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, the right of access is never absolute. The courts usually apply a balancing test to determine whether the interest in access outweighs any interest in confidentiality. The standard the courts use in striking that balance depends on the source of the right; courts have found a right of access under common law, the First Amendment and state and federal laws. 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, but the presumption of openness can be overcome by a balancing of competing interests. And the U.S. Supreme Court said in 1978 in Nixon v. Warner Communications, Inc. that the common-law balancing is "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."
Because of this simple balancing test, gaining access under the common-law right is more difficult than when relyingon the First Amendment right, under which closure must pass a higher level of scrutiny.
In Richmond Newspapers, Inc. v. Virginia and other cases that followed in the early 1980s, 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. First, courts must consider "whether the place and process have been historically open to the press and general public." Second, they must consider "whether public access plays a significant positive role in the functioning of the particular process in question." Since Richmond Newspapers, courts have extended this "history and logic" test to establish a constitutional right of access to many types of criminal and civil court proceedings and records.
Once a court determines that the First Amendment right of access applies and there is a presumptive right of access, courts must grant access unless specific, on-the-record findings demonstrate that closure is necessary to protect a compelling governmental interest, and is narrowly tailored to serve that interest.
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. 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.
The U.S. 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.
The high court also has never ruled on whether the public has a constitutional right of access to juvenile court proceedings. But traditionally, juvenile courts have been closed to the public. Although many states have enacted statutes that open up their juvenile court systems -- particularly in response to high-profile crimes involving minors -- it is unlikely that a court will find a First Amendment right of access exists.
Trial secrecy has been increasing recently, prompted by controversial trials ranging from O.J. Simpson to Theodore Kaczynski, Timothy McVeigh and Terry Nichols, and, more recently, individuals accused of supporting terrorism.
Judges also increasingly are limiting information about jurors, citing concerns about their privacy. However, some appeals courts have ruled that the First Amendment gives the public a general right of access to names and addresses of jurors.
Unlike criminal courtroom proceedings, grand jury proceedings have not been historically open to the public, and few courts have ever allowed access to grand jury materials or related proceedings.