United States District Court, E.D. North Carolina, Western Division
E. Gates United States Magistrate Judge
case comes before the court on two motions to seal by
defendant: his renewed motion (D.E. 47) to seal his detention
hearing and his motion (D.E. 46) to seal the memorandum (D.E.
45) supporting the renewed motion ("supporting
memorandum"). The detention hearing and supporting
memorandum have been under provisional seal pending further
action by the court. For the reasons set forth below, the
motions will be allowed. The court will also set out
directives regarding an outstanding sealing issue not
addressed in defendant's motion.
right of public access in criminal cases derives
independently from the First Amendment and the common law.
In re U.S. for an Order Pursuant to 18 U.S.C. Section
2703(d), 707 F.3d 283, 290 (4th Cir. 2013) (citing
Va. Dep't of State Police v. Wash. Post, 386
F.3d 567, 575 (4th Cir. 2004)).
"The distinction between the rights of access afforded
by the common law and the First Amendment is
'significant, ' because the common law 'does not
afford as much substantive protection to the interests of the
press and the public as does the First Amendment.'"
Id. (quoting [Baltimore Sun Co. v.] Goetz,
886 F.2d [60, ] 64; Rushford v. New Yorker Magazine,
846 F.2d 249, 253 (4th Cir. 1988)). Specifically, the common
law presumes a right to access all judicial records and
documents, but this presumption can be rebutted if "the
public's right of access is outweighed by competing
interests." In re Knight Publ'g Co., 743
F.2d 231, 235 (4th Cir. 1984); see United States v.
Moussaoui, 65 F.App'x 881, 886 (4th Cir. 2003)
(unpublished). On the other hand, the First Amendment
provides a right of access only to particular judicial
records and documents, and this right yields only in the
existence of a "compelling governmental interest . . .
[that is] narrowly tailored to serve that interest."
Va. Dep 't of State Police, 386 F.3d at 575.
initially to the First Amendment right of access, the Fourth
Circuit employs the "experience and logic" test to
determine whether it applies. Id. at 291. That test
ask[s]: "(1) 'whether the place and process have
historically been open to the press and general public, '
and (2) 'whether public access plays a significant
positive role in the functioning of the particular process in
question."' Goetz, 886 F.2d at 64 (quoting
Press-Enterprise Co. v. Superior Court, 478 U.S. 1,
8-10, 106 S.Ct. 2735, 92L.Ed.2dl (1988)).
court finds that the First Amendment right of public access
applies to the detention hearing and supporting memorandum.
Detention hearings have both been historically open to the
press and public, and public access has played a significant
role in assuring proper decisions are reached. See United
States v. Chagra, 701 F.2d 354, 363 (5th Cir. 1983)
("Pretrial release proceedings require decisions that
attract significant public interest and invite legitimate and
healthy public scrutiny."); In re Globe Newspaper
Co., 729 F.2d 47, 52 (1st Cir. 1984) ("[T]he bail
decision is one on major importance to the administration of
justice, and openness will help to assure the public that the
decision is properly reached."); see also United
States v. Leonardo, 129 F.Supp.2d 240, 243 (W.D.N.Y.
2001) (finding that the public's First Amendment right to
access extends to detention hearings).
stated above, the First Amendment right to access yields only
in the existence of a "compelling governmental
interest... [that is] narrowly tailored to serve that
interest." Va. Dep't of State Police, 386
F.3d at 575. Moreover, before a court may seal a hearing or
document, "it must (1) provide public notice of the
request to seal and allow interested parties a reasonable
opportunity to object, (2) consider less drastic alternatives
to sealing .. ., and (3) provide specific reasons and factual
findings supporting its decision." Ashcroft v.
Conoco, Inc., 218 F.3d 288. 302 (4th Cir. 2000) (citing
In re Knight Publ'g Co., 743 F.2d at 235-36);
see also In re Washington Post Co., 807 F.2d 383,
390-91 (4th Cir. 1986).
the court agrees that there is a compelling interest, and
sealing the detention hearing and supporting memorandum is
narrowly tailored to serve that interest. Based on the facts
and reasons stated in the memorandum supporting the renewed
motion (Support. Mem. 1), it therefore finds that the First
Amendment right to access has been overcome. Based on these
same facts and reasons, the court also finds that
alternatives to sealing do not exist at this time.
addition, interested parties were given a reasonable
opportunity to object. The motions to seal were filed on 24
August 2017, and no opposition to them has been filed by any
party or non-party.
THEREFORE ORDERED that defendant's renewed motion (D.E.
47) to seal the detention hearing and motion (D.E. 46) to
seal the supporting memorandum are ALLOWED. Defendant's
detention hearing and the supporting memorandum (D.E. 45)