In these days of ever-more-frequent gag orders, closed courtrooms and sealed court files, the First Amendment sometimes seems like an ineffective weapon in the battle for access to the courts.
Scott Huminski therefore deserves some credit. Armed with only the First Amendment, Huminski recently overcame security concerns, judges’ natural inclination to support other judges and his own over-the-top speech to help clearly establish the First Amendment right of non-parties to attend civil court proceedings.
In Huminski v. Corsones, the 2nd U.S. Circuit Court of Appeals earlier this month held that the First Amendment prevented Vermont court officials from barring Huminski from their proceedings. The court also ruled that the officials violated Huminski’s First Amendment rights when they prohibited him from expressing his views about the judicial system on court property. Especially when compared to other recent access decisions the order in the Michael Jackson case preventing spectators from talking in the courtroom before and during breaks in hearings, for example the decision in Huminski is a clear victory for the First Amendment.
While the First Amendment rights of the media and the public to attend criminal and civil trials have long been established, the U.S. Supreme Court has not addressed whether an individual who is the sole person being excluded from a proceeding can assert a First Amendment violation. Moreover, the only federal circuit court precedent relating to the issue the 10th Circuit’s 1997 decision in United States v. McVeigh contains language suggesting that the First Amendment is implicated only when a trial court order denies access to the public at large.
Nevertheless, the 2nd Circuit had little difficulty concluding that Huminski possessed a First Amendment right to attend court hearings. Most important in its analysis, the court said, was the fact that the First Amendment is designed to guarantee individual rights. Moreover, the 2nd Circuit noted, the public’s right of access would be irreparably undermined if courts could selectively deny access to individuals. Finally, the court said, “the system of public justice depends on the willingness and ability of individual persons and entities to police the system by seeking access through litigation if necessary to courtrooms and court records that have been closed.”
The right of access, however, is not absolute and can be denied if the government demonstrates that the denial is necessitated by a compelling interest and is narrowly tailored to serve that interest. The 2nd Circuit therefore was required to review the elaborate factual history of the case to determine whether the court officials’ denial of Huminski’s access met that standard.
As described by Judge Robert Sack, who wrote the 2nd Circuit’s opinion, Huminski is “a long-time critic of the Vermont justice system who has sought to disseminate his message using a wide variety of means and media.” From early 1997 through May 24, 1999, Huminski’s focus had been the Bennington District Court in Bennington, Vt. On about 30 occasions during that period, he parked his van, which was laden with signs critical of the court, in areas adjacent to the courthouse and other public venues. Huminski encountered no opposition to his signs or to his frequent presence at the courthouse.
On May 24, 1999, Huminski drove his van to the Rutland District Court in Rutland, Vt., where Judge Nancy Corsones was presiding. Huminski had been particularly critical of Corsones, who had ruled against him in a criminal matter in Bennington in 1997. In September 1998, Huminski complained about Corsones in letters to several Vermont public officials. In at least two of those letters, Huminski threatened to take the law into his own hands and to “initiate activities that will get national media attention.” Concerned about the 1993 bombings at the World Trade Center and at the federal building in Oklahoma City in 1995, law enforcement officials investigated Huminski and his intentions, ultimately concluding Huminski was not likely to commit violence.
Corsones, however, was not so sure. When she was told on May 24 that Huminski had parked his van in the courthouse parking lot that morning with signs calling her a “butcher of the Constitution” and criticizing her handling of his criminal case, Corsones expressed safety concerns to various court security personnel and refused to take the bench while Huminski was in the building. The court manager eventually issued a “notice against trespass” against Huminski that prohibited him from entering the courthouse in Rutland unless he had received permission to do so or was appearing as a party in a case. Because of a defect in the notice, it was reissued and expanded to cover all property under the control of the Vermont Supreme Court.
On June 1, 1999, Huminski sued Corsones, the court manager, and other court security personnel, alleging that the notice against trespass violated his First Amendment rights to access the courthouse and to criticize court officials. The federal trial court dismissed a number of the claims against the officials on the grounds they were immune from suit in their personal capacities and ruled that, because factual issues existed as to the reasonableness of the notice, the notice could be enforced pending the outcome of the trial. At Huminski’s request, the 2nd Circuit agreed to review those rulings before the trial was conducted.
Though it affirmed some of the trial court’s rulings on the immunity issues, the 2nd Circuit reversed the court’s First Amendment holdings. The notice against trespass, the 2nd Circuit said, was not narrowly tailored and, in fact, was so broad as to be not tailored at all. Even assuming Huminski was some threat, the 2nd Circuit said, the First Amendment did not allow Rutland County forever and completely to bar him from court property.
The 2nd Circuit also held that the notice against trespass violated Huminski’s First Amendment right to free expression. Conceding that the court property was not a public forum in which all speech must be allowed, the 2nd Circuit nonetheless held that the government may not bar one speaker from an area when it does not attempt the regulate the speech of others in that forum. “The defendants’ singling out of Huminski for exclusion, thereby permitting all others to engage in similar activity in and around the courts,” the 2nd Circuit said, “suggests to us that the trespass notices are not reasonable. Such broad restrictions are generally frowned upon even in nonpublic forums.”
Ironically, despite its other rulings favorable to Huminski, the 2nd Circuit held Corsones is immune from liability in the case under the judicial immunity doctrine. Huminski accordingly will not be allowed to seek money damages from her. The judges in the 2nd Circuit therefore probably shouldn’t be surprised if Huminski’s van is next seen in their parking lot in New York City.