EPSTEIN
page 6 / 16 . OCR, unverified
public court proceedings and the public’s and press’s First
Amendment rights to in-person access to such proceedings. See
Bucci v. United States, 662 F.3d 18, 22 (1st Cir. 2011) (citing
Waller v. Georgia, 467 U.S. 39, 48 (1984)); Press-Enter. Co. v.
Superior Court of California, Riverside Cty., 464 U.S. 501, 509-
(1984). This Order details my findings.
II.
Partial Rather Than Total Closure
The court first finds that this video hearing constitutes a
partial, rather than total, closure of these proceedings. The
court so finds because the goals of public access will still be
achieved: this proceeding is not being held in secret and the
public, including members of the press, maintains the
All the court’s Standing Orders regarding the COVID-19
outbreak can be found here: http://www.nhd.uscourts.gov/court-
response-coronavirus-disease-covid-19.
Case 1:20-mj-00132-AJ Document 2 Filed 07/02/20 Page 2 of 7
opportunity to access this proceeding in real time. See
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 593-97
(1980) (Brennan, J., concurring) (discussing the functions of
public access to court proceedings, including ensuring that
procedural rights are respected and that justice is afforded
equally, maintaining public confidence in the administration of
justice, promoting accurate fact-finding, and enabling the
public to act as a check on judicial power); see also Bucci, 662
F.3d at 22 (discussing benefits of openness in criminal
proceedings). Under the extraordinary circumstances presented
by the continuing COVID-19 pandemic, the court finds this
partial closure is necessary.
III. Findings in Support of Necessity for this Partial Closure
A. First, the court finds that protecting the health and
safety of the public and the parties to this proceeding
from the spread of COVID-19 is a substantial interest that
would be jeopardized and prejudiced if the court did not
impose this partial closure.
Since the first announced case in New Hampshire on March 2,
2020, the state has reported 5,802 confirmed cases of COVID-19.3
So far, 373 deaths have been attributed to the disease in this
COVID-19, N.H. Dep’t of Health and Human Servs.,
https://www.nh.gov/covid19/ (last visited 12:00 p.m. July 2,
2020); Explore the Data: Tracking COVID-19 in New Hampshire,
N.H. Pub. Radio, https://www.nhpr.org/post/updated-tracking-
covid-19-cases-and-testing-new-hampshire#stream/0 (last visited
12:00 p.m. July 2, 2020).
Case 1:20-mj-00132-AJ Document 2 Filed 07/02/20 Page 3 of 7
state. Further, in New Hampshire approximately 3,475 people are
being monitored for signs of COVID-19 infection, over 120,307
total tests have been reported (both positive and negative test
results), and community-based transmission has been confirmed.4
Nationally, the number of confirmed cases has grown to over
2,797,737, with 130,984 cases resulting in death.5
Given the contagious nature of the virus and the
exponential growth in cases, COVID-19 presents an enormous
danger to the health and safety of the public, including the
litigants, security, and court personnel involved in this
proceeding. The court’s interest in preventing the spread of
COVID-19 and preserving the health of all hearing participants,
including the public, is a weighty and substantial interest that
would likely be prejudiced if the court were not to impose this
partial closure. See United States v. Smith, 426 F.3d 567, 572-
(2d Cir. 2005) (finding that U.S. Marshal’s policy after
September 11th of requiring unknown visitors to court to produce
photo identification constituted partial closure of courtroom
COVID-19, N.H. Dep’t of Health and Human Servs.,
https://www.nh.gov/covid19/ (last visited 12:00 p.m. July 2,
2020); Explore the Data: Tracking COVID-19 in New Hampshire,
N.H. Pub. Radio, https://www.nhpr.org/post/updated-tracking-
covid-19-cases-and-testing-new-hampshire#stream/0 (last visited
12:00 p.m. July 2, 2020).
Real Clear Politics, https://www.realclearpolitics.com/
(last visited 12:45 p.m. July 2, 2020).
Case 1:20-mj-00132-AJ Document 2 Filed 07/02/20 Page 4 of 7
that was justified by substantial interest of promoting security
and preventing terrorism).
B. Second, the court finds that this partial closure of court
proceedings is narrowly tailored to protect public health
and safety and is less restrictive than the court’s current
in-court hearing protocols.
Allowing the public to access these proceedings through
telephone conference allows a large number (up to 500) of
members of the public to access the proceedings while, at the
same time, protecting the health of all involved by limiting the
potential exposure of the public, parties, and court staff to
COVID-19.
Importantly, the court finds that, in light of the court’s
current restrictions on the number of people permitted in the
courtroom, providing public telephonic access is less