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Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 23 of 31 otherwise protected material to enable a non-party to conduct a public smear campaign. Amodeo II, 71 F.3d at 1051 (“The nature and degree of injury must also be weighed. This will entail consideration not only of the sensitivity of the information and the subject but also of how the person seeking access intends to use the information...personal vendettas...need not be aided.”) (Emphasis added). In sum, the documents Dershowitz seeks involve no presumption of access whatsoever, as they are not judicial documents, but were the Court to find otherwise, the applicable presumption of access would be the lowest that exists under Second Circuit law. Ms. Giuffre requests that, in accord with the governing law, the Court hold that her proprietary interests outweigh any weak presumption of access. D. No Right of Access Exists Under the First Amendment Dershowitz should not have advanced a First Amendment right of access argument because it is wholly without merit. First and foremost, the documents at issue must be “judicial documents” to trigger a First Amendment right of access, and, as stated above, the materials at issue here are not. Newsday LLC v. County of Nassau, 730 F.3d 156, 166 (2d Cir. 2013) (“We must conduct an independent review of the Report to determine (a) whether it is a judicial document to which the First Amendment right applies”) (emphasis added). Should the Court find otherwise, there remains no right of access under the First Amendment. As the Second Circuit has said, “[e]ven when it applies, moreover, the First Amendment right creates only a presumptive right of access.” Jd. at 164 (Emphasis original). The right does not attach here because Dershowitz’s motion fails the Second Circuit’s “experience and logic” test for triggering a First Amendment right of access. That test “asks both whether the documents have historically been open to the press and general public and whether public access plays a significant positive role in the functioning of the particular process in question.” Jd. 18