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

Ryan Bailey, Ryan.D.Bailey@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.

CR-18-223-TUC-RCC(DTF)

NOTICE OF UNOPPOSED 

MOTION TO UNSEAL
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First Look Media Works, Inc., publisher of The Intercept (“TI”), notes for the Court 

that the Government did not respond to TI’s Motion to Intervene and Unseal Documents 

(Doc. No. 195) within the allowed extended deadline, and therefore requests that the 

Motion be granted and all documents mentioned in that Motion be unsealed promptly. See 

LRCiv 7.2(i) (“If . . . counsel does not serve and file the required answering memoranda, . 

. . such non-compliance may be deemed a consent to the . . . granting of the motion and 

the Court may dispose of the motion summarily.”)

TI filed the Motion on April 29, 2019. On May 3, the Government sought a 30-day 

extension to respond (Doc. No. 199). TI objected to such a lengthy delay on May 6 (Doc. 

No. 200), noting the continuing deprivation to the public of its right of access to court 

documents. On May 13, after no action by the Court on the original Motion or the request 

for extension, TI requested an expedited hearing (Doc. No. 203). The same day, the Court 

granted the Government’s request, setting a June 13 deadline for its response to the original 

Motion (Doc. No. 204). The Government did not meet the Court’s June 13 deadline to 

“file the required answering memoranda . . . .” LRCiv 7.2(i).

To distill the arguments made in TI’s request for an expedited hearing (Doc. No. 

203), delay exacerbates the injury to the public’s First Amendment right. A “necessary

corollary” to the First Amendment right of access is that once access is found to be 

appropriate, it needs 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 
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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 (2ndCir. 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 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
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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 notes that the sealed documents at issue were most relevant to the 

public during the trial, when it was the subject of news coverage, including coverage of the 

actions of Border Patrol agents that were detailed in the sealed exhibits. See, e.g., “Felony 

Trial of No More Deaths Volunteer Scott Warren Ends in Mistrial,” The Intercept (June 

12, 2019), https://theintercept.com/2019/06/12/felony-trial-of-no-more-deaths-volunteerscott-warren-ends-in-mistrial/ [https://perma.cc/ED7C-VNKS]; “Warren trial: BP agents 

testify NMD volunteer prompted raid with gestures,” Tucson Sentinel (May 31, 2019), 

http://www.tucsonsentinel.com/local/report/053119_warren_trial/ warren- trial-bp-agentstestify-nmd-volunteer-prompted-raid-with-gestures/ [https://perma.cc/3337-LW74].

While the opportunity to inform the public at the most timely moment has been lost, 

TI and the additional media parties that have noted a desire to join that Motion (Doc. No. 

248) seek to preserve what is left of that meaningful opportunity to be heard, and more 

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

Respectfully submitted this 14th day of June, 2019.

/s/ Gregg P. Leslie

Gregg P. Leslie, Bar # 035040

Ryan Bailey

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
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David J. Bodney, Bar # 006065

BALLARD SPAHR LLP 

1 East Washington Street, Suite 2300

Phoenix, AZ 85004-2555 

David Bralow, admitted pro hac vice

First Look Media Works, Inc.

114 5th Avenue, 18th Floor

New York, NY 10011