Case: 1:13-cv-00341-MRB Doc #: 342 Filed: 05/16/17 Page: 1 of 9 PAGEID #: 11202

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION-CINCINNATI

NORCAL TEA PARTY PATRIOTS,

ON BEHALF OF ITSELF,ITS Civil Action No. 1:13-cv-00341
MEMBERS,AND THE CLASS IT
SEEKS TO REPRESENT,

Plaintiff,
THE CINCINNATI ENQUIRER,A
v. DIVISION OF GANNETT GP
MEDIA,INC.'S MOTION TO
INTERVENE

THE INTERNAL REVENUE SERVICE,

THE UNITED STATES DEPARTMENT
OF THE TREASURY, and CURRENT
AND FORMER EMPLOYEES OF THE
INTERNAL REVENUE SERVICE
IDENTIFIED AS JOHN DOES 1-100,

Defendants.

Pursuant to Fed. R. Civ. P. 24(b)(1), The Cincinnati Enquirer, a division of

Gannett GP Media, Inc.("The Enquirer"), respectfully moves this Court to permit it to

intervene in this action for the purpose of opposing the Motion to File Motion for

Protection Order and Supporting Materials Under seal ("Motion") filed by Lois Lerner

and Holly Paz. The Enquirer also requests leave to intervene to object to this Court's

decision to conduct a closed hearing on the Motion.

A memorandum in support of The Enquirer's Motion to Intervene, a proposed

order, and a proposed memorandum in opposition to the Motion are attached.

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Respectfully submitted,

/s/ John C. Greiner

John C. Greiner (005551)
GRAYDON HEAD & RITCHEY LLP
312 Walnut Street, Suite 1800
Cincinnati, OH 45202
Phone: (513)629-2734
Facsimile:(859)651-3836
Email: jgreiner@graydon.law

ATTORNEYS FOR INTERVENOR

THE CINCINNATI ENQUIRER,A
DIVISION OF GANNETT GP
MEDIA,INC.

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MEMORANDUM IN SUPPORT OF MOTION TO INTERVENE

The Enquirer respectfully moves this Court to permit it to intervene in this action

to protect its right to gather news,and its right to access documents filed in public court

proceedingsrights protected by the First Amendment to the United States

Constitution. The Enquirer requests that it be permitted to intervene as its First

Amendment claim of interest in access to these proceedings shares a common question

of law with the issues raised by the Motion.

BACKGROUND

This case presents issues of intense public interest. The Complaint alleges that

the Internal Revenue Service engaged in politically motivated intimidation. It is hard to

imagine a more serious charge that could be leveled in a democracy.

And yet, based on nothing more than vague concerns about their safety, the

Movants ask this Court to shield from public view materials submitted to this Court.

Movants would also have this Court lock its doors to citizens who have a right to attend

those proceedings.

There is no ground for such draconian measures and this Court should not allow

a curtain to be drawn on these proceedings.

DISCUSSION

The press has a well-established right to defend against actions taken by federal

courts that would impede their ability to gather news, or access documents filed in a

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civil judicial proceeding. See, e.g., CBS, Inc. v. Young, 522 F.2d 234, 238 (6th Cir. 1975)

(holding that CBS had standing to challenge federal court's gag order preventing

counsel and parties from discussing litigation arising out of Kent State University

shooting); In re Search Warrant, No. M-3-94-80, 1996 U.S. Dist. LEXIS 22514 (S.D. Ohio

Aug. 20, 1996)(permitting news organizations to intervene in action to unseal search

warrant and other search materials pursuant to Fed. R. Civ. P. 24(b)); United States v.

Dairy Farmers ofAm., No.03-206-KSF, 2005 U.S. Dist. LEXIS 17897, at *11 (E.D. Ky. Aug.

23, 2005)(implying Chicago Tribune had standing to intervene to challenge sealing of

documents pursuant to agreed Rule 26 protective order).

Were this Court to grant the relief requested by the Motion, such action would

inevitably harm The Enquirer's First Amendment interests. Permitting The Enquirer to

intervene to oppose the Motion to protect those interests is thus appropriate under Rule

24. Cf. Jessup v. Luther, 227 F.3d 993, 997(7th Cir. 2000)(recognizing "intervention as the

logical and appropriate vehicle by which the public and the press may challenge a

closure order"). See also United States v. Microsoft, No. 98-1232 & 1233, 2002 U.S. Dist.

LEXIS 8604 (D.D.C. Jan. 28, 2002)(permitting various news organizations to intervene

to oppose Microsoft's motion to vacate prior court orders permitting media

organizations right to access all depositions taken in the case).

A. Rule 24(b) Standard of Review.

Rule 24(b)(1)(B) provides:

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On timely motion, the court may permit anyone to intervene who... has a
claim or defense that shares with the main action a common question of
law or fact.

Subsection (b)(3) provides that "[i]n exercising its discretion, the court must consider

whether the intervention will unduly delay or prejudice the adjudication of the original

parties' rights."

The Sixth Circuit has long recognized the right of the public and press to

intervene in an action where their First Amendment rights were imperiled. See Brown &

Williamson Tobacco Corporation v. Federal Trade Comm'n, 710 F.2d 1165 (6th Cir. 1983). It

has opined that a district court "should not be placed in the position of sole guardian of

first amendment interests even against the express wishes of both parties," and that

"the public and press should be afforded, where possible, an independent opportunity

to present their claims." In re Knoxville News-Sentinel Co., 723 F.2d 470, 475 (6th Cir.

1983). Accordingly, where the press's First Amendment rights are implicated, Sixth

Circuit precedent "require[s] that the public and press be given an opportunity to

respond before being denied their presumptive right of access to judicial records." Id.

Here, The Enquirer's First Amendment rights are implicated by the Motion and the

prospect of a closed hearing.

B. The Enquirer has a First Amendment right to gather news, and

enjoining the plaintiff and her counsel against speaking with the press
would impair The Enquirer's ability to engage in that protected activity.

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The First Amendment protects the press's right to gather news. See CBS, Inc. v.

Young, 522 F.2d 234, 238 (6th Cir. 1975)(citing Branzburg v. Hayes, 408 U.S. 665 (1972)).

The Sixth Circuit, in CBS, Inc., held that a federal district court's gag order, which

prevented "all counsel" and "all parties" to civil litigation arising out of the Kent State

University campus shootings from discussing the case, "curtailed" CBS's and other

news organizations' "protected right to obtain information concerning the trial." CBS,

Inc., 522 F.2d at 239. This was so even though the gag order did not prevent the news

media from reporting on the case, because "significant and meaningful sources of

information concerning the case[were]effectively removed." Id.

The Motion would have the same effect of removing "significant and meaningful

sources of information" about this litigation. The materials submitted by Movants are a

part of the proceedings and should be subject to public inspection. Moreover, given the

nature of these proceedings, any decision by this court to prevent public access will add

to the suspicion and mistrust already raised by the allegations.

C. The Enquirer has a presumptive First Amendment right to access

documents filed in the public record.

"[A] court's discretion to seal its records is bounded by a long-established legal

tradition of the presumptive right of the public to inspect and copy judicial documents

and files." Rudd Equip. Co. v. John Deere Constr. & Forestry Co., No. 16-5055, 2016 U.S.

App. LEXIS 15270, at *7(6th Cir. July 27, 2016). The Sixth Circuit recently explained, in

Rudd Equip. Co., that "[i]n light of the important rights involved . . . only the most

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compelling reasons can justify non-disclosure of judicial records." Id. (internal

quotations and citations omitted).

Moreover, "a trial court in closing a proceeding must both articulate the

countervailing interest it seeks to protect and make "findings specific enough that a

reviewing court can determine whether the closure order was properly entered. See

Press-Enterprise Co. v. Superior Court of California, Riverside County, U.S. ,104 S.Ct.

819, 824, 78 L.Ed.2d 629 (1984); In re Iowa Freedom ofInformation Council, 724 F.2d at 662.

Substantively, the record before the trial court must demonstrate "an overriding interest

based on findings that closure is essential to preserve higher values and is narrowly

tailored to serve that interest." Press-Enterprise Co. v. Superior Court of California, Riverside

County, 104 S.Ct. at 824.

Allowing Movants to keep these judicial records secret would not only deprive

The Enquirer of its ability to report on the conduct of the litigation, but also deny the

public its ability to "assess for itself the merits of judicial decisions." Id. at *9. The

public's interest in assessing the merits of judicial decisions is not just limited to the

result, as observed by the Rudd Equip Co. court, "but also on the conduct giving rise to

the case." Id.

Accordingly, because The Enquirer has a presumptive First Amendment right to

access documents filed in the public court record in this case, the Court should permit it

to intervene to defend that right.

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D. Permitting The Enquirer to intervene in this case would not

result in undue delay, or prejudice the adjudication of the original
parties'rights.

Permitting The Enquirer to intervene for the limited purpose of opposing the

Motion would not cause any undue delay in the resolution of proceedings, as it tenders

its memorandum in opposition with this Motion, and the Court will necessarily rule on

the Motion irrespective of whether it permits The Enquirer to intervene. As such, any

delay would be slight, and inconsequential when weighed against the constitutional

rights at stake.

Likewise, allowing The Enquirer to intervene would not prejudice the

adjudication of the parties' rights. The First Amendment issues implicated by the

Motion have no bearing on the rights at issue in the underlying litigation. Nor will The

Enquirer remain involved in this litigation beyond the time necessary to defend its First

Amendment rights.

CONCLUSION

In light of long-standing Sixth Circuit case law requiring a Court to permit a

member of the press to intervene in an action to defend First Amendment rights where

possible, and the absence of prejudice as a result of delay or otherwise, The Enquirer

respectfully requests that the Court GRANT its motion to intervene.

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Respectfully submitted,

/s/ John C. Greiner

John C. Greiner(005551)
GRAYDON HEAD & RITCHEY LLP
312 Walnut Street, Suite 1800
Cincinnati, OH 45202
Phone: (513)629-2734
Facsimile:(859)651-3836
Email: jgreiner@graydon.law

ATTORNEYS FOR INTERVENOR

THE CINCINNATI ENQUIRER, A
DIVISION OF GANNETT GP
MEDIA,INC.

CERTIFICATE OF SERVICE

I hereby certify that on May 16, 2017 I electronically filed the foregoing Motion to
Intervene with the Clerk of Court by using the CM/ECF system, which will send notice
of electronic filing, if applicable, to the following:

David R. Langdon Todd P. Graves

Joshua B. Bolinger Edward D. Greim
LANGDON LAW LLC GRAVES BARTLE MARCUS & GARRETT,LLC
8913 Cincinnati-Dayton Rd. 1100 Main Street, Suite 2700
West Chester, OH 45069 Kansas City, MO 64105
dlangdon(a),langdonlaw.com tgravesAgbmglaw.com
bolinger@langdonlaw.com edgreim@gbmglaw.com

/s/ John C. Greiner

John C. Greiner(005551)

7512241.1