Photographer wins appeal over access to horse roundup

A trial court erred when it did not weigh the First Amendment rights of a photojournalist trying to photograph a roundup of wild horses against the government’s interest in restricting her access and newsgathering rights, a federal appeals court ruled today.

Under the law, "a court cannot rubber-stamp an access restriction simply because the government says it is necessary,” the majority of a divided three-judge panel of the U.S. Court of Appeals in San Francisco (9th Cir.) held in Leigh v. Salazar.

Hearing reports that horses had been mistreated, Horseback magazine photojournalist Laura Leigh sought access to federal land in the fall of 2010 to photograph the Bureau of Land Management’s Silver King wild horse gather in Nevada, in which wranglers round up excess wild horses on government land. The federal Wild Free-Roaming Horses and Burros Act authorizes the government to conduct such roundups as a means to control overpopulation and achieve appropriate animal-management levels in particular parts of public lands.

Leigh was allowed only limited access and filed a motion for a preliminary injunction asking the court to require the bureau to grant her unrestricted access to the roundup of all horses captured from Silver King. The district court denied Leigh’s motion to gain additional access to the roundup, ruling the action moot as it had already occurred and that Leigh was unlikely to succeed on the merits of her claim because she did not show that she was treated differently than other members of the public or that she was denied complete access.

But these considerations should not inform a court’s decision about whether a constitutional right of access was infringed, said the appellate court, relying on the 1986 landmark U.S. Supreme Court case Press-Enterprise Co. v. Superior Court. Although Press-Enterprise involved the right of public access to preliminary proceedings in criminal prosecutions, its holding extends to “a wide range of civil and administrative government activities” and requires courts to balance the public’s First Amendment right of access against the government’s interest in secrecy before restricting that access, the Ninth Circuit held.

“The relevant question is not whether the BLM prohibited Leigh from observing the horse gather altogether; the issue here is whether the viewing restrictions were unconstitutional. On that question, the district court failed to conduct the proper First Amendment analysis. The district court did not consider whether horse gathers have traditionally been open to the public, whether public access plays a positive role in the functioning of horse gathers, whether the BLM has demonstrated an overriding interest in the viewing restrictions, or whether the restrictions are narrowly tailored to serve that interest,” the court wrote.

The Reporters Committee for Freedom of the Press argued in a friend-of-the-court brief that such an inquiry is essential because without scrutiny into the government’s interests, “the mere creation of a rule restricting access could establish a near-absolute bar to accessing newsworthy events.”

The appellate court also rejected the government’s mootness claim, noting that although there are no current plans for future roundups at Silver King, that possibility cannot be ruled out because the Wild Free-Roaming Horses and Burros Act requires the BLM to “immediately remove” excess horses from overpopulated federal lands. Because the BLM only gathered 504 wild horses during the 2010 roundup, despite its determination that 546 excess wild horses should have been removed, and the estimated horse population annual growth rate of 20 to 25 percent in the Silver King area, “there is a real possibility of another horse gather in Silver King,” the court ruled.

Gordon Cowan, the Reno, Nev., attorney who represented Leigh, said the opinion is a strong endorsement of the First Amendment protections afforded members of the media.

“When federal appellate judges write compelling words that, ‘the free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press,’ in my opinion they demonstrate their true heroism in standing guard for First Amendment freedoms," Cowan said. "And, they give press members like Ms. Laura Leigh hope that someone is looking out for them."

The court remanded the case to the trial court to determine whether the public has a First Amendment right of access to horse gathers and, if so, whether the government’s viewing restrictions are narrowly tailored to serve its overriding interests.

Judge J. Clifford Wallace concurred that the issue was not moot and Leigh’s request for access should have been analyzed under Press-Enterprise. But remanding the case for a determination of whether she was likely to succeed on the merits of her claim and thus should be entitled to the preliminary injunction she requested would further delay final resolution of the case, he said. Wallace would have remanded for a determination of whether Leigh is entitled to permanent injunctive relief, the judge said.