Federal Judiciary

United States v. Doe, No. 08-4064-cr, 2009 WL 4823001 (2d Cir. 2009)

The Government and the defendant joined in an unusual appeal seeking reversal of a district court order denying a motion for total and permanent sealing of a sentencing transcript -- a rare circumstance in which the First Amendment and sentencing law converge.  In sum, the Second Circuit affirmed that "the public right of access to criminal proceedings -- deeply rooted in the common law and guaranteed by the First Amendment -- is presumptive."  And it went on to state that a "party seeking to overcome this presumption bears a heavy burden," and that "the burden increases the more extensive the closure sought."  Thus, the Second Circuit affirmed the district court's decision, but remanded to afford the parties an opportunity to apply for a sealing of the sentencing transcript that is partial, non-permanent, or both. 

We never do learn what the "compelling interest" in sealing was.  But we do learn that the First Amendment continues to thrive even in the criminal (and sentencing) context.

(Hat tip to Lee Dunst of Gibson, Dunn & Crutcher, LLP, who represented the district court as amicus and was kind enough to forward the decision to me.)