FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

THE ASSOCIATED PRESS, a New York corporation; IDAHO STATESMAN PUBLISHING, LLC, a Delaware limited liability company doing business as The Idaho Statesman; LEE ENTERPRISES, INCORPORATED, a Delawarecorporation doing business as The TimesNews; THE IDAHO PRESS CLUB, INC., an Idaho corporation; PIONEER NEWSPAPERS, INC., a Nevadacorporation doing business as Idaho PressTribune, Idaho State Journal, StandardJournal, Teton Valley News, The NewsExaminer, The Preston Citizen, and Messenger Index; TPC HOLDINGS, INC., an Idaho corporation doing business as Lewiston Tribune and Moscow-Pullman Daily News; BAR BAR INC., an Idaho corporation doing business as Boise Weekly; COWLES PUBLISHING COMPANY, a Washington corporation doing business as The Spokesman-Review; IDAHOANS FOR OPENNESS INGOVERNMENT, INC., an Idaho nonprofit corporation, Plaintiffs - Appellants,

v. C.L. “BUTCH” OTTER, in his official capacity as the Governor of the State of No. 12-35456 D.C. No. 1:12-cv-00255-EJL

OPINION 

# FILED

JUN 08 2012 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS-2- Idaho; ROBIN SANDY, in her official capacity as Chairman of the Idaho Board of Correction; HOWARD G. “J.R.” VAN TASSEL, in his official capacity as Secretary of the Idaho Board of Correction; JAY NIELSEN, in his official capacity as Vice Chai rman of the Idaho Board of Correction; BRENT REINKE, in his official capacity as the Director of the Idaho Department of Correction; KEVIN KEMPF, in his official capacity as Division Chief of Operations of the Idaho Department of Correction, Defendants - Appellees.

Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding Argued and Submitted June 7, 2012 Pasadena, California Before: KOZINSKI, Chief Judge, RE INHARDT and BERZON, Circuit Judges. Opinion by Judge REINHARDT: Nearly a decade ago, we held in the clearest possible terms that “the public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber, in cluding those ‘initial procedures’ that are inextricably intertwined with the process of putting the condemned inmate to death.” California First Amendment Coalition v. Woodford , 299 F.3d 868, 877 (9th Cir.-3- 2002). The State of Idaho has had ample opportunity for the past decade to adopt an execution procedure that reflects this settled law. It can hardly complain that it has been unaware of the binding precedent, si nce the media coalition specifically cited California First Amendment Coalition in asking the State to alter its execution procedure prior to the November 2011 execu tion of Paul Rhoades. The State has nonetheless failed to bring its procedure into compliance with the law—either in the days prior to the Rhoades execution or in the succeeding months, when it met with the media coalition to discuss the matter. The St ate has persisted in its intransigence even after we suggested at oral argument that a voluntary amendment (like the one that Arizona recently adopted) might avert the need for an injunction. The State’s complaints about the last-minute nature of this litigation ignore this history. We fault the State, not the media plaintiffs, for our need to consider this question several days before an execution: the State has missed opportunity after opportunity to bring its execution procedures into compliance w ith the clear law of this Circuit. We reverse the district court’s denial of a preliminary injunction and remand for the entry of such an injunction forthw ith, and in any event prior to the impending execution of Richard Leavitt.-4- I The dispute here is narrow. Under its current execution procedure, the State would allow witnesses to vi ew the final portion of Leavitt’s execution, beginning with the reading of the death warrant and conc luding with the pronouncement of death. As in the Rhoades execution, however, the St ate does not intend to allow witnesses to view the first part of the procedure, be ginning with Leavitt’s entry into the execution chamber, through the insertion of intravenous lines into his body. A coalition of media corporations f iled this action under 42 U.S.C. § 1983 shortly after the issuance of the warrant fo r Leavitt’s execution. The plaintiffs assert that, as surrogates for the public, they have a right to witness all stages of the executions conducted by the State of Idaho, rather than just the final portion, and that the State’s refusal to allow such access viol ates the First Amendment. They seek a preliminary injunction on the basis that, without such relief, they will be irreparably damaged by the denial of their right to view Leavitt’s execution in its entirety. The State asserts what it considers to be four legitimate penological objectives that, in its view, override the First Ame ndment right of public access to executions in their entirety. First, it says, it wishes to preserve the condemned prisoner’s privacy and dignity. Second, it wishes to respect th e sensibilities of the condemned prisoner’s family. Third, it wishes to do the same for his fellow death-row inmates. Fourth, it-5- wishes to protect the anonymity of the memb ers of the medical team who participate in the execution. Under California First Amendment Coalition , the State can prevail if the limitation of the plaintiffs’ First Amendment right is “reasonably related to legitimate penological objectives,” rather than “an exaggerated response to those concerns,” Turner v. Safley , 482 U.S. 78, 87 (1987) (internal quotation marks omitted). See 299 F.3d at 879 (adopting the Turner standard). “A plaintiff seeking a preliminary injunction must establish” four elements: “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008). “We review a district court’s decision to grant or deny a preliminary injunction for abuse of discreti on. In deciding whether the district court has abused its discretion, we employ a two- part test: first, we ‘determine de novo whether the trial court identified the correct legal rule to apply to the relief requested’; second, we determine ‘if the district court’ s application of the correct legal standard was . . . illogical, . . . implausible, or . . . without support in inferences that may be drawn from the facts in the record.’ A d ecision based on an err oneous legal standard or a clearly erroneous finding of factamounts to an abuse of discretion.” Pimentel v. Dreyfus , 670 F.3d 1096, 1105 (9th Cir. 2012) (citations omitted).-6- II We hold that the district court abused its discretion with respect to each of the four elements that the pl aintiffs must establish. A First, the plaintiffs are quite likely to succeed on the merits of their First Amendment claim. As discussed above, California First Amendment Coalition makes clear that the First Amendment protects the public’s right to witness all phases of Leavitt’s execution, including the portion that the State now shields from view. Although the State argued below that California First Amendment Coalition ’s interpretation of the First Amendment was premised in part on the history of public executions in California—a history that, th e State asserted, differed from Idaho’s—the district court rejected this argument, and the State does not raise it on appeal. The only question as to the merits, then, is whethe r the State has asserted legitimate penological interests sufficient to overcome the First Amendment right of public access. See California First Amendment Coalition , 299 F.3d at 879 (adopting as the relevant inquiry “whether a prison regulation that burdens fundamental rights is reasonably related to legitimate penological objectives, or whether it represents an exaggerated response to those concerns” (internal quotation marks omitted)).-7- Here, the plaintiffs showed that they are likely to succeed on the merits simply by pointing to our prior opinion in California First Amendment Coalition —an opinion that appears squarely to govern this case. To the extent that the State’s asserted interests in protecting the dignity of conde mned prisoners and the sensibilities of their family and fellow inmates qualify as legitimate penological concerns in the first place—a matter about which we harbor significant doubt, see, e.g. , Procunier v. Martinez , 416 U.S. 396, 413 (1974) (recognizing the legitimate “governmental interests of security, or der, and rehabilitation”), overruled on other grounds by Thornburgh v. Abbott , 490 U.S. 401 (1989)—the State ha s failed to explain why the modest expansion of witness access to includethe insertion of intravenous lines would meaningfully affect them. The State of Idaho already offends the dignity of condemned inmates and the sensibilities of their families and fellow inmates by allowing strangers to watch as they are put to death. It strains credulity for the State to assert that these intere sts will be offended to a meaningfully greater degree when witnesses are permitted to watc h the insertion of intravenous lines than when they are simply allowed to watch the inmates die. The State also has not explained why these interests were not equally at stake in California, although our opinion in California First Amendment Coalition did not explicitly consider them.-8- The State’s interest in preserving the anonymity of medical team members who participate in the execution is more substantial. We considered this interest at length in California First Amendment Coalition , however, characterizing California’s “fear that execution team members [would] be pub licly identified and re taliated against” as “an overreaction, supported only by questionable speculation,” 299 F.3d at 880, and upholding the factual finding “that ‘[t]he use of surgical garb is a practical alternative to restricting access to witness lethal inj ection executions in order to conceal the identity of such execution staff should security concerns warrant such concealment,’” id. at 884. The State has made no serious attempt to explain why medical team members in Idaho might be less likely to remain anonymous than those in California or why any risks that they might face upon public exposure would be greater. At oral argument, the State’s counsel speculated th at because the populations of Idaho or of the metropolitan area where its executions take place are smaller than those of California, medical team memb ers in Idaho would be morelikely to be identified on the basis of their appearance (even when shielded by surgical garb) than those in California. This is pure speculation; the State has presented no evidence to support it. Nor has the State provided any support whatsoever for its speculation that it may be unable to recruit and retain medical team members to participate in executions. The declaration of Jeff Zmuda, Deputy Chief of the Idaho Bureau of Prisons, makes-9- only a bare assertion to thateffect. Given that there are only five members of the current medical team, it would have been a simple matter for the State to submit evidence, such as a declaration filed under seal from a team member or a declaration from an official who had spoken with the team members, that any one of those members was even considering withdrawi ng from participation in either Leavitt’s execution or any future execution. At oral argument, we invited the State to produce, even at this late date, any such evidence th at it might be able to obtain. We conclude from the State’s failure to do so that no such evidence exists. The district court was correct to have“significant concerns” regarding the State’s arguments. Dist. Ct. Order at 14-15. The court abused its discretion, however, by failing to recognize, in light of these c oncerns, that the plai ntiffs are likely to succeed in showing that the State’s limitation on witness access is not “reasonably related to legitimate penological objectives” but rather “represents an exaggerated response to those concerns,” Turner , 482 U.S. at 87 (internal quotation marks omitted). B The district court also held that the plai ntiffs had failed to show that they would suffer irreparable harm in the absence of an injunction because “witnesses still [would] be allowed to see the execution process from the time after the inmate is-10- restrained and IVs are placed” and because “there will most likely be other executions in the future.” Dist. Ct. Orde r at 16-17. Both rationales are contrary to law. The first ignores our explicit holding in California First Amendment Coalition that the First Amendment protects the right to witness executions in their entirety. To say that the plaintiffs will not suffer harm because they will be able to witness part of Leavitt’s execution is like saying that the public woul d not suffer harm were it allowed to read only a portion of the New York Times . The second rationale ignor es the rule that “[t]he loss of First Amendment freedoms, for evenminimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns , 427 U.S. 347, 373 (1976). That the plaintiffs may be able to observe future executions in Idaho doe s not mean that they are unharmed by the denial of their right to observe this execution. These legal errors constituted an abuse of the di strict court’s discretion. Pimentel , 670 F.3d at 1105. The plaintiffs will suffer irreparable injury inthe absence of a preliminary injunction. C Our balancing of the equities—like the di strict court’s—turns on whether there is any realistic possibility that a preliminary injunction will delay Leavitt’s execution. We reject each of the three premises on which the district court believed that such a delay could occur. First, there is minimal chance that the injunction will lead to a successful stay application by Leavitt. Not only is the prospect of any such application-11- speculative, but if filed, it would likely fail. Second, in light of the minimal changes that an injunction might require and the Stat e’s failure to specify the nature of any such change, we have trouble imagining w hy an alteration to the training procedures would be necessary. Even if such a change were required, the State has not explained why it would delay the execution. Third, as noted earlier, the State has failed to do more than speculate that a member of the medical team might decline to participate in Leavitt’s execution, and it advised us at oral argument that it had made no attempt to contact any member of the team in order to inquire whether there is any basis for its speculation. We therefore see no realistic possibility that a preliminary injunction requiring the State to comply with California First Amendment Coalition will delay Leavitt’s execution. D For the same reason, we have no doubt thatthe entry of a preliminary injunction promotes the public interest. “Courts cons idering requests for preliminary injunctions have consistently recognized the signi ficant public interest in upholding First Amendment principles.” Sammartano v. First Judicial Dist. Court , 303 F.3d 959, 974 (9th Cir. 2002). The district court relied instead on the public interest in the timely enforcement of criminal judgments. Although we recognize that interest as legitimate, it lacks any weight in light of our conclusion that no delay will occur.-12- III We reverse the district court’s denial of a preliminary injunction and remand for the entry of an order requiring the Stat e to allow witnesses to observe Leavitt’s entire execution, “from the mo ment [he] enters the execu tion chamber through, to and including, the time [he] is declared dead.” California First Amendment Coalition , 299 F.3d at 886 (internal quotation marks omitted). The mandate shall issue forthwith. REVERSED and REMANDED.-13- COUNSEL LISTING Charles A. Brown, Lewiston, Idaho, for the Plaintiffs-Appellants. Lawrence G. Wasden, Attorney General; Steven L. Olsen, Chief of Civil Litigation; Michael S. Gilmore, Deputy Attorney General; Mark A. Kubi nski, Lead Deputy Attorney General, Idaho Department of Co rrection; Thomas C. Perry, Counsel to the Governor; Boise, Idaho; for the Defendants-Appellees.