A three-judge panel in San Francisco overturned a lower court ruling Tuesday and sent the case back to a federal judge in Reno to determine if the government restrictions on access to roundups are constitutional.
Appellate Judge Milan Smith Jr. said in an 18-page opinion the court must balance the "vital public interest in preserving the media's ability to monitor government activities against the government's need to impose restrictions if necessary for safety or other legitimate reasons."
"When the government announces it is excluding the press for reasons such as administrative convenience, preservation of evidence, or protection of reporters' safety, its real motive may be to prevent the gathering of information about government abuses or incompetence," the judge wrote.
Laura Leigh, a photojournalist for Horseback Magazine, also is a writer, artist and coordinator for The Cloud Foundation based in Colorado. She filed a lawsuit against the U.S. Bureau of Land Management in the summer of 2010 seeking to halt the roundup of about 500 mustangs in eastern Nevada's Lincoln County.
Among other things, she said the BLM's closure of 27,000 acres of public lands where the roundup was taking place amounted to censorship in violation of the First Amendment, and prevented her from observing the gather in a watchdog role.
Gordon Cowan, her Reno lawyer, said Tuesday's ruling was a major victory for free speech. He said the appellate judges demonstrated "true heroism in standing guard for the First Amendment freedoms."
"They give press members like Ms. Laura Leigh hope that someone is looking out for them," he said.
The BLM argued that Leigh had been granted no less access than any other member of the public and that the restrictions were necessary for the safety of the horses and the observers.
Judge Hicks agreed. He denied her request for a temporary restraining order in September 2010, and then reaffirmed his ruling after an evidentiary hearing in April 2011.
The 9th Circuit panel said Hicks dismissed her concerns too quickly. It also said he was wrong to conclude the question was moot because the roundup was over by the time he issued a final ruling.
"A court cannot rubber-stamp an access restriction simply because the government says it is necessary," Smith wrote. "When wrongdoing is under way, officials have great incentive to blindfold the watchful eyes of the Fourth Estate," Smith wrote.
"If a government agency restricts public access, the media's only recourse is the court system. The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press. Thus, courts have a duty to conduct a thorough and searching review of any attempt to restrict public access.
"The relevant question is not whether the BLM prohibited Leigh from observing the horse gather altogether," he said. "The issue here is whether the viewing restrictions were unconstitutional. On that question, the district court failed to conduct the proper First Amendment analysis."