The public and the press have a right to be heard on the issue of access to court proceedings and records, including those related to juries. In Globe Newspaper Co. v. Superior Court, the Supreme Court said that “representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’ ”
While it is clear that reporters (and the general public) have the right to challenge court secrecy, courts differ regarding the best method for asserting the right to access. One option is to intervene for the limited purpose of requesting access — the Supreme Court in United Nuclear Corp. v. Cranford Ins. Co. said that “courts have widely recognized that the correct procedure for a non-party to challenge a protective order is through intervention for that purpose.” Indeed, some courts say that the press or public must move to intervene in order to challenge closure. For example, the Virginia Supreme Court said that is was improper to issue a writ of mandamus — an order from a higher court that records be released or the hearing be opened — because intervention was the proper method for challenging closure. (Hertz v. Times-World Corp.)
On the other hand, a few courts prefer that the press ask for a writ of mandamus, and some have questioned whether the media may properly intervene to request access, especially in criminal trials. In In re Globe Newspaper Co., for example, the U.S. Court of Appeals in Boston (1st Cir.) found that “the right of a non-party to intervene in a criminal proceeding is doubtful.”
While this uncertainty can be frustrating, many courts allow a less formal challenge. For example, if there is a hearing prior to the closure, you can identify yourself as a reporter and politely assert your right to observe court proceedings.
If there is no opportunity to object in person, you can write a letter to the judge (or the chief judge if you cannot determine who is presiding over the case). You should file the letter with the clerk’s office and send copies to the parties if you can find out who they are. Your letter can say that you understand there will be a closed hearing at the time listed, and respectfully request that the hearings be opened. If the court does not do so, it should at least issue on-the-record findings that there is a compelling interest in closure and that there is no other way to serve that interest. Finally, you can ask the court to give the press and the public a chance to challenge the closed hearings in open court before they occur.
Often, this is enough to unseal the hearing, or at least find out more information about the case. If your letter is ignored, or your request is rejected, you should talk to the Reporters Committee or a local media lawyer about other options for challenging secret court proceedings.