United States District Court, D. Colorado
ORDER
PHILIP
A. BRIMMER, CHIEF JUDGE
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 ...