U.S. v. McDougal, s. 96-2606

• Decision Date: 20 December 1996
• Docket Number: 96-2671,Nos. 96-2606,s. 96-2606
• Citation: 103 F.3d 651
• Parties: , 25 Media L. Rep. 1097 UNITED STATES of America, Plaintiff, v. James B. McDOUGAL; Jim Guy Tucker; Susan H. McDougal; Defendants. REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; Radio-Television News Directors Association; Capitol Cities/American Broadcasting Companies; Cable News Network, Inc.; National Broadcasting Company, Inc.; CBS, Inc.; Movants-Appellants, v. DOW JONES AND COMPANY, INC.; Movant, William Jefferson Clinton, The President of the United States in his official capacity, Interested Party-Appellee. UNITED STATES of America, Plaintiff, v. James B. McDOUGAL; Jim Guy Tucker; Susan H. McDougal; Defendants. REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; Radio-Television News Directors Association; Capitol Cities/American Broadcasting Companies; Cable News Network, Inc.; National Broadcasting Company, Inc.; CBS, Inc.; Movants, v. DOW JONES AND COMPANY, INC.; Movant, William Jefferson Clinton, The President of the United States in his official capacity, Interested Party-Appellee. Citizens United, Interested Party-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 651

103 F.3d 651

65 USLW 2433, 25 Media L. Rep. 1097

UNITED STATES of America, Plaintiff, v. James B. McDOUGAL; Jim Guy Tucker; Susan H. McDougal; Defendants.

REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS;

Radio-Television News Directors Association; Capitol

Cities/American Broadcasting Companies; Cable News Network, Inc.; National Broadcasting Company, Inc.; CBS, Inc.; Movants-Appellants, v. DOW JONES AND COMPANY, INC.; Movant, William Jefferson Clinton, The President of the United

States in his official capacity, Interested

Party-Appellee.

UNITED STATES of America, Plaintiff, v. James B. McDOUGAL; Jim Guy Tucker; Susan H. McDougal; Defendants.

REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS;

Radio-Television News Directors Association; Capitol

Cities/American Broadcasting Companies; Cable News Network, Inc.; National Broadcasting Company, Inc.; CBS, Inc.; Movants, v. DOW JONES AND COMPANY, INC.; Movant, William Jefferson Clinton, The President of the United

States in his official capacity, Interested

Party-Appellee.

Citizens United, Interested Party-Appellant.

Nos. 96-2606, 96-2671.

United States Court of Appeals Eighth Circuit.

Submitted Aug. 12, 1996.

Decided Dec. 20, 1996.

Philip Anderson, Little Rock, AR, argued (Leon Holmes and Jeanne L. Seewald, on the brief), for CBS, NBC, CNN, Capitol Cities Radio & TV Reporters Committee.

Donald C. Donner, Fayetteville, AR, argued (Michael R. Shahan, on the brief), for Citizens United.

Gregory T. Jones, Little Rock, AR, and Douglas Letter, Washington, DC, argued, (John R. Tisdale and Troy A. Price, on the brief), for appellee.

Before McMILLIAN, FLOYD R. GIBSON and MAGILL, Circuit Judges.

McMILLIAN, Circuit Judge.

A group of media organizations, including Reporters Committee for Freedom of the Press; Radio-Television New Directors Association; Capital Cities/American Broadcasting Companies, Inc.; Cable News Network, Inc.; National Broadcasting Company, Inc.; and CBS Inc. (hereinafter the Reporters), and a non-profit citizens' group, Citizens United (Citizens) (collectively appellants), each appeal from a final order entered in the United States District Court ¹ for the Eastern District of Arkansas denying their applications for access to a videotape recording of President William Jefferson Clinton's deposition testimony used at trial in the underlying criminal case. United States v. McDougal, 940 F.Supp. 224 (E.D.Ark.1996). For reversal, appellants argue that the district court's denial of physical access to the videotape, so that they may make copies, violated their First Amendment and common law rights of access to judicial records. Citizens alone additionally argues that the district court erred in holding that it lacked standing to participate in the litigation over this access issue. These appeals were consolidated for oral argument, which was expedited at the Reporters' request. Following oral argument on August 12, 1996, we entered an order which stated "[f]or reasons that will be stated in an opinion to follow, we affirm the district court's denial of access to the videotape." ² United States v. McDougal, 92 F.3d 701 (8th Cir.1996), amended, id. (Aug. 21, 1996) (amending caption to refer to Reporters Committee for Freedom of the Press, et al., as Movants-Appellants ). ³ We now set forth our reasons for affirming the district court's order.

Background

The following summary of the background is largely taken from the district court's order. 940 F.Supp. at 225-26. Prior to the trial in the underlying criminal case, the defendants requested that a witness subpoena be issued to President Clinton requiring him to appear and give testimony at their criminal trial. One of the defendants further moved to compel President Clinton to testify in person. In response, President Clinton sought the district court's permission to testify by videotaped deposition pursuant to Fed.R.Crim.P. 15. ⁴ The district court ordered that the witness subpoena be issued, but granted the President's Rule 15 request.

On April 24, 1996, the district court ordered that the videotape of President Clinton's deposition be kept under seal and gave the parties and the President thirty days in which to file briefs regarding the handling of the videotape following its use at trial. The district court also invited any representatives of the news media to file briefs in their capacity as amicus curiae within the same thirty-day deadline.

The President's videotaped deposition was taken at the White House on April 28, 1996, and the district court judge presided from Little Rock via satellite. On May 3, 1996, the Reporters filed an amicus brief requesting that they be given physical access to the videotape immediately or, in the alternative, at the time of its display to the jury. None of the parties to the underlying criminal prosecution filed briefs concerning the access issue. On May 6, 1996, the district court entered an order in which the court stated that it would provide public access to the transcript of President Clinton's deposition after the presentation of the videotaped deposition testimony to the jury. The district court further indicated that access to the videotape would not be addressed until after May 24, 1996, the briefing deadline. The Reporters moved for reconsideration of the district court's denial of their request for immediate access to the videotape; on May 8, 1996, the district court denied the Reporters' motion.

In the meantime, counsel for the prosecution and counsel for the defendants had reviewed a draft of the entire written transcript of President Clinton's deposition and agreed to delete certain portions that generally contained objections and arguments of counsel. The transcript and the videotape were edited accordingly. The edited videotape was played for the jury on May 9, 1996. At that time, the courtroom was open to the public and filled to capacity. The public, including appellants, had an opportunity to view the edited videotape at the time and in the manner it was played to the jury in the courtroom. ⁵ The edited transcript was admitted into evidence and made a part of the record, and copies of the edited transcript were released to the public.

In addition to the Reporters' request for access to the videotape, Citizens filed an application for access to the videotape and Dow Jones & Co. (Dow Jones) requested a copy of the unedited transcript and access to the unedited videotape of President Clinton's testimony. ⁶ The President filed a motion for a protective order requesting that the original videotape and all copies thereof, whether edited or unedited, remain under seal.

Upon consideration of the outstanding motions and applications before it related to the videotapes and transcripts of President Clinton's deposition testimony, the district court granted Dow Jones's request for the unedited transcript but denied all requests for access to the videotape. 940 F.Supp. at 228. In denying access to the videotape, the district court relied upon Nixon v. Warner Communications, Inc., 435 U.S. 589, 608, 98 S.Ct. 1306, 1317, 55 L.Ed.2d 570 (1978) (where White House audiotapes had been played for the jury and the public, including the press, during the Watergate trial and transcripts had been furnished to the press, the Court of Appeals erred in reversing the district court's denial of the press's request for access to the audiotapes because (1) the common law right of public access to judicial records did not authorize the release of the tapes in question from the district court and (2) the press did not have a right of access to the audiotapes under the First or Sixth Amendments), ⁷ and United States v. Webbe, 791 F.2d 103 (8th Cir.1986) (where audiotapes created pursuant to the federal wiretap statute had been played for the jury and the public, including the press, in a criminal mail fraud trial and transcripts had been furnished to the press, the district court did not abuse its discretion, under a First Amendment or a common law analysis, in denying the press access to the audiotapes). In the present case, the district court held that the press's First Amendment right of access to public information had been "fully satisfied in this instance by allowing the press to attend the playing of the videotaped deposition and in providing full access to the written transcript." 940 F.Supp. at 227. As to the common law right of public access, the district court concluded that "[t]he Court need not decide at this time whether the common law right of access applies to videotaped testimony because even assuming it does, the Court finds, on balancing all the relevant factors, that the press's request to copy the videotape must be denied." Id. at 227. The district court concluded that, on balance, the circumstances favored keeping the videotape under seal because: (1) substantial access to the information provided by the videotape had already been afforded; (2) release of the videotape would be inconsistent with the ban on cameras in the courtroom under Fed.R.Crim.P. 53 ⁸; (3) in other cases involving videotaped testimony of a sitting president, the tapes were not released; and (4) there exists a potential for misuse of the tape, a consideration specifically recognized in Nixon v. Warner Communications, Inc., 435 U.S. at 601, 98 S.Ct. at 1313-14 (noting President Nixon's argument that the audiotapes could be distorted through cutting, erasing, and splicing). 940 F.Supp. at 227-28. In a footnote, the district court separately held that Citizens lacked standing to appear in the action and accordingly denied its application for access to the videotape. Id. at 225 n. 2. These appeals followed.

Discussion

On appeal, appellants maintain that the district court's denial of access to the videotape violated their common law and First Amendment rights of access to judicial records. Thus, as a threshold matter, they argue that the videotape is a judicial record to which...