1st Amendment protects access to transit violation hearings

The public’s First Amendment right of access extends beyond court hearings to encompass at least some administrative proceedings as well, a federal appeals court in New York ruled last week.

The ruling in New York Civil Liberties Union v. New York City Transit Authority by the U.S. Court of Appeals in New York City (2nd Cir.) affirmed a lower court's order striking down a New York City Transit Authority rule that allowed individuals contesting transit citations to exclude the public from their hearings. Such a rule violated the public’s presumptive First Amendment right of access to adjudicatory proceedings, the Second Circuit said.

“[W]e conclude that the First Amendment guarantees the public a qualified right of access to the administrative adjudicatory forum at issue in this case, and that no grounds have been adduced by the [transit authority] supporting its rules limiting that right,” the court's opinion said.

Judge Guido Calabresi, writing for the three-judge panel, said some transit-related citations must be contested in criminal court while others go through the transit authority's own adjudicatory process. Although challenges made in court are presumptively open to the public, access to the transit citation hearings is much more limited. Specifically, a person who wishes to observe such hearings must twice obtain the consent of the person challenging the citation — once on the record, before the hearing officer — in order to observe the hearing. If the alleged rule violator objects to an observer’s presence for any reason, that person is excluded from observing the proceeding, Calabresi said.

The New York Civil Liberties Union challenged that policy in federal court, arguing that the public has a presumptive First Amendment right of access to attend the adjudicatory hearings. A federal district court in New York agreed, ruling that the transit authority’s policy was unconstitutional.

The transit authority appealed the decision to the Second Circuit, which upheld the ruling last Wednesday.

Calabresi’s opinion for the court rejected the transit authority’s argument that the First Amendment’s right of access could apply only to court hearings. Recounting the purpose of open access to governmental proceedings, the court said it had "little cause to think that this reasoning has significantly less force in the administrative context." The court determined it had “no trouble concluding that the First Amendment guarantees a presumptive right of access at least to this administrative forum.”

Nonetheless, the court emphasized the narrowness of its decision. “[W]e need not, and should not, make any broad pronouncement about the right of access to administrative processes generally. Given the wide variety of proceedings that characterize the administrative state, that would be as foolhardy as it is unnecessary.”

After determining that the right of access could apply, the court evaluated whether the “experience and logic” test used by the Supreme Court in court access cases supported the application of such a constitutional right to the citation hearings at issue.

Calabresi concluded that experience and logic supported such a right. Of particular note to the court was that transit violations could either be assigned to criminal courts or to the adjudicative hearing at the discretion of the citing police officer, which supported the conclusion that the public should have similar access rights in both forums.

Because the presumptive right of access attached to the adjudicatory proceedings, it was the transit agency’s burden to justify closing the proceedings from the public. The agency failed to do so, Calabresi said.