I’m a big fan of the First Amendment to the United States Constitution, especially the clause about freedom of the press. Part of my interest is self-serving; I’ve been writing about horses since before Secretariat won the Triple Crown. More important, though, is the role journalists play in keeping tabs on government and business. It’s an important job, and someone has to do it.

Laura Leigh is a photojournalist who covers the Bureau of Land Management (BLM) wild horse roundups for Horseback Magazine. Leigh’s efforts have been stymied by BLM efforts to limit press access to the roundups, and in September 2010 she filed a lawsuit in federal district court alleging a violation of her First Amendment rights. Leigh also filed motions asking for immediate relief, seeking "unrestricted access" to the roundups of horses from the Silver King Herd Management Area.

After the attacks on the World Trade Center on September 11, 2001, part of our government’s justification for the Patriot Act and other laws that eroded a variety of our rights was this: if you don’t have anything to hide, you shouldn’t complain about the government snooping around in your business.

What’s good for the goose (us) should be good for the gander (them). If the BLM has nothing to hide, why limit public and press access to the roundups?

The district court didn’t see things that way. The judge denied everything and Leigh’s case made its way up the judicial food chain to the Ninth Circuit Court of Appeals.

A Win, Sort Of

A three-judge panel of the Ninth Circuit reversed the decision of the lower court. The Ninth Circuit reaffirmed a journalist’s "qualified right" to observe government activities such as the Silver King roundups, giving Leigh a "qualified" win over the BLM. It wasn’t a home run, though; maybe a triple with the batter rounding third for home.

The district court initially denied Leigh’s claims on two grounds—first, the case was moot because the Silver King roundup already had taken place and second, in any event, there was little likelihood that she would eventually win on her First Amendment claim. The Ninth Circuit quickly dealt with the mootness issue, noting that Leigh was requesting access to all future roundups and to horses in holding facilities, not to a single roundup that already had taken place.

As to the First Amendment claim, the Ninth Circuit said that an "open government has been the hallmark of our democracy since our nation’s founding," and that "without some protection for seeking out news, freedom of the press would be eviscerated." A journalist’s right of access to observe government activities is not absolute, though, and answering the access question requires a two-part balancing test.

The first question has two parts of its own, whether the location and the activity have "historically been open to the press and the public" and whether public access "plays a significant positive role in the functioning of the particular process in question." Even if the answers to those questions are "yes," the government still can restrict press access by showing "an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."

A Judicial Mulligan 

Courts cannot "rubber-stamp an access restriction simply because the government says it is necessary," the Ninth Circuit explained. This is true because "officials have great incentive to blindfold the watchful eyes of the Fourth Estate" when those officials are doing something wrong.

Despite affirmations about the importance of a free press, the Ninth Circuit did not decide how Leigh’s complaint would fare when subjected to the two-part test. Instead, and typically, the appellate judges sent the case back to federal district court for another try, with specific instructions for the lower court to apply the proper test. This didn’t happen the first time around and there is no guarantee that Leigh will win in the do-over. For that, we’ll have to wait a while longer.

It was a procedural win for the photojournalist, but not a substantive one on the merits or her case.

Some reports from the roundups suggest that full access would be a public relations disaster for BLM. Do we have a right to know what’s really going on out west, or should we trust the BLM?