10 06 17courthouse

Case: 17-56331, 10/03/2017, ID: 10604647, DktEntry: 12, Page 1 of 70
U.S. Court of Appeals Docket No. 17-56331

___________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

___________________________________________________________
COURTHOUSE NEWS SERVICE,
Plaintiff/Appellant,
vs.
DAVID YAMASAKI, in his official capacity as Court Executive Officer/Clerk of

the Orange County Superior Court,
Defendant/Appellee.
___________________________________________________________
On Appeal from a Decision of the United States District Court

for the Central District of California
Case No. 8:17-cv-00126 AG (KESx)
The Honorable Andrew J. Guilford
___________________________________________________________
OPENING BRIEF OF APPELLANT

COURTHOUSE NEWS SERVICE
___________________________________________________________
Rachel Matteo-Boehm, Esq.

Roger Myers, Esq.
Katherine Keating, Esq.
Jonathan G. Fetterly, Esq.
BRYAN CAVE LLP
Three Embarcadero Center, 7th Floor
San Francisco, CA 94111
Tel: 415-675-3400
rachel.matteo-boehm@bryancave.com
Attorneys for Plaintiff-Appellant

COURTHOUSE NEWS SERVICE
10652620.1
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, Plaintiff-Appellant
Courthouse News Service hereby certifies that is a privately held corporation with
no parent corporation and that no publicly held corporation holds more than 10
percent of its stock.
DATED: October 3, 2017 BRYAN CAVE LLP

RACHEL MATTEO-BOEHM
ROGER MYERS
KATHERINE KEATING
JONATHAN G. FETTERLY
By: /s/ Rachel Matteo-Boehm

Rachel Matteo-Boehm
Courthouse News Service
10652620.1
TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT
STATEMENT OF JURISDICTION....................................................................... 1
STATEMENT OF ISSUES PRESENTED FOR REVIEW ................................... 2
INTRODUCTION .................................................................................................. 4
STATEMENT OF THE CASE............................................................................... 6
A. There Is A Long History Of Timely Access

To Complaints On Receipt ...................................................................... 8
B. When OCSC Moved Access After Processing,

Delays In Access Began .......................................................................... 9
C. Jackson Struck Down A Similar Policy,

But OCSC Refused To Change ...............................................................10
D. Planet Enjoined VSC From Denying Access

For A Day Without Cause .......................................................................11
E. OCSC Refused To Admit Planet Rejected Process Before Access ....13
F. Tingling Enjoined A One-Day Delay

For Privacy Review Before Access.........................................................14
G. OCSCs Defense Could Not Be Reconciled

With Planet Or Tingling..........................................................................15
H. The Court Wanted Evidence About CNS,

Not Defendants Justification ..................................................................17
I. The New Evidence, Supplemental Brief And Media Amici Brief

Demonstrated The Public Benefit From Timely Access By CNS ..........19
J. In Finding OCSCs Delays Constitutional, The Order Did Not Cite

The Key Part Of Planet, Tingling Or The Public Benefit Noted By
The Media................................................................................................20
i
SUMMARY OF THE ARGUMENT .....................................................................22
I. THE ORDER BELOW CANNOT SURVIVE ANY LEVEL OF

REVIEW, NOT LEAST THE DE NOVO REVIEW GIVEN FREE
SPEECH CASES, ESPECIALLY OF ORDERS UPHOLDING
RESTRICTIONS ON SPEECH......................................................................23
II. THE ORDER BELOW ERRED IN FINDING ACCESS IS TIMELY

IF MEASURED IN BUSINESS HOURS WHERE ACCESS IS
DENIED ONE TO NINE DAYS TO ALMOST HALF OF ALL NEW
COMPLAINTS ...............................................................................................25
A. Under The First Amendment, Access To Complaints Must Be

Timely......................................................................................................26
B. By Allowing Routine Denials Of Access One To Five Days, The

Orders Within 8 Business Hours Rule Violates The Right Of
Timely Access .........................................................................................28
1. Delayed Access Violates Precedent The Order Fails To

Acknowledge ...................................................................................29
2. Measuring In Business Hours Does Not Make Delayed Access

Timely..............................................................................................32
III. THE ORDER BELOW ALSO ERRED IN ACCEPTING DEFENDANTS

ASSERTIONS ABOUT WHY HE NEEDED TO DELAY ACCESS
WITHOUT REQUIRING ANY EVIDENCE TO SUPPORT THEM...........35
A. The Order Did Not Meet The Procedural And Substantive

Prerequisites Required For Restrictions On Access To Survive
Appellate Review ....................................................................................38
B. The Orders Implicit Findings Are Utterly Unsupported By The

Record......................................................................................................38
1. If OCSC Is Legally Required To Protect Privacy, The Order

Did Not Explain Why Other Courts Allow Access Sans
Confidentiality Review....................................................................39
2. OCSC Presented And The Order Cited No Evidence Of A

Privacy Risk.....................................................................................40
ii
3. The Order Did Not Address Alternatives To Barring Access

Pre-Review.......................................................................................42
C. The Order Misallocated The Burdens Of Proof And Persuasion............43
IV. THIS COURT SHOULD REMAND WITH INSTRUCTIONS TO

GRANT CNS A PRELIMINARY INJUNCTION.........................................45
A. The First Amendment Violations At OCSC Constitute Irreparable

Harm ........................................................................................................46
B. The Balance Of Equities And Public Interest Also Favor An

Injunction.................................................................................................47
C. The Balance Of Harms Sharply Favors CNSs First Amendment

Claim .......................................................................................................50
CONCLUSION.......................................................................................................53
STATEMENT OF RELATED CASE
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
FORM 8. Certificate of Compliance
iii
TABLE OF AUTHORITIES
Page(s)
Federal Cases
Ahanchian v. Xenon Pictures,
624 F.3d 1253 (9th Cir. 2010).............................................................................. 31
Alliance for Wild Rockies v. Cottrell,

632 F.3d 1127 (9th Cir. 2011).................................................................. 21, 32, 45
Associated Press v. Otter,

682 F.3d 821 (9th Cir. 2012).................................................................... 45, 46, 47
Associated Press v. Dist. Court,

705 F.2d 1143 (9th Cir. 1983).............................................................................. 30
Association Des leveurs De Canards et DOies Du Quebec v. Harris,

2012 WL 12842942 (C.D. Cal. 2012).................................................................. 46
Beck v. City of Upland,

527 F.3d 853 (9th Cir. 2008)................................................................................ 45
Bernstein v. Bernstein Litowitz Berger & Grossmann LLP,

2016 WL 1071107 (S.D.N.Y. Mar. 18, 2016) ..................................................... 34
Bernstein v. Bernstein Litowitz Berger & Grossmann LLP,

814 F.3d 132 (2d Cir. 2016)............................................................... 31, 33, 34, 53
Brown v. California Dept of Transp.,

321 F.3d 1217 (9th Cir. 2003)........................................................................ 23, 24
Brown v. Entmt Merchants Assn,

564 U.S. 786 (2011) ............................................................................................. 50
CNS v. Gabel,
2:2017-cv-00043 (D. Vt. Mar. 17, 2017)............................................................. 15
CNS v. Jackson,
2009 WL 2163609 (S.D. Tex. July 20, 2009).................................... 10, 14, 31, 46
iv
CNS v. Jackson,
2010 WL 11546125 (S.D. Tex. Feb. 26, 2010) ................................................... 10
CNS v. Planet,
2016 WL 4157210 (C.D. Cal. May 26, 2016) ..............................................Passim
CNS v. Planet,
750 F.3d 776 (9th Cir. 2014).........................................................................Passim
CNS v. Planet,
614 Fed. Appx 912 (9th Cir. 2015)..............................................................Passim
CNS v. Tingling,
2016 WL 8505086 (S.D.N.Y. Dec. 16, 2016) ..................................................... 14
CNS v. Tingling,
2016 WL 8739010 (S.D.N.Y. Dec. 16, 2016) ..............................................Passim
Comite de Jornaleros de Redondo Beach v. City of Redondo Beach,

657 F.3d 936 (9th Cir. 2011)................................................................................ 43
Daily Herald Co. v. Munro,

838 F.2d 380 (9th Cir. 1988).......................................................................... 23, 24
Daily Herald Co. v. Munro,

758 F.2d 350 (9th Cir. 1984)................................................................................ 49
Dex Media West v. City of Seattle,

696 F.3d 952 (9th Cir. 2012)................................................................................ 49
Dhiab v. Trump,
852 F.3d 1087 (D.C. Cir. 2017) ........................................................................... 26
Doe v. Harris,
772 F.3d 563 (9th Cir. 2014)................................................................................ 46
Doe v. Pub. Citizen,

749 F.3d 246 (4th Cir. 2014).......................................................................... 29, 30
Edenfield v. Fane,
507 U.S. 761 (1993) ............................................................................................. 41
v
El Vocero de Puerto Rico v. Puerto Rico,

508 U.S. 147 (1993) ............................................................................................. 26
Elrod v. Burns,
427 U.S. 347 (1976) ............................................................................................. 18
Farmer v. Brennan,
511 U.S. 825 (1994) ............................................................................................. 34
Globe Newspaper Co. v. Pokaski,

868 F.2d 497 (1st Cir. 1989) .......................................................................... 29, 30
Globe Newspaper Co. v. Superior Court,

457 U.S. 596 (1982) ....................................................................................... 26, 27
Ground Zero Ctr. for Non-Violent Action v. Dept of Navy,

860 F.3d 1244 (9th Cir. 2017)................................................................................ 5
Grove Fresh Distribs. v. Everfresh Juice Co.,

24 F.3d 893 (7th Cir. 1994).................................................................................. 30
Hartford Courant Co. v. Pellegrino,

380 F.3d 83 (2d Cir. 2004)................................................................................... 45
Hustler Magazine v. Falwell,

485 U.S. 46 (1988) ............................................................................................... 50
In re Associated Press,
172 Fed. Appx 1 (4th Cir. 2006)......................................................................... 33
In re Charlotte Observer,
882 F.2d 850 (4th Cir. 1989)................................................................................ 33
In re Contl Ill. Sec. Litig.,

732 F.2d 1302 (7th Cir. 1984).............................................................................. 30
In re Copley Press,
518 F.3d 1022 (9th Cir. 2008)........................................................................ 26, 41
In re County of Orange,
245 B.R. 138 (C.D. Cal. 1997)............................................................................. 49
vi
In re NBC,
635 F.2d 945 (2d Cir. 1980)................................................................................. 32
Jacobsen v. U.S. Postal Service,

812 F.2d 1151 (9th Cir. 1987).................................................................. 45, 47, 51
Kamakana v. City and County of Honolulu,

447 F.3d 1172 (9th Cir. 2006).............................................................................. 44
Klein v. City of San Clemente,

584 F.3d 1196 (9th Cir. 2009).......................................................................Passim
Leigh v. Salazar,
677 F.3d 892 (9th Cir. 2012).........................................................................Passim
Lugosch v. Pyramid Co.,

435 F.3d 110 (2d Cir. 2006)..................................................................... 31, 44, 51
McCrary v. Elations Co.,

2014 WL 1779243 (C.D. Cal. Jan. 13, 2014) ...................................................... 34
Nebraska Press Assn v. Stuart,

427 U.S. 539 (1976) ............................................................................................. 34
New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ............................................................................................. 24
Nieman v. VersusLaw,
512 Fed. Appx 635 (7th Cir. 2013)..................................................................... 49
Oregonian Pub. Co. v. Dist. Court,

920 F.2d 1462 (9th Cir. 1990).......................................................................Passim
Paskenta Band of Nomlaki Indians v. Crosby,

672 Fed. Appx 762 (9th Cir. 2017)................................................................. 5, 23
Patton v. Dole,
806 F.2d 24 (2d Cir. 1986)................................................................................... 23
Phoenix Newspapers v. Dist. Court,

156 F.3d 940 (9th Cir. 1998).........................................................................Passim
vii
Pittsburgh Press Co. v Pittsburgh Commn on Human Relations,

413 U.S. 376 (1973) ............................................................................................. 49
Planned Parenthood Assn/Chicago Area v. Chicago Transit. Auth.,

767 F.2d 1225 (7th Cir. 1985).............................................................................. 24
Presley v. Georgia,
558 U.S. 209 (2010) ............................................................................................. 42
Press-Enterprise Co. v. Superior Court,

464 U.S. 501 (1984) ............................................................................................. 26
Press-Enterprise Co. v. Superior Court,

478 U.S. 1 (1986) ..........................................................................................Passim
Redman v. County of San Diego,

942 F.2d 1435 (9th Cir. 1991).............................................................................. 34
Richmond Newspapers v. Virginia,

448 U.S. 555 (1980) ....................................................................................... 26, 27
S.O.C. v. County of Clark,

152 F.3d 1136 (9th Cir.), amended 160 F.3d 541 (9th Cir. 1998)....................... 44
Sammartano v. First Judicial District Court,

303 F.3d 959 (9th Cir. 2002).......................................................................... 47, 51
Sampson v. Murray,
415 U.S. 61 (1974) ............................................................................................... 23
Seattle Times v. Dist. Court,

845 F.2d 1513 (9th Cir. 1988).............................................................................. 26
Simon & Schuster v. Members of N.Y. St. Crime Victims Bd.,

502 U.S. 105 (1991) ............................................................................................. 28
Stormans, Inc. v. Selecky,

586 F.3d 1109 (9th Cir. 2009).............................................................................. 46
Thalheimer v. City of San Diego,

645 F.3d 1109 (9th Cir. 2011).................................................................. 44, 46, 47
viii
U.S. v. Brooklier,
685 F.2d 1162 (9th Cir. 1982)............................................................ 29, 30, 36, 42
U.S. v. Guerrero,
693 F.3d 990 (9th Cir. 2012)................................................................................ 27
U.S. v. Hinkson,
585 F.3d 1247 (9th Cir. 2009).............................................................................. 32
U.S. v. Sampson,
297 F. Supp. 2d 342 (D. Mass. 2003) .................................................................. 32
U.S. v. Stevens,
559 U.S. 460 (2010) ............................................................................................. 50
U.S. v. Wecht,
537 F.3d 222 (3d Cir. 2008)................................................................................. 30
Valley Broadcasting Co. v. Dist. Court,

798 F.2d 1289 (9th Cir. 1986).............................................................................. 33
Winter v. Natural Resources Defense Council,

555 U.S. 7 (2008) ................................................................................................. 45
State Cases
Nast v. Michels,
107 Wash. 2d 300 (1986) ..................................................................................... 31
Ridenour v. Schwartz,
179 Ariz. 1 (1994) ................................................................................................ 33
Federal Statutes
28 U.S.C. 1292....................................................................................................... 1
28 U.S.C. 1331....................................................................................................... 1
28 U.S.C. 1334....................................................................................................... 1
28 U.S.C. 2201....................................................................................................... 1
42 U.S.C. 1983..............................................................................................Passim
ix
State Statutes
Civ. Proc. Code 85 ................................................................................................. 6
Civ. Proc. Code 88 ................................................................................................. 6
Civ. Proc. Code 340.1 .......................................................................................... 40
Civ. Proc. Code 580 ............................................................................................... 6
Civ. Proc. Code 1161.2 ........................................................................................ 40
Elec. Code 2166 ................................................................................................... 40
Ins. Code 1871.7 .................................................................................................. 40
Federal Rules
Federal Rule of Civil Procedure 52 .......................................................................... 5
Federal Rule of Appellate Practice 29 .................................................................... 17
Federal Rule of Appellate Procedure 26.1................................................................ 2
Federal Rule of Appellate Procedure 28................................................................... 1
Federal Rule of Appellate Procedure 4..................................................................... 1
Ninth Circuit Rule 28................................................................................................ 1
Supreme Court Rule 37.3........................................................................................ 17
State & Local Rules

Rule of Court 1.20...................................................................................................34
Rule of Court 1.201.................................................................................................40
Rule of Court 2.550.................................................................................................40
Rule of Court 2.571.................................................................................................40
Rule of Court 2.575.................................................................................................40
Rule of Court 3.51...................................................................................................40
x
Orange Cty. Super. Ct. Local Rule 79.5.2.1 ...........................................................42
Orange Cty. Super. Ct. Local Rule 352 ............................................................ 9, 13
xi
STATEMENT OF JURISDICTION
Pursuant to Federal Rule of Appellate Procedure 28(a)(4) and Ninth Circuit
Rule 28-2.2, Plaintiff-Appellant Courthouse News Service (CNS) submits the
following statement of jurisdiction:
a. CNSs claims arise under the First and Fourteenth Amendments to the
United States Constitution and the Civil Rights Act, 42 U.S.C. 1983. The district
court thus had subject matter jurisdiction pursuant to 28 U.S.C. 1331 (federal
question), 1343 (civil rights), and 2201 (declaratory relief).
b. CNS appeals the denial of its motion for a preliminary injunction.
This Court has jurisdiction pursuant to 28 U.S.C. 1292(a)(1).
c. The district court issued its Order Denying Motion for a Preliminary
Injunction (Order) on August 7, 2017. Excerpts of Record (ER) 1-10. CNS
filed its notice of appeal on September 4, 2017. ER 11. This appeal is timely
pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A).
1
STATEMENT OF ISSUES PRESENTED FOR REVIEW
1. In light of CNS v. Planet, 2016 WL 4157210 (C.D. Cal. May 26,
2016) (Planet Order) which enjoined violations of the First Amendment right
of timely access recognized in CNS v. Planet, 750 F.3d 776 (9th Cir. 2014)
(Planet I), where complaints filed late in the day may not be viewable until
the next day and CNS v. Tingling, 2016 WL 8739010 (S.D.N.Y. Dec. 16, 2016)
(Tingling Order), which enjoined violations of that right because access to a third
of complaints was delayed until the business day following the electronic filing,
did the court below err as a matter of law in denying an injunction on the ground
that Orange County Superior Court (OCSC) does not violate the First
Amendment, even though access is delayed to almost half of new complaints for
one to nine days, because most are available within 8 business hours?
2. Did the court below err as a matter of law in accepting the assertion of
Defendant David Yamasaki, Court Executive Officer/Clerk of OCSC, that he could
not allow access until complaints were reviewed to protect privacy interests even
though OCSC had said, before Planet rejected the process-then-access policy
at Ventura County Superior Court (VSC), it was denying access until after [its]
intake process [is] completed, ER 910 without making the specific findings
mandated by the procedural and substantive requirements for restricting access,
Phoenix Newspapers v. Dist. Court, 156 F.3d 940, 942-43 (9th Cir. 1998)?
2
3. Given that a court cannot rubber-stamp an access restriction simply
because the government says it is necessary, Leigh v. Salazar, 677 F.3d 892, 900
(9th Cir. 2012), did the court below err as a matter of law by denying a preliminary
injunction where Defendant offered no evidence that any privacy interests would
be harmed if the injunction were granted, Phoenix Newspapers, 156 F.3d at 949?
4. Given that the potential ways to overcome the right of timely access
require courts to consider if less restrictive alternatives are available to protect the
asserted interest, did the court below err as a matter of law in assuming an
injunction would require OCSC to hire more staff to process e-filed complaints
more quickly without considering any alternatives identified in the record, such as
requiring complaints for which confidentiality is sought to be filed in paper form?
5. Given that the government has the burden of justifying [a] restriction
on speech in defending a preliminary injunction, Klein v. City of San Clemente,
584 F.3d 1196, 1201 (9th Cir. 2009), did the court below err as a matter of law in
allocating the burden of persuasion by a clear showing solely to CNS?
6. Did the court below err as a matter of law in suggesting the strength of
CNSs First Amendment claim was diminished by CNSs business goals, and
because most of its subscribers are law firms that may use CNSs news reporting to
solicit business, ER 9, and do the factors to be considered on a motion for
preliminary relief instead warrant remand with instructions to grant the injunction?
3
INTRODUCTION
This is not the first time CNS has appealed to this Circuit to protect its First
Amendment right of timely access to newly filed complaints. Planet I, 750 F.3d
at 788. Twice before, this Circuit reversed district court orders that undervalued
the important First Amendment interest at stake. CNS v. Planet, 614 Fed. Appx
912, 914 (9th Cir. 2015) (Planet II). Like those orders, the Order on appeal here
failed to recognize what the Circuit held in those cases, not least that CNSs right
of access claim implicates the same fundamental First Amendment interests as a
free expression claim, and it equally commands the respect and attention of the
federal courts. Planet I, 750 F.3d at 787.1
Instead, the court below repeatedly belittled CNSs First Amendment claim
at the hearing on CNSs preliminary injunction motion, where it said the main
issue is that many of CNSs subscribers are law firms, which it thought weakened
CNSs claim, Rep. Trans (RT) 8:15-21, 9:8-11; in ordering additional briefing,
where it said the august values of the First Amendment, which Planet I and II
said were fully implicated by CNSs claim, might be only a minor factor here, if a
factor at all, ER 803; and in its Order denying CNSs motion, which said the
interests served by CNSs proposals were not so bright as to outshine the
burdens Defendant claimed it would impose. ER 9.
1
Emphases are added, and citations for internal quotations omitted, unless noted.
4
The Order also did what this Circuit has said a court cannot do rubber-
stamp an access restriction simply because the government says it is necessary,
Leigh, 677 F.3d at 900, by bas[ing] its decision on conclusory assertions alone,
Phoenix Newspapers, 156 F.3d at 949, that purported privacy interests would be
at risk if CNSs motion was granted. ER 8. Defendant presented no evidence to
support, and the court did not make, the findings of fact necessary to refus[e]
an interlocutory injunction, Paskenta Band of Nomlaki Indians v. Crosby, 672
Fed. Appx 762, 763 (9th Cir. 2017) (quoting Fed. R. Civ. P. 52(a)(2)), let alone
the specific factual findings required for restrictions on access. Ground Zero
Ctr. for Non-Violent Action v. Dept of Navy, 860 F.3d 1244, 1261 (9th Cir. 2017).
The Orders unsupported views about these policy issues led it to hold the
denial of access at OCSC until Defendants staff completes administrative
processing, including privacy review, does not violate the First Amendment, even
though it creates access delays greater than those held to violate the First
Amendment in the Planet and Tingling Orders. The injunctions in those cases
prohibit clerks from denying access until after their staff process and review new
complaints, yet no privacy interests have been harmed, further illustrating why the
Order should be reversed and remanded with instructions to issue an injunction.
5
STATEMENT OF THE CASE
CNS is a national news service that specializes in reporting on civil
lawsuits. Planet I, 750 F.3d at 780. CNS employs more than 240 people, mostly
reporters, to cover[] approximately 2,600 state and federal trial and appellate
courts around the nation. Planet Order *3; ER 1176, 1497. Its 2,200 individual
and institutional subscribers nationwide includ[e] law firms, university and law
school libraries, and major media outlets such as the Los Angeles Times and Boston
Globe, among many others. Planet I, 750 F.3d at 780; ER 1178-80.
CNSs core news publications are its new litigation reports, which are e-
mailed to its subscribers and contain staff-written summaries of all significant new
civil complaints filed in a particular court. ER 1176-77. In California, CNSs
coverage is limited to new unlimited complaints, which include [v]irtually all
matters of public interest and importance filed in the state, including actions for
permanent injunctions or where the amount in controversy exceeds $25,000.
Planet I, 750 F.3d at 779 n.1 (citing Civ. Proc. Code 85(a), 88, 580(b)(2)).
CNS publishes sixteen reports on new litigation in federal and state courts
in California, and enables subscribers to receive email alerts about new filings
involving matters of interest to them. Id. at 780. CNS covers OCSC in its
Orange County Report, which is emailed each weekday evening to about 275
subscribers (out of about 500 subscribers throughout the state). ER 1177.
6
As the Order noted, CNS also has a website with news stories and
commentary that is freely available to the public. ER 4. But it overlooked that
CNSs website is seen by hundreds of thousands of readers each month, ER
1178, is the source of numerous stories in the broader media about important civil
litigation, ER 138-39, 1179, and the source for many articles in the Ninth Circuit
librarys daily news digest, New and Noteworthy. Planet I, 750 F.3d at 788 n.7.
Generally, CNSs employees visit their respective courts near the end of
each day to review new civil complaints filed earlier that day and determine which
ones merit coverage. Planet Order *3. Since CNS was founded in 1990 until
recently, courts around the country including OCSC allowed CNS and other
media to review complaints shortly after they were received for filing, before
processing i.e., the performance of administrative tasks that follow the courts
receipt of a new complaint. Id. *19. Most still do, regardless of whether
complaints are e-filed or filed in paper form. Id. *12; ER 1182, 1187-88.
But in recent years, a handful of courts particularly, in California, those
(like VSC and OCSC) that adopted the ill-fated Court Case Management System
(CCMS), ER 1523-29 took the position they could withhold complaints until
after they were processed, Planet Order *4, resulting in access delays of a day to
a week or more. Id. *5; ER 1528-29. To restore timely access, CNS has filed a
small handful of lawsuits, all of which have resulted in relief except this one.
7
A. There Is A Long History Of Timely Access To Complaints On Receipt
When CNS began covering OCSC in 1995, the court provided reporters a
media box into which staff placed complaints received during the day, regardless
of whether they had been processed. ER 1183-84. Members of the press
including the Los Angeles Times, Daily Journal, Orange County Register and CNS
could look through the box for complaints of interest to their readers. Id.
This sort of timely access soon after complaints are received by a court
for filing has a long history, Planet Order *12; ER 1367-1785, throughout
California and across the United States, Planet I, 750 F.3d at 780, typically
resulting in press access to civil complaints on the day they are filed. Id.
In the Central District of California, for example, the clerks office made a
stack of new filings available each afternoon, and reporters from the Times, Daily
News, Register, United Press and CNS, among others could review them long
before they were docketed. ER 1180-81.2 With e-filing, complaints flow into
public view on courthouse terminals or online via PACER immediately on receipt,
even on nights and weekends, before any staff review a form of access that is
essentially an electronic in-box akin to the traditional media box provided for
paper complaints. Id. Using free public terminals in the records room, reporters
can see new complaints almost immediately after they are e-filed. Id.
2
Docketing was the term historically used to describe many of the administrative
intake tasks now referred to as processing. ER 1175-76.
8
B. When OCSC Moved Access After Processing, Delays In Access Began
In 2002, OCSC began denying access to all new unlimited complaints until
after they were docketed and scanned. ER 1184. Eventually, it eliminated the
media box and limited access at the courthouse to viewing scanned copies on
public access terminals in the Records room. Id. 1191, 1275.
In February 2003, then-Court Executive Officer/Clerk Alan Slater told CNS
he found the resulting four or five-day delay in press access acceptable. Id.
1189, 1198. The next month, Timess reporter Seema Mehta told OCSC and CNS
the Times had largely stopped reporting on new complaints at OCSC because they
were no longer news by the time they were available to the press. Id. 1189.
In 2008, Alan Carlson replaced Slater. In 2010, OCSC began e-filing and, in
2013, made it mandatory for unlimited complaints except in certain circumstances.
ER 1275, 1190-91. Complaints may be e-filed at any time, and if e-filed before
midnight on a business day get that days filing date. L.R. 352. E-filing did not
cure the delays because access is still denied until after processing. ER 1184.3
3
Generally speaking, processing involves staff review of the documents and
filing fee (or fee waiver) and, in courts that implemented CCMS, such as OCSC,
entry of information to create a new case in the system, entry of payment details,
generation of a receipt, issuance of a summons, stamping the complaint as Filed
(and backdating the filing date to the day the complaint was received), labeling the
documents as required by CCMS and, in the e-filing context, placing electronic
documents in an electronic case folder. ER 1277; Planet Order *4 n.6, 13.
9
C. Jackson Struck Down A Similar Policy, But OCSC Refused To Change
In 2009, CNS sued the clerk of Harris County District Court in Houston
under 42 U.S.C. 1983 for denying access to e-filed and paper-filed petitions, as
they are called in Texas, until after processing. CNS v. Jackson, 2009 WL
2163609, *2 (S.D. Tex. July 20, 2009). Rejecting the argument that a slight
delay in availability is a reasonable time, place, or manner restriction, the district
court found the 24 to 72 hour delay in access is effectively an access denial and is,
therefore, unconstitutional, id. at *4, granted a preliminary injunction, id. at *5,
and later a stipulated judgment and permanent injunction pursuant to a settlement.
CNS v. Jackson, 2010 WL 11546125 (S.D. Tex. Feb. 26, 2010).
After winning Jackson, CNSs editor and publisher, William Girdner, met
twice with Carlson in 2010 to try to restore timely access at OCSC. Girdner noted
that e-filing allowed OCSC to provide access to an electronic in-box before or
while complaints are processed, in accordance with access CNS has in other
courts. ER 1191-92. But Carlson insisted complaints are not public records and
the press and public have no right to see them until after they are processed. Id.4
By July 2011, access to more than 98 percent of new unlimited complaints at
OSCS was delayed at least one day, and access to more than 22 percent was
delayed two to five days or more. Id. 1192-93.
4
Carlsons declaration opposing CNSs motion for preliminary relief disputed
certain statements Girdner attributed to him, but not this statement. ER 1082-83.
10
D. Planet Enjoined VSC From Denying Access For A Day Without Cause
In September 2011, CNS sued VSCs clerk, Michael Planet, under 1983
for denying access to new unlimited complaints until after processing. The district
court granted two motions to dismiss, first on grounds of abstention and then for
failure to state a claim. Both times, this Circuit reversed, finding no question that
CNS alleged a cognizable injury caused by the Ventura County Superior
Courts denial of timely access to newly filed complaints. Planet II, 614 Fed.
Appx at 914 (quoting Planet I, 750 F.3d at 788). After the second dismissal, the
panel granted CNSs request to have the case assigned to a new judge. Id. at 915.
After the second remand, the case was assigned to Judge S. James Otero,
who granted in part CNSs summary judgment motion and denied VSCs motion.
By that point, two access restrictions were at issue. One was VSCs Process-
Before-Access System, which Planet said was necessary to ensure that the Court
respects the privacy of litigants and third parties by removing confidential
information before complaints become public. Planet Order *5, 13, 16. The
other was VSCs Scanning Policy, adopted after it lost Planet I in 2014, under
which scanned complaints but not their exhibits were made available for
viewing before they were processed, but only for complaints received and scanned
before 3 p.m., when the Records Department closed for the day, while the court
allowed complaints to be filed and scanned until 4:30. Id. *19-20.
11
Judge Otero found both of VSCs restrictions violated the First Amendment
right of timely access to civil court records recognized in Planet I, which, the
evidence showed, attaches when new complaints are received by a court. Id.
*12 (emphasis in original). Although he declined to creat[e] a bright-line rule
mandating same-day access to newly filed complaints, id., he rejected VSCs
policy of denying access until they have been fully processed, id. *15, and
found the delays in access created by both of VSCs policies were unconstitutional
because they did not meet the overriding [governmental] interest test or
constitute a reasonable restriction[] on the time, place, or manner of protected
speech. Id. *17 (quoting Planet I, 750 F.3d at 793 n.9).
With respect to the Scanning Policy, VSC failed to justify preclud[ing]
members of the public and press from viewing newly filed complaints that happen
to be scanned after the Records Department the sole area in which one can read
such scanned documents shuts its doors, which created a distinct possibility
that complaints filed late in the day may not be viewable by the public until the
next day. Id. *20-21.5 The court ordered Planet to make copies of newly filed
unlimited civil complaints and their exhibits, whether scanned, e-filed, or
in any other format, available to be viewed in a timely manner. Id. *21.
5
Planet claimed scanning provided 97 percent same-day access, but that included
complaints scanned after 3, when no one could see them. Planet Order *20; ER
1598-1602. When CNS tracked access, 21-31 percent were not available for one to
five days after receipt, ER 1586, 1596, but most could be seen the next day.
12
E. OCSC Refused To Admit Planet Rejected Process Before Access
In October 2016, CNS notified Carlson OCSCs policy of denying access
until after processing and terminating it at 4 p.m., when the Records area closes
its doors, while processing continues until 5 and filing under midnight was
inconsistent with Planet. ER 1205-07. In reply, OCSCs General Counsel did not
address Planets striking down of VSCs process-before-access policy, and said
Planet did not require access to complaints filed or processed after 4. ER 1231.
Meanwhile, CNS tracked delays at OCSC.6 In early October 2016, CNSs
reporter was denied access to more than 75 percent of complaints for one to nine
days, and some days such as October 6 and 12 (86.5 and 90 percent withheld)
were worse. ER 1279-80. For the month, about 66 percent were not available for
at least one day, and nearly 25 percent for two to nine days. Id. 1280. The next
month, more than 46 percent could not be accessed for one to eight days. Id. For
the final quarter of 2016, 1,580 out of 3,255 complaints nearly half were
withheld one to nine days. Id.; ER 1279, 1303-66.
When CNS inquired if Defendant Yamasaki intended to change policies
after he replaced Carlson, ER 1052, OCSCs General Counsel said no. ER 1080.
6
CNSs tracking is based on OCSCs records, and treats complaints as filed on the
filing date assigned by OCSC. ER 1276-80, 1303-66. Under Local Rule 352,
complaints e-filed before midnight on a business day are given that days filing
date. Even if complaints filed between 5 p.m. and midnight were treated as filed
the following business day, OCSC would still be withholding more than one out of
every three complaints (38 percent) for one or more days after receipt. ER 889.
13
F. Tingling Enjoined A One-Day Delay For Privacy Review Before Access
In November 2016, CNS sued the Clerk of New York County Supreme
Court under 1983 for denying access to e-filed complaints until after processing.
CNS v. Tingling, 2016 WL 8505086 (S.D.N.Y. Dec. 16, 2016). In a policy
virtually identical to what OCSC would later say it follows, New York staff would
review the papers to ascertain whether they contain material that, by operation of
law, may not be made available to the general public, then complete the log-in
process, before making new filings available. Tingling Order, ER 1168. As a
result, one out of three complaints was withheld for at least one business day,
although most were available within 24 or 30 hours of receipt. Id. 1121-22.
The district court found CNS had shown a likelihood of success on its claim
for violation of its First Amendment right of immediate and contemporaneous
access, id. 1167, because the clerk has failed to meet [his] burden of
demonstrating that [his] policy is either essential to preserve higher values or is
narrowly tailored to serve that interest. Id. 1170 (citing Planet and Jackson).
Also finding CNS would be irreparably harmed without the injunctive relief, that
the balance of hardships tips in CNSs favor and that injunctive relief would
serve the public interest, it granted a preliminary injunction against denying
access until after complaints are reviewed and processed. Id. 1170-71.
New York then modified its e-filing protocol to permit the immediate
14
public online viewing of case initiating electronic filings including new
complaints, without prior County Clerk staff review or other administrative
processing. Req. for Judicial Notice (RJN), A(4) & Ex. C (consent order).
This policy of access before review or processing, which incorporates an electronic
in-box method similar to that used by many other federal and state courts, ER 881-
85, is now used in 22 counties in New York. RJN, A(1)-(3) & Exs. A-B.7
G. OCSCs Defense Could Not Be Reconciled With Planet Or Tingling
On January 24, 2017, CNS sued Defendant under 1983 for denying access
until after processing in violation of the First Amendment right of timely access
under Planet (and Tingling), and sought a preliminary injunction. ER 1787-1829.
Judge Otero declined to take the case on the ground OCSC was an e-filing court
while VSC was not, ER 1786,8 and it was assigned to Judge Andrew Guilford.
In Opposition, Defendant denied OCSC withholds access until after
processing. ER 983. Instead, he said for the first time OCSC withholds
7
In March 2017, CNS filed suit over a Vermont policy that prohibited access until
complaints were served on defendants. CNS v. Gabel, 2:2017-cv-00043 (D. Vt.
Mar. 17, 2017). Vermonts Supreme Court then issued an order directing court
clerks to make public all lawsuits as soon as they are filed.
burlingtonfreepress.com/story/news/2017/04/24/new-vermont-court-rules-called-
win-for-first-amendment/100862726/; see Order Promulgating Emer. Amends to
V.R.C.P. 77(e) and Public Access to Ct. Records R. 6(b) (Apr. 6, 2017).
8
Despite this distinction, Judge Otero in Planet denied VSCs mootness defense in
Planet on the ground, inter alia, that VSC is contemplating switching to an e-
filing system in the not-too-distant future, Planet Order *15, and the right of
access and relief he ordered applied whether courts use paper filing or e-filing
systems. Id. *12, 21; 2016 WL 4157354 at *1 (judgment).
15
access so staff can review complaints for material required to be kept confidential
by law. He also claimed access was timely because 89 percent of complaints in the
last three months of 2016 were made available within eight business hours of
filing, id., but did not deny that 49.1 percent were withheld one to nine days nor
could he, since CNSs delay tracking was based on OCSCs own records.9
In reply, CNS noted OCSC previously said it was denying access until after
processing, ER 857, 861-63, and, in any event, conceded it processes complaints
i.e., complete[s] the remaining steps necessary to formally accept the complaint
for filing [a]t the same time the clerk reviews the complaint for
confidentiality. ER 978. And while OCSC tried to minimize the resulting delays,
CNS noted the delays were longer than in Planet or Tingling yet Defendant
offered no evidence to substantiate his claim that access before review and
processing threatened privacy interests including not a single instance of a
confidential filing that would have become public but for OCSCs review or
that this review was the only way to protect those interests. ER 861-71.
9
OCSC said CNS attempts to manipulate these statistics to make delays seem
worse than they really are, ER 1011, but what OCSC really complains about is
that (1) CNS counts intervening weekends and holidays as delays because they
are actual delays the press and public experience when a complaint is delayed by
even one business day, and (2) CNS counts as delayed complaints processed and
made available on OCSCs web site after 4 p.m., when its Record area closes its
doors to the public and press even though staff keep processing complaints until 5
p.m. ER 1011-13. After 4, the only place where complaints can be seen is on
OCSCs web site, where each complaint costs $7.50 to $40 just to view. Id. 1282.
16
Four days after CNS filed its reply, the Orange County Bar Association and
other local entities sought leave to file an amici curiae brief to reassert the privacy
interests raised by Defendant. ER 831-50. CNS opposed the request as untimely,10
and because the proposed brief cited no evidence for the notion that privacy rights
would be threatened by access prior to staff review and processing. ER 828-30.
H. The Court Wanted Evidence About CNS, Not Defendants Justification
In a tentative ruling issued before the hearing on CNSs motion, the district
court granted leave to file the amici brief and denied CNSs motion on the ground
that the delays in access, when measured in business hours, were too minor to
constitute a First Amendment violation. ER 809. The tentative ruling did not
explain how that result could be squared with Planet or Tingling, except to
distinguish Planet on the mistaken belief that OCSC averages more than 100 new
case filings per day than VSC, id. 808, which was based on Defendants
misleading statement that OCSC receives as many as 200 new filings per day,
ER 974, a figure that included limited complaints, which are not at issue here.11
At the March 20 hearing on CNSs motion, the court indicated no concern
over Defendants lack of evidence, and simply accepted that theres some really
10
As the federal rules provide no deadline for amici briefs at this level, district
courts look to Supreme Court Rule 37.3(a) and Federal Rule of Appellate Practice
29(a), which both require amici briefs to be filed no later than seven days after the
principal brief of the party the amici seek to support. ER 829 (citing cases).
11
In fact, OCSC averages 57 new unlimited complaints per day, ER 1000, while
VSC averages between 12 and 15 per day. Planet Order *4.
17
important privacy issues presented by some fairly reputable amicus folks. RT 12.
But Judge Guilford was interested in the business model of Courthouse News,
who its subscribers were and what they did with CNS reports. Id. 7-11. Believing
those were the interests it should weigh against Defendants privacy interest, id. 12
and that the speed issue may depend in part on who your subscribers are, id.
23-24 the court wanted evidence in the record about the CNSs subscribers but
not Defendants interest, id. 8, even though CNS had noted that evidence
supporting restrictions on access is required by Circuit precedent. ER 863-64.12
To that end, the court on March 22 issued an Order Regarding Additional
Briefing that required CNS to provide five categories of evidence by March 31
four of which focused on CNSs subscribers and profits, while the last sought
information about stories locally or beyond involving lives saved or
demonstrating other First Amendment values and ordered both sides to submit
further briefing by April 14 on the relevance of that evidence. ER 802-03.
12
The court said it put little stock in preliminary injunctions, preferring to get to
trial. RT 5. Whatever the merits of that view generally, [b]oth this [C]ourt and
the Supreme Court have repeatedly held preliminary injunctions are essential
where free speech protections [are] at issue, as [t]he loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury. Klein, 584 F.3d at 1207-08 (quoting Elrod v. Burns, 427 U.S. 347, 373
(1976)). This harm is particularly irreparable where, as here, a plaintiff seeks to
engage in political speech, id. at 1208, as this Circuit has said is true of CNS.
Planet I, 750 F.3d at 785-87.
18
I. The New Evidence, Supplemental Brief And Media Amici Brief

Demonstrated The Public Benefit From Timely Access By CNS
On March 31, CNS submitted its initial response to the Order Regarding
Additional Briefing. In addition to the subscriber and profit data it was ordered to
produce, CNS filed 670 pages of evidence about its reporting on civil litigation and
some of the stories published by 44 other media who credited CNS as the original
source of their reports about civil cases in Orange County and nationwide. ER
131-801. In addition to the examples in its moving papers of how information
about important new civil actions had been delayed by OCSCs policies, ER 1280-
82, CNS cited situations where OCSCs policy of delaying access gave the filing
party an opportunity to control news coverage about the complaint by providing it
to media of their choosing, ER 130, 141-43, 610-788, a problem CNS raised at the
preliminary injunction hearing but Judge Guilford discounted. RT 31.
As CNS noted in its April 14 supplemental brief, this evidence confirmed its
status as a pool reporter, which its expert in Planet noted other media rely on
to monitor civil filings for important and newsworthy cases. ER 56-58. Some
of those media were among 14 news entities who, on April 17, filed an amici brief
supporting CNSs motion, explaining that information about CNSs business
model, including its subscribers and profits, is irrelevant to application of the First
Amendment right of prompt access, as that right is not conditioned on the
motivations of the entity seeking access and [a]ll members of the public, and
19
not just CNSs paid subscribers, benefit from such access. ER 107-08.13
J. In Finding OCSCs Delays Constitutional, The Order Did Not Cite The
Key Part of Planet, Tingling Or The Public Benefit Noted By The Media
The courts August 7 Order denying CNSs motion varied little from its
tentative. It still credited the amici brief supporting Defendant, but did not mention
the media amici brief supporting CNS. ER 2. It still distinguished Planet due to
OCSCs heavy caseload, id. 7, but overlooked that the injunctions in Planet and
Tingling which it did not cite did not require speeding up review or processing,
which is the only reason caseload size would matter. It still cited no evidence for
its conclusory assertion that CNSs motion would put significant privacy interests
at risk, id. 8, and did not mention that courts busier than OCSC, such as Los
Angeles Superior and now also New York County Supreme allow access prior
to staff review without raising privacy concerns. And it still found the delays in
access too minor to violate the First Amendment, id., without addressing the Planet
or Tingling holdings that similar or lesser delays amounting to a few business
hours did violate the First Amendment.
While the Order listed the factors to be considered in ruling on a preliminary
injunction likelihood of success on the merits, irreparable harm, the balance of
equities and the public interest it declined to address all of them since it found
13
Defendants contrary view was rejected when raised in Planet I by his counsel,
who also represents VSC, and other cases. ER 39 (citing, e.g., 750 F.3d at 787-90).
20
CNS isnt likely to succeed. Id. 4, 9.14 But it nevertheless went on to discuss
and weigh the policy issues it thought were implicated. Id. 8-9.
In doing so, the court focused on privacy and CNSs subscribers. Because
most of CNSs subscribers are law firms, the Order said the supplemental briefing
had shown the vast majority of those who would benefit [from CNSs motion]
would be those with a commercial interest in gaining quick access to newly filed
complaints. Id. 9. In concluding the interests served by CNSs proposal are
dwarfed by the burdens it would impose, id., the Order did not address the 670
pages of evidence, or the media amici brief, showing how CNSs motion would
benefit the media who rely on CNS to monitor new filings and the public, assumed
the only way to speed access is if OCSC hired more staff to process complaints,
id. 8-9, and overlooked alternatives such as requiring complaints marked as
confidential to be filed in paper form identified in the record. ER 868-71.
CNS noticed its appeal on September 4. On September 6, it moved to have
this appeal scheduled for argument with the related Planet appeal (Dkt. 3). On
September 7, Defendant responded to that motion (Dkt. 6), and on September 11
CNS filed its reply (Dkt. 7). That motion remains pending.
14
The Order did not mention or apply the Ninth Circuits sliding scale, under
which a preliminary injunction is appropriate when a plaintiff demonstrates
serious questions going to the merits were raised and the balance of hardships tips
sharply in the plaintiffs favor. Alliance for Wild Rockies v. Cottrell, 632 F.3d
1127, 1134-35 (9th Cir. 2011).
21
SUMMARY OF THE ARGUMENT
The Orders failure to acknowledge or apply the full measure of protection
that this Court has expressly held the First Amendment bestows on CNSs right of
access claim is only one of several fatal flaws. As explained below, it also:
Allows delays in access worse than those held unconstitutional in other
courts, and that harm the right of free expression about new civil judicial
proceedings recognized by this Court;
Takes as true Defendants conclusory assertions of harm to privacy interests,
and fails to credit the existence of alternatives to Defendants confidentiality
review used by other courts that would not require hiring additional staff;
Fails to recognize CNS established a likelihood of success or at least serious
questions on the merits where the delays at issue were greater than those
held to violate the First Amendment in similar cases and Defendant did not
meet his burden of proof to overcome that right.
Suggests the balance of equities and public interest would not favor an
injunction because of CNSs law firm subscribers who might use CNS news
for purposes of profit, where Circuit and other authority makes clear this is
entitled to full First Amendment protection along with CNSs role as a news
provider to other media, academia, government and the public.
22
I.
THE ORDER BELOW CANNOT SURVIVE ANY LEVEL OF REVIEW,
NOT LEAST THE DE NOVO REVIEW GIVEN FREE SPEECH CASES,
ESPECIALLY OF ORDERS UPHOLDING RESTRICTIONS ON SPEECH
Although this Court reviews application of the preliminary injunction
factors for abuse of discretion, Leigh, 677 F.3d at 896, the district court declined
to apply those factors except likelihood of success because it reached the
conclusion based on the law that CNS isnt likely to succeed on the merits.
ER 8-9. In such a case, this Courts review is de novo.
That is not only because this Court review[s] a district courts conclusions
of law de novo. Brown v. California Dept of Transp., 321 F.3d 1217, 1221 (9th
Cir. 2003). It is also because, as Judge Wardlaw explained, this Court review[s]
the application of facts to law on free speech questions de novo. Id.; Daily
Herald Co. v. Munro, 838 F.2d 380, 383 (9th Cir. 1988) (We review de novo the
district courts application of the law to the facts on free speech questions.).
Although a district court must set forth findings of fact to support its
order denying a preliminary injunction, Paskenta Band, 672 Fed. Appx at 763,
the court below did not. This alone can warrant remand for further findings.
Id. At the least, if the district court makes no detailed findings in denying an
injunction, we must engage in a somewhat more searching review. Patton v.
Dole, 806 F.2d 24, 28 (2d Cir. 1986); Sampson v. Murray, 415 U.S. 61, 88 n.58
(1974) (examining the record to see if sufficient evidence supported order).

23
In discussing the policy issues it cited to bolster its erroneous conclusion,
the district court accepted Defendants unsupported assertions at face value.15 To
the extent that could be treated as sub silentio findings, review is also de novo.
The Constitution requires different standards for reviewing findings of fact in
those cases in which the district court upholds a restriction on speech as
constitutional than in those in which it does not. Daily Herald, 838 F.2d at 383.
Given the special solicitude we have for claims alleging the abridgment of First
Amendment rights, we review a district courts findings of fact when striking down
a restriction on speech for clear error. Brown, 321 F.3d at 1221. But where, as
here, a district court holds a restriction on speech constitutional, we conduct an
independent, de novo examination of the facts. Daily Herald, 838 F.2d at 383
(citing Planned Parenthood Assn/Chicago Area v. Chicago Transit. Auth., 767
F.2d 1225, 1228-29 (7th Cir. 1985)) (the Supreme Court has repeatedly held that
in cases raising First Amendment issues, an appellate court has an obligation to
make an independent examination of the whole record) (quoting New York
Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)).
15
The court accepted Defendants assertions that OCSC withholds access simply
to review for confidentiality rather than to complete the administrative tasks that
follow the courts receipt of a new complaint, which Judge Otero described as
processing and which he held was not a precondition to access, Planet Order,
*19 and that OCSC could not provide quicker access without putting significant
privacy interests at risk unless it hire[d] more staff. ER 8-9.
24
II.
THE ORDER BELOW ERRED IN FINDING ACCESS IS TIMELY IF

MEASURED IN BUSINESS HOURS WHERE ACCESS IS DENIED ONE
TO NINE DAYS TO ALMOST HALF OF ALL NEW COMPLAINTS
In Planet, the district court held VSC violated the First Amendment because
complaints filed late in the day may not be viewable by the public until the next
day i.e., within 1-to-7 business hours16 but did not provide[] any reason
why VSC should be permitted to preclude members of the public and the press
from viewing newly filed complaints that happen to be scanned after the sole
area in which one can read [them] shuts its doors. Planet Order *20-21.
But here, a different court in the same district held OCSCs policy of
denying access until after processing and confidentiality review did not violate the
First Amendment even though access to almost half of new unlimited
complaints was denied between one and nine days on the ground those delays
were minor because most could be seen within 8 business hours. ER 7.
Manifestly, these two rulings cannot both be correct. And the reason why
they reached differing results and why Planet is correct but the Order below is
not is clear. The former followed this Courts instructions to determine if the
delay met the overriding interest or time, place, or manner (TPM)
tests. Planet Order *7 (quoting Planet I, 750 F.3d at 785 n.9). The latter did not.
16
Complaints could be seen from 8 to 3, but filed or scanned until 4:30; at OCSC,
they can be seen 8 to 4, but processed until 5 and filed all night. ER 1000, 1275-76.
25
A. Under The First Amendment, Access To Complaints Must Be Timely
In a series of criminal cases, the Supreme Court held the First Amendment
protects the public and the press from abridgment of their rights of access to
information about the operation of their government specifically, the Judicial
Branch. Richmond Newspapers v. Virginia, 448 U.S. 555, 584 (1980) (Stevens,
J., concurring); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982);
Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (Press-Enterprise
I); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press-Enterprise
II); El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147 (1993) (per curiam).
Subsequently, the federal courts of appeals have widely agreed that it extends to
civil proceedings and associated records. Planet I, 750 F.3d at 786; Dhiab v.
Trump, 852 F.3d 1087, 1099 (D.C. Cir. 2017) (Rogers, J., concurring).
To determine if a right of access exists, courts appl[y] the Press-Enterprise
II test, Phoenix Newspapers, 156 F.3d at 947, which consider[s] both historical
experience and logic, although logic alone, even without experience, may be
enough to establish the right. In re Copley Press, 518 F.3d 1022, 1026 (9th Cir.
2008) (even without an unbroken history of public access, the First Amendment
right exists if public scrutiny would benefit the proceedings) (quoting Seattle
Times v. Dist. Court, 845 F.2d 1513, 1516-17 (9th Cir. 1988)).
26
In Planet, CNS submitted a number of declarations demonstrating that
there is a long history of courts making complaints available to the media and the
public soon after they are received, regardless whether such courts use paper filing
or e-filing systems. Planet Order *12. The court also found [l]ogic likewise
demands that the qualified right of timely access must arise the moment a
complaint is received by the court, rather than after processing is completed, as
timing is a critical element of a storys newsworthiness. Id. *13.17
The court below agreed the right of access includes a right of timely access
to newly filed complaints. ER 5-6 (emphasis original). But it failed to follow the
rest of the analysis mandated by Press-Enterprise II and Planet I and II.
The right of access can be overcome only by an overriding interest based
on findings that closure is essential to preserve higher values and is narrowly
tailored to serve that interest. U.S. v. Guerrero, 693 F.3d 990, 1000 (9th Cir.
2012) (quoting Press-Enterprise II, 478 U.S. at 9). A delay in making the
complaints available may also be analogous to a permissible reasonable
restriction[ ] on the [TPM] of protected speech. Planet I, 750 F.3d at 793 n.9.18
Judge Guilford cited the overriding interest and TPM tests, but did not apply
17
CNS submitted below the 36 declarations from journalists and a journalism
expert on which these findings were based. ER 3, 1367-1785.
18
See also Globe Newspaper, 457 U.S. at 607 n.17, citing Richmond Newspapers,
448 U.S. at 581-82 n.18 (discussing limits on the manner of access, like
conduct[ing] trials in a quiet and orderly setting or controlling attendance due to
limited capacity, including preferential seating for media representatives).
27
them. Instead, he adopted OCSCs view that CNS failed to prove that OCSC
denied timely access to newly filed complaints, ER 6, but only by citing one part
of Planet in which, he said, Judge Otero held that delays of over 36 hours for 50
percent or more of complaints during VSCs Process-First Policy were untimely,
id. 8 while overlooking Judge Otero also held VSCs Scanning Policy denied
timely access by creating a distinct possibility that complaints filed late in the day
may not be viewable by the public until the next day. Planet Order *20.
The Order did not cite where Planet made this 36 hours holding, and the
Planet Order contains no such phrase. More telling, the record shows a greater
denial of timely access than in Planet or Tingling. Access here to nearly half of
complaints and up to 75 percent is denied one to nine days, ER 1279, while in
Tingling, only a third were denied at least a day, ER 1120-21, and less than that in
Planet. ER 1586, 1596. Measured in hours, the result is the same. While most
complaints are available within 8 business hours, ER 7 (but some not for 8-56
business hours), most in Tingling were available within 24 hours eight business
hours at OCSC or 30 hours. ER 1122. In Planet, most complaints filed or
scanned after 3 were available the next day, ER 1596, within 1-7 business hours.
B. By Allowing Routine Denials Of Access One To Five Days, The Orders

Within 8 Business Hours Rule Violates The Right Of Timely Access
As the comparison with Planet and Tingling illustrates, the Order below
falters on both semantic and constitutional grounds. Simon & Schuster v.

28
Members of N.Y. St. Crime Victims Bd., 502 U.S. 105, 117 (1991). It improperly
converted an unconstitutional denial of timely access greater than that warranting
relief in Planet and Tingling into a minor, constitutional delay by rechristening
the pertinent period as business hours. See id. (government could not avoid bar
against content-based regulation of media by characterizing it as burden on any
entity contracting with a convicted person to transmit that persons speech).
1. Delayed Access Violates Precedent The Order Fails To Acknowledge
To take the second point first, the Order overlooks that even a one to two
day delay impermissibly burdens the First Amendment, Globe Newspaper Co. v.
Pokaski, 868 F.2d 497, 507 (1st Cir. 1989), which provides a contemporaneous
right of access to court documents and proceedings when the right applies. Doe v.
Pub. Citizen, 749 F.3d 246, 272-73 (4th Cir. 2014).
This Circuit has rejected the view that a restriction on first amendment
rights did not deny access if limited because only a small portion of the trial
would be closed, and transcripts would be made available probably within
24 hours. U.S. v. Brooklier, 685 F.2d 1162, 1170 (9th Cir. 1982). Instead, it
found closure unwarranted because the court below identified neither the reasons
why the interest asserted would have [been] prejudiced , nor the reasons an
alternative would not have protected that interest. Id. at 1168, 1171.
This Circuit also vacated orders barring access for at least 48 hours from
29
receipt that failed to meet the substantive tests for closure. Associated Press
v. Dist. Court, 705 F.2d 1143, 1144-46 (9th Cir. 1983). Denying access until after a
review determined if the records should remain confidential impermissibly
reverse[d] the presumption of openness required under our system of justice.
Id. at 1147. Citing Brooklier, the Court held [i]t is irrelevant that some of these
pretrial documents might only be under seal for 48 hours. Id.
In Brooklier and Associated Press, then, the Circuit rejected the view that
delays of 24 or 48 hours a day or two were too minor to violate the First
Amendment because the effect of the order is a total restraint on the publics first
amendment right of access even though the restraint is limited in time. Id.
Other circuits also found a procedural device to protect privacy
interests, which created a delay the state called minimal, at times as little as a
day, was unconstitutional because it delays access to news, Pokaski, 868 F.2d at
507, access normally involves a right of contemporaneous access, In re Contl
Ill. Sec. Litig., 732 F.2d 1302, 1308-10 (7th Cir. 1984) (emphasis original), and the
value of the right of access would be seriously undermined if it could not be
contemporaneous. U.S. v. Wecht, 537 F.3d 222, 229 (3d Cir. 2008); Doe, 749 F.3d
at 272-73 (benefits attendant with open proceedings are compromised by delayed
disclosure of documents); Grove Fresh Distribs. v. Everfresh Juice Co., 24 F.3d
893, 897 (7th Cir. 1994) (To delay or postpone disclosure undermines the benefit
30
of public scrutiny and may have the same result as complete suppression.).
In short, a complaint is a judicial document subject to a presumption of
access, Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132,
139-41 (2d Cir. 2016); [i]n light of the values which the presumption of access
endeavors to promote, a necessary corollary to the presumption is that access
should be immediate and contemporaneous, Lugosch v. Pyramid Co., 435 F.3d
110, 126-27 (2d Cir. 2006); and thus a procedurally implemented 1-day
turnaround time is unacceptable. Nast v. Michels, 107 Wash. 2d 300, 308 (1986);
Tingling Order, ER 1121, 1167 (access not immediate and contemporaneous
where [o]ne out of three cases filed each day are withheld at least one day).
The Order in this case did not address any of this precedent. At the very
least, the district courts failure to apply Ninth Circuit precedent was error.
Ahanchian v. Xenon Pictures, 624 F.3d 1253, 1261 (9th Cir. 2010).
The Order distinguished Planet and Jackson on the grounds that OCSC is a
busy court and the delays there were purportedly longer than here. ER 5, 7-8. But
it overlooked evidence in the record about the busiest courts Los Angeles
Superior and the Central District of California which provide access to new
filings shortly after receipt and before processing, ER 1180-81, and that the delays
at OCSC are longer than in Planet (under the Scanning Policy) or Tingling.
It also failed to acknowledge the right of access arises when a complaint is
31
received by a court, rather than after it is processed, Planet Order at *13, carries
a presumption of contemporaneous access, and denying access until processing to
ensure that the Court respects the privacy of litigants and third parties by removing
confidential information is unconstitutional unless it meets the overriding interest
or TPM test. Id. at *16. [T]he first step of our abuse of discretion test is to
determine de novo whether the trial court identified the correct legal rule to
apply . If the trial court failed to do so, we must conclude it abused its
discretion. U.S. v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc).19
And it failed to explain how a serious question was not raised that the right
of contemporaneous access is violated when almost half of complaints are
withheld one to nine days, even if most are available within eight business hours.
Because it did not apply the serious questions test, the district court made an
error of law in denying the preliminary injunction. Cottrell, 632 F.3d at 1135.
2. Measuring In Business Hours Does Not Make Delayed Access Timely
The Order cited no authority for measuring denials by 8 business hours,
19
Contrary to defense counsels argument in the related Planet appeal, recognizing
that the right of timely access attaches upon receipt and requires
contemporaneous access does not mean government must show a compelling
interest justification for any delay beyond that moment. Planet III, Appellants
Consol. Response/Reply 2-3 (Aug. 30, 2017) (Dkt. 55). While only the most
compelling circumstances should prevent contemporaneous public access, In re
NBC, 635 F.2d 945, 952 (2d Cir. 1980), access need not necessarily occur
simultaneously with submission. Id. at 952 n.7. Access by the conclusion of the
court day submitted generally constitutes a reasonable [TPM] restriction. U.S.
v. Sampson, 297 F. Supp. 2d 342, 346-47 (D. Mass. 2003).
32
with good reason: it would allow the denial of access for at least a day in all
circumstances and much longer where a clerks office is not open eight hours a day.
In San Francisco, where complaints can only be seen from 8:30 until 1, RJN,
B & Exs. D-F, eight business hours encompasses two court days. Under a within
8 business hours rule, access to complaints filed Thursday, but not available until
midday Monday (or Tuesday on holiday weekends), is timely even though denied
4-5 days. But the ability of the press and public to exercise their right of timely
access cannot be subject to clerks unfettered discretion to reduce hours (even to cut
costs). In re Associated Press, 172 Fed. Appx 1, 5 (4th Cir. 2006) (administrative
burdens are insufficient to disallow[] contemporaneous access) (following
Valley Broadcasting Co. v. Dist. Court, 798 F.2d 1289 (9th Cir. 1986)).20
Whether the resulting denial of contemporaneous access is characterized as
minor delays, ER 8, or a minimal delay in access, the district courts rule
unduly minimizes, if it does not entirely overlook, the value of openness itself, a
value which is threatened whenever immediate access to ongoing proceedings is
denied. In re Charlotte Observer, 882 F.2d 850, 856 (4th Cir. 1989).
A complaint initiates judicial proceedings, [and] is the cornerstone of
every case, the very architecture of the lawsuit. Bernstein, 814 F.3d at 140.
20
In Planet and Ridenour v. Schwartz, 179 Ariz. 1 (1994), ending access at 3 while
filings and proceedings continued until 4:30 or 5 was unconstitutional. Planet
Order *20. At OCSC, access ends at 4 but processing continues until 5 and filings
throughout the night, ER 1275-76, but the Order did not address this issue.
33
[W]hen a plaintiff invokes the Courts authority by filing a complaint, the public
has a right to know who is invoking it, and towards what purpose, and in what
manner. McCrary v. Elations Co., 2014 WL 1779243, *6 (C.D. Cal. Jan. 13,
2014). That right arises [w]hen a complaint is filed, Bernstein v. Bernstein
Litowitz Berger & Grossmann LLP, 2016 WL 1071107, *9 (S.D.N.Y. Mar. 18,
2016), affd, 814 F.3d 132 (2d Cir. 2016), not after a delay that may destroy the
contemporary news value of the information. Nebraska Press Assn v. Stuart, 427
U.S. 539, 609 (1976) (Brennan, J., concurring); ER 1189 (Times stopped reporting
new cases after OCSC delayed access). Measuring delay in business hours cannot
change that. [T]his court does not engage in a matter of mere semantics.
Redman v. County of San Diego, 942 F.2d 1435, 1450 (9th Cir. 1991) (en banc)
(Thompson, J., dissenting).21
This is particularly true of e-filed complaints, which are treated as filed that
day even if received hours after the clerks office closes. See Planet Order *13 (it
would be nonsensical for a qualified right of access to arise only after a complaint
has been processed, for [it] would run contrary to Rule of Court 1.20(a), which
requires that complaints be deemed filed on the date received by the court
clerk[,] every time a complaint is not processed the day it is received).
21
Majority decision abrogated by Farmer v. Brennan, 511 U.S. 825 (1994).
34
III.
THE ORDER BELOW ALSO ERRED IN ACCEPTING DEFENDANTS

ASSERTIONS ABOUT WHY HE NEEDED TO DELAY ACCESS
WITHOUT REQUIRING ANY EVIDENCE TO SUPPORT THEM
Having decided (erroneously) that denying access to almost half of all new
unlimited complaints for one to nine days was too minor to violate the First
Amendment a conclusion for which it cited no authority and which conflicted
with clear precedent the district court said the analysis should thus end there.
ER 6-8. But it did not. Instead, the court did a curious and revealing thing. It
balanced the policy issues it said were implicated, and found Defendants
significant interest in protecting privacy outweighed what the Order identified as
the interests that may be driving [CNSs] lawsuit. Id. 8-9.
This may explain why the court agree[d] with OCSC that public access to
the newly filed complaints at issue are [sic] timely, id. 6, even though less timely
than that held untimely by another court in the same district in Planet where the
Scanning Policy resulted in delays until the next day to complaints filed late in
the day, Planet Order *20 and Tingling. It did so by accepting OCSCs
contention, unsupported by evidence, that privacy interests would be at risk if
the court ruled for CNS unless tax payers [were] pressed into promoting CNSs
profits by hiring more staff to process filings more quickly. ER 8-9.
35
It is equally clear this result rested on the sort of [g]eneral statements that
the court concludes [a restriction on access] is necessary from a balancing of
interests that this Circuit has rejected as inadequate precisely because it does not
afford a basis for determining whether the court applied the correct standard in
weighing possible prejudice from open proceedings or whether the courts
conclusion was supported by the record. Brooklier, 685 F.2d at 1169.
The courts balancing was also fatally flawed because it failed even to
acknowledge, let alone address or weigh, the fundamental First Amendment
interests that this Court has held are implicated by CNSs efforts to gain timely
access to new complaints. Planet I, 750 F.3d at 787 (CNSs right of access claim
implicates the same fundamental First Amendment interests as a free expression
claim, and it equally commands the respect and attention of the federal courts.).
In Section IV, CNS will explain how consideration of this vital public
interest in preserving the medias ability to monitor the governments activities
and balanc[ing] it in the way precedent dictates against the governments need
to impose restrictions clearly supports an injunction against restrict[ing] the
medias ability to monitor until after court personnel have had an opportunity to
delay providing access to the requested complaints while they process and review
those complaints. Planet Order *13 (quoting Leigh, 677 F.3d at 900).
36
First, however, it is important to recognize what the court below did not
this balance only comes into play if [the restriction is] necessary for safety or
other legitimate reasons. Id. (quoting Leigh, 677 F.3d at 900). [A] court cannot
rubber-stamp an access restriction simply because the government says it is
necessary. Leigh, 677 F.3d at 900. Yet that is what it did, based on factual
findings it did not admit it was making and for which it cited no evidence.
At a certain level, it is true that [w]hen a qualified right of access exists and
the trial court is confronted with legitimate competing interests, the trial court must
carefully balance those interests. Phoenix Newspapers, 156 F.3d at 949. But not
in the ad hoc fashion used below. Rather, the presumption of access is overcome
only by an overriding interest based on findings that closure is essential to
preserve higher values and is narrowly tailored to serve that interest. Id. (quoting
Press-Enterprise II, 478 U.S. at 9-10). Because it did not consider whether
[OCSC] demonstrated an overriding interest , or whether the restrictions are
narrowly tailored to serve that interest, the order denying [CNSs] motion for a
preliminary injunction fell short of the rigorous scrutiny that PressEnterprise II
requires. Leigh, 677 F.3d at 900. And because Defendant did not submit any
evidence to support his asserted justification, and further delay will harm the First
Amendment rights of CNS and those who rely on CNS for information, Planet I,
750 F.3d at 788, this Court should remand with instructions to grant the injunction.
37
A. The Order Did Not Meet The Procedural And Substantive Prerequisites
Required For Restrictions On Access To Survive Appellate Review
Because the press and public have a presumed right of access, restricting
access may be predicated only upon the following requirements: (1) closure
serves a compelling [i.e., overriding] interest; (2) there is a substantial probability
that, in the absence of closure, this compelling interest would be harmed; and (3)
there are no alternatives to closure that would adequately protect the compelling
interest. Phoenix Newspapers, 156 F.3d at 949 (quoting Oregonian Pub. Co. v.
Dist. Court, 920 F.2d 1462, 1466 (9th Cir. 1990)). And the court ordering closure
must make specific factual findings, rather than bas[ing] its decision on
conclusory assertions. Id. The Order did not comply with these requirements.
B. The Orders Implicit Findings Are Utterly Unsupported By The Record
Put in terms of the compelling interest test, the Order implicitly found that:
(1) denying access until after processing is necessary to protect a compelling
interest in preventing private information from becoming public; (2) absent that
policy, significant privacy interests would be at risk; and (3) the only alternative
is to hire more staff to process more quickly, but that is not adequate because it
would requiring tax payers [to] promot[e] CNSs profits. ER 8-9.
This conclusion, however, was not supported by any factual findings.
Oregonian, 920 F.2d at 1467. Rather, [i]t was based upon the district courts
stated belief that because [Defendant said his staff had to review complaints for
38
confidentiality, privacy interests] would be in danger if the court [ruled for CNS].
Id. But [t]here was no evidentiary support for this. Id.
1. If OCSC Is Legally Required To Protect Privacy, The Order Did Not

Explain Why Other Courts Allow Access Sans Confidentiality Review
The only evidence Defendant submitted on this point were declarations from
two deputy operations managers. ER 1004, 1009-10. Despite conceding OCSCs
e-filing system provides ways to file a complaint in confidence, ER 1004, they
claimed [i]t is not possible for [OCSC] to comply with its legal obligations to seal
or otherwise hold in confidence complaints [that should not be made public] unless
one of our [staff] reviews each complaint prior to publication. Id.
This is also what VSC argued in claiming it was not possible to provide
access prior to processing. Planet II, AOB 5; Planet Order *16. New York
County made a similar argument. Tingling Order, ER 1135-36. But the notion that
courts have a legal obligation to protect privacy holds no more water here than
there. Among other things, if potential confidentiality were a genuine concern
it would make little sense for VSC as part of its Scanning Policy to not review
the complaints for such sensitive information prior to scanning them; this,
however, is precisely what VSC currently does. Planet Order *16. Many other
courts also allow access without regard to review. ER 881-85, 1181-82, 1187-88.
Of the eight categories identified by OCSC, four are not required to be kept
39
confidential and a fifth is not part of a complaint.22 Unlimited jurisdiction unlawful
detainers are not confidential, only limited jurisdiction, Civ. Proc. Code 1161.2,
which are not at issue here. Nor are voter registration petitions confidential by law,
Elec. Code 2166, the names of juveniles, ER 977,23 or complaints in childhood
sex abuse cases. Civ. Proc. Code 340.1(n) (certificates of corroborative facts are
kept sealed, but are submitted after the action is filed). The Order erred in
accepting Defendants claim that these must be kept confidential. ER 5, 865-66.
2. OCSC Presented And The Order Cited No Evidence Of A Privacy Risk
Filings to be kept confidential (Safe at Home name change petitions), at least
for a period of time (False Claim Act and insurance fraud actions) and those that
may be declared confidential upon order of a superior court, Elec. Code 2166
are filed or lodged in camera. Ins. Code 1871.7. The onus is on the plaintiff to
maintain confidentiality of the initial filing by following certain requirements,
Rule of Court 2.575(d)-(e) and 2.571(c), or moving to seal under Rule 2.550.
22
Defendant claimed [f]ee waivers may be included in the same document as an
initial complaint, ER 977, but Rule of Court 3.51(a) says they must be made on
the appropriate court form (FW-001 or -002), rather than as part of the complaint.
23
California decided not to include minors names in the items Rule of Court 1.201
requires to be redacted because [t]he benefits of continuing to include such
additional information in court documents relied on for adjudication and
administration of cases outweigh the possible additional privacy protection that
excluding or redacting might afford. ER 928. A few courts issued orders
requiring redaction of minors names from e-filed documents, id. 933-38, but not
OCSC. Moreover, those courts put the responsibility for redacting on the filers
and warn [t]he Clerk will not review each pleading for compliance. Id.
40
As both this court and the Supreme Court have repeatedly emphasized,
merely invoking interests is insufficient. The government must also show that
the proposed communicative activity endangers those interests. Klein, 584 F.3d
at 1202. It did not do so. OCSC provides ways to obtain confidential handling,
ER 977, 1004,24 and did not cite a single example where a complaint with private
information would have become public but for staff review.
As Defendant did not present facts demonstrating any danger to privacy
interests that requires review before access, he failed to carry his burden.
Oregonian, 920 F.2d at 1467; Copley Press, 518 F.3d at 1028-29 (Though the
governments interest is compelling, Oregonian also requires the government
to show a substantial probability that, in the absence of closure, this compelling
interest would be harmed.); Phoenix Newspapers, 156 F.3d at 950 ([T]here was
no evidence in the record, nor were any satisfactory findings entered, establishing
why release of the transcripts would endanger juror safety. Absent that evidence,
there was no reason to delay the release[.]); see Edenfield v. Fane, 507 U.S. 761,
770-71 (1993) (government must demonstrate that the harms it recites are real
and that its restriction will in fact alleviate them to a material degree).
24
The e-filer may identify the document as one requiring confidential treatment
such as a Request to Waive Court Fees, Confidential Cover Sheet False Claims
Action or Sealed Document or identify it as such in the Comments section
to trigger automated confidentiality procedures. ER 880-81.
41
3. The Order Did Not Address Alternatives To Barring Access Pre-Review
The generic risk of private matter becoming public is not unique to OCSC,
and if it were enough to justify Defendants policy, a court could exclude the
public almost as a matter of course. Presley v. Georgia, 558 U.S. 209, 215
(2010). But other courts, state and federal, provide access to e-filed complaints
irrespective of whether clerks have reviewed them. ER 881-85, 1181-82, 1187-88;
RJN, A(1)-(4) & Exs. A-C. That is no doubt because these courts have less-
restrictive ways to address these concerns.
The burden rests upon the proponent of closure to establish that
alternatives will not protect defendants rights, but it behooves those who resist
closure to assist in the search for alternatives. Brooklier, 695 F.2d at 1169.
CNS did so; it identified alternatives as simple as adding a mandatory check-box
to the submission form requiring e-filers to indicate a pleading contains private
material or as inexpensive as requiring such documents to be filed in paper form,
as OCSC used to require for Safe at Home name change petitions. ER 870, 918.25
Unlike Defendant, CNS did not just say this, but presented evidence about
courts that utilize these alternatives, including the Central District of California
which requires case-initiating documents be filed in paper form if confidential by
law or sealing is sought, L.R. 79-5.2.1(a) and courts in Alabama, Connecticut,
25
At OCSC, almost 19 percent of unlimited complaints are filed in paper form.
ER 1000-02. Adding a few more would impose no meaningful burden.
42
Georgia, Nevada, New York and Utah. ER 870-71 (citing ER 884-86, 903-05,
907-08, 939-63). Having failed to mention these alternatives, the court failed to
establish the absence of alternatives to closure that would adequately protect
[Defendants] interests. Phoenix Newspapers, 156 F.3d at 950.
C. The Order Misallocated The Burdens Of Proof And Persuasion
The district court recited the general rule that a preliminary injunction
should not be granted unless the movant, by a clear showing, carries the burden of
persuasion. ER 4 (emphasis original). But it overlooked that principles of First
Amendment law [also] guide [its] analysis, and first among these is that [w]hen
the Government restricts speech, the Government bears the burden of proving the
constitutionality of its actions. Comite de Jornaleros de Redondo Beach v. City
of Redondo Beach, 657 F.3d 936, 944 (9th Cir. 2011) (en banc)).
Consequently, [w]hile [plaintiff] has the general burden of establishing the
elements necessary to obtain injunctive relief, the [government] has the burden of
justifying the restriction on speech. Klein, 584 F.3d at 1201. This is no less true
on a motion to enjoin a restriction on the Press-Enterprise II right of access.
Leigh, 677 F.3d at 900. Where a right of access exists, the question is whether the
[government] has demonstrated an overriding interest in the viewing restrictions,
or whether the restrictions are narrowly tailored to serve that interest. Id.
By imposing the burden on the wrong party, the court committed error in
43
allocating the burden of persuasion and should be reversed. Oregonian, 920 F.2d
at 1466-67; Klein, 584 F.3d at 1203 (reversing denial of injunction because city
failed to support [its] asserted interest in restricting speech); S.O.C. v. County
of Clark, 152 F.3d 1136 (9th Cir.) (same), amended, 160 F.3d 541 (9th Cir. 1998).
The courts misallocation of the burdens confused its analysis. As the party
seeking access is entitled to a presumption of entitlement to disclosure, Oregonian,
920 F.2d at 1467, which should be immediate and contemporaneous, Lugosch,
435 F.3d at 126-27, it is inconceivable CNS did not mak[e] a colorable claim that
its right of timely access ha[s] been infringed especially in light of Planet and
Tingling at which point the burden shifts to the government to justify the
restriction. Thalheimer v. City of San Diego, 645 F.3d 1109, 1116 (9th Cir. 2011).
The Order did not do so. It made CNS justify access through stories locally
or beyond involving lives saved or demonstrating other First Amendment values.
ER 803. In requiring CNS to articulate reasons for unsealing complaints upon
receipt, even though it was [OCSCs] burden to articulate reasons for sealing
until after processing, its approach [was] upside down. Kamakana v. City and
County of Honolulu, 447 F.3d 1172, 1181 (9th Cir. 2006). And, as shown, it led to
another error: the court should have, but did not, require [Defendant] to present
facts supporting closure and to demonstrate that any available alternatives would
not protect his interests. Oregonian, 920 F.3d at 1467.
44
IV.
THIS COURT SHOULD REMAND WITH INSTRUCTIONS

TO GRANT CNS A PRELIMINARY INJUNCTION
Because it found CNS isnt likely to succeed on the merits, ER 9, and
made an error of law by not apply[ing] the serious questions test, Cottrell,
632 F.3d at 1135, the district court did not analyze the other factors for issuing a
preliminary injunction under Winter v. Natural Resources Defense Council, 555
U.S. 7, 20 (2008). But this Court can and should. Circuit caselaw clearly favors
granting preliminary injunctions to a plaintiff who is likely to succeed on the
merits of his First Amendment claim, Klein, 584 F.3d at 1208, and the record
confirms the other Winter factors warrant injunctive relief. As there is no reason
to remand for further proceedings with respect to CNSs motion, the Court should
remand with instructions to issu[e] an appropriate injunction, as it often has in
First Amendment cases. Id. at 1207-08; Associated Press v. Otter, 682 F.3d 821,
825-26 (9th Cir. 2012); S.O.C., 152 F.3d at 1148-49; Jacobsen v. U.S. Postal
Service, 812 F.2d 1151, 1154 (9th Cir. 1987).26
26
The matter of what questions may be taken up and resolved for the first time
on appeal is one left primarily to the discretion of the court of appeals. Beck v.
City of Upland, 527 F.3d 853 (9th Cir. 2008). Such action is especially warranted
in appeals involving the First Amendment to avoid the delay associated with
remand, since delay affect[s] not only the parties, but also [has] a significant
adverse impact on the public interest. Hartford Courant Co. v. Pellegrino, 380
F.3d 83, 90-91 (2d Cir. 2004); see also Planet I, 750 F.3d at 787 (The concern
that a delay in litigation will itself chill speech is also implicated here.).
45
A. The First Amendment Violations At OCSC Constitute Irreparable Harm

This Circuit follow[s] a long line of precedent establishing that [t]he loss
of First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury. Thalheimer, 645 F.3d at 1128; Doe v. Harris, 772
F.3d 563, 583 (9th Cir. 2014) (colorable First Amendment claim is irreparable
injury sufficient to merit the grant of [injunctive] relief); Klein, 584 F.3d at 1207-
08. Proof of tangible harm from the denial of timely access is not required. See
Otter, 682 F.3d at 825-26 (reversing and ordering injunction to issue where district
court held plaintiffs failed to show that they would suffer irreparable harm from
denial of access because they would have access in the future). As the federal
courts in Tingling and Jackson found, CNS would be irreparably harmed without
the injunctive relief because loss of First Amendment freedoms even for minimal
periods of time, unquestionably constitute[s] irreparable injury. Tingling Order,
ER 1170-71); Jackson, 2009 WL 2163609 at *4. The same result follows here. 27
27
Unlike monetary injuries, constitutional violations cannot be adequately
remedied through damages. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th
Cir. 2009). Moreover, the Eleventh Amendment bars CNS from seeking monetary
damages, which also makes the harm to CNS irreparable. Association Des
leveurs De Canards et DOies Du Quebec v. Harris, 2012 WL 12842942, *3
(C.D. Cal. 2012). [D]elays in access [also] diminish the value of [CNSs] reports
to its subscribers, leading to a loss of goodwill widely recognized as an injury
incapable of ascertainment in monetary terms. Jackson, 2009 WL 2163609 at *4
n.4. CNS presented evidence below regarding complaints from subscribers
due to a clerks policy or practice of withholding access, ER 1185, as well as lost
opportunities for timely reporting on significant new civil actions. Id. 1280-82.
46
B. The Balance Of Equities And Public Interest Also Favor An Injunction
The district courts comments in the Order, at the hearing on CNSs motion
and in its order requiring additional briefing strongly suggest it found the balance
of equities and public interest favor Defendant and would do so again on remand,
yet another reason why instructions to issue an injunction are warranted. 28
Courts considering requests for preliminary injunctions have consistently
recognized the significant public interest in upholding First Amendment
principles, Otter, 682 F.3d at 826 (quoting Thalheimer, 645 F.3d at 1129), and
this Circuit has found the balance of equities and public interest tip sharply in
favor of preliminary relief where the restriction at issue delays dissemination of
news until the next day[.] Jacobsen, 812 F.2d at 1154. Even in cases where the
First Amendment activities are only limited, rather than entirely eliminated,
this public interest is overcome only by a strong showing of other competing
public interests. Sammartano v. First Judicial District Court, 303 F.3d 959, 974
(9th Cir. 2002); Klein, 584 F.3d at 1208 (We have consistently recognized the
significant public interest in upholding free speech principles).
In discussing the policy issues it thought are implicated by CNSs
28
An appropriate injunction would be the one CNS requested: prohibiting
Defendant from refusing to make newly filed unlimited complaints available to the
public and press until after Defendants staff completes administrative processing,
including confidentiality review, and from refusing to provide timely access to new
unlimited complaints processed or received for filing after 4 p.m. ER 1085.
47
proposals, ER 8, the district court did not mention this Courts holding that
CNSs right of access claim implicates fundamental First Amendment
interests because its reports about new complaints constitute the informed public
discussion of ongoing judicial proceedings that is an essential part of the First
Amendments purpose. Planet I, 750 F.3d at 785, 787. And it overlooked that
First Amendment values and the public interest suffer when access to complaints is
delayed because CNS is a surrogate[] for the public, but CNS cannot report on
complaints [a court] withholds, and the public cannot discuss the content of
unlimited civil complaints about which it has no information. Id. at 788.
Instead, the district court repeatedly suggested First Amendment values
may be diminished here because CNS is a for-profit entity with a large base of
law firm subscribers (in addition to many subscribers in the media, academia,
libraries and government) who may use CNSs reports for profit-making purposes:
[I]f CNS had its way, the vast majority of those who would benefit would be
those with a commercial interest in gaining quick access to newly filed
complaints. While CNS properly heralds its role as a purveyor of First
Amendment rights for the general public, the facts show that over 92% of
CNSs subscribers are paying law firms. Law firms likely then solicit
business using the information CNS provides. And taxpayers shouldnt
have to be encumbered with helping to fulfil CNSs business goals. In sum,
the interests that would be served by CNSs proposals are dwarfed by the
burdens it would impose.
ER 9; RT 23-24 (perhaps you can convince me that the speed issue applies in
this context, but that may depend, in part, on who your subscribers are), 7-10,
48
51, 53 (hearing); ER 802-03 (additional briefing order).29
But a profit motive does not diminish First Amendment rights.
Daily Herald v. Munro, 758 F.2d 350, 358-59 (9th Cir. 1984) (Norris, J.,
concurring) (citing Pittsburgh Press Co. v Pittsburgh Commn on Human
Relations, 413 U.S. 376, 385 (1973)) (clearly incompatible with the First
Amendment to reduce protection for publications conducted with a view toward
increased sales). Not only is the economic motive of a publisher or its
subscribers not relevant, neither is any perceived [lesser] value of certain speech.
Dex Media West v. City of Seattle, 696 F.3d 952, 957, 960, 964 (9th Cir. 2012).
The yellow pages are thus entitled to the full protection of the First Amendment,
id. at 954, as are content about court records accessed and sold by for-profit
aggregation websites, Nieman v. VersusLaw, 512 Fed. Appx 635, 638 (7th Cir.
2013), and bond ratings used by subscribers or readers primarily or solely for
financial gain. In re County of Orange, 245 B.R. 138, 144-45 (C.D. Cal. 1997).
It follows that, as this Court has held, CNSs reporting is entitled to full
First Amendment protection, Planet I, 750 F.3d at 787, irrespective of the nature of
CNSs subscribers, any profit its subscriptions generate, or how those subscribers
29
CNS wrap[s] its claim in the august values of the First Amendment. But
at the hearing, there was some indication that such august First Amendment values
might only be a minor factor here, if a factor at all. Instead, there were some
indications that the overriding focus of CNSs subscriptions is to allow law firms
to chase after new business. While theres some value in such activities within our
free market, First Amendment concerns may be diminished if thats the case.
49
use the Orange County Report or other CNS publications covering the courts.30
C. The Balance Of Harms Sharply Favors CNSs First Amendment Claim
The First Amendments guarantee of free speech does not extend only to
categories of speech that survive an ad hoc balancing of relative social costs and
benefits. U.S. v. Stevens, 559 U.S. 460, 470 (2010). The high court repudiated as
startling and dangerous the view that First Amendment protection depends
upon a categorical balancing of the value of the speech against its societal costs.
Id. Thus, depictions of animal cruelty, id. at 464, violent video games, Brown
v. Entmt Merchants Assn, 564 U.S. 786, 788 (2011), and gross and repugnant
adult content are entitled to the same level of first amendment protection as
political speech. Hustler Magazine v. Falwell, 485 U.S. 46, 49-50 (1988).
As was true of abstention in Planet I, the ad hoc balancing below portends
particularly egregious damage to First Amendment rights because this case does
involve speech of marginal benefit but rather the free discussion of governmental
affairs that the First Amendment exists to protect. 750 F.3d at 787. Indeed, the
record is replete with evidence of the value of CNSs reporting, including on new
complaints at OCSC (albeit on a delayed basis). ER 136-801, 1280-82.
The corollary to this rule is that where the First Amendment is the source of
30
As noted below, while some of CNSs subscribers may use its publications to
help compete for business, they can be used for other purposes, such as alerting
clients they have been sued, watching for cases that may affect clients even if they
are not parties and monitoring plaintiffs, lawyers and litigation trends. ER 56.
50
the right of access, the identity of the person seeking that access or what they
seek to do with the information also does not matter:
Although the presumption of access is based on the need for the

public monitoring of courts, those who seek access to particular
information may want it for entirely different reasons. However, we
believe motive generally to be irrelevant to defining the weight
accorded to the presumption of access. [A]ssessing the motives
risks self-serving judicial decisions tipping in favor of secrecy.
Lugosch, 435 F.3d at 123 (rejecting defendants argument that the weight of the
presumption of access was not great because newspapers wanted the documents
to dissect the business practices of one of the defendants); ER 107 (First
Amendment right of timely access is not conditioned on the motivation of the
entity or individual seeking access) (brief of media amici in support of CNS).
Since the strength of the First Amendment right of access does not depend
on the perceived value of who is requesting it or why, the balance of equities and
public interest can only be overcome by a strong showing of other competing
public interests. Sammartano, 303 F.3d at 974. The competing interest identified
by OCSC was the privacy interests the district court said would require it to
hire[] more staff, resulting in taxpayer expense. But as shown in Section III, that
conclusion rests on faulty premises and is without evidentiary support.
The balance of hardships thus not only tips in CNSs favor, but tips
sharply for purposes of the serious question test. Jacobsen, 812 F.2d at 1154.
As in Tingling, CNS will be denied its First Amendment right of access to new
51
case-initiating documents unless the Court issues this preliminary injunction while
the clerk has alternative ways to address its administrative concerns. ER 1171.
One easy alternative is to require confidential complaints to be filed in paper form,
as many e-filing courts do. ER 885-86, 941, 946-48, 959, 962-63. OCSC could
also use drop-down menus and checkoff boxes in its e-filing interface, as other
courts do, to ensure confidential filing. ER 884-86, 903-08. It presented no
evidence to show, and the Order did not find, these options would be ineffective.
While the district court recognized speed is important and the media
might not report on a complaint filed two weeks ago, RT 65, it did not recognize,
as Planet and Tingling did, that even short delays matter. As the media amici
supporting CNS note, [t]imeliness is often a critical component of the editorial
decision to publish or not publish a news story, and [i]mmediacy is even more
vital in the digital era. ER 102. Timely access is important for reporters writing
the first news stories about a lawsuit to make their reporting more accurate, fair
and complete. Id. 104; ER 1185-86. As CNS showed in its supplemental filing,
even short delays allow plaintiffs to control news coverage while complaints are
withheld from public view. ER 130, 141-43, 610-788. These delays deter[]
informed public discussion of ongoing judicial proceedings. Planet I, 750 F.3d at
787; ER 1278-82 (OCSCs delays deterred reporting on new complaints).
52
CONCLUSION
The value of timely access may be at its height when it comes to case-
initiating documents like complaints. Unlike summary judgment or trial records
filed in the course of ongoing proceedings the public already knows about, [a]
newly-filed civil complaint serves as the opening bell in a legal contest. ER 1185.
When a complaint is withheld, even for a short time, the public [is] unaware that a
claim has been leveled and that state power has been invoked, Bernstein, 814 F.3d
at 141, and the new action is secret to all but the court and the plaintiff. That result
is inconsistent with the informed public discussion of ongoing judicial
proceedings the First Amendment exists to protect, Planet I, 750 F.3d at 787,
but it will follow if the Order below stands. Clerks at other courts will look to that
Order to justify delaying public access until they deem it appropriate, even though
e-filing should speed access, and even as other technological improvements
shorten the news cycle, making timely access more critical than ever.
Because the public cannot discuss the content of unlimited civil complaints
about which it has no information, id. at 788, this Court should reverse and
remand with instructions to enter the preliminary injunction.

53
STATEMENT OF RELATED CASE
Pursuant to Circuit Rule 28-2.6, this appeal is related to Courthouse News
Serv. v. Planet, Appeal No. 16-55977 (Planet III), which is before a panel
consisting of Judges Kim McLane Wardlaw, N. Randy Smith and Mary H.
Murguia. These two appeals raise the same or closely related issues, Circuit Rule
28-2.6(c), for the reasons stated in CNSs September 6, 2017 motion to assign this
case for hearing with Planet (Dkt. 3) and its reply in further support of that motion,
(Dkt. 7), which is still pending. See also Planet III, Appellants Consol.
Resp./Reply 2-3, 16, 22 n.8, 43 (Dkt. 55) (citing the Order at issue in this appeal).

ROGER MYERS
RACHEL MATTEO-BOEHM
KATHERINE KEATING

Rachel Matteo-Boehm
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth in
Ninth Circuit Rule 32-1. This brief uses 14-point proportional type and contains
13,994 words, excluding the portions exempted by Rule 32(f) of the Federal Rules
of Appellate Procedure.

ROGER MYERS
RACHEL MATTEO-BOEHM
KATHERINE KEATING

Rachel Matteo-Boehm
CERTIFICATE OF SERVICE
I hereby certify that on October 3, 2017, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
/s/ Rachel Matteo-Boehm

Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28.1-1(f),

29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 17-56331
Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief.
I certify that (check appropriate option):
This brief complies with the length limits permitted by Ninth Circuit Rule 28.1-1.
The brief is words or pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).
This brief complies with the length limits permitted by Ninth Circuit Rule 32-1.
The brief is 13,998 words or pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).
This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b).
32(f), if applicable, and is filed by (1) separately represented parties; (2) a party or parties filing a
single brief in response to multiple briefs; or (3) a party or parties filing a single brief in response to a
longer joint brief filed under Rule 32-2(b). The brief's type size and type face comply with Fed. R. App. P.
32(a)(5) and (6).
This brief complies with the longer length limit authorized by court order dated
The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is
words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable.
This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2
(a) and is words or pages, excluding the portions exempted by Fed. R. App. P. 32
(f), if applicable. The briefs type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).
This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2
(c)(2) or (3) and is words or pages, excluding the portions exempted by Fed. R.
App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and
(6).
This brief complies with the length limits set forth at Ninth Circuit Rule 32-4.
32(f), if applicable. The briefs type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).
Signature of Attorney or Date Oct 3, 2017

Unrepresented Litigant
/s/ Rachel Matteo-Boehm
("s/" plus typed name is acceptable for electronically-filed documents)
(Rev.12/1/16)

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Case: 17-56331, 10/03/2017, ID: 10604647, DktEntry: 12, Page 1 of 70

U.S. Court of Appeals Docket No. 17-56331

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COURTHOUSE NEWS SERVICE,

DAVID YAMASAKI, in his official capacity as Court Executive Officer/Clerk of

On Appeal from a Decision of the United States District Court

OPENING BRIEF OF APPELLANT

Rachel Matteo-Boehm, Esq.

Attorneys for Plaintiff-Appellant

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Plaintiff-Appellant

percent of its stock.

DATED: October 3, 2017 BRYAN CAVE LLP

By: /s/ Rachel Matteo-Boehm

CORPORATE DISCLOSURE STATEMENT

STATEMENT OF ISSUES PRESENTED FOR REVIEW ................................... 2

STATEMENT OF THE CASE............................................................................... 6

A. There Is A Long History Of Timely Access

B. When OCSC Moved Access After Processing,

C. Jackson Struck Down A Similar Policy,

D. Planet Enjoined VSC From Denying Access

E. OCSC Refused To Admit Planet Rejected Process Before Access ....13

F. Tingling Enjoined A One-Day Delay

G. OCSCs Defense Could Not Be Reconciled

H. The Court Wanted Evidence About CNS,

I. The New Evidence, Supplemental Brief And Media Amici Brief

J. In Finding OCSCs Delays Constitutional, The Order Did Not Cite

SUMMARY OF THE ARGUMENT .....................................................................22

I. THE ORDER BELOW CANNOT SURVIVE ANY LEVEL OF

II. THE ORDER BELOW ERRED IN FINDING ACCESS IS TIMELY

A. Under The First Amendment, Access To Complaints Must Be

B. By Allowing Routine Denials Of Access One To Five Days, The

1. Delayed Access Violates Precedent The Order Fails To

2. Measuring In Business Hours Does Not Make Delayed Access

III. THE ORDER BELOW ALSO ERRED IN ACCEPTING DEFENDANTS

A. The Order Did Not Meet The Procedural And Substantive

B. The Orders Implicit Findings Are Utterly Unsupported By The

1. If OCSC Is Legally Required To Protect Privacy, The Order

2. OCSC Presented And The Order Cited No Evidence Of A

3. The Order Did Not Address Alternatives To Barring Access

C. The Order Misallocated The Burdens Of Proof And Persuasion............43

IV. THIS COURT SHOULD REMAND WITH INSTRUCTIONS TO

A. The First Amendment Violations At OCSC Constitute Irreparable

B. The Balance Of Equities And Public Interest Also Favor An

C. The Balance Of Harms Sharply Favors CNSs First Amendment

STATEMENT OF RELATED CASE

FORM 8. Certificate of Compliance

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Associated Press v. Dist. Court,

Association Des leveurs De Canards et DOies Du Quebec v. Harris,

Beck v. City of Upland,

Bernstein v. Bernstein Litowitz Berger & Grossmann LLP,

Bernstein v. Bernstein Litowitz Berger & Grossmann LLP,

Brown v. California Dept of Transp.,

Brown v. Entmt Merchants Assn,

Comite de Jornaleros de Redondo Beach v. City of Redondo Beach,

Daily Herald Co. v. Munro,

Daily Herald Co. v. Munro,

Dex Media West v. City of Seattle,

Doe v. Pub. Citizen,

El Vocero de Puerto Rico v. Puerto Rico,