____________

No. 96-2606

____________

United States of America, *

*

Plaintiff, *

*

v. *

*

James B. McDougal; Jim Guy *

Tucker; Susan H. McDougal; *

*

Defendants. *

*

Reporters Committee for *

Freedom of the Press; *

Radio-Television News Directors *

Association; Capitol Cities/ *

American Broadcasting Companies;*

Cable News Network, Inc.; *

National Broadcasting Company, *

Inc.; CBS, Inc.; * Appeals from the United States

* District Court for the

Movants-Appellants, * Eastern District of Arkansas

*

v. * [TO BE PUBLISHED]

*

Dow Jones and Company, Inc.; *

*

Movant, *

*

William Jefferson Clinton, *

The President of the United *

States in his official *

capacity, *

*

Interested Party-Appellee. *

____________

No. 96-2671

____________

United States of America, *

*

Plaintiff, *

*

v. *
-2-

James B. McDougal; Jim Guy *

Tucker; Susan H. McDougal; *

*

Defendants. *

*

Reporters Committee for Freedom *

of the Press; Radio-Television *

News Directors Association; *

Capitol Cities/American Broad- *

casting Companies; Cable News *

Network, Inc.; National Broad- *

casting Company, Inc.; * 

CBS, Inc.; *

*

Movants, *

*

v. *

* Dow Jones and Company, Inc.; ** Movant, ** William Jefferson Clinton, *

The President of the United *

States in his official *

capacity, ** Interested Party-Appellee. ** Citizens United, ** Interested Party-Appellant.*

____________

Submitted: August 12, 1996

 Filed: December 20, 1996 ____________

Before McMILLIAN, FLOYD R. GIBSON and MAGILL, Circuit Judges. ____________

McMILLIAN, Circuit Judge.

A group of media organizations, including Reporters Committee

for Freedom of the Press; Radio-Television New Directors

Association; Capital Cities/American Broadcasting Companies, Inc.;
 1

The Honorable George Howard, Jr., United States District

Judge for the Eastern District of Arkansas.

 2At oral argument, counsel for the Reporters stated "I would

respectfully ask this court today, after you have concluded your

conference on this case, to issue an order immediately, today, with

an opinion to follow, so that we can get on with this matter." 

 3Based upon our order of August 12, 1996, the Reporters filed

a petition for rehearing by the panel and a suggestion for

rehearing en banc. Both were denied. United States v. McDougal, No. 96-2606 (8th Cir. Oct 3, 1996) (order denying petition for

rehearing by the panel and suggestion for rehearing en banc). 

-3-

Cable News Network, Inc.; National Broadcasting Company, Inc.; and

CBS Inc. (hereinafter the Reporters), and a non-profit citizens'

group, Citizens United (Citizens) (collectively appellants), each

appeal from a final order entered in the United States District

Court1 for the Eastern District of Arkansas denying their

applications for access to a videotape recording of President

William Jefferson Clinton's deposition testimony used at trial

in the underlying criminal case. United States v. McDougal,

No. LR-CR-95-173 (E.D. Ark. June 11, 1996). For reversal,

appellants argue that the district court's denial of physical

access to the videotape, so that they may make copies, violated

their First Amendment and common law rights of access to judicial

records. Citizens alone additionally argues that the district

court erred in holding that it lacked standing to participate in

the litigation over this access issue. These appeals were

consolidated for oral argument, which was expedited at the

Reporters' request. Following oral argument on August 12, 1996, we

entered an order which stated "[f]or reasons that will be stated in

an opinion to follow, we affirm the district court's denial of

access to the videotape."2

 United States v. McDougal, Nos. 96-

2606/96-2671 (8th Cir. Aug. 12, 1996), amended, id. (Aug. 21, 1996)

(amending caption to refer to Reporters Committee for Freedom of

the Press, et al., as Movants-Appellants).3 We now set forth our

reasons for affirming the district court's order. 
 4

Rule 15 provides in pertinent part:

Whenever due to exceptional circumstances of

the case it is in the interest of justice

that the testimony of a prospective witness

of a party be taken and preserved for use at

trial, the court may upon motion of such

party and notice to the parties order that

testimony of such witness be taken by

deposition and that any designated book,

paper, document, record, recording, or other

material not privileged, be produced at the

same time and place.

-4-

Background

The following summary of the background is largely taken from

the district court's order. Slip op. at 1-4. Prior to the trial

in the underlying criminal case, the defendants requested that a

witness subpoena be issued to President Clinton requiring him to

appear and give testimony at their criminal trial. One of the

defendants further moved to compel President Clinton to testify in

person. In response, President Clinton sought the district court's

permission to testify by videotaped deposition pursuant to Fed. R.

Crim. P. 15.4 The district court ordered that the witness subpoena

be issued, but granted the President's Rule 15 request. 

On April 24, 1996, the district court ordered that the

videotape of President Clinton's deposition be kept under seal and

gave the parties and the President thirty days in which to file

briefs regarding the handling of the videotape following its use at

trial. The district court also invited any representatives of the

news media to file briefs in their capacity as amicus curiae within

the same thirty-day deadline. 

The President's videotaped deposition was taken at the White

House on April 28, 1996, and the district court judge presided from

Little Rock via satellite. On May 3, 1996, the Reporters filed an

amicus brief requesting that they be given physical access to the
 5

At oral argument, counsel for Citizens stated that the

district court had indicated its willingness to schedule a showing

of the videotape for members of the public who were unable to view

the videotape at the trial. 

-5-

videotape immediately or, in the alternative, at the time of its

display to the jury. None of the parties to the underlying

criminal prosecution filed briefs concerning the access issue. On

May 6, 1996, the district court entered an order in which the court

stated that it would provide public access to the transcript of

President Clinton's deposition after the presentation of the

videotaped deposition testimony to the jury. The district court

further indicated that access to the videotape would not be

addressed until after May 24, 1996, the briefing deadline. The

Reporters moved for reconsideration of the district court's denial

of their request for immediate access to the videotape; on May 8,

1996, the district court denied the Reporters' motion.

In the meantime, counsel for the prosecution and counsel for

the defendants had reviewed a draft of the entire written

transcript of President Clinton's deposition and agreed to delete

certain portions that generally contained objections and arguments

of counsel. The transcript and the videotape were edited

accordingly. The edited videotape was played for the jury on

May 9, 1996. At that time, the courtroom was open to the public

and filled to capacity. The public, including appellants, had an

opportunity to view the edited videotape at the time and in the

manner it was played to the jury in the courtroom.5 The edited

transcript was admitted into evidence and made a part of the

record, and copies of the edited transcript were released to the

public.

In addition to the Reporters' request for access to the

videotape, Citizens filed an application for access to the

videotape and Dow Jones & Co. (Dow Jones) requested a copy of the

unedited transcript and access to the unedited videotape of
 6

Dow Jones is not a party to the present appeals.

 7In Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978),

the district court declined to release for copying President

Nixon's White House audiotapes, which had been admitted into

evidence in the Watergate trial. The Court of Appeals for the D.C.

Circuit reversed the district court's denial of access, and the

Supreme Court reversed the D.C. Circuit, thereby upholding the

district court's original ruling.

-6-

President Clinton's testimony.6 The President filed a motion for

a protective order requesting that the original videotape and all

copies thereof, whether edited or unedited, remain under seal.

 Upon consideration of the outstanding motions and applications

before it related to the videotapes and transcripts of President

Clinton's deposition testimony, the district court granted Dow

Jones's request for the unedited transcript but denied all requests

for access to the videotape. Slip op. at 10. In denying access to

the videotape, the district court relied upon Nixon v. Warner

Communications, Inc., 435 U.S. 589, 608 (1978) (where White House

audiotapes had been played for the jury and the public, including

the press, during the Watergate trial and transcripts had been

furnished to the press, the Court of Appeals erred in reversing the

district court's denial of the press's request for access to the

audiotapes because (1) the common law right of public access to

judicial records did not authorize the release of the tapes in

question from the district court and (2) the press did not have a

right of access to the audiotapes under the First or Sixth

Amendments),7

 and United States v. Webbe, 791 F.2d 103 (8th Cir.

1986) (where audiotapes created pursuant to the federal wiretap

statute had been played for the jury and the public, including the

press, in a criminal mail fraud trial and transcripts had been

furnished to the press, the district court did not abuse its

discretion, under a First Amendment or a common law analysis, in

denying the press access to the audiotapes). In the present case,

the district court held that the press's First Amendment right of
 8

Rule 53 provides "[t]he taking of photographs in the court

room during the progress of judicial proceedings or radio

broadcasting of judicial proceedings from the court room shall not

be permitted by the court."

-7-

access to public information had been "fully satisfied in this

instance by allowing the press to attend the playing of the

videotaped deposition and in providing full access to the written

transcript." Slip op. at 6. As to the common law right of public

access, the district court concluded that "[t]he Court need not

decide at this time whether the common law right of access applies

to videotaped testimony because even assuming it does, the Court

finds, on balancing all the relevant factors, that the press's

request to copy the videotape must be denied." Id. at 7. The

district court concluded that, on balance, the circumstances

favored keeping the videotape under seal because: (1) substantial

access to the information provided by the videotape had already

been afforded; (2) release of the videotape would be inconsistent

with the ban on cameras in the courtroom under Fed. R. Crim. P.

538

; (3) in other cases involving videotaped testimony of a sitting

president, the tapes were not released; and (4) there exists a

potential for misuse of the tape, a consideration specifically

recognized in Nixon v. Warner Communications, Inc., 435 U.S. at 601

(noting President Nixon's argument that the audiotapes could be

distorted through cutting, erasing, and splicing). Slip op. at 7-

9. In a footnote, the district court separately held that Citizens

lacked standing to appear in the action and accordingly denied its

application for access to the videotape. Id. at 2 n.2. These

appeals followed. 

Discussion

On appeal, appellants maintain that the district court's

denial of access to the videotape violated their common law and

First Amendment rights of access to judicial records. Thus, as a

threshold matter, they argue that the videotape is a judicial
 9

We address, primarily, the Reporters' arguments because they

generally incorporate Citizens' arguments on the merits. 

-8-

record to which such rights attach, even though it is merely an

electronic recording of a witness's testimony and was not itself

admitted into evidence. Without citing any supporting authority,

appellants argue that the videotape should be treated as a judicial

record because "[t]he defendants should not be permitted to

circumvent the common law and constitutional rights to access by

marking only the transcript of the videotaped deposition." Brief

for Appellants (Reporters) at 13.9 They also argue that,

"[e]ffectively, the videotape was introduced into evidence by being

played in open court." Id. Appellants conclude that "[t]he

videotape is like any other piece of evidence introduced or used in

the courtroom. It becomes a judicial record subject to public

review." Id.

Assuming that the videotape is a judicial record, appellants

contend that the denial of access violated their common law and

constitutional rights under this court's holding in In re Search

Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569

(8th Cir. 1988) (In re Search Warrant (Gunn)). In In re Search

Warrant (Gunn), a newspaper had unsuccessfully asked the district

court to unseal documents that had been used to obtain a search

warrant. This court considered the question of whether the

documents in question were "judicial records" for purposes of the

First Amendment analysis and opined that they were. Id. at 573.

We nevertheless affirmed the district court's decision to keep the

documents under seal on grounds that they contained sensitive

information concerning an ongoing nationwide criminal

investigation, and line-by-line redaction was not practicable. Id.

at 574. In support of our disposition, we explained "[t]he first

amendment right of public access is not absolute; it is a qualified

right." Id. "[T]he documents may be sealed if the district court

specifically finds that sealing is necessary to protect a
 10Judge Bowman separately concurred, stating his opinion that

it was unnecessary to reach the question of whether the documents

at issue actually were "judicial records" for First Amendment

public access analysis. In re Search Warrant for Secretarial Area

Outside Office of Gunn, 855 F.2d 569, 575 (8th Cir. 1988) (In re

Search Warrant (Gunn)). In any case, he reasoned, the public's

interest in preserving the integrity of the ongoing investigation

was "overwhelming" and necessarily overrode the public's interest

in access. Id. at 576. He also indicated that his conclusion was

based upon the "qualified" common law right of access. Id. ("[t]he

common law right of access to judicial records--a qualified right

with the decision as to access left to the sound discretion of the

trial court--is well established"). Judge Bowman further stated

"[t]his is all the more reason for leaving the first amendment

question to another day and to a case that actually requires its

resolution, which this case does not." Id. The third judge on the

panel, Judge Heaney, dissented on the ground that the public's

interest in access far outweighed the government's investigatory

interests in that case. Id. at 576-77.

-9-

compelling government interest and that less restrictive

alternatives are impracticable." Id. at 575. Because we

determined that those requirements had been met, we affirmed the

district court's order. Id.10 Appellants argue, in the present

case, that their common law and First Amendment rights were

violated because nondisclosure was not necessary to protect a

compelling government interest. Brief for Appellant (Reporters) at

5 (addressing common law right), 16 (addressing First Amendment

right). On this point, appellants maintain that fear of misuse of

the videotape in a political campaign does not constitute a

compelling interest. They further assert, without citing

authority, that "[t]he only government interest associated

specifically with the Office of the President that might justify

sealing a judicial record is national security." Id. at 23. The

Reporters maintain that this court's holding in In re Search

Warrant (Gunn) indicates that there is in this circuit "a strong

presumption in favor of the common law right of access," Brief for

Appellants (Reporters) at 4, notwithstanding our statement in

Webbe, 791 F.2d at 106, that "[w]e decline to adopt in toto the

reasoning of the Second, Third, Seventh, and District of Columbia

Circuits in recognizing a 'strong presumption' in favor of the
 11In the context of discussing the common law right of access,

the Supreme Court noted sua sponte in Nixon v. Warner

Communications, Inc., 435 U.S. at 603 & n.15, that, under the

Presidential Recordings Act, a government archivist would be

required to screen the Nixon White House audiotapes so that the

tapes that were private in nature could be returned to the former

president and those having historical interest could be made

public.

 12The defendants in the present case apparently did urge the

district court not to release the videotapes on the ground that it

would deny them a fair trial. Slip op. at 9 n.10. The district

court acknowledged that one of the defendants was facing a second

indictment, but nevertheless concluded that releasing the videotape

would have little impact on that defendant's second trial and this

factor did not weigh heavily against releasing the videotape. Id.

-10-

common law right of access." Citizens alone additionally argues

that In re Search Warrant (Gunn) overruled Webbe and, if not, then

this panel should take the opportunity to do so in the present case

by holding that there is a strong presumption in this circuit in

favor of public access to judicial records under the common law.

Brief for Appellants (Citizens) at 19 n.4.

Appellants also challenge the district court's reliance on

Nixon v. Warner Communications, Inc. and Webbe. They argue that

Nixon v. Warner Communications, Inc. is not applicable to the

present case because, in that case, the Presidential Recordings Act

provided an alternative channel of access to the audiotapes in

dispute.11 In Webbe, they note, the press was denied access to

wiretap audiotapes, which had been admitted into evidence, in part

because there was a chance that the tapes would be used again as

evidence in future trials related to other pending criminal

charges. Appellants argue that no similar considerations exist in

the present case,12 and we should therefore instead follow United

States v. Poindexter, 732 F. Supp. 170 (D.D.C. 1990). In

Poindexter, the District Court for the District of Columbia denied

a request by members of the press for physical access to a

videotape of former President Reagan's deposition testimony before

its use at trial. Id. at 172. However, the district court
-11-

commented in a footnote that "[i]t is the Court's intention to

provide such copies to the interested news media after the

videotape is played at the trial itself." Id. at 172 n.2 (emphasis

added). Appellants argue that, in the present case, they should

likewise be granted access to the videotape of President Clinton's

testimony because it has already been played at trial.

Finally, as to the district court's reasoning that it was

treating President Clinton's testimony in a manner equivalent to

live testimony provided at trial (because cameras are not permitted

in the court room under Fed. R. Crim. P. 53), appellants argue that

the district court's decision to keep the videotape under seal

actually gives the President special treatment because he was the

one who requested permission to testify on videotape. Thus, they

argue, the district court's disposition violates their common law

and First Amendment rights. We disagree.

Common law right of public access to judicial records

Upon careful review, we hold that appellants' common law right

of public access to judicial records was not violated as a

consequence of the district court's denial of physical access to

the videotape of President Clinton's testimony. To begin, we hold

as a matter of law that the videotape itself is not a judicial

record to which the common law right of public access attaches.

Appellants are incorrect to assume that this issue turns on whether

or not the videotape itself was admitted into evidence and that,

therefore, the litigants at trial have control to decide whether or

not the public's right may be exercised. See Brief for Appellants

(Reporters) at 13 ("The defendants should not be permitted to

circumvent the common law and constitutional rights to access by

marking only the transcript of the videotaped deposition."). Even

if the defendants had moved for the admission of the videotape into

evidence, the videotape itself would not necessarily have become a

judicial record subject to public review. See, e.g., Nixon v.
-12-

Warner Communications, Inc., 435 U.S. at 591 (audiotapes, which

were kept under seal, had been admitted into evidence at trial);

Webbe, 791 F.2d at 104 (same). We conclude, for reasons unrelated

to the fact that the videotape was never admitted into evidence,

that the videotape itself is not a judicial record for purposes of

this analysis.

The district court in the present case declined to decide

whether the videotape itself was a judicial record to which the

common law right attaches, but did note that courts are divided

over whether a videotape of witness testimony, taken pursuant to

Fed. R. Crim. P. 15, is a judicial record. Slip op. at 6-7

(comparing, for example, Application of American Broadcasting Cos.,

537 F. Supp. 1168, 1171-72 (D.D.C. 1982) (Application of ABC)

(holding that a videotape of a Rule 15 deponent's testimony is not

a judicial record for purposes of broadcasters' right of access

because otherwise such deponents would be subject to "exceptional

treatment" as compared with other witnesses), with In re

Application of CBS, Inc., 828 F.2d 958 (2d Cir. 1987) (holding

that, absent extraordinary circumstances, the press has a common

law right to inspect and copy the videotape of depositions used at

trial where the witness is unable to provide live testimony;

privacy interests of an ill witness were not sufficiently

extraordinary to preclude press access)). 

In Nixon v. Warner Communications, Inc. and Webbe, the

audiotapes in dispute were recordings of the primary conduct of

witnesses or parties. Therefore, those recordings were similar to

documentary evidence to which the common law right of public access

ordinarily may apply. By contrast, the videotape at issue in the

present case is merely an electronic recording of witness

testimony. Although the public had a right to hear and observe the

testimony at the time and in the manner it was delivered to the

jury in the courtroom, we hold that there was, and is, no

additional common law right to obtain, for purposes of copying, the
 13Nor can it be said that President Clinton has received

special treatment because the district court permitted him to

testify by videotaped deposition. See United States v. Poindexter, 732 F. Supp. 142, 144-46, 159-60 (D.D.C. 1990) (surveying instances

where presidents of the United States have been called upon to

provide testimony and concluding that former President Reagan was

not immune from being subpoenaed to testify for a criminal trial;

however, consistent with a longstanding tradition of not requiring

in-court presidential testimony, he could testify by videotaped

deposition).

-13-

electronic recording of that testimony. By comparison, Rule 53 of

the Federal Rules of Criminal Procedure prohibits photography or

other electronic recording of live witness testimony in the

courtroom. Our holding today comports with Rule 53 because it

mandates that Rule 15 deponents are treated equally to witnesses

who testify in court, in person. Accord Application of ABC, 537

F. Supp. at 1171-72. In other words, contrary to appellants'

argument, our holding does not give special treatment to Rule 15

deponents vis-a-vis witnesses who present live in-court testimony

but rather puts them on equal footing.13 Accordingly, we conclude

that appellants have failed to assert a cognizable common law claim

in the present case because the videotape itself is not a judicial

record to which the common law right of public access attaches.

Even if we were to assume that the videotape is a judicial

record subject to the common law right of public access, we would

hold that the district court did not abuse its discretion in

denying access in the present case. The legal standards governing

the common law right are well-established in this circuit. This

court stated in Webbe "the consideration of competing values is one

heavily reliant on the observations and insights of the presiding

judge." 791 F.2d at 106 (agreeing with the Fifth Circuit's

standard in Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 431-34

(5th Cir. 1981)). Although we recognize that there is a common law

presumption in favor of public access to judicial records, Nixon v.

Warner Communications, Inc., 435 U.S. at 602, we note that this

court in Webbe specifically rejected the strong presumption
 14Citizens' argument that we overruled United States v. Webbe, 791 F.2d 103 (8th Cir. 1986), in In re Search Warrant (Gunn), fails

not only on the merits but also because a panel of this court lacks

authority to overrule a prior panel decision. For this reason, we

also could not now overrule Webbe, as Citizens urges.

-14-

standard adopted by some circuits. 791 F.2d at 106 ("[w]e decline

to adopt in toto the reasoning of the Second, Third, Seventh, and

District of Columbia Circuits in recognizing a 'strong presumption'

in favor of the common law right of access"); see also Webster

Groves Sch. Dist. v. Pulitzer Publishing Co., 898 F.2d 1371, 1376

(8th Cir. 1990) ("[w]hen the common law right of access to judicial

records is implicated we give deference to the trial court rather

than taking the approach of some circuits and recognizing a 'strong

presumption' favoring access"). Contrary to appellants'

assertions, the "compelling government interest" test applied in In

re Search Warrant (Gunn), 855 F.2d at 754, may not be interpreted

as incorporating a strong presumption favoring public access for

purposes of the common law right. In that case, we employed the

compelling interest test in the context of determining whether the

qualified First Amendment right of public access attached to

specific documents which we had found to be judicial records. Id.14

Moreover, our deferential standard under the common law is in

harmony with the Supreme Court's analysis in Nixon v. Warner

Communications, Inc., 435 U.S. at 598, in which the Court stated

that "[e]very court has supervisory power over its own records and

files, and access has been denied where the court files might

become a vehicle for improper purposes." The Supreme Court

concluded, with respect to the common law right of public access,

"the decision as to access is best left to the sound discretion of

the trial court, a discretion to be exercised in light of the

relevant facts and circumstances of the particular case." Id. at

599.
-15-

We now turn to the district court's balancing of competing

interests in the present case. As noted above, the district court

concluded that, even assuming the videotape is a judicial record

for purposes of the common law analysis, the circumstances favored

keeping the videotape sealed because: (1) substantial access to the

information provided by the videotape had already been afforded;

(2) release of the videotape would be inconsistent with the ban on

cameras in the courtroom under Fed. R. Crim. P. 53; (3) in other

cases involving videotaped testimony of a sitting president, the

tapes were not released; and (4) there exists a potential for

misuse of the tape, a consideration specifically recognized in

Nixon v. Warner Communications, 435 U.S. at 601 (noting President

Nixon's argument that the audiotapes could be distorted through

cutting, erasing, and splicing). Slip op. at 7-9. In addition to

these sound reasons stated by the district court, we note the

following compelling considerations which further support the

conclusion that the district court did not abuse its discretion.

In Nixon v. Warner Communications, Inc., 435 U.S. at 602-03,

the Supreme Court considered it a "crucial fact" that giving the

press access to the audiotapes for purposes of making copies

involved "a court's cooperation in furthering their commercial

plans." The Supreme Court further explained that the courts have

a responsibility to exercise an informed discretion as

to release of the tapes, with a sensitive appreciation

of the circumstances that led to their production. This

responsibility does not permit copying upon demand.

Otherwise, there would exist a danger that the court

could become a partner in the use of the subpoenaed

material "to gratify private spite or promote public

scandal," with no corresponding assurance of public

benefit.

Id. at 603 (quoting In re Caswell, 18 R.I. 835, 836 (1893)). We

agree, as a matter of public policy, that courts should avoid
 15In United States v. Poindexter, 732 F. Supp. 170 (D.D.C.

1990), which was decided by the District Court for the District of

Columbia, President Reagan was not the sitting president at the

time he testified. Moreover, no reasons were given by the district

court to explain its comment, in dicta, that it intended to release

the videotape after the tape had been used at trial. Id. at 172

n.2. We see no reasonable basis for reading into that decision the

holding that the press had a common law right of access to the

videotape of President Reagan's deposition. Cf. Application of

American Broadcasting Cos., 537 F. Supp. 1168, 1172 (D.D.C. 1982)

(holding that common law right does not extend to videotape of Rule

15 deponent's testimony). 

-16-

becoming the instrumentalities of commercial or other private

pursuits.

We also note that granting access to the videotape of

President Clinton's testimony could harm the strong public interest

in preserving the availability of material testimony in criminal

trials. On the other hand, the public's interest in gaining access

to the videotape recording is only marginal because the testimony

has already been made visually and aurally accessible in the

courtroom and the transcript has been widely distributed and

publicized.

Finally, as a matter of historical interest and public policy,

there has never been compelled in-court live testimony of a former

or sitting president, nor has there ever been compelled

dissemination of copies of a videotape recording of a sitting

president's testimony.15 These facts, we think, suggest that there

is a strong judicial tradition of proscribing public access to

recordings of testimony given by a sitting president, which further

supports our conclusion that the district court did not abuse its

discretion in the present case. 
-17-

First Amendment right of access to public information

Upon de novo review, we also agree, as a matter of law, with

the district court's holding that the First Amendment right of

access to public information does not extend to the videotape of

President Clinton's deposition testimony. As the district court

noted, members of the public, including the press, were given

access to the information contained in the videotape. Therefore,

appellants received all the information to which they were entitled

under the First Amendment. 

 In addressing the press's First Amendment right to public

information as applied to the facts in Nixon v. Warner

Communications, Inc., the Supreme Court stated:

There simply were no restrictions upon press

access to, or publication of any information in the

public domain. Indeed, the press -- including reporters

of the electronic media -- was permitted to listen to

the tapes and report on what was heard. Reporters were

also given transcripts of the tapes, which they were

free to comment upon and publish. The contents of the

tapes were given wide publicity by all elements of the

media. There is no question of a truncated flow of

information to the public. Thus, the issue presented in

this case is not whether the press must be permitted

access to public information to which the public

generally is guaranteed access, but whether these copies

of the White House tapes -- to which the public has

never had physical access -- must be made available for

copying. . . . 

The First Amendment generally grants the press no

right to information superior to that of the general

public. "Once beyond the confines of the courthouse, a

news-gathering agency may publicize, within wide limits,

what its representatives have heard and seen in the

courtroom. But the line is drawn at the courthouse

door; and within, a reporter's constitutional rights are

no greater than those of any other member of the

public."
 16By contrast to the present case, we held in In re Search

Warrant (Gunn) that "the first amendment right of public access

does extend to the documents filed in support of search warrant

applications." 855 F.2d at 573 (emphasis added). We therefore

proceeded to address the issue of whether nondisclosure was

necessary to protect a compelling government interest, which is not

a relevant issue in the present case.

-18-

435 U.S. at 609 (quoting Estes v. Texas, 381 U.S. 532, 589 (1965)

(Harlan, J., concurring)). In other words, in Nixon v. Warner

Communications, Inc., the Supreme Court held that, where access to

audiotapes was sought by the press on grounds that they were public

information, the press's First Amendment right was adequately

protected because members of the public, including the press, were

(1) permitted to listen to the audiotapes as they were played to

the jury in the courtroom and (2) furnished with copies of the

written transcript. Under these circumstances, the First Amendment

right of public access did not extend to the audiotapes themselves.

Similarly, in the present case, the First Amendment right does not

extend to the videotape in dispute.16 

Conclusion

For the foregoing reasons, we affirm the district court's

denial of access to the videotape, as to both the Reporters and

Citizens. Because we dispose of this case on the merits of

appellants' common law and First Amendment claims, we find it

unnecessary to address the standing issue raised by Citizens. The

order of the district court is affirmed. Judgment shall be entered

accordingly.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.