You have a right to oppose secrecy -- What you should do

You have a right to oppose secrecy

The U.S. Supreme Court’s decisions make clear that a judge considering closing a judicial proceeding must follow certain procedures to ensure that secrecy will not infringe upon the public’s First Amendment rights.

The judge must hold a hearing on the need for secrecy, and allow the media and others to argue against closure. If a compelling interest such as the criminal defendant’s fair trial right is at stake, the judge must consider alternatives to court secrecy, such as questioning prospective or seated jurors concerning their exposure to prejudicial information, or sequestering the jury. The judge also must consider changing the venue of the trial, bringing in jurors from another part of the state, or postponing the trial until the effects of publicity have diminished.

A judge who determines that no alternative will work also must determine that secrecy will protect the party’s interest and must tailor the closure order to protect that interest without unduly restricting public access.

Finally, the judge must present written findings supporting the closure decision. The U.S. Supreme Court has held that this is necessary so that an appeals court can evaluate the propriety of the closure.³⁷

What you should do

Advanced knowledge and planning is very important in court closure cases. Try to anticipate a closure. Preventing closure may be easier than convincing a judge to reopen a closed hearing. Find out whether any party in the case has filed or plans to file a closure motion. If so, consult your editor and determine whether your news organization’s lawyer should oppose the motion immediately. If you are an independent reporter, call the Reporters Committee for help.

But if a judge unexpectedly orders you to leave a hearing that to that point had been public, you may have to take immediate action.

• If you know that your news organization is prepared to send a lawyer into court to argue against courtroom secrecy, politely ask the judge if you may speak for a moment.

• Once the court acknowledges you, tell the judge that your news organization objects to the closure and would like an opportunity to argue against it. Ask for a brief recess so that you can arrange for a lawyer to come to court to argue your case. Telling the judge the name of the lawyer who will appear may bolster your credibility. Ask that your objection be made part of the court record. Realistically, you cannot rely on obtaining more than a few hours’ delay. Often judges will refuse to halt the case, but may agree to listen to arguments when your lawyer arrives.

• If the judge will not let you speak and orders the courtroom cleared, do not refuse to leave. If you stand your ground or shout your objection you may be arrested or cited for contempt.

• Leave the courtroom. Write a brief note to the judge explaining that your news organization wants to oppose the closure and that you will attempt to contact a lawyer immediately. Ask a court officer to give the note to the judge. Contact your organization about getting a lawyer involved, or call the Reporters Committee for assistance.

If you learn that a secret court proceeding is in progress or has already been held, try to determine:

• Who sought closure and on what grounds: to protect fair trial rights, trade secrets or other confidential information or privacy.

• The nature of the proceeding: civil or criminal, whether it is a trial, pre- or post-trial hearing or appeal.

• Whether the court held a hearing on closure and, if so, what findings the judge made justifying secrecy.

• Whether the proceeding is still going on. If possible, consult your editor about challenging the closure, or contact the Reporters Committee.

If you decide to seek access to the proceeding, or to a transcript if the proceeding has concluded, the simplest and most direct approach is to request a meeting with the judge. Pointing out the procedural requirements mandated by the U.S. Supreme Court may be sufficient to convince the judge to reconsider the closure.

In addition to requesting access to future proceedings, you should ask the judge to make available transcripts of past proceedings and copies of any documents that may have been introduced as evidence.³⁸ You might be able to convince the judge to give you the transcript because you were deprived of access to a hearing that should have been public. Be prepared to pay for it.

On the other hand, if the judge has decided to go forward in secrecy, you will need assistance from a lawyer. The U.S. Supreme Court and other courts have said that the media may intervene in a criminal or civil case for the limited purpose of asserting their First Amendment rights.³⁹

In addition to filing a motion to intervene, your lawyer might file a motion seeking a stay of further proceedings in the underlying case until the access issue is resolved.

If the judge denies the motion to intervene or, after hearing argument, continues holding closed proceedings, you may want to consider an appeal. A lawyer will be able to advise you on the best method of obtaining expeditious review of the decision. Contact the Reporters Committee if you or your news organization does not have an attorney.

Notes:

37. Press Enterprise Co. v. Superior Court, 478 U.S. 1 (1986); Gannett v. DePasquale, 443 U.S. 368 (1979).

38. See, e.g., United States v. Kaczynski, 154 F.3d 930 (9th Cir. 1998) (affirming the media’s right of access to a redacted psychiatric report of convicted “Unabomber” Theodore Kaczynski; the court reasoned that the public’s interest in the disclosure of the report outweighed Kaczynski’s right to privacy).

39. See, e.g., Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994).