The legal fight over death-penalty secrecy in Missouri has a surprising new player: Larry Flynt, the quirky and bellicose publisher of Hustler magazine. And he’s received help from what some might see as a surprising source: the traditional news media.
On Tuesday, a federal appeals court ruled that Flynt is allowed to join two lawsuits filed by death-row inmates—including the man who shot and paralyzed Flynt in the 1970s—challenging the constitutionality and effectiveness of Missouri’s execution protocols. Some records of those proceedings are under seal, and Flynt asked to intervene, as the appeals court said, for the “limited purpose of seeking to unseal court records and docket entries.”
The immediate impact of the ruling is relatively modest: The appeals court did not actually make the records public; it simply gave Flynt the right to intervene in the lawsuits and argue for access.
Still, the ruling is interesting for obvious reasons. Did I mention it’s Larry Flynt? And it’s important, too, because it affirms the rights of a third party to intervene in litigation that implicates First Amendment principles.
Let’s unpack the ruling and its underlying facts.
As St. Louis Public Radio reported:
In 2012, 21 death-row inmates filed a lawsuit alleging that Missouri’s use of propofol in its executions violated … Eighth Amendment protections against cruel and unusual punishment. One of those inmates was Joseph Paul Franklin, who had shot and paralyzed Larry Flynt in 1978, and had been sentenced to die in Missouri for unrelated crimes. Many of the records in the case [were] filed under seal.
In early November 2013, Flynt, who opposed Franklin’s execution, sought permission from federal judge Nanette Laughrey to intervene in the case and ask that the sealed records be made public. Franklin was executed Nov. 19; Flynt’s request was rejected the next day. A second [similar] request [made by Flynt] … was also rejected.
Notably, Laughrey, the district court judge, denied Flynt’s requests in a one-sentence order: “A generalized interest in a subject of litigation does not justify intervention.”
Enter, the traditional news media.
News organizations have a “generalized interest” in just about everything, and the standard set by Laughrey’s ruling could have limited the media’s ability to intervene in lawsuits. So a diverse coalition of news organizations—among them The New York Times; the Reporters Committee for Freedom of the Press; the Missouri Press Association; the National Press Photographers Association; the Advance, McClatchy, MediaNews, and Scripps companies; The Washington Post; and Politico—filed amicus briefs to support Flynt’s appeal to the Eighth Circuit.
The lawyers for the Missouri Press Association and Public Citizen argued in their brief that Laughrey’s standard was “unduly narrow,” explaining, “Many motions to seal are not contested by the original parties to the case, so … a third party’s intervention [often] is the only means by which the public will ever gain access to judicial records that have been unnecessarily sealed.”
The government, meanwhile, argued that Laughrey’s ruling was correct, and that Flynt could just file a separate lawsuit to have the records unsealed.
In its decision Tuesday, the Eighth Circuit agreed with Flynt and the news organizations, and reversed Laughrey’s ruling. The court said in a footnote that it “expres[sed] no opinion on whether Flynt should” ultimately prevail in his request to unseal the records. But the decision is still valuable, because it clarifies when a third party, such as a news organization, may intervene in federal civil litigation.
The court’s reasoning is notable, too. Federal rules of civil procedure state that third parties can intervene when they make a claim that “shares with the main action a common question of law or fact.” Laughrey’s ruling that Flynt had only a “generalized interest” implied that he had not met that standard.
But the Eighth Circuit said that for claims about transparency in court proceedings, Laughrey set the bar too high: “Where a party is seeking to intervene in a case for the limited purpose of unsealing judicial records, there is no reason to require such a strong nexus of fact or law. Instead, it is the public’s interest in the confidentiality of the judicial records that … [is] a question of law … in common.”
In other words: A member of the press (or public), whether it’s Larry Flynt or The New York Times, doesn’t have to meet a high burden in federal civil litigation to intervene and argue for First Amendment rights of access. There’s no need to be directly and personally affected by the litigation where the “public’s interest in the confidentiality of … judicial records” is at stake.
The broader battle over official secrecy and the death penalty in Missouri is still unfolding, and it remains unclear how it will play out—or even if Flynt will prevail in seeking specific court records. But this ruling, at least, is good news for transparency advocates.
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.