Gregg P. Leslie, Gregg.Leslie@asu.edu, Bar # 035040 *

Nancy Craig, Nancy.Craig@asu.edu **

Lila Mayson, Lila.Mayson@asu.edu **

Alexa Salari, Alexa.Salari@asu.edu **

Adi Soto, Adi.Soto@asu.edu **

First Amendment Clinic, Public Interest Law Firm

Arizona State University Sandra Day O’Connor College of Law

111 E. Taylor St., Mail Code 8820

Phoenix, AZ 85004

Telephone: (804) 727-7398

* Certified supervising attorney pursuant to L.R. Civ. 83.4(e)

** Certified limited practice student pursuant to L.R. Civ. 83.4(e)

David Bralow, admitted pro hac vice

david.bralow@theintercept.com

First Look Media Works, Inc.

114 5th Avenue, 18th Floor

New York, NY 10011

Telephone: (646) 784-3287

David J. Bodney, Bar # 006065

bodneyd@ballardspahr.com 

BALLARD SPAHR LLP

1 East Washington Street, Suite 2300

Phoenix, AZ 85004-2555 

Telephone: (602) 798-5400 

Attorneys for First Look Media Works, Inc.

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA

United States of America, 

Plaintiff, 

vs. 

SCOTT DANIEL WARREN, 

Defendant.

No. CR-18-00223-001-TUC-RCC 

(BPV)

RESPONSE: MOTION TO 

EXTEND TIME TO RESPOND BY 

FIRST LOOK MEDIA WORKS, 

INC.

Case 4:18-cr-00223-RCC-DTF Document 200 Filed 05/06/19 Page 1 of 6
First Look Media Works, Inc., publisher of The Intercept (“TI”), by and through its 

undersigned attorneys, wishes to accommodate the United States’ request for an extension of time

but respectfully requests that the delay be constructed to minimize the continuing injury to the 

public’s and the press’s First Amendment and common law rights of access. 

To that end, TI offers this compromise. TI would agree to a 30-day extension of time if 

the Court releases any previously sealed exhibit under three (3) circumstances: 1) when sealed 

exhibits are referred to in open court; 2) when the exhibits are entered as exhibits during the trial; 

or 3) when the exhibits are relied upon by this Court in making a determination of any motion or 

determination of guilt or innocence.1

Because the three circumstances do not, contrary to the government’s assertion, present 

any “unique legal issue” (First Amendment jurisprudence clearly established the right in those 

circumstances); because the harm to the public’s access right would be minimized (though not 

fully accommodated); and because the substantial resources of the federal government would be 

preserved, one wonders why the U.S. Attorney’s Office would not even entertain such a solution, 

as TI proposed when asked to consent to the present motion. The legal issues in sealing exhibits 

to motions to dismiss have been long settled in the Ninth Circuit, and any factual issues justifying 

sealing should have been established when the initial motion to seal was filed. Therefore, little to 

no additional briefing should be necessary, and the government’s argument for sealing should 

already be on the record. Instead, the United States seeks an extension that deprives the public of 

its First Amendment and common law rights. 

 1 Open issues such as the procedure for sealing can be resolved in a timely manner at a subsequent time 

that accommodates the Government’s concerns.

Case 4:18-cr-00223-RCC-DTF Document 200 Filed 05/06/19 Page 2 of 6
Respectfully, the motion must be denied or modified, for the following reasons:

MEMORANDUM

As fully briefed in TI’s initial motion, the First Amendment right of access is predicated 

on the long-held conviction that the public must have access to judicial proceedings and records 

because “openness. . . enhances both the basic fairness of the criminal trial and the appearance of 

fairness so essential to public confidence in the system.” Press Enterprise Co. v. Superior Court 

of California, 464 U.S. 501, 505 (1984). The Ninth Circuit has specifically found a “strong 

presumption of public access” to exhibits attached to motions “more than tangentially related to 

the merits of a case.” Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1099 (9th 

Cir. 2016). See also Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). 

The Defendant’s substantive motions and their attached exhibits go to the heart of the 

government’s prosecution of the Defendant and relate to matters of great public concern, including 

allegations of governmental misconduct.

Delay exacerbates the injury to the public’s First Amendment right. A “necessary 

corollary” to the First Amendment right is that once access is found to be appropriate, access ought 

to be “immediate and contemporary.” Grove Fresh Distribs., Inc. v Everfresh Juice Co., 24 F.3d 

893, 897 (7th Cir 1194)(citing Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976). See also

Lugosh v. Pyramid Co., 435 F. 3d 110, 126 (2nd Cir. 2006)(delaying intervention motion “was 

effectively a denial of any right to contemporaneous access – where ‘each passing day may 

constitute a separate and cognizable infringement of the First Amendment.’”); United States v. 

Graham, 257 F.3d 143, 147-48 (2nd Cir. 2001)(appellate court’s failure to timely review a denial 

of access would, in itself, deny relief); In re AP, 162 F.3d 503, 507 (7th Cir. 1998)(those who seek 

unsealing have an immediate right to be heard); In re Charlotte Observer, 882 F.2d 850, 856 (4th

Case 4:18-cr-00223-RCC-DTF Document 200 Filed 05/06/19 Page 3 of 6
Cir. 1989)(the value of openness is threatened whenever immediate access is denied); In re New 

York Times Co., 828 F.2d 110, 111 (2nd Cir. 1987) (deferral of decision on access “would 

effectively deny” right of access). Cf. Nebraska Press Ass’n v. Stuart, 423 U.S. 1327, 1329 

(1975) (Blackmun, J., in chambers) (holding that where state supreme court has not taken timely 

action to address prior restraint on media raising First Amendment issues "delay itself is a final 

decision").

As a court in this District recently held when asked to suspend a preliminary injunction in 

a speech-related case:

“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably 

constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Indeed, when the 

expressive conduct that is so burdened is political in nature, “[t]he harm is particularly 

irreparable.” Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009). 

Jordahl v. Brnovich, No. CV-17-08263-PCT-DJH, 2018 WL 6422179 (D. Ariz., order of October 

19, 2018).

The First Amendment injury is particularly acute when the original sealing occurred 

without public hearing, on-the-record findings of facts, and a determination of the narrowest 

remedy possible to accommodate a compelling government interest. Indeed, such a delay may 

deny the Intervenors “a meaningful opportunity to be heard.” In re Washington Post, 807 F.2d 

383, 392 (4th Cir. 1986)(hearing a “belated” motion to unseal the documents “does not cure the 

lack of an opportunity for a hearing with respect to the original decision to seal them.”). 

In this case, TI seeks to preserve that meaningful opportunity to be heard, and more 

important, the public’s right to review the judicial process within a meaningful time. This Court 

has recently denied the Defense’s dismissal motion for selective prosecution. It will engage in the 

judicial labor of determining a similar issue in a related felony case on May 13, 2019. The public 

Case 4:18-cr-00223-RCC-DTF Document 200 Filed 05/06/19 Page 4 of 6
has a specific, articulable and well recognized right to evaluate this judicial labor on a timely basis 

by reviewing all information provided by the Defense in this matter. 

"People in an open society do not demand infallibility from their institutions, but it is 

difficult for them to accept what they are prohibited from observing." Richmond Newspapers v. 

Va., 448 U.S. 55, 572 (1980). A 30-day continuance here prevents this meaningful review. The 

solution proposed at the outset of this brief would ameliorate that harm. 

Respectfully submitted this 6th day of May, 2019.

/s/ 

Gregg P. Leslie

Nancy Craig

Lila Mayson

Alexa Salari

Adi Soto

First Amendment Clinic, Public Interest Law Firm

Arizona State University Sandra Day O’Connor 

College of Law

111 E. Taylor St., Mail Code 8820

Phoenix, AZ 85004

David Bralow, admitted pro hac vice

First Look Media Works, Inc.

114 5th Avenue, 18th Floor

New York, NY 10011

David J. Bodney, Bar # 006065

BALLARD SPAHR LLP 

1 East Washington Street, Suite 2300

Phoenix, AZ 85004-2555 

Telephone: (602) 798-5400 

Case 4:18-cr-00223-RCC-DTF Document 200 Filed 05/06/19 Page 5 of 6
CERTIFICATE OF SERVICE

I certify that on May 6, 2019, I electronically transmitted a PDF version of this 

document to the Clerk of Court using the CM/ECF system for filing.

Case 4:18-cr-00223-RCC-DTF Document 200 Filed 05/06/19 Page 6 of 6