Wednesday, February 15, 2012
LEIGH v. SALAZAR
M. SMITH, Circuit Judge.
Plaintiff-Appellant Laura Leigh, a photojournalist, contends that viewing restrictions at a Bureau of Land Management (BLM) horse roundup violated her First Amendment right to observe government activities. Leigh moved for a preliminary injunction to require the BLM to provide her with unrestricted access to horse roundups. The district court denied Leigh's motion, concluding that most of the relief sought was moot because the roundup ended in October 2010. Alternatively, the district court concluded that Leigh was unlikely to succeed on the merits because the restrictions did not violate the First Amendment.
We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we reverse. Because the preliminary injunction motion seeks unrestricted access to future horse roundups, and not just the one that took place in 2010, this case is not moot. As to the merits of Leigh's First Amendment claim, the district court erred by failing to apply the well-established qualified right of access balancing test set forth in Press-Enterprise Co. v. Superior Court ("Press-Enterprise II"), 478 U.S. 1, 8-9 (1986). Courts have an unyielding duty to thoroughly analyze whether the government has violated this fundamental constitutional right, which "serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of selfgovernment," Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982). Accordingly, we remand this case for the district court to consider in the first instance whether the public has a First Amendment right of access to horse gathers, and, if so, whether the viewing restrictions are narrowly tailored to serve the government's overriding interests...more