FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`COURTHOUSE NEWS SERVICE,
`Plaintiff-Appellee/
`Cross-Appellant,
`
`
`
`v.
`
` Nos. 16-55977
`
`16-56714
`
`D.C. No.
`2:11-cv-08083-
`SJO-FFM
`
`
`OPINION
`
`
`MICHAEL D. PLANET, in his official
`capacity as Court Executive
`Officer/Clerk of the Ventura
`County Superior Court,
`Defendant-Appellant/
`Cross-Appellee.
`
`Appeal from the United States District Court
`for the Central District of California
`S. James Otero, District Judge, Presiding
`
`Argued and Submitted June 28, 2018
`Pasadena, California
`
`Filed January 17, 2020
`
`Before: Kim McLane Wardlaw, N. Randy Smith,
`and Mary H. Murguia, Circuit Judges.
`
`Opinion by Judge Wardlaw;
`Concurrence by Judge N.R. Smith
`
`
`
`
`

`

`2
`
`
`COURTHOUSE NEW SERVICE V. PLANET
`
`SUMMARY*
`
`Civil Rights
`
`
`
`
`The panel affirmed in part, and reversed in part, the
`
`district court’s summary
`judgment
`in favor of
`the
`Courthouse New Service in its action seeking immediate
`access to newly filed civil complaints from Ventura County
`Superior Court.
`
`Prior to 2014, Ventura County had a “no-access-before-
`
`process” policy pertaining to new civil complaints which
`often resulted in significant delays between the filing of a
`complaint and its availability to Courthouse News Service.
`After this suit was filed, the County dropped the no-access-
`before-process policy and instituted a “scanning policy,”
`which requires court staff to scan new civil complaints
`before reviewing or processing them. After scanning, the
`complaints are available on public computer terminals in the
`Ventura County clerk’s office. Prior to July 2016,
`complaints filed after 3:00 PM were scanned and made
`publicly available the next day. The district court concluded
`that both Ventura County’s no-access-before-process policy
`and
`its scanning policy unconstitutionally
`infringed
`Courthouse News Service’s right to timely access the
`complaints.
`
` Applying Press-Enterprise Co. v. Superior Court
`(Press-Enterprise II), 478 U.S. 1 (1986), the panel held that
`the press has a qualified right of timely access to newly filed
`
`
`* This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`

`

`3
`
`COURTHOUSE NEW SERVICE V. PLANET
`
`
`
`civil nonconfidential complaints that attaches when the
`complaint is filed. However, this right does not entitle the
`press to immediate access to those complaints. Some
`reasonable restrictions resembling time, place, and manner
`regulations that result in incidental delays in access are
`constitutionally permitted where they are content-neutral,
`narrowly tailored and necessary to preserve the court’s
`important interest in the fair and orderly administration of
`justice.
`
`The panel held that although Ventura County has a
`
`substantial interest in the orderly administration and
`processing of new complaints, its former no-access-before-
`process policy failed, under a rigorous but not strict scrutiny
`analysis, both prongs of the balancing test set forth in Press-
`Enterprise II. Thus, Ventura County had not shown a
`“substantial probability” that more contemporaneous access
`to the newly filed complaints would impair its interest in
`orderly administration. In fact, the record demonstrated that
`the lengthy delays under the no-access-before-process
`policy were entirely unrelated to Ventura County’s asserted
`governmental interests. Moreover, the policy caused far
`greater delays than were necessary to adequately protect
`Ventura County’s administrative
`interests given
`the
`reasonable alternatives available. The panel affirmed the
`district court’s summary judgment as to the no-access-before
`process policy.
`
`The panel held that Ventura County’s scanning policy
`
`passed constitutional scrutiny. The panel determined that
`there was a substantial probability that Ventura County’s
`interest in the fair and orderly administration of new judicial
`filings would be impaired if the scanning policy was not in
`place. Moreover, unlike with the no-access-before-process
`policy, there was nothing in the record to indicate that
`
`

`

`COURTHOUSE NEW SERVICE V. PLANET
`
`4
`
`reasonable
`rejected
`Ventura County considered but
`alternatives to the scanning policy. Additionally, the panel
`noted that prior to 2014, Ventura County was undergoing
`severe budget constraints, and it had demonstrated that the
`overnight delay in access to complaints filed during the last
`ninety minutes of the court’s public hours was no greater
`than essential to manage necessary court operations under
`the circumstances existing at the time. The panel therefore
`reversed the district court’s grant of summary judgment as
`to the scanning policy, vacated the district court’s injunction
`and award of fees, and remanded for further consideration
`consistent with the panel’s opinion.
`
` Concurring as to part III of the opinion, Judge N.R.
`Smith stated that the majority correctly determined that
`Ventura County’s access policies resembled time, place, and
`manner restrictions—they were content-neutral and affected
`only the timing of access to the newly filed complaints.
`However, Judge N.R. Smith stated that rather than adopt the
`time, place, and manner test, the majority applied a strict
`scrutiny analysis which Supreme Court precedent does not
`require.
`
`
`
`COUNSEL
`
`
`Robert A. Naeve (argued), Craig E. Stewart, Erica L.
`Reilley, and Jaclyn B. Stahl, Jones Day, Irvine, California;
`Frederick B. Hayes, Hayes Law Office, Hermosa Beach,
`California; for Defendant-Appellant/Cross-Appellee.
`
`Rachel Matteo-Boehm (argued), Roger Myers, Jonathan
`Fetterly, and Leila Knox, Bryan Cave LLP, San Francisco,
`California, for Plaintiff-Appellee/Cross-Appellant.
`
`
`

`

`COURTHOUSE NEW SERVICE V. PLANET
`
`5
`
`
`
`Caitlin Vogus (argued), Bruce D. Brown, and Selina
`MacLaren, The Reporters Committee for Freedom of the
`Press, Washington, D.C., for Amicus Curiae The Reporters
`Committee for Freedom of the Press.
`
`John C. Eastman, Center for Constitutional Jurisprudence,
`Chapman University Fowler School of Law, Orange,
`California; Keith R. Fisher, National Center for State Courts,
`Arlington, Virginia; for Amicus Curiae Conference of Chief
`Justices.
`
`
`
`OPINION
`
`WARDLAW, Circuit Judge:
`
`“The peculiar value of news is in the spreading of it while
`it is fresh.” Int’l News Serv. v. Associated Press, 248 U.S.
`215, 235 (1918), abrogated on other grounds by Erie R.R.
`Co. v. Tompkins, 304 U.S. 64 (1938). This case pits the
`urgency of reporting on, and the public interest in obtaining,
`contemporaneous news about filings in our courts against
`administrative interests in the fair and orderly processing of
`those filings. During Courthouse News Service’s decade-
`long battle to obtain immediate access to newly filed
`complaints from Ventura County Superior Court, the drive
`for “fresh” news has only become more intense. In this
`digital age, newsfeeds and media platforms update the news
`by the minute or even by the second, and even traditional
`media deliver an endless stream of “breaking” news. Yet
`courts undeniably have an important administrative function
`that requires orderly processing of new filings, and this
`results in incidental delays to access by the press and public.
`We are asked to resolve these competing interests.
`
`

`

`6
`
`
`COURTHOUSE NEW SERVICE V. PLANET
`
`Applying Press-Enterprise Co. v. Superior Court
`(Press-Enterprise II), 478 U.S. 1 (1986), we conclude that
`the press has a qualified right of timely access to newly filed
`civil nonconfidential complaints that attaches when the
`complaint is filed. However, this right does not entitle the
`press to immediate access to those complaints. Some
`reasonable restrictions resembling time, place, and manner
`regulations that result in incidental delays in access are
`constitutionally permitted where they are content-neutral,
`narrowly tailored and necessary to preserve the court’s
`important interest in the fair and orderly administration of
`justice.
`
`I.
`
`A.
`
`Courthouse News Service (CNS) “is a national news
`organization that publishes daily reports for its subscribers
`about civil litigation, including the filing of new lawsuits.”
`Courthouse News Serv. v. Planet (Planet I), 750 F.3d 776,
`779 (9th Cir. 2014). CNS has more than 2,700 subscribers
`nationwide,
`including
`lawyers,
`law
`firms,
`news
`organizations, other media outlets, and entertainment and
`watchdog groups. In addition to sending proprietary
`litigation reports to law firms, CNS counts twenty-nine
`media entities among its subscribers, including the Los
`Angeles Times and Boston Globe. Id. at 780. CNS describes
`itself as a “pool reporter” for national media, which
`disseminate CNS’s litigation news to the broader public.
`
`To collect information on newly filed complaints, CNS
`dispatches its reporters to some 2,600 courthouses across the
`country, including the Ventura County Superior Court
`(Ventura County). Over 250 CNS reporters review newly
`filed complaints and decide which are newsworthy. In
`
`

`

`7
`
`COURTHOUSE NEW SERVICE V. PLANET
`
`
`
`California state courts, CNS reports only on unlimited civil
`complaints, which either seek injunctive relief or have an
`amount in controversy greater than $25,000.1 See id. at 779
`n.1; Cal. Civ. Proc. Code §§ 85(a), 88. Approximately sixty-
`five entities subscribe to CNS’s “Central Coast Reports,” the
`CNS publication that reports on Ventura County lawsuits.
`
`Defendant Michael Planet serves as the Ventura County
`Court Executive Officer and Clerk. Planet is responsible for
`the administration of court records, which
`includes
`responding to media and other public requests for access to
`court records. His deputy, Cheryl Kanatzar, is responsible
`for processing civil court complaints and supervising the
`Civil Department court processing assistants.
`
`Ventura County neither requires nor allows electronic
`filing; thus, all pleadings and other documents at the court
`are filed in paper format and maintained in hard copy in a
`physical case file in the clerk’s office. Between November
`2010 and June 2014, the court maintained a “media bin” in
`which it placed newly filed complaints after processing
`them. During that time, Ventura County processed newly
`filed complaints at the filing counters or desks in the Civil
`Department using the Court Case Management System
`(CCMS), which allows the court to maintain its docket of
`court filings. Ventura County required a seven-step
`procedure to process a new civil complaint using CCMS. As
`the district court described:
`
`
`1 CNS does not argue that it is entitled to access documents that are
`statutorily or judicially deemed confidential. Accordingly, our decision
`here concerns only publicly available civil complaints, i.e., those deemed
`non-confidential by state law or judicial determination, or those that were
`not otherwise properly filed under seal.
`
`

`

`8
`
`
`COURTHOUSE NEW SERVICE V. PLANET
`
`First, a [court processing assistant] reviews
`the documents
`to determine
`that
`the
`complaint is being filed in the correct court
`and the documents necessary to initiate the
`case are presented with the correct filing fee
`or fee waiver. Second, the [court processing
`assistant] enters all
`the
`required case
`information to “create” a new case in CCMS.
`Third, all accompanying instruments, for
`example checks, are entered and the receipt is
`generated. Fourth, any summons required
`are issued. Fifth, the documents are stamped
`as “Filed.” Sixth, the labels generated from
`CCMS are placed on the physical case file,
`along with
`the filing date, courtroom
`assignment, and case destruction stamp.
`Finally, the documents are placed in a
`physical case file.
`
`After court processing assistants completed these steps,
`supervisors performed an additional layer of quality control
`review, a process which took several additional days to
`complete. Only after both processes were completed would
`the clerk designate newly filed civil complaints as “located
`to the media bin” for public access. However, sometimes
`the complaints never even made it to the bin, and the court
`kept no record of the complaints actually delivered to the
`media bin.
`
`Ventura County also excepted certain complaints from
`the media bin. After processing, the court routed directly to
`judges complaints requiring “immediate judicial review,”
`such as California Environmental Quality Act (CEQA) cases
`or complaints filed simultaneously with ex parte applications
`for temporary restraining orders. Staff then delivered copies
`
`

`

`COURTHOUSE NEW SERVICE V. PLANET
`
`
`
`of only the face pages of these complaints to the media bin.
`To view the entirety of the complaint, CNS had to request a
`copy directly from the chambers of the assigned judge.
`
`9
`
`This “no-access-before-process” policy often resulted in
`significant delays between the filing of a complaint and its
`availability to CNS; in many documented periods, over half
`of the filed complaints took two or more court days to
`become publicly available. Although Planet acknowledges
`the delay resulting from the no-access-before-process
`policy, he justified the policy by asserting concerns about
`privacy and confidentiality, accounting protocols and check
`payments attached to complaints, quality control, efficiency,
`and the integrity of court records.
`
`After this suit was filed, however, Planet dropped the no-
`access-before-process policy. In June 2014, Ventura County
`instituted its “scanning policy,” which requires court staff to
`scan new civil complaints before reviewing or processing
`them. After scanning, the complaints are available on public
`computer terminals in the Ventura County clerk’s office.
`When Planet originally adopted the scanning policy, the
`public, including CNS reporters, could view the scanned
`filings from 8:00 AM until 3:00 PM, even though the
`courthouse remained open and court staff accepted new
`filings until 4:30 PM. Complaints filed after 3:00 PM were
`scanned and made publicly available the next day.
`
`The parties dispute what percentage of new complaints
`Ventura County made available on the same day as filing
`under the scanning policy, a dispute that arises from the
`3:00 PM public closing time of the clerk’s office. Planet
`maintains that Ventura County provided same-day access to
`approximately 97% of filings. CNS counters that Ventura
`County scanned between “one-third and more than one-half”
`of complaints after 3:00 PM. Ventura County does not
`
`

`

`COURTHOUSE NEW SERVICE V. PLANET
`
`10
`
`automatically scan and make available any exhibits
`submitted with the complaints; nor did CNS reporters ask for
`the exhibits from the court until this litigation.
`
`B.
`
`CNS filed its original lawsuit seeking same-day access
`to newly filed civil complaints on September 29, 2011. The
`district court dismissed the suit under the Pullman and
`O’Shea abstention doctrines. See R.R. Comm’n of Tex. v.
`Pullman Co., 312 U.S. 496 (1941); O’Shea v. Littleton,
`414 U.S. 488 (1974). We reversed the district court’s
`decision to abstain.
`
`rejected Planet’s
`II, we
`Citing Press-Enterprise
`argument that this is not a free expression case, holding that
`CNS was asserting its First Amendment right of timely
`access to judicial and other public proceedings and
`documents. Planet I, 750 F.3d at 784–85. We further held
`that “Pullman abstention ‘is generally inappropriate when
`First Amendment rights are at stake.’” Id. at 784 (quoting
`Wolfson v. Brammer, 616 F.3d 1045, 1066 (9th Cir. 2010)).
`We noted that the first requirement for Pullman abstention—
`that “the case touches on a sensitive area of social policy
`upon which the federal courts ought not to enter”—“is
`‘almost never’ satisfied in First Amendment cases ‘because
`the guarantee of free expression is always an area of
`particular federal concern.’” Id. at 783–84 (first quoting
`Porter v. Jones, 319 F.3d 483, 492 (9th Cir. 2003); then
`quoting Ripplinger v. Collins, 868 F.2d 1043, 1048 (9th Cir.
`1989)). “Abstaining in this case portends particularly
`egregious damage to First Amendment rights because it
`stifles the ‘free discussion of governmental affairs’ that the
`First Amendment exists to protect.” Id. at 787 (quoting
`Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604
`(1982)). Moreover, “[t]he purpose of CNS’s effort to timely
`
`

`

`COURTHOUSE NEW SERVICE V. PLANET
`
`
`
`access filed unlimited civil complaints is to report on
`whatever newsworthy content they contain, and CNS cannot
`report on complaints the Ventura County Superior Court
`withholds.” Id. at 787–88.
`
`11
`
`We also rejected the district court’s dismissal on O’Shea
`grounds because we disagreed that remedying Ventura
`County’s denial of the First Amendment right to timely
`access newly filed complaints would necessarily require “an
`ongoing federal audit.” Id. at 791 (quoting E.T. v. Cantil-
`Sakauye, 682 F.3d 1121, 1124 (9th Cir. 2012) (per curiam)).
`We remanded to the district court to determine the merits of
`CNS’s claims, including whether “the right of access may be
`overcome by an ‘overriding [governmental] interest based
`on findings that closure is essential to preserve higher values
`and is narrowly tailored to preserve that interest.’” Id. at 793
`n.9 (alteration in original) (quoting Leigh v. Salazar,
`677 F.3d 892, 898 (9th Cir. 2012) (quoting Press-
`Enterprise II, 478 U.S. at 8–9)). We also suggested that the
`“delay in making the complaints available may also be
`analogous to a permissible ‘reasonable restriction [ ] on the
`time, place, or manner of protected speech.’” Id. (alteration
`in original) (quoting Ward v. Rock Against Racism, 491 U.S.
`781, 791 (1989)).
`
`Upon remand, the district court dismissed CNS’s (by-
`then-filed) first amended complaint for failure to state a
`claim. Erroneously interpreting Press-Enterprise II and our
`mandate, the court ruled on a different issue entirely—
`whether “filed civil complaints which have not yet been the
`subject of a hearing are outside the scope of the First
`Amendment right of access.” Courthouse News Serv. v.
`Planet (Planet II), 614 F. App’x 912, 915 (9th Cir. 2015).
`We again reversed and remanded the case for reassignment
`to a different district court judge. Id.
`
`

`

`12
`
`
`COURTHOUSE NEW SERVICE V. PLANET
`
`Upon remand from Planet II, on cross-motions for
`summary judgment, the new district court judge granted
`CNS’s motion in part, denied Planet’s motion, and entered
`declaratory relief and a permanent injunction against
`Ventura County. Although the district court recognized that
`CNS had a First Amendment right of timely access to newly
`filed civil complaints, it rejected CNS’s claim that Ventura
`County’s failure to provide same-day access infringed that
`right. The district court held, however, that the right of
`access would be impaired if Ventura County failed to
`provide timely access. The district court further held that the
`right to timely access attaches at the moment of filing, i.e.,
`when the complaint is received by the court. The district
`court concluded that both Ventura County’s no-access-
`before-process
`policy
`and
`its
`scanning
`policy
`unconstitutionally infringed CNS’s right to timely access the
`complaints.
`
`Accordingly, the district court permanently enjoined
`Planet and Ventura County “from refusing to make newly
`filed unlimited civil complaints and their associated exhibits
`available to the public and the press until after such
`complaints and associated exhibits are ‘processed,’” and it
`“further directed [Planet and Ventura County] to make such
`complaints and exhibits accessible to the public and press in
`a timely manner from the moment they are received by the
`court . . . except in those instances where the filing party has
`properly moved to place the complaint under seal.” As a
`result, Planet changed the court’s scanning policy. Under
`the post-injunction scanning policy, Ventura County now
`keeps its clerk’s office open to the public until 4:00 PM and
`has moved up its filing deadline to 4:00 PM.
`
`These cross-appeals followed.
`
`

`

`
`
`
`COURTHOUSE NEW SERVICE V. PLANET
`
`13
`
`C.
`
`We have jurisdiction pursuant to 28 U.S.C. § 1291. In
`First Amendment cases, we review de novo the district
`court’s grant of summary judgment and independently
`review factual findings. Kaahumanu v. Hawaii, 682 F.3d
`789, 796 (9th Cir. 2012).
`
`II.
`
`We have long presumed a First Amendment “right of
`access to court proceedings and documents.” Oregonian
`Publ’g Co. v. U.S. Dist. Court, 920 F.2d 1462, 1465 (9th Cir.
`1990) (citing Press-Enterprise Co. v. Superior Court (Press-
`Enterprise I), 464 U.S. 501, 510 (1984)); accord United
`States v. Index Newspapers LLC, 766 F.3d 1072, 1084 (9th
`Cir. 2014). Concurring in Richmond Newspapers, Inc. v.
`Virginia, 448 U.S. 555 (1980), Justice Stevens described the
`Court’s holding: “Today . . . the Court unequivocally holds
`that an arbitrary interference with access to important
`information is an abridgment of the freedoms of speech and
`of the press protected by the First Amendment.”2 Id. at 583
`(Stevens, J., concurring). From there, a full majority of the
`Court affirmed this presumptive right of access in Globe
`Newspaper Co. v. Superior Court. See 457 U.S. at 603–04.
`
`The presumption of access to judicial proceedings flows
`from an “unbroken, uncontradicted history” rooted in the
`common law notion that “justice must satisfy the appearance
`
`2 Justice Stevens’s concurrence chided the Court for not recognizing
`earlier that “the First Amendment protects the public and the press from
`abridgment of their rights of access to information about the operation
`of their government, including the Judicial Branch.” Id. at 584; see also
`Houchins v. KQED, Inc., 438 U.S. 1, 30–38 (1978) (Stevens, J.,
`dissenting).
`
`

`

`COURTHOUSE NEW SERVICE V. PLANET
`
`14
`
`of justice.” Richmond Newspapers, 448 U.S. at 573–74
`(plurality opinion) (quoting Levine v. United States, 362 U.S.
`610, 616 (1960)); see also Ibrahim v. U.S. Dep’t of
`Homeland Sec., 912 F.3d 1147, 1184 n.38 (9th Cir. 2019)
`(en banc) cert. denied, 140 S. Ct. 424, 425 (2019) (mem.)).
`Openness in judicial proceedings “enhances both the basic
`fairness of the [proceeding] and the appearance of fairness
`so essential to public confidence in the system,” Press-
`Enterprise I, 464 U.S. at 508, and forms “an indispensable
`predicate
`to free expression about
`the workings of
`government,” Planet I, 750 F.3d at 785. “The right of access
`is thus an essential part of the First Amendment’s purpose to
`‘ensure that the individual citizen can effectively participate
`in and contribute to our republican system of self-
`government.’” Id. (quoting Globe Newspaper, 457 U.S.
`at 604).
`
`The First Amendment right of access exists, moreover,
`to enable free and informed discussion about important
`issues of the day and governmental affairs. Thus, “[t]he
`news media’s right of access to judicial proceedings is
`essential not only to its own free expression, but also to the
`public’s.” Id. at 786. “With respect to judicial proceedings
`in particular, the function of the press serves . . . to bring to
`bear the beneficial effects of public scrutiny upon the
`administration of justice.” Cox Broad. Corp. v. Cohn,
`420 U.S. 469, 492 (1975). “The free press is the guardian of
`the public interest, and the independent judiciary is the
`guardian of the free press.” Leigh, 677 F.3d at 900. These
`values hold especially true where, as here, the impetus for
`CNS’s efforts to obtain newly filed complaints is its interest
`in timely reporting on their contents. See Planet I, 750 F.3d
`at 787–89; cf. Richmond Newspapers, 448 U.S. at 592
`(Brennan, J., concurring in the judgment) (“[A] special
`solicitude for the public character of judicial proceedings is
`
`

`

`COURTHOUSE NEW SERVICE V. PLANET
`
`
`
`evident in the Court’s rulings upholding the right to report
`about the administration of justice.”).
`
`15
`
`A.
`
`the qualified First
`We must determine whether
`Amendment right of access applies to the type of judicial
`record at issue here—newly filed nonconfidential civil
`complaints—and, relatedly, at what point in time that right
`attaches. To determine whether a First Amendment right of
`access attaches to a type of judicial proceeding or record, we
`consider (1) whether that proceeding or record “ha[s]
`historically been open to the press and general public” and
`(2) “whether public access plays a significant positive role
`in the functioning of the particular [governmental] process
`in question.” Press-Enterprise II, 478 U.S. at 8; see also
`Index Newspapers, 766 F.3d at 1084. This “experience and
`logic” test evaluates the institutional value of public access
`to judicial proceedings and records to determine whether the
`First Amendment provides a presumption of access. See
`Globe Newspaper, 457 U.S. at 605. A presumptive First
`Amendment right of access arises if a proceeding or record
`satisfies both requirements of the two-part test.
`
`The Supreme Court has yet to explicitly rule on whether
`the First Amendment right of access to information reaches
`civil judicial proceedings and records, but the federal courts
`of appeals widely agree that it does. Planet I, 750 F.3d
`at 786 (collecting cases); see also Courthouse News Serv. v.
`Brown, 908 F.3d 1063, 1069 (7th Cir. 2018), cert. denied,
`140 S. Ct. 384 (2019) (mem.). Indeed, every circuit to
`consider the issue has uniformly concluded that the right
`applies to both civil and criminal proceedings. See Dhiab v.
`Trump, 852 F.3d 1087, 1099 (D.C. Cir. 2017) (Rogers, J.,
`concurring in part and concurring in the judgment)
`
`

`

`COURTHOUSE NEW SERVICE V. PLANET
`
`16
`
`(collecting cases).3 This nationwide consensus accords with
`the broad understanding of First Amendment rights—and
`the rejection of “any ‘narrow, literal conception’ of the
`Amendment’s terms,”—that the Supreme Court has long
`espoused:
`
`[T]he Framers were concerned with broad
`principles, and wrote against a background of
`shared values and practices. The First
`Amendment
`is
`thus broad enough
`to
`encompass those rights that, while not
`unambiguously enumerated in the very terms
`of the Amendment, are nonetheless necessary
`to the enjoyment of other First Amendment
`rights.
`
`Globe Newspaper, 457 U.S. at 604 (quoting NAACP v.
`Button, 371 U.S. 415, 430 (1963)).
`
`
`3 See Planet I, 750 F.3d at 786; N.Y. Civil Liberties Union v. N.Y.C.
`Transit Auth., 684 F.3d 286, 298 (2d Cir. 2012) (administrative civil
`infraction hearings); Rushford v. New Yorker Magazine, Inc., 846 F.2d
`249, 253–54 (4th Cir. 1988) (documents filed in connection with
`summary judgment motion in civil case); Publicker Indus., Inc. v. Cohen,
`733 F.2d 1059, 1070 (3d Cir. 1984) (“A presumption of openness inheres
`in civil trials as in criminal trials.”); In re Cont’l Ill. Sec. Litig., 732 F.2d
`1302, 1308 (7th Cir. 1984) (litigation committee reports in shareholder
`derivative suits); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661
`(8th Cir. 1983) (contempt proceedings, which are “a hybrid containing
`both civil and criminal characteristics”); Newman v. Graddick, 696 F.2d
`796, 801 (11th Cir. 1983) (civil trial and enforcement proceedings
`concerning “the release or incarceration of prisoners and the conditions
`of their confinement”); see also Doe v. Public Citizen, 749 F.3d 246, 268
`(4th Cir. 2014) (docket sheets for civil proceedings). The California
`Supreme Court has also so concluded. NBC Subsidiary (KNBC-TV), Inc.
`v. Superior Court, 980 P.2d 337, 361 (Cal. 1999).
`
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`We agree with the Seventh Circuit that although “the
`First Amendment does not explicitly mention a right of
`access to court proceedings and documents, ‘the courts of
`this country recognize a general right to inspect and copy
`public records and documents, including judicial records and
`documents,’” and that this right extends to civil complaints.4
`Brown, 908 F.3d at 1068–70 (quoting Nixon v. Warner
`Commc’ns, Inc., 435 U.S. 589, 597 (1978)). As we held in
`Planet I, and as the district court correctly concluded, a
`qualified First Amendment right of access extends to timely
`access to newly filed civil complaints. Id. at 788; see also
`Planet II, 614 F. App’x at 915. Though we did not expressly
`apply the “experience and logic” test in Planet I, both our
`common experience and the logical extension of First
`Amendment principles lead to the conclusion that “[t]he
`press’s right of access to civil proceedings and documents
`fits squarely within the First Amendment’s protections.”
`Brown, 908 F.3d at 1069. Both sides before us agree that
`experience and logic support a public right of access to
`newly filed civil complaints. Indeed, Planet represents that
`Ventura County has a “long-standing policy of providing
`timely access to court records,” and agrees that the First
`Amendment protects a right of access to new civil
`
`4 We disagree, however, with the Seventh Circuit’s decision to
`abstain from resolving the dispute about when the right attaches and
`when delays are so long as to be tantamount to a denial of the right. See
`Brown, 908 F.3d at 1070–75; see also Rizzo v. Goode, 423 U.S. 362,
`378–79 (1976); O’Shea, 414 U.S. 488. In Planet I, we concluded that
`the injunctive relief CNS then sought neither presented a risk of an
`“ongoing federal audit” of a state’s judicial system nor amounted to “a
`major continuing intrusion of the equitable power of the federal courts
`into the daily conduct of state . . . proceedings.” 750 F.3d at 790–92
`(quoting O’Shea, 414 U.S. at 500, 502). We pointed out that Ventura
`County would have “available a variety of simple measures” that it could
`take to comply with an injunction requiring it to provide CNS timely
`access to newly filed complaints. Id. at 791.
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`complaints. But he now argues that the right does not arise
`until judicial action of some sort. CNS urges us to affirm the
`district court’s conclusion that the First Amendment creates
`a right of access that arises upon the court’s receipt of the
`complaint. In CNS’s view, anything short of immediate
`access violates its First Amendment rights.
`
`B.
`
`We reject Planet’s contention that the right of access to
`civil complaints attaches only at the moment “they become
`the subject of some type of judicial action.” Our decision in
`Planet II remains the law of this case. See Planet II, 614 F.
`App’x at 915; see also Gonzalez v. Arizona, 677 F.3d 383,
`389 n.4 (9th Cir. 2012) (en banc) (“Under the law of the case
`doctrine, a court will generally refuse to reconsider an issue
`that has already been decided by the same court or a higher
`court in the same case.” (citing Jeffries v. Wood, 114 F.3d
`1483, 1488–89 (9th Cir. 1997) (en banc)). Even if Planet II
`had not foreclosed this argument, no court has held or even
`suggested that the public character of judicial records
`depends on whether the proceedings have progressed to a
`stage requiring a judge to act on the papers.
`
`A complaint is a judicial document or record: an item
`filed with a court that is “relevant to the judicial function and
`useful in the judicial process.” Judicial Document, Black’s
`Law Dictionary (10th ed. 2014); accord Bernstein v.
`Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132,
`139 (2d Cir. 2016) (quoting Lugosch v. Pyramid Co. of
`Onondaga, 435 F.3d 110, 119 (2d Cir. 2006)). Absent a
`showing that there is a substantial interest in retaining the
`private nature of a judicial record, once documents have
`been filed in judicial proceedings, a presumption arises that
`the public has the right to know the information they contain.
`See Grove Fresh Distribs., Inc. v. Everfresh Juice Co.,
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`24 F.3d 893, 897 (7th Cir. 1994). CNS has submitted
`specific evidence that numerous jurisdictions around the
`country make newly filed complaints publicly available.
`The declarations of CNS reporters demonstrate a widespread
`practice of making complaints available before they are
`subjected to judicial review. The same is true of the long list
`of state statutes providing access to judicial records that CNS
`and Planet each marshal.5 Even Planet concedes that “[a]t
`least 34 states obligate records