Home Browse Media Law Resources Guides Florida - Open Courts Compendium III. Access to criminal proceedings

A. In general

Overview

The Supreme Court consistently has recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion) (“a presumption of openness inheres in the very nature of a criminal trial under our system of justice”); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602‑03 (1982) (recognizing First Amendment access right and striking down statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial”); Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 505 (1984) (constitutional presumption of openness to voir dire proceedings); Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13 (1986) (recognizing right of access to preliminary hearings); El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 149 (1993) (same); Waller v. Georgia, 467 U.S. 39, 47 (1984) (“any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors”)

Florida

“[T]he public and press have a fundamental right of access to all judicial proceedings.” State ex rel. Miami Herald Publ’g v. McIntosh, 340 So. 2d 904, 908 (Fla. 1976). However, according to the Florida courts, this is not necessarily a First Amendment right of access, but instead a common law right. Compare Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988)(recognizing a common law right of access in both criminal and civil proceedings) with Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1983) (explaining that there is no

First Amendment right to attend pretrial suppression hearings or other pretrial hearings).

Where a criminal defendant seeks to close records or proceedings in his or her case, the defendant must overcome the presumption of openness and satisfy the three-part test in Lewis. The proponent of closure must establish: (1) closure is necessary to prevent a serious and imminent threat to the administration of justice; (2) no alternatives are available, other than change of venue, which would protect a defendant’s right to a fair trial; and (3) closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose. 426 So. 2d at 6.

Florida Rule of Judicial Administration 2.450 governs access of to proceedings for electronic devices such as television and photographic cameras. Rule 2.450 makes Florida state courts presumptively open to electronic media. See also In re Post-Newsweek Stations Fla. Inc., 370 So. 2d 764 (Fla. 1979). However, courts have the authority to prohibit filming or photographing of particular trial participants, such as witnesses or jurors, upon a finding that such coverage will have a substantial effect upon the particular individual which would be qualitatively different from traditional media coverage. In re Post-Newsweek Stations Fla. Inc., 370 So. 2d 764 (Fla. 1979); State v. Green, 395 So. 2d 532 (Fla. 1981) but cf. Sunbeam Television Corp. v. State, 723 So. 2d 275 (Fla. Dist Ct. App. 1998) (finding on rehearing en banc that an interest in insulating jurors from undue influence in a high-profile case in which juror names and addresses were sealed could support a prohibition against videotaping jurors’ faces).

With respect to electronic coverage, courts also retain the authority to “(i) control the conduct of proceedings before the court; (ii) ensure decorum and prevent distractions, and (iii) ensure the fair administration of justice in the pending cause.” Fla. R. Jud. Admin. 2.450(a).