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By Douglas Lee
Lawyer, Ehrmann Gehlbach Badger & Lee

In 1884, Oliver Wendell Holmes, then a justice on the Massachusetts Supreme Court, held in Cowley v. Pulsifer (137 Mass. 392) that members of the public enjoy a right of access to civil trials. This right, he said, is rooted in democratic principles:

“It is desirable that the trial of [civil] causes should take place under the public eye, ... not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.”

In the almost 120 years since this ruling, courts have struggled to stay true to Justice Holmes’ commitment to openness. While the U.S. Supreme Court consistently has reaffirmed the public’s right of access to judicial proceedings, trial and appellate judges implementing that right frequently have sacrificed the public’s right to know in order to ease the administration of justice.

The U.S. Supreme Court spoke most clearly of the public’s right to witness court proceedings in 1980 in Richmond Newspapers, Inc. v. Virginia. In Richmond Newspapers, the Court for the first time held that the public and the press enjoy a First Amendment right to attend criminal trials. This right, the Court said, is rooted in the historical tradition of openness in the judicial system and can be overcome only if the trial judge, after a hearing, concludes that no other means exists to protect the defendant’s right to a fair trial. The other means that must be considered include a change of venue, sequestration of the jury, extensive questioning of potential jurors, postponement of the trial, emphatic jury instructions and gag orders on trial participants.

In 1984, the U.S. Supreme Court extended its ruling in Richmond Newspapers to jury selection. In Press-Enterprise Co. v. Superior Court of California, the Court ruled that the First Amendment right to attend criminal trials includes the right to attend jury selection in those trials. A public right of access to a proceeding exists, the Court said, if there has been a tradition of access to that proceeding and if access serves a positive role in the functioning of the judicial system. As in Richmond Newspapers, however, the Court held the right of access to jury selection is not absolute, ruling that the presumption of access can be overcome “by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”

This analytical framework remains in place today. The U.S. Supreme Court applied it again in Press-Enterprise Co. v. Superior Court in 1986, in holding that the public possesses a right to attend preliminary hearings in criminal cases. It also has been used in cases denying access to grand jury proceedings, as those proceedings traditionally have been conducted in secret. While the U.S. Supreme Court has yet to find a First Amendment right of access to civil trials, lower courts following the Richmond Newspapers analysis have had little difficulty extending the right of access to those proceedings.

Lower courts also have had little difficulty extending the right of access to court files and other court documents. These courts, however, have struggled to define the reach of that right. Courts across the country, for example, disagree about whether the news media are entitled to copies of videotapes, audiotapes and documents that are introduced as evidence. Courts also disagree about the circumstances under which it is lawful to seal settlement agreements and other court records. While courts more consistently hold that members of the press and the public are not entitled to obtain unfiled discovery materials or attend depositions, a few courts have held that discovery proceedings, including depositions, are presumptively open.

Limits on public access also are imposed by state legislatures. Access to information about minors, for example, is typically denied by statute. Many states also prohibit access to and publication of information about victims of sexual assault. Under a trilogy of U.S. Supreme Court cases, however, it is clear that news outlets, if they lawfully obtain such information, cannot be punished for publishing it.

The Court first addressed this issue in 1975 in Cox Broadcasting v. Cohn. In Cox Broadcasting, a television reporter obtained the name of a deceased rape victim from indictments that were available for public inspection as part of a court file. After the station broadcast the victim’s name, the victim’s father, relying on a Georgia statute that made it a crime to publish the names of rape victims, sued the station for violating his right to privacy. The Court dismissed the father’s case, holding that the First Amendment protected the accurate publication of information that was lawfully obtained from a public record.

In Smith v. Daily Mail Publishing Co., the Court in 1979 similarly held that newspapers that obtained the name of a youth charged with a juvenile crime by interviewing witnesses could not be punished for publishing the youth’s name, even though a state statute prohibited such publication. Then, 10 years later, the Court held in The Florida Star v. B.J.F. that a newspaper that obtained the name of a rape victim from a police report that was made public inadvertently could not be sued for damages for publishing, in violation of a state statute, the victim's name.

In response to these and other cases, courts concerned about unwanted media attention have taken steps to deny information to journalists. Many courts, for example, have ordered that participants in cases not speak with the news media (see separate section on gag orders.) In other cases, courts have refused to disclose jurors’ names and other identifying information about them. The increasing use of such anonymous juries, especially when used only to “protect” jurors from the media after the trial, appears inconsistent with the democratic principles cited by Justice Holmes and with the precedent establishing the openness of criminal and civil proceedings. To date, however, the U.S. Supreme Court has not addressed this issue.

An issue the Court might face before long is whether the Immigration and Naturalization Service can constitutionally close its administrative courts. Although INS regulations require that immigration proceedings be open to the public, security measures implemented after Sept. 11, 2001, have effectively closed these hearings. The new measures also have effectively sealed most INS records.

The U.S. Courts of Appeal disagree about whether the new rules violate the First Amendment. In August 2002, the 6th U.S. Circuit Court of Appeals held the rules unconstitutional, saying the First Amendment’s presumption of openness applied to immigration proceedings. “The only safeguard on this extraordinary governmental power is the public, deputizing the press as the guardians of their liberty,” the court said. “The Executive Branch seeks to uproot people’s lives, outside the public eye, and behind a closed door. Democracies die behind closed doors.”

The 3rd Circuit, however, upheld the secrecy rules in October 2002. In its decision, the court found that INS proceedings did not enjoy the same tradition of openness as criminal and civil courts and that openness in these cases threatened national security. Any First Amendment right of access, the court therefore concluded, must give way to the executive branch’s reasonable security concerns.

The resulting split in the circuit courts leads many to believe that the Supreme Court soon will address the issue.

Although Richmond Newspapers and its progeny are cited as key precedents in post-9/11 cases regarding press access to government activities and information, there is no way of knowing if the government was held to these standards in closed proceedings, particularly in the case of post-9/11 detainees. In M.K.B. v. Warden (2004), the Supreme Court denied certiorari for a detainee and also denied a media motion to intervene in the case, all without citing precedent or allowing the movants to read the government’s brief.



2nd Circuit: Vermont gadfly wrongly barred from courthouse
Three-judge panel's decision breaks new ground by declaring a First Amendment right for an individual to visit a courthouse. 10.08.04

Jackson trial opens amid access, records issues
Judge won't clear courtroom of press, observers for testimony of two accusers; he'll release indictment, grand jury transcripts when jury is seated. 01.31.05

AP: Thousands of federal cases kept secret
Most of 5,000 defendants in cases from 2003-2005 are involved in drug gangs, though lately small number come from terrorism cases. 03.08.06

Courthouse gadfly wins 7-year free-speech odyssey
Federal jury sides with Scott Huminski, orders former Vermont sheriff to pay $50,001 for barring self-described 'defender of justice' from courthouse grounds. 03.30.06

6th Circuit upholds Ky. juvenile-court secrecy
Panel rejects effort by press association to open proceedings involving people under 18 to public. 07.10.06

World watching Michael Jackson trial: How much will it see?
By Douglas Lee Judge Melville has kept press shackled so far; ultimate loser is the public, which needs to know how well justice is working. 01.31.05

3rd Circuit lets sunshine in on famous coroner’s trial
By Douglas Lee Jurors’ names to be public in trial of Cyril Wecht, forensic pathologist accused of improper conduct. 01.28.08

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Last system update: Monday, January 28, 2008 | 11:50:22
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