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Access to courts

Courtrooms traditionally have been open to the public, and anyone who wanted to watch a trial could, as long as there was a seat available.

However, when courts recognize reporters' rights to proceedings or court documents, the rights are rarely absolute. Instead, the courts usually apply a balancing test to determine whether the interest in disclosure outweighs any asserted counterbalancing interest in confidentiality. The standard the courts use in striking that balance depends on the source of the right. Courts have found that the media have a right of access to judicial records and proceedings under common law, the First Amendment and state or federal statutes. These methods of access are not exclusive; courts may find a right of access under both the common law and the First Amendment.

Under common law — the traditional court-made law that U.S. courts adopted centuries ago from English standards — courts have recognized a presumed right of access to criminal and civil court records.¹ However, this common-law right of access is not absolute.² The presumption of open access to judicial records may be rebutted by countervailing interests that weigh against disclosure.³ The U.S. Supreme Court has said that the decision whether to grant access under the common-law right "is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case."⁴

Because courts engage in a simple balancing test, gaining access under the common-law right is more difficult than under the First Amendment where closure must pass a higher level of scrutiny.

In Richmond Newspapers, Inc. v. Virginia and other cases that followed, the Supreme Court established a two-part test to determine whether the press and public have a First Amendment right of access to criminal proceedings.⁵ First, the Court must consider "whether the place and process have been historically open to the press and general public."⁶ Second, the Court must consider "whether public access plays a significant positive role in the functioning of the particular process in question."⁷ Since Richmond Newspapers, courts have extended this "history and logic" test to establish a constitutional right of access to criminal and civil court proceedings and records.⁸

When the First Amendment right of access applies, the Supreme Court has held that a presumption of disclosure requires courts to grant access unless specific, on-the-record findings demonstrate that closure is "necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest."⁹

Recently, federal appellate courts have split over whether national security interests necessitate closing immigration proceedings of detainees held after the terrorist attacks of September 11. These proceedings are held in immigration courts, which are administrative courts run by the Department of Justice. The government labeled these detainees as "special interest" cases and, under a directive from Chief Immigration Judge Michael J. Creppy, closed all cases to the public, press, family or friends. The directive also prohibited court personnel from even confirming whether a case was on the docket. Media organizations in Michigan and New Jersey challenged the closure of "special interest" cases, which ended in mixed results.

In the Michigan case, the U.S. Court of Appeals in Cincinnati (6th Cir.) found a long history of open access to deportation proceedings reaching back to the first general immigration laws enacted more than 100 years ago. The court found that open immigration proceedings served a significant positive role by ensuring fairness in the process, serving as an outlet for public concern and emotion, and informing the public of governmental affairs. While protecting national security was a compelling governmental interest, the court held that the directive closing all "special interest" immigration proceedings was not narrowly tailored to serve that interest.¹⁰

Unlike the Sixth Circuit, the U.S. Court of Appeals in Philadelphia (3rd Cir.) upheld the constitutionality of secret immigration proceedings. The Third Circuit found that history did not support access to deportation hearings. Deportation proceedings often are conducted in prisons, hospitals, or private homes and are often closed. In addition, there is a tradition of closing sensitive administrative proceedings. This was not the type of "unbroken, uncontradicted history" sufficient to establish a First Amendment right of access, the Third Circuit held.¹¹ In spite of the disagreement between the Sixth and Third Circuits, the Supreme Court refused to hear the case on appeal in May 2003.

In criminal cases, courts issuing closure orders most often point to the defendant's right to a fair trial by an impartial jury. However, general fear that publicity will jeopardize a defendant's right to a fair trial is usually insufficient to close a criminal proceeding.¹² In addition, sometimes judges consider closing proceedings in light of privacy interests of witnesses or jurors, or the emotional trauma of testifying in public, particularly in sexual assault cases.¹³

Trial secrecy has been increasing over the past decade, prompted by controversial trials from that of O.J. Simpson to those involving Theodore Kaczynski, Timothy McVeigh and Terry Nichols, and, more recently, individuals accused of supporting terrorism. For example, in the Oklahoma City bombing case, the trial judge proceeded with an extraordinary degree of secrecy. During the pretrial phase, the judge sealed a motion to suppress evidence filed by defendant Terry Nichols in order to prevent disclosure of information that could be ruled inadmissible at trial. The judge also limited public access to jury selection and ordered a barricade to be erected so that jurors would be hidden from view from spectators inside the courtroom.¹⁴

Until recently, anonymous juries (where information about jurors' names, addresses, ages or professions is sealed) were rarely utilized and limited primarily to cases where a credible threat to the safety or well-being of jurors existed. For example, courts have approved the use of anonymous juries in organized crime trials, where a serious risk to jurors is threatened by people seeking to influence them or to retaliate after a verdict. Anonymous juries also were used in the trials of Branch Davidian survivors in Waco, Texas, Oliver North, Kaczynski, and the 1993 World Trade Center bombers.¹⁵

Judges also increasingly are limiting information about jurors, citing concerns about their privacy. In the federal trial of Autumn Jackson, charged with attempting to extort money from entertainer Bill Cosby, the judge sealed the transcript of a closed hearing that resulted in the release of a juror, stating that the sealing order was necessary "to protect the juror's privacy in light of the intense media attention garnered by the case."¹⁶ However, some appeals courts have ruled that the First Amendment gives the public a general right of access to names and addresses of jurors.¹⁷

Unlike criminal courtroom proceedings, grand jury proceedings have not been historically open to the public. For example, in May 1998, a federal appeals panel in Washington, D.C., affirmed a district court decision denying the media access to court proceedings and documents related to President Bill Clinton's claim of executive privilege regarding the grand jury's investigation of the Monica Lewinsky matter. The court held that the news media do not have a First Amendment right to cover grand jury proceedings, which traditionally operate in secrecy. According to the Court, recognizing a First Amendment right to attend "ancillary" proceedings would "create enormous practical problems in judicial administration."¹⁸

The Supreme Court has not decided whether the public has a constitutional right of access to juvenile court proceedings.¹⁹ Traditionally, juvenile courts have been closed to the public. As a policy matter, it was believed that youthful offenders should not be stigmatized forever because of one mistake. But high-profile crimes involving minors, such as the March 1998 school shooting in Jonesboro, Ark., have contributed to changes in public attitudes about the juvenile justice system and a youthful offender's right to privacy.²⁰ The rules under which access is allowed vary by jurisdiction, and usually can be found in state statutes governing juveniles or family courts.²¹

The Supreme Court has never decided whether the public has a First Amendment right of access to civil proceedings. However, several federal appeals courts and state courts have held that civil cases are presumed to be public under the First Amendment as well.²² Nonetheless, civil litigants often argue that publicity will jeopardize their fair-trial rights. Parties in civil cases also may argue that open proceedings would reveal trade secrets, confidential business information or other private matters. They may say that the court should close the proceeding or seal documents to prevent competitors or others from acquiring this sensitive information. The issuance of secret settlements in civil cases has also become more common. Often parties to litigation make confidentiality a condition to any settlement they reach. This is particularly true in cases where a defendant must pay damages. As a result, cases of great interest to the public are settled secretly and the public never learns the terms of the resolution.²³ In response, some jurisdictions have enacted rules that prohibit secret settlements in court.²⁴

Issues litigated by private parties often have implications for the general public. For example, in Minnesota, insurance companies seeking a declaratory judgment that they are not responsible for 3M company's potential liability for damages caused by injuries from silicon-gel breast implants sought and obtained a broad protective order sealing most of the court documents. Two publishers who challenged the broad secrecy order were unsuccessful, despite their argument that the public had a legitimate interest in both skyrocketing insurance costs and unsafe consumer products.²⁵

A number of courts also have ruled that the First Amendment creates a right of access to civil court documents, particularly those placed in evidence or filed with the court.²⁶ Correspondingly, the use of pseudonymous civil filings (documents filed under "John Doe" or another pseudonym) has not been allowed in many cases because it represents a fundamental threat to access by denying the public right to know who is utilizing the public courts to resolve a dispute.²⁷

State and federal legislatures also have enacted statutes with specific application to certain kinds of judicial proceedings and records. When a legislature passes a law that governs court access, the statute will delineate the scope of the access right, but it must do so in a way consistent with First Amendment case law and any applicable state constitutional right of access.

Some court rules also govern access to judicial proceedings and records. Federal Rule of Civil Procedure 26(c), for example, permits federal courts to issue protective orders sealing civil discovery materials to prevent "annoyance, embarrassment, oppression, or undue burden or expense," but only on a finding of "good cause."²⁸ Similarly, Federal Rule of Criminal Procedure 16(d)(1) allows federal courts to seal criminal discovery materials "upon a sufficient showing." Most states have similar or identical rules of procedure.

Civil discovery documents not entered as evidence present access problems because they are not part of the official court record. Some federal circuits have held that discovery documents filed with the court are presumed public under the Federal Rules of Civil Procedure, rather than the First Amendment.²⁹ Many courts do not require parties to file discovery materials, and in those jurisdictions you may have great difficulty gaining access to them.

Courts also have ruled that the media do not have a right of access to copies of videotaped depositions.³⁰

Several states have adopted rules that are intended to prevent wholesale secrecy of discovery materials filed in civil cases.³¹

You may encounter problems gaining access to documents and exhibits used in a case but then returned to the parties at the conclusion of the litigation.³² Therefore, do not delay in asking to examine evidence.

The Supreme Court has ruled that the media do not have a First Amendment right to copy exhibits.³³ Some courts have read this decision broadly to mean that you do not have a First Amendment right even to examine exhibits, ruling that the right of access to evidence and other documents is based in common law. This makes it much easier for a party advocating secrecy to overcome a media request for access.

Notes

1. See, e.g., Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (recognizing a common law right of access to judicial records and documents); United States v. Amodeo, 44 F.3d 141 (2d Cir. 1995) (recognizing common-law right of access to documents filed with court that relate to performance of judicial function and aid judicial process); Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 662 (3d Cir. 1991) (finding common law right of access to documents submitted with summary judgment motion); Rushford v. New Yorker Magazine, 846 F.2d 249, 253 (1988) (same); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066-67(1984) (finding common law right of access extends to civil court records); Brown & Williamson Tobacco Corp. v. Federal Trade Comm'n, 710 F.2d 1165, 1179 (1983) (recognizing "strong common law presumption in favor of public access to court proceedings and records").

2. Nixon, 235 U.S. at 598.

3. Republic of Philippines, 949 F.2d at 662.

4. Nixon, 435 U.S. at 599.

5. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980).

6. Press-Enterprise Co. v. Superior Court ("Press-Enterprise II"), 478 U.S. 1, 8 (1986).

7. Id.

8. See, e.g., Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) (criminal trials); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) (criminal trials); Press Enterprise v. Superior Court ("Press Enterprise I"), 464 U.S. 501 (1984) (criminal jury selection); Press Enterprise II, 478 U.S. 1 (1986) (criminal preliminary hearing); In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986) (sentencing hearings); see infra fn. 22.

9. Press-Enterprise I, 464 U.S. 501 (1984) (holding that order sealing transcript of voir dire - the questioning of potential jurors - in trial involving rape and murder of teenage girl violated First Amendment) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)).

10. Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002).

11. New Jersey Media Group Inc. v. Ashcroft, 308 F.3d 198 (3d Cir. 2002), cert. denied, 71 USLW 3579 (U.S. May 27, 2003) (No. 02-1289).

12. See, e.g., Ex parte Consolidated Publishing Co., 601 So.2d 423 (Ala. 1992).

13. See Reid v. Superior Court, 64 Cal. Rptr. 2d 714 (1997) (holding that a trial judge cannot prohibit contact between a defendant's lawyers and investigators and the prosecution's witnesses solely to protect their privacy, rejecting the trial court judge's conclusion that "embarrassment" to witnesses justified denying the defense access to them).

14. United States v. McVeigh, 119 F.3d 806 (10th Cir. 1997).

15. The trend toward anonymous juries shows no sign of abating. In December 1996, the Los Angeles Superior Court adopted a policy of juror anonymity in all criminal trials, relying on a state civil procedure rule that requires the names of jurors to be sealed following the verdict in a criminal trial. Memorandum on Juror Confidentiality (L.A. County Super. Ct. Dec. 3, 1996).

16. United States v. Jackson, 969 F. Supp. 881 (S.D.N.Y. 1997). But see Michigan v. Mitchell, No.195970 (Mich. Ct. App. Feb. 2, 1999) (holding that a trial court's order denying a newspaper's motion for the release of jurors' names and addresses in the trial of a convicted serial rapist should be reconsidered by the trial court, noting that generalized privacy interests alone cannot justify secrecy).

17. See, e.g., In re Globe Newspaper Co., 920 F.2d 88 (1st Cir. 1990); In re Express-News Corp., 695 F.2d 807 (5th Cir. 1982).

18. In re Motions of Dow Jones & Co., 142 F.3d 496 (D.C. Cir. 1998).

19. See, e.g., United States v. A.D., 28 F.3d 1353 (3d Cir. 1994) (holding that federal courts may grant access to juvenile proceedings and records on case-by-case basis, under Juvenile Delinquency Act, 18 U.S.C. §§ 5031-42); United States v. Three Juveniles, Globe Newspaper Co., No. 94-10181-PBS (D. Mass. Sept. 8, 1994), aff'd 61 F.3d 86 (1st Cir. 1995) (holding that the Federal Juvenile Delinquency Act creates a presumption that juvenile court proceedings and records will be closed to the public).

20. See Providence Journal v. Rodgers, 711 A.2d 1131 (R.I. 1998) (the Rhode Island Supreme Court finds that court policy sealing all documents in child molestation cases is too broad). See also New York Uniform Rules of Family Court § 205.4 (1997) (newly adopted statute which presumptively opens juvenile courts to the public); Md. R. Civ. P. 11-104(f), 11-121(a) (1998) (newly adopted court rules in Maryland which guarantee that information about juvenile proceedings will be made available to the public before they take place).

21. The Reporters Committee publishes "Access to Juvenile Records and Proceedings," a guide to state law regarding juvenile courts.

22. See, e.g., Publicker Indus. v. Cohen, 733 F.2d 1059 (3d Cir. 1984) (preliminary injunction hearing); In re Continental Illinois Sec. Litig., 732 F.2d 1302 (7th Cir. 1984) (hearing on motion to dismiss); In re Iowa Freedom of Info. Council, 724 F.2d 658 (8th Cir. 1984) (contempt hearing); Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983) (pre- and post-trial hearings); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165 (6th Cir. 1983) (vacating the district court's sealing of documents filed in a civil action based on common law and First Amendment right of access to judicial proceedings); Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) (stating that "though its original inception was in the realm of criminal proceedings, the right of access [to judicial proceedings] has since been extended to civil proceedings because the contribution of publicity is just as important there," for proposition that "the right of access belonging to the press and the general public also has a First Amendment basis"); Doe v. Santa Fe Indep. School Dist., 933 F. Supp. 647, 648-50 (S.D. Tex. 1996) (concluding that the right of the public to attend civil trials is grounded in the First Amendment as well as the common law).

23. See, e.g., United States v. Town of Moreau, 979 F. Supp 129 (N.D.N.Y. 1997) (denying a newspaper's request for access to settlement conferences and related documents under seal in a federal environmental lawsuit against General Electric).

24. See, e.g., South Carolina Dist. Court Rule 5.03.

25. First State Insurance Co. v. Minnesota Mining & Manufacturing Co, No. C4-97-1872 (Minn. Feb. 26, 1998) (petition for review denied); see also Procter & Gamble Co. v. Bankers Trust, 78 F.3d 219 (6th Cir. 1996) (where a trial judge had given the parties broad authority to voluntarily seal any documents they chose, the federal appeals court in Cincinnati (6th Cir.) criticized the trial judge's expansive protective order by noting that the court had not engaged in the requisite inquiry prior to closing court documents to the public).

26. See, e.g., Stone v. University of Maryland Medical Sys. Corp., 948 F.2d 128 (4th Cir. 1991) (documents filed as exhibits in civil court actions may be subject to the First Amendment right of access); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165 (6th Cir. 1983) (First Amendment right of access to documents introduced in civil cases); Anderson v. Cryovac, 805 F.2d 1 (1st Cir. 1986) (limited First Amendment right of access to filed discovery documents); Barron v. Florida Freedom Newspapers, 531 So.2d 113 (Fla. 1988).

27. See Reznick v. Hofield, 282 Ill. App. 3d 1078, appeal denied, 169 Ill. 2d 565 (1996) (holding that absent exceptional circumstances, parties must identify themselves in court documents and that privacy interests outweigh the public's access rights only in "exceptional" circumstances); Doe v. Shakur, 164 F.R.D. 359 (S.D.N.Y. 1996) (refusing to allow a victim of sexual assault to prosecute a civil suit for damages under a pseudonym because "fairness requires that she be prepared to stand behind her charges publicly"). But see Doe v. Nat'l Railroad Passenger Corp., No. 94-5064, 1997 U.S. Dist. LEXIS 2620 (E.D. Pa. Mar. 11, 1997) (upholding sealing of rape victim's name because the crime is a "serious violation of a person's body as well as dignity" and in a civil case, the proceedings did "not appear to involve issues of a public nature").

28. In 1995, the Judicial Conference of the United States struck language from a proposed amendment to Rule 26(c) that would have allowed courts to seal civil documents at the request of both parties.

29. See, e.g., Littlejohn v. BIC Corp., 851 F.2d 673 (3d Cir. 1988).

30. See Jones v. Clinton, 12 F. Supp. 2d 931 (E.D. Ark. Oct. 8, 1998) (holding that the videotape of President Clinton's deposition in Paula Jones' lawsuit against him would remain under seal, although a transcript would be released); United States v. McDougal, 103 F.3d 654 (8th Cir. 1996) (holding that district court did not abuse its discretion by finding that media do not have common law or First Amendment right of access to copies of President Clinton's videotaped deposition in Whitewater trial).

31. See, e.g., Tex. R. Civ. P. Ann. 76a (Vernon 1998); N.C. Gen. Stat. § 132-1 (1999).

32. See, e.g., In re Agent Orange Product Liab. Litig., 597 F. Supp. 740 (E.D.N.Y.), aff'd, 818 F.2d 945 (2d Cir. 1987); Public Citizen v. Liggett, 858 F.2d 7575 (1st Cir. 1989), cert. denied, 488 U.S. 1030 (1989) (access to discovery documents filed with the court granted under Fed. R. Civ. P. 5(d)).

33. Nixon v. Warner Communications, 435 U.S. 589 (1978) (holding that common-law right of access does not require disclosure of Nixon tapes played before jury during criminal trial of aides charged with obstructing Watergate investigation).

Next section: Access to courts: Cameras and recording equipment