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Flynt Takes Execution-Records Fight to 8th

ST. LOUIS (CN) - The public and media have the right to request the unsealing of court records about executions in Missouri, attorneys for porn mogul Larry Flynt and a media coalition told the 8th Circuit on Wednesday.

Tony Rothert, legal director for the ACLU of Missouri, and Benjamin Lipman argued the case before a three-judge panel. Rothert represented Flynt, Lipman the Reporters Committee for Freedom of the Press and 13 other media outlets, including Courthouse News Service.

"I think the more important point here is the public and the media have an interest in seeing judicial records even if the parties agree that they should be secret," Rothert said after the hearing.

"Courts are public places where the public business is done and the public has an interest in knowing what's done and why."

Flynt et al. sought to intervene in a lawsuit filed by Death Row inmates who sought information about Missouri's execution protocol. In a one-sentence ruling, a federal judge denied Flynt's request, stating that Flynt had only a generalized interest in the litigation.

The plaintiffs appealed to the 8th Circuit.

"This is an unusual case in which docket entries are sealed and even one of the court's orders is sealed and that's really remarkable and not how things are done in America," Rothert said Wednesday after the hearing. "So it would be very surprising for those records not to be unsealed at least in redacted version."

The three-judge panel, consisting of Chief Judge William Jay Riley and Judges C. Arlen Beam and Steven M. Colloton, peppered each side with questions.

Beam told Lipman that he was throwing around the First Amendment "with reckless abandon."

"As I said in court, I don't agree that I was applying it with reckless abandon," Lipman told reporters afterward. "I think I was just applying the First Amendment as the Supreme Court has said it should be applied and as the other courts that have reviewed it have applied it in this slightly different situation in civil cases, rather than criminal cases, and I don't think there's any reckless abandon. It's simply the application of the First Amendment as it's meant to be applied."

At issue could be an unpublished opinion from the 8th Circuit made 15 years ago that would seem to side with the state. That opinion appears to contradict published opinions from numerous other circuits upholding the public's ability to request that court records be unsealed.

Greg Goodwin, assistant attorney general, argued that those decisions contradicted Federal Rule of Procedure 24b2, which allows an entity that is not a party to a case to enter into a case.

"The other circuits have adopted rules which have collapsed the requirements for Rule 24b and have decided that the mere desire to intervene into a lawsuit to seek access to records satisfies the common question of law and fact in line with the main action," Goodwin said when the judges asked why the 8th Circuit should split with the other circuits.

"There's no reason for this court to adopt that rationale, especially in this case, because Mr. Flynt has conceded that he could file his own lawsuit to seek access to the records."

Goodwin declined to speak to reporters after the hearing.

Rothert said he believes the federal court ruling was based on that unpublished opinion, which is not precedent.

"That is probably what the judge was relying on, which might not be unreasonable, but that decision was wrong," Rothert told reporters. "Our goal in this case is to have the 8th Circuit join all the other circuits in allowing the public and the media the opportunity to ask for records to be unsealed."

The 8th Circuit took the case under advisement.

If successful, the case would be remanded to the Federal Court for reconsideration. Rothert said he doesn't know what is in the documents, but that is the point.

"One thing is we don't know what we don't know," Rothert told reporters. "The fact that dockets are sealed, we don't even know what is associated with those docket entries. One of the things that we were hoping to see, at least in redacted form, are the exhibits to the state's motion for summary judgment, which shine more light on how executions are carried out in Missouri."

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