Overview
Even where a court finds a constitutional presumption of access to proceedings or records, that presumption can be rebutted “by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510 (1984).
As one court noted, “[o]ther than a right to a fair trial, interests compelling enough to overcome the presumption of openness usually take the form of a privacy right. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (protective orders for discovery materials); In Re Knoxville News-Sentinel Co., Inc., 723 F.2d 470 (6th Cir. 1983) (personal financial records of innocent third parties); Megapulse Inc. v. Lewis, 672 F.2d 959 (D.C. Cir. 1982) (trade secrets); Schaffer v. Kissinger, 505 F.2d 389 (D.C. Cir. 1974) (national security secrets); Park v. Detroit Free Press Co., 72 Mich. 560, 40 N.W. 731 (1888) (libelous statements); In Re Caswell, 18 R.I. 835, 29 A. 259 (1893) (details of a divorce).” State v. Cottman Transmission, 542 A.2d 859, 864 (Md. App. 1988).
Nebraska
The Nebraska appellate courts have not directly addressed the various interests that might weigh against access in the constitutional context. However, the Nebraska Guidelines largely mirror the First Amendment factors established in Press Enterprise. Thus, §6-204 of the Nebraska Guidelines states:
Upon entering an order of closure, the court shall articulate written findings as follows:
(A) that the evidence establishes an adequate basis to support a finding that there is a substantial likelihood that irreparable damage to the accused’s right to a fair trial will result from conducting the questioned proceedings in public,
(B) that a substantial likelihood exists that reasonable alternatives to closure will not adequately protect the accused’s right to a fair trial; and
(C) there is a substantial likelihood that closure will be effective in protecting against the perceived harm.
The burden of establishing such facts shall be upon the moving party.
Similarly, in connection with the common law right of access, the Nebraska Supreme Court has recognized that access decisions “are normally left to the ‘informed discretion’ of the courts. . .after ‘weighing the interests advanced by the parties in light of the public interest and the duty of the courts.’” State v. Cribbs, 237 Neb. 947, 951, 469 N.W.2d 108, 111 (1991).
