motion to unseal the Summary Judgment Documents, the district court

simply accepted the parties’ decisions regarding redactions without any indication ply p p g g y

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that it had conducted an independent, particularized review of the propriety of those redactions. See id. at 33-35.

The First Amendment required the district court to evaluate each specific portion of the Summary Judgment Documents that the parties redacted to determine if the presumption of access was overcome. See Press-Enterprise I, 464 U.S. at 510 (stating that a lower court must articulate an overriding interest “along with findings specific enough that a reviewing court can determine whether the closure order was properly entered”). There is no indication that the district court did so. The district court merely found that the Summary Judgment Documents, in general, discuss allegations of sexual assault and sexual trafficking of minors—a conclusory finding that does not justify keeping any specific portion of any document under seal.

In addition, the district court ignored the Miami Herald’s motion to unseal Mr. Dershowitz’s motion to intervene and the order denying that motion. Just as the district court was required to undertake an individualized analysis of the redactions to the Summary Judgment Documents that were made by the parties, it should also have considered whether an overriding or substantial interest justified

sealing Mr. Dershowitz’s motion to intervene and the order denying that motion.

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CONCLUSION For the foregoing reasons and those set forth in the Miami Herald’s brief, amici curiae urge this Court to reverse the district court’s order denying access to judicial documents in this case. Respectfully submitted,