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Slivka v. Young Mens Christian Association of Pikes Peak Region

United States District Court, D. Colorado

July 11, 2019

JULIE SLIVKA, Plaintiff,



         This matter is before the Court on Defendant The Young Men's Christian Association of the Pikes Peak Region's Motion for Gag Order [Docket No. 16] and Defendant The Young Men's Christian Association of the Pikes Peak Region's Unopposed Motion for Restricted Access to the Proceedings, Pursuant to D.C.Colo.LCivR 7.2(c) [Docket No. 17]. On July 10, 2019, plaintiff filed a response to the motion for a gag order [Docket No. 25].

         I. BACKGROUND

         On February 4, 2019, plaintiff filed this lawsuit against defendants, raising claims of assault, battery, and negligence against defendant Lozano and claims of sex discrimination, disability discrimination, and retaliation against defendant The Young Men's Christian Association of the Pikes Peak Region (“YMCA”). Docket No. 1 at 9-12. YMCA seeks (1) the imposition of a gag order “imposing reasonable restrictions on the release of information to the media and members of the public by any parties or counsel in this litigation.” Docket No. 16 at 9. It also requests an order “restricting public access to the entirety of these proceedings or, in the alternative, . . . level 1 restriction for [plaintiff's complaint], as submitted in redacted form herewith, as well as Defendant YMCA's pre-Answer Motion to Strike [Docket No. 15][1] . . . and Motion for a Gag Order [Docket No. 16].” Docket No. 17 at 1.

         II. ANALYSIS

         A. Motion for Gag Order

         “A party seeking to impose a gag order on any trial participant must show that there is a ‘reasonable likelihood' that media attention or extrajudicial commentary will prejudice a fair trial.” Pfahler v. Swimm, No. 07-cv-01885-MJW-KLM, 2008 WL 323244, at *1 (D. Colo. Feb. 4, 2008) (citing United States v. Tijerina, 412 F.2d 661, 666 (10th Cir. 1969)). “[I]n any case involving pretrial publicity, the court must decide whether ‘the gravity of the “evil, ” discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.'” Id. at *2 (quoting Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 562 (1976)). See also Tijerina, 412 F.3d at 666 (determining that a gag order is reasonable if it is based on a reasonable likelihood of “prejudicial news which would make difficult the impaneling of an impartial jury and tend to prevent a fair trial.”). In determining whether a gag order is appropriate, a court should consider (1) “the nature and extent of pretrial news coverage”; (2) “whether other measures would be unlikely to mitigate the effects of pretrial publicity”; and (3) “how effectively a restraining order would operate to prevent the threatened danger.” Nebraska Press Ass'n, 427 U.S. at 562. The court “must then consider whether the record supports the entry of a prior restraint on publication, one of the most extraordinary remedies known to our jurisprudence.” Id.

         In regard to the extent of pretrial news coverage, the Court finds that it is insubstantial. YMCA contends that, since the filing of plaintiff's complaint, three media sources have published articles related to the lawsuit and that links to these articles have been posted on various social media accounts. Docket No. 16 at 4-5. Specifically, YMCA provides evidence of two Twitter posts and one Facebook post containing links to new articles about the lawsuit. Docket No. 16-3. According to YMCA, the story is now “accessible to literally hundreds of millions of people on social media platforms.” Docket No. 16 at 7. YMCA also notes that plaintiff's counsel has given an interview about the case to at least one media outlet.[2] Id. at 5.

         The number of articles and social media posts concerning this case is small. And YMCA overestimates the level of online engagement these articles and posts have received.[3] Although, like anything on the internet, these sources are “accessible to literally hundreds of millions of people” online, see Docket No. 16 at 7, YMCA does not show that potential members of the jury pool have been exposed to such articles or have formed negative impressions of YMCA as a result. Thus, YMCA has failed to show that the nature and extent of pretrial publicity warrants the imposition of a gag order.

         The Court finds that other, less-restrictive measures may be taken to mitigate any potential prejudice caused by press coverage of the case. If the case is tried in Denver, the jury pool will consist of jurors from Jury Division 1, composed of persons residing in twenty-four counties, not including El Paso County.[4] This mitigates the risk that news coverage from the Colorado Springs area will taint the prospective jury pool. See Lord v. Hall, No. 10-cv-02695-WDM-KLM, 2011 WL 2559824, at *2 (D. Colo. June 28, 2011). Further, “at the time of trial, the potential jury pool will have to go through extensive voir dire, ” which may include questions about publicity in the case. See Pfahler, 2008 WL 323244, at *2. Instructions to disregard certain out-of-court information may be given as needed. The Court finds that any potentially damaging pretrial publicity may be adequately mitigated without the imposition of a gag order.

         Finally, with regard to whether a gag order would prevent the purported danger, the information that YMCA seeks to restrain has, by its own admission, already been publicized. Although not wide-reaching, such information is still in the public arena, and the Court cannot suppress access to such information. The Court finds that YMCA has not met its burden of establishing that there is a reasonable likelihood that prejudicial news will make it difficult to impanel an impartial jury and prevent a fair trial so as to justify the invasion of free speech that would result from a gag order. See Lord, 2011 WL 2559824, at *3 (finding that defendants' fear of negative publicity absent pretrial gag order did not justify invading plaintiff's right to free speech). The motion for a gag order will be denied.

         B. Motion to Restrict Proceedings

         The Supreme Court has acknowledged a common law right of the public to access judicial records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). This right is premised upon the recognition that public monitoring of the courts fosters important values such as respect for the legal system. See In re Providence Journal Co., Inc., 293 F.3d 1, 9 (1st Cir. 2002). There is a presumption that documents essential to the judicial process are to be available to the public, but they may be restricted when the public's right of access is outweighed by interests which favor non-disclosure. See United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997). It is within the district court's discretion to determine whether a particular court document should be restricted. See Nixon, 435 U.S. at 599.

         A motion to restrict access must (1) “identify the document or the proceeding for which restriction is sought”; (2) “address the interest to be protected and why such interest outweighs the presumption of public access”; (3) “identify a clearly defined and serious injury that would result if access is not restricted”; (4) explain why no alternative to restriction is practicable or why only restriction will adequately protect the interest in question”; and (5) “identify the level of restriction sought.” D.C.COLO.LCivR 7.2(c). “[T]he movant shall articulate a real and substantial interest that justifies depriving the public of access ...

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