NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES DEPARTMENT OF 

JUSTICE; FACEBOOK, INC., 

Respondents-Appellees, 

 v. 

AMERICAN CIVIL LIBERTIES UNION 

FOUNDATION; et al., 

Movants-Appellants, 

and 

WP COMPANY LLC, DBA The 

Washington Post, 

Movant.

No. 19-15472 

D.C. No. 

1:18-mc-00057-LJO-EPG 

MEMORANDUM*

UNITED STATES DEPARTMENT OF 

JUSTICE; FACEBOOK, INC., 

Respondents-Appellees, 

 v. 

WP COMPANY LLC, DBA The 

Washington Post, 

No. 19-15473

D.C. No. 

1:18-mc-00057-LJO-EPG 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JUL 22 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Movant-Appellant, 

and 

AMERICAN CIVIL LIBERTIES UNION 

FOUNDATION; et al., 

Movants.

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O'Neill, District Judge, Presiding

Argued and Submitted April 28, 2020

Seattle, Washington

Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.

The American Civil Liberties Union, the Electronic Frontier Foundation, and 

the Washington Post appeal from the district court’s denial of motions to unseal 

various contempt proceeding documents related to a technical assistance wiretap 

order under 18 U.S.C. § 2518(4). We have jurisdiction under 28 U.S.C. § 1291, 

and we affirm.

We review de novo whether a right of access to certain records or 

proceedings exists under the First Amendment or the common law. United States 

v. Carpenter, 923 F.3d 1172, 1178 (9th Cir. 2019). To determine whether a First 

Amendment right of access attaches to particular proceedings or records, we 

consider (1) “whether the place and process have historically been open to the 

press and general public,” and (2) “whether public access plays a significant 
3 

positive role in the functioning of the particular process in question.” PressEnterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986). Because the materials at 

issue here do not pass this “experience and logic” test, a qualified First 

Amendment right of access does not exist. The documents have not historically 

been open to the general public during an investigation. And, because of the 

ongoing nature of the investigation, the benefits of open proceedings are “more 

than outweighed by the damage to the criminal investigatory process.” See Times 

Mirror Co. v. United States, 873 F.2d 1210, 1215 (9th Cir. 1989).

We decline to consider whether there is a separate common law right of 

access to the documents because any presumption in favor of access would be

outweighed by a compelling government interest in maintaining secrecy in an 

ongoing investigation. See United States v. Index Newspapers LLC, 766 F.3d 1072, 

1090 (9th Cir. 2014) (refusing to consider “whether there is a common law right of 

access to the transcripts of the closed portion of the contempt hearing because, 

even if there is such a right, the government’s interest in grand jury secrecy is a 

sufficiently important countervailing interest that overcomes any common law 

presumption in favor of access”) (internal citations, quotation marks, and 

alterations omitted). 

AFFIRMED.