Larry Flynt v. George Lombardi
885 F.3d 508
| 8th Cir. | 2018Background
- This appeal arises from Flynt’s motion to unseal documents in litigation challenging Missouri’s lethal-injection protocol; Flynt was allowed to intervene on remand under Fed. R. Civ. P. 24(b).
- The State filed certain deposition and licensing materials under seal to protect identities of execution-team medical personnel (M2, M3) and to preserve Missouri’s ability to carry out executions.
- The district court denied Flynt’s unsealing motion under the common-law right of access and, alternatively, under the First Amendment (the court treated the First Amendment issue cautiously because the circuit has not definitively recognized a civil-file First Amendment right of access).
- The district court also ordered the State to submit supplemental briefing explaining why redaction would not protect the State’s interests; the State filed a sealed, in camera supplemental brief and a redacted public version.
- Flynt later sought access to the sealed supplemental brief; the district court denied that request as untimely and, on the merits, found in camera review appropriate to avoid revealing identities.
- The Eighth Circuit affirmed: it held the State overcame the common-law presumption of access, found Flynt failed the Press-Enterprise/First Amendment test, and upheld in camera review and the denial of Flynt’s access to the sealed supplemental filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether common-law right of access requires unsealing discovery/licensure materials | Flynt: public (and his) interest in verifying execution-team credentials warrants access | State: privacy, safety, and ability to carry out executions outweigh access; disclosure would identify M2/M3 and cause harassment | Court: Balance favors State; common-law presumption overcome and sealing not an abuse of discretion |
| Whether redaction could satisfy access while protecting identities | Flynt: redaction could allow disclosure of qualifications without revealing identities | State: redaction not practicable; redactions would still reveal identities or be ineffective | Court: in camera review showed redaction not feasible; sealing appropriate |
| Whether First Amendment right of access applies to these civil records | Flynt: Press-Enterprise test supports a qualified First Amendment right to these records | State: plaintiffs cannot meet Press-Enterprise (no historical openness; disclosure would frustrate executions) | Court: Assuming Press-Enterprise applies, Flynt fails both prongs; no First Amendment right to unseal in this case |
| Whether Flynt was entitled to review the State’s sealed in camera supplemental brief | Flynt: he should have access to the full supplemental briefing to challenge sealing/redaction rationale | State: in camera filing was authorized to prevent disclosure of identifying information; Flynt’s challenge was untimely | Court: Denial was not an abuse of discretion — Flynt’s objection untimely and in camera review was appropriate |
Key Cases Cited
- Press-Enterprise Co. v. Superior Court of Cal., Cnty. of Riverside, 478 U.S. 1 (1978) (establishes the "experience and logic" test for First Amendment access)
- Nixon v. Warner Commc'ns, Inc., 435 U.S. 589 (1978) (recognizes common-law right of access to judicial records is presumptive but not absolute)
- IDT Corp. v. eBay, 709 F.3d 1220 (8th Cir.) (2013) (balances presumption of access against confidentiality interests; requires courts to consider practicability of redaction)
- Zink v. Lombardi, 783 F.3d 1089 (8th Cir. en banc) (2015) (assumed Press-Enterprise applies to executions but held disclosure of supplier identities failed test)
- In re Lombardi, 741 F.3d 888 (8th Cir.) (2014) (writ to prevent disclosure of execution-team member identity when disclosure would impede acquiring lethal chemicals)
- In re Mo. Dep't of Corrs., 839 F.3d 732 (8th Cir.) (2016) (disclosure of lethal-injection supplier would unduly burden State’s ability to carry out executions)
- Webster Groves Sch. Dist. v. Pulitzer Publ'g Co., 898 F.2d 1371 (8th Cir.) (1989) (privacy interests can outweigh public’s access when disclosure would harm vulnerable individuals)