Online Poker: Costigan Media Wants Conte Affidavit Unsealed

As reported last Thursday, Costigan Media, parent company of Gambling911.com, has filed a Motion to Intervene and to Unseal Court Records Relating to the Issuance of the Seizure Warrant against two of online poker's leading companies, PokerStars and Full Tilt.  The US Attorneys Office in the Southern District of New York has maintained that the affidavit and other court documents must be sealed.  Costigan Media asserts its First Amendment right to publish what is contained within these documents. 

Costigan Media and Gambling911.com are represented by Baruch Weiss of Arent Fox. 

Mr. Weiss served as the assistant general counsel for enforcement at the Treasury Department, and as the acting deputy general counsel at Homeland Security.

Mr. Weiss recently won a historic victory in the foremost First Amendment case prosecuted by the Justice Department, the so-called "AIPAC Espionage Act case," brought against two former officials of the American Israel Public Affairs Committee (AIPAC). The prosecution constituted, in the words of the editorial page of The Washington Post, a "dangerous aggrandizement of the government's power" in its efforts to impose secrecy in the name of national security on private citizens. For years, the case had been the subject of numerous editorials and opinion pieces in The Washington Post, The Wall Street Journal, and other major newspapers. 

The Motion to Intervene filed by Mr. Weiss on behalf of Costigan Media provided the following background:

Costigan Media, as a member of the news media, has standing to intervene in this action in order to move to unseal the Conte Affidavit and any other documents filed in support of the issuance or sealing of the seizure warrant.  Costigan Media has a right under both the First Amendment and the common law to gain access to the sealed documents supporting the seizure warrant.  The First Amendment provides a right of access to judicial documents unless the government can assert a compelling government interest and narrowly tailors the restrictions on access and requires the district court to make detailed on-the-record findings in support of any restrictions on access to make possible appellate review. 

Similarly, the common law right of access provides another well-recognized basis for a right of access.  Once the seizure warrant has been executed and the funds are safely under the control of the government, access to the documents supporting the issuance of the warrant is mandated by the First Amendment and by the common law right of access to judicial documents.  Here, the warrant remains sealed after execution, but without any on-the-record explanation by the government as to the compelling interest it has in maintaining these documents under seal when the funds are now secure.  A blanket denial of access to the Conte Affidavit and any other related documents can not be a narrowly tailored restriction under the First Amendment standard, nor can it satisfy the common law standard. 

Costigan Media's motion to unseal the records should be granted.

Neither PokerStars or Full Tilt Poker advertise on the Gambling911.com website.

Costigan Media is the first and only party to have taken such an action to date.

Prosecutors were meeting with Costigan Media legal counsel late Monday afternoon. 

Christopher Costigan, Gambling911.com Publisher