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Access to courts: You have a right to oppose secrecy

The 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 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 or bringing in jurors from another part of the state, and 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 Supreme Court has held that this is necessary so that an appeals court can evaluate the propriety of the closure.³⁵

Notes

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

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