United States v. Index Newspapers

Although the public has no First Amendment right of access to grand jury proceedings, once a grand jury witness has been held in contempt and ordered to confinement, the public has a right of access to public portions of contempt proceedings, including transcripts and relevant filings, subject to government redactions; however, there is no right of public access to closed contempt proceedings because matters and testimony relating to the grand jury investigation are involved.

On May 1, 2012, Matthew Duran and other May Day demonstrators, vandalized buildings, cars, and a United States Courthouse. Index Newspapers (“Newspaper”) began covering the grand jury investigation where Duran was subpoenaed to testify. Duran refused to testify and was held in contempt and ordered to confinement in district court, the courtroom being closed to the public for the factual finding portion. Five months later, Duran moved to terminate confinement, and the district court ordered him released from custody. Duran’s contempt case was sealed, the public precluded from both paper and electronic access to documents pertaining to the case. The Newspaper intervened, moving to unseal portions of Duran’s contempt proceeding not containing issues protected by grand jury secrecy requirements. The district court granted the Newspaper’s motion in part and denied it in part, holding that the public does not have access to a grand jury or its ancillary proceedings. On appeal, the Ninth Circuit held that there is a First Amendment public right of access to the transcript and filings from Duran’s contempt proceeding because “no substantial probability” exists that grand jury secrecy will be jeopardized by disclosure thereof, and compelling government interests to maintain secrecy being sufficiently protected by redaction of the documents when necessary. Accordingly, the panel concluded that the district court’s docket, Duran’s confinement status hearing, the request for release, and the order holding Duran in contempt must be unsealed. However, the panel concluded that there is no right of public access to Duran’s motion to quash the grand jury subpoena, the closed portions of his contempt proceeding containing matters discussed before the grand jury, and the motion holding Duran in contempt, because the harm of disclosing judicial records that include grand jury testimony or information pertaining to the investigation would far outweigh the benefit of public disclosure. AFFIRMED in part, REVERSED in part, and REMANDED.